lOMoARcPSD|35474838

Human Rights Notes - By Dr Chilemba

Human Rights Law (University of Malawi)

Scan to open on Studocu

Studocu is not sponsored or endorsed by any college or university

Downloaded by PRAJAPATI MABANGWE ([email protected])
 lOMoARcPSD|35474838

LAW 340 : HUMAN RIGHTS NOTES.

DEFINITIONS AND CLASSIFICATIONS

Human rights are commonly understood as inalienable fundamental rights to which a person is inherently
entitled simply because she or he is a human being. This chapter examines the concept of human rights since
its origins, explaining the different terms and classifications.

HISTORICAL ANTECEDENTS

The origins of human rights may be found both in Greek philosophy and the various world religions. In the
Age of Enlightenment (18th century) the concept of human rights emerged as an explicit category.
Man/woman came to be seen as an autonomous individual, endowed by nature with certain inalienable
fundamental rights that could be invoked against a government and should be safeguarded by it. Human
rights were henceforth seen as elementary preconditions for an existence worthy of human dignity.

Before this period, several charters codifying rights and freedoms had been drawn up constituting important
steps towards the idea of human rights. The first were the Magna Charta Libertatum of 1215, the Golden
Bull of Hungary (1222), the Danish Erik Klippings Håndfaestning of 1282, the Joyeuse Entrée of 1356 in
Brabant (Brussels), the Union of Utrecht of 1579 (The Netherlands) and the English Bill of Rights of 1689.
These documents specified rights, which could be claimed in the light of particular circumstances (e.g.
threats to the freedom of religion), but they did not yet contain an all-embracing philosophical concept of
individual liberty. Freedoms were often seen as rights conferred upon individuals or groups by virtue of their
rank or status.

In the centuries after the Middle Ages, the concept of liberty became gradually separated from status and
came to be seen not as a privilege but as a right of all human beings. Spanish theologists and jurists played a
prominent role in this context. Among the former, the work of Francisco de Vitoria (1486-1546) and
Bartolomé de las Casas (1474-1566) should be highlighted. These two men laid the (doctrinal) foundation
for the recognition of freedom and dignity of all humans by defending the personal rights of the indigenous
peoples inhabiting the territories colonised by the Spanish Crown

1|Page

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

The Enlightenment was decisive in the development of human rights concepts. The ideas of Hugo Grotius
(1583-1645), one of the fathers of modern international law, of Samuel von Pufendorf (1632-1694), and of
John Locke (1632-1704) attracted much interest in Europe in the 18th century. Locke, for instance, developed
a comprehensive concept of natural rights; his list of rights consisting of life, liberty and property. Jean-
Jacques Rousseau (1712-1778) elaborated the concept under which the sovereign derived his powers and the
citizens their rights from a social contract. The term human rights appeared for the first time in the French
Déclaration des Droits de l’Homme et du Citoyen (1789).

The people of the British colonies in North America took the human rights theories to heart. The American
Declaration of Independence of 4 July 1776 was based on the assumption that all human beings are equal. It
also referred to certain inalienable rights, such as the right to life, liberty and the pursuit of happiness. These
ideas were also reflected in the Bill of Rights which was promulgated by the state of Virginia in the same
year. The provisions of the Declaration of Independence were adopted by other American states, but they
also found their way into the Bill of Rights of the American Constitution. The French Déclaration des Droits
de l’Homme et du Citoyen of 1789, as well as the French Declaration of 1793, reflected the emerging
international theory of universal rights. Both the American and French Declarations were intended as
systematic enumerations of these rights.

The classic rights of the 18th and 19th centuries related to the freedom of the individual. Even at that time,
however, some people believed that citizens had a right to demand that the government endeavour to
improve their living conditions. Taking into account the principle of equality as contained in the French
Declaration of 1789, several constitutions drafted in Europe around 1800 contained classic rights, but also
included articles which assigned responsibilities to the government in the fields of employment, welfare,
public health, and education. Social rights of this kind were also expressly included in the Mexican
Constitution of 1917, the Constitution of the Soviet Union of 1918, and the German Constitution of 1919.

In the 19th century, there were frequent inter-state disputes in connection with the protection of the rights of
minorities in Europe. These conflicts led to several humanitarian interventions and calls for international
protection arrangements. One of the first such arrangements was the Treaty of Berlin of 1878.

The need for international standards on human rights was first felt at the end of the 19 th century, when the
industrial countries began to introduce labour legislation. This legislation - which raised the cost of labour -

2|Page

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

had the effect of worsening their competitive position in relation to countries that had no labour laws.
Economic necessity forced the states to consult each other. It was as a result of this that the first conventions
were formulated in which states committed themselves vis-‡-vis other states in regard to their own citizens.
The Bern Convention of 1906 prohibiting night-shift work by women can be seen as the first multilateral
convention meant to safeguard social rights. Many more labour conventions were later to be drawn up by the
International Labour Organisation (ILO, founded in 1919). Remarkable as it may seem, therefore, while
the classic human rights had been acknowledged long before social rights, the latter were first embodied in
international regulations.

The atrocities of World War II put an end to the traditional view that states have full liberty to decide the
treatment of their own citizens. The signing of the Charter of the United Nations (UN) on 26 June 1945
brought human rights within the sphere of international law. In particular, all UN members agreed to take
measures to protect human rights. The Charter contains a number of articles specifically referring to human
rights. Less than two years later, the UN Commission on Human Rights (UNCHR), established early in
1946, submitted a draft Universal Declaration of Human Rights (UDHR). The UN General Assembly
(UNGA) adopted the Declaration in Paris on 10 December 1948. This day was later designated Human
Rights Day.

During the 1950s and 1960s, more and more countries joined the UN. Upon joining they formally accepted
the obligations contained in the UN Charter, and in doing so subscribed to the principles and ideals laid
down in the UDHR. This commitment was made explicit in the Proclamation of Teheran (1968), which
was adopted during the first World Conference on Human Rights, and repeated in the Vienna Declaration
and Programme of Action, which was adopted during the second World Conference on Human Rights
(1993).

Since the 1950s, the UDHR has been backed up by a large number of international conventions. The most
significant of these conventions are the International Covenant on Civil and Political Rights (ICCPR)
and the International Covenant on Economic, Social and Cultural Rights (ICESCR). These two
Covenants together with the UDHR form the International Bill of Human Rights. At the same time, many
supervisory mechanisms have been created, including those responsible for monitoring compliance with the
two Covenants.

3|Page

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

Human rights have also been receiving more and more attention at the regional level. In the European, the
Inter-American and the African context, standards and supervisory mechanisms have been developed that
have already had a significant impact on human rights compliance in the respective continents, and promise
to contribute to compliance in the future. These standards and mechanisms will be discussed in more detail
throughout this book.

DEFINING HUMAN RIGHTS

Human rights are commonly understood as being those rights which are inherent in the mere fact of being
human. The concept of human rights is based on the belief that every human being is entitled to enjoy her/his
rights without discrimination. Human rights differ from other rights in two respects. Firstly, they are
characterised by being:

• Inherent in all human beings by virtue of their humanity alone (they do not have, e.g., to be
purchased or to be granted);

• Inalienable (within qualified legal boundaries); and

• Equally applicable to all.

Secondly, the main duties deriving from human rights fall on states and their authorities or agents, not on
individuals.

One important implication of these characteristics is that human rights must themselves be protected by law
(‘the rule of law’). Furthermore, any disputes about these rights should be submitted for adjudication through
a competent, impartial and independent tribunal, applying procedures which ensure full equality and fairness
to all the parties, and determining the question in accordance with clear, specific and pre-existing laws,
known to the public and openly declared.

The idea of basic rights originated from the need to protect the individual against the (arbitrary) use of state
power. Attention was therefore initially focused on those rights which oblige governments to refrain from
certain actions. Human rights in this category are generally referred to as ‘fundamental freedoms’. As human
rights are viewed as a precondition for leading a dignified human existence, they serve as a guide and
touchstone for legislation.

4|Page

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

The specific nature of human rights, as an essential precondition for human development, implies that they
can have a bearing on relations both between the individual and the state, and between individuals
themselves. The individual-state relationship is known as the ‘vertical effect’ of human rights. While the
primary purpose of human rights is to establish rules for relations between the individual and the state,
several of these rights can also have implications for relations among individuals. This so-called ‘horizontal
effect’ implies, among other things, that a government not only has an obligation to refrain from violating
human rights, but also has a duty to protect the individual from infringements by other individuals. The right
to life thus means that the government must strive to protect people against homicide by their fellow human
beings. Similarly, Article 17(1) and (2) of the International Covenant on Civil and Political Rights obliges
governments to protect individuals against unlawful interference with their privacy. Another typical example
is the International Convention on the Elimination of All Forms of Racial Discrimination, which
obliges states to prevent racial discrimination between human beings. State obligations regarding human
rights may involve desisting from certain activities (e.g., torture) or acting in certain ways (e.g., organising
free elections).

TERMINOLOGY

The term ‘human rights’, is used to denote a broad spectrum of rights ranging from the right to life to the
right to a cultural identity. They involve all elementary preconditions for a dignified human existence. These
rights can be ordered and specified in different ways. At the international level, a distinction has sometimes
been made between civil and political rights, on the one hand, and economic, social and cultural rights on the
other. This section clarifies this distinction. Since other classifications are also used, these will likewise be
reviewed, without claiming, however, that these categorisations reflect an international consensus. It is also
clear that the various categorisations overlap to a considerable extent.

Although human rights have been classified in a number of different manners it is important to note that
international human rights law stresses that all human rights are universal, indivisible and interrelated (e.g.
Vienna Declaration and Programme of Action (1993), para. 5). The indivisibility of human rights implies
that no right is more important than any other.

CLASSIC AND SOCIAL RIGHTS

5|Page

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

One classification used is the division between ‘classic’ and ‘social’ rights. ‘Classic’ rights are often seen to
require the non-intervention of the state (negative obligation), and ‘social rights’ as requiring active
intervention on the part of the state (positive obligations). In other words, classic rights entail an obligation
for the state to refrain from certain actions, while social rights oblige it to provide certain guarantees.
Lawyers often describe classic rights in terms of a duty to achieve a given result (‘obligation of result’) and
social rights in terms of a duty to provide the means (‘obligations of conduct’). The evolution of international
law, however, has lead to this distinction between ‘classic’ and ‘social’ rights becoming increasingly
awkward. Classic rights such as civil and political rights often require considerable investment by the state.
The state does not merely have the obligation to respect these rights, but must also guarantee that people can
effectively enjoy them. Hence, the right to a fair trial, for instance, requires well-trained judges, prosecutors,
lawyers and police officers, as well as administrative support. Another example is the organisation of
elections, which also entails high costs.

On the other hand, most ‘social’ rights contain elements that require the state to abstain from interfering with
the individual’s exercise of the right. As several commentators note, the right to food includes the right for
everyone to procure their own food supply without interference; the right to housing implies the right not to
be a victim of forced eviction; the right to work encompasses the individual’s right to choose his/her own
work and also requires the state not to hinder a person from working and to abstain from measures that
would increase unemployment; the right to education implies the freedom to establish and direct educational
establishments; and the right to the highest attainable standard of health implies the obligation not to
interfere with the provision of health care.

In sum, the differentiation of ‘classic’ rights from ‘social’ rights does not reflect the nature of the obligations
under each set of rights.

CIVIL, POLITICAL, ECONOMIC, SOCIAL AND CULTURAL RIGHTS

CIVIL RIGHTS

The term ‘civil rights’ is often used with reference to the rights set out in the first eighteen articles of the
UDHR, almost all of which are also set out as binding treaty norms in the ICCPR. From this group, a further
set of ‘physical integrity rights’ has been identified, which concern the right to life, liberty and security of the
person, and which offer protection from physical violence against the person, torture and inhuman treatment
6|Page

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

(by the state), arbitrary arrest, detention, exile, slavery and servitude, interference with one’s privacy and
right of ownership, restriction of one’s freedom of movement, and the freedom of thought, conscience and
religion. The difference between ‘basic rights’ (see below) and ‘physical integrity rights’ lies in the fact that
the former include economic and social rights, but do not include rights such as protection of privacy and
ownership.

Although not strictly an integrity right, the right to equal treatment and protection in law certainly qualifies
as a civil right. Moreover, this right plays an essential role in the realization of economic, social and cultural
rights.

Another group of civil rights is referred to under the collective term ‘due process rights’. These pertain,
among other things, to the right to a public hearing by an independent and impartial tribunal, the
‘presumption of innocence’, the ne bis in idem principle and legal assistance (see, e.g., Articles 9, 10, 14 and
15 of the ICCPR).

POLITICAL RIGHTS

In general, political rights are those set out in Articles 19 to 21 of the UDHR and also codified in the ICCPR.
They include freedom of expression, freedom of association and assembly, the right to take part in the
government of one’s country, and the right to vote and stand for election at genuine periodic elections held
by secret ballot (see Articles 18, 19, 21, 22 and 25 of the ICCPR).

ECONOMIC AND SOCIAL RIGHTS

The economic and social rights are listed in Articles 22 to 26 of the UDHR, and further developed and set
out as binding treaty norms in the ICESCR. These rights provide the conditions necessary for prosperity and
wellbeing. Economic rights refer, for example, to the right to property, the right to work, which one freely
chooses or accepts, the right to a fair wage, a reasonable limitation of working hours, and trade union rights.
Social rights are those rights necessary for an adequate standard of living, including rights to health, shelter,
food, social care, and the right to education (see Articles 6 to 14 of the ICESCR).

7|Page

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

CULTURAL RIGHTS

The UDHR lists cultural rights in Articles 27 and 28: the right to participate freely in the cultural life of the
community, to share in scientific advancement, and the right to the protection of the moral and material
interests resulting from any scientific, literary or artistic production of which one is the author (see also
Article 15 of the ICESCR and Article 27 of the ICCPR).

THE ALLEGED DICHOTOMY BETWEEN CIVIL AND POLITICAL RIGHTS, AND ECONOMIC,
SOCIAL AND CULTURAL RIGHTS

Traditionally it has been argued that there are fundamental differences between economic, social and cultural
rights, and civil and political rights. These two categories of rights have been seen as two different concepts
and their differences have been characterised as a dichotomy. According to this view, civil and political
rights are considered to be expressed in very precise language, imposing merely negative obligations which
do not require resources for their implementation, and which therefore can be applied immediately. On the
other hand, economic, social and cultural rights are considered to be expressed in vague terms, imposing
only positive obligations conditional on the existence of resources and therefore involving a progressive
realization.

As a consequence of these alleged differences, it has been argued that civil and political rights are justifiable
whereas economic, social and cultural rights are not. In other words, this view holds that only violations of
civil and political rights can be adjudicated by judicial or similar bodies, while, economic, social and cultural
rights are ‘by their nature’ non-justifiable.

Over the years, economic, social and cultural rights have been re-examined and their juridical validity and
applicability have been increasingly stressed. During the last decade, we have witnessed the development of
a large and growing body of case-law of domestic courts concerning economic, social and cultural rights.
This case-law, at the national and international level, suggests a potential role for creative and sensitive
decisions of judicial and quasi-judicial bodies with respect to these rights.

Many international fora have elaborated on the indivisibility and interdependency of human rights. As stated
in the 1993 Vienna Declaration and Programme of Action: ‘All human rights are universal, indivisible and
interdependent and interrelated. The international community must treat human rights globally in a fair and

8|Page

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

equal manner, on the same footing, and with the same emphasis.’ The EU and its member states have also
made it clear on numerous occasions that they subscribe to the view that both categories of human rights are
of equal importance, in the sense that an existence worthy of human dignity is only possible if both civil and
political rights and economic, social and cultural rights are enjoyed. In their Declaration of 21 July 1986,
they affirmed that ‘the promotion of economic, social and cultural rights as well as of civil and political
rights is of paramount importance for the full realization of human dignity and for the attainment of the
legitimate aspirations of every individual.’

The so-called Limburg Principles (a set of interpretations of the ICESCR) also indicate that a sharp
distinction between civil and political rights on the one hand and economic, social and cultural rights on the
other is not accurate. These principles were drawn up in 1986 by a group of independent experts, and
followed in 1997 by the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights.
Together, these documents provide a clear explanation of the nature of the state party obligations under the
ICESCR. The same can be said of the 1990 General Comment No. 3 - The nature of States parties’
obligations in relation to the ICESCR.

However, despite continuous declarations at the international level on the indivisibility and interdependency
of all rights, the possibilities for petitioning an international body with respect to violations of economic,
social and cultural rights, are still very limited. The question of adopting an Optional Protocol to the ICESCR
providing for a system of individual and collective complaints has been under consideration by the
international community for many years and the Committee on Economic, Social and Cultural Rights has
invested much time and energy discussing a draft Optional Protocol.

In general, states have given formal support to the adoption of an Optional Protocol. The Vienna Declaration
and Programme of Action (1993) ‘encourage[d] the Commission on Human Rights, in co-operation with the
Committee on Economic, Social and Cultural Rights, to continue the examination of optional protocols to the
International Covenant on Economic, Social and Cultural Rights’ (Part II, para. 75). This commitment was
reiterated by the UN Commission on Human Rights, which has supported the drafting by the Committee of
an optional protocol that grants individuals or groups the right to submit communications concerning non-
compliance with the Covenant. During the 60th session of the UN Commission on Human Rights (2004), the
mandate of the ‘Open-ended Working Group on an optional protocol to the International Covenant on

9|Page

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

Economic, Social and Cultural Rights’ was renewed for another two years to ‘consider options regarding the
elaboration of an Optional Protocol to the ICESCR.’

There is a pressing need to adopt an Optional Protocol to the ICESCR. Firstly, the current situation grants
economic, social and cultural rights inferior status, with lesser protection than civil and political rights.
Secondly, through an individual complaints procedure the meaning and scope of economic, social and
cultural rights will become more precise, facilitating efforts to respect and guarantee their enjoyment.
Thirdly, the existence of a potential ‘remedy’ at the international level could provide an incentive to
individuals and groups to formulate some of their economic and social claims in terms of rights. Finally, the
possibility of an adverse ‘finding’ by international bodies would give economic, social and cultural rights
salience in terms of the political concerns of governments; which these rights largely lack at present.

Without the adoption of an Optional Protocol, the principles of indivisibility and interdependence of all
human rights main remain largely theoretical.

FUNDAMENTAL AND BASIC RIGHTS

Fundamental rights are taken to mean such rights as the right to life and the inviolability of the person.
Within the UN, extensive standards have been developed which, particularly since the 1960s, have been laid
down in numerous conventions, declarations and resolutions, and which bring already recognised rights and
matters of policy which affect human development into the sphere of human rights. Concern that a broad
definition of human rights may lead to the notion of ‘violation of human rights’ losing some of its
significance has generated a need to distinguish a separate group within the broad category of human rights.
Increasingly, the terms ‘elementary’, ‘essential’, ‘core’ and ‘fundamental’ human rights are being used.

Another approach is to distinguish a number of ‘basic rights’, which should be given absolute priority in
national and international policy. These include all the rights which concern people’s primary material and
non-material needs. If these are not provided, no human being can lead a dignified existence. Basic rights
include the right to life, the right to a minimum level of security, the inviolability of the person, freedom
from slavery and servitude, and freedom from torture, unlawful deprivation of liberty, discrimination and
other acts which impinge on human dignity. They also include freedom of thought, conscience and religion,
as well as the right to suitable nutrition, clothing, shelter and medical care, and other essentials crucial to
physical and mental health.
10 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

Mention should also be made of so-called ‘participation rights’; for instance, the right to participate in public
life through elections (which is also a political right; see above) or to take part in cultural life. These
participation rights are generally considered to belong to the category of fundamental rights, being essential
preconditions for the protection of all kinds of basic human rights.

OTHER CLASSIFICATIONS

FREEDOMS

Preconditions for a dignified human existence have often been described in terms of freedoms (e.g., freedom
of movement, freedom from torture, and freedom from arbitrary arrest). United States President Franklin D.
Roosevelt summarised these preconditions in his famous ‘Four Freedoms Speech’ to the United States
Congress on 26 January 1941:

• Freedom of speech and expression;

• Freedom of belief (the right of every person to worship God in his own way);

• Freedom from want (economic understandings which will secure to every nation a healthy peace-time
life for its inhabitants); and

• Freedom from fear (world-wide reduction of armaments to such a point and in such a thorough
fashion that no nation would be able to commit an act of physical aggression against any
neighbour).

Roosevelt implied that a dignified human existence requires not only protection from oppression and
arbitrariness, but also access to the primary necessities of life.

CIVIL LIBERTIES

The concept of ‘civil liberties’ is commonly known, particularly in the United States, where the American
Civil Liberties Union (a non-governmental organisation) has been active since the 1920s. Civil liberties refer
primarily to those human rights which are laid down in the United States Constitution: freedom of religion,
freedom of the press, freedom of expression, freedom of association and assembly, protection against
interference with one’s privacy, protection against torture, the right to a fair trial, and the rights of workers.
This classification does not correspond to the distinction between civil and political rights.
11 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

INDIVIDUAL AND COLLECTIVE RIGHTS

Although the fundamental purpose of human rights is the protection and development of the individual
(individual rights), some of these rights are exercised by people in groups (collective rights). Freedom of
association and assembly, freedom of religion and, more especially, the freedom to form or join a trade
union, fall into this category. The collective element is even more evident when human rights are linked
specifically to membership of a certain group, such as the right of members of ethnic and cultural minorities
to preserve their own language and culture. One must make a distinction between two types of rights, which
are usually called collective rights: individual rights enjoyed in association with others, and the rights of a
collective.

The most notable example of a collective human right is the right to self-determination, which is regarded as
being vested in peoples rather than in individuals (see Articles 1 of the ICCPR and ICESCR). The
recognition of the right to self-determination as a human right is grounded in the fact that it is seen as a
necessary precondition for the development of the individual. It is generally accepted that collective rights
may not infringe on universally accepted individual rights, such as the right to life and freedom from torture.

FIRST, SECOND AND THIRD GENERATION RIGHTS

The division of human rights into three generations was first proposed by Karel Vasak at the International
Institute of Human Rights in Strasbourg. His division follows the principles of Liberté, …galité and
Fraternité of the French Revolution.

First generation rights are related to liberty and refer fundamentally to civil and political rights. The second
generation rights are related to equality, including economic, social and cultural rights. Third generation or
‘solidarity rights’ cover group and collective rights, which include, inter alia, the right to development, the
right to peace and the right to a clean environment. The only third generation right which so far has been
given an official human rights status - apart from the right to self-determination, which is of longer standing -
is the right to development (see the Declaration on the Right to Development, adopted by the UNGA on 4
December 1986, and the 1993 Vienna Declaration and Programme of Action (Paragraph I, 10)). The Vienna
Declaration confirms the right to development as a collective as well as an individual right, individuals being
regarded as the primary subjects of development. Recently, the right to development has been given

12 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

considerable attention in the activities of the High Commissioner for Human Rights. The EU and its member
states also explicitly accept the right to development as part of the human rights concept.

While the classification of rights into ‘generations’ has the virtue of incorporating communal and collective
rights, thereby overcoming the individualist moral theory in which human rights are grounded, it has been
criticized for not being historically accurate and for establishing a sharp distinction between all human rights.
Indeed, the concept of generations of rights is at odds with the Teheran Proclamation (Proclamation of
Teheran) and the Vienna Declaration and Programme of Action, which establish that all rights are
indivisible, interdependent and interrelated.

UNIVERSALITY OF HUMAN RIGHTS

In the last fifty years the principle of universality has become central to the interpretation of human rights
law. The recognition and protection of fundamental rights had already to some extent been codified before
World War II, albeit primarily in national law, and especially in national constitutions. It was, however, only
after World War II that politicians and civil society alike came to realise that national schemes for the
protection of human rights did not suffice. Since then, human rights have found their way into a wide range
of regional and global treaties.

The entry into force of the UN Charter on 24 October 1945 marked the formal recognition of human rights as
a universal principle, and compliance with human rights was mentioned in the Preamble and in Articles 55
and 56 as a principle to be upheld by all states. In 1948, it was followed by the adoption of the UDHR, and in
1966 by the ICESCR and the ICCPR and the Optional Protocol to the ICCPR.

The UDHR specifies over thirty rights. It regards the protection of these rights as a common standard to be
ultimately achieved. Several governments and scholars maintain that a number of human rights in the UDHR
have the character of jus cogens (a peremptory norm, which states are not allowed to derogate from; a rule
which is considered universally valid). Its universality is underlined by the fact that in 1948 it was
formulated and agreed upon not only by Western states, but also by representatives from countries such as
China, the Soviet Union, Chile, and Lebanon. It was moreover adopted without any objection: no votes
against and only eight abstentions.

13 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

As noted above, during the 1950s and 1960s, more and more countries became independent and joined the
UN. In doing so they endorsed the principles and ideals laid down in the UDHR. This commitment was
underlined in the Proclamation of Teheran of 1968. The Proclamation was adopted by 85 states, of which
more than 60 countries did not belong to the Western Group. The Proclamation stated: ‘The Universal
Declaration of Human Rights states a common understanding of the peoples of the world concerning the
inalienable and inviolable rights of all members of the human family and constitutes an obligation for the
members of the international community.’

The Vienna Declaration and Programme of Action, the results of the 1993 Second World Conference on
Human Rights (which was attended by 171 states), once more endorsed and underlined the importance of the
UDHR. It stated that the UDHR ‘constitutes a common standard of achievement for all peoples and all
nations’, using the language of the Declaration itself.

The universality of human rights has been, and still is, a subject of intense debate, including in anticipation
of, during and after the 1993 World Conference on Human Rights. The Vienna document itself states that the
universal nature of human rights is ‘beyond question’. It also says: ‘all human rights are universal’; adding,
however, that ‘the significance of national and regional particularities and various historical, cultural and
religious backgrounds must be borne in mind’. This national ‘margin of appreciation’, as it is called, does
not, however, according to the Vienna document, relieve states of their duty to promote and protect all
human rights, ‘regardless of their political, economic and cultural systems’.

Also relevant when considering the universality of human rights is the increasing number of ratifications of
international human rights conventions. By June 2004, the ICESCR had been ratified by 149 states and the
ICCPR by 152 states. Several other UN conventions, as well as conventions of the International Labour
Organisation (ILO), have also been ratified by many states; indeed in some cases by nearly all states. Most
strikingly, the Convention on the Rights of the Child (CRC), adopted in 1989, has been ratified by 192
states (July 2004).

HUMAN RIGHTS AND INTERFERENCE IN DOMESTIC AFFAIRS

14 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

In earlier times, whenever human rights violations were openly condemned by third states, the authorities
concerned countered with references to ‘unacceptable interference in internal affairs’. In more recent years,
this argument has lost ground when human rights are at stake. The Second World War constituted a turning
point in the way the international community regards its responsibility for the protection of and respect for
human rights. The long-standing principle of state sovereignty vis-‡-vis one’s nationals has in the course of
the years been eroded. The UN Charter explicitly proclaimed human rights to be a matter of legitimate,
international concern: ‘[...] the United Nations shall promote [...] universal respect for, and observance of,
human rights and fundamental freedoms for all without distinction as to race, sex, language or religion’
(Article 55); and ‘All Members pledge themselves to take joint and separate action in co-operation with the
Organisation for the achievement of the purposes set forth in Article 55.’ (Article 56).

These commitments were reaffirmed in the Sixth and Seventh principles of the Final Act of the Conference
on Security and Co-operation in Europe, Helsinki of 1975 (2.5.2.), and during the Second World
Conference on Human Rights of 1993. The traditional (broad) interpretation of the principle of national
sovereignty has thus been limited in two crucial, and related, respects. Firstly, how a state treats its own
subjects is nowadays considered a legitimate concern of the international community. Secondly, there are
now superior international standards, established by common consent, which may be used for appraising
domestic laws, and the actual conduct of sovereign states within their own territories, and in the exercise of
their internal jurisdiction.

Thus, whether a state has accepted international human rights norms, laid down in conventions, is relevant
but not the only decisive factor: human rights, as formulated in the UDHR, have become a matter of
international concern and do not fall within the exclusive jurisdiction of states. As stated in the 1993 Vienna
Declaration and Programme of Action: ‘[T]he promotion and protection of all human rights is a legitimate
concern of the international community’. In other words: there is a right to interfere in case of human rights
violations. Interference can be defined, in this context, as any form of international involvement in the affairs
of other states, excluding involvement in which forms of coercion are used (‘intervention’). The distinction
between interference and intervention is relevant: the fact that the principle of non-interference does not
apply to human rights questions does not mean that states may react to human rights violations by making
use of military means. This could amount to a violation of the prohibition of use of force, as laid down in the
UN Charter (Article 2(4)). Some human rights experts claim that the United Nations Security Council should
decide that a certain human rights situation poses a threat to international peace and security and on the basis
15 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

of that decision authorise military action for humanitarian purposes, undertaken under the auspices of the
UN.

TYPES OF STATE DUTIES IMPOSED BY ALL HUMAN RIGHTS TREATIES: THE

TRIPARTITE TYPOLOGY

The early 1980s gave rise to a useful definition of the obligations imposed by human rights treaties, which
blurred the sharp dichotomy between economic, social and cultural rights, and civil and political rights.

Specifically, in 1980, Henry Shue proposed that for every basic right (civil, political, economic, social and
cultural) there are three types of correlative obligations: ‘to avoid depriving’, ‘to protect from deprivation’
and ‘to aid the deprived.’

Since Shue’s proposal was published, the ‘tripartite typology’ has evolved and scholars have developed
typologies containing more than three levels. While there is no consensus on the precise meaning of the
different levels, the ‘tripartite typology’ presented by Shue is known today in more concise terms as the
obligations ‘to respect’, ‘to protect’, and ‘to fulfil’.

Obligations to respect: In general, this level of obligation requires the state to refrain from any measure that
may deprive individuals of the enjoyment of their rights or of the ability to satisfy those rights by their own
efforts.

Obligations to protect: This level of obligation requires the state to prevent violations of human rights by
third parties. The obligation to protect is normally taken to be a central function of states, which have to
prevent irreparable harm from being inflicted upon members of society. This requires states: a) to prevent
violations of rights by any individual or non-state actor; b) to avoid and eliminate incentives to violate rights
by third parties; and c) to provide access to legal remedies when violations have occurred in order to prevent
further deprivations.

Obligations to fulfil: This level of obligation requires the state to take measures to ensure, for persons within
its jurisdiction, opportunities to obtain satisfaction of the basic needs as recognised in human rights
instruments, which cannot be secured by personal efforts. Although this is the key state obligation in relation
to economic, social and cultural rights, the duty to fulfil also arises in respect to civil and political rights. It is

16 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

clear that enforcing, for instance, the prohibition of torture (which requires, for example, police training and
preventive measures), the right to a fair trial (which requires investments in courts and judges), the right of
free and fair elections or the right to legal assistance, entails considerable cost.

The above analysis demonstrates that there is little difference in the nature of state obligations in regard to
different human rights. The three levels of obligation encompass both civil and political rights and economic,
social and cultural rights, blurring the perceived distinction between them.

HOME: HUMAN RIGHTS CONCEPTS, IDEAS AND FORA: THE CONCEPT OF HUMAN
RIGHTS: AN INTRODUCTION:

SOURCES OF INTERNATIONAL LAW

SOURCES OF INTERNATIONAL HUMAN RIGHTS LAW

Since time immemorial, states and peoples have entered into formal relationships with each other. Over the
ages, traditions have developed on how such relationships are conducted. These are the traditions that make
up modern ‘international law’. Like domestic law, international law covers a wide range of subjects such as
security, diplomatic relations, trade, culture and human rights, but it differs from domestic legal systems in a
number of important ways. In international law there is no single legislature, nor is there a single enforcing
institution. Consequently, international law can only be established with the consent of states and is primarily
dependent on self-enforcement by those same states. In cases of non-compliance there is no supra-national
institution; enforcement can only take place by means of individual or collective actions of other states.

This consent, from which the rules of international law are derived, may be expressed in various ways. The
obvious mode is an explicit treaty, imposing obligations on the states parties. Such ‘treaty law’ constitutes a
dominant part of modern international law. Besides treaties, other documents and agreements serve as
guidelines for the behaviour of states, although they may not be legally binding. Consent may also be
inferred from established and consistent practice of states in conducting their relationships with each other.
The sources of international law are many and states commit to them to different degrees. The internationally
accepted classification of sources of international law is formulated in Article 38 of the Statute of the
International Court of Justice. These are:

1. International conventions, whether general or particular;

17 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

2. International custom, as evidence of general practice accepted as law;

3. The general principles of law recognised by civilised nations;

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

These sources will be analysed below.

INTERNATIONAL CONVENTIONS

International treaties are contracts signed between states. They are legally binding and impose mutual
obligations on the states that are party to any particular treaty (states parties). The main particularity of
human rights treaties is that they impose obligations on states about the manner in which they treat all
individuals within their jurisdiction.

Even though the sources of international law are not hierarchical, treaties have some degree of primacy.
Nowadays, more than forty major international conventions for the protection of human rights have been
adopted. International human rights treaties bear various titles, including ‘covenant’, ‘convention’ and
‘protocol’; but what they share are the explicit indication of states parties to be bound by their terms.

Human rights treaties have been adopted at the universal level (within the framework of the United Nations
and its specialised agencies, for instance, the ILO and UNESCO) as well as under the auspices of regional
organisations, such as the Council of Europe (CoE), the Organisation of American States (OAS) and the
African Union (AU) (formerly the Organisation of African Unity (OAU). These organisations have greatly
contributed to the codification of a comprehensive and consistent body of human rights law.

UNIVERSAL CONVENTIONS FOR THE PROTECTION OF HUMAN RIGHTS

Human rights had already found expression in the Covenant of the League of Nations, which led, inter alia,
to the creation of the International Labour Organisation. At the San Francisco Conference in 1945, held to
draft the Charter of the United Nations, a proposal to adopt a ‘Declaration on the Essential Rights of Man’
18 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

was put forward but was not examined because it required more detailed consideration than was possible at
the time. Nonetheless, the UN Charter clearly speaks of ‘promoting and encouraging respect for human
rights and for fundamental freedoms for all without distinction as to race, sex, language or religion’ (Article
1, para. 3). The idea of promulgating an ‘international bill of rights’ was developed immediately afterwards
and led to the adoption in 1948 of the Universal Declaration of Human Rights (UDHR).

The UDHR, adopted by a resolution of the United Nations General Assembly (UNGA), although not a
treaty, is the earliest comprehensive human rights instrument adopted by the international community. On
the same day that it adopted the Universal Declaration, the UNGA requested the UN Commission on
Human Rights to prepare, as a matter of priority, a legally binding human rights convention. Wide
differences in economic and social philosophies hampered efforts to achieve agreement on a single
instrument, but in 1954 two draft conventions were completed and submitted to the UNGA for consideration.
Twelve years later, in 1966, the International Covenant on Economic, Social and Cultural Rights
(ICESCR) and the International Covenant on Civil and Political Rights (ICCPR) were adopted, as well
as the First Optional Protocol to the ICCPR, which established an individual complaints procedure. Both
Covenants and the Optional Protocol entered into force in 1976. The Second Optional Protocol to the
ICCPR, Aiming at the Abolition of the Death Penalty, was adopted in 1989 and entered into force in 1991.

The ‘International Bill of Human Rights’ consists of the Universal Declaration of Human Rights, the
ICESCR, and the ICCPR and its two Optional Protocols. The International Bill of Rights is the basis for
numerous conventions and national constitutions.

The ICESCR and the ICCPR are key international human rights instruments. They have a common Preamble
and Article 1, in which the right to self-determination is defined. The ICCPR primarily contains civil and
political rights. The supervisory body is the Human Rights Committee. The Committee provides supervision
in the form of review of reports of states parties to the Covenant, as well as decisions on inter-state
complaints. Individuals alleging violations of their rights under the Covenant can also bring claims against
states to the Committee provided the state concerned is party to the First Optional Protocol. By July 2004, a
total of 152 states were parties to the Covenant, 104 to the First Optional Protocol and 53 to the Second
Optional Protocol.

19 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

The ICESCR consists of a catalogue of economic, social and cultural rights in the same vein as the ‘social’
part of the UDHR. Supervision is provided for in the form of reporting by states parties to the Covenant and
review of state reports has been entrusted by the UN Economic and Social Council (ECOSOC) to the
Committee on Economic, Social and Cultural Rights. In July 2004, a total of 149 states were parties to the
Covenant.

Besides the International Bill of Human Rights, a number of other instruments have been adopted under the
auspices of the UN and other international agencies. They may be divided into three groups:

a) Conventions elaborating on certain rights, inter alia:

• The Convention on the Prevention and Punishment of the Crime of Genocide (1948)

• ILO 98 Convention; Application of the Principles of the Right to Organize and to Bargain
Collectively (1949)

• Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment (1984)

b) Conventions dealing with certain categories of persons which may need special protection, inter alia:

• The Convention relating to the Status of Refugees (1951), and the 1967 Protocol (Protocol
Relating to the Status of refugees) thereto

• The Convention on the Rights of the Child (CRC) (1989)

• Optional Protocol to the CRC, on the Involvement of Children in Armed Conflict (2000)

• Second Optional Protocol to the CRC, on the Sale of Children, Child Prostitution and Child
Pornography (2000)

• ILO 169 Convention; Indigenous and Tribal Peoples in Independent Countries (1989)

• The International Convention on the Protection of the Rights of All Migrant Workers and
Members of Their Families (2000)

c) Conventions seeking to eliminate discrimination

• ILO 111 Convention; Discrimination in Respect of Employment and Occupation (1958)

20 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

• UNESCO Convention against Discrimination in Education (1960)

• The International Convention on the Elimination of All Forms of Racial Discrimination (1965)

• International Convention on the Suppression and Punishment of the Crime of Apartheid (1973)

• The Convention on the Elimination of All Forms of Discrimination Against Women (1979) and
its Optional Protocol (2000)

REGIONAL CONVENTIONS FOR THE PROTECTION OF HUMAN RIGHTS

The UN Charter encourages the adoption of regional instruments for the establishment of human rights
obligations, many of which have been of crucial importance for the development of international human
rights law. The Council of Europe adopted the European Convention for the Protection of Human
Rights and Fundamental Freedoms in 1950, supplemented by the European Social Charter in 1961, the
European Convention for the Prevention of Torture and Inhuman or Degrading Treatment and
Punishment in 1987, and the Framework Convention for the Protection of National Minorities in 1994.

The American Convention on Human Rights was adopted in 1969, under the auspices of the
Organisation of American States. This Convention has been complemented by two protocols, the 1988
Protocol of San Salvador (Protocol to the American Convention to Abolish the Death Penalty) and the
1990 Protocol to the American Convention to Abolish the Death Penalty. Other Inter-American
Conventions include the Inter-American Convention to Prevent and Punish Torture (1985), the Inter-
American Convention on the Forced Disappearance of Persons (1994), and the Inter-American
Convention on the Prevention, Punishment and Eradication of Violence Against Women (1995).

In 1981, the Organisation of African Unity, now the African Union, adopted the African Charter on
Human and Peoples’ Rights. Two protocols to the Charter have been adopted: the Protocol to the African
Charter on the Establishment of the African Court on Human and Peoples’ Rights (1998), and the
Protocol to the African Charter on the Rights of Women in Africa (2003). Other African instruments
include the Convention Governing the Specific Aspects of Refugee Problems in Africa (1969), and the
African Charter on the Rights and Welfare of the Child (1990).

INTERNATIONAL CUSTOM

21 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

Customary international law plays a crucial role in international human rights law. The Statute of the
International Court of Justice refers to ‘general practice accepted as law’. In order to become international
customary law, the ‘general practice’ needs to represent a broad consensus in terms of content and
applicability, deriving from a sense that the practice is obligatory (opinio juris). Customary law is binding on
all states (except those that may have objected to it during its formation), whether or not they have ratified
any relevant treaty.

One of the important features of customary international law is that customary law may, under certain
circumstances, lead to universal jurisdiction or application, so that any national court may hear extra-
territorial claims brought under international law. In addition, there also exists a class of customary
international law, jus cogens, or peremptory norms of general international law, which are norms accepted
and recognised by the international community of states as a whole as norms from which no derogation is
permitted. Under the Vienna Convention on the Law of Treaties (VCLT) any treaty which conflicts with a
peremptory norm is void.

Many scholars argue that some standards laid down in the Universal Declaration of Human Rights (which in
formal terms is only a resolution of the UNGA and as such not legally binding) have become part of
customary international law as a result of subsequent practice; therefore they would be binding upon all
states. Within the realm of human rights law the distinction between concepts of customary law, treaty law,
and general principles of law are often unclear.

The Human Rights Committee in its General Comment No. 24 - General Comment on issues relating to
reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or
in relation to declarations under Article 41 of the Covenant (1994) has summed up the rights which can
be assumed to belong to this part of international law which is binding on all states, irrespective of whether
they have ratified relevant conventions, and to which no reservations are allowed:

The right to engage in slavery, to torture, to subject persons to cruel, inhuman or degrading treatment or
punishment, to arbitrarily deprive persons of their lives, to arbitrarily arrest and detain persons, to deny
freedom of thought, conscience and religion, to presume a person guilty unless he proves his innocence, to
execute pregnant women and children, to permit the advocacy of national, racial or religious hatred, to deny

22 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

to persons of marriageable age the right to marry, or to deny to minorities the right to enjoy their own
culture, profess their own religion, or use their own language, and [...] the right to a fair trial [...].

Although this list is subject to debate and could possibly be extended with other rights not in the field of civil
and political rights (for instance, genocide and large parts of the Four Geneva Conventions on International
Humanitarian Law), the Committee underlines that there is a set of human rights which de jure are beyond
the (politically oriented) debate on the universality of human rights.

GENERAL PRINCIPLES OF LAW

In the application of both national and international law, general or guiding principles are used. In
international law they have been defined as ‘logical propositions resulting from judicial reasoning on the
basis of existing pieces of international law’.

At the international level, general principles of law occupy an important place in case-law regarding human
rights. A clear example is the principle of proportionality, which is important for human rights supervisory
mechanisms in assessing whether interference with a human right may be justified. Why are general
principles used? No legislation is able to provide answers to every question and to every possible situation
that arises. Therefore, rules of law or principles that enable decision-makers and members of the executive
and judicial branches to decide on the issues before them are needed. General principles of law play two
important roles: on the one hand, they provide guidelines for judges, in particular, in deciding in individual
cases; on the other hand, they limit the discretionary power of judges and of members of the executive in
their decisions in individual cases.

SUBSIDIARY MEANS FOR THE DETERMINATION OF RULES OF LAW

According to Article 38 of the Statute of the International Court of Justice, judicial decisions and the
teachings of the most qualified publicists are ‘subsidiary means for the determination of rules of law’.
Therefore, they are not, strictly speaking, formal sources, but they are regarded as evidence of the state of the
law.

As for the judicial decisions, Article 38 of the Statute of the International Court is not confined to
international decisions (such as the judgements of the International Court of Justice, the Inter-American

23 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

Court, the European Court and the future African Court on human rights); decisions of national tribunals
relating to human rights are also subsidiary sources of law.

The writings of scholars contribute to the development and analysis of human rights law. Compared to the
formal standard setting of international organs the impact is indirect. Nevertheless, influential contributions
have been made by scholars and experts working in human rights fora, for instance, in the UN Sub-
Commission on the Promotion and Protection of Human Rights, as well as by highly regarded NGOs, such
as Amnesty International and the International Commission of Jurists.

OTHER CONTRIBUTIONS TO STANDARD SETTING

Some instruments or decisions of political organs of international organisations and human rights
supervisory bodies, although they are not binding on states parties per se, nonetheless carry considerable
legal weight.

Numerous international organs make decisions that concern human rights and thereby strengthen the body of
international human rights standards. Such non-binding human rights instruments are called ‘soft law’, and
may shape the practice of states, as well as establish and reflect agreement of states and experts on the
interpretation of certain standards.

Every year, the UNGA and the UN Commission on Human Rights adopt more than 100 resolutions and
decisions dealing with human rights. Organisations such as the ILO and the various political organs of the
Council of Europe also adopt such resolutions. Some of these resolutions, sometimes called declarations,
adopt specific standards on specific human rights that complement existing treaty standards. Prominent
examples include the Declaration on the Human Rights of Individuals Who Are Not Nationals of the
Country in Which They Live, adopted by the UNGA in 1985 (Resolution 40/144, 13 December 1985) and
the Guiding Principles on Internal Displacement, adopted by the UN Commission on Human Rights in
1999 (Doc E/CN.4/1998/53/Add.2). Numerous declarations adopted by the UNGA have later given rise to
negotiations leading to treaty standards. Not all resolutions and decisions aim at standard setting, many deal
with concrete situations where diverging political interests come more into play, e.g., nominations of
members of UN Commissions are taken in the form of decisions.

DECISIONS OF POLITICAL ORGANS

24 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

Decisions of political organs involving political obligations play a special role and can have an impact on
human rights standard setting, i.e. certain documents of the Organisation on Security and Co-operation in
Europe (Conference on Security and Co-operation in Europe until 1995). Since 1975, the OSCE has devoted
much attention to the so-called Human Dimension of European co-operation. OSCE documents are often
drafted in a relatively short period of time and do not pretend to be legally binding. Thus, they offer the
advantage of flexibility and relevance to current events exercising influence upon states. For instance, the
Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE of
1990 made optimal use of the changes that had taken place in Europe after the fall of the Berlin Wall in
1989. This document included paragraphs on national minorities, which have been used as standards to
protect minorities and as guidelines for later bilateral treaties. Although this kind of document reflects the
dynamism of international human rights law, some experts worry that the political nature of these documents
may lead to confusion, as newer texts might contradict existing instruments or broaden the scope of attention
for human rights excessively by including too many related issues.

DECISIONS OF SUPERVISORY ORGANS

Numerous human rights supervisory mechanisms have been established to monitor the compliance by states
with international human rights standards. Within the UN context, these supervisory bodies are often called
‘treaty bodies’. They interpret international treaties, make recommendations and, in some cases, make
decisions on cases brought before them. These decisions, opinions and recommendations may not be legally
binding per se, but their impact on international human rights law (standards) is significant.

In this context, treaty bodies often prepare so-called General Comments or Recommendations, elaborating on
the various articles and provisions of their respective human rights instruments. The purpose of these general
comments or recommendations is to assist the states parties in fulfilling their obligations. The Human Rights
Committee and the Committee on Economic, Social and Cultural Rights are highly regarded for their
practice in this respect. These general comments/recommendations reflect the developments within each
Committee as to the interpretation of specific provisions and they aim to provide authoritative guidance to
states parties. As such, they have a significant influence on the behaviour of states parties.

GENERAL COMMENTS AND GENERAL RECOMMENDATIONS

25 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

UN treaty monitoring bodies have begun the practice of preparing General Comments or Recommendations
on the provisions of their respective Covenants.

As indicated by the Committee on Economic, Social and Cultural Rights ‘the Committee endeavours,
through its general comments, to make the experience gained so far through the examination of States’
reports available for the benefit of all States Parties in order to assist and promote their further
implementation of the Covenant; to draw the attention of the States Parties to insufficiencies disclosed by a
large number of reports; to suggest improvements in the reporting procedures; and to stimulate the activities
of the States Parties, international organisations and the specialised agencies concerned in achieving
progressively and effectively the full realisation of the rights recognised in the Covenant.’

The General Comments or Recommendations are useful tools to clarify the normative content of the
Covenants because they are general in nature and provide an abstract picture of the scope of the obligations.
General Comments/recommendations enable the Committees to announce their interpretations of the
different provisions of the Covenants, and the interpretations of the normative scope of the Covenants set out
in the General Comments/recommendations have achieved a significant degree of acceptance by states
parties.

As of April 2004, the Committee on Economic, Social and Cultural Rights had adopted 15 General
Comments; the Human Rights Committee had adopted 31 General Comments; the Committee on the
Elimination of Racial Discrimination had adopted 29 General Recommendations; the Committee on the
Elimination of Discrimination against Women had adopted 24 General Recommendations; the Committee
against Torture had adopted one General Comment; and the Committee on the Rights of the Child had
adopted 4 General Comments.

CONCLUDING REMARKS

Most states are bound by numerous international instruments guaranteeing a broad range of human rights.
What happens when a state is bound by two international instruments setting out diverging levels of

26 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

protection of a particular human right? The general rule is that when a state is bound by numerous
instruments, it is to implement the most far-reaching obligation or highest standard. Most human rights
conventions contain special provisions to this effect. For instance, Article 5(2) ICCPR and Article 5(2)
ICESCR state that ‘There shall be no restriction upon or derogation from any of the fundamental human
rights recognised or existing in any state party to the present Covenant pursuant to law, conventions,
regulations or custom on the pretext that the present Covenant does not recognise such rights or that it
recognises them to a lesser extent.’

In the same vein, Article 55 ECHR sets out that ‘Nothing in this Convention shall be construed as limiting
or derogating from any of the human rights and fundamental freedoms which may be ensured under the laws
of any High Contracting Party or under any other agreement to which it is a Party.’

Similarly, Article 41 Convention on the Rights of the Child (CRC) provides that nothing in the Convention
shall affect any provisions which are more conducive to the realisation of the rights of the child - either in the
law of a state party or in international law in force in that state.

Within the realm of standard setting, the number of ratifications and accessions to conventions merits special
attention. Widely ratified human rights conventions have greater value and impact, and reinforce the
universal character of human rights law, as well as the equality of all human beings under that law. Wide
accession or ratification (with the least possible number of reservations) contributes greatly to ensuring equal
application of human rights standards.

Many scholars contend that much of the standard-setting work has been completed. In addition, it has been
argued that in recent decades there has been an excessive proliferation of standards, and what is needed is a
means for better implementation of the existing norms. However, although the basic human rights have been
roughly defined, it may, for instance, emanate from consistent decisions of supervisory mechanisms that
further elaboration is needed. Better legal protection may be necessary for, inter alia, human rights defenders
and (persons belonging to) indigenous peoples. The UN Commission on Human Rights (UNCHR) has
adopted the Declaration on the right and responsibility of individuals, groups, and organs of society to
promote and protect universally recognised human rights and fundamental freedoms (Resolution
1998/7), but it is not a legally binding document. Since 1995 a special working group of the Commission has
been discussing the rights of indigenous peoples, inter alia, their right to self-determination and the right to

27 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

use their natural resources but there is still no agreement on a legally binding text. Other examples of needs
for future standard setting relate to the drafting of an optional protocol to the ICESCR establishing a
complaints procedure for individuals whose economic, social or cultural rights have been violated and an
International Convention on the Protection and Promotion of the Rights and Dignity of Persons with
Disabilities, that is currently being considered by the United Nations (UNGA Resolution 56/168, 19
December 2002).

GENERAL PRINCIPLES RELEVANT TO HUMAN RIGHTS LAW

Upon becoming parties to a human rights treaty, states must comply with the obligations enshrined therein.
Moreover, when applying human rights treaties, it is important to take into account the existence of general
principles which are embedded in international human rights law and which guide their application.

It is relevant to attempt to define a general principle by distinguishing it from a human right. The UN
Commission on Human Rights (UN General Assembly) has set out a definition of a human right (UNGA
Resolution 41/120, December 1986) and stated that a human right must:

1. Be consistent with the existing body of international human rights law;

2. Be of fundamental character and derive from the inherent dignity and worth of the human person;

3. Be sufficiently precise to give rise to identifiable and practicable rights and obligations;

4. Provide, where appropriate, realistic and effective implementation machinery, including reporting
systems; and

5. Attract broad international support.

General principles are not human rights but there is a degree of overlap as some general principles, such as
the principle of non-discrimination and non bis in idem have gradually evolved into substantive human rights
by being sufficiently precise and fulfilling the conditions described above.

There is no consensus on general principles, but it is proposed that, to qualify as such, a principle must be:

1. To a degree, universally or in a specific jurisdiction, generally accepted;

28 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

2. Distinct from human rights, to the effect that they are insufficiently precise, legally, to give rise to
identifiable and practicable rights and obligations;

3. Considered either to limit the margin of appreciation of a state or to guide it, when examining or
evaluating human right(s) of an individual; and

4. Relevant for the individual enjoyment of human rights.

General principles form, as such, a substratum of law, which helps in interpreting human rights law, and, for
that matter, international law in general. On the one hand, the principles provide guidelines for judges in
deciding in individual cases; on the other, they limit the discretionary power of judges and the executive
power in decisions in individual cases. As such, general principles have an important place in the application
of human rights.

THE RULE OF LAW

The rule of law is a cornerstone of the concept of human rights and democracy. There is, however, no
international consensus on its meaning. Different traditions in the Anglo-Saxon world (rule of law) and in
Continental Europe (l’Etat de droit, Rechtsstaat, Stato del diritto) attach slightly different interpretations to
the term. In official documents, the concept is not always explicitly defined. However, a strong consensus
does exist on the rule of law as a fundamental principle.

The rule of law implies that rights must be protected by law, independently of the will of the ruler. Individual
rights and freedoms are to be protected against any manifestation of arbitrary power by public authorities.
The principle of the ‘rule of law’ is contained in the Preamble to the Charter of the United Nations , which
states its objective:

[T]o save succeeding generations from the scourge of war, and to reaffirm faith in fundamental human rights
[...] in the equal rights of men and women and of nations large and small, and to establish conditions under
which justice and respect for the obligations arising from international law can be maintained.

The International Commission of Jurists has proposed the following definition: ‘The rule of law is more than
the formal use of legal instruments, it is also the Rule of Justice and of Protection for all members of society
against excessive governmental power.’ In sum, the rule of law means that law shall condition a

29 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

government’s exercise of power and that subjects or citizens are not to be exposed to the arbitrary will of
their rulers.

HISTORICAL DEVELOPMENT

As the rule of law is an old concept, we must go back to its origins in Medieval England to understand its
development. After defeating the last Anglo-Saxon King Harold II (1066), William the Conqueror
established a central administration. Two factors were characteristic of the political institutions in England at
the time: the undisputed supremacy of the central government throughout the country, and the rule or
supremacy of the law. The supremacy of the central government was embodied in the power of the King. He
was the source of all legislation, while the administration of justice and the jurisdiction were his privileges.
Yet, this did not mean that the King stood above the law; according to a widely held belief in England - and
other countries - in the Middle Ages, the world was governed by rules deriving either from what was
considered divine right or from what was popularly considered to be right. Thus, the King was subject to the
law, because it was the law that had made him King in the first place (quia lex facit regem). This is what was
originally meant by the rule of law.

Partly because of the feeling among the English people that some kind of ‘higher’ law existed and the early
development of parliament, and partly because of the efforts of the nobility to secure its ancient rights
against the King, attempts to establish absolute authority failed. The common law courts and parliament,
which became increasingly powerful, not only preserved the existing order of justice, but also succeeded in
giving it a meaning, which reflected the changes taking place in society and the people’s value systems. This
development marked the beginning of the rule of law, which could be reconciled with the doctrine of
parliamentary supremacy (originated in the seventeenth-century dispute with the Crown).

A similar development took place on the European continent where, since the time of the Frankish Kingdom
(around 500 A.D.) the principles of l’Etat de Droit (Rechtsstaat in German) were developed. The principle
implied that the government could only enact a law or binding regulation on the basis of what is considered
right and just. In a substantive sense, the principle implied that the standards and acts of the government
must be directed towards the realisation of justice. This principle required not only legislation based on the
best possible balance of interests, but also the recognition of freedoms and the existence of an independent
judiciary fit to check governmental powers.

30 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

DYNAMIC CONCEPT

The meaning of the rule of law, since its rise in the early Middle Ages, has gone through a process of change,
which runs roughly parallel to evolving views on the role and objectives of a national government. But it is a
dynamic concept not only in this respect. It does not stand for an abstract, unchanging set of unambiguous
rules, but rather for a range of principles which have to be applied and developed on a case-by-case basis.
The rule of law should thus be seen as a whole set of legal standards by which governments and subjects are
bound. The exact content of these standards is determined by several factors, including public opinion,
political consciousness and the prevailing sense of justice.

The fact that the rule of law is constantly changing does not mean that guidelines cannot be distilled from it.
On the contrary, it is, to some extent, possible to identify the rules and principles that follow from the rule of
law at a certain point in time. Basically, some principles have been part of the rule of law right from its
origin. These are principles of a universal nature, which have defied change. Some of the most important
ones are the following:

• No one may be punished except for a distinct breach of an existing law established in the ordinary
legal manner before the ordinary courts of the country (nullum crimen, nulla poena sine praevia
lege). This principle is enshrined in several national constitutions, and a number of international
instruments. See e.g. Article 7(1) European Convention on Human Rights and Articles 22 and 23
Rome Statute of the International Criminal Court.

• All individuals are ‘innocent until proven otherwise’ (presumption of innocence). This principle was
included already in Article 9 Déclaration des Droits de l’Homme et du Citoyen and it is included in
several human rights instruments, such as Article 6(1) ECHR.

• Every human being should be treated equally by the same courts, and should have the same rights.
This equality is not absolute, since certain professional groups, such as the military, lawyers and
civil servants, are sometimes judged - in their professional quality - by special courts. This practice
is not contrary to the rule of law; within these groups, equality before the law applies to the full.

As mentioned, these three principles have in time developed into substantive rights.

31 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

Generally speaking, the view on the rule of law has gradually shifted from a source of rights for the
individual to a means of protection against excessive governmental power. Other rules and principles derived
from the rule of law are:

• No arbitrary power. This principle includes the separation of powers. It does not only apply in
relations between the legislature, the executive and the judiciary. As the state regulates national life
in many ways, discretionary authority is inevitable. Yet, this does not mean pure arbitrary power,
i.e., power exercised by agents responsible to no one and subject to no control. The way power and
authority are delegated to lower state institutions has to be controlled and the way those institutions
use their power has to be accounted for. Clearly, a ‘carte blanche’ delegation goes against the rule
of law.

The independence of the judiciary is closely linked to the principle above. Independence of the judiciary
implies the control of legislation and administration by an independent judiciary, and the independence of
the legal profession. Fundamental rights and freedoms can best be guaranteed in a society where the
judiciary and the legal profession enjoy freedom from interference and pressure, and where every person is
entitled to a fair and public hearing by a competent, independent and impartial tribunal.

The rule of law has come to be regarded as the symbol of a truly free society. Although its precise meaning
differs from country to country, and from one epoch to another, it is always identified with the liberty of the
individual. The rule of law aims to maintain a delicate balance between the opposite notions of individual
liberty and public order. Every state has to face the challenge of reconciling human rights with the
requirements of public interest. This can only be accomplished through independent courts, entitled to guard
the balance between the citizen and the state.

The most powerful entity in any community, and hence the greatest potential violator of human rights, is the
state itself, through its public authorities, its officials and agents. Any democratic society needs laws to
protect the rights and freedoms of individuals, as laid down in constitutions and treaties or institutionalised as
common law. There should be laws enabling individuals to obtain a remedy for any violation, and there
should be a legal system that ensures that those remedies will be enforced, especially against the state itself.

In recent years new standards have been developed to strengthen the role of the rule of law, in addition to
those already incorporated in international conventions (e.g., Article 14 International Covenant on Civil
32 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

and Political Rights, Article 6(1) ECHR). The International Commission of Jurists has played a significant
role in the promotion of these standards. Under the framework of the UN, important standards include a) the
UN Basic Principles on the Independence of the Judiciary; b) the Procedures for the Effective
Implementation of the Basic Principles on the Independence of the Judiciary; and c) the UN Basic
Principles on the Role of Lawyers.

Under the framework of the OSCE, an important document on the rule of law is the Document of the
Copenhagen Meeting of the Conference on the Human Dimension of the CSCE (1990). This document
sets out that states are determined to support and advance those principles that form the rule of law, and that
the Rule of Law does not mean ‘merely a formal legality [...] but justice based on the recognition of the
acceptance of the supreme value of the human personality’ and ‘reaffirm that democracy is an inherent
element of the Rule of Law.’

THE PRINCIPLE OF EQUALITY AND NON-DISCRIMINATION IN THE ENJOYMENT OF

HUMAN RIGHTS

The principle of non-discrimination is of the utmost importance in international law. Various formulations of
prohibition of discrimination are contained in, for example, the Charter of the United Nations (Articles 1(3),
13(1)(b), 55(c) and 76), the Universal Declaration of Human Rights (Articles 2 and 7), the International
Covenant on Civil and Political Rights (Articles 2(1) and 26) and the CRC (Article 2). Some instruments are
expressly aimed at addressing specific prohibited grounds for discrimination, such as the International
Convention on the Elimination of All Forms of Racial Discrimination (CERD) and the Convention on
the Elimination of all Forms of Discrimination Against Women (CEDAW), and other instruments aim at
addressing the prohibition of discrimination in the exercise of one or several rights, such as ILO 111, which
refers to discrimination in the exercise of the right to work (employment and occupation), and the UNESCO
Convention against Discrimination in Education.

A definition of discrimination is included in Article 1(1) CERD, Article 1 CEDAW, Article 1(1) ILO 111,
and Article 1(1) Convention against Discrimination in Education. From the different concepts it is possible
to conclude that ‘discrimination’ refers to:

Any distinction, exclusion or preference, be it in law or in administrative practices or in practical

relationships, between persons or groups of persons, made on the basis of race, colour, sex, religion, political
33 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

opinion, nationality or social origin, which have the effect of nullifying or impairing the equal enjoyment of
any human rights.

In general, human rights instruments require states to respect human rights and ensure that all persons within
their territory and subject to their jurisdiction enjoy the guaranteed rights without distinction of any kind.
Even when a state is allowed to take measures derogating from its obligations under a human rights treaty,
such measures may not be discriminatory.

Today, it is well established in international human rights law that not all distinctions in treatment constitute
discrimination. This is summed up by the axiom, ‘persons who are equal should be treated equally and those
who are different should be treated differently’ (‘in proportion to the inequality’). As indicated by the Human
Rights Committee, ‘the enjoyment of rights and freedoms on an equal footing [...] does not mean identical
treatment in every instance.’ Hence, there may be situations in which different treatment is justified.

Although not all differences in treatment are discriminatory, international law establishes some criteria for
determining when a distinction amounts to discrimination. In a nutshell, a distinction is compatible with the
principle of equality when it has an objective and reasonable justification, pursues a legitimate aim and there
is a reasonable relationship of proportionality between the means employed and the aim sought. These
requirements have been stressed by some of the major human rights supervisory bodies. For example, in the
words of the Human Rights Committee:

Not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are
reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant
(General Comment No. 18 - Non-discrimination (Human Rights Committee)).

As the European Court of Human Rights has stated:

According to the Court’s established case-law, a distinction is discriminatory if it ‘has no objective and
reasonable justification’, that is, if it does not pursue a ‘legitimate aim’ or if there is not a ‘reasonable
relationship of proportionality’ between the means employed and the aim sought to be realised (Marckx v.
Belgium).

In the same vein, the Inter-American Court of Human Rights has held that:

34 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

Accordingly, no discrimination exists if the difference in treatment has a legitimate purpose and if it does not
lead to situations which are contrary to justice, to reason or to the nature of things. It follows that there would
be no discrimination in differences in treatment of individuals by a state when the classifications selected are
based on substantial factual differences and there exists a reasonable relationship of proportionality between
these differences and the aims of the legal rule under review. These aims may not be unjust or unreasonable,
that is, they may not be arbitrary, capricious, despotic or in conflict with the essential oneness and dignity of
humankind (Advisory Opinion No. 4 ‘Proposed amendments to the naturalisation provisions of the
Constitution of Costa Rica’, OC-4/84 of 19 January 1984, para. 57).

Thus, differences in treatment (distinction, exclusion, restriction or preference) that comply with the criteria
mentioned above are not discriminatory and do not infringe upon the principle of equality and non-
discrimination. Furthermore, certain preferential treatment, such as the special treatment aimed at protecting
pregnant women or disabled persons, is not considered discrimination as the purpose of the preferential
treatment is to remedy inherent inequalities. Similarly, affirmative action, defined as measures necessary ‘to
diminish or eliminate conditions which cause or help to perpetuate discrimination’ aimed to benefit
historically disadvantaged groups within society, must not be considered ‘discrimination’.

DIRECT AND INDIRECT DISCRIMINATION

Any discrimination with the ‘purpose’ or the ‘effect’ of nullifying or impairing the equal enjoyment or
exercise of rights is prohibited under the non-discrimination provisions. In other words, the principle of non-
discrimination prohibits ‘direct’ and ‘indirect’ forms of discrimination.

The concept of ‘indirect’ discrimination refers to an apparently ‘neutral’ law, practice or criterion, which has
been applied equally to everyone but the result of which favours one group over a more disadvantaged
group. In determining the existence of indirect discrimination, it is not relevant whether or not there was
intent to discriminate on any of the prohibited grounds. Rather, it is the consequence or effect of a law or
action that matters.

VULNERABLE GROUPS AND NON-DISCRIMINATION

35 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

The principle of non-discrimination demands that particular attention be given to vulnerable groups and
individuals from such groups. In fact, the victims of discrimination tend to be the most disadvantaged groups
of society.

States should identify the persons or groups of persons who are most vulnerable and disadvantaged with
regard to full enjoyment of all human rights and take measures to prevent any adverse affects on them. (For
an analysis on vulnerable groups.)

AFFIRMATIVE ACTION OR PROTECTIVE MEASURES FOR THE MOST VULNERABLE

GROUPS

In some circumstances the principle of non-discrimination requires states to take affirmative action or
protective measures to prevent or compensate for structural disadvantages. These measures entail special
preferences, which should not be considered discriminatory, because they are aimed at addressing structural
disadvantages or protecting particularly vulnerable groups, encouraging equal participation.

Through its General Comments, the Human Rights Committee often refers to the requirement of the
adoption of affirmative action and it has adopted a definition in General Comment No. 18 - Non-
discrimination, para. 10, which reads as follows:

The Committee also wishes to point out that the principle of equality sometimes requires states parties to
take affirmative action in order to diminish or eliminate conditions which cause or help to perpetuate
discrimination prohibited by the Covenant. For example, in a state where the general conditions of a certain
part of the population prevent or impair their enjoyment of human rights, the state should take specific action
to correct those conditions. Such action may involve granting for a time to the part of the population
concerned certain preferential treatment in specific matters as compared with the rest of the population.
However, as long as such action is needed to correct discrimination in fact, it is a case of legitimate
differentiation under the Covenant. (Emphasis added.)

Affirmative action aims to remove obstacles to the advancement of vulnerable groups such as women,
minorities, indigenous peoples, refugees and disabled persons. It is important to stress that affirmative action
is of a temporary character; it must not continue after its objectives have been achieved.

36 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

EDUCATION TO COMBAT DISCRIMINATION

Education plays a pivotal role in the struggle against discrimination. On the one hand, educational campaigns
are of key importance for combating stereotypes and promoting tolerance. On the other hand, because most
disadvantaged groups are often ignorant of the law and fear retaliation or intimidation, education and
awareness of their rights and the mechanisms for redress enhance their protection.

IN SUPPORT OF AFFIRMATIVE ACTION MEASURES

The mechanism of ‘affirmative action’ is a vital tool within human rights law in tackling some of the
historical grievances that underpin inequality in modern societies. The principle can be understood as an
elevator mechanism designed to raise a particular segment of the population that is at level zero (in terms of
quantifiable indicators, such as access to services, employment within the private and public sector, political
participation, level of education and access to education, and other civil, political, economic, social and
cultural rights) to the level that the rest of the population enjoys (level one). The causes for this difference
between the target group and the rest of the population i.e. ‘the gap’, is often the result of persistent historical
discrimination. However, rather than a revision of history, which is undesirable, an elevator mechanism
accepts the need for the focusing of specific measures aimed at the alleviation of a particular disadvantage
faced by a specific group. Crucially, however, the mechanism can only be effective if it raises the population
to level one, and not to a level higher than the rest of the population, for it would then discriminate unjustly
against that portion of the population.

The concept of affirmative action has been defined as ‘a coherent package of measures, of a temporary
character, aimed specifically at correcting the position of members of a target group in one or more aspects
of their social life, in order to obtain effective equality’ (Bossuyt, UN Doc. E/CN.4/Sub.2/2001/15).

In determining when a particular segment of population is entitled to a package of special measures, it is

important to stress empirical grounds. The test to examine the claim for affirmative action should be
determined by at least two factors: i) the existence of determinable and persistent status of inequality; and ii)
effective articulation of the legal right to special measures by representatives- though the latter argument is
subservient to the former. In addition, groups, or individuals belonging to such groups, that choose to
assimilate should be enabled a waiver of this right.

37 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

Of course there are numerous other issues that are relevant to the determination of affirmative action,
including the fact that such measures often create new disadvantaged groups. Besides, beneficiaries of such
action often express the sentiment that the perception of availing of special measures often belittles their own
achievements. Instead, they are reduced in public perception to being no more than token beneficiaries of
policy rather than grants on meritorious bases.

The justification for special measures however outweighs these. First and foremost, it remains an admittedly
imperfect legal guarantee through which historical power relationships within a system are sought to be
balanced. Second, such measures attempt to remedy social and structural discrimination. Thus, while not
necessarily tackling existing prejudice, they seek to create mechanisms combating structural and institutional
imbalances. Third, it attempts the creation of diversity or proportional group representation, by fostering new
aspirations and expectations within groups with a view towards fuller participation in all aspects of public
life.

A fourth argument in favour of affirmative action is the social utility argument stressing that society, as a
whole, is better off with all its components participating in processes that affect them. Related to this is the
idea that a level of interaction between different groups in a society can calm potential future social unrest by
enabling means other than violence for discussions about grievances. Finally, if the public affairs of the state
are more inclusive there is a greater likelihood that it will develop a pluralistic attitude that enables greater
harmony and equality between groups. Joshua Castellino

ALTERATION OF HUMAN RIGHTS TREATY OBLIGATIONS

The adoption of the text of a treaty normally takes place by the consent of the states participating in its
drafting or by a majority at an international forum. A treaty only binds those states that have consented to be
bound by it and for which the treaty has entered into force. There are several procedures whereby states may
express their consent to be bound. They can do so by ratification, acceptance, approval, or accession,
depending on what the treaty stipulates and on the relevant national practice. It has become increasingly
common for states to sign a convention first, subsequently submit it to their legislature for approval and
finally ratify it. Several years may pass from the time of adoption until the treaty is ratified.

38 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

A convention enters into force only after the minimum number of states specified has expressed consent to
be bound by it. For instance, the International Covenant on Civil and Political Rights stipulates that the
Covenant enters into force three months after the date of deposit of 35 instruments of ratification or
accession (Article 49). The ICCPR was adopted by the UNGA on 16 December 1966; it was opened for
signature, ratification and accession on 19 December 1966, and entered into force on 23 March 1976; i.e.,
almost ten years after its adoption.

States are bound by treaty provisions in different ways. Under some treaties a state party may be permitted to
limit its legal obligations by entering reservations to some of the provisions of the treaty. A reservation
renders the provision concerned non-binding or limits its effects. States may also in some instances enter a
declaration concerning the extent to which they wish to be bound by a certain provision or how they interpret
the provision. This chapter begins by dealing with the permissibility of reservations and declarations in
international human rights treaties.

In addition, most human rights are not absolute; they can be limited in specific circumstances. Many human
rights instruments permit the restriction of some rights for reasons of; national security, public order (ordre
public); public health; or public morality. Examples of rights, which are not absolute, include freedom of
movement, freedom of religion, right to peaceful assembly, and freedom of association. But any limits a state
places on rights must comply with some requirements examined in this chapter. Finally, in a legitimate state
of emergency that is publicly declared, some human rights instruments allow a state party unilaterally to
derogate temporarily from a part of its obligations. These situations are also examined in this chapter.

THE VIENNA CONVENTION ON THE LAW OF TREATIES (1969)

The Vienna Convention on the Law of Treaties (VCLT) is an international treaty adopted on 22 May
1969, which came into force on 27 January 1980. The VCLT codified the pre-existing international
customary law on treaties filling some gaps and adding some clarifications. Most states are parties to it.
Moreover, even states that are not bound by the Convention itself may be bound by those provisions which
reflect customary international law.

The VCLT regulates, inter alia, the following aspects of international treaties: a) conclusion and entry into
force of treaties; b) reservations; c) observance, application and interpretation of treaties; d) amendment and
modification of treaties; and e) invalidity, termination and suspension of the operation of treaties.
39 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

RESERVATIONS AND DECLARATIONS

When becoming party to a treaty, a state may, by formulating reservations, declarations and interpretative
statements, seek to limit its domestic application beyond what is permissible under the limitations referred to
above. Although it is desirable that states become party to a convention unconditionally, this is often not the
case.

RESERVATIONS

In general terms, a reservation is a statement made by a state by which it purports to exclude or alter the legal
effect of certain provisions of a treaty in their application to that state. A reservation may enable a state to
participate in a multilateral treaty that it would otherwise be unable or unwilling to participate in.

The International Court of Justice stated in its Advisory Opinion on the Genocide Convention (1951)
(Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, I.C.J.
Report 1951 p. 15, Advisory Opinion of 28 May 1951): ‘Object and purpose of the Convention limit both the
freedom of making reservations and that of objecting to them.’ These words were later codified in Article 19
Vienna Convention on the Law of Treaties which sets out the general rule on reservations:

A state may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a reservation
unless:

(a) The reservation is prohibited by the treaty;

(b) The treaty provides that only specified reservations, which do not include the reservation in question,
may be made; or

(c) In cases not falling under subparagraphs (a) and (b), the reservation is incompatible with the object and
purpose of the treaty.

Unless expressly permitted by a treaty, the effectiveness of a reservation is dependent on its acceptance by
other states parties, and any other state party may object to it. As a rule, a reservation is considered accepted
by another state party if that state party has raised no objection within twelve months after it has been
notified of the reservation (VCLT, Article 20(5)). Regrettably, silence on the part of other states parties

40 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

seems to be the common response to reservations; and, unfortunately, this silence is rarely the result of
conscious deliberation.

The UN Commission on Human Rights has stated that reservations should be formulated ‘as precisely and
narrowly as possible (Resolution 1998/9). Reservations often reflect an admission that the country in
question cannot, or will not, bring its conduct up to international standards. General reservations may,
moreover, encourage other states to follow suit, and thereby reduce the ability of the state making the
reservation to complain when other states make similar reservations. Furthermore, extensive limitations may
contravene established principles of international law contrary, for instance, to Article 27 VCLT that states:
‘A party may not invoke the provisions of its domestic law as justification for its failure to perform a treaty.’

Article 57(1) of the European Convention prohibits reservations ‘of a general character’. The European
Court of Human Rights discussed the issue of general reservations in Belilos v. Switzerland (1988). In
Loizidou v. Turkey (1995), the Court held that:

[A] State may not make a reservation in relation to an article of the Convention that does not deal directly
with substantive rights and freedoms, but instead with procedural or formal matters. If [...] substantive or
territorial restrictions were permissible under these provisions, Contracting Parties would be free to subscribe
to separate regimes of enforcement of Convention obligations [...] Such a system [...] would not only
seriously weaken the role of the [...] Court [...] but would also diminish the effectiveness of the Convention
as a constitutional instrument of European public order (ordre public).’

The Inter-American Court has dealt with the issue of reservations in its Advisory Opinion No. 2 on the
Effect of Reservations on the Entry into Force of the American Convention on Human Rights and
Advisory Opinion No. 4 on Proposed Amendments to the Naturalization Provisions of the Constitution
of Costa Rica, stating that reservations may not lead to a result that weakens the system of protection
established by the Convention.

Certain instruments, such as the Convention on the Elimination of All Forms of Discrimination against
Women (CEDAW Convention), have been subject to many reservations, some of them clearly incompatible
with the object and purpose of the treaty. The effect of invalid reservations to human rights treaties, and of
objections to reservations, is a continuing debate in international law. In the face of this situation, the
independent monitoring bodies, such as the CEDAW Committee and the Human Rights Committee, have
41 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

taken a view on the validity of reservations, a practice not contemplated by the VCLT. Although the
competence of these bodies in this regard has been debated, it seems logical to conclude that their
competence derives from their functions. The Human Rights Committee has dealt with this issue in General
Comment No. 24 - General Comment on issues relating to reservations made upon ratification or
accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under
Article 41 of the Covenant (CCPR/C/21/Rev.1/Add.6, of 11 November 1994). In this General Comment the
Committee stressed that ‘reservations must be specific and transparent [...]. Reservations may thus not be
general, but must refer to a particular provision of the Covenant and indicate in precise terms its scope in
relation thereto.’

DECLARATIONS

Some conventions allow or even require states parties to make declarations concerning the extent to which
they are bound by a certain provision. Such statements may relate to the competence of a supervisory
mechanism. For instance, Article 41 ICCPR stipulates that a state party may choose (not) to recognise the
competence of the Human Rights Committee to receive state complaints regarding its human rights
performance. This type of declaration, as provided by the instruments, does not pose major problems.
However, a state party may also make interpretative declarations, otherwise known as understandings,
whereby it does not intend to modify or limit the provisions of the treaty, but indicates merely how it
interprets a particular article. Such interpretative declarations may raise certain problems in international law
as to their differentiation with reservations.

The VCLT is silent on the question of interpretative declarations. However, the International Law
Commission has studied the matter at length and several international human rights bodies have dealt with
the issue. One of the major differences between a ‘reservation’ and an ‘interpretative declaration’ lies in the
author’s purpose in making that declaration. While a reservation seeks to exclude or modify the legal effect
of the treaty’s provisions in their application to the state author, the interpretative declaration seeks only to
clarify the meaning or scope of the treaty provisions. Therefore, it is the intention of the state rather than the
form or the name or title which matters. Thus, if a statement purports to exclude or modify the legal effect of
a treaty in its application to the state, it constitutes a reservation. Conversely, if a so-called ‘reservation’
merely provides a state’s understanding of a provision, without excluding or modifying that provision, it is in
reality not a reservation.

42 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

RESTRICTIONS OR LIMITATIONS

Conventions and other instruments may contain a number of restrictions or limitations to the rights they
stipulate. It is generally accepted that only few rights and freedoms are ‘absolute’. At the same time, such
restrictions must be used only to establish the proper limits of the protected right and not as an excuse for
undermining the right itself or destroying it altogether. In general, there must be a proportionate relationship
between the restriction of the right as such and the reason for the restriction.

Various international instruments contain provisions allowing restrictions (used interchangeably with the
term ‘limitations’) on human rights. Such provisions may take the form of general limitations. Article 4
ICESCR, for instance, reads:

The states parties to the present Covenant recognise that, in the enjoyment of those rights provided by the
state in conformity with the present Covenant, the state may subject such rights only to such limitations as
are determined by law only in so far as this may be compatible with the nature of these rights and solely for
the purpose of promoting general welfare in a democratic society.

Another illustration is provided by Article 32(2) American Convention on Human Rights (ACHR): ‘The
rights of each person are limited by the rights of others, by the security of all, and by the just demands of the
general welfare, in a democratic society’.

The African Charter on Human and Peoples’ Rights does not contain a specific provision on restrictions
but Article 27(2) on ‘duties’ has come to play the role of a general limitation clause providing: ‘The rights
and freedoms of each individual shall be exercised with due regard to the rights of others, collective security,
morality and common interest.’

In order to prevent abuse, conventions often contain a paragraph prohibiting the abuse of an international
instrument to destroy another right. Article 5 ICCPR, for instance, stipulates:

Nothing in the present Convention may be interpreted as implying for any state, group or person any right to
engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms
recognised herein or at their limitation to a greater extent than is provided for in the present Covenant.

43 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

However, apart from these general provisions most human rights treaties contain specific provisions in
various individual articles, which specify the limitations and restrictions that are allowed on the particular
right. Such specific limitation clauses include ‘prescribed by law’, ‘in a democratic society’, ‘public order
(ordre public)’, ‘public health’, ‘public morals’, ‘national security’, ‘public safety’ and ‘rights and freedoms
of others’. For a few rights, such as freedom from torture or slavery, no limitations have been formulated.

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

• The limitation must not be interpreted so as to jeopardise the essence of the right concerned;

• The limitation must be interpreted strictly in the light and context of the particular right;

• The limitation must be prescribed by law and be compatible with the object and purpose of the
instrument;

• The restriction must be based on a law;

• The restriction must be necessary; there must be a pressing social need, assessed on a case-by-case
basis. That the law would be useful is in itself not sufficient; it must be consistent with other
protected rights. In some treaties, the condition that it be ‘necessary’ (in a democratic society) is
added; and

• The restriction must be justified by the protection of a strictly limited set of well-defined public
interests, which usually includes one or more of the following grounds: national security, public
safety, public order (ordre public), the protection of health or morals, and the protection of the
rights and freedoms of others.

Most of these requirements have been developed by academia and the jurisprudence of major human rights
bodies. In this regard it is important to bear in mind the Siracusa Principles on the limitation and derogation
provision in the International Covenant on Civil and Political Rights. The Siracusa Principles were adopted
by a group of 31 distinguished experts in international law convened by the International Commission of
Jurists, who met in Siracusa, Sicily in 1984. The Inter-American Court has dealt with limitation and
derogation in Advisory Opinion No. 5 on Compulsory Membership in an Association Prescribed by Law
for the Practice of Journalism.

44 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

In sum, any restriction on the enjoyment of the rights enshrined in human rights instruments must be legally
established, non-discriminatory, proportional, compatible with the nature of the rights, and designed to
further the general welfare. Finally, it is also important to stress that the burden falls upon states parties to
prove that a limitation imposed upon the enjoyment of the rights is legitimate. This is, of course, a heavy
burden of proof, but it is consistent with the object and purpose of human rights treaties to protect the
individual.

DEROGATIONS

Some human rights instruments allow states to take measures derogating temporarily from some of their
obligations. Derogating measures must be of an exceptional and temporary nature. There are derogation
clauses in, inter alia, Article 15 ECHR, Article 27 American Convention on Human Rights and Article 31
European Social Charter. Some human rights instruments, such as the Convention on the Rights of the
Child, the International Covenant on Economic, Social and Cultural Rights, and the African Charter
on Human and Peoples’ Rights, do not contemplate any derogation clause. The rationale for derogation
provisions is to strike a balance between the sovereign right of a government to maintain peace and order
during public emergencies, and the protection of the rights of the individual from abuse by the state. Thus,
the state is allowed to suspend the exercise of some rights when necessary to deal with an emergency
situation (e.g., derogation of the right to peaceful assembly), provided it complies with safeguards against
any abuse of these derogation provisions.

When derogation measures are allowed, such derogations have to meet several criteria:

• There must be a war or general state of emergency threatening the life of the nation;

• The state of emergency must be officially proclaimed;

• Measures may not go beyond the extent strictly required by the situation;

• Measures may not be inconsistent with other obligations under international law; and

• Measures may not be discriminatory solely on grounds of race, colour, sex, language, religion or
social origin.

A state availing itself of the right of derogation must immediately provide justification for its decision to
proclaim a state of emergency and also for any specific measure based on such a proclamation.
45 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

With regard to derogations and limitations, the Final Document of the Moscow Meeting of the Conference
on the Human Dimension of the CSCE, states:

The participating states reaffirm that a state of public emergency is justified only by the most exceptional and
grave circumstances [...]. A state of public emergency may not be used to subvert the democratic
constitutional order, nor aim at the destruction of internationally recognised human rights and fundamental
freedoms. [...]

The participating states confirm that any derogation from obligations relating to human rights and
fundamental freedoms during a state of public emergency must remain strictly within the limits provided for
by international law, in particular the relevant international instruments by which they are bound, especially
with respect to rights from which there can be no derogation.

Limits, in the form of the criteria to be met, have thus been set out on the extent to which states can derogate
from their human rights obligations. Moreover, as stipulated in a number of international conventions (e.g.,
Article 4(2) of the ICCPR, and Article 15(2) of the ECHR, and Article 27(2) of the ACHR), a number of
rights can under no circumstances be limited or derogated from. Such rights are often called notstandsfest - a
German term - and include the right to life, freedom from slavery, torture and imprisonment for debt, the
principle of legality in the field of criminal law, freedom of thought, conscience and religion and the right to
juridical personality.

The Human Rights Committee, in its General Comment No. 29 - Article 4 State of Emergency sets out in
detail the conditions that must be met in order to derogate from the rights contained in the ICCPR and refers
in length to those rights which are not derogable. The Committee established that the rights contained in
Article 4(2) ICCPR are not the only non-derogable rights; there are elements of other rights not listed in
Article 4(2) that cannot be subject to lawful derogation.

INTERPRETATION OF HUMAN RIGHTS TREATIES

Human rights law is embedded in the broader field of international law, and therefore, in general, the rules
for interpretation, which are applicable under international law, are also applicable to human rights treaties.
In general, the principles of interpretation of international treaties contained in the Vienna Convention on
the Law of Treaties (VCLT) are considered to be the customary international law principles of treaty

46 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

interpretation. However, the interpretation of human rights treaties requires that the specific characteristics of
these treaties be taken into account.

The rules for treaty interpretation are contained in Articles 31 to 33 of the VCLT. The principal provision for
treaty interpretation is found in Article 31(1) VCLT and contains a number of elements. First, it is provided
that a treaty shall be interpreted in ‘good faith’. This rule stresses the importance of the principle of good
faith contained in Article 26 VCLT and applies it to the process of treaty interpretation. It is provided that a
treaty shall be interpreted in accordance with the ordinary meaning to be given to the terms of the treaty
(literal interpretation), in their context, that is to say, upon a systematic view of the whole treaty (systematic
interpretation). Moreover, this shall be done in light of the object and purpose of the treaty (teleological
interpretation).

Paragraph 2 of Article 31 provides that for the purpose of interpreting a treaty, the context of a treaty
comprises, in addition to the text, including its preamble and annexes, any agreement or instrument in
connection with the conclusion of the treaty and related to it and any subsequent agreement and practice
regarding its interpretation. Paragraph 3 provides that there shall be taken into account, together with the
context, inter alia, any relevant rules of international law applicable in relations between the parties.

Article 32 VCLT provides that recourse may be had to supplementary means of interpretation in order to
confirm the meaning resulting from the application of Article 31, or to determine the meaning when the
interpretation according to Article 31 ‘leaves the meaning ambiguous or obscure’ or ‘leads to a result which
is manifestly absurd or unreasonable.’ According to Article 32, the supplementary means of interpretation
include the preparatory work of the treaty and the circumstances of its conclusion. It is of particular
importance that under the VCLT, the travaux préparatoires are only a supplementary means of
interpretation. As has been established by the International Court of Justice, treaties should be interpreted
and applied within the framework of the legal system prevailing at the time of the interpretation, rather than
at the time of the drafting or adoption of the text; in the interpretation of human rights treaties, the intention
of the drafters does not generally play a major part. For example, it is by no means rare to find decisions of
the European Court of Human Rights that are contrary to the express intentions of the drafters.

THE SPECIFIC OBJECT AND PURPOSE OF HUMAN RIGHTS TREATIES

47 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

It is well established that the rules for treaty interpretation provide the framework for interpreting human
rights treaties. This is apparent in the jurisprudence of the major human rights supervisory bodies. The
Human Rights Committee as well as the regional human rights courts have expressly noted that the rules of
interpretation set out in the VCLT contain the relevant international law principles for interpretation.
However, as stated above, the application of these rules does not resolve all the problems of treaty
interpretation because the rules of the VCLT are not unequivocal. Moreover, the interpretation of human
rights treaties requires that the specific characteristics of human rights treaties be taken into account. Already
in 1951, the International Court of Justice noted the special character of human rights treaties. In its Advisory
Opinion on Reservations to the Convention on the Prevention and Punishment of the Crime of
Genocide, the Court stated that the parties to such instruments do not have any individual advantages or
disadvantages nor interests of their own, but merely a common interest.

One aspect that distinguishes human rights treaties from other international treaties relates to duties of states
parties. Human rights treaties are agreements between states which grant specific rights to individuals who
are not themselves parties to the instruments and in which the correlative duties fall primarily on states.

The Inter-American Court has explained this special feature of the human rights instruments with clarity,
emphasising that:

Modern human rights treaties in general and the American Convention in particular, are not multilateral
treaties of the traditional type concluded to accomplish the reciprocal exchange of rights for the mutual
benefit of the contracting states. Their object and purpose is the protection of the basic rights of individual
human beings irrespective of their nationality, both against the state of their nationality and all other
contracting states. In concluding these human rights treaties, the states can be deemed to submit themselves
to a legal order within which they, for the common good, assume various obligations, not in relation to other
states, but towards all individuals within their jurisdiction [...].

The European Commission of Human Rights applied the same approach in the case of Austria v. Italy when
it held that:

[T]he obligations undertaken by the High Contracting Parties in the European Convention are essentially of
an objective character, being designed rather to protect the fundamental rights of individual human beings

48 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

from infringements by any of the High Contracting Parties than to create subjective and reciprocal rights for
the High Contracting Parties themselves.

This approach is also apparent in the jurisprudence of the European Court of Human Rights. In the Wemhoff
v. Federal Republic of Germany, the Court noted that because the Convention is a ‘law-making treaty, it is
[...] necessary to seek the interpretation that is most appropriate in order to realise the aim and achieve the
object of the treaty’.

It is important to mention that there are other principles for interpretation that should also be considered,
such as the interpretative principle that limitation provisions shall be construed and applied in a restrictive
way.

In sum, the object and purpose of human rights treaties play a central and crucial role in their interpretation.
The specific object and purpose of human rights treaties is the protection of the individual human person.
This not only justifies but also compels interpretation and application of the provisions of human rights
instruments in a consistent manner. This object and purpose requires that we take into account, at a
minimum, the three following principles:

THE EFFECTIVENESS RULE

Because the overriding function of human rights treaties is the protection of individuals’ rights, it seems clear
that their interpretation should make that protection effective. As the Inter-American Court has noted, ‘[t]he
object and purpose of the American Convention is the effective protection of human rights. The Convention
must, therefore, be interpreted so as to give it its full meaning and to enable the system for the protection of
human rights entrusted to the Commission and the Court to attain its ‘appropriate effects’.

The application of this principle is evident in the case-law of the European Court. As the Court has stated:

In interpreting the Convention, regard must be had to its special character as a treaty for the collective
enforcement of human rights and fundamental freedoms [...]. [T]hus the object and purpose of the
Convention as an instrument for the protection of individual human beings require that its provisions be
interpreted and applied so as to make its safeguards practical and effective (Golder v. The United
Kingdom). (Emphasis added).

49 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

THE EVOLUTIVE INTERPRETATION

The protection of individuals also requires an evolutive interpretation of human rights treaties. Human rights
are not static and therefore effective protection of these rights involves taking into account developments in
law and society. The necessity of taking into account the changes occurring in society and in law has often
been emphasised by the European Court of Human Rights which has frequently underlined that the
Convention is a ‘living instrument, which must be interpreted in the light of present-day conditions.’

It is again worth noting that, as with the effectiveness principle, the importance of the evolutive
interpretation is the consequence of the overriding object and purpose of human rights treaties. The
interpretation of the text in light of the object and purpose (Article 31 VCLT) is required to make human
rights provisions ‘practical and effective’ and to take into account ‘present-day conditions’ for the protection
of the individual. This is clear, for example, in Loizidou v. Turkey, where the European Court held:

That the Convention is a living instrument which must be interpreted in the light of present day conditions is
firmly rooted in the Court’s case-law [...]. It follows that these provisions cannot be interpreted solely in
accordance with the intentions of their authors as expressed more than forty years ago.

Subsequently the Court added that ‘the object and purpose of the Convention as an instrument for the
protection of individual human beings requires that its provisions be interpreted and applied so as to make its
safeguards practical and effective [...].’

The Inter-American Court also applies the principle of evolutive interpretation. The Court itself has
explained that in the interpretation process: ‘It is appropriate to look to the Inter-American system of today in
the light of the evolution it has undergone since the adoption of the Declaration, rather than to examine the
normative value and significance which that instrument was believed to have had in 1948.’ More recently,
the Inter-American Court has made express mention of the jurisprudence of the European Court of Human
Rights and indicated that ‘human rights treaties are living instruments, the interpretation of which must
evolve over time in view of existing circumstances.’ (Mayagna Awas Tingni Community v. Nicaragua).

THE RULE OF AUTONOMOUS INTERPRETATION

50 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

Closely related to the rule of evolutive interpretation is the rule of autonomous interpretation, which can best
be explained with two examples: A property right in human rights law is not automatically a property right
as defined in national law; under human rights law its concept might be much broader. Similarly a
wrongdoing is not automatically a criminal offence because it has been defined as such in a national criminal
code. The Inter-American and European human rights courts have insisted on their autonomy in interpreting
the meaning of the terms in their respective conventions. In the case of;

Mayagna (Sumo) Awas Tingni Community v. Nicaragua, the Inter-American Court of Human Rights
explained the concept and the close relationship with the rule of evolutive interpretation:

The terms of an international human rights treaty have an autonomous meaning, for which reason they
cannot be made equivalent to the meaning given to them in domestic law. Furthermore, such human rights
treaties are live instruments whose interpretation must adapt to the evolution of the times and, specifically, to
current living conditions. [...] no provision may 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.

The logic and importance of the concept of autonomous interpretation was explained by the European Court
of Human rights in the case of Engel et al. v. The Netherlands:

If the Contracting States were able at their discretion to classify an offence as disciplinary instead of
criminal, or to prosecute the author of a "mixed" offence on the disciplinary rather than on the criminal
plane, the operation of the fundamental clauses of Articles 6 and 7 [articles providing minimum rights to
those who are charged of a criminal offence] would be subordinated to their sovereign will. A latitude
extending thus far might lead to results incompatible with the purpose and object of the Convention.

Notably, with the terms included in the articles defining fair trial, the Inter-American and European Courts
have, on several occasions, applied the rule of autonomous interpretation in defining, for instance, what the
concepts ‘penalty’ and ‘witness’ entail.

INTERNATIONAL SUPERVISORY MECHANISMS FOR HUMAN RIGHTS

51 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

The numerous human rights conventions under the framework of the United Nations and the regional
systems in Africa, the Americas and Europe have led to the creation of a wide range of mechanisms for
monitoring compliance with the standards agreed upon. This chapter will examine the different procedures,
which have been instituted at the international and regional levels to monitor compliance with human rights
treaties.

There are two distinctive types of supervisory mechanisms:

a) Treaty-based mechanisms: supervisory mechanisms enshrined in legally binding human rights instruments
or conventions. Within the UN framework these mechanisms are often called ‘treaty bodies’, e.g., the
Human Rights Committee and the Committee on the Rights of the Child. The African Commission and
future Court on Human and Peoples’ Rights, the European Court of Human Rights and the Inter-American
Court and Commission of Human Rights are also treaty bodies.

b) Non-treaty based mechanisms: supervisory mechanisms not based on legally binding human rights treaty
obligations. Generally, this type of mechanism is based on the constitution or charter of an intergovernmental
human rights forum, or on decisions taken by the assembly or a representative body of the forum in question.
Under the UN framework, the non-treaty-based mechanisms are referred to as ‘charter-based’ mechanisms,
which include the 1503 procedure and the country mandates. The European Commission against Racism and
Intolerance under the Council of Europe is also an example of a regional non-treaty based mechanism.

The following sections provide an overview first and foremost of the treaty-based mechanisms. The United
Nations non-treaty-based mechanisms are dealt with in Part II.

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

• Reporting procedures

• Inter-state complaint procedure

• Individual complaint procedure

• Inquiries and other procedures

REPORTING PROCEDURES
52 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

Most human rights treaties include a system of periodic reporting. States parties to them are obliged to report
periodically to a supervisory body on the implementation at the domestic level of the treaty in question. As
formulated, e.g., in Article 40 of the International Covenant on Civil and Political Rights, states parties
shall ‘submit reports on the measures they have adopted which give effect to the rights recognised herein and
on the progress made in the enjoyment of those rights’. At the UN level, each treaty body has formulated
general guidelines regarding the form and contents of the reports to be submitted by states parties (see
HRI/GEN/2/Rev.2), and their own rules of procedures (see UN HRI/GEN/3/Rev.1).

The report is analysed by the relevant supervisory body, which comments on the report and may request the
state concerned to furnish more information. In general, reporting procedures under the different treaty-based
mechanisms are meant to facilitate and initiate a ‘dialogue’ between the supervisory body and the state party.

The quality of the reports submitted by states varies. Some reports are reliable and reflect serious efforts to
comply with the reporting requirements, while others are lacking in credibility. In any case, the reports
generally reflect the view of the respective state. In addition to the government report, the treaty bodies
receive information on a country’s human rights situation from other sources, including non-governmental
organisations, UN agencies, other intergovernmental organisations, academic institutions, and the press. The
quality of decision-making throughout the reporting procedure depends to a great extent on this additional
information that the experts may receive from the external sources. Additional information provided by, in
particular, NGOs and agencies of the United Nations grant a wider perspective as to the actual situation in
the country concerned. In an increasing number of countries, NGOs prepare and submit to the treaty bodies
alternative reports aimed at counter balancing the information submitted by the state. In the light of all the
information available, the Committees examine the reports together with government representatives. Based
on this dialogue, the Committees decide on their concerns and recommendations to the state concerned,
referred to as ‘concluding observations’.

All UN human rights conventions contain a reporting procedure: Article 16 International Covenant on
Economic, Social and Cultural Rights, Article 40 International Covenant on Civil and Political Rights,
Article 9 International Convention on the Elimination of All Forms of Racial Discrimination, Article 19
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Article 44 Convention on the Rights of the Child, Article 18 Convention on the Elimination of All
Forms of Discrimination Against Women and Article 73 International Convention on the Protection of

53 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

the Rights of All Migrant Workers and Members of their Families. Under the regional systems, reporting
mechanisms are found under Article 21 of the European Social Charter, Article 19 of the Protocol of San
Salvador, and Article 62 of the African Charter on Human and Peoples’ Rights. The regular supervision
of ILO conventions also encompasses a reporting mechanism. Each member state of the ILO must submit a
report, at regular intervals, on the measures it has taken to give effect to the provisions of conventions, which
it has ratified. The Committee of Experts on the Application of Conventions first examines these reports in
closed meetings composed of 20 independent legal experts. The comments of the Committee of Experts are
made in the form either of observations, which are published in the Committee’s report on the Application of
Conventions and Recommendations; or of requests dealing with more technical questions, addressed directly
to the Governments, which remain unpublished. The Committee’s report is then considered at the annual
session of the International Labour Conference by a tripartite Conference Committee on the Application of
Conventions and Recommendations (Committee on Application of Standards). It is worth noting that under
the ILO framework member states must also submit reports on conventions they have not yet ratified,
showing the position of the law and practice in regard to the matters dealt with in the Conventions, and
indicating the difficulties which have prevented or delayed ratification. As such this reporting mechanism
can be considered a charter-based reporting mechanism.

THE REPORTING PROCEDURES UNDER THE ICESCR

All UN human rights treaties establish a reporting system. Although each Committee has developed its own
particular methods, most of them are similar. Under the ICESCR the reporting mechanism works as follows:

THE PRE-SESSIONAL WORKING GROUP AND THE ‘LIST OF ISSUES’

Prior to each Committee session, five members of the Committee meet in order to identify in advance the
questions which will constitute the principal focus of discussion with state representatives during the
constructive dialogue. This ‘pre-sessional working group’ prepares a list of issues to be taken into
consideration when examining the state party report, which is transmitted to the permanent delegation of the
state concerned. The idea is to provide the state with the possibility to prepare answers in advance and
thereby to facilitate dialogue with the Committee. The list of issues is not meant to be exhaustive and the
dialogue may refer to other points as well. States should provide written replies to the list of issues well in
advance of the session, in order to make these available to the Committee members in the respective working

54 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

languages. Generally, the ‘list of issues’ of a given country contains the points which are of concern to the
Committee or which have not been properly addressed by the state in its report.

THE CONSTRUCTIVE DIALOGUE

The Committee strongly encourages states to be present at the meeting when their reports are examined. The
discussion between government representatives and Committee members is called the ‘constructive
dialogue’. Representatives of specialised agencies concerned such as ILO, WHO and UNICEF and other
international bodies may also be invited to contribute at any stage of the dialogue.

The dialogue with state representatives is a valuable opportunity for the Committee to explain the normative
content of particular provisions of the Covenant and to comment on difficulties in the implementation of the
Covenant. The summary records of such dialogues are made available to the public through printed UN
documents and are now also available through the Internet in the database maintained by the OHCHR.

The dialogue is often very open and frank, and state experts frequently recognise the failures of the states
they represent and the difficulties encountered in the implementation of the Covenant. Committee experts
have the opportunity to provide a clear explanation of the scope of the obligations concerned.

THE CONCLUDING OBSERVATIONS

The final phase of the examination of state reports is the drafting and adoption of the Committee’s
Concluding Observations. The Concluding Observations are usually made public only on the last day of the
session and are available to all interested parties. Since 1993, the established structure of the ‘Concluding
Observations’ is as follows: ‘introduction,’ ‘positive aspects,’ ‘factors and difficulties impeding the
implementation of the Covenant,’ ‘principal subjects of concern,’ and ‘suggestions and recommendations’.
Despite the fact that this structure employs rather diplomatic language, the Committee has become
increasingly more adversarial and inquisitive in its work. Nowadays, the Concluding Observations do not
merely contain ‘suggestions and recommendations’ and careful examination reveals that many Concluding
Observations are to a greater or lesser extent formal declarations of compliance or non-compliance.

INTER-STATE COMPLAINT PROCEDURE

55 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

Some human rights instruments allow states parties to initiate a procedure against another state party, which
is considered not to be fulfilling its obligations under the instrument. In most cases, such a complaint may
only be submitted if both the claimant and the defendant state have recognised the competence of the
supervisory body to receive this type of complaint.

The possibility to lodge complaints against another state party is contemplated in, inter alia, Article 41
ICCPR; Article 21 CAT; Article 11 CERD; Article 33 ECHR; Article 45 ACHR; and Article 54 ACHPR.
Within the framework of the ILO there are two procedures for inter-state complaints (see Article 26 of the
Constitution and under the procedure for freedom of association).

In practice, inter-state complaint mechanisms are seldom used. Inter-state relationships are delicate and inter-
state mechanisms may not be ideal procedures as states bringing complaints may elicit reprisals. In addition,
many states have not recognised the competence of the supervisory bodies to receive inter-state complaints.
The European Convention and African Charter do not require any special authorisation for a state party to
be able to bring inter-state complaints. The European mechanism is the only inter-state mechanism that has
been employed several times; most recently in 2001 (Cyprus v. Turkey). One inter-state complaint has been
brought to the African Commission (as of July 2004).

INDIVIDUAL COMPLAINT PROCEDURE

It seems reasonable that individuals, on whose behalf human rights were stipulated in the first place, should
be enabled to initiate proceedings to protect their rights. Such a procedure, whereby an individual holds a
government directly accountable before an international supervisory body aims to afford far-reaching
protection to the individual. Several international conventions have created the opportunity for an individual
who feels that his or her rights have been violated to bring a complaint alleging a violation of certain treaty
rights to the body of experts set up by the treaty for quasi-judicial adjudication or to an international Court
(i.e. the European Court, Inter-American Court and future African Court on Human and Peoples’ Rights).
While there are some procedural variations between the different mechanisms, there are three procedures that
all conventions have in common. In order for an individual to bring a case/communication/petition under a
human rights convention, the following requirements have to be met: a) the alleged violating state must have
ratified the convention invoked by the individual; b) the rights allegedly violated must be covered by the

56 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

convention concerned; and c) proceedings before the relevant body may only be initiated after all domestic
remedies have been exhausted.

At the UN level, individual complaint mechanisms are found under five conventions: in the First Optional
Protocol to the ICCPR; Article 22 CAT; Optional Protocol to the CEDAW; Article 14 CERD and Article
77 CMW. Individual complaints under one of the above-mentioned treaties can be brought only against a
state that has recognised the competence of the committee established under the relevant treaty or become
party to the relevant optional protocols. In the case of the ICCPR and the CEDAW, a state recognises the
Committees’ competence by becoming a party to an optional protocol, which has being added to the ICCPR
and the CEDAW. In the case of the CAT and the CERD, states recognise the Committees’ competence by
making an express declaration under Articles 22 and 14 respectively. Anyone under the jurisdiction of a state
party can lodge a complaint with a committee against a state that satisfies this condition, claiming that his or
her rights under the relevant treaty have been violated. There is no formal time limit after the date of the
alleged violation for filing a complaint under the relevant treaties, but the victim should submit a complaint
as soon as possible after having exhausted domestic remedies.

While there are some procedural variations between the different UN treaties, their design and operation are
very similar. In general terms, the system works as follows: Once a complaint (which should comply with
some basic requirements) is submitted, the case is registered and transmitted to the state party concerned to
give it an opportunity to comment. The state is requested to submit its observations within a set time frame
which varies between procedures. The two major stages in any case are known as the ‘admissibility’ stage
and the ‘merits’ stage. The ‘admissibility’ of a case refers to the formal requirements that the complaint must
satisfy before the relevant committee can consider its substance. The ‘merits’ of the case are the substance,
on the basis of which the committee decides whether or not the rights under a treaty have been violated.
Once the state replies to the complaint, the alleged victim is offered an opportunity to comment. Again, the
time frames vary somewhat between procedures. At this point, the case is ready for a decision by the relevant
committee. If the state party fails to respond to the complaint the committee may take a decision on the case
on the basis of the original complaint. There is no appeal against committees’ decisions. When a committee
decides that the state party has violated a right, or rights, enshrined in the treaty, it invites the state party to
supply information within a given time limit on the steps it has taken to give effect to the committee’s
findings.

57 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

Under the European system, an individual complaint mechanism is found under Article 34 of the European
Convention for the Protection of Human Rights and Fundamental Freedoms. While under the old
system, covered by Article 25 of the European Convention, the individual complaint mechanism was
optional for state parties, under the new system, established by Protocol No. 11(entered into force in 1998),
the mechanism is compulsory for all states parties to the Convention. Under the European Convention, a
group of individuals or a non-governmental organisation may also lodge a complaint (this is likewise
possible under the ICCPR and the American Convention). Article 35(1) of the European Convention
requires that the petition be lodged within six months after the date on which the last domestic jurisdictional
decision was taken.

At the Inter-American level, Article 44 of the American Convention on Human Rights allows petitions to
be brought unconditionally before its supervisory body, the Inter-American Commission on Human Rights -
unconditionally meaning that no separate acceptance by the state of the individual complaint procedure is
required. The petitioner under this system does not have to be the victim. The petition must be submitted to
the Commission within six months after the local remedies have been exhausted.

Under the African system, Article 56 of the African Charter details the conditions under which the African
Commission on Human and Peoples’ Rights may receive complaints from individuals. Communications can
be submitted by private individuals, non-governmental organisations and various other entities and the
petitioner does not have to be the victim. Since January 2004, when the Protocol to the African Charter on
the Establishment of the African Court on Human and Peoples’ Rights entered into force, individual
complaints can be referred to the future African Court by the African Commission, states parties to the
Protocol and, where a state party accepts such a jurisdiction, by individuals and non-governmental
organisations.

Unlike the complaint procedures under the UN ‘treaty bodies’, in the European and Inter-American systems
oral hearings are a regular part of the complaints procedure. In addition, the decisions of the regional human
rights courts are binding upon states.

Some ‘non-treaty based procedures’, also contemplate the submission of individual complaints. For example,
the UN Commission on Human Rights established in 1970 the so-called 1503 procedure, which allows the
UN Commission on Human Rights to examine communications received from individuals and other private

58 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

groups, with the aim to identify those that reveal ‘a consistent pattern of gross and reliably attested violations
of human rights and fundamental freedoms’. It should be emphasised that even though this procedure allows
for individuals and non-governmental groups to file a complaint, no individual redress is possible under this
procedure. Instead, the complaints aim at identifying ‘a consistent pattern of gross and reliably attested
violations’. When the UN Commission on Human Rights receives a communication under procedure 1503, it
can adopt several responses; including, inter alia, submitting a request for additional information from the
concerned government, appointing an independent expert or special rapporteur to investigate the conditions
in question, taking the matter up under its public procedure, or dropping the case or keeping it under
consideration. All these procedures take place in closed session. However, at the end of the Commission’s
work, the chair does make a public announcement listing the countries that have been dropped or continued
under the 1503 process. In the same vein, the Commission on the Status of Women has also developed a
complaint procedure. This mechanism is designed to identify global trends and patterns concerning women’s
rights. It was established pursuant to a series of resolutions of the ECOSOC, under which the Commission
considers confidential and non-confidential complaints on the status of women. Like the 1503 procedure,
direct redress to victims of human rights violations is not afforded and in both cases complaints may be
brought against any country in the world.

For complaints to the Human Rights Committee, the Committee against Torture, the Committee on the
Elimination of Racial Discrimination, and the Committee on the Protection of the Rights of All Migrant
Workers and Members of their Families correspondence and inquiries should be directed to:

Petitions Team
OHCHR
United Nations Office at Geneva
1211 Geneva 10, Switzerland
[email protected]

For complaints to the Committee on the Elimination of Discrimination against Women, correspondence and
inquiries should be directed to:

Committee on the Elimination of Discrimination against Women

c/o Division for the Advancement of Women, Department of Economic and Social Affairs

59 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

United Nations Secretariat

2 United Nations Plaza
DC-2/12th Floor
New York, NY 10017
United States of America

INQUIRIES AND OTHER PROCEDURES

The group of supervisory mechanisms now discussed includes all procedures that do not fall under those
mentioned above. Most involve inquiries, but others may entail initiatives aimed at preventing violations or
promoting compliance with specific human rights. The supervisory bodies discussed in the previous section
play a rather passive role as they generally cannot initiate proceedings, and are largely dependent on
information submitted by governments, or individual plaintiffs or petitioners. Recently, however, several
supervisory mechanisms have been established whereby an independent person or group of persons may
raise, on the person’s or group’s own initiative, issues of non-compliance with human rights. Such a body
may, for instance, act upon receipt of complaints or take an initiative itself. It may also initiate a visit in loco
to gather information, or do so as part of a regular visit-programme. One example of a visit-programme is
that of the Inter-American Commission on Human Rights, which has carried out more than 80 on-site visits
from its inception in 1961 to date (June 2004). This system of inquiries started as non-treaty based
mechanism, but was later confirmed in Article 41 IACHR (ACHR). . Another example of an enquiry — and
in loco visits procedure - is that set out in Articles 126 and 132 of the Geneva Convention Relative to the
Treatment of Prisoners of War (1949), and the provision in Article 143 of the Geneva Convention
Relative to the Protection of Civilian Persons in Time of War providing for on-site visits to places of
internment or detention. Mention should also be made of the International Fact-Finding Commission
established under Article 90 Protocol Additional to the Geneva Conventions of 12 August 1949, and
Relating to the Protection of Victims of International Armed Conflicts.

Examples of existing inquiry — and other procedures discussed here in more detail are the following:

• Article 20 of Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment

• Optional Protocol to the CAT

60 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

• European Committee for the Prevention of Torture (ECPT)

• Article 8 Optional Protocol to the CEDAW

• European Commission against Racism and Intolerance (ECRI)

• OSCE High Commissioner on National Minorities

ARTICLE 20 OF CAT

In addition to a reporting procedure, the inter-state complaint procedure and an individual complaint
mechanism, Article 20 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment also empowers its supervisory body, the Committee against Torture, to undertake certain
investigatory action on its own initiative. The Committee may initiate an inquiry when it receives ‘reliable
information’ that suggests ‘well-founded indications that torture is being systematically practised in the
territory of a state party’. Although the enquiry is to be confidential and requires the Committee to seek the
co-operation of the state party concerned, the Committee is not prevented ipso facto from proceeding with
the investigation because the state fails to co-operate with the Committee. However, in order for the
Committee to investigate the charges in the territory of a given state, it needs the explicit consent of the state
concerned. When the proceedings have been concluded, the Committee may include a summary of its
findings in its annual report. As of July 2004 the Committee has made use of the procedure under Article 20
seven times, reviewing the situation for example, in Mexico, Sri Lanka, Peru, Egypt and Turkey.

OPTIONAL PROTOCOL TO CAT

In 2002, the United Nations General Assembly adopted a new mechanism aimed at preventing torture: the
Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment.

The Optional Protocol provides for both international and national visiting mechanisms to prevent torture in
places of detention. The Optional Protocol establishes a unique ‘two pillar’ visiting mechanism to places of
detention. First, the Optional Protocol creates an expert international visiting body, a Sub-Committee to the
UN Committee against Torture. The Sub-Committee, to be funded by the UN, will conduct periodic visits to
all states parties, and maintain a dialogue with both the state party and the national visiting body. Second,
under the Optional Protocol, states that ratify the Optional Protocol must establish or maintain a national

61 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

visiting body to carry out visits to places of detention. The national visiting mechanisms will be able to carry
out visits in much greater depth than the Sub-Committee, with the benefit of greater local knowledge and the
potential for more effective follow-up.

The Optional Protocol to the CAT is open for ratification by states parties to the UN Convention against
Torture. The Protocol has not entered into force yet. It will enter into force when it has been ratified by 20
states. As of July 2004, the Protocol had been ratified by four states.

EUROPEAN COMMITTEE FOR THE PREVENTION OF TORTURE

The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment (ECPT has been created ‘to examine the treatment of persons deprived of their liberty with the
view to strengthening, if necessary, the protection of such persons from torture and from inhuman or
degrading treatment or punishment.’ The ECPT has the power to visit places of detention of any kind,
including prisons, police cells, military barracks and mental hospitals, with the aim to examine the treatment
of detainees and, when appropriate, to make recommendations to states concerned. The Committee is to co-
operate with the competent national authorities, and has to carry out its functions in strict confidentiality. The
Committee will publish its report if a state refuses to co-operate or fails to make improvements following the
Committee’s recommendations. The Committee’s annual report to the Committee of Ministers of the
Council of Europe is made public. The Committee may carry out both periodic visits to all states parties and
ad hoc visits. If the Committee opts for the ad hoc visit, it needs to notify the state concerned of its intention
to carry out such visit.

ARTICLE 8 OF THE OPTIONAL PROTOCOL TO CEDAW

The Optional Protocol to the CEDAW, adopted in 1999 (entered into force in 2000), strengthens the
enforcement mechanisms available for the rights within CEDAW. As of June 2004, 60 states had ratified the
Protocol. In addition to an individual complaint procedure, the Protocol established in Articles 8 and 9 an
‘inquiry procedure’, which enables the CEDAW Committee to initiate a confidential investigation when it
has received reliable information indicating grave or systematic violations by a state party of rights set forth
in the Convention.

62 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

Moreover, if deemed necessary, and with the consent of the state party, the Committee may visit the territory
of the state concerned. Any findings, recommendations or comments are transmitted to the state party, which
may respond within six months.

The inquiry procedure allows the CEDAW Committee to respond in a timely fashion to serious violations
that are in progress under the jurisdiction of a state party, as opposed to waiting until the next state report is
due to be submitted. In addition, the procedure offers a means of addressing situations in which individual
communications do not adequately reflect the systematic nature of widespread violations of women’s rights.
It also addresses the situation where individuals or groups are unable to submit communications due to
practical constraints or fear of reprisals. Under Article 10 of the Optional Protocol to the CEDAW, states
may ‘opt-out’ of the inquiry procedure at the time of signature, accession or ratification.

Under non-treaty-based mechanisms established by the Human Rights Commission, inquiry procedures may
be undertaken by thematic rapporteurs, country rapporteurs or working groups. These are often well suited to
deal with specific situations or specific rights. The thematic rapporteurs or working groups may receive
‘urgent action telegrams’ to raise human rights issues; they can also institute fact-finding missions in loco
and report in public on their findings. Rapporteurs do not need to react to complaints, nor do they have to
wait until domestic remedies are exhausted. They may request the governments concerned to provide more
information. They may even initiate fact-finding missions for information only. However, fact-finding and in
loco missions can only take place with the consent of the state concerned.

EUROPEAN COMMISSION AGAINST RACISM AND INTOLERANCE (ECRI)

The European Commission against Racism and Intolerance (ECRI) is a non-treaty based mechanism
worth mention. It monitors the human rights situation in CoE countries and drafts critical reports with
recommendations, meant to contribute to a dialogue with member states on issues of concern. In addition, the
ECRI has produced numerous General Policy Recommendations, whereby general comments and
conclusions are drawn up on specific subjects related to combating racism. Thereafter, it publishes the
reports. All CoE countries are treated on an equal footing. Reports are drafted on all countries over the
course of four years.

HIGH COMMISSIONER ON NATIONAL MINORITIES

63 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

Another European mechanism worth mentioning is the Office of the High Commissioner on National
Minorities, established in the final document of the Helsinki Follow-up Meeting (1992). The High
Commissioner’s role is to identify and try to resolve ethnic tensions that might endanger peace, stability or
friendly relations between the participating states of the OSCE. His/her role is above all a preventive one:
identifying potential minority conflicts at an early stage, and seeking solutions together with all parties
concerned.

SELECTING THE MOST APPROPRIATE PROCEDURE

In order to determine which supervisory mechanism applies in a specific case, the following questions may
be used for guidance:

• Which specific human right has have been violated?

• Where has the alleged violation taken place?

• Which government is held responsible and to what extent?

• Which convention protects those human rights?

• Is the responsible state a party to an applicable human rights treaty? If yes, how does the supervisory
procedure work? If no, is there some supervisory procedure outside the relevant convention that
could be invoked?

The specific character of a particular procedure has to be taken into consideration. An inter-state mechanism
procedure is of a rather political nature, which implies that inter-state relations may be unduly strained. On
the other hand, some of the other procedures, especially the individual mechanisms, can have a more
confrontational character.

Sometimes, individual complaints are possible both at the universal level (e.g., ICCPR, CAT and CEDAW
Optional Protocol) and under a regional system (e.g., European Convention and American Convention). In
such cases, there are many reasons in favour of making a complaint under the regional systems in cases
where the victim has a choice. The regional individual complaints procedures are decided by human rights
courts (e.g., the European and the Inter-American Courts of Human Rights); the final judgements are legally
binding on the state party in question and include an explicit decision on compensation or reparation.

64 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

Sometimes submitting the same complaint under a universal and a regional system is prohibited by the
relevant instrument. For example, the European Convention prevents the admission of a case, which has
been dealt with already by the Human Rights Committee (Article 35(2.b)). It is possible, however, to
complain before the Human Rights Committee after the European Convention procedure has been exhausted.
However, most states parties to the European Convention consider this undesirable and have therefore made
a declaration at the time of the ratification of the Optional Protocol to the ICCPR which excludes duplication
of procedures in the same case. Other states parties, however, allow persons under their jurisdiction to apply
the ICCPR procedure after the ECHR procedure.

EFFECTIVENESS

The purpose of the various supervisory mechanisms is to combat violations and to promote compliance with
human rights treaties. Ideally, such mechanisms should function effectively. There are, however, a number of
problems.

Firstly, a large number of countries have either not recognised the competence of the relevant treaty-based
mechanisms or have failed to ratify the treaties concerned. Secondly, a number of treaty-based mechanisms,
such as the individual complaint mechanism, suffer from their own success. The sometimes overwhelming
number of individual complaints has led to a serious delay in the decision procedures, especially under the
European Court of Human Rights. Moreover, many procedures for individual communications are plagued
by understaffing and under-financing. At the UN level, the major shortcoming of the individual complaints
procedure is the absence of legally binding judgements. Although the treaty bodies have developed certain
‘follow-up’ mechanisms, such as the ‘Human Rights Committee Special Rapporteur on Follow-up’ there is
still much room for improvement.

On the other hand, the most common supervisory mechanism, the examination of reports under the treaty-
based reporting mechanisms, also faces problems. The value of the reports depends on the depth of research
that underpins them, the clarity of their content, and the timeliness of their production and delivery
schedules. The value and promptness of reports affects the quality of decision-making throughout the
system. Unfortunately, some states do not seem to take the reporting system seriously and there are a great
number of states that have not submitted their reports under the various treaties. In general, the human rights
instruments do not provide for reprimanding delinquent states. Additionally, the submission of reports to all

65 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

the major human rights supervisory bodies creates practical difficulties for many states. At present, the
reports are overwhelming in number and tend towards duplication. This creates a serious burden for states,
especially for developing countries, which have to submit numerous reports. The same problem is
encountered by the Secretariat, which needs to struggle to keep abreast of the growing number of reports
requested by the various intergovernmental bodies. The sheer volume of reports is challenging the
supervisory bodies’ capacity to provide focused and value-added analysis. There have been several proposals
to strengthen the reporting system. At the United Nations, a proposal for a ‘global consolidated’ report for all
treaty bodies is under consideration.

The non-treaty-based procedures are also encountering serious difficulties. Not only are the mechanisms
political by nature, but the examination of violations often takes a long time. Moreover, these bodies, which
act only in annual meetings, are not well designed to respond to situations that require urgent actions. The
‘mobilisation of shame’- one of the tools employed by the charter-based procedures - can, however, be very
effective.

It could be argued that a centralised system, either for the UN treaties or more generally, would enhance
supervision. This, however, would not appear attainable for the time being, given the diversity of the human
rights obligations and the institutions charged with the supervision. The supervisory mechanisms are the
product of specific decision-making processes, which cannot be simply unified. At the UN level, it is one of
the major tasks of the High Commissioner for Human Rights to improve the organisation and co-ordination
of the activities of the various supervisory systems.

Finally, it is worth noting that any improvement in the supervisory systems requires the support of states. It
is fair to say that such support is often lacking, and states seem reluctant to encourage rigorous scrutiny of
their human rights records. In these circumstances, NGOs and civil society are crucial to the strengthening of
the human rights supervisory mechanisms. For example, the participation of NGOs in the reporting process
may help to ensure that reports are submitted on time and that they are well prepared. In general, NGOs
should play an active role in lobbying for states to pay more attention to the human rights supervisory
systems.

IMPLEMENTATION

66 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

It is often difficult to make a clear distinction between ‘supervision’ and ‘implementation’ of human rights,
and no consistent international terminology is used. In human rights literature, protection, supervision,
monitoring, and implementation are terms used indiscriminately to cover both the mechanisms established to
determine whether the standards are adhered to, on the one hand, and actual compliance by states with those
standards, on the other. The term ‘supervision’, discussed in the previous chapter refers to all procedures that
have been instituted at the international level, with the aim of monitoring compliance with human rights
standards at the domestic level. The term ‘implementation’ is used here in reference to actual compliance
with human rights standards by individual states as well as all initiatives taken by those states themselves,
other states and international organs or other bodies to enhance respect for human rights and prevent
violations.

Sometimes there is an overlap between the two terms and some institutions use one and the same process for
both supervision and implementation. Two examples illustrate this:

• Advisory services in the UN human rights system address compliance of states with human rights
obligations (supervision) and assist states in improving respect for human rights through, for
example, the provision of fellowships and expert advice (implementation).

• The UN Commission on Human Rights allows individual states to discuss implementation questions
in addition to dealing with supervision (e.g., through the establishment of the position of a country
rapporteur).

IMPLEMENTATION AT THE NATIONAL LEVEL

The implementation of human rights law depends to a large extent on the political will of states to comply
with international standards. A network of non-state actors and international institutions should co-operate to
ensure the effective implementation of the international norms and standards.

Implementation can cover a wide range of activities. These include primarily activities to improve
compliance by the states themselves, such as adaptation of national laws or administrative practices to
comply with human rights standards, strengthening of the judiciary, education of the population,
establishment of national human rights institutions, improvement of minimum health standards,
improvement of prison conditions, and increased participation in government. From the variety of activities

67 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

that states are to take at the national level to implement human rights standards this section briefly discusses
three: the incorporation of international standards into domestic law; the establishment of national human
rights institutions and human rights education.

To implement international human rights standards states have to incorporate those standards into domestic
law. Generally, international treaties do not stipulate how states should implement human rights standards,
leaving it to each state to decide how obligations will be implemented at the domestic level.

There are a great variety of domestic methods for implementation of international human rights instruments.
Scholars have classified them, for example, into adoption, incorporation, transformation, passive
transformation and reference. Moreover, states may apply more than one of these methods. In very broad
terms, two systems can be identified. In some states there is an automatic incorporation of treaty provisions
once they have been ratified and published in the official gazette (e.g., France, Mexico and the Netherlands),
while other states require the express legislative enactment of treaty provisions before they become domestic
law (e.g., the United Kingdom, other Commonwealth countries, and Scandinavian countries). Regardless of
the method states choose to incorporate international human rights law into their domestic systems, what is
crucial is whether or not domestic courts and other legal operators apply human rights norms in their
decisions; the effect of international human rights law cannot be assessed in the abstract on the basis of the
constitution and legislation of a given country only.

If international standards are incorporated into national legislation, it is easier for domestic courts and legal
operators to apply them. Even though international human rights treaties have not been formally incorporated
into domestic law, national courts can use international human rights standards as guidance in interpreting
national law. In other words, national courts and legal operators may look at international and regional
human rights norms when interpreting and developing national law, and they may use international human
rights law as the minimum standard of protection that national law should attain.

It is important to stress that the domestic implementation of human rights norms requires a joint and co-
ordinated effort of all branches of the government (judiciary, legislative and executive). Training and
education in human rights is therefore of vital importance for the effective implementation of human rights at
the domestic level.

68 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

In addition, it is important to note that in order to ensure that human rights are protected and advanced in a
sustained manner in the long term, states should encourage and facilitate the establishment of national human
rights institutions, such as ombudspersons, ‘defensorias del pueblo’, and ‘procuradorias de derechos
humanos’. Details of these important components of implementation are discussed in Human Rights
Actors.

Finally, it is important to mention that at the national or domestic level, states are required to take actions to
raise awareness about human rights. They should inform the public about human rights, as well as available
resources for redress to those whose human rights have been violated. Information should be accessible to
all, in particular to society’s most disadvantaged and vulnerable groups; available in a form that can be
understood by everybody. States must initiate information campaigns and public education programmes on
human rights at all levels, within their own state structures and particular professions, such as judges,
lawyers, teachers and social workers must be address.

IMPLEMENTATION AT THE INTERNATIONAL LEVEL

Implementation of human rights standards can be a difficult task for developing countries where the scarcity
of resources may impose challenging obstacles to achieve compliance with human rights within a reasonable
time. Thus, international co-operation is essential to assist these countries to comply with international
standards.

The promotion of human rights standards in another country can take place through a ‘positive’ approach,
whereby support is given to the improvement of conditions that facilitate compliance with human rights, or
through a reaction to a violation of human rights. Often a differentiated approach is chosen, as this may often
be the most effective way to bring about compliance.

For a comprehensive examination of the role of states as enforcer of human rights standards and in particular
the role of the European Union (EU) as an example of the role of states in the promotion and protection of
human rights see The Role of the European Union.

PROMOTION OF HUMAN RIGHTS - POSITIVE APPROACHES

69 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

One way to promote human rights is by promoting the establishment of international organisations aimed to
secure an environment conducive to compliance with human rights. Many institutions monitor or assist in the
compliance with specific human rights; such as the Office for Democratic Institutions and Human Rights
(ODIHR) - established to promote democratic institutions in OSCE countries -; the International Institute for
Democracy and Electoral Assistance (International IDEA) - established to promote electoral systems world-
wide - ; and the Inter-American Institute of Human Rights Institute (IIDH) which promotes human rights
awareness in Latin America..

Other forms of co-operation include technical assistance, such as that provided under the advisory services
system of the UN Commission on Human Rights, or direct bilateral or multilateral technical assistance, for
instance to improve the administration of justice. Furthermore, bilateral agreements or international agencies,
such as the World Bank and UNDP, may provide financial support so that minimum standards in the sphere
of economic and social rights (for instance, primary health care or education) are met.

Positive approaches may also take other forms such as, advocacy efforts directed at government officials and
the public for human rights compliance; assistance to human rights organisations; support for the
establishment of national institutions, which promote or monitor human rights compliance; support for
liberalisation processes; and strengthening and supporting equitable trade arrangements.

It should be emphasised that in developing international co-operation on human rights many factors come
into play, so a case-by-case approach should always be followed.

REACTIONS TO HUMAN RIGHTS VIOLATIONS - NEGATIVE APPROACHES

The call for positive measures to promote international co-operation to construct an ‘international human
rights environment’ should not minimise the constant need to react to human rights violations. While many
countries struggle to meet their human rights obligations, the lack of resources cannot justify violations of
fundamental human rights. States should react to human rights violations in other countries, to promote
international compliance based on rights and values as opposed to national interests.

A wide range of measures can be resorted to in reaction to human rights violations. Some of the following
measures may be taken, depending on the seriousness of the situation at hand:

70 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

• Confidential representations with the government concerned, e.g. discreetly raising the issue, through
enquiries as to the circumstances in specific cases.

• Using visits of political officials (Ministers, diplomats, etc.) to a country, to raise the issue
confidentially and, in serious cases, publicly.

• Bilateral or joint démarches or joint representations with the government concerned - normally taking
place in the country concerned through its representatives.

• Parliamentary questions and debates on a specific issue.

• Public démarches, statements, or declarations.

• Using multilateral fora to draw attention to the situation (UNGA, ECOSOC, UNCHR, OSCE, etc.).

• Changing the content or channels of development co-operation programmes in order to support civil
society activities in countries which states are not in compliance with human rights.

• Withdrawing diplomatic personnel.

• Changing trade relationships.

• Sanctions in various forms.

This list is not exhaustive. The suitability of a measure in a given situation depends on the specific
characteristics of the case at hand, and the potential impact of the reactions.

HOLISTIC APPROACHES

While sometimes the most appropriate approach seems obvious, the available options have to be carefully
weighed. Obviously, measures to promote respect for human rights are less controversial than possible steps
in response to violations. But, at the same time, one should not overlook the fact that the promotion of
human rights through development, economic, or trade co-operation programmes must by its very nature
take a structural, long-term form. This frequently implies co-operation with recipient countries over a fairly
long period, even if the human rights situation continues to leave much to be desired. Effective human rights
promotion is conditioned by the resources available to fund such activities, and on the political will of the
government in question. Without a clear and proven political commitment to improvement of human rights,
supportive initiatives are likely to fail. Therefore, emphasis is placed on a continuous dialogue with the
countries concerned in order to provide solid foundations for joint initiatives to promote human rights.

71 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

Sometimes a strong reaction is the best option when violations of human rights have taken place. Here again,
a case-by-case approach has to be followed. There is, in principle, no ‘trigger mechanism’ leading to an
automatic response from states to violations. States have gradually developed various holistic approaches
with regards to human rights, whereby in each situation a concept is developed, consisting of a combination
of different measures and responses, both supportive and reactive. Each case will have to be looked at
separately in order to avoid stereotypical and often inadequate responses. To allow such holistic approaches,
human rights clauses are included in various co-operation agreements, both in the field of development co-
operation (e.g., EU Lomé treaties), and in the field of trade and economic relations (5.1 and 5.2.). It allows
for a change in a co-operation relationship in the light of changing circumstances.

Holistic approaches are the more called for, since the number of countries where human rights are
systematically violated and in which governments are monolithic entities seems to be declining. In other
words: the number of unquestionably repulsive situations, where simple, sometimes highly visible reactive
decisions may be taken, is decreasing. Two patterns seem to emerge. On the one hand, there seems to be an
increasing number of countries in which there are both in society and the government, bodies, groups and
persons engaged, or prepared to engage, in the improvement of the human rights situation. On the other
hand, violations may continue, sometimes despite the generally good intentions of the official authorities.
The response of other states is, increasingly, to undertake combined measures, reacting to developments in
the society concerned. The increase in human rights violations by non-governmental entities (guerrilla
groups, paramilitary groups, etc.) is disturbing, and it is sometimes difficult to hold the government
responsible for such situations. This element is in some cases further complicated by the spreading of
political instability and internal chaos. Nonetheless, also in these cases, the mere denunciation of human
rights violations is insufficient and appropriate responses are called for.

It should be noted that besides the governments and parliaments of states, NGOs and individuals play a vital
role in the actual implementation process. Not only are NGOs and individuals often more effective in
collecting data, and more flexible in raising issues in connection with human rights violations, they also
provide the crucial external and evident legitimacy to, and research support for, the actions of states towards
third countries.

HUMAN RIGHTS FORA

72 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

In this part, human rights fora will be analysed. First, the universal system for the protection of human rights
will be discussed, meaning in this context the United Nations system. Then the three regional systems in
Europe, the Americas and Africa will be examined. Finally, Chapter IV turns to the human rights
arrangements within the framework of the Organisation on Security and Co-operation in Europe.

This handbook deals with the more developed regional systems. There are, however, other regional
arrangements for the protection of human rights. For example, within the framework of the League of Arab
States (founded in 1945) there is a Permanent Arab Commission on Human Rights that has adopted an ‘Arab
Charter on Human Rights’. The original Arab Charter was adopted in 1994 but never entered into force
because it failed to obtain a sufficient number of ratifications. Nonetheless, during the Arab Summit held in
Tunis in May 2004, a ‘modernised’ version of the Arab Charter on Human Rights was adopted. The revised
document represents a major improvement over the Charter adopted in 1994 and when it comes into force
will provide the member states of the League of Arab States with an arrangement comparable to those of
other regions examined here. In fact, the new Arab Charter creates a promising monitoring mechanism,
similar to the Human Rights Committee established by the International Covenant on Civil and Political
Rights. The next step in the process is ratification by states.

In this part, the Asian regional system is discussed briefly (see textbox).

• The United Nations

• The Council of Europe
• The Organisation of American States
• The African Union
• The Organisation For Security and Co-operation in Europe

THE UNITED NATIONS

On New Year’s Day 1942, twenty-six governments signed the Declaration of the United Nations in
Washington, D.C., the United States, and another twenty-one governments followed suit before the end of
the Second World War. In 1945, representatives of 50 countries met in San Francisco at the United Nations
Conference on International Organisation to draw up the United Nations Charter, an international treaty that

73 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

sets out basic principles of international relations. The UN Charter was signed on 26 June 1945 by the
representatives of the 50 countries, making international concern for human rights an established part of
international law.

The United Nations officially came into existence on 24 October 1945, when the Charter had been ratified by
China, France, the Soviet Union, the United Kingdom, the United States and by a majority of other
signatories. In the Preamble to the Charter, the signatories ‘reaffirm faith in fundamental human rights, in the
dignity and worth of the human person and in the equal rights of men and women [...]’, echoing the belief of
the era that the massive human rights violations committed during the Second World War could have been
prevented and the hope that they should never be repeated. Today, nearly every nation in the world belongs
to the UN; membership totals 191 countries.

The United Nations has six principle organs: the General Assembly, the Security Council, the Economic and
Social Council, the Trusteeship Council, the International Court of Justice and the Secretariat. In addition, it
has several specialised agencies and a number of other specialised bodies dealing with human rights.

Modern international human rights law is to a large extent founded on the standard-setting work of the
United Nations; through UN efforts governments have established many multilateral agreements and this
comprehensive body of international law, including human rights law, is one of the UN’s greatest
achievements. With its standard-setting work nearly complete, the UN is shifting the emphasis of its human
rights efforts to the implementation of human rights laws.

THE UN CHARTER

When states become members of the UN they accept the obligations of the Charter of the United Nations
that sets out the four main purposes of the UN: to maintain international peace and security; to develop
friendly relations among nations; to co-operate in solving international problems and in promoting respect
for human rights; and to be a centre for harmonising the actions of nations.

The UN Charter refers to human rights in the Preamble and Articles 1, 8, 13, 55, 56, 62, 68 and 76:

Article 1 defines one of the objectives of the UN as: ‘[...] promoting and encouraging respect for human
rights and for fundamental freedoms for all without distinction as to race, sex, language or religion’.

74 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

Article 8 states that ‘the United Nations shall place no restrictions on the eligibility of men and women to
participate in any capacity and under conditions of equality in its principal and subsidiary organs [...]’.

Article 13 says that the responsibilities, functions and powers of the General Assembly shall include
‘assisting in the realisation of human rights and fundamental freedoms for all [...]’.

Article 55 describes the purposes of the UN in international co-operation, which include under (c):
‘universal respect for, and observance of human rights and fundamental freedoms for all without
discrimination as to race, sex, language, or religion’.

Article 56 contains a pledge by all members ‘to take joint and separate action in co-operation with the
Organisation for the achievement of the purposes set forth in Article 55’.

Article 62 contains similar provisions in describing the responsibilities, functions and powers of the
Economic and Social Council (ECOSOC).

Article 68 authorises the ECOSOC to set up commissions ‘in economic and social fields and for the
promotion of human rights’.

Article 76 contains human rights provisions in the description of the international trusteeship system.

MAIN UNITED NATIONS BODIES DEALING WITH HUMAN RIGHTS

Many UN organs have a role to play in the field of human rights. The most relevant organs are described in
this section.

75 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

THE GENERAL ASSEMBLY (UNGA)

The General Assembly is composed of all member states of the United Nations, each state having one vote.
Article 13 UN Charter states that one of the functions of the UN General Assembly is to initiate studies and
make recommendations for the purpose of ‘promoting international co-operation in the economic, social,
cultural, educational and health fields and assisting in the realisation of human rights and fundamental
freedoms for all without distinction as to race, sex, language or religion’. Accordingly, the UNGA adopted
the Universal Declaration of Human Rights (UDHR) on 10 December 1948 and, since then, a number of
other human rights instruments.

Most human rights issues that the UNGA deals with are laid out in reports of the Economic and Social
Council (ECOSOC) or in resolutions adopted by the UNGA at earlier sessions. The UNGA refers most
issues regarding human rights to its Third Committee, which is responsible for social, humanitarian and
cultural issues. The Sixth Committee (Legal Committee) also deals occasionally with human rights issues.

The UNGA has set up a number of subsidiary organs important in relation to human rights: the Special
Committee on the Situation regarding Implementation of the Declaration on the Granting of
Independence to Colonial Countries and Peoples (‘the Special Committee on Decolonization’), the

76 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

Special Committee to Investigate Israeli Practices Affecting Human Rights of the Population of the
Occupied Territories, and the Committee on the Exercise of the Inalienable Rights of the Palestinian People.
For many years, the UN also had a Special Committee on Apartheid.

THE ECONOMIC AND SOCIAL COUNCIL (ECOSOC)

In contrast to the UNGA, the Economic and Social Council consists of only 54 members. Article 62 of the
UN Charter states that the ECOSOC ‘may make recommendations for the purpose of promoting respect for
and observance of human rights and fundamental freedoms for all’. The ECOSOC may also submit draft
conventions to the UNGA and organise international conferences. Under the provisions of Article 68, the
ECOSOC can set up commissions in economic and social fields and for the promotion of human rights.
Article 64 empowers the ECOSOC to make arrangements with the UN member states and its Specialised
Agencies to obtain reports on the steps taken to put its own recommendations and those of the UNGA into
effect.

The ECOSOC debates the reports by the UN Human Rights Commission and deals with the studies and draft
resolutions the Commission has submitted to the Council. The ECOSOC takes decisions on the most
important organizational matters, but frequently refers policy matters to the UNGA. Organizational matters
are important, such as the powers, size and membership of the Commission on Human Rights and other
subsidiary organs of the ECOSOC concerned with human rights.

The ECOSOC has established a number of important commissions in the sphere of human rights: a) the UN
Commission on Human Rights that has set up the Sub-Commission on the Promotion and Protection of
Human Rights; b) the Commission on the Status of Women; c) the Commission for Social Development; and
d) the Commission on Crime Prevention and Criminal Justice. Furthermore, under Article 71 of the Charter,
the ECOSOC may consult NGOs that are involved with the work of the Council.

THE UN COMMISSION ON HUMAN RIGHTS

The UN Commission on Human Rights is a functional commission of the ECOSOC and the main UN organ
dealing with human rights. It was provisionally established by the ECOSOC on 16 February 1946, with nine
members serving in their personal capacity (chaired by Eleanor Roosevelt), and became a permanent body
with members from eighteen countries on 21 June 1946. In 1979, the ECOSOC increased the number of

77 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

members of the Commission to 43 and extended the duration of its normal session to six weeks, with an
additional week for the working groups. In 1990, the ECOSOC further enlarged the membership of the
Commission to 53. The seats are distributed geographically: each of the five regional groups has a fixed
number of seats. The Commission meets every year in March and April. The members are elected by the
ECOSOC for a period of three years; every year, one-third of the seats are up for election.

MANDATE

The original mandate of the Commission was to submit proposals, recommendations and reports to the
Council concerning:

a) An international statute on human rights;

b) International declarations or conventions on civil liberties, the status of women, freedom of information
and related matters;

c) The protection of minorities;

d) The prevention of discrimination on the grounds of race, sex, language or religion;

e) Any other matters concerning human rights.

The mandate has been extended several times, especially in 1967 and 1970 when the Commission, in
addition to its standard-setting task, was given the task to deal with human rights practices all over the world
by ECOSOC Resolution 1235. In 1979, its mandate was extended to include supporting the ECOSOC in the
co-ordination of human rights activities within the UN system.

PROCEDURES

The Commission works in accordance with the ECOSOC’s procedural rules for functional commissions.
Only members are entitled to vote, but countries that are not members of the Commission may participate in
the Commission’s deliberations as observers and may be co-sponsors of draft resolutions submitted to the
Commission. Liberation movements recognised by the UNGA, the Specialised Agencies of the UN, and
78 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

several other inter-governmental organisations may also participate and make interventions. NGOs with
consultative status may send observers with the right to speak to the public sessions of the Commission.

The debate of the Commission is generally open to the public, but the general debate about violations of
human rights takes place in open and closed sessions. In the public sessions the Commission, inter alia,
discusses violations and takes decisions on them (the so-called 1235 procedure). Closed sessions, normally
lasting only one day, deal exclusively with situations submitted by the Sub-Commission on the Protection
and Promotion of Human Rights (1503 procedure). Both the 1235 and 1503 procedures fall under the agenda
item ‘violations of human rights and fundamental freedoms in any part of the world’. Every year the
Commission adopts around one hundred resolutions, decisions and Chairperson’s statements related to
standard setting, supervision, implementation and promotion of human rights.

ACTIVITIES

As the main UN organ dealing with human rights, the Commission is particularly important with regard to
standard-setting; its first task was to draw up the International Bill of Rights consisting of the Universal
Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights
(ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). It has
also drafted a substantial number of other international human rights conventions and declarations.

The Commission plays a central role in the supervision of human rights. Supervisory mechanisms are set up
by decisions of the UNGA, the ECOSOC or the Commission itself. The Commission is authorised to appoint
special rapporteurs, representatives, experts and working groups, subject to the approval of the ECOSOC.
The appointed persons report in their personal capacity to the Commission on human rights topics and make
recommendations. The special rapporteurs are divided into two groups: a) country rapporteurs, whose focus
is on violations in a particular country, and b) thematic rapporteurs, who deal with a particular human rights
issue worldwide.

The Commission plays a vital role in the process of implementation. It is the principal forum where human
rights issues can be raised by individual countries and NGOs. Furthermore, it can order studies on specific
issues, such as the rights of detainees, and research reports are prepared on its behalf. The Commission has
set up numerous working groups or recommended that the ECOSOC do so. The Commission is also a key

79 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

forum for decisions regarding the promotion of human rights; it has set up various funds to facilitate the
work of standard-setting bodies, to assist victims of violations and to promote human rights.

THE SUB-COMMISSION ON THE PROMOTION AND PROTECTION OF HUMAN RIGHTS

The Sub-Commission is the main subsidiary body of the UN Commission on Human Rights. It was
established by the Commission at its first session in 1947 under the authority of the ECOSOC. Members are
nominated by their governments and elected by the Commission for a period of three years. Half the
members and their alternates are elected every two years and each serves for a four-year term. The members
of the Sub-Commission are expected to be independent experts of ‘high moral standing and acknowledged
impartiality’.

The Sub-Commission meets every year for three weeks. The sessions of the Sub-Commission are attended
by its members and/or their alternates, observers of UN member states, and representatives of the UN
Specialised Agencies, inter-governmental organisations, NGOs holding consultative status with the
ECOSOC, and national liberation movements, if there is an item on the agenda which concerns them. In
1999 the Economic and Social Council changed its title from Sub-Commission on Prevention of
Discrimination and Protection of Minorities to Sub-Commission on the Promotion and Protection of Human
Rights. The functions of the Sub-Commission are:

a) To undertake studies, particularly in the light of the Universal Declaration of Human Rights, and to make
recommendations to the Commission concerning the prevention of discrimination of any kind relating to
human rights and fundamental freedoms and the protection of racial, national, religious and linguistic
minorities;

b) To perform any other functions entrusted to it by the Council or the Commission.

The Sub-Commission often appoints rapporteurs and establishes working groups to study particular issues.
At present, the Sub-Commission has six working groups: the Working Group on Communications; the
Working Group on Contemporary Forms of Slavery; the Working Group on Indigenous Populations; the
Working Group on Minorities; the Working Group on Administration of Justice; and the Working Group on
Transnational Corporations. The Working Group on Communications considers complaints that appear to
reveal consistent patterns of gross and reliably attested violations of human rights. The Working Group on

80 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

the Administration of Justice initially focused on the right of detainees, but extended the scope of its
activities to include, for instance, the drawing up of draft principles and guidelines concerning compensation
to victims of grave human rights violations. The Sub-Commission adopts resolutions and submits draft
resolutions and draft decisions to the Commission and/or the ECOSOC, reporting to the Commission after
each session.

THE HIGH COMMISSIONER FOR HUMAN RIGHTS AND THE OFFICE OF THE UNITED
NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS (OHCHR)

The High Commissioner is the principal UN official with responsibility for human rights and is accountable
to the Secretary-General. The position of the High Commissioner for Human Rights was created in 1993.
Earlier efforts to establish the post had failed, chiefly due to the East-West block division in UN decision-
making bodies, and the fear of a High Commissioner competent to ‘interfere in internal affairs’. The Vienna
World Conference on Human Rights revived attempts to establish the post, the debate being led by NGOs
such as Amnesty International and Western states. After a lengthy process the Conference decided by
consensus to ask the UNGA, when examining the Conference report, ‘to begin, as a matter of priority, [with
the] consideration of the question of the establishment of a High Commissioner for Human Rights for the
promotion and protection of all human rights’ (Vienna Declaration and Programme of Action). On 20
December 1993, the UNGA decided, without a vote, to create the post of High Commissioner for Human
Rights.

The High Commissioner for Human Rights has the rank of Under-Secretary-General and reports directly to
the Secretary-General. The mandate (UNGA Resolution 48/141) entails, inter alia:

a) Promoting and protecting the effective enjoyment by all of all civil, cultural, economic, political and social
rights;

b) Carrying out the tasks assigned to him/her by bodies of the United Nations system in the field of human
rights and making recommendations to them with a view to improving the promotion and protection of all
human rights;

c) Promoting and protecting the realisation of the right to development and enhancing support from relevant
bodies of the United Nations system for this purpose;

81 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

d) Providing, through the Centre for Human Rights and other appropriate institutions, advisory services,
technical, and financial assistance at the request of the state concerned and, where appropriate, the regional
human rights organisations, with a view to supporting actions and programmes in the field of human rights;

e) Co-ordinating relevant United Nations education and public information programmes in the field of
human rights;

f) Playing an active role in removing the current obstacles and in meeting the challenges to the full
realisation of all human rights and in preventing the continuation of human rights violations throughout the
world, as reflected in the Vienna Declaration and Programme of Action;

g) Engaging in a dialogue with all Governments on the implementation of his/her mandate with a view to
securing respect for all human rights;

h) Enhancing international co-operation for the promotion and protection of all human rights;

i) Co-ordination of the human rights promotion and protection activities throughout the United Nations
system;

j) Realization, adaptation, strengthening and streamlining of the United Nations machinery in the field of
human rights with a view to improving its efficiency and effectiveness. [...]

The High Commissioner has a special role in the co-ordination of UN activities in the field of human rights,
while also co-operating with governments to strengthen national human rights protection. The High
Commissioner seeks to lead the international human rights movement by acting as a moral authority and a
voice for victims. The High Commissioner makes frequent public statements and appeals on human rights
crises.

The first High Commissioner was José Ayala Lasso from Ecuador. He served from 1994 to 1997, when, after
an interim period, in September 1997, the function was taken over by Mary Robinson, the former President
of Ireland. The third High Commissioner, Sergio Vieira de Mello, served from 2002 until May of 2003,
when he took a leave of absence to serve in Iraq as Special Representative of the Secretary-General. He was
tragically killed by a bomb in Baghdad on 19 August 2003. Bertrand Ramcharan acted as High
Commissioner from 2003 until February 2004, when Canadian Supreme Court Justice and ex-prosecutor of
82 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

the United Nations war crimes tribunals for the former Yugoslavia and Rwanda, Louse Arbour, was
appointed to the post.

The Office of the High Commissioner for Human Rights, based in Geneva at Palais Wilson, is the main body
within the UN Secretariat dealing with human rights. In accordance with the programme reform of the UN
(A/51/950 para. 79), the Office of the High Commissioner for Human Rights and Centre for Human Rights
were consolidated into a single office (OHCHR) as of 15 September 1997.

The Office assists various UN organs, subsidiary organs and working groups. The Office of the High
Commissioner serves as a secretariat for charter-based human rights mechanisms, as well as all treaty
monitoring bodies except the CEDAW Committee, which is served by the Division for the Advancement of
Women. The Office receives and administers more than 200,000 communications annually. Furthermore, the
Office prepares studies, reports and publications on human rights and plays a special role in relation to the
Advisory Services Programme organising global and regional seminars and courses on subjects relating to
human rights. Finally, the Office provides governments with technical advice. In addition, a number of
OHCHR field offices have been established with a view to ensuring that international human rights standards
are progressively implemented and realised at country level, both in law and practice. It should be noted that
though entrusted with many tasks, the Office of the High Commissioner has very limited funds and
manpower at its disposal.

OTHER UNITED NATIONS ORGANS

THE SECURITY COUNCIL

The Council has 15 members; five permanent members and 10 elected by the General Assembly for two-
year terms. In accordance with Article 24 of the UN Charter, the Security Council bears primary
responsibility for the maintenance of international peace and security. Actions taken by the Security Council
will generally impact human rights, as these invariably come to the fore whenever international peace and
security are threatened. The link between violations of human rights and threats to international peace and
security was discussed by the Security Council Summit held in January 1992. The Security Council stated
that: ‘Election monitoring, human rights verification and the repatriation of refugees have in the settlement
of some regional conflicts, at the request or with the agreement of the parties concerned, been integral parts
of the Security Council’s effort to maintain international peace and security.’
83 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

The Security Council is increasingly concerned with human rights. With the gradual refocus of the UN on
human security as an integrated concept, many decisions of the Security Council have an impact on human
rights. Interventions authorised by the Security Council are nominally undertaken in reaction to threats to
international peace and security. Examples are, for instance, the intervention in Haiti (2004) or Sierra Leone
(1999). The arguments underlying such interventions are often related to human rights. The Security
Council, acting under Chapter VII of the Charter of the United Nations, is also the institution that sets up ad
hoc tribunals such as the ones for former Yugoslavia and for Rwanda.

In addition, several standing and ad hoc committees under the Security Council are relevant to human rights,
such as, sanction committees, the Special Committee on Peacekeeping, and the International Tribunal
Committee.

INTERNATIONAL TRIBUNALS

International tribunals have traditionally been seen as means to resolving international disputes peacefully,
thereby forcing states to obey international law.

The International Court of Justice (ICJ) supervises the rule of law at the international level and is entitled to
issue advisory opinions under certain circumstances.

States participating in international law-making tended to see violations of international law as incurring
only state responsibility. Since the 1919 Versailles Treaty, however, it has increasingly been accepted that
individuals can be held responsible for violations of international law, especially international humanitarian
law. Individual criminal responsibility for crimes against peace, war crimes, and crimes against humanity
was established at the Nuremberg and Tokyo tribunals, where individuals were tried for war crimes
committed during the Second World War. In reaction to the atrocities that took place in Yugoslavia and
Rwanda, the Security Council established the International Criminal Tribunals for the Former Yugoslavia
and Rwanda, to ensure peace and promote reconciliation by means of prosecution of individuals for
genocide, crimes against humanity and war crimes. The ad hoc tribunals were severely limited in their
jurisdiction, as they are only meant to deal with events that took place within a certain time frame and on
specified territory. On the other hand, the recently established International Criminal Court (ICC), has
jurisdiction to investigate, prosecute and punish individuals suspected of having committed the most serious
crimes of concern to the international community as a whole in the territory of states parties, or if they are
84 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

citizens of a state party to the Statute establishing the Court. Experience has shown that international
tribunals and supervisory mechanisms generally need a long time to develop, to acquire experience and to
gain international legitimacy and effectiveness.

INTERNATIONAL COURT OF JUSTICE

The general objective of the International Court of Justice is the administration of justice and the supervision
of the rule of law at the international level. The Court, seated at the ‘Peace Palace’ in The Hague,
Netherlands, is the principal judicial organ of the United Nations. It began work in 1946, when it replaced
the Permanent Court of International Justice, and operates under a statute similar to that of its predecessor.
The Court has competence to address cases brought by states, and the Security Council. The UNGA,
ECOSOC, and other specific organs may request advisory opinions from it. Individuals cannot bring cases
before the court. The ICJ has ruled on several cases involving human rights, e.g., Haya de la Torre case (13
June 1951; asylum), Nottebohm case (6 April 1955; nationality), Barcelona Traction Light and Power
Company Limited case (5 February 1970; human rights as obligations erga omnes), the case on the Orders
on Requests for the Indication of Provisional Measures in the Case Concerning Application of the
Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia v. Serbia and
Montenegro) (8 April and 13 September 1993; genocide) and the Case Concerning Avena and Other
Mexican Nationals (Mexico v. United States of America) (31 March 2004). The Court has also addressed
human rights issues in its advisory opinions; for example, on genocide, apartheid, and the immunity of UN
human rights special rapporteurs.

THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA (ICTY)

The International Criminal Tribunal for the Former Yugoslavia was established by Security Council
Resolution 827 on 25 May 1993 (Statute of the International Criminal Tribunal for the Fromer
Yugoslavia). The Tribunal came into being in the face of the serious violations of international humanitarian
law committed in the territory of the former Yugoslavia since 1991, and as a response to the threat to
international peace and security posed by those violations.

The purpose of the ICTY is to: a) bring to justice persons allegedly responsible for serious violations of
international humanitarian law; b) render justice to the victims; c) deter further crimes; and d) contribute to
the restoration of peace by promoting reconciliation in the former Yugoslavia. Such purposes will be
85 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

achieved by investigating, prosecuting and punishing individuals for the following crimes committed on the
territory of the former Yugoslavia since 1991: a) grave breaches of the 1949 Geneva Conventions; b)
violations of the laws or customs of war; c) genocide; and d) crimes against humanity.

The ICTY has concurrent jurisdiction with national courts over serious violations of international
humanitarian law committed in the former Yugoslavia. In cases where it proves to be in the interests of
international justice, the ICTY may claim primacy over national courts and take over national investigations
and proceedings at any stage.

The ICTY Chambers consist of 16 permanent judges and a maximum of nine ad litem judges. The permanent
judges are elected by the UN General Assembly for a term of four years and can be re-elected. The judges
are divided between three Trial Chambers and one Appeals Chamber and represent the main legal systems in
the world. They hear testimony and legal arguments, decide on the innocence or the guilt of the accused and
pass sentence. Furthermore, they draft and adopt the legal instruments regulating the functioning of the
ICTY, such as the Rules of Procedure and Evidence.

As of July 2004, 102 accused have appeared in proceedings before the Tribunal. In rendering judgements the
Tribunal has set important precedents of international criminal and humanitarian law as many legal issues
adjudicated by the Tribunal have never before been addressed legally, or have lain dormant since the
Nuremberg and Tokyo trials. The Tribunal has its seat in The Hague, The Netherlands.

INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA (ICTR)

The UN Security Council created the International Criminal Tribunal for Rwanda by Resolution 955 of 8
November 1994 (Statute of the International Criminal Tribunal for Rwanda) to prosecute persons
responsible for genocide and other serious violations of international humanitarian law, committed on
Rwandan territory between 1 January 1994 and 31 December 1994. The ICTR may also prosecute Rwandan
nationals charged with committing such crimes in neighbouring countries during that same period.

The purpose of the Tribunal is, inter alia, to contribute to the process of national reconciliation in Rwanda
and to the maintenance of peace in the region. The Tribunal consists of the Chambers and the Appeals
Chamber; the Office of the Prosecutor and the Registry. The judges of the Tribunal are elected by the
UNGA, and should be of different nationalities. Three judges sit in each of the Trial Chambers and seven

86 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

judges are members of the Appeals Chamber, which is shared with the ICTY. The Office of the Prosecutor is
an independent, separate organ that investigates crimes within the Tribunal’s jurisdiction, prepares charges,
and prosecutes accused persons. The Registry manages the overall administration of the Tribunal. The
Registry is headed by the Registrar who provides judicial and legal support services for the work of the Trial
Chambers and the Prosecution.

To date, more than 230 witnesses from different countries have testified before the Tribunal which has a
special Witness and Victims Support Section that is to ensure the security and provide support for and
relocation of witnesses if necessary. The Tribunal has advocated victim-orientated, rehabilitative justice by,
for instance, providing legal guidance, medical care and psychological counselling to victims.

As of July 2004, the Tribunal has secured the arrest of over 50 individuals involved in the Rwandan genocide
of 1994 and completed the trials of several leaders. Fifteen judgements involving twenty-one accused have
been handed down and another twenty-one accused are on trial. Decisions on some 500 motions and
different points of law have been given where the Tribunal has laid down important principles of
international law, which will serve as precedents for other international criminal tribunals. The Tribunal has
its seat in Arusha, United Republic of Tanzania.

THE INTERNATIONAL CRIMINAL COURT (ICC)

On 17 July 1998, a UN Diplomatic Conference adopted the Rome Statute of the International Criminal
Court (ICC), establishing a permanent international criminal court with its seat in The Hague, The
Netherlands. The idea of a permanent court was set in motion by the unsuccessful attempts to establish an
international tribunal after the First World War. Following the Second World War, the Nuremberg and
Tokyo war crimes tribunals gave impetus for efforts to create a permanent court. It was first considered at the
UN level in the context of the adoption of the Convention on the Prevention and Punishment of the Crime of
Genocide (1948). Further developments were effectively forestalled by differences of opinions for many
years. Finally, in 1992, the UNGA directed the International Law Commission to elaborate a draft statute for
an international criminal court. Further public interest was created by the Security Council‘s establishment of
the International Criminal Tribunals for the Former Yugoslavia in 1993 and for Rwanda in 1994. In
December 1994, the UNGA established an Ad Hoc Committee of all UN Member States and members of
UN Specialised Agencies to review the final version of the International Law Commission’s draft statute. In

87 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

December 1995, the UNGA created a Preparatory Committee to ‘discuss further the major substantive and
administrative issues arising out of the draft statute prepared by the International Law Commission and [...]
to draft texts, with a view to preparing a widely acceptable consolidated text of a convention for an
international criminal court as a next step towards consideration by a conference of plenipotentiaries’. The
Preparatory Committee submitted for consideration a 13-part, 116-Article draft statute for the ICC. As it
concluded five weeks of deliberations, the Diplomatic Conference adopted the Statute for the Court by a vote
of 120 in favour to 7 against, with 21 abstentions. As of July 2004 94 states are party to the Statute.

The Statute establishes the ICC as a permanent institution with power to exercise its jurisdiction over persons
for the most serious crimes of international concern, as referred to in the Statute. The jurisdiction of the ICC
is of a complementary nature to national criminal jurisdictions. The Statute sets out the Court’s jurisdiction,
structure and functions and it entered into force on 1 July 2002 after 60 states ratified or acceded to it.

The material jurisdiction of the Court is over four categories of crimes: genocide, war crimes, crimes against
humanity, and crimes against the administration of justice of the ICC. The crime of aggression is mentioned
in Article 5 of the Rome Statute, but the delegates to the Rome Conference did not reach an agreement on the
definition and elements of the crime, nor on the participation of the Security Council in its prosecution. The
Court has no jurisdiction over persons under the age of 18. States parties can bring a situation to the Court’s
attention as well as the UN Security Council. Furthermore, the Prosecutor can initiate an investigation under
its motu propio powers.

The Court may exercise its jurisdiction over a specific case when either the state in whose territory the crime
was committed or the state of the nationality of the accused is a party to the Rome Statute. Non-party states
may also accept the Court’s jurisdiction on a case-by-case basis. The Security Council may also refer cases
to the Court, whether or not the state concerned is a party to the Statute. The Security Council may also
prevent the Court from exercising its jurisdiction for a one-year period, in the event that such decision is
taken under the provisions of Chapter VII of the UN Charter. In such case, all five permanent members of
the Council have to vote in favour or at least abstain from voting, which is not likely to happen easily.

THE INTERNATIONAL CRIMINAL COURT: ACHIEVEMENTS AND CHALLENGES

On 11 April 2004, the Rome Statute (RS) of the International Criminal Court (ICC) was ratified by the 60th
state and subsequently entered into force on 1 July 2002. Since then the final steps to build up the ICC are
88 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

being taken by the international community. For instance, in September 2002, the first session of the
Assembly of States Parties (ASP) to the RS approved the Rules of Procedure and Evidence and the Elements
of Crimes, which are the two main accessory documents to the RS, allowing the Prosecutor and the Judges to
investigate, prosecute and try the worst crimes of international concern.

Furthermore, the main officials of the ICC have been elected. In February 2003, the ASP elected the first seat
of the Court and as required by the RS, regional representation, gender balance and diversity in expertise in
the different aspects of law were assured. From the 18 elected judges, four are from the Latin American and
Caribbean Group (Bolivia, Brazil, Costa Rica, Trinidad and Tobago), seven from the Group of Western
European States and others (Canada, Finland, France, Germany, Ireland, Italy, United Kingdom), three from
the African States Group (Ghana, Mali, South Africa), three from the Asian States Group (Cyprus, Republic
of Korea, Samoa), and one from the Eastern European States Group (Lithuania). Ten of the eighteen judges
have experience in criminal law and criminal procedures and eight are recognised experts in international
law, international humanitarian law and international human rights law. For the first time in the election of
judges of an international tribunal, the gender perspective was compulsory, and this resulted in the election
of seven women and eleven men. Also, by mid 2003, the ASP elected as Prosecutor of the ICC Dr. Luis
Moreno Ocampo, an experienced Argentinean lawyer, former deputy prosecutor for the military juntas in
Argentina. Following his election he presented a list of three candidates for the position of Deputy
Prosecutor (Investigations) and on September 2003 Serge Bremmetz was elected to the post. The judges
elected Mr. Bruno Cathala as Registrar of the Court after considering a list of candidates prepared and
presented to them by the ASP. The only pending election of main officials of the ICC is for the position of
Deputy Prosecutor (Prosecution), which will take place in September 2004, during the third ASP.

With the main officials in place the ICC is ready to start investigations of genocide, crimes against humanity,
and war crimes. Since 1 July 2002, the Prosecutor has received more than 500 communications from non-
governmental organisations, individuals and victims’ organisations presenting cases of what may constitute
crimes under the jurisdiction of the Court.

In December 2003 and March 2004, the Governments of Uganda and the Democratic Republic of Congo,
respectively, referred situations to the Court in conformity with Article 13 (a) of the Rome Statute. The two
governments referred situations that may constitute crimes under the jurisdiction of the ICC. Both countries
issued a special declaration authorising the Prosecutor to investigate all crimes that might have been

89 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

committed as of 1 July 2002, in their respective territories or by their nationals, regardless of whether such
persons were members of the national army or of other armed forces.

The Prosecutor of the ICC recently issued the Paper on Some Policy Issues before the Office of the
Prosecutor and its Annex, in which a set of guiding principles for the Prosecutor’s policy for the
investigation and prosecution may be found. The Paper sets out that the Court has jurisdiction over the worst
crimes of international concern, which are considered as such due to their gravity, but also because of the
level of involvement of the presumed perpetrators. High level officials from governments and other political
groups bear the greatest responsibility, and therefore the Office of the Prosecutor (OTP) will investigate and
prosecute those groups of criminals. Nevertheless, the Prosecutor reminds states of their primary
responsibility to investigate, prosecute and punish genocide, crimes against humanity and war crimes; and
expresses its willingness to advise and support states that are willing to fight impunity, and cover the
‘impunity gap’ that the ICC’s limited jurisdiction over those who bear the greatest responsibility could
create. Jose A. Guevara

FUNCTIONAL UNITED NATIONS COMMISSIONS

THE COMMISSION ON THE STATUS OF WOMEN

The Commission on the Status of Women (CSW) was established by ECOSOC Resolution 11(II) in 1946. It
is the main UN organ dealing with women’s issues. Its mandate is to prepare reports for the ECOSOC on
matters concerning the promotion of women’s rights in the political, economic, social and educational fields.
The CSW may also make recommendations to the ECOSOC on problems requiring immediate attention in
the field of women’s rights. The CSW is the forum for evaluation of the implementation of the 1995 Beijing
Fourth World Conference on Women. The Commission functioned as the Preparatory Committee for the
World Conferences on Women, which took place in Mexico (1975), Copenhagen (1980), Nairobi (1985),
and Beijing (1995). The Commission membership consists of 45 states elected by the Economic and Social
Council for a period of four years on a regional basis ensuring equitable geographical distribution. The
Commission meets annually for a period of eight days in New York.

Mention should be made of the Division for the Advancement of Women (DAW), part of the Division for
Social Policy and Development, the focal point for all activities relating to women. Its programmes relate
particularly to monitoring the ‘Forward-Looking Strategies’ developed during the World Conferences. The
90 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

DAW acts as a secretariat both for the CSW and for the CEDAW Committee. The DAW also undertakes
and co-ordinates research; expert group meetings and advisory seminars, particularly on priority themes
selected by each CSW session.

THE COMMISSION FOR SOCIAL DEVELOPMENT

The Commission for Social Development is another functional commission of the ECOSOC. It was
originally created in 1964, but its terms of reference were later redefined, when the number of members was
increased to 32. In 1996 the membership was expanded again, to 46 members. The Commission advises the
ECOSOC on issues of social welfare and the most vulnerable groups in society. It is particularly active in
areas lying outside the field of work of the UN Specialised Agencies and seeks to pursue an integrated
approach to social and economic development, based on social justice and the distribution of power,
responsibility and prosperity among all sections of society. The Declaration on Social Progress and
Development, which was approved by the UNGA in 1969, has proved a significant aid to the Commission’s
programme of work.

THE COMMISSION ON CRIME PREVENTION AND CRIMINAL JUSTICE

Another commission, established by the ECOSOC in 1992, is the Commission on Crime Prevention and
Criminal Justice (‘Crime Commission’). The Commission’s main duties lie in the field of international co-
operation on penitentiary and criminal matters, such as penal justice and crime prevention. Promoting respect
for human rights also forms a substantial element in the work programme of the Commission (UNGA
Resolution 46/152). The Commission meets annually for a period of ten days in Vienna. The Crime
Commission plays an important role in preparing the conferences held every five years by the UN on
preventing crime and the treatment of delinquents. Its work, therefore, sometimes spills over into the field of
human rights. For example, the first conference (1955) drew up Standard Minimum Rules for the
Treatment of Prisoners, while the fifth conference (1975) prepared the text for a Declaration on the
Protection of All Persons against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
The Declaration was approved in the same year by the UNGA. The eleventh Congress on the Prevention of
Crime and the Treatment of Offenders will be held in Bangkok in 2005.

THE INTERNATIONAL LAW COMMISSION

91 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

The International Law Commission (ILC), established by the UNGA in 1947 by Resolution 174(III), is
mandated to promote the development and codification of international law. It drafts conventions for areas in
which international law has not been developed or has been insufficiently developed, or introduces necessary
improvements. The Commission is made up of 34 individuals - not being representatives of their
governments - who have a proven track record in the field of international law. They are elected by the
UNGA for a period of five years from a list of candidates nominated by the UN member states.

As far as human rights are concerned, the Commission is involved, among other things, in preparing
international agreements on the problems of nationality and statelessness. The Commission also spends
much time developing international criminal law. One of the Commission’s most recent activities relates to
the adoption of the Statute for the International Criminal Court (1994).

STANDARDS AND SUPERVISORY MECHANISMS

The UN plays a pre-eminent role in the field of standard-setting. The UN Commission on Human Rights
often takes the initiative and does the drafting of human rights standards, frequently in co-operation with the
Sub-Commission. Sometimes specific working groups or drafting groups are mandated. It is important to
realise that elements for new instruments are often taken from proposals by one country, from final
documents of colloquia and round table meetings, and especially from submissions by NGOs. The process
has not been standardised. It has become accepted to submit texts for technical review by individual experts
or expert bodies. In addition, texts are often submitted to governments after a first reading for comments,
after which, in a second reading procedure, outstanding issues are tackled. After approval by the UN
Commission on Human Rights, drafts are then passed on to the ECOSOC and the UNGA.

The drafting of texts can be a very taxing effort, not guaranteeing a flawless process. It took, for example,
more than fifteen years to draft the ICCPR and the ICESCR, while one of the latest conventions - the
Convention on the Rights of the Child - took almost ten years to be completed. Guidelines for drafting
may be found in UNGA Resolution 41/120, which stipulates that only clear, meaningful, consistent
proposals, commanding large support, should be considered. The CSW and the Crime Commission are also
involved in standard-setting within their areas of competence. The CSW drafted, for instance, the Optional
Protocol to CEDAW.

92 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

To supervise compliance with the standards formulated, a wide range of mechanisms has been established in
the UN system in the past fifty years. In the overview that follows, the distinction is made between: treaty-
based procedures, such as the Human Rights Committee and charter-based procedures, such as the
appointment of special rapporteurs.

Before discussing the treaties, mention must be made of the Universal Declaration of Human Rights, which,
together with the Covenants forms the Universal Bill of Human Rights and is considered the major human
rights standard, although, as a declaration, it is not accompanied by a specific supervisory procedure.

TREATIES AND TREATY-BASED PROCEDURES

The six most well-known human rights treaties are the two Covenants (ICESCR and ICCPR), CERD,
CEDAW, CAT and CRC. In addition, mention should be made of the CMW, which entered into force in
2003.

Each of these conventions has a supervisory body. These bodies consist of a number of experts of a high
moral character and recognised competence in the field of human rights. They act in their personal capacity,
which means that although they are normally nationals of a state party to the treaty in question, they are not
acting under instructions from respective governments. The treaty-based procedures are the mechanisms
established within the context of a specific human rights treaty. The Convention on the Elimination of All
Forms of Racial Discrimination (1965) was the first human rights treaty of universal application to provide
for a mechanism of supervision. This mechanism subsequently served as a model for other human rights
treaties, notably the International Covenant on Civil and Political Rights. The treaty bodies, with the
exception of the Committee on Economic, Social and Cultural Rights, are not organs of the UN, but derive
their status from the convention concerned. To implement these conventions, regular meetings of states
parties are held to discuss issues regarding the conventions, mainly in connection with the election of
members to the treaty bodies. As mentioned in Part I, there are different types of supervisory procedures:
reporting procedures, inter-state complaint procedures, individual complaint procedures and inquiry
procedures.

THE ICESCR AND THE COMMITTEE ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS

93 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

The International Covenant on Economic, Social and Cultural Rights (ICESCR) was adopted by UNGA
Resolution 2200 A (XXI) of 16 December 1966. It entered into force 3 January 1976. In July 2004, 149
states were party to the Convention.

The Preamble of the Covenant recognises, inter alia, that economic, social and cultural rights derive from the
‘inherent dignity of the human person’ and that ‘the ideal of free human beings enjoying freedom of fear and
want can only be achieved if conditions are created whereby everyone may enjoy his economic, social and
cultural rights, as well as civil and political rights’. The Covenant recognises the right to work (Article 6);
the right to just and favourable conditions of work (Article 7); the right to form and join trade unions and the
right to strike (Article 8); the right to social security including social insurance (Article 9); the right to
protection and assistance for the family and the prohibition of child labour (Article 10); the right to an
adequate standard of living for oneself and one’s family, including adequate food, clothing and housing and
to the continuous improvement of living conditions (Article 11); the right to the highest attainable standard
of physical and mental health (Article 12); the right to education, the freedom of parents to choose schools
other than those established by public authorities (Articles 13 and 14) and the right to take part in cultural life
and to benefit from scientific progress (Article 15).

The supervisory body of the ICESCR is the Committee on Economic, Social and Cultural Rights, composed
of 18 experts. The Committee is a supervisory body of the ECOSOC, which is responsible for monitoring
implementation of the Covenant. Originally, the ECOSOC had delegated this work to a working group of
government experts. In 1985, however, the ECOSOC decided to convert the working group into a
Committee on Economic, Social and Cultural Rights. The Committee is made up of eighteen members acting
in their personal capacity. The election of members takes place in the ECOSOC by means of a secret ballot
based on a list of candidates put forward by the states parties to the Covenant. Even members of ECOSOC
that are not parties to the Covenant can vote. Members of the Committee are elected for a period of four
years and may stand for re-election. The Committee normally meets twice a year in Geneva, for three weeks
at a time. Meetings are held in public. The Committee reports to the ECOSOC and may also make
recommendations. The Committee formally took up its duties on 1 January 1987.

The only supervisory mechanism envisaged in the ICESCR is the reporting procedure. States that are party to
the Covenant are required to submit reports about the realisation of the rights recognised in the Covenant to
the UN Secretary-General, who transmits them to the ECOSOC (Articles 16 to 21 ICESCR). The Committee

94 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

on Economic, Social and Cultural Rights is responsible for studying the reports. Reporting is based on a five-
year cycle whereby all articles have to be dealt with.

Since 1992 the Committee also has so-called ‘days of general discussion’, leading, among other things, to the
adoption of a range of General Comments. So far, the Committee has adopted fifteen General Comments.
Currently, an important issue of discussion is the adoption of an optional protocol, providing for an
individual complaint procedure.

THE ICCPR AND THE HUMAN RIGHTS COMMITTEE

The International Covenant on Civil and Political Rights (ICCPR) was adopted by UNGA Resolution 2200
A (XXI) of 16 December 1966. It entered into force 23 March 1976. The supervisory body is the Human
Rights Committee, which is composed of 18 experts (Article 28 ICCPR). As of July 2004, 152 states were
parties to the Convention.

Part I of the Covenant contains only one article, Article 1, the right to self-determination, which is identical
to Article 1 ICESCR. Part II of the Covenant contains Articles 2 and 5, which refer to the nature of
obligations, the territorial and personal scope of the Covenant and the principle of non-discrimination
(Article 2) which is complemented by Article 3, guaranteeing the equality between men and women in the
enjoyment of the Covenant rights. Article 4 allows states to take measures derogating from their obligations
under the Covenant and Article 5 establishes a prohibition of abuse of rights (Article 5(1)) and a saving
clause (Article 5(2)). Part III of the Covenant contains the following substantive rights: the right to life
(Article 6); freedom from torture, inhuman and degrading treatment or punishment (Article 7); freedom from
slavery, servitude, and forced labour (Article 8); rights to liberty and security of the person (Article 9); right
of detained persons to human treatment (Article 10); freedom from imprisonment for inability to fulfil a
contract (Article 11); freedom of movement (Article 12); right of aliens to due process when expelled
(Article 13); right to a fair trial (Article 14); freedom from retroactive criminal law (Article 15); right to
recognition as a person before the law (Article 16); rights to privacy (Article 17); freedom of thought,
conscience, and religion (Article 18); freedom of opinion and expression (Article 19); freedom from war
propaganda and freedom from incitement to racial, religious, or national hatred (Article 20); freedom of
assembly (Article 21); freedom of association (Article 22); rights of protection of the family and the right to
marry (Article 23); rights of protection of the child (Article 24); rights of participation in public life (Article

95 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

25); right to equality before the law and rights of non-discrimination (Article 26) and rights of minorities
(Article 27).

The supervisory mechanism established in the ICCPR is the Human Rights Committee, which should not be
confused with the UN Commission on Human Rights. The Committee is an organ established under Article
28 of the ICCPR. It is made up of eighteen members who are elected by the states parties to the Covenant in
their personal capacity for a period of four years. The Committee meets three times a year, each time for
three weeks (once in New York and twice in Geneva). The Committee is responsible for supervising
compliance with the Covenant.

The following supervisory mechanisms exist under the ICCPR and its First Optional Protocol:

a) Reporting mechanism (Article 40). All states parties to the Covenant must submit a report one year after
the Covenant has come into effect for them, describing the measures which they have taken to implement the
rights recognised in the Covenant and the progress made in the enjoyment of those rights. In addition, the
Committee has established that each state party has to submit a report every five years.

b) Inter-state complaint procedure (Articles 41 to 43). The procedure is optional. No party to the Covenant
has made use of the procedure so far, partly because most countries that systematically violate human rights
have not recognised the competence of the Committee in this respect, and partly because of the political
nature of the procedure.

c) Individual complaints mechanism (set out in the First Optional Protocol to the ICCPR). This complaints
procedure may only be invoked if the state concerned is a party to the Protocol (as of July 2004, 104 states
had ratified it). The main aspects of the procedure are regulated in Articles 2 to 5 of the Protocol, which,
inter alia, provides that the Committee will make its findings (called ‘views’) known to the state concerned
and to the complainant (Article 5(4)). The Committee has given its views on more than 1200 individual cases
with some 250 cases are pending. The views are published in a form that has many of the characteristics of a
judgement and may be regarded as ‘case-law’ of the Committee. In 1990, the Committee created the function
of Special Rapporteur for the Follow-Up of Views. In 1995, the Committee approved a follow-up fact-
finding mechanism, which was first used during a mission to Jamaica in 1995.

96 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

The Committee has a solid and respectable record in examining country reports and individual complaints.
When a country report is being considered, representatives of the state concerned get a chance to explain the
report at a public session. Members of the Committee then have an opportunity to question the
representatives, which they sometimes do in a forceful and critical manner. Over the years, NGOs have
begun to play a substantive role in the procedure.

In addition, the ICCPR stipulates that the Committee may formulate General Comments on the reports it has
considered (Article 40(4)). The Committee has made highly creative use of these powers by publishing a
series of General Comments over the years, which include an authoritative explanation and elaboration of
various material provisions of the Covenant. In 2004 more than 30 General Comments have been adopted
that relate to the experience gained regarding some articles and provisions of the Covenant.

THE CERD AND THE COMMITTEE FOR THE ELIMINATION OF RACIAL DISCRIMINATION

The International Convention on the Elimination of All Forms of Racial Discrimination (CERD) was
adopted by UNGA Resolution 2106 A (XX) of 21 December 1965. It entered into force on 4 January 1969.
As of July 2004, 169 states were party to the Convention.

The CERD contains a number of detailed prohibitions and obligations to prevent discrimination on the
grounds of race, colour, origin and national or ethnic background. Article 3 particularly condemns racial
segregation and apartheid and propaganda and promotion of discrimination are prohibited (Article 4).
Furthermore, non-discrimination in relation to specific rights, such as right to equal treatment before
tribunals, the right to marriage, the right to housing and freedom of opinion and expression, is set out (Article
5). Finally, states parties shall assure effective protection and remedies against acts of racial discrimination
(Article 6) and states pledge to combat prejudices that lead to racial discrimination (Article 7).

The Convention provides for a Committee on the Elimination of Racial Discrimination (Article 8), consisting
of eighteen experts elected in their personal capacity by states parties to the Convention for a period of four
years. The Committee is the only committee where states parties bear the costs; this can be problematic, as it
has occurred that a session has been cancelled because of lack of funds. The Committee meets twice each
year for three weeks in Geneva.

The supervisory mechanisms envisaged by the CERD are the following:

97 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

a) Reporting mechanism (Article 9). The Committee will consider the reports that the states submit to the
Secretary-General on the legislative, judicial, administrative or other measures that they have adopted and
that give effect to the provisions of the Convention. These reports have to be submitted one year after entry
into force of the Convention for the state concerned, and, thereafter, every four years or whenever the
Committee so requests. The Committee is also entitled to request further information from the states. The
Committee reports on its activities annually to the UNGA, through the Secretary-General, and may make
suggestions and general recommendations based on the examination of the reports and information received.
The system of reporting has developed into the most important monitoring procedure under the CERD.
Again, it can be added that over the years, NGOs started to play a significant role in the procedure.

b) Inter-state complaint mechanism (Article 11). If a state party considers that another state party is not
giving effect to the provisions of the Convention, it may bring the matter to the attention of the Committee.
The Committee will transmit the communication to the state concerned. Within three months, the receiving
state shall submit to the Committee a written explanation or statement clarifying the matter and the remedy,
if any, adopted by that state. Articles 12 and 13 refer to an ad hoc Conciliation Commission, which the
chairman of the Committee shall appoint once the Committee has obtained and collated all the information it
thinks necessary in the dispute. The good offices of the Conciliation Commission shall be made available to
the states concerned with a view to an amicable resolution of the matter, on the basis of respect for the
Convention. So far, there have been no inter-state complaints and, thus, the conciliation procedure has never
become operative.

c) Individual complaints mechanism (Article 14). The Article recognises the right of petition
(‘communications’) by individuals or groups of individuals on an optional basis. Around 40 states have
opted in. The Committee had reviewed and recommended upon, by mid 2004, some 30 cases. If the state
party concerned has recognised the right to petition, a (group of) individual(s) have the right to communicate
a matter to the Committee, within six months of the exhaustion of all local remedies. The Committee will
bring the communication to the attention of the state accused. The affected state will have three months to
submit written explanations to the Committee. The Committee must forward its suggestions and
recommendations, if any, to the state concerned and the petitioner.

On the basis of its experiences, the Committee has published some 30 General Recommendations.

98 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

THE CEDAW AND THE COMMITTEE FOR THE ELIMINATION OF DISCRIMINATION

AGAINST WOMEN

The Convention on the Elimination of All forms of Discrimination against Women (CEDAW) was
adopted by UNGA Resolution 34/180 of 18 December 1979. It entered into force 3 September 1981. As of
July 2004, 177 states were party to the Convention, many with a considerable number of reservations that
have significantly undermined the effectiveness of the Convention.

Part I of the Convention contains general standards. Article 2 and 3 set out different measures that states
undertake to eliminate discrimination against women and to ensure their full development and advancement.
These measures include the adoption of appropriate legislative measures and refraining from engaging in any
acts of discrimination against women. Article 4 sets out that ‘affirmative action’ and measures aimed at
protecting maternity will not be considered discriminatory, and Article 5 stipulates that states shall take all
appropriate measures to modify cultural patterns that perpetuate discrimination, and ensure that family
education includes an understanding of maternity as a social function. Finally, states undertake to suppress
trafficking and exploitation of prostitution of women (Article 6). Part II sets out that states must take
measures to eliminate discrimination as regards certain fields. States must ensure to women on equal terms
with men, inter alia: the right to participation in political and public life (Article 7); the opportunity to
represent their governments internationally (Article 8); and the right to change and retain their and their
children’s nationality (Article 9). Part III of the Convention sets out that states must take appropriate
measures to eliminate discrimination in regard to certain social and economic issues, i.e.: education (Article
10); work, and on grounds of marriage and maternity (Article 11); health (Article 12); and the right to
benefits and loans and to participate in cultural life (Article 13). The particular problems faced by rural
women and measures that states undertake to eliminate discrimination against this group are also
contemplated (Article 14). Part IV establishes equality before the law (Article 15) and that states must
undertake measures to eliminate discrimination in relation to marriage and family relations (Article16).

Under Article 17 of the Convention, the Committee for the Elimination of Discrimination against Women
(CEDAW Committee) is responsible for supervising international compliance with the Convention. The
Committee is composed of 23 experts (lawyers, teachers, diplomats and experts on women‘s affairs), acting
in their individual capacity. The members are elected for a period of four years by the states parties to the

99 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

Convention. The CEDAW Committee maintains close contact with the other Committees set up under the
terms of UN human rights conventions, with the UN Specialised Agencies and the CSW.

Under the Convention itself the only supervisory mechanism established is the reporting system. In
accordance with Article 18 of the Convention, each state party is required to report to the CEDAW
Committee on the measures taken to comply with the treaty within one year of its ratification. Subsequently,
every four years a periodic report is due. Although the responsibility for drafting the reports lies with the
government, NGOs can also be involved in order to produce as complete a picture of the situation in the
country as possible.

On 6 October 1999, the General Assembly adopted an Optional Protocol to the CEDAW. The Optional
Protocol entered into force on 22 December 2000. In July 2004, 60 states were parties to the Optional
Protocol.

The Optional Protocol contains two additional supervisory mechanisms:

a) Individual complaints mechanism (Article 1). This procedure allows individual women, or groups of
women, to submit claims of violations of rights protected under the Convention to the Committee. The
Protocol establishes that in order for individual communications to be admitted for consideration by the
Committee, a number of criteria must be met, including that all domestic remedies must have been
exhausted. The entry into force of the Optional Protocol has put it on an equal footing with the International
Covenant on Civil and Political Rights, the Convention on the Elimination of All Forms of Racial
Discrimination, and the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, which all have individual complaints procedures. As of July 2004, the
Committee has two cases pending.

b) Inquiry procedure (Article 8). The Protocol sets out a unique inquiry procedure that enables the
Committee to initiate inquiries into situations of grave or systematic violation of women‘s rights and carry
out country visits. The Protocol includes an ‘opt-out clause’, allowing states upon ratification or accession to
declare that they do not accept the inquiry procedure. This inquiry procedure is similar to that established in
the Convention against Torture. As of July 2004, the first inquiry case is nearing completion.

THE CAT AND THE COMMITTEE AGAINST TORTURE

100 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)
was adopted by UNGA Resolution 39/46 of 10 December 1984. It entered into force 26 June 1987. As of
July 2004, 136 states were parties to the Convention.

In the Preamble to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, states express their desire ‘to make more effective the struggle against torture and other cruel,
inhuman or degrading treatment or punishment throughout the world’. To this aim states parties undertake to
establish effective legislative or other measures to prevent acts of torture and establish that neither state of
emergency nor superior orders can be invoked as justification for torture (Article 2). States undertake to
ensure that acts of torture are punishable under criminal law (Article 4) and expulsion or refoulement is
prohibited when there is danger that torture will be inflicted (Article 3). States parties must establish
jurisdiction over offences of torture committed by their nationals, on their territory or against their nationals
and universal jurisdiction is set out requiring states to establish jurisdiction in cases where the offender is on
their territory or under their jurisdiction and they do not extradite (Article 5). States parties undertake to take
alleged offenders into custody, carry out inquiries, prosecute and extradite (Articles 6, 7 and 8) and they
pledge co-operation (Article 9). Article 10 sets out that states must ensure that education on the prohibition
of torture is provided to law enforcement personnel and others involved with the treatment of individuals
deprived of their liberty. States must take preventive measures, such as reviewing rules of interrogation
(Article 11), prompt and impartial investigation must be carried out (Article 12), and states must ensure
remedy, redress, and reparation to victims of torture (Articles 13 and 14). Finally, Article 15 sets out that
statements made as a result of torture may not be invoked as evidence in any proceedings.

Under Article 17 of the CAT, a Committee of ten independent experts is made responsible for supervising
compliance with the Convention. The experts are elected for a period of four years by the parties to the
Convention. Their election takes account of ‘equitable geographic distribution’. The Committee was
established on 26 November 1987, and meets twice a year for two weeks in Geneva.

Besides its supervisory mandate, the Committee has drafted an Optional Protocol to the CAT permitting
the Committee to visit places of detention within the jurisdiction of states parties to the Protocol (comparable
with the ECPT). The Protocol has not entered into force but has been ratified by 4 states (July 2004).

The CAT supervisory mechanisms are the following:

101 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

a) Reporting mechanism (Article 19). Within one year after the Convention has come into effect for the state
concerned, its government must submit a written report to the Committee describing the measures it has
taken to implement its obligations under the Convention. It must submit supplementary reports every four
years concerning new measures that have been taken and any other reports requested by the Committee. The
Committee may include General Comments on the country reports in its annual report to the UNGA and to
the states parties to the Convention. The governments concerned may respond to the comments with their
own observations (Article 19(3)).

b) Inter-state complaint mechanism (Article 21). The Article states that the Committee can deal with
communications submitted by a state party to the Convention whereby non-compliance with obligations
under the Convention by another state party to the Convention is claimed. It is an optional procedure: it may
be only instituted if both states concerned have made a declaration recognising, in regard to itself, the
competence of the Committee.

c) Individual complaints procedure (Article 22). The Article contains provisions to deal with complaints
submitted by individuals. Also for this procedure, the state party to the Convention against which the
complaints are being made must have recognised the right to complain in advance. The procedures have the
same features as those of the ICCPR and its First Optional Protocol. As of July 2004, more than 200 cases
have been decided.

d) Inquiry procedure (Article 20). If the Committee receives reliable information that suggests ‘well-founded
indications’ that torture is ‘being systematically practised’ in a state that is a party to the Convention, it m ay
appoint one or more of its members to undertake a confidential investigation. It may visit the country in
question with the consent of its government. It may visit the country in question with the consent of its
government. The Committee sends its findings to the government with its comments or proposals. The
Committee’s work during the investigation stage is confidential. On the other hand, the Committee may
decide to include a brief report of the results of its work in its annual report, on completion of an
investigation. This sanction could give weight to the Committee’s position in its dealings with the
government concerned. However, a state that is party to the Convention may refuse to accept application of
Article 20. As of July 2004 seven inquiries have been executed.

THE CRC AND THE COMMITTEE ON THE RIGHTS OF THE CHILD

102 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

The Convention on the Rights of the Child (CRC) was adopted by UNGA Resolution 44/25 on 20 November
1989. It entered into force on 20 September 1990. This treaty is the human rights treaty with the most
numbers of ratifications; as of July 2004, 192 states were parties to the Convention.

Under the Convention on the Rights of the Child, a child is any person below the age of 18, unless under
applicable laws, majority is attained earlier (Article 1). The Convention sets out the principle of non-
discrimination (Article 2) and that the best interest of the child should be a primary consideration in all
actions concerning children (Article 3). States must undertake measures to implement the rights in the
Convention (Article 4), and respect the rights and duties of parents or extended family to give appropriate
guidance and direction in the exercise by the child of the rights in the Convention (Article 5). The
Convention sets out civil and political rights as well as economic, social and cultural rights: the right to life
(Article 6); the right to a name and nationality (Article 7); the right to preserve one’s identity (Article 8); the
freedom of expression, opinion, thought, conscience and religion (Articles 12, 13 and 14); freedom of
association and assembly (Article 15); the right to privacy (Article 16); the right to receive information
(Article 17); the right to health (Article 24); the right to benefit from social security (Article 26); the right to
an adequate standard of living (Article 27); the right to education (Article 28); the right to rest and to
participate in cultural life (Article 31); freedom from torture (Article 37); and the right to due process
(Article 40). The Convention also contains provisions prohibiting separation from parents except in
exceptional circumstances (Article 9), and the obligation of states parties to aid family reunification (Article
10). States parties undertake to take special measures: to combat illicit transfer and non-return of children
abroad (Article 11); to protect children from abuse or neglect, and afford special protection if they are
deprived of their families (Articles 19 and 20); to ensure that in systems of adoption, the best interest of the
child is paramount (Article 21); to protect children from economic exploitation and hazardous work (Article
32); to protect children from sexual exploitation and abuse (Article 34); to protect children from drug abuse
(Article 33); to prevent trafficking in children and all exploitation (Articles 35 and 36); to ensure that
children under 15 do not take part in armed conflict (Article 38); and to provide rehabilitative care to
children that need it (Article 39). In addition, special protection is set out for particular groups, such as
refugee children, handicapped and disabled children and minority - and indigenous children (Articles 22, 23
and 30).

Article 43 of the CRC establishes a Committee on the Rights of the Child. The Committee held its first
meeting in October 1991. The Committee was originally composed of ten experts, but currently consists of
103 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

18 experts elected for a four-year term. The election takes geographical distribution as well as principal legal
systems into account. The Committee meets three times a year in Geneva, each time for three weeks. Its task
is the supervision of the implementation of the CRC, mainly through a reporting mechanism.

The only supervisory mechanism established by the CRC is the reporting system under Article 44 of the
CRC. The initial report is to be submitted within two years after the entry into force of the Convention for
the state party concerned, and thereafter every five years. The Committee reports every two years to the
UNGA and may submit suggestions and general recommendations to it. At its first session, the Committee
formulated general guidelines regarding the form and content of initial reports (see UN Doc. A/47/41). This
report has to include, inter alia, the definition of a child under national law, application of general principles,
and paragraphs on family environment and alternative care, basic health, education and special protection
measures.

On 25 May 2000, two additional Optional Protocols to the Convention on the Rights of the Child were
adopted; on the involvement of children in armed conflict and on the sale of children, child prostitution and
child pornography.

The Optional Protocol to the CRC on the involvement of children in armed conflict entered into force on
12 February 2002. As of July 2004, 73 states were parties to this treaty. The Protocol prohibits governments
and other groups from recruiting people under the age of 18 to the armed forces. It requires that countries
raise the minimum recruiting age above the age set by the Convention on the Rights of the Child; do
everything possible to keep people under the age of 18 from direct participation in hostilities; take
precautions against the voluntary recruitment of people under the age of 18; and report to the CRC
Committee on their compliance with the provisions of the Convention and the Protocol.

The Second Optional Protocol to the CRC on the sale of children, child prostitution and child pornography
entered into force on 18 January 2002. As of July 2004, 79 states were parties to this treaty. It supplements
the Convention on the Rights of the Child with detailed requirements for criminalising violations of
children’s rights in relation to the sale of children, child prostitution and child pornography. The Protocol
defines the offences ‘sale of children’, ‘child prostitution’ and ‘child pornography’. It sets standards for
treating violations under domestic law, not just as they relate to offenders, but also as regards preventive

104 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

efforts and the protection of victims. It also gives a framework for increased international co-operation in
these areas, in particular for prosecuting offenders.

THE CMW AND THE COMMITTEE ON THE PROTECTION OF THE RIGHTS OF ALL
MIGRANT WORKERS AND MEMBERS OF THEIR FAMILIES

The International Convention on the Protection of the Rights of All Migrant Workers and Members of
their Families (CMW) was adopted by UNGA Resolution 45/158 of 18 December 1990. Thirteen years
passed before it entered into force on 1 July 2003. As of July 2004, 26 states were parties to the Convention.

Part I of the Convention sets out definitions and Part II sets out the principle of non-discrimination. Part III
contains the following substantive rights: the freedom of movement (Article 8); the right to life (Article 9);
prohibition of torture (Article 10); prohibition of slavery or forced labour (Article 11); freedom of thought,
conscience and religion (Article 12); freedom of opinion and information (Article 13); privacy (Article 14);
property (Article 15); liberty and security (Article 16); humane treatment under detention and fair trial
(Article 17); equality before the courts (Article 18); nullum crimen, nulla poena sine previa lege (Article 19);
the right not to be imprisoned for debt (Article 20); the right to consular assistance (Article 23); the right to
be recognised before the law (Article 24); freedom of association (Article 26); social security and medical
care (Articles 27 and 28); cultural identity (Article 31); the right to transfer earnings and savings (Article 32).
In addition, the Convention stipulates that it is prohibited to destroy identity documents of migrant workers
(Article 21) and sets out rules governing the expulsion of migrant workers and their families (Article 22).
Furthermore, it contains special provisions on children of migrant workers, establishing that they must have
the right to a name, to registration of birth and to a nationality (Article 29), as well as the right to education
(Article 30). Finally, the Convention establishes that migrant workers must not receive treatment less
favourable than nationals in respect of remuneration (Article 25), and that they have the right to be informed
about their rights under the Convention.

The Convention is monitored by the Committee on the Protection of the Rights of All Migrant Workers and
Members of Their Families. The Committee consists of ten experts in accordance with the procedure set
forth in the Convention (Article 72). The first meeting of states parties for the election of the members of the
Committee was held on 11 December 2003. When 41 states become parties to the Convention, the number of
experts sitting on the Committee will be increased from 10 to 14.

105 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

The Convention seeks to prevent and eliminate the exploitation of migrant workers throughout the entire
migration process by providing a set of binding international standards to address the treatment, welfare and
human rights of both documented and undocumented migrants, as well as the obligations and responsibilities
on the part of sending and receiving states. In particular, it seeks to put an end to the illegal or clandestine
recruitment and trafficking of migrant workers and discourage the employment of migrant workers in an
irregular or undocumented situation.

The CMW supervisory mechanisms are the following:

a) Reporting mechanism (Article 72). States parties accept the obligation to report on the steps they have
taken to implement the Convention within one year of its entry into force for the state concerned, and
thereafter every five years. The reports are expected to indicate problems encountered in implementing the
Convention, and to provide information on migration flows. After examining the reports, the Committee will
transmit such comments as it may consider appropriate to the state party concerned.

b) Inter-state communications (Article 77). A state party may recognise the competence of the Committee to
receive and consider communications from one state party alleging that another state party is not fulfilling its
obligations under the Convention. Such communications may be received only from states parties that have
recognised this competence. The Committee will deal with a matter referred to it in this way only after all
available domestic remedies have been exhausted, and may propose its good offices in an effort to reach a
friendly solution. This procedure requires 10 declarations by states parties to enter into force. In July 2004,
no state party had made such a declaration.

c) Individual communications (Article 77). A state party may recognise the competence of the Committee to
receive and consider communications from or on behalf of individuals within that state’s jurisdiction who
claim that their rights under the Convention have been violated. Such communications may be received only
if they concern a state party that has recognised this competence. If the Committee is satisfied that the matter
has not been, and is not being, examined in another international context, and that all domestic remedies
have been exhausted, it may call for explanations, and express its views. This procedure requires 10
declarations by states parties to enter into force. As of July 2004, no state party has made such a declaration.

Supervisory Body Supervisory Mechanisms

106 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

ICESCR Committee on Economic, Social and Cultural Rights. Composed of State reports every 5 years
18 experts. (Article 16 (1))

ICCPR Human Rights Committee. Composed of 18 experts (Article 28). State reports every 5 years
(Article 40)

Inter-state complaints
(Article 41)

Individual complaints
(First Optional Protocol)

CEDAW Committee on the Elimination of Discrimination against Women State reports every 4 years
Composed of 23 experts (Article 17). (Article 18)

Individual complaints
(Optional Protocol)

Inquiry procedure
(Optional Protocol)

CERD Committee on the Elimination of Racial Discrimination. Composed State reports every 2 years
of 18 experts (Article 8). (Article 9)

Individual complaints
procedure (Article14)

Inter-state complaints
(Article 11)

CRC Committee on the Rights of the Child. Composed of 18 experts State reports every 5 years
(Article 43). (Article 44)

CAT Committee against Torture. Composed of 10 experts (Article 17). State reports every 4 years
(Article 19)

107 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

Inquiry procedure (Article

20)

Inter-state complaints
(Article 21)

Individual complaints
(Article 22)

CMW Committee on the Protection of the Rights of All Migrant Workers State reports every 5 years
and Members of Their Families. Composed at present of 10 experts (Article 73)
(Article 72).
Inter-state complaints
(Article 76)

Individual complaints
(Article 77)

CHARTER-BASED PROCEDURES

This system of supervision has no basis in a specific human rights treaty. The procedures were established by
resolutions of the Economic and Social Council (ECOSOC) and, therefore, are ultimately based on the
Charter of the United Nations, thus their identification as charter-based procedures.

From the moment of its establishment the United Nations received complaints (communications) of
violations of human rights from individuals, groups and non-governmental organisations. In an initial phase,
the member states of the United Nations did not empower the Organisation to deal with such complaints. In
1959, the Economic and Social Council adopted a resolution consolidating the situation as it had grown since
1947 (ECOSOC Resolution 728 F (XXVIII) of 30 July 1959). The Secretary-General of the United Nations
was requested to compile and distribute two lists to the Commission on Human Rights: the first a non-
confidential list of all communications received dealing with the general principles involved in the
promotion and protection of human rights; and a second confidential list, furnished in private meeting, giving
a brief indication of the substance of other communications. A particular state referred to in such a
communication was to receive a copy of it and requested to reply to it, if it wished to do so. From a victim’s
108 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

perspective, however, this procedure produced limited relief. The ECOSOC resolution only requested the
Secretary-General ‘to inform the writers of all communications concerning human rights that their
communications will be handled in accordance with this resolution, indicating that the Commission has no
power to take any action in regard to any complaints concerning human rights’.

In the 1960s significant changes took place in the attitude of the United Nations and its member states with
respect to dealing with violations of human rights. In 1966, the General Assembly invited the ECOSOC to
give urgent consideration to ways and means of improving the capacity of the United Nations to put a stop to
violations of human rights wherever they might occur.

Following this invitation, it only took eight months before the ECOSOC approved the arrangements set up
by the UN Commission on Human Rights in which it asked its Sub-Commission on Prevention of
Discrimination and Protection of Minorities (now Sub-Commission on the Promotion and Protection of
Human Rights) to prepare a report containing information, from all available sources, on human rights
violations. It also asked to bring to its attention any situation that revealed a consistent pattern of human
rights violations in any country, including policies of racial discrimination, segregation and apartheid, with
particular reference to colonial and dependent territories. Furthermore, it approved the request by the
Commission on Human Rights for authority for itself and its Sub-Commission on Prevention of
Discrimination and Protection of Minorities (now Sub-Commission on the Promotion and Protection of
Human Rights) to examine, in public, information contained in communications that was relevant to gross
violations of human rights and authority to make a thorough study and investigation of situations which
revealed a consistent pattern of violations of human rights. The decisions of the ECOSOC being embodied in
Resolution 1235, the procedure has subsequently become known as the 1235 procedure.

1235 PROCEDURE

ECOSOC Resolution 1235 (XLII) of 6 June 1967 authorised the UN Commission on Human Rights and its
Sub-Commission to study consistent patterns of human rights violations and to investigate gross violations of
human rights. In practice, the 1235 procedure has evolved into an annual public debate on human rights
violations anywhere around the world. Not only government representatives (as members of the UN
Commission on Human Rights or as observers) take part in this debate, but also a very important role is

109 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

played by non-governmental organisations, providing important information on human rights situations and
actively taking part in the discussions.

Towards the end of the 1970s and the beginning of the 1980s, on the basis of the 1235 procedure, the UN
Commission on Human Rights gradually developed a practice of appointing special rapporteurs, special
representatives, experts, working groups and other envoys competent to study human rights violations in
specific countries or competent to study particular human rights violations all over the world. These special
experts and working groups have become known as ‘country-procedures’ and ‘thematic procedures’.

1503 PROCEDURE

ECOSOC Resolution 1503 (XLVIII) of 27 May 1970 came into being after a lengthy period of preparation
by the ECOSOC and by the UN Commission on Human Rights. The resolution creates a confidential
procedure to deal with communications on violations of human rights. Only communications indicating ‘a
consistent pattern of serious and reliably documented violations of human rights’ qualify for consideration
under the 1503 procedure. Other communications or copies of 1503 communications are referred to other
procedures if the Secretariat considers there are good reasons for doing so. The 1503 procedure is not
primarily intended to provide satisfaction for individual complainants, but intends to take action in respect of
systematic violations of human rights designated as a ‘situation’.

The 1503 confidential communications procedure was reformed during the fifty-sixth session of the UN
Commission on Human Rights in 2000. Pursuant to ECOSOC Resolution 2000/3 of 16 June 2000, a
Working Group is designated on a yearly basis by the Sub-Commission on the Promotion and Protection of
Human Rights from among its members. It is geographically representative of the five regional groups and
appropriate rotation is encouraged. This Working Group on Communications meets annually immediately
after the Sub-Commission regular session to examine communications (complaints) received from
individuals and groups alleging human rights violations, as well as any government responses. Manifestly ill-
founded communications are screened out by the Secretariat and are not sent to the governments concerned,
nor submitted to the Working Group on Communications.

Where the Working Group identifies reasonable evidence of a consistent pattern of gross violations of human
rights, the matter is referred to the Working Group on Situations, which meets at least one month prior to the
Commission to examine the particular situations forwarded to it by the Working Group on Communications,
110 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

and to decide whether or not to refer any of these situations to the Commission. Subsequently, it is for the
Commission to take a decision concerning each situation brought to its attention in this manner.

THE MANDATES OF SPECIAL RAPPORTEURS, REPRESENTATIVES, EXPERTS AND

WORKING GROUPS

The mandates given to special rapporteurs, special representatives, experts and working groups are either to
examine, monitor and publicly report on human rights situations in specific countries or territories (known as
country mechanisms or mandates) or on major phenomena of human rights violations in various parts of the
world (known as thematic mechanisms or mandates). In carrying out their mandates, special rapporteurs and
other mandate-holders routinely undertake country missions and report back to the UN Commission on
Human Rights. These missions take place at the invitation of the country concerned. The special rapporteurs
are free to use all reliable sources available to them to prepare their reports, and much of their research is
done in the field, where they conduct interviews with authorities, NGOs and victims, gathering on-site
evidence whenever possible. The special rapporteurs and working groups report annually to the Commission
on Human Rights, with recommendations for action. Their findings are also used by the treaty-bodies in their
work, especially in evaluating state reports.

EXAMPLES OF ‘SPECIAL PROCEDURES’

COUNTRY MANDATES

Special Representative of the Commission on Human Rights on the situation of human rights in Bosnia and
Herzegovina and the Federal Republic of Yugoslavia. Special Rapporteur of the Commission on Human
Rights on the situation of human rights in Burundi Special Representative of the Secretary-General on the
situation of human rights in Cambodia. Special Rapporteur of the Commission on Human Rights on the
situation of human rights in the Democratic Republic of the Congo (ex-Zaire).

Independent Expert appointed by the Secretary-General on the situation of human rights in Haiti. Special
Rapporteur of the Commission on Human Rights on the situation of human rights in Iraq.

111 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

Independent Expert on technical co-operation and advisory services in Liberia.Special Rapporteur of the
Commission on Human Rights on the situation of human rights in Myanmar.

Special Rapporteur of the Commission on Human Rights on the situation of human rights in the Palestinian
territories occupied since 1967.

Independent Expert appointed by the Secretary-General on the situation of human rights in Somalia. Special
Rapporteur of the Commission on Human Rights on the situation of human rights in the Sudan.

THEMATIC MANDATES

Special Rapporteur on the question of torture.

Working Group on arbitrary detention.

Special Rapporteur of the Commission on Human Rights on the sale of children, child prostitution and child
pornography.

Independent expert of the Commission on Human Rights on the right to development.

Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical
and mental health.

Working Group on enforced or involuntary disappearances.

Independent Expert of the Commission on Human Rights to examine the existing international criminal and
human rights framework for the protection of persons from enforced or involuntary disappearance.

Special Rapporteur of the Commission on Human Rights on the right to education.

Special Rapporteur of the Commission on Human Rights on extrajudicial, summary or arbitrary executions.

Special Rapporteur of the Commission on Human Rights on the right to food.

Special Representative of the Secretary-General on the situation of human rights defenders.

112 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

Special Rapporteur of the Commission on Human Rights on adequate housing as a component of the right to
an adequate standard of living.

Special Rapporteur of the Commission on Human Rights on the situation of human rights and fundamental
freedoms of indigenous people.

Special Rapporteur of the Commission on Human Rights on the independence of judges and lawyers.

Special Rapporteur of the Commission on Human Rights on the promotion and protection of the right to
freedom of opinion and expression.

Special Rapporteur of the Commission on Human Rights on freedom of religion or belief.

Representative of the Secretary-General on internally displaced persons.

Special Rapporteur of the Commission on Human Rights on use of mercenaries as a means of impeding the
exercise of the right of peoples to self-determination.

Special Rapporteur of the Commission on Human Rights on the human rights of migrants.

Independent expert of the Commission on Human Rights to examine the question of a draft optional protocol
to the International Covenant on Economic, Social and Cultural Rights.

Independent expert of the Commission on Human Rights on human rights and extreme poverty.

Special Rapporteur of the Commission on Human Rights on contemporary forms of racism, racial
discrimination, xenophobia and related intolerance.

Working group of five independent experts on people of African descent to study the problems of racial
discrimination faced by people of African descent.

Working Group on the effective implementation of the Durban Declaration and Programme of Action.

Independent expert of the Commission on Human Rights on structural adjustment policies and foreign debt.

113 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

Special Rapporteur of the Commission on Human Rights on the adverse effects of the illicit movement and
dumping of toxic and dangerous products and wastes on the enjoyment of human rights.

Special Rapporteur of the Commission on Human Rights on violence against women, its causes and
consequences.

COMMUNICATIONS AND ‘URGENT ACTION’ PROCEDURE UNDER EXTRA-

CONVENTIONAL MECHANISMS

Unlike treaty-bodies, extra-conventional country and thematic mechanisms have no formal complaints
procedures. The activities of the country and thematic mechanisms are based on communications received
from various sources (the victims or their relatives, local or international NGOs) containing allegations of
human rights violations. Such communications may be submitted in various forms (e.g. letters, faxes, cables)
and may concern individual cases or contain details of situations of alleged violations of human rights.

Occasionally, communications addressed to the extra-conventional mechanisms contain information to the

effect that a serious human rights violation is about to be committed (e.g. imminent extrajudicial execution,
fear that a detained person may be subjected to torture, fear that a detainee may die as a result of an
unattended disease or a ‘disappearance’ has occurred). In such cases, the Special Rapporteur or Chairperson
of a working group may address a message to the authorities of the state concerned by fax or telegram,
requesting clarifications regarding the case and appealing to the government to take the necessary measures
to guarantee the rights of the alleged victim. Such appeals are primarily of a preventive nature and are
resorted to on a regular basis by certain thematic mechanisms, in particular the Special Rapporteurs on
extrajudicial, summary or arbitrary executions and on torture, and the Working Groups on Enforced or
Involuntary Disappearances and on Arbitrary Detention. However, other thematic and country mechanisms
occasionally follow a similar procedure. In some instances, when the circumstances of the case justify such
an approach, an appeal may be addressed by several special rapporteurs and/or working groups jointly. The
criteria for urgent interventions vary from one mandate to another and are described in the methods of work
of the respective mechanisms.

ACCESS TO WORKING GROUPS, SPECIAL RAPPORTEURS AND EXPERTS

114 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

The study of individual communications has become the main focus of the work of the experts in charge of
special procedures, and is subsequently reflected in their reports. As a result, the Working Groups and
Special Rapporteurs have felt compelled to include, among their methods of work, appropriate guidelines to
aid potential complainants.

The guidelines designed by the Working Group on Enforced or Involuntary Disappearances (WGEID), and
the Working Group on Arbitrary Detention (WGAD), can be considered as examples of best practice. These
guidelines are published in WGAD reports and are also posted on the website of the Office of the High
Commissioner for Human Rights (OHCHR) under the title ‘Communications/Complaints Procedures’
(http://www.unhchr.ch/html/menu2/complain.htm#conv). This site also contains the guidelines for the
Special Rapporteurs on extrajudicial, summary or arbitrary executions; violence against women; the
promotion and protection of the right to freedom of opinion and expression; sale of children, child
prostitution, and child pornography; the question of torture; as well as guidelines for the Special
Representative of the Secretary-General on human rights defenders.

The use of these guidelines is not mandatory for complaints to be admissible. It is important to note that
unlike in other mechanisms, the exhaustion of domestic remedies is not a requirement for the formulation of
a complaint. In general, each communication should contain the following minimum information:

• Identification of the alleged victim: Under this heading it would be appropriate to present the age and
sex of the alleged victim, and whether she/he belongs to a special group (migrant worker, child,
minority, indigenous peoples etc.).

• Identification of the alleged perpetrator: In outlining the circumstances of the violation, it is

important to provide evidence of the link between the action of the perpetrator and the ensuring
state responsibility (to distinguish it from common crime).

• Identification of the complainant (person or organisation): Except for WGEID & WGAD, the
experts do not check the relationship between the victim and the complainant. Rather, the
representation is presumed as fulfilling the characteristics of an authentic actio popularis.

• Detailed description of the circumstances surrounding the violation: Under this heading it would be
appropriate to submit documents as evidence. This could be in the form of forensic or police
reports, and should also include a list of steps taken at national level to deal with the complaint.

115 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

Written communications should be addressed to the OHCHR, with an indication of the procedure that is to
be invoked. Failing this, the staff of the Office decides what mechanism is appropriate to deal with the
complaint. In this context it is worth noting that the disposition of the thematic mechanisms makes them
more likely to take action on individual cases. If the complaint concerns a state that is under examination by
a geographic mandate, the staff of the OHCHR is required to transmit the information to that organ also,
though it is advisable (to guarantee the participation of more than one organ) that the complainant identifies
other organs that might be invoked in relation to the communication.

When the complainant believes that the case should be processed according to the rules of urgent procedure,
the words ‘urgent action/appeal’ should appear at the beginning of the complaint. It is also important that a
clear and concrete synopsis precede any communication. This synopsis should, at the very least, be written in
one of the working languages of the Secretariat, i.e. English, French or Spanish; or in the case of the
geographic mandates, in the language of the country concerned. Elvira Dominguez

IMPLEMENTATION

In general, the UN has a substantial role to play in the field of implementation in terms of strengthening
compliance with human rights and maintenance of the rule of law.

RESEARCH AND INFORMATION SERVICES

The UN Commission on Human Rights has commissioned studies, inter alia, on apartheid and the rights of
detainees. It has set up numerous working groups, or asked the ECOSOC to do so (see table above). In the
field of studies and research, a substantial role is played by the Sub-Commission, which is constantly in the
process of elaborating studies on human rights issues.

Another important role in the implementation field carried out by the Commission is the dissemination of
information on human rights issues, through the production and distribution of human rights texts and
educational materials. In this context, many national institutions working for the promotion of human rights
are supported by the Office of the High Commissioner for Human Rights (OHCHR).

ASSISTANCE

116 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

An Advisory Services Programme was established in 1953 to assist governments in the improvement of their
domestic human rights situation. In February 1998, the Office of the High Commissioner for Human Rights
established an Advisory Services and Field Activities Methodology Team, which has overall responsibility
for the technical co-operation programme within the Activities and Programmes Branch of the Office.
Assistance for the establishment and strengthening of national human rights institutions is a major
component of the technical co-operation programme, and is provided, in particular, by the UN Special
Adviser on National Institutions, Regional Arrangements and Preventive Strategies. The activities in support
of national institutions can be broadly divided into two areas: the provision of practical advice and assistance
to those involved in the establishment of new national institutions or the strengthening of existing ones, and
facilitating international and regional meetings of national institutions. In recent years, the OHCHR has
implemented activities on national institutions, including advisory missions by the High Commissioner’s
Special Adviser on National Institutions, Regional Arrangements and Preventive Strategies and/or staff
members of the Office to, inter alia, Cambodia, Canada, Ecuador, Fiji, Guyana, Jamaica, Jordan, Kenya,
Mexico, New Zealand, Nepal, the Philippines, Sierra Leone, St. Lucia, South Africa, Sweden and Thailand.

Over the years, the UNCHR has taken the initiative to set up various Voluntary Funds to facilitate the
functioning of standard-setting bodies, to assist victims of violations, and to promote human rights,
including:

• 1981: Voluntary Fund for Victims of Torture. It is being used to support initiatives of UN member
states and NGOs who assist victims of torture.

• 1985: Voluntary Fund for Indigenous Populations. This fund enables representatives of indigenous
populations to attend relevant meetings.

• 1987: Voluntary Fund for Advisory Services, now called Voluntary Fund for Advisory Services and
Technical Assistance in the Field of Human Rights (Voluntary Fund for Technical Co-operation).
It aims at complementing and strengthening support to governments who promote human rights. In
fact, it has developed from the Advisory Services Programme, focusing on larger projects than
possible under the original Advisory Services Programme and is to be implemented at the request
of the government concerned.

117 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

• 1991: Voluntary Fund on Contemporary Forms of Slavery. It enables victims of slavery practices to
attend and testify before the Working Group on Contemporary Forms of Slavery (a working group
of the Sub-Commission).

• 1993: Voluntary Fund to Support the Activities of the Centre for Human Rights (presently the Office
of the High Commissioner for Human Rights). It is an umbrella fund that was established in order
to meet the increasing demand for activities by the Centre for Human Rights, as well as its own
requirements in terms of staff and computer equipment.

• 1993: Trust Fund for the International Decade of the World’s Indigenous Peoples. This trust fund was
established by the UNGA to assist the funding of projects, which promote the goals of the Decade.

In addition, several funds have been created in relation to field activities of the High Commissioner.

UNITED NATIONS SPECIALISED AGENCIES AND HUMAN RIGHTS

The Specialised Agencies of the United Nations are functional intergovernmental organisations affiliated
with the UN. They are analogous bodies, working in such diverse areas as health, agriculture, international
aviation and meteorology. Related to the UN through special agreements, the specialised agencies co-
ordinate their work with the UN, but are separate, autonomous organisations. Several Specialised Agencies
of the United Nations are concerned with human rights issues, such as the World Health Organisation
(WHO), the Food and Agriculture Organisation (FAO), and the United Nations Human Settlement
Programme (UN-HABITAT). Only one UN Specialised Agency will be dealt with in detail here: the
International Labour Organisation (ILO). The relevant section will be followed by short notes on the United
Nations Educational, Scientific and Cultural Organisation (UNESCO) and the UN High Commissioner for
Refugees (UNHCR). Throughout the Handbook other specialised agencies, such as UNICEF and FAO are
also going to be examined.

INTERNATIONAL LABOUR ORGANISATION (ILO)

The International Labour Organisation (ILO) was founded in 1919. The initial text of the ILO Constitution
formed Part XIII of the Treaty of Versailles and was amended and expanded in 1946. The ILO was the first
‘specialised agency’ to be given that status by the UN, under an agreement with the ECOSOC. It focuses on
those human rights related to the right to work and to working conditions, including the right to form trade

118 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

unions, the right to strike, the right to be free from slavery and forced labour, equal employment and training
opportunities, the right to safe and healthy working conditions, and the right to social security. The ILO also
provides protection for vulnerable groups, having adopted standards on child labour, employment of women,
migrant workers, and indigenous and tribal peoples. As of July 2004 the ILO had 177 member states.

Uniquely, the ILO functions in a tripartite fashion: its organs are composed not only of representatives of
governments, but also of representatives of workers’ and employers’ organisations. The main organ of the
ILO is the International Labour Conference, the plenary assembly of the ILO. The Labour Conference meets
once a year. Each ILO member state sends four delegates to the conference: two government representatives,
one workers’ representative, and one employers’ representative.

STANDARDS

The ILO establishes international standards in the field of labour relations and the protection of employees,
through the adoption of conventions and recommendations. As of July 2004, some 7,200 ratifications had
been made regarding the different ILO conventions.

The International Labour Conventions are open to ratification by ILO member states. They are international
treaties that are binding on the states that are parties to them. These countries voluntarily undertake to apply
their provisions, to adapt their national laws and practices to the requirements of the conventions, and to
accept international supervision.

Several important instruments have taken the form of what is called ‘promotional conventions’. The states
that ratify these conventions undertake to pursue their objectives, within time limits and by methods to be
determined according to national circumstances, which, if they so wish, may be developed with the
assistance of the International Labour Office. These promotional instruments contain generally accepted and
broadly defined economic and social development objectives, in areas that lend themselves particularly well
to large-scale technical co-operation projects. By assisting governments in these areas, the International
Labour Office co-operates actively with them in seeking out and implementing the most appropriate
measures to give effect to the relevant standards.

119 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

International labour recommendations do not belong to the collection of international treaties. They stipulate
non-binding guidelines that may independently cover a particular subject, supplement the provisions
contained in conventions, or spell them out in greater detail.

Approximately two-thirds of the ratifications to the 185 ILO conventions have been made by the
governments of developing countries. The most important conventions in the field of human rights are the
conventions on:

• Forced Labour (ILO 29; 1930; by July 2004, ratified by 163 states).

• Freedom of Association and Protection of the Right to Organise (ILO 87; 1948; by July 2004,
ratified by 142 states).

• Right to Organise and Bargain Collectively (ILO 98; 1949; by July 2004, ratified by 154 states).

• Equal Remuneration (ILO 100; 1951; by July 2004, ratified by 161 states).

• Abolition of Forced Labour (ILO 105; 1957; by July 2004, ratified by 161 states).

• Discrimination (Employment and Occupation) (ILO 111; 1958; by July 2004, ratified by 160 states).

• Minimum Age (ILO 138; 1973; by July 2004, ratified by 134 states).

• Worst Forms of Child Labour (ILO 182; 1999; by July 2004, ratified by 150 states).

• ILO Declaration on Fundamental Principles and Rights at Work (adopted in June 1998).

SUPERVISION

Certain basic provisions of the existing supervisory system were included in the original Constitution of the
ILO. The system has, however, been substantially developed over the years. Some of these developments
were brought about by amendments to the Constitution. Other important developments resulted from
decisions of the Governing Body of the ILO or the International Labour Conference.

Presently, the ILO has a range of mechanisms at its disposal to ensure compliance with the standards the
organisation has established. These mechanisms include: a) obligatory reporting procedures, b) complaints
procedures and c) inquiries and studies procedures.

REPORTING PROCEDURES

120 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

There are three categories of reports that ILO member states have to submit to the Director-General of the
ILO under the organisation’s Constitution (Articles 19 and 22). The reports relate to:

a) Information concerning the measures taken to bring the conventions and recommendations to the attention
of the competent authorities, no later than twelve or eighteen months after the adoption of those texts by the
International Labour Conference. These reports have to be submitted annually.

b) The ratification of conventions or reasons for failing to do so. The relevant rules are designed to secure
more frequent reporting for certain conventions, particularly those concerning basic human rights (reports
are required every two years). The rules are also applicable in the initial period following ratification, and
whenever there are significant problems of implementation, or when comments are received from
employers’ or workers’ organisations. These reports must be drafted on the basis of detailed forms
established by the Governing Body of the ILO.

c) For non-ratified conventions and recommendations, reports at intervals requested by the Governing Body,
concerning national law and practice, showing the extent to which the state concerned has given effect or
intends to give effect to those texts, and stating the difficulties which prevent or delay the ratification of the
convention concerned or the application of the recommendation in question.

Governments are also obliged to communicate copies of their reports to national employers’ and workers’
organisations (Article 23(2) of the Constitution). Any observations made by these organisations must be
communicated to the ILO by governments, which may also attach their own comments. More than 2,000
reports are submitted by governments each year.

Two bodies are entrusted with the examination of the above-mentioned reports: a) the Committee of Experts
on the Application of Conventions and Recommendations which is an independent body established in 1927;
and b) the Conference Committee on the Application of Conventions and Recommendations, a body
composed of representatives of governments, employers and workers set up at the International Labour
Conference at each of its annual sessions. The supervisory bodies encounter difficulties at two different
stages: a) when evaluating national situations and b) when bringing those situations into conformity with
international standards.

COMPLAINT PROCEDURES

121 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

The ILO Constitution provides for three forms of complaints mechanisms that may set in motion contentious
procedures relating to the application of a ratified convention:

a) The complaint procedure is provided for in Articles 26 to 34 of the Constitution, and is the ILO’s most
formal procedure of supervision. Such a complaint may be lodged by any ILO member state or by the
Governing Body of the ILO. The Governing Body may do so either on its own initiative or on receipt of a
complaint from a delegate to the International Labour Conference. The Governing Body may, on the basis of
written complaints, appoint on an ad hoc basis a Commission of Inquiry (Article 26) to make a thorough
examination of the matter. This Commission presents a report containing its findings on all questions of fact
relevant to determining the issue between the parties, and its recommendations concerning steps that should
be taken to meet the complaint. The governments concerned are required to state, within three months,
whether or not they accept the recommendations, and if not, whether they wish to refer the complaint on a
voluntary basis to the International Court of Justice to provide a final judgement in the dispute between the
government concerned and the Commission. Because the procedure is cumbersome, it is not in use.

b) The representations procedure is provided for by Articles 24 and 25 of the ILO Constitution.
Representations may be made by employers’ and workers’ organisations against a state that, in their opinion,
has failed to secure in any respect the effective observance within its jurisdiction of a convention to which it
is a party. The representation has to be examined first by a Committee of three members of the Governing
Body. This Committee decides on the admissibility of the representation, after which it may decide to invite
the government concerned to make a statement. In the event of an unsatisfactory reply, the Governing Body
has the right to publish the representation and the government statement, if any, in reply to it. Compared to
other procedures the representations procedure has most often been invoked.

c) In view of the importance of freedom of association, a special procedure was established by the ILO in
1950 following an agreement with the ECOSOC. By its Resolution 277(X) (1950) on trade union rights, the
ECOSOC formally accepted the ILO’s services in this matter on behalf of the UN. The procedure is founded
on the submission of complaints that may be made by governments or by employers’ or workers’
organisations. It may be applied even against states that have not ratified the Conventions on Freedom of
Association (ILO 87 and ILO 98). The machinery comprises two bodies:

122 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

The Committee on Freedom of Association is appointed by the Governing Body of the ILO from among its
members. The complaints - submitted by governments, employers’ and workers’ organisations - are
examined by the Committee that is chaired by an independent chairman. Use can also be made of the so-
called ‘direct contacts’ procedure regarding these complaints. This procedure has been developed to enhance
the effectiveness of the working methods of the ILO, since no procedure in the ILO allowed for direct
contact with the government concerned. In practice, it can lead to a visit in loco upon initiative of the
Committee. Over 2,000 complaints have been dealt with so far by means of this procedure (July 2004). The
findings (conclusions and recommendations) of the Committee are submitted to the Governing Body.

The Fact-Finding and Conciliation Commission on Freedom of Association is made up of independent

persons appointed by the Governing Body. The Commission essentially has a fact-finding role, entrusted
with the task of examining any complaint concerning alleged infringements of trade union rights that may be
referred to it by the Governing Body. It may, however, also examine, in conjunction with the government
concerned, the questions referred to it in order to settle difficulties by way of agreement. The Commission
decides on a case by case basis in its procedure, which generally includes the hearing of witnesses and a visit
to the country concerned.

All these complaints mechanisms include provisions to ensure implementation of the final decision. The
most important of these provisions, publication of the decision, is common to all of them. It has turned out to
be an effective tool, even if legally and formally it does not appear very severe.

STUDIES, INQUIRIES AND THE ARTICLE 19 PROCEDURE

The ILO also employs the method of special inquiries and studies. For example, in the 1950s, two ILO
commissions of independent experts conducted inquiries into new systems of forced labour which had
developed in some parts of the world. However, such procedures are not used frequently.

Mention should also be made of the Article 19 procedure. Article 19(5) of the ILO Constitution stipulates
that in case an ILO member state does not ratify a convention, it is obliged, nevertheless, to report, at
appropriate intervals as requested by the Governing Body, on its implementation of the convention.

IMPLEMENTATION

123 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

Since the beginning of the 1960s, the membership of the ILO has grown enormously. After 1960, most of the
new members were newly independent countries, almost all of them developing countries. Generally, their
labour administrations were not well prepared to deal with all the questions arising out of membership of the
ILO and they looked to the organisation to provide advice and assistance. The International Labour Office
accordingly found it necessary to intensify its activities in this field, in addition to fostering technical co-
operation aimed at improving labour administration and social legislation. The range of measures available
today includes:

a) Direct contacts and less formal advisory missions.

b) The appointment of regional advisers and other forms of advice on questions relating to international
labour standards, seminars, training and manuals, measures aimed at securing more active involvement of
employers’ and workers’ organisations, and the promotion of tripartite consultations at the national level on
questions concerning ILO standards.

c) Regional discussions, especially during regional conferences, concerning the ratification and
implementation of ILO standards, and measures aimed at closer integration of standards in operational
activities. ILO regional meetings have repeatedly emphasised the value of these measures and called for their
intensification.

Since the 1970s, the ILO has been able to establish a large programme of technical co-operation in the social
and employment field. Much effort has been undertaken to integrate the promotion of its labour standards
into its technical co-operation programme. The ILO approach is generally considered one of the most
encouraging examples of what is called a ‘positive approach’ to the implementation of human rights
standards. In addition, programmes have been developed that aim at directly limiting and finally eliminating
practices, which are contrary to human rights standards. A typical example is the Programme against Child
Labour.

UNITED NATIONS EDUCATIONAL, SCIENTIFIC AND CULTURAL ORGANISATION

(UNESCO)

The United Nations Educational, Scientific and Cultural Organisation (UNESCO) was created in 1945:

124 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

[T]o contribute to peace and security by promoting collaboration among the nations through education,
science and culture in order to further universal respect for justice, for the rule of law, human rights and
fundamental freedoms which are affirmed for the peoples of the world without distinction of race, sex,
language or religion by the Charter of the United Nations. (Article 1 of the Statute).

UNESCO’s mandate to promote education, science and culture includes human rights. The institution’s main
task in relation to human rights is to promote teaching and research through the adoption of conventions and
recommendations on human rights related to its subject areas.

STANDARDS

Over the years, UNESCO has developed a series of standards, mainly related to Articles 19, 26 and 27 of the
Universal Declaration of Human Rights (freedom of speech, the right to education and the right to cultural
experience and protection). UNESCO’s best-known instruments are:

• The 1960 UNESCO Convention Against Discrimination in Education and its 1962 additional
Protocol (revised 1978);

• The 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict;

• The 1997 Universal Declaration on the Human Genome and Human Rights (see textbox); and

• The 1997 Declaration on the Responsibilities of the Present Generations towards Future
Generations.

SUPERVISION

UNESCO has established a number of supervisory mechanisms over the years, both under conventions and
as a procedure under UNESCO:

a) Reporting procedure. Article 7 of the Convention against Discrimination in Education provides that each
state party to the Convention must submit periodic reports to the Commission on Conventions and
Recommendations on the implementation of the different articles in the Convention. After examining the
reports, the Commission submits the reports to the General Conference of UNESCO.

125 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

b) Individual complaint procedure. Since 1978, UNESCO has established a non-judicial communication
procedure that allows victims or any person with reliable knowledge about a human rights violation
concerned with education, science or culture to submit a petition to UNESCO. The communication is
brought to the attention of both the CCR Committee and the government in question, which may submit a
reply. Moreover, all parties involved may appear before the CCR Committee. Several actions may be taken
on communications. First, the Director-General of UNESCO may initiate consultations, if the circumstances
call for humanitarian action. This action may be taken even before the communication has been declared
admissible. Second, the Commission on Conventions and Recommendations, after having considered a
complaint, may propose that specific measures be taken by the state concerned. It is important to note,
however, that this UNESCO procedure emphasises friendly settlement and the procedure is confidential and
non-judicial in character. Nevertheless, it appears to have been relatively successful.

UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES (UNHCR)

In 1950, the UN General Assembly decided to establish the position of the High Commissioner for Refugees
(UNHCR), with responsibility for the legal protection of refugees and efforts to find durable solutions for
their plight. The mandate of the UNHCR gives the High Commissioner executive responsibility for the legal
protection of refugees.

International protection is the cornerstone of UNHCR’s work. In practice this means ensuring respect for a
refugee’s basic human rights and ensuring that no person will be returned involuntarily to a country where he
or she has reason to fear persecution (refoulement). The organisation seeks long-term or ‘durable’ solutions
by helping refugees repatriate to their homeland (if conditions warrant it), by helping them to integrate in
their countries of asylum or to resettle in third countries.

UNHCR provides legal protection to refugees by using the 1951 Convention relating to the Status of
Refugees as its major tool. This Convention is the key legal document in defining who is a refugee, their
rights and the legal obligations of states. The 1967 Protocol Relating to the Status of Refugees removed
geographical and temporal restrictions from the Convention. UNHCR also promotes international refugee
agreements and monitors government compliance with international refugee law. The UNHCR’ mandate is,
however, limited in its supervisory role for numerous reasons. Unlike the international system of human
rights protection, there is no formal mechanism in international refugee law to receive individual or inter-

126 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

state complaints; and provisions of the 1951 Refugee Convention setting out obligations for states to provide
UNHCR with information and data on, inter alia, the implementation of the Convention have not been given
full effect. As a consequence, there is no review of country practices that can be used to aid in ensuring
states’ compliance with international standards of refugee protection.

To make up for the lack of supervisory mechanisms, the General Assembly created the Executive Committee
of the Programme of the UN High Commissioner for Refugees (ExCom) in 1956. The ExCom has become
the main international forum developing standards of refugee protection. The Committee is made up of 64
countries and meets every autumn in Geneva to review and approve the agency’s programmes and budgets
and to advise on protection matters. ExCom sets international standards with respect to the treatment of
refugees and provides a forum for wide-ranging exchanges among governments, the UNHCR and its
numerous partner agencies.

The conclusions of this annual intergovernmental meeting represent an important international consensus
regarding refugee-related issues, and carry persuasive authority as standards of refugee protection.
Throughout the year, ExCom’s Standing Committee meets to review protection and refugee assistance
activities, as well as financial and management matters.

SUBSTANTIVE HUMAN RIGHTS

After introducing general aspects concerning human rights, the following part will deal with a number of
substantive human rights in more detail. The question arises, which rights should be dealt with and in what
order? A simple and transparent model was chosen, illustrating the interdependency and the interaction
between human rights; stressing the indivisibility of substantive rights.

The traditional way of dealing with human rights would have meant discussing the civil and political rights,
followed by a discussion on the economic, social and cultural rights. This kind of categorisation is
problematic, however, as it suggests a hierarchy of human rights, placing civil and political rights over other
human rights. Several attempts have been made in the past to come up with a simple and logical framework
for human rights; the two best known are the liberté, egalité, fraternité slogan of the French revolution, and

127 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

the four freedoms of President Roosevelt: freedom of speech and expression, freedom of belief, freedom
from want and freedom from fear.

The human rights framework presented here is comprised of twelve groups of rights. The twelve rights are
presented in a circular model (see below).

The circular model aims at illustrating the interdependency and non-hierarchical nature of the substantive
rights. The right to cultural life, for example, cannot be enjoyed without the right to equality or the right to
participation. Moreover, the right to property cannot be adequately protected if the rights to due process are
not guaranteed. This interdependency of human rights is clearly demonstrated in the many individual
complaints brought before international supervisory mechanisms referring not only to violation of one
human right but to several, such as the right to fair trial and the right to non-discrimination.

The twelve rights included in the circular model are based on the rights enumerated in the Universal
Declaration of Human Rights. The circle is made up of substantive rights essential for the protection of the
individual. In defining these rights, care was taken to create a good balance between the various types of
rights and the more closely related rights were grouped together.

Clearly, simplifying a complex interrelationship between rights is problematic. Instead of twelve rights,
thirteen, fourteen or even forty rights could have been included. Nevertheless, the circular visualisation of
the rights has the advantage of providing a better overview of how human rights interact. It underlines that
human rights are interdependent and indivisible. The division is used here as an illustration and guidance in
examining the rights discussed in the following chapter.

128 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

Each right is examined under two major topics: ‘standards’ and ‘supervision’. Under standards, the content
of each right, as it has been recognised in the major human rights instruments at the universal and regional
levels, is identified. Under supervision, we provide examples of the protection afforded to each of the rights
in the case-law of the international supervisory bodies. In the case of some economic, social and cultural
rights, such as the right to adequate standard of living and the right to highest attainable standard of health,
domestic case-law is also discussed. This is because only limited international case-law exists on certain
aspects of these topics and discussion of landmark decisions at the domestic level may contribute to further
promoting the justiciability of these rights.

THE RIGHTS TO DUE PROCESS

In a broad sense, due process is interpreted here as the right to be treated fairly, efficiently and effectively by
the administration of justice. The rights to due process place limitations on laws and legal proceedings, in
order to guarantee fundamental fairness and justice. Due process is interpreted here as the rules administered
through courts of justice in accordance with established and sanctioned legal principles and procedures, and
with safeguards for the protection of individual rights. The rules applicable to the administration of justice
are extensive and refer to, inter alia, fair trial, presumption of innocence, and independence and impartiality
of the tribunal. In most conventions, the various rules are included in several articles. As this handbook
focuses on a variety of conventions, four elements of due process are discussed: a) quality in terms of
administration of justice; b) quality in terms of protection of the rights of the parties involved; c) efficiency;
and d) effectiveness. As due process rights are traditionally known among human right experts to centre on
the right to a fair trial and the right to an effective remedy, the first three elements are discussed under the
heading of fair trial, while effectiveness is discussed under the right to an effective remedy.

THE RIGHT TO A FAIR TRIAL

The right to a fair trial does not focus on a single issue, but rather consists of a complex set of rules and
practices. The right to a fair trial is interpreted here as the rules administered through courts of justice in
accordance with established and sanctioned legal principles and procedures, and with safeguards for the
protection of individual rights. The rules applicable to the administration of justice are wide and refer to,
inter alia, a fair and public hearing, the presumption of innocence and the independence and impartiality of
the tribunal.

129 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

The importance of these rights in the protection of human rights is underscored by the fact that the
implementation of all human rights depends upon the proper administration of justice. Whenever a person’s
rights are interfered with, she/he can only defend herself/himself adequately if she/he enjoys an effective
recourse to due process.

QUALITY OF THE ADMINISTRATION OF JUSTICE

The right to a fair trial is guaranteed if individuals can have recourse to ‘a competent, independent and
impartial tribunal’, as recognised by international conventions, such as the International Covenant on Civil
and Political Rights and the American Convention on Human Rights. These components are discussed
below.

INDEPENDENCE

The most important component is the independence of the judiciary, referring to, inter alia, independence
from the executive and the legislature. If such independence does not exist, the recourse to a court is of little
use. The UN Basic Principles on the Independence of the Judiciary set out certain requirements that have
to be met for a court to be considered ‘independent’: a) conditions of service and tenure; b) manner of
appointment and discharge; and c) degree of stability and logistical protection against outside pressure and
harassment. The problems linked with the independence of judges are diverse, both in quality and quantity,
in different parts of the world, ranging from salary bargaining schemes to physical disappearances. The
major conventions expressly require that tribunals be ‘established by law’. The existence of a tribunal should
not depend on the discretion of the executive branch but be based on an enactment by the legislature. Special
courts are only tolerated under exceptional circumstances.

IMPARTIALITY

The judge must not have any personal interest in the case. The appearance of impartiality is of great
importance; there must be impartiality in the objective sense (which examines whether the judge offered
procedural guarantees sufficient to exclude any legitimate doubt of partiality), as well as the subjective sense
(there should not be any appearance of impartiality).

COMPETENCE

130 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

The idea of competence has not been elaborated upon explicitly in international conventions or case-law.
Indirectly, however, some important elements have been included in the case-law of international
supervisory bodies. Supervisory bodies have pointed out, for example, that the statute law must fulfil basic
conditions such as foreseeability and accessibility. Moreover, it has been recognised that case-law must be
consistently applied in order for court decisions not to be unforeseeable or resulting in the arbitrary
deprivation of effective protection of applicants’ rights.

QUALITY WITH REGARD TO PROTECTION OF THE RIGHTS OF THE PARTIES TO THE

TRIAL

The quality of a court cannot be assured if the rights of the applicants are not assured. A number of
individual rights and principles related to the right to a fair trial have been developed, including: the right to
a fair hearing; the right to a public hearing and pronouncement of judgement; equality of arms; presumption
of innocence; freedom from compulsory self-incrimination; the right to know the accusation; adequate time
and facilities to prepare a defence; the right to legal assistance; the right to examine witnesses; the right to an
interpreter; the right to appeal in criminal matters; the rights of juvenile offenders; no punishment without
law; ne bis in idem; and the right to compensation for miscarriage of justice. A few of these rights are
elucidated below.

FAIR HEARING

There must be an equal and reasonable opportunity for all parties to present a case. The right to a fair hearing
depends on many issues, such as the presentation of evidence or the behaviour of the members of the court,
public and press. Such fair hearing is often dependent on several other rights. The availability of competent
legal assistance may, for instance, also be crucial in carrying out successful litigation in court.

EQUALITY OF ARMS

Equality of arms, which must be observed throughout the trial process, means that both parties are treated in
a manner ensuring that they have a procedurally equal position during the course of the trial, and are in an
equal position to make their case. It means that each party must be afforded a reasonable opportunity to

131 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

present its case, under conditions that do not place it at a substantial disadvantage vis-á-vis the opposing
party.

In criminal trials, where the prosecution has all the machinery of the state behind it, the principle of equality
of arms is an essential guarantee of the right to defend oneself. This principle would be violated, for
example, if the accused was not given access to the information necessary for the preparation of the defence,
if the accused was denied access to expert witnesses, or if the accused was excluded from an appeal hearing
where the prosecutor was present.

The difference in position between an accused and a ‘civil’ litigant must be emphasised. The former is more
vulnerable to abuse by the state machinery, especially if he is deprived of his liberty.

PUBLIC HEARING

A public hearing implies that oral hearings on the merits of the case are held in public, whereby members of
the public, including press, can attend. Courts must make information about the time and venue of the oral
hearings available to the public and provide adequate facilities (within reasonable limits) for the attendance
of interested members of the public. Judgements are to be made public, with a few exceptions. The public’s
access to hearings may be restricted in certain narrowly defined circumstances. The International Covenant
on Economic, Social and Cultural Rights and the European Convention set out the limited number of
grounds on which the press and the public may be excluded from all or parts of hearings. They include a)
public morals; b) public order; b) juveniles; d) protection of the private life of the parties; and e) where
publicity is found to prejudice the interests of justice. Under Article 8(5) American Convention on Human
Rights, the right to a public trial in criminal proceedings may be suspended only ‘in so far as necessary to
protect the interests of justice’.

PRESUMPTION OF INNOCENCE

The right to the presumption of innocence requires that judges and juries refrain from prejudging any case. It
also applies to all other public officials. This means that public authorities, particularly prosecutors and
police, should not make statements about the guilt or innocence of an accused before the outcome of the trial
(see Human Rights Committee, General Comment No. 13 - Article 14 Right to a fair trial, para.7). It also
means that the authorities have a duty to prevent the news media or other powerful social groups from

132 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

influencing the outcome of a case by pronouncing on its merits. In accordance with the presumption of
innocence, the rules of evidence and conduct of a trial must ensure that the prosecution bears the burden of
proof throughout a trial.

EFFICIENCY OF THE ADMINISTRATION OF JUSTICE

REASONABLE TIME

The European Convention and the American Convention expressly require that hearings take place ‘within
reasonable time’. The ICCPR speaks of expeditious hearings, thereby also implying that justice be delivered
expeditiously and within a reasonable time. A delay of justice is often equal to no justice at all; as the old
saying goes: ‘Justice delayed is justice denied.’ It is especially important for a person charged with a
criminal offence not to remain longer than necessary in a state of uncertainty about his/her fate. No other
subject of human rights is so often the subject of case-law before the European Court as ‘the reasonable time
requirement’. The European Court and the other major supervisory mechanisms have assessed what is
reasonable time on a case-by-case basis. Elements to be considered include a) national legislation; b) what is
at stake for the parties concerned; c) the complexity of the case; d) the conduct of the accused or the parties
to the dispute; and e) the conduct of the authorities. Trials lasting as long as 10 years have been deemed
reasonable, while others lasting less than one year have been found to be unreasonably delayed.
Nevertheless, the wealth of case-law has resulted in an excellent set of tools to assess the efficiency of courts
and signal the importance of an adequate administration of justice, including legislation allowing for
efficiently functioning courts.

The above has shown clearly that for a good system of due process a large number of important rules have to
be complied with. Such compliance has to be done in a consistent way. In turn, such consistency has lead to
detailed analysis of the wording of the various standards. In the course of the past decades the various
supervisory mechanisms have provided for an adequate interpretation of various concepts such as what are
civil rights and obligations; what is suit at law; what is criminal and what a court is. Such interpretation is
important as can be explained by the following example. As mentioned above, accused persons deserve, for
understandable reasons, more protection than other parties participating in court cases. That can, however,
induce a national legal order to erode such protection by introducing non-criminal legal norms and
procedures. A government can then litigate someone for punitive damages instead of prosecuting the person

133 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

concerned. Supervisory mechanisms have corrected such an approach by defining the concept of ‘criminal
charge’ and giving it an autonomous meaning.

STANDARDS

The Universal Declaration of Human Rights states in Article 10 that ‘everyone is entitled in full equality
to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and
obligations and of any criminal charge against him’. The right to be presumed innocent is dealt with in
Article 11 Universal Declaration of Human Rights.

The right to a fair trial (including the right to be presumed innocent) has been translated into obligations in:

• The International Covenant on Economic, Social and Cultural Rights: Article 14 (fair trial) and
Article 15 (no retroactive penal laws).

• The ECHR: Article 6 (fair trial), Article 7 (no punishment without law), and Protocol No. 7 to the
European Convention for the Protection of Human Rights and Fundamental Freedoms
(rights of accused persons).

• The American Convention on Human Rights: Article 8 (fair trial) and Article 9 (freedom from ex-
post facto laws). According to Article 27 ACHR, judicial guarantees have been given non-
derogable status, which means that certain aspects of the right to a fair trial are non-derogable.

• African Charter on Human and Peoples’ Rights: Article 7 (fair trial). Article 26 imposes a duty on
states parties to guarantee the independence of the Courts and allow the establishment and
improvement of appropriate national institutions entrusted with the promotion and protection of the
rights and freedoms guaranteed by the African Charter.

One may further note various articles in the Rome Statute of the International Criminal Court (ICC),
which define in detail principles of criminal justice (Article 22-33) and principles of fair trial (Articles 62-
67). The Rome Statute, which was adopted in 1998, provides the highest standard of rules on due process
and reflects the case-law and doctrine developed since the adoption in the 1950s and 1960s of the major
conventions.

134 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

In addition to the main human rights conventions, there are declarations, resolutions and other non-treaty
texts that address the independence of the judiciary and fair trial. These include, for example, the Basic
Principles on the Independence of the Judiciary (UNGA Resolution 40/146), the United Nations Declaration
of Basic Principles of Justice for Victims of Crime and Abuse of Power, which contains broad guarantees
for those who suffer pecuniary losses, physical or mental harm (UNGA Resolution 40/34), and Basic
principles on the Role of Lawyers and the Draft United Nations Body of Principle on the Right to a Fair
Trial and to a Remedy.

In 1990, the Human Rights Commission appointed two rapporteurs to prepare a report on existing
international norms and standards pertaining to the right to a fair trial. The rapporteurs’ work included the
examination of national practices related to the right to a fair trial. In 1994, the rapporteurs submitted a draft
third optional protocol to the ICCPR, aiming at including the right to a fair trial in the non-derogable
rights provided for in Article 4(2) ICCPR. The right to a fair trial is currently a derogable right and may be
suspended in certain circumstances, such as times of public emergency under Article 15 ECHR.

SUPERVISION

The international supervisory mechanisms — notably the European Court and the Human Rights Committee
— have dealt with a substantial amount of cases where the right to a fair trial has come into play.

At the UN treaty level, the Human Rights Committee has decided more cases regarding Article 14 than any
other ICCPR right. Many of the cases concern complaints from persons on death row about the fairness of
their trials (see, e.g., Levy v. Jamaica, Johnson (Errol) v. Jamaica and Thomas (Damian) v. Jamaica).
Moreover, the Human Rights Committee has issued two General Comments that are very important with
regard to the right to a fair trial, General Comment No. 13 - Article 14 Right to a fair trial and General
Comment No. 29 - Article 4 State of Emergency. In General Comment 29, the Committee stated that, inter
alia, some elements of the right to a fair trial that are considered fundamental principles, such as the
presumption of innocence, should not be deviated from in emergency situations (General Comment 29, para.
11 and 16) and that ‘it is inherent in the protection of rights explicitly recognized as non-derogable’ in the
Convention, that they ‘must be secured by procedural guarantees, including often, judicial guarantees.’
Therefore, provisions relating to procedural safeguards ‘must never be subject to measures that would
circumvent the protection of derogable rights.’

135 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

Like the Human Rights Committee, the European Court has adjudicated more cases concerning the right to a
fair trial than any other right. Article 6 on the right to a fair trial is the article dealt with in most cases before
the European Court. Elements developed through the case-law of the European Court include, for instance,
a) access to court (a civil claim must be capable of being submitted to a judge, prohibition of denial of
justice); b) fair hearing (equality of arms, right to be present at the trial); and c) the concept of ‘criminal’.
Moreover, in the recent years, more than 40% of the approximately 800 judgements the European Court
issues every year contain aspects relating to reasonable time.

At the African level, the African Commission has adopted three resolutions with regards to a fair trial. These
resolutions elaborate upon Article 7(1) ACHPR and guarantee several additional rights, as well as
elaborating upon the role of lawyers and judges in the implementation of the Charter and the strengthening of
the independence of the judiciary. Moreover, two special rapporteurs have been appointed with mandates
that touch upon the right to a fair trial: the Special Rapporteur on Extrajudicial, Summary, and Arbitrary
Executions and the Special Rapporteur on Prisons and Conditions of Detention. In its communications, the
African Commission has mainly dealt with issues concerning the presumption of innocence and the
impartiality of the court.

The Inter-American Commission has dealt with a few issues under the right to a fair trial. When it has dealt
with Article 8 ACHR, however, it has made it clear that it is not concerned with the correctness of a national
court’s decision, but whether that decision has been reached in accordance with the principles of due process
of law. The elements of fair trial that the Commission has mainly dealt with are a) access to a court in the
context of amnesty or impunity laws; b) right to hearing within a reasonable time; and c) competent,
independent and impartial tribunals. In analysing the meaning of ‘independent’ and ‘impartial’, the
Commission has emphasised the importance of the constitutional doctrine of the separation of powers (e.g.
the 1983 report on the situation of human rights in Cuba).

NGOs like Amnesty International (www.amnesty.org) and Human Rights Watch (www.hrw.org) play an
important role in developing and safeguarding the right to a fair trial. This is done both through research and
documentation, such as the documentation of violations, which are brought to the attention of the various
mechanisms. The International Commission of Jurists (http://www.icj.org) has identified itself above all
with the independence of the judiciary.

136 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

THE RIGHT TO AN EFFECTIVE REMEDY

THE EFFECTIVENESS OF THE ADMINSTRATION OF JUSTICE

The need for effective administration of justice may appear obvious but the absence of an effective
administration of justice continues to plague numerous legal systems in the world. The lack of effective
administration of justice is a continuous source of complaints before the international supervisory
mechanisms.

There are at least one hundred human rights treaties adopted internationally and regionally. Nearly all states
are parties to some of them and several human rights norms are considered part of customary international
law. However, like all laws, human rights law is violated. The increasing case-load before supervisory
mechanisms is a clear indicator that individuals and victims are increasingly capable of bringing complaints
against their governments for not complying with their international obligations.

The right to an effective remedy when rights are violated is itself a right expressly guaranteed by most
international human rights instruments. The international guarantee of a remedy implies that a state that has
violated a human right has the primary duty to afford an effective remedy to the victim. International
tribunals and supervisory bodies play a subsidiary role; they only come into play when the state fails to
afford required redress. The role of these international bodies, however, is important in protecting the
integrity and consistency of the human rights system. Absence of effective remedy can create a climate of
impunity, particularly when states intentionally and constantly deny remedies.

STANDARDS

The Universal Declaration of Human Rights states in Article 8 that ‘everyone has the right to an effective
remedy by the competent national tribunals for acts violating the fundamental rights granted by the
constitution or by law.’

The right to an effective remedy is found under many articles in the ICCPR. Article 2(3) provides the most
highly elaborated general provision in human rights law. Moreover, one finds specific remedies in the
ICCPR such as Article 6(4) on the right to apply for pardon, amnesty and commutation of the death sentence.
Article 9(3) and (4) defines the right to habeas corpus and judicial review, Article 13 provides a remedy

137 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

against expulsion, Article 14 guarantees fair trial and Article 14(5) defines the right to review of conviction
and sentence. Both general and specific provisions on effective remedy can be found under other UN
Conventions, such as Articles 2, 2(c) and 3 CEDAW, Article 6 CERD, Article 2 and 3 ICESCR, Article 12
and 13 CAT Articles 2(2), 3, 4, 19, 20, 32 and 37(d) CRC and Articles 18, 19, 22 and 23 CMW.

The ACHPR has several provisions on remedies. Article 7 guarantees every individual the right to have his
cause heard. Article 21 refers to the right to ‘adequate compensation’ in regard to ‘the spoliation of resources
of a dispossessed people’. Article 26 imposes a duty on states parties to guarantee the independence of the
courts, and allow the establishment and improvement of appropriate national institutions entrusted with the
promotion and protection of the rights and freedoms guaranteed by the African Charter. The Protocol to the
African Charter on the Establishment of the African Court on Human and Peoples’ Rights also affords
effective remedies. Article 27 of the Protocol states that ‘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.’ This provision is broader than all the current mandates to afford remedies
to victims of human rights abuse. The ECHR defines the right to an effective remedy in Article 13, Habeas
corpus in Article 5 (4) and the right to appeal in Article 2 Protocol No. 7. The ACHR recognises the right to
judicial protection in Article 25.

Except for Article 25 ACHR, which guarantees a right to recourse to ‘courts and tribunals’, other human
rights conventions do not require that the remedy be ‘judicial’. Article 2(3)(b) ICCPR, for instance, leaves a
considerable margin of appreciation to each state by accepting ‘judicial, administrative or legislative
authorities’ or ‘any other authority provided for by the legal system’ of the state. The same applies to the
ECHR and the ACHPR.

In addition to the main human rights conventions, there are declarations, resolutions and other non-treaty
texts that address the right to an effective remedy, such as the United Nations Declaration of Basic Principles
of Justice for Victims of Crime and Abuse of Power, which contains broad guarantees for those who suffer
pecuniary losses, physical or mental harm (UNGA Resolution 40/34). Victims are entitled redress and to be
informed of their right to seek redress.

SUPERVISION

138 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

The main purpose of remedial justice is to correct the harm done to a victim. Corrective justice generally
aims at restitution or compensation for loss in order to help make things better for the victims and deter
violators from engaging in future misconduct. The practice of supervisory bodies in awarding compensatory
damages varies considerably. UN supervisory bodies, such as the Human Rights Committee recommend
sometimes that states pay compensation or afford other remedies, but they never specify amounts that may
be due or other forms of redress. Regional human rights bodies, such as the European and Inter-American
Courts have the power to designate remedies and compensation that the state must comply with.

At the United Nations level, the Human Rights Committee has indicated in individual cases that a state that
has engaged in human rights violations must undertake to investigate the facts, take appropriate action, and
bring to justice those found responsible for the violations. Guarantees of non-repetition are an important
aspect of the Committee’s approach to remedies; it frequently calls upon states to take measures in order for
similar violations not to occur in the future (see, e.g., Herrera Rubio et al. v. Colombia). Moreover, in a
series of prisoner cases involving Jamaica and Trinidad and Tobago, the Committee insisted that the
applicants receive an effective remedy and suggested suitable remedies such as a) release; b) further
measures of clemency; c) payment of compensation; d) improved conditions of confinement; e) release from
prison; f) medical treatment, and g) commutation of the sentence (e.g., Thomas (Damian) v. Jamaica,
LaVende v. Trinidad and Tobago, Leslie v. Jamaica, and Matthews v. Trinidad). In addition, the Human
Rights Committee states in General Comment 29 that even though the right to an effective remedy is not
mentioned in the list of non-derogable provisions in Article 4, paragraph 2, ‘the State party must comply
with the fundamental obligation, under article 2, paragraph 3, of the Covenant to provide a remedy that is
effective’ during a state of emergency (General Comment No. 29 - Article 4 State of Emergency, para. 14).

At the regional level, the European Court has read its mandate narrowly with regard to remedies and has
applied its powers in a restrictive fashion. The Court, for instance, has regularly stated that it is limited to
financial compensation and is not empowered to order other remedial measures. It rejected requests, for
instance, that the state should be required to refrain from corporal punishment of children or to take steps to
prevent similar breaches in the future (see, e.g., Campbell and Cosans v. The United Kingdom). It also
refused to insist that a state judged to have wrongfully expelled an alien allow the victim to rejoin his family
(see, e.g., Mehemi v. France). Recently, however, the Court seems to be indicating that a state may be
required implicitly to take such steps (see, e.g., Papamichalopoulos et al. v. Greece).

139 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

Both the Inter-American Commission and Court have recommended remedies. The Inter-American
Commission has in recent years started to negotiate friendly settlements involving wide-ranging remedies
and large compensatory damages. In addition or as an alternative to monetary compensation, the
Commission has recommended reform of court systems, investigation, prosecution and punishment of
violators, adoption or modification of legislation and guarantees for the safety of witnesses. Of all the
supervisory mechanisms, the Inter-American Court has made the broadest use of its jurisdiction concerning
remedies. It has awarded pecuniary and non-pecuniary damages, granting monetary and non-monetary
remedies. Moreover, the Court has been innovative in controlling all aspects of the awards; including setting
up trust funds, and maintaining cases open until the awards on remedies have been fully implemented.

The African Commission has made specific recommendations on remedies in several cases, including
demanding the release of persons wrongfully imprisoned, and repeal of laws found to be in violation of the
Charter. The Commission has not discussed the scope of its remedial powers, but in a case against Nigeria, it
indicated it would follow up to ensure state compliance with its recommendations (Constitutional Rights
Project (in respect of Zamani Lakwot and 6 Others) v. Nigeria, Communication 87/93).

THE RIGHTS TO FREEDOM OF EXPRESSION AND RELIGION

This chapter includes two rights: a) the freedom of opinion and expression and b) the freedom of conscience
and religion. Although these are two distinctive rights, they are in the same group as they both entail
essential conditions for individual personal development. It is important to note, however, that the freedom
of expression is subject to more restrictions than the freedom of religion.

THE RIGHT TO FREEDOM OF OPINION AND EXPRESSION

The freedom of expression is a right without which other rights are difficult to acquire and defend. The right
to freedom of expression is rooted in the 17th century struggle of European legislators for freedom of speech.
Since then, the world has seen a continuing struggle for the freedom of expression, including the freedom of
speech and freedom of the press, often going hand in hand with the endeavour to limit the power of
governments. The freedom of expression can be considered an essential aspect of the individual’s defence
against government, just as the suppression of the freedom of expression is essential to tyranny. As freedom
of expression is a foundation for religious and political activities, it is often exercised in concert with the
right to freedom of thought and assembly.
140 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

Under present international conventions, state obligations in relation to freedom of expression are absolute
and immediate. At the same time, as with other forms of liberty, completely unrestricted freedom of
expression may lead to the infringement on the rights of others. The freedom of expression has been hedged
in by a number of limitations and restrictions, often more extensively than other rights. Historically, most
limitations have dealt with the expression of sentiments contrary to prevailing institutions or religious,
political or other beliefs. In addition, in times of war, governments often restrict the freedom of expression in
the interest of national security. As a cornerstone of democracy, the complexity and importance of freedom
of expression has lead to extensive case-law before national courts and international supervisory
mechanisms.

STANDARDS

Article 19 of both the UDHR and the ICCPR establish the freedom of opinion and expression. Article 19
UDHR stipulates: ‘everyone has the right to freedom of opinion and expression; this right includes freedom
to hold opinions without interference and to seek, receive and impart information and ideas through any
media and regardless of frontiers.’ The CRC and CMW set out freedom of expression in Article 13. In
addition, CRC stipulates that states have to assure that a child who is capable of forming his or her own
views can express those views freely and that these views be taken into account in accordance with the age
and maturity of the child (Article 12).

The regional conventions also contain provisions regarding the freedom of expression: Article 10 ECHR
Article 13 ACHR, and Article 9 ACHPR.

The freedom of expression and opinion is a complex right that includes the freedom to seek, receive and
impart information and ideas of all kinds through any media. The exercise of this right ‘carries with it special
duties and responsibilities’ (see Article 19 ICCPR and Article 10 ECHR). Therefore, in general, certain
restrictions or limitations on the freedom of expression are permitted under human rights law. Article 19
ICCPR stipulates that these limitations ‘shall only be such as are provided by law and are necessary: a) for
respect of the rights or reputations of others; b) for the protection of national security of public order (ordre
public), or of public health or morals’. Other conventions add to these limitations: for the moral protection of
childhood and adolescence (Article 13(4) ACHR) and for the restriction of ‘any propaganda for war and any
advocacy of national, racial, or religious hatred that constitute incitements to lawless violence or to any other

141 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

similar illegal action against any person or group of persons on any grounds including those of race, colour,
religion, language, or national origin (Article 13(5) ACHR); for the prevention of disclosure of information
received in confidence; and for maintaining authority and impartiality of the judiciary (Article 10 ECHR). In
addition, Article 10 ECHR explicitly gives the state broad discretion in licensing of the media.

In the Inter-American system, the Inter-American Court has dealt with freedom of expression in Advisory
Opinion No 5 on Membership in an Association Prescribed by Law for the Practice of Journalism.

Under the African system, the Declaration of Principles on Freedom of Expression in Africa was adopted
by the African Commission in 2002. It stresses the ‘fundamental importance of freedom of expression as an
individual human right, as a cornerstone of democracy and as a means of ensuring respect for all human
rights and freedoms’. The Declaration seeks to guarantee the freedom of expression and addresses, inter alia,
limitations to the right, the obligation of states to promote diversity of information and private broadcasting,
freedom of information, independence of regulatory bodies for broadcast and telecommunications,
defamation laws, complaints about media content and attacks on media practitioners.

The OSCE also addresses freedom of expression. In the Helsinki Final Act (1975), principles guiding
relations between participating states include provisions on conditions for journalists and dissemination of
information. Both the Madrid document (1983) and the Vienna document (1989) include provisions
encouraging exchanges in the media field. Likewise, states committed themselves to facilitating the work of
journalists and respecting their copyrights. Paragraph 9 of the 1990 Copenhagen document stipulates that
‘[e]veryone has the right to freedom of expression including the right to communication. This right will
include freedom to hold opinions and to receive and impart information and ideas without interference by
public authority and regardless of frontiers.’ In order to ensure a high level of commitment with the norms
and standards accepted by the OSCE participating states, the position of the OSCE Representative on
Freedom of the Media was established in December 1997. The task of the Representative on Freedom of the
Media is to observe relevant media developments in OSCE participating states with a view to providing early
warning on violations of freedom of expression. In addition, he/she has to assist participating states by
advocating and promoting full compliance with OSCE principles and commitments regarding freedom of
expression and free media.

142 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

Recently, both the CoE and the OSCE have issued declarations on the right to freedom of expression on the
Internet. In the CoE Declaration on Freedom of Communication on the Internet from 30 May 2003,
states declare that they must abide by principles that establish, inter alia, that internet content should not be
subject to restrictions that go further than restrictions on classical media and that authorities should not deny
access to information and other communication on the internet. The OSCE Recommendation on Freedom of
the Media and the Internet (14 June 2003) expresses alarm regarding on-line censorship.

In several international fora, particular attention has been paid to the protection of professionals, particularly
journalists, whose physical integrity is at stake when freedom of expression is insufficiently guaranteed. The
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of
Victims of International Armed Conflicts provides additional protection to civilian journalists working in
areas of armed conflict (war correspondents employed by the military are regarded as ‘soldiers’).

Some UN specialised agencies are also committed to the promotion of freedom of expression. For example,
UNESCO has promoted freedom of expression, press freedom, independence and pluralism of the media as
part of its activities. UNESCO has adopted several resolutions in this regard (see, e.g. resolutions
‘Promotion of independent and pluralist media’ (1995) and ‘Condemnation of violence against
journalists’ (1997)).

SUPERVISION

The freedom of expression is reduced by possible limitations under several international standards mentioned
above. Moreover, freedom of expression and its internationally accepted limitations can be distorted by
government initiatives through propaganda, control of the media and through various other measures aimed
at restricting the press, e.g. licensing requirements, economic measures or restrictions on access to
information. The right to freedom of expression has engendered a substantial body of case-law, in which
both the right itself as well its limitations have been further defined.

The Human Rights Committee has dealt with many cases dealing with the right to freedom of expression. It
has, for instance, found that imprisoning a trade leader for supporting a strike and condemning a government
threat to send in troops violated his right to freedom of expression (Sohn v. Republic of Korea), but
convicting a person under a law that criminalised contesting the existence of the Holocaust served a
legitimate aim (Faurisson v. France). In another case, the Committee found inadmissible a complaint
143 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

alleging a violation where the dissemination of anti-Semitic messages via recorded telephone messages was
prohibited. The complaint was found inadmissible as hate speech was clearly incompatible with the rights
protected in the Covenant (J.R.T. and the W.G. Party v. Canada). The Committee has stated that
commercial expression, such as outdoor advertising, is protected by freedom of expression (see, i.e.
Ballantyne et al. v. Canada) and that the right to receive information was violated when a journalist was
denied full access for no disclosed reason to parliamentary press facilities in his country (Gauthier v.
Canada).

Under the auspices of the European system, the European Court has stated that freedom of expression:

[C]onstitutes one of the essential foundations of such a (democratic) society, one of the basic working
conditions for its progress and for the development of every man. [...] It is applicable not only to
‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference,
but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands
of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’ (Handyside
v. The United Kingdom).

Many cases have been brought before the former European Commission and the Court regarding the freedom
of expression; several dealing with the rights of journalists to freedom of expression. In a case of Austrian
journalists found guilty in domestic courts for defamation, the Court found that politicians may be subject to
stronger public criticisms than private citizens (see, i.e. Lingens v. Austria and Oberschlick v. Austria). In
another case, the Court found that convicting a defence counsel of defamation for strongly criticising a
public prosecutor’s decision not to charge a potential defendant, who was then able to testify against her
client, violated her right to freedom of expression (Nikula v. Finland). The Court has found that state
monopoly on broadcasting constitutes an interference with the right to freedom of expression
(Informationsverein Lentia et al. v. Austria); it has found restrictions on the rights to freedom of expression
of public employees justified (see, i.e. Ahmed et al. v. The United Kingdom). Regarding the right to receive
information it has found that this right does not necessarily impose a positive duty on the state to collect and
disseminate information (Guerra et al. v. Italy). In a case in 2003, the Court found that Austrian courts had
overstepped their margin of appreciation by issuing an injunction on a company banning it from comparing
its price to that of a competitor without also mentioning differences in their reporting styles (Krone Verlag
GmbH & Co KG v. Austria (no. 3)).

144 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

Cases brought before the Inter-American Commission have among other issues dealt with violence against or
murder of journalists; intimidation, threats, and harassment (see, i.e. Bishop Gerardi v. Guatemala (Case
7778)). The Court has dealt with preventive censorship in a case where the exhibition of a ‘blasphemous’
film was prevented. In this case, the Court stated that although some prior censorship is allowed, prior
censorship on grounds of blasphemy falls outside the permitted category of ‘moral protection of the young’.
The Court therefore found a violation of the right to freedom of expression (Olmedo Bustos et al. v. Chile
(‘The Last Temptation of Christ’ Case)).

The Court has issued an advisory opinion finding that mandatory membership in a professional association
for the practice of journalism could not be justified as it deprived non-licensed journalists of their rights
under the American Convention. The Court has also dealt with indirect restrictions on freedom of
expression; the right to the truth; and the right to reply. As regards the Inter-American Court, the freedom of
expression

has both an individual and a social dimension: it requires that, on the one hand, no one may be arbitrarily
harmed or impeded from expressing his own thought and therefore represents a right of each individual; but
it also implies, on the other hand, a collective right to receive any information and to know the expression of
the thought of others. These two dimensions must be guaranteed simultaneously (Ivcher Bronstein v. Peru).

In the African system, the African Commission on Human and Peoples’ Rights has addressed the right to
freedom of expression in diverse realms. It has, inter alia, found the detention of members of opposition
parties and trade unions under legislation outlawing all political opposition during a state of emergency a
violation of the freedom of expression; it has found that the failure of a state to investigate attacks against
journalists violates their right to express and disseminate information and opinions and also violates the
public’s right to receive such information and opinions (Sir Dawda K. Jawara v. the Gambia
Communications 147/95 and 149/96). The Commission has held that state harassment with the aim of
disrupting legitimate activities of an organisation that informs and educates people about their rights
constitutes a clear violation of the right to freedom of expression. Finally, in a case regarding the trial and
execution of community organisation leaders in the wake of a rally, the Commission stressed the close
relationship between the right to freedom of expression and the rights to association and assembly. Because
of that relationship the Commission found that the severe punishments inflicted as a result of the rally were
inconsistent with the right to freedom of expression (International Pen, Constitutional Rights Project,

145 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

Interights on behalf of Ken Saro-Wiwa Jr. and Civil Liberties Organisation v. Nigeria, Communications
137/94, 139/94, 154/96 and 161/97). In discussing the importance of freedom of expression, the Commission
has stated: ‘Freedom of expression is vital to an individual’s personal development, his political
consciousness and participation in the conduct of public affairs in his country.’ (Constitutional Rights
Project, Civil Liberties Organisation and Media Rights Agenda v. Nigeria, Communications 105/93,
128/94, 130/94 and 152/96).

Recognising the importance of freedom of expression, international fora and national governments have
sought to promote additional standards to protect particular elements of the right. Several governments have
enacted legislation to improve access to information; to provide adequate access to media; to protect
employees from reprisals for disclosing illegal activities of their employers; to provide data protection so that
individuals have access to their personal files held by public authorities and to ensure that such information
is withheld from all persons not expressly entitled to it.

International organisations have addressed the implementation and supervision of the right to freedom of
expression by, for instance, appointing experts on the issue. In 1993, the Human Rights Commission
appointed a Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and
Expression (Resolution 1993/45 of 5 March 1993). The mandate was extended by the Commission on
Human Rights in 2002, at its 58th session (Resolution 2002/48). The rapporteur has stated that ‘the exercise
of the right to freedom of opinion and expression is a clear indicator of the level of protection and respect of
all other human rights in a given society’ and has touched upon such issues as how the right to freedom of
opinion and expression helps promote and strengthen democratic systems, and its benefits in other areas,
such as in the effectiveness of education and information campaigns on HIV/AIDS prevention.

In 1997, the Inter-American Commission on Human Rights created the Office of the Special Rapporteur for
Freedom of Expression. The mandate of the Special Rapporteur is to stimulate awareness of the importance
of observance of the right of freedom of expression, to make recommendations to states for adoption of
progressive measures to strengthen the right, to prepare reports and carry out studies, and to respond to
petitions or other violations of the right in OAS member states. The Special Rapporteur may also solicit that
the Inter American Commission requests precautionary measures from the member states, to protect the
personal integrity of journalists and media correspondents who are facing threats or the risk of irreparable
harm.

146 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

Within the OSCE framework, standards have been drawn up to protect journalists and much effort has been
devoted to promoting the exchange of ideas and expertise on actual implementation of the freedom of the
press. The OSCE established the position of Representative on Freedom of the Media in 1997. The function
of the Representative is to observe relevant media developments in OSCE participating states with a view to
provide early warning on violations of freedom of expression. The Representative also assists states by
advocating and promoting full compliance with OSCE principles and commitments regarding freedom of
expression and free media.

The UN Special Rapporteur on the Promotion and Protection of the Freedom of Opinion and Expression, the
OSCE Representative on Freedom of the Media, and the OAS Special Rapporteur on Freedom of Expression
issued a joint declaration on 18 December 2003, condemning the continued attacks on journalists, and the
possible challenge to editorial independence posed by concentration of media ownership. They also
recognised the interdependence of a free media and an independent judiciary, and that concentration in
ownership of the media and the means of communication might challenge editorial independence. In
addition, they condemned criminal defamation as an unjustifiable restriction to freedom of expression.

THE RIGHT TO FREEDOM OF CONSCIENCE AND RELIGION

The guarantees of freedom of conscience and religion are closely related to other substantive rights. For
instance, the rights to freedom of expression, assembly and association are fundamental to holding religious
beliefs and practising one’s religion. Thoughts and views are intangible as long as they have not been
expressed, and convictions are valuable for a person only if he or she can express them. The private freedom
of thought and religion is an absolute right that does not permit any limitation. The guarantee of the value of
freedom of thought and religion implies that one cannot be subjected to a treatment intended to change one’s
process of thinking, be forced to express thoughts, to change opinion, or to divulge a religious conviction;
thus, the right to freedom of thought, conscience, religion, belief and opinion is closely associated with the
right to privacy. No sanction may be imposed holding any view, or on the change of a religion or conviction;
and the freedom of thought and religion protects against indoctrination by the state.

The public aspect of the freedom, the right to manifest one’s belief in worship, observance, practice or
teaching, is subject to limitations and defining the meaning of the freedom is complex; for instance, may
refusal to serve in the military or pay taxes be justified on grounds of religion? Many states include

147 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

guarantees for the right to freedom of thought, conscience, religion and belief in their constitutional
traditions; in laws and regulations provisions are incorporated to prevent and punish interference with
legitimate manifestations of religion or belief. Nevertheless, violations of the principles of non-
discrimination and tolerance in the area of religion or belief are extensive; millions of people enjoy the
freedom of thought, conscience, religion and belief only to a limited extent. Most human rights conventions
do allow fewer limitations to freedom of religion than to comparable rights such as freedom of assembly and
freedom of expression. In the last decades increasing political attention has been given to the freedom of
religion, notably in Europe, in the light of religious intolerance.

STANDARDS

One of the first standards for protection against religious intolerance was the founding document of the
Republic of the United Netherlands, the Union of Utrecht from 1579, which stipulated that no one will be
persecuted because of his religion. In 1648, in the Treaty of Westphalia, a minimum of freedom of religion
was guaranteed: the right to freedom of religion in private and equal rights in all other fields of public life,
regardless of religion. In the 18th and 19th centuries, several other treaties protecting religious rights
followed.

With the founding of the United Nations, protection against religious intolerance found its way into modern
international standard setting. The freedom of religion or belief is expressly recognised in Article 18 UDHR
and, inter alia, further defined in Article 18 ICCPR.

Article 27 ICCPR refers, inter alia, to religious minorities and stipulates that persons belonging to such
minorities shall not be denied the right to profess and practice their religion. Article 14 CRC recognises the
right of the child to freedom of thought, conscience and religion and the right of the parents/legal guardians
to provide guidance to the child in the exercise of this right. Article 12 CMW recognises the right of migrant
workers and their family members to freedom of thought, conscience and religion. In addition, religious
groups are protected under the Convention on the Prevention and Punishment of the Crime of Genocide
(1948) (Article 2).

148 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

In 1981, the UNGA adopted the Declaration on the Elimination of All Forms of Intolerance and of
Discrimination Based on Religion or Belief after a long process of drafting. Progress had been very slow as
the issue of freedom of conversion or change of religion was a major obstacle to consensus. At length,
explicit reference to the freedom to change one’s religion or belief was excluded though Article 8 confirms,
by implication, the continuing validity of the freedom to change one’s religion. The Declaration confirms
that the right of freedom of thought, conscience and religion includes the freedom of everyone ‘to have a
religion or whatever belief of his choice’ and that ‘no one shall be subjected to discrimination on grounds of
religion or belief, by any State, institution, group of persons or a person’.

Another relevant document is the Declaration on the Right to Persons Belonging to National or Ethnic,
Religious and Linguistic Minorities (1992) emphasising, among other things, obligations of states to
protect and promote the religious identities of persons belonging to minorities within their territories.

All regional conventions contain provisions regarding the freedom of thought and religion: Article 9 ECHR
defines the right to freedom of thought, conscience and religion in the same words as Article 18 ICCPR. The
First Protocol to the ECHR includes a provision ensuring education and teaching in conformity with the
parents’ religious and philosophical convictions. Article 12 ACHR and Article 8 ACHPR define the right
similarly. These conventions also set out restrictions; for instance, Article 12 ACHR stipulates that these
freedoms ‘may be subject only to the limitations prescribed by law that are necessary to protect public safety,
order, health, or morals, or the rights or freedoms of others’.

The OSCE framework also addresses freedom of thought and religion. For instance, Principle VII of the
OSCE Helsinki Final Act (1975) stipulates that the participating states ‘will recognise and respect the
freedom of the individual to profess and practise, alone or in community with others, religion or belief,
acting in accordance with the dictates of his own conscience’. States also pledge to respect the freedom of
religion and belief of persons belonging to national minorities living in their territory. Another example is
Article 16 of the Vienna Document (1989), which stipulates that states will take effective measures to
prevent and eliminate discrimination against individuals and communities on the grounds of religion or
belief, and that they have to foster a climate of mutual tolerance and respect between believers of different
communities, as well as between believers and non-believers. Furthermore, the CSCE Charter of Paris for
a New Europe (1990) affirms that every individual, without discrimination, has the right to freedom of
religion and thought.

149 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

SUPERVISION

The international supervisory bodies have dealt with a number of communications regarding violations of the
freedom of thought and religion. The Human Rights Committee has dealt with several individual
communications regarding freedom of thought and religion. For instance, the Committee has found
forbidding prisoners wearing a beard, worshipping at religious services and taking away their prayer books a
violation of this right. The Committee affirms that: ‘[T]he freedom to manifest religion or belief in worship,
observance, practice and teaching encompasses a broad range of acts and that the concept of worship extends
to ritual and ceremonial acts giving expression to belief, as well as various practices integral to such acts’
(Boodoo v. Trinidad and Tobago). The Committee has, however, found that requiring a Sikh who wears a
turban in daily life to wear a safety-helmet at work does not violate his right to religious freedom (Singh
Bhinder v. Canada).

In recent times the Committee has departed from its previous jurisprudence stating that conscientious
objection to military service can be derived from Article 18 ICCPR (General Comment 22). In this General
Comment, the Committee, inter alia, ‘views with concern any tendency to discriminate against any religion
or belief for any reasons, including the fact that they are newly established, or represent religious minorities
that may be the subject of hostility by a predominant religious community’. The Committee states, inter alia,
that Article 18(2) bars coercion that would impair the right to retain one’s religion or belief, including threats
of violence and that designated state religions may not serve as justifications of violations of the right to
freedom of religion.

The Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or
Belief stipulates that all states have to take effective measures to prevent and eliminate discrimination on the
grounds of religion or belief. As a resolution, the Declaration has no machinery for supervision or
implementation of the principles and measures it stipulates but, in 1986, the Human Rights Commission
appointed a Special Rapporteur on Religious Intolerance whose mandate is based on the Declaration. The
Special Rapporteur, inter alia, writes reports, carries out country visits, receives communications and makes
recommendations to states.

Within the regional systems several cases regarding freedom of thought and religion have been brought
before the supervisory mechanisms. The European Court of Human Rights has received numerous cases

150 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

regarding the right to freedom of conscience and religion, many of which have dealt with the freedom of
religion in Greece. The Court has found that states may not impose overly stringent requirements for
operating a place of worship (Manoussakis et al. v. Greece). Article 9 protects non-religious beliefs; the
Court has said that the values of the article are the foundation of a democratic society: ‘It is in its religious
dimension, one of the most vital elements that go to make up the identity of believers and their conception of
life, but is also a precious asset for atheists, agnostics, sceptics and the unconcerned’ (Kokkinakis v. Greece).

Another aspect of religious freedom is the right of parents to ensure that the religious or moral education of
their children conforms to their own belief. Here the Court has stated that the state is forbidden to pursue an
aim of indoctrination that might be considered as not respecting the parents’ religious and philosophical
convictions (Kjeldsen, Busk, Madsen and Pederson v. Denmark). Further to indoctrination, the Court has
made a distinction between ‘improper proseltysm’ and ‘bearing witness to Christianity’, the former possibly
entailing brainwashing or violence (Kokkinakis v. Greece).

Finally, in a controversial communication regarding assisted suicide, it was stated that freedom of thought
under Article 8, that had hitherto included beliefs such as veganism and pacifism, could be applied to the
applicant’s belief in and support for the notion of assisted suicide for herself. This was rejected by the Court
as her claims did not involve a form of manifestation of a religion or belief, through worship, teaching,
practice or observance as described in the ICCPR (Pretty v. The United Kingdom), citing, inter alia, a case
where the European Commission had found that not all acts which are motivated by religion or belief
constitute ‘religious practice’ (Arrowsmith v. The United Kingdom).

In regard to the right to freedom of conscience and religion under the Inter-American system, the
Commission has ruled on a number of cases concerning Jehovah’s witnesses and legitimate limitations of the
right. The Commission has found that prosecuting members of that religion for refusing to swear oaths of
allegiance, recognise the state and its symbols and to serve in the military is a violation of the right
(Jehovah’s Witnesses v. Argentina (Case 2137)).

The African Commission has also dealt with the freedom of religion; it has, for instance, found harassment
of Jehovah’s witnesses and religious leaders, assassinations and death threats aimed at them and destruction
of religious structures in violation of the right (Free Legal Assistance Group, Lawyers’ Committee for
Human Rights, Union Interafricaine des Droits de l’Homme, Les Témoins de Jehovah v. Zaire,

151 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

Communications 25/89, 47/90, 56/91, 100/93). It has also stipulated that the expulsion of political activists
was denying them, inter alia, the right to freedom of conscience in violation of Article 8 of the African
Charter (Amnesty International v. Zambia, Communication 212/98).

THE RIGHTS TO INTEGRITY

Respect for the integrity of the person requires states to protect the right to life and respect the prohibition of
torture and ill treatment. Both rights are dealt with in this section. The rights to integrity are of utmost
importance. This is reflected by the fact that a) unlike some other rights which contain clauses
acknowledging the permissibility of restricting them on grounds such as the need to maintain public order,
under no circumstances is it possible to justify restrictions to these rights and also because b) these rights
cannot be derogated from in time of public emergency. These two rights are considered to be norms of jus
cogens, that is, fundamental norms binding on all states and which cannot be abrogated even by domestic
law or treaty.

THE RIGHT TO LIFE

The right to life is considered a fundamental human right, because without it, enjoyment of all of the other
rights and freedoms established in international human rights conventions would be rendered nugatory; there
can be no rights if there is no life.

Given the fundamental importance of the right to life to the protection of human rights, under most human
rights instruments the right to life is a supreme right from which no derogation is permitted, even in time of a
public emergency threatening the life of the nation (see Article 4(2) ICCPR, Article 15(2) ECHR and
Article 27(2) ACHR).

One aspect that is generally overlooked with respect to the right to life pertains to the interpretation of the
right to life itself. The Human Rights Committee issued a statement to the effect that under the ICCPR the
expression ‘inherent right to life’ should not be understood in a restrictive manner, and that the protection of
the right to life entails both a negative obligation not to take someone’s life and a positive obligation to
protect the right to life, except in certain exceptional cases. In relation to positive obligations, the Committee
considered that states parties should take all possible measures to reduce infant mortality and to increase life
expectancy, especially measures to eliminate malnutrition and epidemics (see General Comment 6).

152 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

Another aspect that is very important with regard to the right to life is remedy for violations. With regard to
the right to life, the Human Rights Committee has asserted that purely disciplinary and administrative
remedies cannot be deemed to constitute adequate and effective remedies within the meaning of Article 2(3)
ICCPR. The Inter-American Court of Human Rights has stated that ‘individuals lack true freedom if they
cannot design life according to their own goals and strive to achieve their desires’; compensation seeks to
restore the victim to his/her original position enjoyed before the violation or to ensure that the victim gets
other redress that corresponds to the wrong suffered.

STANDARDS

Article 3 Universal Declaration provides that ‘everyone has the right to life, liberty and security of person.’
In all human rights conventions, the right to life is dealt with separately from the right to liberty and security.
The right to life is further developed in several human rights instruments, such as Article 6 ICCPR, Article 6
CRC; Article 9 CMW, Article 2 ECHR, Article 4 ACHR and Article 4 ACHPR.

The protection of the right to life will be examined under the following sub-sections: a) the right not to be
arbitrarily killed by the state; b) disappearances; c) death penalty or capital punishment; and d) positive
obligations arising from the right to life. In addition, this section will examine some problems of
interpretation that arise with regard to the right to life: when the protection of life starts and when it ends.
Therefore attention will be paid to a) the unborn child/abortion; and b) euthanasia/the right to die.

THE RIGHT NOT TO BE ARBITRARILY KILLED BY THE STATE

Article 6(1) ICCPR states that no one shall be ‘arbitrarily’ deprived of his life. Article 4 declares that no
derogation from Article 6 is allowed, not even in an emergency situation. Article 2 European Convention
prohibits the ‘intentional deprivation’ of life and states that everyone shall have the right to life protected by
law, and limits the situation in which deprivation of life is acceptable. Article 15 ECHR provides that this
right is non-derogable in a war or state of emergency, except in respect of deaths resulting from lawful acts
of war.

Article 4(1) ACHR provides that every person has the right to have his life respected. Article 27 provides
that Article 4 is non-derogable in times of war, public danger or other emergency. Article 4 ACHPR states

153 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

that human beings are inviolable. Everyone is entitled to respect for his/her life and the integrity of his/her
person, and no one may be arbitrarily deprived of this right.

Special attention needs to be paid to extra-judicial executions, the paradigm violation of the right to life.
These involve ‘killings committed, condoned or acquiesced by governments’, in the UN system, the
expression ‘extra-judicial, summary and arbitrary executions’, is used. Originally, these terms did not fully
overlap, but over the years the distinction between the three elements has become blurred. Even one of the
most important international instruments in this area, the Principles on the Effective Prevention and
Investigation of Extra-legal, Arbitrary and Summary Executions, fails to define these types of
executions. The character of extra-judicial executions has undoubtedly changed; these crimes have become
more and more related to situations of armed conflict or civil war.

In 1982, the UN Commission on Human Rights appointed a Special Rapporteur on Extralegal, Summary and
Arbitrary Executions. The Special Rapporteur carries out his mandate mainly on the basis of information
brought to his attention by non-governmental organisations, Governments, individuals and
intergovernmental organisations. Communications received by the Special Rapporteur contain specific cases
of alleged extra-judicial, summary or arbitrary executions, death threats, and/or general information about
issues related to the right to life. All information received is examined and analysed by the Special
Rapporteur before being transmitted to the Government concerned. The Special Rapporteur’s work includes
the examination of individual cases and the implementation of on-the-spot visits. The Special Rapporteur
also regularly sends ‘urgent messages’ in cases of imminent executions.

At the UN level, two instruments deserve to be noted in this context: the Principles on the Effective
Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions (1989) and the Basic
Principles on the Use of Force and Firearms by Law Enforcement Officials (1990). Although these
instruments are not legally binding, they assist in determining what constitutes unlawful deprivation of life.

Among the various categories of killings by state officials, international human rights law especially
condemns those carried out on racial grounds. Article 5 CERD obliges states to take measures to prohibit
racial discrimination and provide protection against violence or bodily harm ‘whether inflicted by
government officials or by any individual, group or institution’. The Convention on the Suppression and
Punishment of the Crime of Apartheid defines ‘apartheid’ as a ‘crime against humanity’ and prohibits the

154 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

killing of members of a racial group (Article II). Similarly, the Convention on the Prevention and
Punishment of the Crime of Genocide defines the offence of genocide to entail a number of acts
‘committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group as
such’, including ‘killing members of the group’ (Article I).

It is important to note that not all killings by states belong to the category of extra-legal executions. In certain
circumstances, human rights law does not condemn some types of killings committed by states. It is
recognised that in certain circumstances, for example, law enforcement officials may have recourse to the
use of force. In this regard, it is worth noting that unlike the other human rights instruments, the European
Convention defines which type of killing would not be arbitrary and allows the use of force, only when it is
absolutely necessary, in three specific situations: 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; and c) in action lawfully
taken for the purpose of quelling a riot or insurrection.

‘DISAPPEARANCES’

‘Disappearances’ (or ‘unacknowledged detention’) have been defined as follows:

[T]he act of depriving a person or persons of his or their freedom, in whatever way, perpetrated by agents of
the state or by persons or groups of persons acting with the authorisation, support, or acquiescence of the
state, followed by an absence of information or a refusal to acknowledge that deprivation of freedom or to
give information on the whereabouts of that person, thereby impeding his or her recourse to the applicable
legal remedies and procedural guarantees.’ (Article 2 Inter-American Convention on the Forced
Disappearance of Persons).

‘Disappearances’ are not new in the history of human rights violations. A number of circumstances may be
identified under which disappearance occurs most frequently. The most prominent of these are situations of
internal armed conflict, declarations of a state of emergency and high levels of militarization. The
investigation of disappearances is often hampered by the accompanying violence and chaos. It may be
further complicated by the fact that many disappearances are committed by non-governmental entities. On
the other hand, official authorities (not necessarily the central government) are often responsible for
disappearances and extra-judicial executions. Ineffectiveness of the judiciary, including the lack of judicial
independence, ineffective protection of the right of habeas corpus, non-compliance with immediate and
155 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

accessible registration of detainees, and impunity for violations, are factors that facilitate the actions of
perpetrators.

It has proved very difficult to find a definition of disappearances that encompasses all the elements of this
crime. ‘Disappearances’ involve violations of the right to liberty and security of person, will often involve
torture and other ill treatment of the ‘disappeared person’ (including as a result of the very fact of being
‘disappeared’ and isolated from one’s family for a prolonged period), and often end in death. Indeed,
‘disappeared’ persons often never reappear. Because the fate and whereabouts of ‘disappeared’ persons
remain unknown, it is considered a continuing crime (Article 3 Inter-American Convention on Forced
Disappearance of Persons). ‘Disappearances’ also impact on society as a whole by creating a culture of fear
and insecurity. Finally, the impact on family members of disappearance may lead to such anguish as to
amount to torture or other ill-treatment.

In the early 1990s, the international community took steps to develop further standards that would explicitly
prohibit the practice of disappearances, and deal with both the victims and the perpetrators. In 1992, the UN
Commission on Human Rights adopted a Declaration on the Protection of All Persons from Enforced
Disappearances. At the Inter-American level, the Convention on Forced Disappearance of Persons was
adopted in 1994; it established the definition of enforced disappearances included at the beginning of this
section.

The Rome Statute of the International Criminal Court defines ‘enforced disappearance of persons’ as
‘the arrest, detention or abduction of persons by, or with the authorisation, support or acquiescence of, a
State or a political organisation, followed by a refusal to acknowledge that deprivation of freedom or to give
information on the fate or whereabouts of those persons, with the intention of removing them from the
protection of the law for a prolonged period of time’ (Article 7(2)(i)).

The Human Rights Committee also elaborates on the obligation of states parties with regard to
disappearances in its General Comment No. 6 - Article 6 Right to life. It requires states to take specific and
effective measures to prevent the disappearances of individuals. They should establish effective facilities and
procedures to thoroughly investigate cases of missing and disappeared persons in circumstances that may
involve the violation of the right to life.

156 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

Although ‘disappearances’ sometimes lead to extra-judicial executions, this is not always the case: in some
instances, disappeared persons who have been presumed killed or officially declared dead have later returned
alive. However, extra-judicial executions and disappearances share two major characteristics: the (virtual)
elimination of political opponents (real or assumed), and the denial of accountability.

Within the UN system there is a charter-based body that deals specifically with disappearances: the Working
Group on Enforced and Involuntary Disappearances. The basic mandate of this Working Group is to assist
the relatives of disappeared persons to ascertain the fate and whereabouts of their missing family members.
For this purpose, the Working Group receives and examines reports of disappearances submitted by relatives
of missing persons or human rights organisations acting on their behalf. After determining whether those
reports comply with a number of criteria, the Working Group transmits individual cases to the governments
concerned, requesting them to carry out investigations and to inform the Working Group of the results. The
Working Group deals with the numerous individual cases of human rights violations on a purely
humanitarian basis, irrespective of whether the government concerned has ratified any of the existing legal
instruments that provide for an individual complaints procedure. It essentially acts as a channel of
communication between the families of missing persons and governments, and has successfully developed a
dialogue with the majority of governments concerned with the aim of solving cases of disappearance. With a
view to preventing irreparable damage, the Working Group has also established an urgent action procedure
under which the Working Group’s Chairman is authorised to act on reported cases of disappearance
occurring in between the Group’s sessions, thus helping to avoid any delays in its attempts to save lives.

Finally, it is important to note that in the context of disappearances and extra-judicial executions, the
question of impunity has recently attracted much attention, not only in Latin America but also in other
regions. Impunity refers to a situation where the perpetrators of disappearances and extra-judicial executions
or other human rights violations are not prosecuted and brought to justice. Systematic impunity is likely to
contribute to a quasi-justification, condoned by the authorities in the light of ‘special circumstances’, of the
illegal acts committed by state officials. Many governments and the UN Human Rights Commission have
therefore regularly called for measures against impunity, stating that ‘impunity is simultaneously one of the
underlying causes of enforced disappearances and one of the major obstacles to the elucidation of cases
thereof’ (UN Human Rights Commission Resolution 1998/40).

DEATH PENALTY OR CAPITAL PUNISHMENT

157 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

The death penalty has been the subject of controversy since the end of the 19th century. The first countries to
abolish the death penalty were Venezuela (1863), Portugal (1867) and Costa Rica (1877). Gradually, all
European countries followed and in the last few years, the death penalty has not been carried out in any of
the countries that are members of the Council of Europe.

The UDHR does not contain any provision on capital punishment. Article 3 UDHR states: ‘Everyone has the
right to life, liberty and security of person.’ This provision, however, cannot be interpreted as constituting a
ban on the death penalty. The same applies to the provisions of the ICCPR. The ICCPR stipulates, however,
that the sentence of death may be imposed only for the most serious crimes and it may not be imposed on
pregnant women or juvenile offenders (see paragraph below).

In 1989, the UN General Assembly adopted the Second Optional Protocol to the ICCPR, aiming at the
abolition of the death penalty. Under the terms of the Protocol no one may be executed within the
jurisdiction of a state party to the Protocol. Moreover, parties bind themselves to take measures to abolish the
statutory provisions, which allow the imposition of the death penalty. No reservation is admissible to the
Protocol, except for the application of the death penalty in time of war.

The ECHR also contains provisions on the death penalty. The Protocol No. 6 to the European Convention
for the Protection of Human Rights and Fundamental Freedoms has been added to the Convention.
Article 1 of the Protocol states that the death penalty shall be abolished, but provision is made for the
application of a statutory death penalty as a sanction for certain acts in time of war or in case of a threat of
war. More recently, the Council adopted Protocol No. 13 to the European Convention for the Protection
of Human Rights and Fundamental Freedoms abolishing the death penalty in all circumstances. This is
the first legally binding international treaty to abolish the death penalty in all circumstances with no
exceptions. When it was opened for signature in May 2002, 36 countries signed it, as of July 2004 it has been
ratified by 24 states.

Article 15 ECHR provides that the provisions of the Protocol are non-derogable; that is, no derogation can be
made from them in the event of an emergency, nor are any reservations permitted.

According to Article 4(3) ACHR capital punishment cannot be re-established in states that have abolished it.
In addition, the Second Protocol to the ACHR adopted in 1990 provides for the abolition of the death

158 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

penalty. As in the case of the ECHR, Article 27 ACHR prohibits taking derogating measures from the right
to life in case of emergency.

The ACHPR does not contain any provision concerning the death penalty. The African Commission has
adopted a resolution entitled ‘Urging States to Envisage a Moratorium on the Death Penalty’, in which it
‘urges all state parties to the African Charter on Human and Peoples’ Rights that still maintain the death
penalty to comply fully with their obligations under the treaty and to ensure that persons accused of crimes
for which the death penalty is a competent sentence are afforded all the guarantees in the African Charter’.
In the same resolution, the African Commission called upon states that still apply the death penalty to impose
it only for the most serious crimes and to consider its possible abolishment.

It should also be noted that in several conventions on extradition, a state can refuse to extradite a person who
risks the death penalty in the state requesting the extradition (see, e.g., Article 11 of the European
Convention on Extradition). This is also the current position of the Human Rights Committee (see Judge v.
Canada).

Therefore, although under general international law, the abolition of the death penalty is not expressly
required, there is a movement towards abolition as noted above. The goal of abolition is to be found in
several international instruments drafted for this specific purpose, such as the Second Optional Protocol to
the ICCPR aiming at the Abolition of the Death Penalty; Second Protocol to the American Convention on
Human rights to Abolish the Death Penalty; and Protocols No. 6 and 13 ECHR. This movement is also
supported by several resolutions of political bodies, which have expressed their commitment to progressively
restrict the application of the death penalty (see, e.g., UNGA Resolution 1997/12 of April 1997). It is also
relevant to note that according to the statutes of the international criminal tribunals, the International
Criminal Tribunal for the Former Yugoslavia (ICTY), the International Tribunal for Rwanda (ICTR), and the
International Criminal Court (ICC), the death penalty cannot be imposed. The intention of the international
community to abolish capital punishment is also made clear by Article 6(6) of the ICCPR that points out that
nothing therein shall be invoked to delay or to prevent the abolition of capital punishment by any state party
to the Covenant.

159 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

The Human Rights Committee has interpreted Article 6 (paras. 2 and 6) ICCPR as suggesting that abolition
of the death penalty is desirable, and that measures to that end should be considered as progress in the
enjoyment of the right to life within the meaning of Article 40.

Nonetheless, there is a debate as to the compatibility of the death penalty and the right to life. The ICCPR,
for example, maintains the death sentence only for the most serious crimes. On this issue, a member of the
Human Rights Committee remarked that the permission of the death penalty ‘merely provides a possibility
for states parties to be released from their obligations under Articles 2 and 6 of the ICCPR, namely to respect
and ensure to all individuals within their territory and under their jurisdiction the inherent right to life
without any distinction, and enables them to make a distinction with regard to persons having committed the
most serious crimes’ (see dissenting opinion of Mr. Bertil Wennergren in Kindler v. Canada).

Among the arguments put forward by those who support the abolition of the death penalty is that the risk of
executing the innocent precludes the use of the death penalty. This argument is supported by evidence that
many mistakes have been made in sentencing people to death. Another argument in support of abolition
centres on its arbitrariness and discrimination. According to this line of reasoning, the death penalty does not
single out the worst offenders, but rather selects an arbitrary group based, for instance, on the quality of the
defence counsel. In addition, it is difficult to reconcile the fact that corporal punishment is prohibited under
international law (prohibition of torture or cruel, inhuman and degrading treatment), while capital
punishment apparently is not.

Given that capital punishment is not completely prohibited under international law, it is important to ensure
that in countries where the death sentence is permitted international standards and safeguards should be
applied and adhered to. Several international treaties as well as commentaries from the various human rights
monitoring bodies and resolutions by the United Nations have highlighted these standards and safeguards.
Some of these limitations are discussed below.

LAWFUL SANCTION

Human rights instruments have established that the death penalty must be prescribed by national law. This
requirement is established by Article 6 ICCPR, Article 4 ACHR and Article 4 ACHPR. This requirement is
also implicit in Article 2 ECHR. If capital punishment is not provided for by national law, carrying out a
death sentence constitutes an extra-legal execution prohibited by all the above-mentioned provisions.
160 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

MOST SERIOUS CRIMES REQUIREMENT

Article 6(2) of the ICCPR states that ‘In countries which have not abolished the death penalty, sentence of
death may be imposed only for the most serious crimes in accordance with the law in force at the time of the
commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on
the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a
final judgement rendered by a competent court.’ The Economic and Social Council (ECOSOC) has
interpreted most serious crimes as those whose scope ‘does not go beyond intentional crimes with lethal or
extremely grave consequences.’

Furthermore, the jurisprudence of the Human Rights Committee shows that sentencing someone to death for
aggravated robbery in situations where the use of firearms does not produce any death, would not meet the
most serious crime requirement and death penalty in such a situation would violate Article 6 (2) of the
Covenant (see, e.g., Lubuto v. Zambia).

The Inter-American Court also addressed this issue in an individual case, in which it found that the
application of the death penalty for crimes that do not exhibit characteristics of ‘utmost seriousness’ violates
the right to life (see, e.g., Hilaire, Constantine and Benjamin et al. v. Trinidad and Tobago).

The requirement that the death penalty may only be applied for the most serious crimes has also been
emphasised by the Special Rapporteur on Extrajudicial, Arbitrary or Summary Executions (see, e.g., Doc.
E/CN.4/1998/68 para.94).

NON-RETROACTIVITY

A death sentence must be imposed only ‘in accordance with the law in force at the time of the commission of
the crime’ (Article 6(2) ICCPR). In other words, the penalty for the offence must have been laid down at the
time it was committed. Similar restrictions are set forth in Article 4(2) ACHR and Article 2(1) ECHR. In
addition, if the law has changed to provide a less severe penalty than that which existed at the time the
offence was committed, the convicted person must benefit from the lighter penalty (see Article 15 ICCPR,
Article 7 ECHR, and Article 9 ACHR).

FAIR TRIAL SAFEGUARDS

161 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

Apart from substantive restrictions on the use of the death penalty, human rights instruments also establish
certain procedural requirements that must be met in capital punishment cases. These include, for example,
international standards for fair trial set forth in Article 14 of the ICCPR. Furthermore, for proceedings that
may lead to the imposition of the death sentence, it is required that the highest standards of due process are
followed. These include independence, competence, objectivity and impartiality of judges and juries; that all
defendants facing capital punishment benefit from the services of a lawyer; and that defendants must be
presumed innocent until their guilt has been proved beyond a reasonable doubt. Failure to safeguard these
requirements in cases involving the death sentence would amount to a violation of the right to life.

It is clear from the various UN resolutions and recommendations by treaty bodies, that more protection of
due process is required for capital punishment offences than for trials of other offences.

Furthermore, international law requires that those sentenced to death should have the right to seek pardon or
commutation of the sentence (Article 6(4) ICCPR). The American Convention is explicit in this regard,
stating that ‘Capital punishment shall not be imposed while such a petition [amnesty, pardon or commutation
of death sentence] is pending decision by the competent authority’ (Article 4(6) ACHR). The Geneva
Conventions also establish this requirement for prisoners of war and protected civilians (see, Article 106
Third Geneva Convention and Article 73 Fourth Geneva Convention).

Other procedural requirements with which states must comply are, inter alia, that adequate time between
sentence and execution is allowed, that officials responsible for execution be informed of the status of cases,
that executions should not be carried out in public and that the treatment of prisoners under sentence of death
be guided by the UN Standard Minimum Rules for the Treatment of Prisoners, so as to avoid any
exacerbation of their suffering.

METHODS OF EXECUTION

Related to the death penalty is the method by which it is carried out. A relationship exists between the right
to life and freedom from torture. A person sentenced to death has the right not to be tortured, but conditions
prior to execution or the manner in which an execution is carried out may constitute torture or other ill-
treatment. Relevant cases on the topic have been dealt by the European Court of Human Rights and the
Human Rights Committee (see, e.g., Soering v. The United Kingdom and Ng v. Canada).

162 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

JUVENILE OFFENDERS AND PREGNANT WOMEN

The death penalty is also restricted in that certain categories of individuals may not be executed under any
circumstances. According to Article 6(5) ICCPR the death sentence should not be carried out on those below
eighteen years of age or on pregnant women. Article 37 CRC also stresses the rule that capital punishment
shall not be imposed for offences committed by persons below eighteen years of age. This requirement has
also been established by Article 4(5) ACHR and by the two Additional Protocols to the Geneva Conventions
that rule out the death penalty for offenders who were under eighteen years of age when the crime was
committed.

The Additional Protocols to the Geneva Conventions expand on the prohibition of Article 6(5) ICCPR,
forbidding executions of any ‘mother having dependent infants’ (Article 76 Additional Protocol I to the
Geneva Conventions) and ‘mothers of young children’ (Article 6 Additional Protocol II to the Geneva
Conventions).

The American Convention on Human Rights adds to this list of categories of individuals who may not be
executed, those individuals who are over 70 years of age (Article 4(5) ACHR). The ECOSOC has also called
for setting an upper age limit on death sentences (see ECOSOC Resolution 1989/64 of 24 May 1989).
Although not provided for in legally binding instruments, other categories of people that are exempt from the
death penalty include persons who have become insane and those suffering from mental retardation or
limited mental competence (see, e.g., ECOSOC Resolution 1989/64 of 24 May 1989).

POSITIVE OBLIGATIONS ARISING FROM THE RIGHT TO LIFE

States not only have to refrain from intentional and unlawful deprivation of life, but must also take
appropriate steps to safeguard the lives of those within their jurisdiction. Human rights supervisory bodies
have identified a variety of positive obligations with which states are required to comply.

Among these positive duties, it is worth mentioning a) the duty to investigate killings and b) the duty to
punish offenders.

By reading the right to life in conjunction with the general duties to ‘guarantee’ (Article 1(1) ACHR),
‘ensure’ (Article 2(1) ICCPR) or ‘to secure’ (Article 1 ECHR), we find an obligation of states to establish

163 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

effective facilities and procedures to investigate killings and cases of missing or disappeared persons in
circumstances that may involve a violation of the right to life.

The European Court tends to call these obligations the ‘state’s procedural obligations to protect the right to
life’ (see, e.g., Timurtas v. Turkey), because they refer to the way in which the state must ‘proceed’ after a
deprivation of life has occurred under its jurisdiction or after someone has disappeared.

The Inter-American and the European Court have stressed that the responsibility of the state to proceed with
an ‘effective’ investigation is engaged even when there is no evidence that agents of the state have been
implicated in the killing or disappearance and even if members of the victim’s family or others have not
lodged a formal complaint about the killing with the authorities (see, e.g., Velásquez Rodríguez v. Honduras
and Yasa v. Turkey). This duty is more stringent when the disappeared person was last held in state custody.
In such circumstances it is incumbent upon the state to provide a plausible explanation as to the detainee’s
fate, as well as to ensure some form of independent monitoring (see, e.g., Velásquez Rodríguez v. Honduras
and Sadak et al. v. Turkey).

If the state fails to undertake an official investigation it would be in breach of the right to life. However, it
would also entail a breach of the obligation if, after having investigated, the investigation is considered by
the supervisory organs to be ‘ineffective’. The human rights monitoring organs have referred to various
reasons for considering an investigation ‘ineffective’, including, for example, because it was not initiated
promptly and immediately after someone’s death; because it was short in length and limited in scope;
because it contained unexplained failures to take obvious steps; or due to the lack of independence of the
organs entrusted to investigate (see, e.g. Velikova v. Bulgaria and Kaya v. Turkey).

States must also protect the right to life by punishing the perpetrators of arbitrary killings. After an arbitrary
killing has been committed within the jurisdiction of a state, the state has the duty to prosecute perpetrators
and bring those responsible to justice. According to the Human Rights Committee, some form of criminal
proceeding is necessary. As it notes, in the event of a violation of the right to life, disciplinary and
administrative measures against those responsible might not fully discharge the state’s international
responsibility; it may be obligated to resort to criminal proceedings.

THE UNBORN CHILD

164 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

The protection of the right to life raises the question of whether the unborn child is protected. Article 1
ICCPR, for example, declares that ‘every human being’ has the inherent right to life, while in respect to other
rights the expressions used are ‘everyone’ and ‘every person’. This use of different terminology raises the
question whether ‘every human being’ has a broader meaning than ‘everyone’ and could therefore be
interpreted to include the unborn child. The Human Rights Committee has not commented on this issue
directly. However, in both its case-law and its concluding observations, it has found that, for example, the
criminalisation of abortion can have implications regarding the right to life. The Committee in this instance
was of the view that suicides, which young females commit as a result of failure to perform an abortion due
to its criminalisation by the state, may count as violation of the right to life. The Committee called on the
state to take ‘all necessary legislative and other measures to assist women and particularly adolescent girls,
faced with the problem of unwanted pregnancies to obtain access to adequate health and educational
facilities.’ (Concluding Observations on Ecuador (1998)). The implication of such views is that countries are
obliged to carefully analyse the consequences of criminalising abortions. Failure to prevent unnecessary
deaths due to anti-abortion laws would raise issues pertaining to the obligation to ensure that everyone
enjoys the right to life.

The issue of the unborn child is clearer at the Inter-American level. Article 4 American Convention requires
the right to life to be protected ‘in general, from the moment of conception.’ The Inter-American
Commission, however, seems to question whether Article 4 American Convention accords absolute
protection (see Baby boy case v. The United States of America (Case 2141)).

EUTHANASIA

The protection of the right to life raises the question whether it includes the right to die. A closely related
issue concerns the question of euthanasia and assisted suicide. Euthanasia is the performance of an act by a
third party that intentionally causes a person’s death for humanitarian reasons. An example would be giving
a patient, upon his/her request, a lethal injection that would end his/her life. On the other hand, assisted
suicide is where the last action that causes death is performed by the person who dies, but with the assistance
of another person. An example of this would be a person swallowing an overdose of drugs provided by a
doctor. Very few cases have been brought to international supervisory bodies regarding euthanasia, therefore
it remains unclear how it relates to the right to life. So far, it seems, for instance, that Article 2 ECHR does
not permit unrestricted euthanasia (see Pretty v. The United Kingdom).

165 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

SUPERVISION

The right to life has been dealt with by all supervisory bodies within the UN and the regional systems. The
issue that has been developed the most through case-law is the arbitrary deprivation of life.

The Human Rights Committee has confirmed that states have a strict duty not to kill people arbitrarily. It has
pointed out that this duty entails a positive obligation for the state to investigate all state killings and punish
any improper killings. For example, in the case of Bautista de Arellana v. Colombia the Committee held
that, ‘purely disciplinary and administrative remedies cannot be deemed to constitute adequate and effective
remedies within the meaning of Article 2(3) of the Covenant, in the event of particularly serious violations of
human rights, notably in the event of an alleged violation of the right to life’. Therefore, according to the
Committee, in the event of serious violations of human rights, such as the right to life, purely disciplinary
and administrative remedies cannot be deemed to constitute adequate and effective remedies within the
meaning of Article 2(3) ICCPR.

The Committee has also dealt with cases in which the death could not be directly attributed to the action of
the police. In Dermit Barbato v. Uruguay, the Committee considered that a state would be in violation of the
right to life if either by act or by omission it does not take adequate measures to protect the life of an
individual while in custody. In this case, the state was asked to bring any person found to be responsible for
the death to justice and to pay appropriate compensation to the family. An interesting feature in this case is
that the Committee found it unnecessary to make a finding that state authorities killed the victim. It found a
breach of Article 6(1) ICCPR (right to life) on the basis of the state’s failure to take adequate measures to
prevent the victim’s death while he was in their custody.

The Human Rights Committee has recognised the role of law enforcement agents, as far as violating the right
to life is concerned, especially in the area of arbitrary killings, which it notes is a matter of utmost gravity. It
has recommended that the law must strictly control and limit the circumstances in which a person may be
deprived of his life by such authorities.

As to the issue of disappearances, the Human Rights Committee has dealt with this topic in several cases. In
Bautista de Arellana v. Colombia, for example, the Committee found that the right to life under Article 6
ICCPR is violated when the state fails to prosecute criminally and punish a person who is known to be
responsible for the disappearance and subsequent death of a person. In this particular case, the Colombian
166 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

government was found to have violated Article 6 ICCPR for only applying disciplinary sanctions to the
military officers who caused the death of Nydia Erika Bautista de Arellana, a political activist. Moreover, the
Committee found a violation of the right to effective remedy on the basis that awarding Nydia’s family
compensation by an administrative tribunal does not constitute adequate and effective remedies within the
meaning of Article 2(3) ICCPR in the event of particularly serious violations of human rights (see also
Mojica v. Dominican Republic). In Almeida de Quinteros and Quinteros Almeida v. Uruguay, which was
brought to trial by the victim’s mother, the Committee found that the mother herself was also ‘a victim of the
violations of the Covenant, in particular of Article 7, suffered by her daughter’. Thus, the stress and anguish
of the mother caused by the disappearance of her daughter and by the continuing uncertainty concerning her
fate amounted to a violation of Article 7 ICCPR. The European Court has also found a violation of Article 3
(ill-treatment) for the ‘anguish and distress’ suffered by relatives of a ‘disappeared person’ (see e.g. Kurt v.
Turkey).

The Human Rights Committee has mainly dealt with death penalty cases when considering the fairness of
trials that result in a death sentence. The Committee has found that any failings in the trial constitute a breach
of the right to life as well as provisions in the right to a fair trial (see, e.g., Johnson (Errol) v. Jamaica).

The Human Rights Committee has followed to a large extent the principle developed by the ECHR in the
Soering case. In its General Comment No. 20 - Article 7 Replaces General Comment No. 7 concerning
prohibition of torture and cruel treatment or punishment the Committee noted that the death penalty
‘must be carried out in such a way as to cause the least possible physical and mental suffering’. As to the
methods of execution, in Ng v. Canada the Committee found that by extraditing Ng to California, Canada
had violated Article 7 (prohibition of torture and ill treatment) because ‘execution by gas asphyxiation may
cause prolonged suffering and agony and does not result in death as swiftly as possible, as asphyxiation by
cyanide gas may take over ten minutes’. Recently, the Committee has stated that for countries that have
abolished the death penalty, there is an obligation not to expose a person to the real risk of its application.
Thus, in the case of Judge v. Canada, the Committee noted that by deporting the author to the United States
where he was under sentence of death, Canada established the crucial link in the causal chain that would
make possible the execution of the author and therefore violated Article 6 of the Covenant. With regard to
abortion issues, the Human Rights Committee has confirmed that abortion is compatible with Article 6
ICCPR and that anti-abortion laws may breach the right to life of the woman. The Committee has examined
the issue of euthanasia in very few cases. In this regard, it is worth noting that the Human Rights Committee
167 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

expressed its concerns regarding the Act Concerning Review Procedures on Euthanasia and Assisted Suicide
in the Netherlands. In its observations, the Committee expressed its belief that the ICCPR obliges the state to
apply the most rigorous scrutiny to determine whether the state party’s obligations to ensure the right to life
are being complied with as required by Articles 2 and 6 of the Covenant. It therefore seems that euthanasia
and assisted suicide would only be permissible under the ICCPR in extreme circumstances of ‘voluntary and
well considered request, unbearable circumstances and where no other reasonable alternative is available’
(see ICCPR Concluding Observations on The Netherlands 2001).

At the European level, the ECHR seems to require a similar approach as the ICCPR. In McCann et al. v.
The United Kingdom, the European Court found that the killing of three terrorists suspected of involvement
in a bombing mission represented an unjustifiable taking of life, because the authorities did not appropriately
plan and control the use of force. In the case of Kaya v. Turkey, the Court found a violation of Article 2
ECHR, read together with Article 1 (duty to secure Convention rights), resulting from the absence of an
effective investigation into a death carried out by military forces under contested circumstances.

The European Court has dealt with the death penalty in very few cases. In Soering v. The United Kingdom,
which concerned an imminent extradition of the applicant from The United Kingdom to the United States
where he feared being sentenced to death and being subjected to the ‘death row’ phenomenon, the European
Court found that the extradition of a person to a country where he faces the death penalty does not constitute,
in itself, a violation the right to life or the right to freedom from torture under the European Convention. The
Court found that in this specific case, however, the very long period of time he would spend on death row
and the personal circumstances of the applicant, taking into account his age and mental state at the time of
the offence, his extradition to the United States would expose him to a real risk of treatment that would
amount to a violation of Article 3.

In a case concerning abortion, the former European Commission did not exclude the possibility that in
certain circumstances, the right to life could offer protection to the unborn child, without however specifying
what those ‘circumstances’ were (see, e.g., H v. Norway). As matters stand, however, the grounds for an
abortion that were approved in individual cases appear to be very wide and capable of covering most cases
(see Paton v. The United Kingdom and H v. Norway).

168 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

The Inter-American Court of Human Rights has developed a similar pattern with regard to the right to life,
including one of the most important bodies of jurisprudence on disappearances. Although neither the
American Declaration nor the American Convention contains an explicit prohibition of this practice, the
Court has found in cases against Honduras that the state committed a violation of the right to life because it
failed to fulfil its positive obligation to act preventively and showed ‘lack’ of respect for the right to life by
virtue of ‘arbitrary’ taking of life by the state, carried out or tolerated by officials. In the landmark Velásquez
Rodríguez v. Honduras case, the Court found, inter alia, that there was a systematic practice of
disappearances in Honduras between 1981 and 1984 that was ‘carried out or tolerated by Honduran officials’
and that Mr. Velásquez had disappeared within the framework of that practice. The context in which the
disappearance occurred and the lack of any information seven years later in regard to his fate created a
reasonable presumption that he had been killed. Even if there was a minimal margin of doubt in this respect,
it must be presumed that his fate was decided by authorities who systematically executed detainees without
trial and concealed their bodies in order to avoid punishment. This, together with the failure to investigate,
was a violation by Honduras of the legal duty to ensure to every person subject to its jurisdiction the
inviolability of the right to life and the right not to have one’s life taken arbitrarily under Article 4 of the
American Convention. Another important decision regarding disappearances is Bámaca Velásquez v.
Guatemala. The Inter-American Court has further developed the positive obligations regarding the right to
life to impose a duty on the state to provide assistance for preserving human life (Villagrán Morales et al. v.
Guatemala).

The Inter-American Commission has dealt with the question of the death penalty on many occasions, and has
adopted an abolitionist approach in a number of cases. When Peru amended its constitution to add terrorism
to the list of crimes where the death penalty would apply, the Inter-American Commission considered that it
was an obvious violation of Peru’s obligations under the American Convention. The Commission has also
ruled that the application of the death penalty may constitute cruel, inhuman and degrading treatment (see
Report on the Situation of Human Rights in Peru (1993)).

The African Commission has made a number of findings of serious or massive violations of the right to life.
Examples of violations include extra-judicial killings, denial of medication to a patient with a serious
condition, arbitrary and brutal executions, and a series of detentions and arrests that were found to violate
Article 4 ACHPR, even though no loss of life resulted.

169 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

With regard to disappearances, the African Commission found in a case against Chad that the state had
violated Article 4 ACHPR because it had not attempted to prevent the disappearance or investigate
afterwards. It was thus established that the state’s failure to ‘protect’ individuals under its jurisdiction
constituted a violation of Article 4 (see Commission Nationale des Droits de l’Homme et des Libertes v.
Chad, Communication 74/92). The African Commission has also found violations relating to extra-judicial
executions in a number of cases, all of them under Article 4. As an example, in three cases against Malawi,
the violation occurred when the police shot and killed peacefully striking workers (see Krishna Achutan (On
behalf of Aleke Banda), Amnesty International on behalf of Orton and Vera Chirwa v. Malawi,
Communications 64/92, 68/92 and 78/92). In other cases against Sudan, the African Commission has also
emphasised that a state has the responsibility to protect all persons residing under its jurisdiction, irrespective
of whether the executions were committed by government forces (see Amnesty International, Comité Loosli
Bachelard, Lawyers Committee for Human Rights and Association of Members of the Episcopal
Conference of East Africa v. Sudan, Communications 48/90, 50/91 and 52/9).

As to the death penalty, the African Commission found in a case against Nigeria that even though Article 4
does not favour any side in the death penalty debate, the trial itself in the case violated Article 7 ACHPR,
making the subsequent imposition of the death penalty arbitrary and in violation of Article 4 ACHPR (see
e.g., International Pen, Constitutional Rights Project, Interights on behalf of Ken Saro-Wiwa Jr. and Civil
Liberties Organisation v. Nigeria, Communications 137/94, 154/96 and 161/97).

THE RIGHT TO FREEDOM FROM TORTURE OR CRUEL, INHUMAN OR DEGRADING

TREATMENT OR PUNISHMENT

In all societies there is agreement that torture is a human rights violation that is not to be tolerated. Under
human rights law and humanitarian law, freedom from torture is a right protected under all circumstances -
in times of internal or international disturbances, under a formal state of emergency and in war situations.
Although torture, in all its different forms, still occurs frequently world-wide, it can be argued that the
prohibition of torture has attained the status of international customary law.

The basic formula, ‘torture or cruel, inhuman or degrading treatment or punishment’ was coined by Article 5
UDHR. All subsequent human rights treaties contain a similar prohibition. Although it was not the intention
of the drafters of the Universal Declaration to differentiate between the different components of this right,

170 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

the practice of some of the supervisory bodies, in particular the European Court, has made it necessary to
distinguish between them. Before discussing the main components included in this right, a few points need to
be emphasised. Firstly, with regard to each component, the prohibition is absolute and non-derogable even in
a situation of public emergency. Secondly, any recourse to torture or cruel, inhuman or degrading treatment
or punishment is prohibited, even if it is demonstrated that law and order cannot be maintained without such
recourse (see, e.g., Tyrer v. The United Kingdom). Finally, the victim’s conduct is irrelevant, and there is no
justification for using torture or cruel, inhuman or degrading treatment or punishment because of a suspicion,
however well-founded, that a person may be involved in criminal activities (see, e.g., Aydin v. Turkey).

DEFINING TORTURE

A definition of torture is found in Article 1 CAT:

For the purposes of this Convention, the term ‘torture’ means any act by which severe pain or suffering,
whether physical or mental, is intentionally inflicted on a person for such purposes a obtaining from him or a
third person information or a confession, punishing him for an act he or a third person has committed or is
suspected of having committed, or intimidation or coercing him or a third person, or for any reason based on
discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the
consent or acquiescence of a public official or other person acting in an official capacity.

Moreover, case-law and general comments by international and regional courts and human rights
organisations are invaluable sources in defining what kind of acts are considered torture. One definition often
used by international human rights organs and courts is ‘an aggravated and deliberate form of cruel, inhuman
or degrading treatment or punishment’, with the purpose to obtain information or confessions (see, e.g.,
Denmark, Norway, Sweden, and The Netherlands v. Greece). Thus, for torture to occur, certain criteria
must be met, such as: a) the method used must be degrading treatment; b) it must be inhuman treatment; c) it
must be an aggravated form of inhuman treatment, inflicted for specific purposes; and d) it must reach a
certain level of severity.

DEFINING CRUEL, INHUMAN, OR DEGRADING TREATMENT OR PUNISHMENT

No definition exists concerning cruel, inhuman, or degrading treatment or punishment, as it is very difficult
to draw sharp distinctions between the different forms of treatment or punishment. According to the Human

171 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

Rights Committee, these distinctions depend on the nature, purpose and severity of the particular treatment.
The European Court, moreover, has observed that ill-treatment must attain a minimum level of severity if it
is to fall within the scope of the prohibition. The assessment of this minimum is relative as it depends on the
circumstances of the case. Different factors are relevant here such as a) the duration of the treatment; b) its
physical or mental effects; and c) the age, sex, and state of health of the person. It seems then that in order to
decide whether torture or cruel, inhuman, or degrading treatment or punishment has occurred, it is important
to apply both an objective and a subjective test. Treating a young and healthy adult in a certain way might
amount to degrading treatment; the same treatment, however, might amount to torture if inflicted on a child
or an elderly person.

STANDARDS

Article 5 UDHR states that no one shall be subjected to torture or to cruel, inhuman or degrading treatment
or punishment. The CAT is considered today the most authoritative international legal standard on the
subject of torture. Articles 1 to 16, which are the substantive articles, relate not only to torture but also refer
to other forms of cruel, inhuman or degrading treatment or punishment. State obligations under this
convention include, inter alia, the following provisions: a) no statement made under pressure of torture may
be invoked as evidence in any proceedings (Article 15); and b) every state party is obliged to institute legal
proceedings against anyone who is alleged to have committed acts of torture, not only against persons who
have committed such acts on its territory, but also against foreigners who have committed such acts
elsewhere (Articles 6 and 7).

Article 7 ICCPR provides protection against torture, or cruel, inhuman or degrading treatment or
punishment. In its General Comment No. 20 - Article 7 Replaces General Comment No. 7 concerning
prohibition of torture and cruel treatment or punishment, the Human Rights Committee notes that it is the
duty of states parties to afford everyone protection through legislative and other measures against the acts
prohibited by Article 7, ‘whether inflicted by people acting in their official capacity, outside their official
capacity or in a private capacity’. This prohibition extends to corporal punishment, including excessive
chastisement ordered as punishment for a crime or as an educative or disciplinary measure. States parties
must not expose individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment
upon return to another country by way of their extradition, expulsion or refoulement.

172 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

The CRC provides protection in all areas of importance in order for a child to have a meaningful and
dignified existence. Article 37(a) provides protection against torture, or other cruel, inhuman or degrading
treatment or punishment, and emphasises that capital punishment and life imprisonment without possibility
of release may not be imposed on persons below eighteen years of age. Article 10 CMW prohibits torture or
cruel, inhuman or degrading treatment or punishment.

At the regional level, Article 3 ECHR and Article 5(2) ACHR contain a prohibition against torture and other
forms of ill-treatment though the wording is quite different. Both conventions set out that no one shall be
subjected to torture or to inhuman or degrading treatment or punishment, a general negative obligation, but
the ACHR then adds that ‘Everyone has the right to have his physical, mental and moral integrity respected’,
stressing that the obligation of the state is not only to refrain from torture and ill-treatment, but also to
respect the dignity of the person. It is worth noting that at the Inter-American level a specific convention on
torture was adopted in 1985. The Inter-American Convention on Torture expands upon the provisions of
Article 5 ACHR, which prohibits torture and cruel, inhuman or degrading punishment or treatment and can
be invoked before the Inter-American Court to interpret the provisions of Article 5 ACHR. It is worth noting
that the Convention contains a definition of torture (Article 2) that is broader than the one contained in
Article 1 CAT, potentially encompassing more acts of coercion than may be covered by the CAT definition.

Article 5 ACHPR essentially protects dignity. A non-exhaustive list of practices that could lead to the
violation of dignity is provided and torture and cruel, inhuman and degrading punishment are explicitly listed
as examples.

The European Committee for the Prevention of Torture (ECPT) has, since its establishment in 1989,
developed a number of standards aimed at protecting detainees from torture and inhuman or degrading
treatment or punishment. These cover a range of matters such as solitary confinement, discipline, contact
with the outside world, and complaints and inspection procedures.

In addition to the main international human rights conventions, other instruments have been adopted which
are relevant to the protection against torture, such as the four Geneva Conventions (1949) which contain a
common Article 3, under which torture and humiliating and degrading treatment is prohibited in international
as well as internal armed conflicts; the Standard Minimum Rules for the Treatment of Prisoners (1955);
and the Principles of Medical Ethics Relevant to the Role of Health Personnel (1982), which protect

173 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

prisoners and detainees against torture and other cruel, inhuman or degrading treatment or punishment. In
addition, Article 5 of the Statute of the International Criminal Tribunal for the Former Yugoslavia (1993),
which also applies for the International Criminal Tribunal for Rwanda (1993), sets out how acts of torture
can be prosecuted as crimes against humanity. Article 7 of the Rome Statute for the International
Criminal Court (1998) also establishes that torture can constitute a crime against humanity.

With regard to standards prohibiting torture, emphasis should be place on a) the principle of non-refoulement
and b) the conditions of imprisonment or detention.

NON-REFOULEMENT

A special aspect of the right to freedom from torture is the concept of non-refoulement (i.e. ‘non-return’), an
established principle of customary international law that prohibits states to expel, deport or extradite persons
to countries where they face torture or ill-treatment. Non-refoulement is a fundamental rule of asylum law
and several human rights instruments forbid the return of a person who has reason to fear for his/her life or
physical integrity in his/her country of origin. Article 3 CAT stipulates that states may not expel, return
(refouler) or extradite persons to countries where they are in danger of being subject to torture and stipulates
that states have a duty to take into account all relevant considerations when determining whether there are
grounds to believe that the person is in danger. Article 33 of the Convention relating to the Status of
Refugees also contains the principle of non-refoulement. Although not explicitly set out in Article 7 ICCPR,
the Human Rights Committee has deduced from that article that states are obliged not to expose persons to
‘the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country
by way of their extradition, expulsion or refoulement’ (General Comment No. 20 - Article 7 Replaces
General Comment No. 7 concerning prohibition of torture and cruel treatment or punishment, para. 6).

A number of regional instruments also forbid states to expel persons in danger of being subjected to torture.
Article 22(8) ACHR states that ‘in no case may an alien be deported or returned to a country, regardless of
whether or not it is his country of origin, if in that country his right to life or personal freedom is in danger of
being violated because of his race, nationality, religion, social status, or political opinions’. Article 2(3) of
the AU Convention Governing the Specific Aspects of Refugee Problems in Africa stipulates that states
may not subject persons to measures such as rejection at the frontier, return or expulsion, which would
compel them to return to or remain in a territory where their life, physical integrity or liberty would be

174 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

threatened for reasons of race, religion, nationality, membership of a particular social group or political
opinion. Article 12(3) ACHPR further establishes the rights of persons to asylum ‘when persecuted’. Under
the auspices of the CoE, there is no explicit prohibition of return, but Article 3 (prohibition of torture) ECHR
implies this prohibition.

CONDITIONS OF IMPRISONMENT OR DETENTION

A group that is especially vulnerable to violations of the right to freedom from torture and ill-treatment are
persons detained by the state. Detainees find themselves in a particularly vulnerable position. They do not
enjoy the right to freedom of movement and they are not given a choice regarding their place of detention.
Their contact with the outside world is limited and highly regulated. Prisoners, for instance, must submit to
the discipline of prison life and to rules regulating their behaviour and treatment. To protect those in custody
several basic rules have been formulated. The Standard Minimum Rules for the Treatment of Prisoners, first
adopted in 1955, set out in great detail the minimum conditions acceptable in the treatment of prisoners,
including those under arrest or awaiting trial, or arrested and imprisoned without charge. Among the
requirements are: a) minimum floor space and cubic content of air for each prisoner; b) adequate sanitary
facilities; c) clothing which in no manner should be degrading or humiliating; d) a separate bed; and e) food
of adequate nutritional value. These minimum requirements should always be complied with, regardless of
the financial situation of the state concerned.

The rights of detained persons are not limited to those in prison, but apply to anyone deprived of liberty
under the laws and authority of the state, whether such person is held in a hospital, in particular a psychiatric
hospital, a detention camp, a correctional institution, or elsewhere.

Detention conditions, such as overcrowding; denial of food or inadequate quality and quantity of food;
inadequate heating or toilets; denial of contact with the outside world; lack of clean drinking water; no
ventilation or electric lighting; denial of exercise; and denial of medical treatment or inadequate medical
attention may amount to a violation of the prohibition of torture and other cruel, inhuman and degrading
treatment or punishment. While the cumulative effects of harsh conditions rarely amount to ‘torture’, the
threshold for inhuman or degrading treatment is lower; i.e. the treatment need not have been intended to
cause suffering for it to constitute inhuman or degrading treatment.

175 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

It is important to note that in order to assess the conditions of detention; the supervisory bodies take account
of the cumulative effect and the duration of the conditions as well as the specific allegations. It is also
important to stress that even when the administration of prisons or psychiatric hospitals is in the hands of
private companies or corporations it is the state that is ultimately responsible for the protection of human
rights and accountable for any mistreatment suffered by individuals in the institutions.

THE RIGHTS OF PRISONERS AND DETAINED PERSONS

The ICCPR (Article 10) and the American Convention (Article 5) are the main international human rights
conventions containing specific provisions concerning the rights of prisoners. They include the following
minimum requirements: a) all individuals deprived of their liberty are to be treated with respect for the
inherent dignity of the human person; b) accused persons should be kept separated from convicted persons;
c) juveniles (or minors in the case of Article 5 American Convention) must be separated from adults and
brought to trial as speedily as possible (before ‘specialised tribunals’ in Article 5 American Convention); and
d) the penitentiary system should aim at the reformation and social rehabilitation of convicted prisoners.

At the European level, the European Convention for the Prevention of Torture is significant with respect
to the protection of prisoners. Under the Convention, the European Committee for the Prevention of Torture
(ECPT) was created ‘to examine the treatment of persons deprived of their liberty with the view to
strengthening, if necessary, the protection of such persons from torture and from inhuman or degrading
treatment or punishment.’ The ECPT has the power to visit places of detention of any kind including prisons,
police cells, military barracks and mental hospitals, with the aim of examining the treatment of detainees
and, when appropriate, to make recommendations to the states concerned. A similar mechanism is found
under CAT in the form of an additional protocol, which has not yet entered into force (see Part II).

Other documents have been drafted, mainly at the UN level, elaborating standards for the improvement of
the situation of prisoners. The Standard Minimum Rules for the Treatment of Prisoners are very important in
setting out the minimum conditions for the treatment of prisoners. While the rules set are not referred to in
Article 10 ICCPR or Article 5 American Convention, they are intended to be taken into account whenever
applicable. Apart from the Standard Minimum Rules, relevant UN standards include the following: the Code
of Conduct for Law Enforcement Officials (1978); the Principles of Medical Ethics Relevant to the Role
of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and

176 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

other Cruel, Inhuman or Degrading Treatment or Punishment (1982); and the Body of Principles for the
Protection of All Persons under Any Form of Detention or Imprisonment (1988).

At the UN treaty-body level, the Human Rights Committee has held that Article 10 ICCPR is violated, inter
alia, when a prisoner: a) is held incommunicado for any length of time; b) is beaten by prison wardens; c) is
shackled and blind-folded; d) is displayed to the press in a cage; e) is refused medical attention; f) is
subjected to ridicule; g) is denied reading facilities and is not allowed to listen to the radio; h) is required to
sleep on a wet concrete floor, or to share a mattress; or i) is kept in a cell with electric light continuously on.
(see, e.g., Drescher Caldas v. Uruguay; Solorzano v. Venezuela; Robles Espinoza and sons v. Peru;
Kalenga v. Zambia; Francis (Clement) v. Jamaica; Almirati Nieto v. Uruguay; Manera Lluberas v.
Uruguay).

At the regional level, both the Inter-American Commission and Court have tended to deal with all the
provisions of Article 5 without separating its different components. Thus, the jurisprudence of the Inter-
American Commission and Court in relation to prisoners is not as comprehensive as it could potentially
become. Nevertheless, in a few cases involving prisoners in El Salvador, the Commission found that El
Salvador had violated the ‘respect for the inherent dignity of the human person’ guaranteed in Article 5(2)
because of a) overcrowding; and b) lack of minimum services in prisons (see IACHR Annual Report 1994).
Similar concerns were expressed with regard to Cuban prisons, although Article 5(2) was not specifically
mentioned (see ‘Report on Cuba’ in IACHR Annual Report 1994).

At the European level, the European Committee on the Prevention of Torture has produced a substantial
number of reports, out of which annually a general report is produced. This report has gradually led to a
number of general standards being developed, notably as regards prison health care, juvenile detention, the
treatment of foreign nationals and the situation of women in prisons.

At the African level, the African Commission has very limited case-law on the treatment of prisoners. It has
dealt with aspects of imprisonment when it found that, inter alia, overcrowding, beatings, torture, excessive
solitary confinement, shackling within a cell, extremely poor quality food and denial of access to adequate
medical care amounted to a violation of Article 5 African Charter (see Krishna Achutan (On behalf of Aleke
Banda), Amnesty International on behalf of Orton and Vera Chirwa v. Malawi, Communications 64/92,
68/92 and 78/92).

177 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

SUPERVISION

Within both the UN and the regional systems, there are several supervisory mechanisms that can be used to
consider issues related to torture, such as CAT, the UN Human Rights Commission Special Rapporteur on
Torture and the Human Rights Committee. At the regional level the European Court and Committee for the
Prevention of Torture, the African Commission and the Inter-American Court and Commission are charged
with supervising compliance. Nevertheless, the frequency with which torture still occurs is discouraging and
further measures to supervise and enhance implementation are called for.

At the UN treaty-based level, CAT established the Committee Against Torture, which supervises the
compliance of states parties through four means: review of periodic reports, inter-state complaints, individual
complaints and a confidential inquiry into systematic practices of torture (see Part II). The latter one is the
most innovative supervisory procedure allowing the Committee to initiate an inquiry when it receives
‘reliable information’ that suggest ‘well-founded indications that torture is being systematically practised in
the territory of a state party’. After consulting the state party, the Committee may decide to include a
summary account of the results of the proceedings in its annual report to the General Assembly.

The United Nations Commission on Human Rights decided in 1985 to appoint a Special Rapporteur to
examine questions relevant to torture, to seek and receive credible and reliable information on such questions
and to respond effectively to the information. The mandate comprises three main activities: a) transmitting
communications consisting of urgent appeals and allegation letters to governments; b) undertaking fact-
finding missions to countries where information suggests that torture may involve more than isolated or
sporadic incidents; and c) submitting annual reports on the Special Rapporteur’s activities, mandate and
methods of work to the UN Commission on Human Rights and the General Assembly. Unlike the treaty
monitoring bodies established under international treaties, the Special Rapporteur does not require the
exhaustion of domestic remedies before acting on individual cases involving a risk of torture or on alleged
acts of torture. Moreover, when the facts in question come within the scope of more than one mandate, the
Special Rapporteur may decide to approach one or more thematic mechanisms and country rapporteurs with
a view to sending joint communications or seeking joint missions.

At the regional level, many cases have come before the European Court and the former European
Commission concerning Article 3 ECHR. In one of its inter-state cases, Ireland v. The United Kingdom, the

178 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

Court condemned the ill-treatment of suspected terrorists during interrogation, with the result that The
United Kingdom Government had to introduce new rules concerning the interrogation of detainees. In
individual cases, the Court has found a violation of Article 3 in cases concerning, for example, a) the practice
of beating children as a punishment in schools (see, e.g., Campbell and Cosans v. The United Kingdom); b)
risk of being tortured in the event of being expelled to another country (see, e.g., Cruz Varas et al. v.
Sweden); c) conditions of detention in a psychiatric hospital (see, e.g., Herczegfalvy v. Austria); and d)
physical violence during police custody (see, e.g., Tomasi v. France).

The ECPT’s work concentrates on examining day-to-day conditions in which detainees are held, including
such matters as accommodation, personal hygiene and medical services. During its visits, the ECPT has
observed that treatment in places of detention varies greatly ranging from mild forms of ill-treatment to
torture. The Committee makes so-called Public Statements setting out its findings.

At the Inter-American level, both the Inter-American Commission and Court have dealt with many torture
cases. Neither institution has attempted to define torture, but instead they have identified that certain
practices, such as rape, mock burials, mock executions, isolation and incommunicado detention, deprivation
of food and water and exposure to the torture of others, fall within the concept of torture and ill-treatment
(see, i.e., Lissardi and Rossi v. Guatemala (Case 10.508), Loayza Tamayo v. Peru and Velásquez
Rodríguez v. Honduras). In certain cases, moreover, the Court has stated that the very act of causing the
disappearance of the victim amounts to torture, inhuman and degrading treatment, not only with respect to
the victims, but also with respect to their close relatives (see, i.e., Villagrán Morales et al. v. Guatemala).
For a comprehensive analysis regarding torture see Cantoral Benavides v. Peru.

The case-law of the Inter-American and African systems is limited in regards to non-refoulement. Several
cases have been brought before the Human Rights Committee and the European Court. The Human Rights
Committee has dealt with this issue in, e.g., A. v. Australia and C. v. Australia. The European Court has
interpreted that Article 3 entails the principle of non-refoulement and has dealt with several cases. It is worth
noting that the ECHR has established that the prohibition of return is unconditional. In cases where the state
is purporting to extradite or deport persons guilty of serious crimes or persons that are considered a danger to
national security, it must be assured that those persons are not facing torture in the receiving countries. If not,
it may be found in breach of Article 3 (see, e.g., Chahal v. The United Kingdom; D. v. The United
Kingdom; and Ahmed v. Austria). Supervising the CAT, the Committee against Torture has developed an

179 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

extensive jurisprudence on the principle of non-refoulement (e.g. Mutombo v. Switzerland; Alan v.

Switzerland; Kisoki v. Sweden; Khan v. Canada and Aemei v. Switzerland).

In regard to conditions of imprisonment, at the UN level there is an important body of case-law. The Human
Rights Committee found violations of Article 7 in respect to prison conditions in many of its early cases
against Uruguay (see e.g., Buffo Carballal v. Uruguay and Vasilskis v. Uruguay) and in more recent cases
against Jamaica (see e.g., Francis (Clement) v. Jamaica, Francis (Victor) v. Jamaica and Young v.
Jamaica). In Mukong v. Cameroon, the Committee clearly noted that ‘certain minimum standards regarding
the conditions of detention must be observed regardless of the State party’s level of development’. The
Committee has also noted that ‘prolonged solitary confinement [...] may amount to acts prohibited by article
7’ (General Comment 20). Another case worth mentioning in regard to conditions of imprisonment is
Lantsova v. The Russian Federation, although in this case the Committee did not consider it necessary to
pronounce itself on Article 7.

At the Inter-American level, the Inter-American Court has especially examined conditions of imprisonment
in, inter alia, the decision on provisional measures in the case of The Urso Branco Prisons v. Brazil and its
report on the Challaplaca Prison in Peru (Special Report on the Human Rights Situation at the
Challapalca Prison, 2003). In Europe, the European Court has dealt with this issue in, for example, Aktas v.
Turkey).

The African Commission has dealt with violations of the prohibition of torture under Article 5, which deals
not only with torture and other forms of ill-treatment, but with the dignity of the person. As a consequence of
this, the African Commission has often found violations of Article 5 on the basis of torture, without however
providing information of what acts amounted to the torture. The Commission has found that the cumulative
effects of certain aspects of imprisonment can amount to violations of Article 5, such as a) overcrowding; b)
beatings; c) excessive solitary confinement; and d) shackling within a cell (see, e.g., Krishna Achutan (On
behalf of Aleke Banda), Amnesty International on behalf of Orton and Vera Chirwa v. Malawi,
Communications 64/92, 68/92 and 78/92 and International Pen, Constitutional Rights Project, Interights on
behalf of Ken Saro-Wiwa Jr. and Civil Liberties Organisation v. Nigeria, Communications No. 137/94,
139/94, 154/96 and 161/97).

UNITED NATIONS VOLUNTARY FUND FOR VICTIMS OF TORTURE

180 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

The physical and psychological effects of torture can be devastating and last for years, affecting not only the
victims but also members of their families. Assistance in recovering from the trauma suffered can be
obtained from organisations that specialise in assisting victims of torture. In 1981, the General Assembly
established the United Nations Voluntary Fund for Victims of Torture to receive voluntary contributions for
distribution to NGOs that provide humanitarian assistance to victims of torture and members of their
families. The Fund is administered by the Secretary-General on the advice of a Board of Trustees.

The Fund partially subsidises projects providing medical, psychological, social, economic, legal or other
forms of humanitarian assistance to torture victims and members of their families. Each year, the Fund
finances projects to assist more than 60,000 victims and their family members from all over the world.
Subject to the availability of funds, it also subsidises a limited number of projects to train health
professionals and others on how to provide specialised assistance to victims of torture. In 2003, grants were
approved totalling US$7.2 million to some 200 organisations assisting victims of torture and members of
their families in 77 countries.

THE RIGHTS TO LIBERTY

The right to personal liberty is one of the most fundamental human rights as it affects the vital elements of an
individual’s physical freedom. This chapter examines a) the right to liberty and security; b) the right to
freedom from slavery, servitude and forced or compulsory labour, and c) the right to freedom of movement.

THE RIGHT TO LIBERTY AND SECURITY

The right to liberty can be traced back to the English Magna Charta (1215) and the United States
Declaration of the Rights of Man and Citizen (1789). Even though the Magna Charta guaranteed rights only
to a limited group of people, namely feudal noblemen, it nevertheless required that arrest or detention be
lawful, and protected the individual against the excesses of his ruler. Protection against arbitrary arrest and
detention as one of the main dimensions of the right to the liberty of the person was further established in the
17th century Bill of Rights (1689) and Habeas Corpus Acts (1640, 1679). The right was further developed
and its scope of application widened after the French Revolution, in the French Declaration of Rights (1789)
where the right to liberty was guaranteed to all nationals in the constitutions of national states. The right to
liberty played a major role in the Mexican revolution (1915) where ‘land and liberty’ (Tierra y Libertad) was
the slogan of the revolution.
181 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

At the international level, the right to liberty and security of the person found its first legal formulation in
Article 9 of the Universal Declaration. The right to liberty and security in this declaration appears in a short
and vague version, but has since been further elaborated upon by a number of international human rights
instruments at the international and the regional level.

The right to liberty and security of the person, as the title suggests, entails two distinct rights: the right to
liberty of the person and the right to personal security. In order to clarify how these two rights are understood
under human rights law, a short description of each right follows.

The right to liberty of the person, as found in international human rights instruments, does not grant complete
freedom from arrest or detention. Deprivation of liberty is a legitimate form of state control over persons
within its jurisdiction. Instead, the right to liberty acts as a substantive guarantee that arrest or detention will
not be arbitrary or unlawful. In general, any deprivation of liberty is only allowed if it is carried out in
accordance with a procedure established by domestic law and if the following minimum guarantees are
respected: a) every detained person shall be informed promptly of the reasons for her/his arrest; b) every
detained person shall be entitled to take habeas corpus proceedings before a court (which has to decide
without delay and order release if the detention is unlawful); c) every detained person has an enforceable
right to compensation if detention was unlawful; and d) persons held in custody shall be brought promptly,
that is within a few days, before a judge who must either release them or authorise pre-trial detention. They
are entitled to trial within a reasonable time and to release in exchange for bail or some other guarantee to
appear for trial. In other words, pre-trial detention shall not be the general rule and shall be as short as
possible, depending on the complexity of the case.

The right to personal security has not been defined as clearly as the right to liberty and the meaning of this
right differs in the different human rights conventions. Under the ICCPR, which gives it the broadest
meaning, the right to personal security is understood as the right to the protection of the law in the exercise
of the right to liberty. This means that the right to security extends to situations other than the formal
deprivation of liberty. For instance a state may not ignore a known threat to the life of a person under its
jurisdiction; it has an obligation to take reasonable and appropriate measures to protect that person.

STANDARDS

182 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

The right to liberty and security, expressed in Article 9 UDHR, has been embedded in most of the existing
human rights instruments, both at the international and regional level.

Article 9 UDHR states very briefly that ‘no one shall be subjected to arbitrary arrest, detention or exile’. The
basic principles set out in Article 9 of the Universal Declaration are elaborated upon by the ICCPR in Article
9 (right to liberty and security of the person); and Article 12(4) (prohibition of arbitrary exile). At the
regional level, these rights are guaranteed in Article 7 ACHR, Article 5 ECHR and Article 6 ACHPR.

Article 9 ICCPR, Article 7 ACHR, Article 5 ECHR, and Article 6 ACHPR all establish certain procedural
guarantees and minimum standards for protection against arbitrary arrest and detention. Article 5(1)
European Convention differs from the other conventions in that it defines exhaustively the cases in which a
person may be deprived of her/his liberty. The other human rights conventions leave the regulation of the
grounds for detention to the domain of domestic legislation. An important exception is the detention merely
on the grounds of inability to fulfil a contractual obligation (detention for debt), which is clearly prohibited
in Article 11 ICCPR, Article 7(7) American Convention and Article 1 Protocol No. 4 to the European
Convention for the Protection of Human Rights and Fundamental Freedoms.

Article 10 ICCPR and Article 5(3) to (6) ACHR guarantee to all persons deprived of their liberty a special
right to humane treatment and to certain minimum conditions of pre-trial detention and imprisonment, such
as the segregation of the accused from the convicted persons or segregation of juveniles from adults.
Mention should also be made of Article 16 CMW that grants migrant workers and their families the right to
liberty and security of person.

SUPERVISION

The Human Rights Committee, the Inter-American Commission and Court and the European Court of
Human Rights have developed fairly detailed case-law on the varied and highly complex issues related to the
right to personal liberty and security. The exact meaning of many terms, such as ‘arbitrarily’, ‘promptly’,
‘speedily’ and ‘without delay’ is unclear and can only be established on a case-by-case basis, taking into
account all relevant circumstances. The increasing body of case-law is gradually contributing to a clearer
definition of the concept of liberty and security.

183 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

At the universal level, the Human Rights Committee has developed extensive case-law with regard to the
right to the liberty and security of the person. The Human Rights Committee has issued a large number of
decisions concerning most aspects of the provisions in Article 9. The large majority has concerned detention
for the purposes of criminal justice, though other types of detention (such as detention of aliens and detention
for the reason of enforced psychiatric treatment) have been dealt with as well (see, e.g., Torres v. Finland
and A. v. New Zealand). Nevertheless, there remain a number of uncertainties concerning the interpretation
of certain provisions of Article 9, such as the exact definition of ‘promptness’ and what is considered a
permissible length of time that a court can take to render a decision under a habeas corpus application. With
regard to the right to personal security, the Committee has given this right its widest scope, as it has
established in a number of views that, in the case of serious threats to the life of persons under their
jurisdiction, states are under the obligation to take reasonable and appropriate measures to protect them (see,
e.g., Delgado Paez v. Colombia, Bwalya v. Zambia and Oló Bahamonde v. Equatorial Guinea). Apart
from individual decisions, General Comment No. 8 - Article 9 Right to liberty and security elaborates on
the meaning of the right to liberty and helps define some of the elements found in Article 9. In addition, in its
General Comment No. 29 - Article 4 State of Emergency, the Human Rights Committee has established
that the requirement of a court review to determine whether detention is lawful is a non-derogable element of
Article 9.

Another important mechanism under the UN that deals specifically with arbitrary detention is the UN
Working Group on Arbitrary Detention. The UN Commission on Human Rights has entrusted the Working
Group with the following mandate: a) to investigate cases of detention imposed arbitrarily or otherwise
inconsistently with relevant international standards set forth in international human rights instruments; b) to
seek and receive information from governmental and intergovernmental and non-governmental
organisations, and receive information from the individuals concerned, their families or their representatives;
and c) to present a comprehensive report to the Commission at its annual session. The Working Group on
Arbitrary Detention is the only non-treaty-based mechanism whose mandate expressly provides for
consideration of individual complaints.

At the regional level, both the Inter-American Commission and the Inter-American Court have issued a
considerable number of decisions regarding most provisions in Article 7 ACHR. However, the jurisprudence
of the Court and the Commission has not substantially clarified these provisions; although many of the
decisions present new viewpoints, they lack strong legal reasoning and analysis. This may be related to the
184 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

difficult circumstances in which decisions concerning this right have to be made; states are often reluctant to
co-operate and evidence (especially in disappearance cases) is hard to obtain. Nevertheless, both the
Commission and the Court have rendered some very interesting judgements concerning the right to personal
liberty and security. In the Velásquez Rodriguez v. Honduras and Godinez Cruz v. Honduras cases, for
instance, the Court held that the kidnapping of an individual and the denial of access to judicial authorities by
which the legality of the detention could be reviewed (habeas corpus), constituted a manifest violation of
Article 7. In Garcia v. Peru (Case 11.006), the Commission ruled that threatening persons with arbitrary and
unjust detention can infringe the right to personal security and therefore violated Article 7. More generally,
the Commission has stated that any arrest must be made by the agency properly authorised by the national
constitution and in accordance with the procedures required by international law. If these conditions are not
met, ‘arrests cease to be arrest per se and become kidnappings’. In regard to liberty and security, the Inter-
American Court cases of Gangaram Panday v. Suriname and Bulacio v. Argentina are also worth mention

At the European level, the European Court of Human Rights has dealt with more than 250 cases under
Article 5 ECHR, providing extensive jurisprudence that aids in clarifying difficult issues, such as ‘reasonable
time’, ‘promptly’, and ‘judge or other officer’. One of the problems that the Court deals with is the
exhaustive list of circumstances in which states may detain an individual. As explained above, the European
Convention is the only one that provides the states with such a list, and both states parties and the Court have
found that it is not easy to accommodate all recognised cases of arrest in one article. The European Court has
established that short detention for the purpose of searching a person in the street is not a violation of Article
5(1) (see, e.g., McVeigh, O’Neill and Evans v. The United Kingdom). Another problem has been that some
of the provisions found in Article 5 are difficult to apply uniformly to the different civil and common law
systems represented among the states parties. In general, however, the European Court has provided the most
comprehensive jurisprudence with regard to the right to the liberty and security of the person and its well-
formulated decisions have been a great help for other international human rights supervisory bodies. It has,
for instance, ruled that the provision that a person must be brought ‘promptly’ before a judge implies that this
has to be done within exactly four days (see, e.g., O’Hara v. The United Kingdom). For the concept of
‘reasonable time’ a series of parameters have been developed which provide a useful framework for deciding
whether a period is reasonable. Some states have introduced such parameters to reduce the time before a
sentence is given to less than for instance one-and-a-half-year, even in the more difficult cases.

185 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

Under the African system, the African Commission has attempted in a number of cases to clarify and
elaborate on the content of Article 6 ACHPR. On the issue of the length of detention the Commission has
found in a number of communications that, for example, imprisonment of over twelve years without a trial
constituted a violation of Article 6 and that three years’ detention without a trial or even three months may be
sufficient to violate Article 6 (see, e.g., Krishna Achuthan (on behalf of Aleke Banda), Amnesty International
on behalf of Orton and Vera Chirwa v. Malawi, Communication 64/92, 137/94 and 154/96). In other cases, a
violation of Article 6 was found in regard to the basis and manner of the detention. In Alhassan Abubakar v.
Ghana, Communication 103/93 the Commission found that the detention of the victim without a trial
constituted a violation of Article 6. In a case against Rwanda the Commission found that arbitrary arrests and
detention, presumably by the government, of thousands of people solely because of their ethnic origin, was
contrary to Article 6 (Organisation Mondiale Contre la Torture and Association Internationale des
Juristes Democrates, Commission Internatonale des Juristes, Union Interafricaine des Droits de
l’Homme v. Rwanda, Communications 27/89, 46/9, 49/93, see also Commission Nationale des Droits de
l’Homme et des Libertés v. Chad, Communication 74/92).

THE RIGHT TO FREEDOM FROM SLAVERY, SERVITUDE AND FORCED OR COMPULSORY

LABOUR

Slavery has existed since time immemorial; rules regarding slaves were, for instance, part of written Roman
law. For centuries, slave trade was practiced globally and large scale slave trade in the past and the slavery or
slavery-like practices that accompanied colonialism had a devastating impact on societies around the world,
notably in West- and East Africa as well as Latin America and Asia.

The freedom from slavery was the first human right to be protected under international law. In 1926 the
Slavery Convention, the first multilateral human rights treaty, was adopted. Its aim was to prevent slave
trade and abolish slavery in all forms. Prohibition of slavery is today considered a customary international
law rule and a jus cogens norm. Moreover, in one of its judgements, the International Court of Justice
identified the protection from slavery as an erga omnes obligation (Barcelona Traction Case). The
problematic abolition of traditional slavery in the course of the 19 th and the first half of the 20th century
demonstrates how complex and controversial it can be to change current practices in order to protect human
rights.

186 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

The word ‘slavery’ has come to include a variety of human rights violations. In addition to traditional slavery
and slave trade, abuses include the sale of children, child prostitution, child pornography, the exploitation of
child labour, the sexual mutilation of female children, the use of children in armed conflicts, debt bondage,
the traffic in persons and sale of human organs, the exploitation of prostitution, and certain practices under
apartheid and colonial regimes.

Contemporary slavery is a distressing fact. Today, even in the 21 st century, it is estimated that 27 million
people are slaves or endure slavery-like situations. Of these, some 20 million suffer various forms of bonded
labour. All over the world persons are sold and bought, kept in private detention, maltreated and exploited
for economic benefit.

SLAVERY

The 1926 Slavery Convention defines slavery as ‘the status or condition of a person over whom any or all of
the powers attaching to the right of ownership are exercised’ (Article 1(1)). The circumstances of the
‘enslaved person’ are crucial to identify what slavery is. It depends, for instance on a) the degree of
restriction of the individual’s inherent right to freedom of movement; b) the degree of control of the
individual’s belongings; and c) the existence of informed consent and a full understanding of the nature of
the relationship between the parties (see, for example, the 1956 Supplementary Convention on the Abolition
of Slavery). In general, however, slavery occurs when one human being effectively ‘owns’ another, so that
the former person can exploit the latter with impunity.

SERVITUDE

Servitude is a broader concept than slavery. The term ‘servitude’ refers to other forms of atrocious economic
exploitation exercised by one person over another. In Van Droogenbroeck v. Belgium, the European
Commission held that the concept of ‘servitude’ involves the obligation of the ‘serf’ to live on the property
of another person without the possibility of changing her/his condition. However, in the same case, the
European Commission found that a situation could only be regarded as ‘servitude’ if it involves ‘particularly
serious form of denial of freedom’.

FORCED OR COMPULSORY LABOUR

187 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

Forced or compulsory labour is defined in Article 2 ILO 29 concerning Forced Labour as ‘all work or
service, which is exacted from any person under the menace of any penalty and for which the said person has
not offered himself voluntarily.’ Supervisory bodies such as the European Court have used the definition of
ILO 29 to interpret freedom from forced labour in their respective conventions. In addition, the European
Court has, through its jurisprudence, contributed to a more comprehensive understanding of forced and
compulsory labour. In Van Der Mussele v. Belgium, the Court found that forced labour includes manual
work, as well as professional work and that the term ‘forced’ includes both physical and mental constraints.
The Court also further defined the term ‘compulsory’, which it found to refer to work ‘exacted under the
menace of any penalty’, and performed against the will of the person concerned. Thus, ‘compulsory’ labour
does not only refer to any form of legal compulsion or obligation.

STANDARDS

Article 4 UDHR states that ‘no one shall be held in slavery or servitude; slavery and the slave trade shall be
prohibited in all their forms.’

In Article 8 ICCPR, Article 4 ECHR, Article 6 ACHR and Article 5 ACHPR, slavery is prohibited together
with slave trade, servitude and forced or compulsory labour. In addition, Article 6 ACHR expressly prohibits
traffic in women.

Article 8(3)(c) ICCPR, Article 4(3) ECHR and Article 6(3) ACHR enumerate four categories of work or
service, which are not deemed to be included in the concept of forced or compulsory labour. These include a)
military and substitute service; b) duties in cases of emergency; c) normal civic duties; and d) normal work
in detention.

The CRC is potentially one of the most effective means of combating slavery-like practices. Properly
implemented by states, the Convention offers protection to children at risk from sexual, economic, and other
forms of exploitation, including their sale, trafficking and involvement in armed conflict.

Article 11 CMW provides for protection of migrant workers from slavery, servitude and forced or
compulsory labour.

188 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

In addition to the main international human rights conventions, there are other instruments dealing with the
prohibition of slavery and slavery-like activities. The most comprehensive ones include a) the Slavery
Convention (1926); b) the Supplementary Convention on the Abolition of Slavery, the Slave Trade and
Institutions and Practices Similar to Slavery (1956); and c) the Convention for the Suppression of
Traffic in Person and of the Exploitation of the Prostitution of Others (1950). Moreover, a number of
ILO instruments are relevant to the matter of forced and compulsory labour.

SUPERVISION

Although slavery and slavery-like practices are a wide-spread problem in our societies today, human rights
supervisory bodies such as the Human Rights Committee, the European Court of Human Rights and the
Inter-American Commission and Court have not developed a comprehensive ‘jurisprudence’ with regard to
the subject. The following section will outline briefly the trends in the different universal and regional
systems.

At the UN treaty body level, the Human Rights Committee has dealt very little with Article 8 in its
jurisprudence. At the UN charter-based level, many special rapporteurs have been appointed over the years
to conduct studies on slavery, especially related to the exploitation of children. In 1990, the UN Commission
on Human Rights created the mandate of the Special Rapporteur on the sale of children, child prostitution
and child pornography. The Rapporteur is required to investigate the exploitation of children around the
world and to submit reports on the findings to the General Assembly and the UN Commission on Human
Rights, making recommendations for the protection of the rights of the children concerned. These
recommendations are targeted primarily at governments, other United Nations bodies and non-governmental
organisations. The Sub-Commission on the Promotion and Protection of Human Rights has also appointed a
Special Rapporteur on contemporary forms of slavery.

At the regional level, the European Court has not found violations of Article 4 European Convention as the
terms ‘slavery’ and ‘servitude’ have not been considered applicable in the situations presented. In a number
of cases concerning forced or compulsory labour, for example, both the European Commission and Court
found that the imposition of obligations to provide services of a certain type (free legal aid) or in a given
location (in an isolated part of the country) does not constitute a violation of Article 4 of the European
Convention (see, e.g., Van Der Mussele v. Belgium). With regard to slavery, the article has mainly been

189 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

invoked in connection with complaints of detainees over the obligation to perform work in prison, which is
not considered a violation by the European Court.

Under the American Convention, the concepts of slavery, servitude and related practices are not defined and
the Inter-American Commission and Court have not yet had the possibility to elaborate upon these concepts
in any detail.

The African Commission dealt with the issue of slavery in the five consolidated communications against
Mauritania. With regard to some of the allegations of systematic enslavement of the black community of
Mauritania, the Commission stated that ‘[...] there was a violation of Article 5 of the Charter due to practices
analogous to slavery, [...] the conditions to which descendants of slaves are subjected clearly constitute
exploitation and degradation of man, both practices condemned by the African Charter.’(Malawi African
Association, Amnesty International, Ms. Sarr Diop, Union Interafricaine des Droits de l’Homme and
RADDHO, Collectif des Veuves et Ayants-droit and Association Mauritanienne des Droits de l’Homme v.
Mauritania, Communications 54/91, 61/91, 98/93, 164/97 -196/97 and 210/98).

THE RIGHT TO FREEDOM OF MOVEMENT

The right to freedom of movement is a fundamental human right, which has found expression and won
endorsement in a range of human rights and humanitarian instruments. Its first legal recognition can be
traced back as early as the English Magna Charta (1215). During the Cold War years, the right to leave
one’s country — part of the freedom of movement — constituted a source of sharp conflicts between
Western and Eastern European Countries. After 1989, changing conditions have affected the issues covered
by the right to freedom of movement. Increasing international mobility, tourism and migration on the one
hand and alarming tendencies of xenophobia and restrictive attitudes of many states towards asylum seekers,
migrant workers and aliens on the other, have made the right to freedom of movement increasingly important
and at the same time controversial.

Freedom of movement, commonly understood, entails the right of everybody lawfully within a given
territory to move about freely within it, without hindrance, and without having to ask specific permission of
the authorities. The right to freedom of movement, as found in international human rights instruments
includes four distinct rights: a) the right to move freely within a given territory; b) the right to choose a

190 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

residence within a territory; c) the right to leave any country, including one’s own; and d) the right to enter
one’s own country.

THE RIGHT TO MOVE FREELY WITHIN A GIVEN TERRITORY

Everyone lawfully within the territory of a state has the right to move freely within that territory. The citizens
of a state are always lawfully within the territory of that state. As regards aliens, however, a state may
determine by law whether persons may move freely in accordance with the law. The Human Rights
Committee has held on this matter that an alien who enters a state lawfully, and whose status is regularised,
must be considered lawfully within the territory (General Comment 27). Once a person is lawfully within a
state, any restrictions on her/his right to freedom of movement and any treatment different from that
accorded to nationals, have to be justified on one or more of the grounds prescribed in Article 12 ICCPR.

Permissible restrictions on the freedom of internal movement often relate to efforts to protect ‘public order’,
where detention is in order, where traffic must be regulated, or where special measures (such as blockades)
are called for to maintain public safety. Limitations for ‘public health reasons’, such as those who confine
freedom of movement for quarantine reasons in order to prevent the spread of infectious diseases, are also
permissible. Protection of the natural environment is a further justifiable basis for controlling movement. The
Human Rights Committee has indicated that under Article 12 ICCPR it is permissible to restrict the
categories of persons entitled to live on tribal reserves, for the purpose of protecting the resources and
preserving the identity of the tribe (see, e.g., Lovelace v. Canada).

The state’s obligation under the right to freedom of movement is to ensure that the right to freedom of
movement is protected from both public and private interference. In the case of a woman, the obligation to
protect includes the right to move freely and to choose her residence without any interference, by law or by
practice, by any other person, including a relative.

THE RIGHT TO CHOOSE A RESIDENCE WITHIN A TERRITORY

Any person lawfully within the territory of a state has the right to choose her/his place of residence. The right
to choose where to live includes protection against all forms of forced internal displacement. It also means
that the state is not permitted to prevent the entry or stay of persons in a defined part of the country. This
right was successfully invoked before the Human Rights Committee in inter alia, Ackla v. Togo, where the

191 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

applicant was under a prohibition from entering a certain area and his native village. The Committee found
that in the absence of an explanation from the states justifying the restriction, there had been a violation of
Article 12(1) ICCPR (see also Mpaka-Nsusu v. Zaire).

An important point to mention is that the right to choose a residence within the territory of one’s state of
nationality is not affected by temporary absence from home.

THE RIGHT TO LEAVE ANY COUNTRY

The right to leave any country, including one’s own, is another component of the right to freedom of
movement. It involves the right to depart permanently (emigration), or for a shorter or longer period. It stems
from the general principle that no state owns an individual, and that the right is a personal one. The right to
leave any country is not restricted to persons lawfully within the territory of a state, which means that an
alien being legally expelled from the country is allowed to choose the state of destination, with the
agreement of that state. The right to leave any country, including one’s own, does not however guarantee an
unrestricted right to travel from one country to another. However, Article 12 UDHR, Article 22(7) American
Convention, and Article 12(3) African Charter recognise the right of a person to leave her/his country in
order to seek and enjoy asylum from persecution in another country. In order to enable a person to exercise
her/his right to leave any country, including her/his own, obligations are imposed both on the state of
residence and on the state of nationality. Since international travel usually requires appropriate documents, in
particular a passport, the right to leave a country includes the right to obtain the necessary travel documents.
Normally, the issue of a passport falls under the obligation of the state of nationality of the individual. If the
citizen is resident abroad, or being resident abroad has obtained travel documents from another country, this
does not relieve the state of nationality of the obligation to issue a passport. In such a case, obligations are
imposed both on the state of residence and on the state of nationality. The Human Rights Committee has
been called upon, in the context of analysing the right to freedom of movement, to consider the denial of
provision or revocation of passports to citizens living abroad. These cases, known as the ‘Passport cases’,
articulate positive and negative duties on both the state of residence and the state of nationality:

The State of residence is primarily obligated to avoid interfering with the freedom to leave; the State of
nationality is under a positive duty to ensure effective possibilities to leave by issuing the necessary

192 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

documents; States that deny their citizens a passport thus violate Article 12(2) [of ICCPR] insofar as this
denial is not justified pursuant to Article 12(3) (see, e.g., Varela Nuñez v. Uruguay).

THE RIGHT TO ENTER ONE’S OWN COUNTRY

The right of a person to enter her/his country or to return to one’s own country recognises the special
relationship of a person to that country. The right entails different guarantees, such as a) the right to remain
in one’s own country; b) the right to return after having left one’s own country; and c) the right to come to
the country for the first time if she/he were born outside of it (for example, if the country is the person’s state
of nationality). The right to return is of particular importance for refugees seeking voluntary repatriation.

The right to enter one’s own country is a right enjoyed by a person who is abroad. Accordingly, the state has
the positive obligation to take all necessary measures to ensure that a citizen abroad has the right to return to
her/his own country, since constitutionally recognised rights are guaranteed not only within the territory of
the state but within its jurisdiction as well. If the citizen is detained abroad, positive obligations require the
state of nationality to deal with the state where the citizen is detained in order to secure the enjoyment of the
right to return, since no citizen on her/his own can act with equal legal status with the governmental
authorities of the foreign country. The right to return, however, does not imply that a person who has
committed a crime shall be freely entitled to return to her/his home country.

Absolute freedom of movement would include the right to enter another country. However, given the
complexities of residence, the rights of the nationals already residing in a country, and the preservation of
certain cultural rights, it has never been possible to achieve absolute freedom of movement in any human
rights fora. In the so-called Schengen-area (fifteen countries, of which 13 are members of the European
Union), consensus on a rather ‘complete’ freedom of movement was reached. This has, however, had the
side effect of a rather strict entry policy for persons from countries not belonging to the Schengen agreement.

STANDARDS

The right to the freedom of movement is found in a substantive number of international and regional
conventions.

193 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

The UDHR contains the first universal statement on the right to freedom of movement. Article 13 UDHR
states that: ‘[e]veryone has the right to freedom of movement and residence within the borders of each state’
and ‘[e]veryone has the right to leave any country, including his own, and to return to his country.’ Article
13 UDHR does not directly restrict the right to freedom of movement to those lawfully within the territory.
Under many subsequent international and regional instruments, however, the right to freedom of movement
applies only to persons lawfully within a given territory.

Article 12 ICCPR, Article 2 Protocol 4 ECHR, Article 22 ACHR, and Article 12 ACHPR state that everyone
lawfully within the territory of a state has the right to liberty of movement and the freedom to choose her/his
residence. Moreover, the state may not arbitrarily deprive someone of the right to enter her/his own country.

Article 4 Protocol 4 ECHR, Article 22 ACHR, and Article 12 ACHPR also prohibit the collective expulsion
of aliens (mass expulsion of non-nationals under Article 12 ACHPR).

The right to freedom of movement, as found in Article 12 ICCPR, Article 2 Protocol 4 ECHR and Article 22
ACHR, allows the state to restrict the right in certain specific circumstances such as national security, public
safety, maintenance of ‘ordre public’, for the prevention of crime, protection of health and morals, and
protection of the rights and freedoms of others. The power of the state to restrict freedom of movement is,
however, circumscribed by the requirement that the limitations must be ‘provided by law’ (ICCPR and
American Convention), or be ‘necessary in a democratic society’, in order to safeguard certain essential
interests of the state (European Convention).

Article 12(3) ACHPR is unusual in that it provides that a person has the right not only to seek but also to
obtain asylum. Similarly, Article 22(7) ACHR provides for the right to ‘seek and be granted asylum’.

The right to freedom of movement can also be found in other related texts such as the Convention Relating
to the Status of Refugees 1951, the Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, the Convention on the Elimination of all Forms of Racial
Discrimination, the Convention Governing the Specific Aspects of Refugee Problems in Africa, the
International Convention on the Protection of the Rights of All Migrant Workers and Members of
their Families and the International Convention Governing Specific Aspects of Refugee Problems in Africa.

SUPERVISION

194 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

The right to the freedom of movement has not generated as detailed case-law as other civil rights. Having
said that, the Human Rights Committee, the Inter-American Commission and Court and the European Court
of Human Rights do have some interesting case-law regarding the right to the freedom of movement, which
has helped interpret and clarify this right.

At the UN level, the Human Rights Committee has decided relatively few cases under Article 12. General
Comment No. 27 - Article 12 Freedom of movement, adopted in 1999, was a welcome addition to the
jurisprudence. States parties have been able to justify restrictions to the right to freedom of movement by
invoking the limitations despite the fact that limits to freedom of movement and the right to leave the country
are to be interpreted narrowly (see, e.g., Celepli v. Sweden and Peltonen v. Finland). The Human Rights
Committee’s most controversial views under Article 12 concern the right to enter one’s ‘own country’ under
Article 12(4). In Stewart v. Canada, the Human Rights Committee found that Canada would not violate
Article 12(4) by deporting a British citizen who had committed petty crimes, even though he had lived in
Canada since the age of seven and both his mother and brother still resided in Canada. This is a narrow
interpretation of the term ‘own country’, as it does not include a person who has lived most of his life in a
country but never applied for the nationality (see, e.g., the dissenting opinions in Stewart v. Canada).

At the regional level, all three supervisory bodies have dealt with the right to freedom of movement, but like
the Human Rights Committee, not in detail.

At the European level, the European Court appears to allow states a considerable margin of appreciation
when applying the right to freedom of movement. In general, whenever considering a case under the right to
freedom of movement, the European Court examines whether the interference with a person’s freedom of
movement was provided by law, necessary and proportionate. In the Raimondo v. Italy case, for example,
the Court ruled that the house arrest of a person suspected of being a member of the mafia was not
disproportionate. However, the Court found that allowing 18 days to pass before informing the person that
the house arrest had been revoked was not in accordance with law, not necessary and therefore violated
Article 2 Protocol 4. In addition, the European Court has applied the principle of proportionality in several
cases against Italy, where it found that forbidding persons declared bankrupt to move from their place of
residence until liquidation proceedings have been concluded is a necessary measure to ensure payment to
creditors, it must not be disproportionate. However, where the liquidation proceedings, and therefore the

195 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])

 lOMoARcPSD|35474838

interference, had lasted for 18 years, the Court found a violation as the fair balance between general interest
and the individual’s interest had been upset (see Bassani v. Italy and Neroni v. Italy).

At the Inter-American level, few petitions concerning the right to freedom of movement have been brought
to the Inter-American Commission. The jurisprudence concerning this right is therefore limited. In summary,
the Inter-American Commission has interpreted some of the issues included in the right to freedom of
movement in the following way: a) the right to freedom of movement and residence is violated if a person is
unlawfully detained and kidnapped (see, e.g., Rivera v. El Salvador (Case 10.227)); b) forced exile without
proper due process procedure is a violation of Article 22(5); c) regarding the expulsion of legal aliens, the
Commission has held that due process must be followed and that the procedural guarantees in Article 8
ACHR must apply in such proceedings; and d) the mass expulsion of illegal immigrant agricultural workers
from Honduras due to violence that followed a World Cup football match was considered a violation of
Article 22(9).

At the African level, examples where the African Commission has found a violation of Article 12 include the
following situations: b) where travel restrictions were imposed on former politicians (Sir Dawda K. Jawara
v. The Gambia, Communications 147/95 and 149/96), b) where people were evicted from their homes and
deprived of their nationality (Malawi African Association, Amnesty International, Ms. Sarr Diop, Union
Interafricaine des Droits de l’Homme and RADDHO, Collectif des Veuves et Ayants-droit and Association
Mauritanienne des Droits de l’Homme v. Mauritania, Communications 54/91, 61/91, 98/93, 164/97-196/97
and 210/98) and c) where a person was forced to flee his country because of abductions and threats (Rights
International v. Nigeria, Communications 215/98, 147/95 and 54/91).

196 | P a g e

Downloaded by PRAJAPATI MABANGWE ([email protected])