Addis Ababa University

School of Law
LL.B. program

Human Rights Law Lecture Notes

Chapter 1: Introduction to Human Rights Law

1.1 Definition and Characteristics

 Human rights are rights we have simply because we exist as human beings - they are not
granted by any state.
 These universal rights are inherent to us all, regardless of nationality, sex, national or
ethnic origin, color, religion, language, or any other status.
 They range from the most fundamental - the right to life - to those that make life worth
living, such as the rights to food, education, work, health, and liberty.
 The Universal Declaration of Human Rights (UDHR), adopted by the UN General
Assembly in 1948, was the first legal document to set out the fundamental human rights
to be universally protected.
 The UDHR continues to be the foundation of all international human rights.
 Its 30 articles provide the principles and building blocks of current and future human
rights conventions, treaties and other legal instruments.
 The UDHR, together with the 2 covenants - the International Covenant for Civil and
Political Rights, and the International Covenant for Economic, Social and Cultural Rights
- make up the International Bill of Rights.

Universal and inalienable

 The principle of universality of human rights is the cornerstone of international human

rights law. This means that we are all equally entitled to our human rights. This principle,
as first emphasized in the UDHR, is repeated in many international human rights
conventions, declarations, and resolutions.
 No one should be discriminated in the enjoyment of rights
 Equal and non-discriminatory: Article 1 of the UDHR states: “All human beings are born
free and equal in dignity and rights.” Freedom from discrimination, set out in Article 2, is
what ensures this equality.
 Non-discrimination cuts across all international human rights law. This principle is
present in all major human rights treaties. It also provides the central theme of 2 core
instruments: the International Convention on the Elimination of All Forms of Racial
Discrimination, and the Convention on the Elimination of All Forms of Discrimination
against Women.
 Human rights are inalienable. They should not be taken away, except in specific
situations and according to due process. For example, the right to liberty may be
restricted if a person is found guilty of a crime by a court of law.

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Indivisible and interdependent

 All human rights are indivisible and interdependent. This means that one set of rights
cannot be enjoyed fully without the other. For example, making progress in civil and
political rights makes it easier to exercise economic, social and cultural rights. Similarly,
violating economic, social and cultural rights can negatively affect many other rights.

States as primary duty bearers

 The main duties deriving from human rights fall on states and their authorities or agents,
not on individuals.
 The idea of basic rights originated from the need to protect the individual against the
(arbitrary) use of state power.
 Vertical application/effect: Generally, they regulate the relationship between the state and
its subjects, and amongst the state institutions themselves.
 Horizontal application/effect: Do not generally govern relationships between and among
subjects themselves.

State Obligations emanating from HRs

 The obligation to respect means that States must refrain from interfering with or
curtailing the enjoyment of human rights.
 The obligation to protect requires States to protect individuals and groups against human
rights abuses.
 The obligation to fulfill means that States must take positive action to facilitate the
enjoyment of basic human rights.

Question: why is human rights works characterized by many as a political

undertaking?

1.2 Historical Development and Philosophical Foundation of Human

Rights
1.3 Politics of Human Rights
1.4 Universality

It was only after the Second World War that politicians and civil society alike came to realize
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.

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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 its First Optional Protocol.

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.

In the Proclamation of Teheran of 1968, endorsed the principles and ideals laid down in the
UDHR. 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.

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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. Most strikingly, the Convention on the Rights
of the Child (CRC), adopted in 1989, has been ratified by 192 states (July 2004).

The universality of human rights is evident from two facts. Firstly, the international human rights
instruments themselves unequivocally stipulate the universality of human rights norms. For
example, the Vienna Declaration and Programme of Action (Vienna Declaration) in no uncertain
terms declares that ‘[t]he universal nature of these rights and freedoms is beyond question’. The
UDHR, on its part, states that the Declaration is ‘a common standard of achievement for all
peoples and all nations’.

Secondly, the universal acceptance of human rights can be deduced from the nearly universal
ratification that the major international human rights treaties enjoyed.

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’.
While the wide ratification of international human rights treaties may be a plain evidence of the
universality of human rights, their actual effective implementation, in some cases, has been
greatly hindered by the sweeping reservations entered by states. To take the Convention on the
Elimination of Discrimination Against Women (CEDAW) as an example, more than 90 percent
of the world’s states, 186 states, have ratified the Convention. This is nearly a universal
ratification. It is achieved, however, at a great cost. More than half of the States Parties to the
Convention have entered reservations which limit the scope of the application of the Convention.

Even in states that do not enter reservations, recognition and giving effect to autonomy to
cultural groups in multicultural and multiethnic states is increasingly challenging the universal
application of human rights norms. These countries, on the one hand, enter into obligations to

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prompt and protect human rights within their jurisdiction, but legalize, or at least condone, in
their domestic laws, practices and customary laws that infringe human rights under the cover of
respecting cultural rights of different ethnic groups, on the other hand. In Ethiopia, for example,
the FDRE Constitution approves the adjudication of disputes relating to personal or family
matters in accordance with customary and religious laws.

1.5 Classification

CLASSIC AND SOCIAL RIGHTS

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 organization 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. the right to housing implies the right not to
be a victim of forced eviction

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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 characterized 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 justiciable 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-justiciable.

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.

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The so-called Limburg Principles on the Implementation 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 3 of the UN Committee on Economic, Social and Cultural Rights on the
nature of states parties’ obligations in relation to the ICESCR.

The adoption of the OP-ICESCR by the United Nations General Assembly in 2008 was a major
step towards redressing the historic imbalance of protection and recognition of ESCR. Forty-two
years after a complaints mechanism was adopted for civil and political rights (through the
Optional Protocol to the International Covenant on Civil and Political Rights), it finally became
possible for those suffering from violations of their ESCR to obtain a remedy in the UN human
rights system.

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.

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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).

First, second and third generation rights

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.
Indeed, the concept of generations of rights is at odds with the Teheran Proclamation and the
Vienna Declaration and Programme of Action, which establish that all rights are indivisible,
interdependent and interrelated.

1.6 Sources of Human Rights

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.

This consent may be expressed in various ways.

The obvious mode is an explicit treaty, imposing obligations on the states parties.

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:
a) International conventions, whether general or particular;
b) International custom, as evidence of general practice accepted as law;
c) The general principles of law recognized by civilized nations;
d) Subsidiary means for the determination of rules of law such as judicial decisions and
teachings of the most highly qualified publicists.

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A. International conventions
International treaties are contracts signed between states.
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 specialized agencies, for instance, the ILO and UNESCO) as well as
under the auspices of regional organizations, such as the Council of Europe (CoE), the
Organization of American States (OAS) and the African Union (AU).

B. International custom
Customary international law plays a crucial role in international human rights 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 et necessitatis).

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.

Many scholars argue that some standards laid down in the Universal Declaration of Human
Rights have become part of customary international law as a result of subsequent practice;
therefore they would be binding upon all states.

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 The Human Rights Committee in its General Comment 24 (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:
[A] State may not reserve 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 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 [...].

It has been argued, that, in the field of human rights, evidence of custom could be based on the
resolutions of the UN General Assembly and statements made within other international
organizations, demonstrating a clear commitment of the international community towards certain
values.

C. 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.

Other examples include: principles of good faith, the right to a fair hearing, the exhaustion of
local remedies, prescription and liability for fault.

D. Subsidiary means for the determination of rule of law

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They are not, strictly speaking, formal sources, but they are regarded as evidence of the state of
the law.

E. Other contributions to standard setting

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

The UNGA and the UN Commission on Human Rights adopt more than 100 resolutions and
decisions dealing with human rights. Organizations such as the ILO and the various political
organs of the Council of Europe also adopt such resolutions.

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.

1.7 Human Rights Law & other branches of international law

International Humanitarian Law (IHL):

 While IHRL applies always, IHL applies only during armed conflicts. IHL and IHRL are
complementary, meaning they can apply concurrently, with human rights law providing
additional protection.

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  IHL aims to humanize warfare and regulate the conduct of parties involved in
hostilities.
 regulate permissible means and methods of warfare.
 protect those not or no longer taking active part in hostilities
IHL aims to protect those affected by armed conflict, such as prisoners of war and
civilians.
 IHL binds states involved in a conflict and also armed groups participating in hostilities.
 IHL cannot be derogated from; its rules apply in emergencies and armed
conflicts without exception.

The principal sources of international humanitarian law today are:

■ the four Geneva Conventions of 1949;

■ the two Additional Protocols thereto of 1977;
■ a number of treaties prohibiting or restricting the use of specific weapons, eg the 1980
Convention on Certain Conventional Weapons and its protocols;
■ the 1954 Convention on the Protection of Cultural Property in the Event of War;
■ instruments establishing international mechanisms for the enforcement of
international humanitarian law such as the 1998 Statute of the International Criminal
Court;
■ an important body of customary law.

Complementary Roles in Conflict

 Overlap in Practice:

In situations of armed conflict, particularly occupations or non-international

conflicts, both bodies of law are relevant and mutually reinforcing.

 Reinforcing Protections:

HRL can reinforce protections provided by IHL by covering aspects of life, such
as psychological harm, that IHL may not explicitly address.

 Lex Specialis Principle:

When specific norms from both bodies of law address the same subject matter,
IHL often takes precedence as the lex specialis (special law) because it is more
specific to the context of armed conflict.

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Refugee Law

 A specific body of law that protects refugees, rooted in the 1951 Refugee Convention and
overseen by the Office of the United Nations High Commissioner for Refugees (UNHCR).

International Criminal Law

 Deals with the prosecution of individuals for the most serious international crimes, such as
genocide and war crimes, with the International Criminal Court (ICC) being the main body
for this.

International Labor Law

 Labor as Human Rights:

The International Labour Organization (ILO) has long championed the view that labor
rights are human rights, predating the United Nations' formal articulation of universal
human rights.

 Foundation for Human Rights:

International labor standards serve as precursors and inspirations for core international
human rights instruments, including the International Covenants on Civil and Political
Rights (ICCPR) and Economic, Social and Cultural Rights (ICESCR).

 Workplace as a Human Rights Sphere:

International labor law gives expression to human rights within the economic, social,
and cultural spheres, ensuring rights such as fair wages, healthy working conditions,
and the elimination of forced labor.

Key Elements of International Labor Law

 International Labour Standards:

These are conventions and recommendations adopted by the ILO to set global
minimum standards for worker protection, job security, and terms of employment.

 Core Principles:

The ILO Declaration on Fundamental Principles and Rights at Work (1998) affirms key
inherent obligations:

 Freedom of association and collective bargaining.

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  Elimination of forced or compulsory labor.

 Abolition of child labor.

 Elimination of discrimination in employment and occupation.

 A safe and healthy working environment.

Chapter 2: The United Nations Charter-Based Mechanisms

2.1 Introduction

The procedures were established by resolutions of the ECOSOC and GA, therefore, are
ultimately based on the Charter of the United Nations, thus their identification as charter-based
procedures.

The United Nations has six principal organs (Article 7 UN Charter):

 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 specialized agencies and a number of other specialized 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.

2.2 Human Rights Council

The Human Rights Council

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Arguably, the principal body with responsibility for monitoring compliance with human rights is
now the Human Rights Council (established in 2006), following the dissolution of the derided
Commission on Human Rights.
Weakness of the CHR
Selectivity and double standards: it showed that human rights issues could be influenced by
political considerations of States.

Realpolitik became eventually more important than the application of criteria elaborated under
ECOSOC resolutions 1235 and 1503

The non-transparent way in which countries were chosen for scrutiny contributed to
discrediting the Commission’s work.
The States presenting initiatives on country situations were often not publicly disclosing or
justifying why a certain country was selected and not another one with an equally bad human
rights record. References were often made to domestic politics, media pressure or public opinion.

Western States became more and more reluctant to accept public scrutiny of themselves by the
Commission, whether by country rapporteurs or thematic ones.
In 2004, an initiative on the situation of the detainees at Guantanamo military base was presented
by Cuba. Again, the US exercised strong political pressure, this time on developing countries to
convince Cuba to withdraw its draft resolution.

Despite its very poor human rights record, Libya was elected to chair the Commission, starkly
revealing the Commission’s thoroughly politicised character.

Despite its successes, the CHR came increasingly to be seen as unable to properly fulfil its
functions due to ‘its declining credibility and professionalism’. A number of key problems were
widely recognised. Cynical manipulation of the CHR’s mechanisms by Member States in order
to avoid scrutiny and possible public censure or to score political points against other States, the
increasing ‘politicisation’ of the CHR and in particular the selectivity reflected in the choice of
States singled out for country-specific measures, and a number of high-profile elections to the

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CHR of States with particularly poor human rights records all fuelled the view that the CHR
needed to be radically reformed in order to preserve the integrity of the UN system.

The creation of the Council

The Council was created by the UN General Assembly resolution 60/251 on 15 March 2006
with the main purpose of addressing situations of human rights violations and make
recommendations on them.

It has the ability to discuss all thematic human rights issues and situations that
require its attention throughout the year. It meets at the United Nations
Office at Geneva.

Human Rights Council is an inter-governmental body within the UN system made up of 47.

Like the Commission, the Council’s membership is open to all UN Member States.

However, as per paragraphs 8 and 9 of resolution 60/251, the General Assembly decided that
when electing members of the Council, Member States shall take into account the contribution of
candidates to the promotion and protection of human rights and their voluntary pledges and
commitments made thereto.
The General Assembly, by a two-thirds majority of the members present and voting, may
suspend the rights of membership in the Council of a member of the Council that commits gross
and systematic violations of human rights

Unlike the Commission, which was a functional commission of ECOSOC, the Council has been
constituted as a subsidiary body under the General Assembly

Whereas the Commission’s membership was determined by majority voting in ECOSOC (which
has only 54 Member States), Council membership is determined by majority vote of the entire

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General Assembly present and voting. Thus, Council membership requires a broader base of
political support than that which had been required in respect of the Commission.

One year after holding its first meeting, on 18 June 2007, the Council adopted its “Institution-
building package” providing elements to guide it in its future work.

Universal Periodic Review

Among the elements is the new Universal Periodic Review mechanism which will assess the
human rights situations in all 193 UN Member States once every four years.
The UPR is a State-driven process, under the auspices of the Human Rights Council, which
provides the opportunity for each State to declare what actions they have taken to improve the
human rights situations in their countries and to fulfil their human rights obligations.
As one of the main features of the Council, the UPR is designed to ensure equal treatment for
every country when their human rights situations are assessed.

The principal new mechanism of the Council is its process of UPR. This procedure involves the
periodic review of the human rights performance of all UN Member States in four-year cycles,
which means that 48 States are reviewed every year. The review is conducted by a UPR Working
Council but sitting in three special sessions of two weeks each, with each review facilitated by
groups of three States, referred to as ‘troikas’ and chosen randomly, who act as rapporteurs. Non-
Member States may participate in the interactive dialogue that takes place with the State under
review. The records of States are assessed against the Charter of the United Nations, the UDHR,
the human rights instruments to which the reviewed State is a party, any voluntary pledges and
commitments, and applicable international humanitarian law. The review involves consideration
of information prepared by the State concerned, information provided by the Office of the High
Commissioner for Human Rights compiled from the reports of treaty bodies, special procedures,
and other relevant official UN materials, and a summary of other ‘credible and reliable
information provided by other relevant stakeholders’, also compiled by the Office of the High
Commissioner for Human Rights. This latter document allows for the input of specialist NGOs
and human rights experts.

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Human Rights Council Advisory Committee
Other features include a new Advisory Committee which serves as the Council’s “think tank”
providing it with expertise and advice on thematic human rights issues

It is composed of 18 experts.

The Advisory Committee replaces the former Sub-Commission on the Promotion and Protection
of Human Rights.

The Committee shall not adopt resolutions or decisions, but may propose to the Council.

The Advisory Committee shall convene up to two sessions for a maximum of 10 working days
per year.

Special procedures
The special procedures of the Human Rights Council are independent
human rights experts with mandates to report and advise on human rights
from a thematic or country-specific perspective/ monitoring situations in
specific countries or by looking at specific themes. They are non-paid and
elected for 3-year mandates that can be reconducted for another three
years. As of October 2022, there are 45 thematic and
14 country mandates.

With the support of the Office of the United Nations High Commissioner for
Human Rights (OHCHR), special procedures:

 Undertake country visits

 Act on individual cases of reported violations and concerns of a broader
nature by sending communications to States and others
 Contribute to the development of international human rights standards, and
 Engage in advocacy, raise public awareness, and provide advice for technical
cooperation

Human Rights Council Complaint Procedure

At a glance

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The complaint procedure addresses consistent patterns of gross and reliably
attested violations of all human rights and fundamental freedoms, occurring in
any part of the world, and under any circumstances (Human Rights Council
resolution 5/1 of 18 June 2007). The procedure is impartial, objective, efficient,
victim-oriented and conducted in a timely manner.

Who can submit a complaint?

The complaint procedure of the Human Rights Council is the only universal
complaint procedure addressing all human rights and all fundamental freedoms
in all United Nations Member States. Any individual, group of individuals, or non-
governmental organization can submit a complaint.

Who can you make a complaint against?

A complaint can be submitted against any of the 193 Member States, whether or
not the country has ratified any particular treaty or made reservations under a
particular instrument.

Confidentiality

The procedure is confidential.

The complainant may make a request for confidentiality of some information,

but the complaint must not be anonymous. Should complainants request that
their identity be kept confidential, it will not be transmitted to the State
concerned.

In accordance with paragraph 106 of resolution 5/1, both the author of the
communication and the State concerned are informed of the proceedings at
each stage.

Special Sessions

 Holds crisis meetings known as special sessions to respond to urgent human rights
situations,
 Many special sessions have been held in the short period since the council was
inaugurated.

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 HRC Mandated Investigations

 Authorizes commissions of inquiry and fact-finding missions, which

produce hard-hitting evidence on war crimes and crimes against
humanity.
 United Nations-mandated investigative bodies are increasingly being used
to respond to situations of serious violations of international humanitarian
law and international human rights law.
 These investigative mechanisms have been established by the Security
Council, the General Assembly, the Secretary-General, the High
Commissioner for Human Rights, the Human Rights Council, its
predecessor, the Commission on Human Rights.
 The commissioners and experts selected to lead the Council’s
investigative bodies are appointed by either the President of the Human
Rights Council or the High Commissioner for Human Rights.
 For example, the International Commission of Human Rights Experts
on Ethiopia

2.3 Office of the High Commissioner for Human Rights

The High Commissioner

The High Commissioner is the administrative head of the Office of the High Commissioner and
is mandated to help coordinate the human rights activities of the UN system and to contribute to
its ongoing reform and revitalisation.

The position of High Commissioner is established by the General Assembly in 1993.

The High Commissioner is the principal UN official with responsibility for human rights and is
accountable to the Secretary-General.

The Office of High Commissioner

The Office of High Commissioner consists of some 500 staff members at its headquarters in
Geneva, some ten staff members in its New York office.

It has regional representatives deployed in some parts of the world, human rights field offices in
some countries and human rights advisers in particular countries.

20
The Office provides secretariat servicing for the various Charter-based and treaty-based human
rights bodies.
The OHCHR is the main body within the UN Secretariat dealing with human rights.

The Office receives and administers more than 200,000 communications annually.

Furthermore, the Office prepares studies, reports and publications on human rights.

The Office provides governments with technical advice.

2.4 Other organs of the United Nations and their roles in human rights

Principal organs

THE GENERAL ASSEMBLY

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 realization of
human rights and fundamental freedoms for all without distinction as to race, sex, language or
religion’.

Accordingly, the UNGA adopted the UDHR on 10 December 1948 and, since then, a number of
other human rights instruments.

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 Copyright 1997
 Office of the United Nations High Commissioner for Human Rights, Geneva,
Switzerland

21
  The Special Committee to Investigate Israeli Practices Affecting Human Rights of the
Population of the Occupied Territories
 The UN also had a Special Committee on Apartheid.

Frequently, the General Assembly is not seized of human rights issues ab initio; rather, the
matter being discussed will have stemmed from a report submitted by the Office of the High
Commissioner for Human Rights (OHCHR), the Secretary-General, the treaty bodies, or any of
the other agencies which report to the General Assembly. However, the agenda of the General
Assembly suffers from overload, and many of its resolutions are passed without open debate, yet
they impact on monitoring and enforcing of human rights. The power of the General Assembly
to raise the political profile of human rights is unparalleled. It has made commendable use of its
powers to ‘initiate studies and make recommendations’ on human rights.
THE ECONOMIC AND SOCIAL COUNCIL (ECOSOC)
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 organize 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.

The ECOSOC has established a number of important commissions in the sphere of human rights:
 the UN Commission on Human Rights that has set up the Sub-Commission on the
Promotion and Protection of Human Rights
 the Commission on the Status of Women;
 the Commission for Social Development; and
 the Commission on Crime Prevention and Criminal Justice.

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Under Article 71 of the Charter, the ECOSOC may consult NGOs that are involved with the
work of the Council.

Article 64 empowers the ECOSOC to make arrangements with the UN member states and its
Specialized Agencies to obtain reports on the steps taken to put its own recommendations and
those of the UNGA into effect.

THE SECURITY COUNCIL

Pursuant to Article 24 of the United Nations (UN) Charter the Security Council bears primary
responsibility for the maintenance of peace and security.

Bearing in mind that violations of human rights may lead to situations that endanger international
peace, and that the enjoyment of human rights depends on a peaceful environment, most of the
activities of the Security Council will somehow contain a human rights component.
The Security Council does not occupy itself too intensely with human rights matters – these
responsibilities are exercised primarily by the General Assembly and the Economic and Social
Council and their subsidiary organs.
Still, many of the Council’s resolutions are somehow designed to stop human suffering.

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.

A more intractable problem is the power of veto enjoyed by the permanent

members of the Security Council, the last-named a power which, regrettably, has
so often paralysed the decision-making process, by producing ‘weak’ conciliatory
compromises, rather than penetrating condemnations of human rights
infringements.

Nevertheless, the powers of the Security Council to authorize action (whether

passive or active) offer an important ‘last resort’: the Security Council declared the

23
(former) Constitution of South Africa null and void on account of racial
discrimination – although the legal effect of such a resolution is debatable; it
authorized the establishment of the Special Court for Sierra Leone; and has
extended mandates for nation building work in Iraq.

There is also evidence that the Security Council acknowledges humanitarian

concerns when approving enforcement actions, notably sanctions – contrast the
broad raft of sanctions imposed on Iraq, with those imposed more recently on
North Korea. Not all such measures are successful – the Oil for Food Programme
in Iraq was introduced to mitigate the civilian impact of the sanctions, while action
on Somalia has not resulted in any major improvements. As the foregoing
demonstrates, the Security Council has tentatively embraced human rights,
cultivating a broad approach to peace and security, and recognizing the significant
role adherence to internationally agreed human rights standards plays in realizing
the purposes of the UN. However, although politics presently precludes it from
human rights enforcement, there are mounting indications of a ‘responsibility to
protect’ justifying deployment of military force as a last resort to prevent crimes
such as genocide.

ICJ
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

The ICJ is tasked with determining contentious disputes raised before it with the consent of the
parties (and/or delivering Advisory Opinions). Human rights appear tangential at best to this

24
jurisdiction. Its initial engagement with human rights offered opinions on the status of
reservations to the Genocide Convention, and more recently comments on the application of the
Genocide Convention, holding that Serbia was in violation thereof by failing to prevent genocide
in Srebrenica. In 1971, as noted above, it highlighted human rights in the South West Africa case.

Yet, many decisions of the ICJ concern (albeit indirectly) human rights issues. Interim measures
have been ordered to protect individuals (directly or indirectly realizing human rights) in various
regions including Pakistan, Nicaragua, and, more recently, the Balkans. The court even ordered,
ultimately unsuccessfully, a stay of execution for a Paraguayan national on death row in the
USA: ‘The United States should take all measures at its disposal to ensure that Angel Francisco
Breard is not executed pending the final decision in these proceedings, and should inform the
Court of all the measures which it has taken in implementation of this Order.’ Clearly, the court
is willing to consider provisional measures to protect human rights.

Individuals have no locus standi to institute proceedings against a state in the ICJ but inevitably,
the court has competence to adjudicate on treaty disputes, assuming the parties elect to refer the
case. The first case based on a core human rights treaty (the International Convention on the
Elimination of All Forms of Discrimination (ICERD)) was lodged before the ICJ in 2008. This
contentious dispute between Georgia and the Russian Federation follows the procedure in Article
22 ICERD. Georgia instituted proceedings against the Russian Federation in August 2008,
claiming violation of the convention and reserved the right to include the Genocide Convention
in future proceedings. As of 15 October 2008, provisional measures were ordered to alleviate the
plight and prevent escalation of racial discrimination in South Ossetia, Abkhazia and adjacent
areas in Georgia, with emphasis on ensuring ‘without distinction as to national or ethnic origin,
security of persons; the right of persons to freedom of movement and residence within the border
of the State; [and] the protection of the property of displaced persons and of refugees’.

A number of commentators have discussed the possibility of individual locus standi before the
ICJ and/or the establishment of a world (single) court for human rights. This could be an
additional jurisdiction for the ICJ or (preferably) a distinct body assuming aspects of the roles
currently discharged by the Human Rights Council and/or treaty bodies. The creation of the

25
International Criminal Court (ICC) has prompted a re-examination in some quarters of the role of
individuals under international law. While the corollary of duties and responsibility is rights, the
debate on judicial mechanisms for enforcing those rights against states continues. Undoubtedly,
progress has been made, but the numbers of communications are but a trickle compared to the
flood lodged before the regional courts, corroborating the demand for a global ‘court’.

Secretary-General
As ‘Chief Administrative Officer of the Organisation’, the UN Secretary-General can also exert
influence over human rights.
Increasingly, of recent years, each incumbent Secretary-General has regularly spoken on human
rights matters, advocating compliance with human rights standards.

The good offices of the Secretary-General are regularly extended to obviate conflict and
minimize infringements of human rights.
The former UN Secretary General, Kofi Annan (1997–2006), implemented a review of the entire
UN system with a view to ensuring its continued viability in the future, a process which
culminated in the establishment of the Human Rights Council.

Specialized Agencies of the UN

The Specialized 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 coordinate their work
with the UN, but are separate, autonomous organisations.

such as the:
 World Health Organisation (WHO)
 the Food and Agriculture Organisation (FAO),
 the United Nations Human Settlement Programme (UN-HABITAT).

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NTERNATIONAL LABOUR ORGANISATION (ILO)
The International Labour Organisation (ILO) was founded in 1919.

It focuses on those human rights related to the right to work and to working conditions,
The ILO establishes international standards in the field of labour relations and the protection of
employees, through the adoption of conventions and recommendations.

Since the ILO’s establishment in 1919, it has adopted 188 conventions (as of 2008) which have
garnered some 7,500 ratifications by Member States. Accompanying them are 196
recommendations.

Presently, the ILO has a range of mechanisms at its disposal to ensure compliance with the
standards the organisation has established.

These mechanisms include: obligatory reporting procedures, The ILO has a uniquely thorough
and influential supervisory system. When a convention has been ratified, a government is
required by Article 22 of the ILO Constitution to send periodic reports to the International
Labour Office. At the same time, it is required by Article 23(2) of the Constitution to send copies
of these reports to the most representative organisations of employers and of workers in the
country. These organisations have the right to make their own comments on these reports – and
they do so regularly. The present reporting volume is about 2,000 government reports a year, and
some 300 supplementary comments are made by employers’ and workers’ organisations.
o complaints procedures
o inquiries and studies procedures.

UNITED NATIONS EDUCATIONAL, SCIENTIFIC AND CULTURAL

ORGANISATION (UNESCO)

(UNESCO) was created in 1945

UNESCO’s mandate to promote education, science and culture includes human rights.

27
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.

The role of UNESCO in standard setting

UNESCO has adopted about 60 standard setting instruments relating to human rights.
Some of which include:
 the Convention on the Protection and Promotion of the Diversity of Cultural Expressions
(2005);
 Universal Declaration on Bioethics & Human Rights (2005);
 Convention for the Safeguarding of the Intangible Cultural Heritage (2001);
 Recommendations Concerning the Promotion and Use of Multilingualism and Universal
Access to Cyberspace (2001);
 Universal Declaration on the Human Genome and Human Rights (1997);
 Declaration on Race and Racial Prejudice (1978);
 Recommendation Concerning Education for International Understanding, Cooperation
and Peace and Education Relating to Human Rights and Fundamental Freedoms (1974);
 Convention Concerning the Protection of the World Cultural and Natural Heritage
(1972); Recommendation Against Discrimination in Education (1960);
 and Convention Against Discrimination in Education (1960).

These conventions, declarations and recommendations mainly address the right to education, the
protection of moral and material interest resulting from scientific, literary or artistic production
and the right to take part in cultural life and protect cultural diversity and world heritage.
UNESCO has conducted research in order to clarify the role of these rights and to suggest
measures for their implementation. It has an acknowledged role in the field of human rights
education. It has also tried to integrate a human rights based approach into all phases of its
programme of competence.

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

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Reporting procedure. State reporting procedure, as established in Article 4(6) and Article 8 of its
Constitution. Reports by States Parties are examined by a 30 member Committee on Conventions
and Recommendations, presently chaired by Brazil’s Ambassador/Permanent Representative to
UNESCO. As with the human rights mechanisms in Geneva, Member States have tried to
address the reporting burden on States Parties.

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 procedure, as with the 1503 procedure followed in Geneva, is
strictly confidential. It, however, has important divergences from the 1503 procedure.

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.

UNHCR provides legal protection to refugees by using the 1951 Convention relating to the
Status of Refugees as its major tool.

The 1967 Protocol to the Convention removed geographical and temporal restrictions from the
Convention.

Unlike the international system of human rights protection, there is no formal mechanism in
international refugee law to receive individual or inter-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.

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 Chapter 3: The United Nations Treaty-Based Mechanisms
Introduction
 Established by each core HRs treaty
 Treaty bodies and the procedures they apply

Treaty bodies

Composition, Status and Powers of the Treaty Bodies

The application of the human rights treaties is monitored by the following committees:

1. The Committee on the Elimination of Racial Discrimination, the first treaty body to be
established, has reviewed the application of the International Convention on the
Elimination of All Forms of Racial Discrimination since 1969. It has 18 members.
2. The Committee on Economic, Social and Cultural Rights was created in 1985 to carry
out the functions of the Economic and Social Council under the International Covenant on
Economic, Social and Cultural Rights. It has 18 members.
3. The Human Rights Committee was created in 1976 to review the application of the
International Covenant on Civil and Political Rights. It has 18 members.
4. The Committee on the Elimination of Discrimination against Women has reviewed
the application of the Convention on the Elimination of All Forms of Discrimination
against Women by its State parties since 1981. It has 23 members.
5. The Committee against Torture, created in 1987, reviews the application of the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment. It has 10 members.
6. The Subcommittee on Prevention of Torture held its first session in February 2007. Its
mandate is twofold: to visit all places of detention in State parties; and to provide
assistance and advice to both States parties and their independent national bodies for the
prevention of torture and other cruel, inhuman or degrading treatment or punishment, the
national preventive mechanisms. It has 25 members.
7. The Committee on the Rights of the Child has, since 1991, reviewed the application of
the Convention on the Rights of the Child, as well as its Optional Protocols relating to the

30
 involvement of children in armed conflict and to the sale of children, child prostitution
and child pornography, by their State parties. It has 18 members.
8. The Committee on Migrant Workers held its first session in March 2004 and reviews
the application of the International Convention on the Protection of the Rights of All
Migrant Workers and Members of their Families. It has 14 members.
9. The Committee on the Rights of Persons with Disabilities, established in November
2008, held its first session in February 2009. It has 18 members.
10. The Committee on Enforced Disappearances was created in June 2011 following the
entry into force on 23 December 2010 of the International Convention for the Protection
of All Persons from Enforced Disappearance. It has 10 members.

 Each committee is composed of independent experts of recognized competence in human

rights, who are nominated and elected for fixed, renewable terms of four years by State
parties.
 The treaty bodies generally meet at the United Nations Office at Geneva, although the
Human Rights Committee and the Committee on the Elimination of Discrimination
against Women usually hold one of their sessions in New York every year.
 All committee work is supported by the OHCHR with its experienced and well qualified
secretariat.

What do the human rights treaty bodies do?

 All treaty bodies, with the exception of the Subcommittee on Prevention of Torture, are
mandated to receive and consider reports submitted periodically by State parties detailing
how they are applying the treaty provisions nationally.
 The treaty bodies issue guidelines to assist States with the preparation of their reports,
draft general comments interpreting the treaty provisions and organize discussions on
themes related to the treaties.
 Most treaty bodies may consider complaints or communications from individuals
alleging that their rights have been violated by a State party, provided that State has opted
into this procedure.
 Some may also conduct inquiries and consider inter-State complaints.

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There are three main mechanisms by which the committees monitor compliance with human
rights: periodic reports; inter-state and individual complaints; and in situ investigations.

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 country visits

A. Reporting procedures
When States ratify an international convention, they become accountable not only to the people
within their jurisdiction, but also to the international community regarding implementation of the
provisions of the convention.
State reporting is a tool of accountability to international monitoring mechanisms.

State reports are an integral part of the examination of State Parties under of the existing nine
UN human rights treaties.

The Committee on Economic, Social and Cultural Rights identified seven objectives of the
periodic report system:
 ensure a comprehensive review of national legislation, policy and practices to ensure the
fullest possible conformity with the treaty;
 monitor the actual situation of human rights within national territory;
 implement principled policy-making by the government to prioritize realization of rights;
 public scrutiny of government policies;
 evaluate progress made towards realizing the rights (particular to the International
Covenant on Economic, Social and Cultural Rights’ ‘progressive realization of rights’);
 help states develop a better understanding of difficulties it encounters; and
 facilitate the exchange of information among states.

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These objectives are generally the same for each treaty body.

The legal framework for State reports

The obligation to submit a State report is laid down in each treaty
.
Following the entry into force of the convention, the State Party has to submit an initial report
within a fixed time period, normally one to two years.

The initial report must be comprehensive to give the members of the treaty body an in-depth
understanding of the situation in the country regarding the specific area or areas covered by the
convention.

Following the initial report, the State Party has to submit periodic reports within the periodicity
determined by the convention or the treaty body, which varies from two years under ICERD to
five years under ICESCR and CRC(with the exception of the International Convention for the
Protection of All Persons from Enforced Disappearance, art.29).

33
 Initial report due (following
eaty ratification) within Periodic reports due thereafter every

ICERD 1 year 2 years1

ICESCR 2 years 5 years2
ICCPR 1 year 4 years3
CEDAW 1 year 4 years
CAT 1 year 4 years
CRC 2 years 5 years
ICRMW 1 year 5 years
CRC-OPSC 2 years 5 years or with next CRC report
CRC-OPAC 2 years 5 years or with next CRC report
CRPD 2 years 4 years
CED 2 years as requested by CED (art. 29(4)

Thirty per cent of both initial and subsequent reports are not submitted to the treaty bodies. Some
States do not comply with reporting obligations for political reasons, others because of a lack of
resources.

It should be recalled that in these and other cases the OHCHR offers technical assistance to
countries which do not have the capacity to draft the State report.

Content of reports
Each treaty body issues reporting guidelines regarding the contents of the State report.
Some committees expect reports to follow the order of the convention article by article, while
others ask States to deal with related issues together.

1
With a two year periodicity specified in the treaty, ICERD allows for merging two
reports in one (i.e. de facto periodicity of four years).
2
Article 17 of the Covenant does not establish a reporting periodicity, but gives
ECOSOC discretion to establish its own reporting programme.
3
Article 40 of the Covenant gives the Human Rights Committee discretion to
decide when periodic reports shall be submitted. In general, these are required
every four years.

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The examination
In order to optimise the few hours available for the formal examination, as a working method, all
committees prepare lists of issues and questions for the State Party, which are submitted to the
State Party well in advance of the examination. This is in order for the committee to receive
additional information on issues of particular concern, and at the same time to indicate to the
State Party the issues that will be raised during the formal examination.

The CEDAW Committee, CESCR, CRC Committee and Committee on the Rights of All
Migrant Workers and Members of Their Families (CMW) require the State Party to submit
written responses to the list of issues prior to the examination. This is not formally required by
other committees but State Parties often do submit written replies, even when this is not required.

The list of issues forms the basis of the constructive dialogue, which normally takes place in
Geneva or New York.
The formal examination of the report is conducted between the experts of the committee and a
delegation from the State Party, most often from the country’s capital.

The aim is to carry out a constructive dialogue in a non-judgemental atmosphere. The purpose of
the examination is not to blame and shame, but rather to offer assistance to the State Party on
how to improve implementation of the convention.

In general, the face-to-face or constructive dialogue in all treaty bodies follows the same broad
structure:
 The State party is invited to send a delegation to attend the meetings at which the
committee will consider the State party’s report;
 (b) The head of the delegation, usually led by Government experts from the
capital, is invited to make a brief opening statement; and
 (c) Members of the committee, in some cases led by the country rapporteur(s) or
country task force members, pose questions on specific aspects of the report of
particular concern. Dialogues based on an initial report require the treaty body to
cover most if not all treaty provisions in order to allow a complete understanding

35
 of the country situation; dialogues on a periodic report require more focused
attention on a number of key specific issues and provisions which the State party
is not yet fully implementing.

Based on the dialogue, the State report and other sources of information made available to the
experts, the committee will elaborate a set of concluding observations and recommendations
addressed to the State Party.

NGOs and NHRIs are important providers of supplementary information on the situation in the
country regarding the issues being addressed by the relevant committee.

NGOs and NHRIs play a role in ensuring the implementation of the recommendations of the
treaty bodies.

The “review procedure” – review of implementation without a report

According to this procedure, a committee may proceed with the examination of the state of
implementation of the relevant treaty by the State party even though it has not received any State
report.

The committee may formulate a list of issues and questions for the State party, which is invited
to send a delegation to attend the session.

Information may be received from United Nations partners and NGOs and, on the basis of this
information and the dialogue with the State party, the committee will issue its concluding
observations including recommendations.

The review may proceed even if the State party declines to send a delegation to the session.

36
The review procedure is used only in exceptional cases; in very many cases, notification by the
committee that it intends to consider the situation in a country in the absence of a report is
sufficient to persuade the State party to produce a report within a short period of time.
The importance of follow-up to treaty body recommendations
Treaty bodies have no means of enforcing their recommendations. Nevertheless, most States take
the reporting process seriously, and the committees have proved successful in raising concerns
relating to the implementation of the treaties in many States.

In order to assist States in implementing their recommendations, the treaty bodies have begun to
introduce procedures to ensure effective follow-up to their concluding observations. Some
(Committee on the Elimination of Racial Discrimination, Human Rights Committee, Committee
on the Elimination of Discrimination against Women and Committee against Torture) request, in
their concluding observations, that States report back to the country rapporteur or follow-up
rapporteur within one year (sometimes two (Committee on the Elimination of Discrimination
against Women)) on the measures taken in response to specific recommendations or “priority
concerns” that are rapidly implementable. The rapporteur then reports back to the committee.

Some members of treaty bodies have undertaken visits to State parties, at their invitation, in
order to follow up on the report and the implementation of concluding observations.

The reform process

Reporting to the treaty bodies can be a considerable challenge.

A State that has ratified all nine core international human rights treaties is expected to produce
more than 20 human rights reports over a ten-year period: that is one every six months.

States must also produce responses to lists of issues and prepare to attend treaty body sessions,
and will then perhaps need to submit further reports on follow-up to concluding observations.

In addition, States might also have obligations at regional level. This adds up to a considerable
reporting burden, so it is perhaps not surprising that States can fall behind in their reporting
schedules or, in some cases, fail to report at all.

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As noted above, a number of States do not meet the reporting requirements, and 30 per cent of
reports are overdue. Many States find it difficult to meet the complex and overlapping reporting
requirements.

The Office of the United Nations High Commissioner for Human Rights and the various
committees have initiated a process to strengthen the overall system. Important work is being
undertaken to develop harmonised guidelines on reporting to the treaty bodies. In 2006, the Fifth
Inter-Committee Meeting (ICM) and eighteenth meeting of chairpersons adopted the “Harmonized
guidelines on reporting under the international human rights treaties, including guidelines on a Common
Core Document (CCD) and treaty-specific documents” (HRI/MC/2006/3 and Corr.1).

Under the new 2005 Harmonized Guidelines on Reporting under the International Human Rights
Treaties, each State report consists of ‘two complementary documents: up-todate common core
document and a targeted treaty-specific document. The common core document will be
submitted to all treaty bodies in conjunction with a targeted report specific to the relevant treaty’
(para. 26).
Furthermore, work is being done to integrate the reporting obligation into the daily routines of
civil servants in relevant ministries and other institutions.

“Simplified Reporting Procedure” (SRP): The proposal for a simplified and aligned reporting process
would assist States to meet their reporting obligations while improving the quality of reporting through
the adoption of an optional “Simplified Reporting Procedure” (SRP). It is a further refinement, in light of
State consultations, of what was to date known as Lists of Issues Prior to Reporting (LOIPR), as explained
in further detail below.
At its thirty-eighth session held in May 2007, the Committee against Torture adopted a new optional
reporting procedure which consists in the preparation of List of Issues Prior to Reporting (LOIPR) to be
transmitted to States parties prior to the submission of their respective periodic report (A/62/44,
paragraphs 23 and 24). The optional reporting procedure aims at guiding States parties in the
preparation and content of their periodic reports; facilitating the reporting process; and strengthening
States parties’ “capacity to fulfil their reporting obligations in a timely and effective manner”. After the
submission of the State party’s replies to the LOIPR, there is no need for a further request for additional
information, which is traditionally conveyed by most treaty bodies through a List of Issues after States’

38
reports are traditionally submitted, and before the consideration of its report, hence reducing the
documentation and alleviating the reporting process for the Committee, the Secretariat and the State
party. After introducing this procedure on a trial basis, the Committee against Torture decided, at its
forty-second session in May 2009, to maintain it on a regular basis in light of the positive feedback
received and the high rate of acceptance (75%) of the procedure by States parties. 4

B. Inter-state complaint procedure

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 recognized 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.

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 recognized the competence of the supervisory bodies to receive
inter-state complaints.

The ECHR and the African Charter do not require any special authorization for a state party to
be able to bring interstate complaints.

Only the ICERD contains a mandatory inter-state procedure for complaints (Articles 11 and 12).

4
CAT/C/47/2, paragraph 18

39
 C. Individual complaint procedure
The United Nations receives thousands of petitions concerning alleged violations of human
rights from individuals, groups and organizations.
These are screened by the Secretariat of the OHCHR in Geneva, which channels them into the
appropriate procedures, whether treaty- or resolution-based.

At the UN level, individual complaint mechanisms are found, among others: in the First Optional
Protocol to the ICCPR; Optional Protocol to the Convention on the Rights of the Child; Article
22 CAT; Optional Protocol to the CEDAW; Article 14 CERD, Article 77 CMW and the Optional
Protocol to the International Covenant on Economic, Social and Cultural Rights, adopted by the
UN General Assembly on 10 December 2008.

The Optional Protocol to the UN Convention on the Rights of the Child on a Communications
Procedure (Third Optional Protocol) was adopted during the Sixty-sixth session of the UN
General Assembly on 19 December 2011 and opened for signature and ratification on 28
February 2012 and entered into force 14 April, 2014.

The CMW and the OP-ICESCR, also contain provisions for individual communications to be considered by their
respective committees

The treaty-bodies consider petitions and issue “Views”, “Opinions”, or “Decisions” of a quasi-
judicial nature.

Ratification of the respective international legal instrument and acceptance of the

competence of the supervisory body
Claims can only be submitted against states that a) are parties to the respective treaty, and have
recognized the competence of the supervisory body to consider complaints from individuals.

Admissibility ratione materiae

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The alleged violation must relate to a right actually protected by treaty. Therefore, the first step is
to identify an international instrument that protects the right or rights which allegedly have been
violated by the state.

Reservations: A state may have entered reservations. Through a reservation, it may have
excluded or altered the effects of certain provisions of a treaty in their application to that state, or
limited the supervisory body’s competence to examine certain communications. In exceptional
cases, the supervisory mechanisms may decide that a particular reservation is impermissible
because it goes against the object and purpose of the treaty and consider the communication
notwithstanding the purported reservation.

Date of ratification: The date on which the state becomes party to the treaty and accepts the
supervisory mechanism must also be taken into account. Generally, the complaint must relate to
events that occurred subsequent to the entry into force of the complaint mechanism for the
respective state. As a rule, supervisory bodies do not examine complaints dating from a period
prior to the entry into force, in which case the complaint would be regarded, in legal terms, as
inadmissible ratione temporis. There are, however, exceptions. In cases where the effects of the
event in question have extended into the period covered by the complaint mechanism, and in
themselves constitute a human rights violation, such as ‘disappearances’, the supervisory body
may consider the overall circumstances.

After examination of the above issues one may find that:

a) the state allegedly responsible for a violation is not a party to any human rights treaty which
protects the right or rights violated, in which case it would be important to check if some other
supervisory procedure could be invoked; cases can for instance be brought to the extra-
conventional mechanisms.

b) Duplication of procedures
Where an alleged violation is covered by more than one human rights instrument to which the
responsible state is party, it is necessary to decide which supervisory body would provide the
best remedy.

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In order to decide which mechanism is the best choice, several factors need to be taken into
account. They include the following:
a) The specific character of a particular procedure has to be taken into consideration. Sometimes,
individual complaints are possible both at the universal level (e.g. ICCPR) and under a regional
system (e.g. European Convention, Inter-American Convention or African Charter on Human
and Peoples’ Rights). In such cases, making a complaint under the regional systems is sometimes
preferable as the regional individual complaints procedures are decided by human rights courts
Locus standi
Locus standi (‘place of standing’) means the right to bring an action or to be heard in a given
forum. Not everyone can lodge a complaint before the human rights supervisory bodies.
International human rights treaties establish who can bring a complaint; so the relevant
provisions in each instrument need to be checked. In most cases, it is possible to lodge a
complaint if you are the victim or you are acting on his/her behalf (with legal consent of the
victim). There are exceptions to this rule.

First, where the direct victim is unable to act, the complaint may be filed by a person who has
sufficiently close links to him/her, so that it may be presumed that the wishes of the victim are
adequately taken into account and that, if he/she could have done so, the victim would have
consented to being represented.

Second, where the violation has not occurred yet but may be considered both imminent and
sufficiently

It is not sufficient simply to challenge a law or state policy or practice in the abstract (a so-called
actio popularis) without demonstrating how you are individually affected.

Article 55 ACHPR does not place any restrictions on who can submit cases to the Commission.
The Commission has interpreted this provision as giving locus standi to the victims themselves
and to the victims’ families as well as NGOs and others acting on their behalf.

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F. Formal requirements
The petition/communication must satisfy some formal requirements of admissibility. The
following factors are relevant:

• The rule of exhaustion of domestic remedies:

A crucial rule governing the admissibility of a complaint is that you must, in general, have
exhausted all remedies in the state where the violation occurred before bringing a claim to an
international body. This usually includes pursuing your claim through the local court system.
There are, however, exceptions to this rule. If the exhaustion of remedies is unreasonably
prolonged, or plainly ineffective or otherwise unavailable to you (owing, for example, to denial
of legal aid in a criminal case), you may not be required to exhaust domestic remedies (see below
for the rules applied by each supervisory body).

Period of limitation: No time limit for the HRC and 1 year for CESCR.

The substance of the compliant: The supervisory bodies would consider your communication
inadmissible if you are unable to sufficiently demonstrate that the facts of your complaint tend to
establish a violation of the rights guaranteed in the pertinent human rights instrument. Therefore,
you should try to sufficiently substantiate your complaint. If the relevant supervisory body
considers that, in light of the information before it, you have not sufficiently developed the
arguments for a violation of the treaty in question; it may reject the claim as ‘insufficiently
substantiated’ or ‘manifestly ill-founded’.

G. Interim measures
If the violation you are facing is of extreme gravity and urgency and immediate action is required
in order to avoid irreparable damage to persons, you can request the supervisory body to adopt
‘interim’ or ‘provisional’ measures, that is, to take urgent action to avoid irreparable damage.
Under certain circumstances the supervisory bodies may adopt such measures on their own
initiative. When requesting that interim measures be adopted, it is advisable that the urgency of

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the situation and the measures to be taken to avoid the damage are clearly described. In addition,
you can also approach relevant special rapporteurs and NGOs for help.
The implementation of decisions (views) adopted on the basis of individual communications
The implementation of decisions adopted on the basis of individual communications represents a
specific challenge, since findings of violations should in principle lead to remedies being
provided to the individual aggrieved, or compensation made to him/ her; in addition, measures of
a general nature, such as a change in legislation, may be required.

The relations between international and regional human rights systems

According to Article 56(7) of the Charter, a communication is inadmissible if it has already been
‘settled’ ‘in accordance with the principles’ of the African Charter, the AU Constitutive Act or
the UN Charter.
This is clearly sound, because a State should not be found in violation twice for one violating
action or conduct, and a complaint that has been finalized on the merits should not be reopened.

This principle is similar to those of autrefois acquit and autrefois convict, which entail that an
accused in a criminal trial may not be tried again for an offence similar to one for which he or
she has already been either acquitted or convicted.

The problem of concurrent jurisdiction arises especially in respect of allegations of violations

that are covered by both a regional, in this case the African Charter, and global instrument, such
as the UN Charter or the ICCPR, with a supervisory body at each level. It is necessary that the
interrelationships of these institutions be clearly defined.

While the African Charter allows for the simultaneous submission of communications to both the
African Commission and a UN treaty body such as the UN Human Rights Committee, the
complainant has to abide by the first decision or finding. This approach eliminates the unsettling
possibility of divergent ‘conclusions’ to a particular matter before different bodies.
Under some treaties (Article 5(2)(a) of the Optional Protocol to the ICCPR and see the CAT) it is
not the ‘settlement’ of the matter by another international body, but the fact that it is ‘being
examined’ by such a body that renders the matter inadmissible. According to this approach, a

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complainant is bound to await the outcome of the matter in the first forum to which the matter
was submitted.
Suggested Reforms
The Committee on the Elimination of Racial Discrimination (CERD), in its letter of 9 March 2012,
proposed the creation of a joint treaty body working group on communications, composed of experts of
different treaty bodies.

Added value of the initiative

Development of consistent standards of protection; ensuring consistency
of jurisprudence among treaty bodies;
Reinforcement of the justiciability and interdependence of all human
rights;
More coherent outputs, benefiting from each treaty body’s specific
expertise, which facilitates the implementation of decisions and views of
treaty bodies by States parties;
Development of aligned working approaches of all treaty bodies dealing
with communications.

D. Inquiry and Country visits

Six treaty bodies—the Committee against Torture, the Committee on the Elimination of
Discrimination against Women, the Committee on the Rights of Persons with Disabilities, the
Committee on Enforced Disappearances, and the Committee on Economic, Social and Cultural
Rights and the Committee on the Rights of the Child—may initiate inquiries if they receive
reliable information containing well-founded indications of serious, grave or systematic
violations of the conventions in a State party.

Which States may be subject to inquiries?

With the exception of inquiries by the Committee on Enforced Disappearances, for which State
parties automatically accept the Committee’s competence when they ratify the Convention,
inquiries may be undertaken by the other committees only with respect to State parties that have
separately and additionally recognized their competence in this regard.

At the time of signature, ratification or accession, State parties to the Convention against Torture
may opt out by making a declaration under article 28. State parties to the Optional Protocol to the
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Convention on the Elimination of All Forms of Discrimination against Women may similarly
exclude the competence of the Committee by making a declaration under article 10. State parties
to the Optional Protocol to the Convention on the Rights of Persons with Disabilities may also
opt out by making a declaration under article 8 at the time of signature, ratification or accession.

Any State which opts out of the procedure in this way may decide to accept it at a later stage.

The Optional Protocol provides the CESCR with the ability to conduct inquiries when it has
received reliable information on grave or systematic violations by a State Party of rights in the
ICESCR. The CESCR can only undertake this mechanism if the relevant State has expressly
accepted that the CESCR can carry out an inquiry procedure in reference to that State. The “opt-
in” formula constitutes a move back from other instruments where States are automatically
subject to this procedure unless they take the explicit step of refusing to be subject to this
procedure. For example, under the OP-CEDAW, States may “opt-out” of the inquiry procedure
at the time of signature, accession or ratification (Art. 10). Under the Convention Against
Torture (CAT) [[Link] a State may enter a reservation
declaring that it does not recognise the competence of the Committee to initiate inquiry
procedures (Art. 20).

Inquiry procedure

The Convention against Torture (art. 20), the Optional Protocol to the Convention on the
Elimination of All Forms of Discrimination against Women (arts. 8–9), the International
Convention for the Protection of All Persons from Enforced Disappearance (art. 33), the
Optional Protocols to the Convention on the Rights of Persons with Disabilities (arts. 6–7), to the
International Covenant on Economic, Social and Cultural Rights (art. 11) and to the Convention
on the Rights of the Child (art. 13) set out the following basic procedure for their committees to
undertake urgent inquiries:

1. The procedure may be initiated if a committee receives reliable information indicating that the
rights contained in the treaty are being systematically violated by a State party. For inquiries
under the Convention against Torture, the information should contain well-founded

46
 indications that torture is being systematically practised in the territory of the State party; for
inquiries under the Convention on the Elimination of All Forms of Discrimination against
Women, the information should indicate grave or systematic violations of the rights set forth
in the Convention by a State party;

2. A committee first invites the State party to cooperate in the examination of the information by
submitting observations;

3. A committee may, on the basis of the State party’s observations and other relevant information
available to it, decide to designate one or more of its members to make a confidential inquiry
and report to the committee urgently. The procedures under the Convention on the
Elimination of All Forms of Discrimination against Women, the International Convention for
the Protection of All Persons from Enforced Disappearance and the Convention on the Rights
of Persons with Disabilities specifically authorize a visit to the territory of the State
concerned, if warranted and with the State’s consent; visits are also envisaged by the
procedure under the Convention against Torture;

4. The findings of the member(s) are then examined by the committee and transmitted to the
State party together with any appropriate comments or suggestions/recommendations;

5. The procedures under the Convention on the Elimination of All Forms of Discrimination
against Women and the Convention on the Rights of Persons with Disabilities set a six-month
deadline for the State party to respond with its own observations on the Committee’s findings,
comments and recommendations and to inform the Committee of the measures taken in
response to the inquiry if the Committee invites it to do so;

6. A committee may decide, in consultation with the State party, to include a summary account
of the results of the proceedings in its annual report. If the State party agrees, the full inquiry
and the State party’s response may be made public;

7. The cooperation of the State party must be sought throughout the proceedings.

The main difference between an inquiry procedure and a complaints procedure is that the inquiry
mechanism does not require a complaint for the Committee to initiate the procedure.

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Country visits: The Optional Protocol to the Convention against Torture also provides a practi-
cal means to assist State parties in meeting their obligations to prevent and combat torture and
other forms of ill-treatment by establishing a global system of regular visits to all places where
persons are, or may be, deprived of their liberty.

The Subcommittee on Prevention of Torture (SPT) empowered to conduct on

site preventive visits to detention facilities, effectively combating conditions
leading to torture, with its experts visiting States parties as often as deemed
useful until the abhorrent phenomenon is effectively eradicated.

E. Effectiveness
There are, however, a number of problems.
Firstly, a large number of countries have either not recognized 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.

For those treaty bodies that consider individual communications, the increasing number
of petitions (an average of 480 individual communications pending in 2011) has also led
to significant delays in this procedure. For instance, for the Human Rights Committee,
with 333 pending cases, the average time lag between registration and final decision on a
case is around three and a half years. The average time lag for the Committee against
Torture, which has 115 cases pending, is two and a half years. This has a negative impact
on petitioners who face a long wait before their case is decided upon, and on States
parties who are often faced with a Committee’s request for implementation of interim
measures over a long period of time. It should also be noted that some States do not
cooperate with the Committees despite frequent reminders to submit their comments on
the individual communications, thereby further delaying the consideration of the
complaint.

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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.

The examination of reports under the treaty-based reporting mechanisms, also faces problems.

There are a great number of states that have not submitted their reports under the various treaties.
Only 16 % of the reports due in 2010 and 2011 were submitted in strict accordance with the due dates
established in the treaties or by the treaty bodies. Under some treaties such as ICESCR, CAT and the
ICCPR, around 20% of States parties have never submitted an initial report; for others like ICRMW, CRPD
and the two Optional Protocols to the CRC (with a reporting requirement), the figure is even higher.

Even at this level of non-compliance described above, treaty bodies face backlogs amounting to
a cumulative 281 State party reports pending consideration (as of 21 March 2012). As a result, as
it presently operates, States parties that invest the time to prepare their reports are made to wait
for the holding of the constructive dialogue for years after their submissions.

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.

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.

The international system is often regarded as ‘toothless’, as states claim acceptance of treaty
obligations for diplomatic benefits without adequately improving their human rights practices.

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Indeed, the reporting process has been described as ‘a lecture in the anatomy of human rights’.
Certainly, dissecting the process reveals a number of latent issues: many countries ratify treaties
and then negate the impact by the deployment of reservations and declarations; others thwart the
process of periodic reporting by failing to submit timely reports; others submit minimalistic
reports that fall far below the ideal of a self-evaluation upon which constructive dialogue can
build.

Even now, the UK, the USA, and the People’s Republic of China, permanent members of the
Security Council, generally do not permit individual communications against them under the UN
system – hardly a stunning endorsement for an international system.

Chapter 4: Substantive Rights

The Charter of the UN
 Adopted on 26 June
 the Charter’s primary aim was to save succeeding generations from the scourge of war
(preamble, paragraph 2) and to ensure the maintenance of international peace and security.
 The Charter refers to human rights in altogether seven provisions of diversified content and
character (Paragraph 3 of the preamble, Article 1(3), Articles 55 and 56, Article 76(C), Article
13(1)(b), Article 62(2) and (3), and Article 68)).

The International Bill of Rights

The UDHR
 It was adopted on 10 December 1948.
 December 10: International Human Rights Day
 adopted by forty-eight votes in favor, none against and eight abstentions (Byelorussia,
Czechoslovakia, Poland, Saudi Arabia, South Africa, Ukraine, USSR and Yugoslavia).
 Preamble and 30 articles which comprise:
 The Preamble recognizes that the inherent dignity and of the equal and inalienable rights of all
members of the human family is the foundation of freedom, justice and peace in the world
(Paragraph 1).

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  The Preamble calls for inter-cultural consensus by indicating that a common understanding of
these rights and freedoms is of the greatest importance for the full realization of the pledge of
Members of the United Nations to achieve the promotion of universal respect for and
observance of human rights and fundamental freedoms (paragraphs 6 and 7).
 The operative part of the Declaration can be divided into three groups of provisions.
 The 1st group (Article 1) contains an affirmation of the philosophical foundations of human rights
by saying that [A] 11 human beings are born free and equal in dignity and rights.
 The 2nd group of provisions proclaims a number of general principles. One is the principle of
equality and non-discrimination (Article 2). The second principle relates to the concept of the
duties of States (Article 28).
 The 3rd principle spells out a concept of the duties of everyone to the community (Article 29(1))
and permissible limitations in the exercise of the human rights and freedoms (Article 29(2)). And
the fourth principle provides for the prohibition of activities by any State, group or person aimed
at the destruction of the rights and freedoms set forth in the Declaration (Article 30).
 Substantive rights- Articles 3 to 27- the fundamental civil and political rights and freedoms, as
well as economic, social and cultural rights.
 Less extensive is the catalogue of economic, social and cultural rights (Articles 22 to 27).
 Initially, a non-bidding declaration
 Now, many of its provisions have acquired the status of CIL.
 General Comment No. 29 of the HRC

The twin covenants

 The Commission on Human Rights proposed in 1950 to keep all rights in one convention.
 However, USA and some other Western countries argued against this proposal and persuaded
the GA General Assembly not to follow the recommendations of the Commission
 The arguments put forward by USA and others were centered around asserted differences in
regard to the possibility for the individual to legally enforce his rights and the different kind of
monitoring mechanisms the two sets of rights would require.
 Today, the interrelationship and mutually reinforcing nature of the various human rights is
emphasized.
 The two covenants contain some identical or similar provisions, such as the right to self-
determination (Article 27 both covenants) and the principle of non-discrimination (Article 2 of

51
 both covenants). Also the safeguard clauses that the rights should not be used as a pretext for
the destruction of other rights, are the same (Article 5 of both covenants).

The International Covenant on Civil and Political Rights

 The International Covenant on Civil and Political Rights contains 53 articles, of which 27 are of a
normative character.
 It also consists of a first optional protocol adopted at the same time as the Covenant in 1966,
establishing a procedure for individual complaints, and
 A second optional protocol, adopted in 1989 aiming at the abolition of the death penalty.
 Pursuant to Article 28 of the Covenant, a Human Rights Committee is established, consisting of
18 members, who are nominated and elected by states but who serve in their individual
capacity.
 Its mandate is to consider the reports that all states parties are under a duty to submit regularly
to the committee, to consider interstate complaint and to deal with the individual complaints
that may come before it under the first optional protocol

The International Covenant on Economic, Social and Cultural Rights

 The International Covenant on Economic, Social, and Cultural Rights consists of 31 articles, of
which the first 15 are of a normative character and the last 16 of a more procedural nature.
 In its normative articles it sets out many of the fundamentals for the well being and prosperity
of an individual.
 Each state party is under an obligation to undertake steps “to the maximum of its available
resources with a view to achieving progressively the full realization of the rights recognized in
the present covenant, by all appropriate means, including particularly the adaption of legislative
meansures” (Article 27 the Covenant).
 A core provision is Article 11, which recognizes the rights of everyone to an adequate standard
of living, including adequate food, clothing and housing, and to the continuous improvement of
living conditions
 The covenant on Economic, Social and Cultural Rights do not make provision for the
establishment of a separate treaty body.

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  Instead, the responsibility for the supervision of the Covenant is entrusted to the Economic and
Social Council (ECOSOC) originally; the ECOSOC delegated this work to a special group of
government experts.
 However, in 1985, the ECOSOC decided to instead create the Committee on Economic, Social
and Cultural Rights, a body composed of eighteen members, elected by ECOSOC from a list of
candidates nominated by states parties for terms of four years.

The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

 On 10 December, 1984, another major step was taken when the General Assembly adopted the
Convention Against Torture on Other Cruel, Inhuman or Degrading Treatment or Punishment,
which entered into force in 1987.
 The provisions in this Convention build on elements from the other instruments.
 The Convention provides for a definition of torture in its first article, which includes intentional
acts for certain enumerated reasons which causes severe pain or suffering of physical or mental
nature for a persons, “
 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” (Article 1 of the
Convention Against Torture).
 During the negotiations, a group of countries insisted on adding a clause explicitly precluding
pain or suffering arising from lawful sanctions, an exception not found in earlier instruments
containing provisions relating to torture (Article 1 of the Convention).
 The Convention establishes a Committee Against Torture, consisting of ten members.
 The Optional Protocol to the Convention, which entered into force in June 2006, created
the Subcommittee on Prevention of Torture (SPT).
 The SPT has a mandate to visit places where persons are deprived of their liberty in the States
parties.

Protection for People in Vulnerable Situations

 There are particular groups who, for various reasons, are vulnerable and consequently
require special protection for the equal and effective enjoyment of their human rights.
 Groups that have difficulties defending themselves and are therefore in need of special
protection.

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  Often human rights instruments set out additional guarantees for persons belonging to
these groups
 Requiring states (parties) to extend special protective measures to them and ensure some
degree of priority consideration, even where in the face of severe resource constraints.
 Twelve groups are discussed:
 women and girls;
 children;
 refugees;
 internally displaced persons;
 stateless persons;
 national minorities;
 indigenous peoples;
 migrant workers;
 Persons with disabilities
 older persons
 People living with HIV/AIDS

 Clearly, this is not an exhaustive list of persons in need of particular protection.

Minorities (racial, ethnic, or national)

CERD

 In 1969, the International Convention on the Elimination of All Forms of Racial Discrimination
(CERD) entered into force after having been adopted in 1965 by the General Assembly.
 The Convention contains 25 articles, of which the first seven articles are of a normative
character.
 A broad definition of racial discrimination is found in Article 1
 The Convention sets out a number of detailed prohibitions and obligations to prevent
discrimination on the grounds of race, color, descent, or national or ethnic origin.
 States are under an obligation to criminalize the dissemination of ideas based on racial
superiority and hatred and participation in racial organizations or activities.

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  The international monitoring procedures are dealt with in the second part of the Convention
(Articles 8 to 16).
 A Committee on the Elimination of Racial Discrimination (CERD), consisting of 18 independent
experts
Common articles of ICCPR & ICESCR
 Art. 27
CRC
 Art. 30

Indigenous people

 Indigenous peoples have a strong affinity with the land they live on.
 Their environment is essential for their survival as a cultural entity; it is decisive for their
social and cultural conditions;
 They are not dominant in their present national society, usually they have little if any
influence on state policy;
 They generally speak their own language and have common cultural qualities; and
 Their political/organisational structure is generally of a decentralised nature.

The UN Declaration on the Rights of Indigenous Populations, adopted in 2007

The Declaration consists of 46 articles, related to issues such as:
 The right of indigenous populations to self-determination;
 The right not to be ‘forcibly removed from their lands or territories’;
 The right ‘to practice and revitalise their cultural traditions and customs’;
 The right ‘to establish their own media in their own languages’; and
 The right ‘to determine and develop priorities and strategies for the development or use
of their lands, territories and other resources [...]’.

The UN Working Group on Indigenous Populations

Women

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The Convention on the Elimination of Discrimination against Women

 The Convention was adopted by the General Assembly in 1979, which is entered into force in
1981.
 The Convention consists of 30 Articles, of which the first 16 are of a normative character.
 The definition of discrimination against women, contained in the first article, is more detailed
than in many other discrimination clauses.
 In both its definition and in other provisions the convention on the elimination of All Forms of
Discrimination Against Women (Article 18 of the Convention) reflects the depth of exclusion and
restriction practiced against women because of their sex.
 It identifies many areas where there have been a notorious discrimination against women; for
example in regard to political and civil rights, economic rights and employment.
 It calls for equal rights for women, regardless of their marital status. It calls for national
legislation to ban discrimination.
 It allows for temporary special measures to accelerate the achievement of equality between
men and women.
 The Convention recognizes that, even if women’s equality is guaranteed by law and special
measures taken in order to promote ade facto equally, there is still a necessity to take measures
to remove the social, cultural and traditional patterns which perpetuate gender-role stereotypes
and to create an overall framework in society that promotes the equal rights and responsibilities
between men and women, including shared responsibilities in the domestic sphere.
 The Convention provides for equal rights of women in political and public life, equal access to
education and employment, equality in access to health facilitates and an end to discrimination
in the field of finance and areas of economic and social rights.
 The Convention also stresses the need to eliminate discrimination in all matters relating to
marriage and family related matters and stresses the social services needed especially childcare
facilities for a full participation of women in public life.
 The issues of gender-based violence are not specifically addressed in the convention.
 The committee set up under the convention has also addressed this subject in its General
Recommendation of Article 19, in which it formally extends the general prohibition on gender-
based discrimination to include gender-based violence.

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  The Convention establishes a Committee on the Elimination of Discrimination Against Women
consisting of 23 members nominated and elected by states parties but serving in their personal
capacity.

Children

The Convention of the Right of the Child

 The Convention was adopted by the General Assembly in 1989, and entered into force in 1990.
 Has achieved an almost Universal adherence.
 The Convention consists of 54 articles, of which the first 42 are of a normative character.
 The Convention is all-encompassing and sets up a holistic approach where civil, political,
economic, social and cultural rights a
 A child is defined as “every human being below the age of eighteen years. Unless, under the law
applicable to the child, majority is attained earlier” (Article 1 of the Convention).
 Four general principles have guided the authors of the Convention, and later been highlighted
by the committee on the Rights in the General Guidelines as the core message of the
Convention.
 Firstly, the principle of the full and equal value of children and that each child shall enjoy the
rights set out in the convention without discrimination (Article 2 and 4 of the Convention.)
 Secondly, the principle that in all actions concerning children the best interest of the child shall
be the primarily consideration (Article 3 of the Convention).
 Thirdly, the principle of the right to life does not only entail the right to be protected against
being killed but a right to survival and development (Article 6 of the Convention).
 Fourthly, the principle that children, who are capable of forming their own views, shall also have
the right to participate and express their views, which shall be duly respected (Article 12 of the
Convention).
 The Convention establishes a Committee on the Rights of the Child, originally composed of 10
members, but which the states parties in 1995, decided should be enlarged to 18 members.

 Two optional protocols to the CRC were adopted by the UNGA in 2000.
 The Optional Protocol to the CRC on the Involvement of Children in Armed Conflict
aims at, inter alia, raising the minimum age of individuals taking part in armed conflict to
18

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  The Second Optional Protocol to the CRC on the Sale of Children, Child Prostitution and
Child Pornography stipulates, inter alia, that states have to ensure that certain acts against
children are criminalised, and that states are obliged to prosecute or extradite offenders
under their jurisdiction.

PWDs
 Persons with disabilities are regularly excluded from participation in society and denied
their human rights.
 Discrimination against the disabled can take many forms, ranging from limited
educational opportunities to more subtle forms, such as segregation and isolation because
of physical and social barriers.
 The Convention on the Rights of Persons with Disabilities (CRPD), adopted in 2006 and
entered into force in 2008
 The right to non-discrimination includes the right not to be segregated and to be provided
with reasonable accommodation
 CRPD under Art. 2 defines reasonable accommodation as “necessary and appropriate
modification and adjustments not imposing a disproportionate or undue burden, where
needed in a particular case, to ensure to persons with disabilities the enjoyment or
exercise on an equal basis with others of all human rights and fundamental freedoms”
 The Committee on the Rights of Persons with Disabilities (CRPD) is the
body of independent experts which monitors implementation of the
Convention by the States parties.

Refugees

 Throughout history, people have fled their homes to escape persecution.

 The United Nations adopted the Convention Relating to the Status of Refugees (1951
Convention), which is the cornerstone document of refugee protection.
 In addition, the Protocol relating to the Status of Refugees (the 1967 Protocol) helped to
widen the definition of a refugee, as it lifted the time and geographic limits found in the
1951 Convention.

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  The 1951 Convention was originally limited to refugees who fled due to
events occurring before January 1, 1951, and could have been
geographically limited to Europe.
 The 1967 Protocol removed these limitations.

Who is a refugee?
 According to the 1951 Convention relating to the Status of Refugees, a refugee is
someone who:
 Has a well-founded fear of persecution because of his/her
o Race
o Religion
o Nationality
o Membership in a particular group, or
o Political opinion;
 Is outside his/her country of origins; and
 Is unable or unwilling to avail him/herself of the protection of that country, or to return there,
for fear of persecution.
 In Article 33, the principle of non-refoulement is established.
 This principle forbids states to expel or return a refugee, in any manner whatsoever, to
the frontiers of territories where his/her life or freedom would be threatened on account
of race, religion, nationality, membership of a particular social group or political opinion
(the non-refoulement principle also encompasses non-rejection at the border and can
oblige a state to accept a person on its territory).
 The 1951 Convention also includes ‘exclusion clauses’, which stem from the
understanding that the commission of some types of crimes justifies the exclusion of the
perpetrators from the benefits of refugee status.
 Under Article 1(f), refugee status under the 1951 Convention does not apply to persons
with regard to whom there are ‘serious reasons’ for considering they have committed the
following crimes: a) Crimes against peace, war crimes and crimes against humanity; b)
Serious non-political acts; and c) Acts contrary to the purposes and principles of the
United Nations.

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  UNHCR was created to provide international protection to refugees and to find durable
solutions to refugee problems.
 These functions include securing legal and practical protection to refugees with and
through governments, overseeing the mobilisation and coordination of resources for the
well-being and survival of refugees and encouraging conditions in conflict zones that will
allow refugees to return voluntarily to their countries of origin.

Migrant workers

 In 1990, the UNGA adopted the International Convention on the Protection of the Rights
of All Migrant Workers and Members of Their Families .
 The Convention does not create new rights for migrants, but aims at guaranteeing
equality of treatment and the same working conditions for migrants and nationals, as well
as guaranteeing the rights of migrants to maintain ties to their countries of origin.
 The Convention aims at:
 Preventing inhumane living and working conditions, physical and sexual abuse and
degrading treatment (Articles 10, 11, 25, 54).
 Guaranteeing migrants’ rights to freedom of thought, expression and religion (Articles
12, 13).
 Guaranteeing migrants’ access to information on their rights (Articles 33, 37).
 Ensuring their right to legal equality. This implies that migrant workers are subject to
correct procedures, have access to interpreting services and are not sentenced to
disproportionate penalties such as expulsion (Articles 16-20, 22).
 Guaranteeing migrants’ equal access to educational and social services (Articles 27-28,
30, 43-45, 54).
 Ensuring that migrants have the right to participate in trade unions (Articles 26, 40).
 Ensuring that migrants can return to their country of origin if they wish to, that they are
allowed to pay occasional visits, and that they are encouraged to maintain cultural links
(Articles 8, 31, 38).
 Guaranteeing migrants’ political participation in the country of origin (Articles 41, 42).

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  Ensuring migrants’ right to transfer their earnings to their home country (Articles 32, 46-
48).

 Although the Convention has entered into force, only a 60 countries (as of November
2025) have become party to it, most of which primarily send migrants abroad.

 For the time being, it looks as though several migrant-receiving countries are not willing
to be bound by the Convention as many find the formulation of the rights unacceptable.

 Supervision: Committee on the Protection of the Rights of All Migrant Workers and
Members of Their Families is estabnlished.
 Article 76 of CMW gives the Committee competence to receive and consider
communications by a State party alleging violations of the Convention by other States
parties who made the necessary declaration under article 76.


 A state party can make a declaration that it recognises the competence of the Committee
to receive and consider individual communications on behalf of persons who claim that
their rights under the Convention have been violated (Art. 77).
 Neither the inter-State communications procedure nor the individual complaint
mechanism have yet entered into force.
 Both mechanisms will become operative when 10 States parties
have made the necessary declaration under articles 66-77

Reservations, Interpretive Declaration, Limitations and Derogations

Reservation
A reservation is ‘a unilateral statement, however phrased or named, made by a State, when
signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or
to modify the legal effect of certain provisions of the treaty in their application to that State’
(Article 2 §1(d) of the Vienna Convention on the Law of Treaties of 23 May 1969).

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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.

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.

Certain instruments, such as the Convention on the Elimination of All Forms of Discrimination
against Women (CEDAW), 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 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 24 on issues relating to reservations made upon ratification or accession to
the Covenant or the Optional Protocols (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.’

62
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.
 Example Arts. 76-77 of the CMW

Interpretative declarations/understandings
 A declaration on how a state interprets and understands 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.
 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.
Restrictions or limitations
Rights which are expressed in absolute terms
Certain rights are expressed in all the instruments in absolute terms.
Their exercise may not be restricted on any grounds whatsoever.
Rights which are ‘absolute’ must be respected at all times, and may not be restricted even for
compelling reasons.
These rights, which seek primarily to protect the integrity of the human person, are:
(a) Freedom from torture (International Covenant on Civil and Political Rights (ICCPR), Article
7;
(b) Freedom from slavery and servitude (ICCPR 8);
(c) right of prisoners to be treated with humanity (ICCPR 10);
(d) Freedom from imprisonment for inability to fulfill a contractual obligation (ICCPR 11);
(e) right to a fair trial by a competent, independent and impartial tribunal established by law
(ICCPR 14);
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(f ) right not to be subjected to the application of retroactive criminal law (ICCPR 15);
(g) right to legal personality (ICCPR 16);
(h) freedom to have or to adopt a religion or belief of one’s choice (ICCPR 18);
(i) right to marry and to found a family, and the right to equality of rights and responsibilities of
spouses (ICCPR 23);
(j) right of a child to a nationality (ICCPR 24);
(k) right to equality before the law, the equal protection of the law, and to freedom from
discrimination on the ground of race, color, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status (ICCPR 26);
(l) right of ethnic, religious, or linguistic minorities to enjoy their own culture, to profess and
practice their own religion, and to use their own language (ICCPR 26).

Rights the exercise of which may be restricted

Rights of an absolute character are the exception. A limitation clause is clearly an exception to
the general rule. The general rule is the protection of the right; the exception is its restriction.

Rights that can be restricted include:

The exercise of the rights referred to in ICCPR 12 (freedom of movement), 14 (public trial), 18
(freedom of religion), 19 (freedom of expression), 21 (right of peaceful assembly) and 22
(freedom of association), and in International Covenant on Economic, Social and Cultural Rights
(ICESCR) 8 (right to form trade unions),
, ‘No one shall be arbitrarily deprived of his life’ (ICCPR 6, ACHR 4);
‘No one shall be subjected to arbitrary arrest or detention’ (ICCPR 9, ACHR 7);
‘No one shall be arbitrarily deprived of his right to enter his own country’ (ICCPR 12);
‘No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home
or correspondence’ (ICCPR 17, ACHR 11);
‘Every citizen shall have the right and opportunity . . . without unreasonable restrictions, to take
part in the conduct of public affairs . . . ’ (ICCPR 25).

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In general, limitations may be imposed on human rights, provided three conditions are satisfied
(See Human Rights Committee, General Comment No. 27, Freedom of Movement (Art. 12) (2
November 1999), Limburg Principles on the Implementation of the International Covenant on
Economic, Social and Cultural Rights adopted in Maastricht on 2–6 June 198, Siracusa
Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil
and Political Rights)

First, any interference with a right should be prescribed by law (condition of legality).

Second, it must be justified by the pursuance of a legitimate aim (condition of legitimacy).

Third, the interference must be proportional

The fact that ICCPR, ECHR and ACHR do not contain a general limitation clause similar to
Universal Declaration on Human Rights (UDHR) 29(2)2 or ICESCR 4 means that limitations
under those instruments are permitted only where a specific limitation clause is provided, and
only to the extent so permitted.

The condition of legality

In ascertaining whether the limitation to the right to freedom of association is acceptable or not,
the first requirement is that the interference must be prescribed by law of general application.
The essence of this requirement, as indicated in the Siracusa Principles is that limitations should
have a formal legal basis and must be precisely formulated so as not to confer upon authorities
wide discretionary power and accessible to everyone so that an individual or association will
have an opportunity to know the prohibited action and consequent penalties for violating the
prohibition.
The condition of legitimacy
The 1984 Siracusa Principles include a detailed discussion of the different aims which may
justify a restriction being imposed on the rights of the Covenant.

The condition of legitimacy should in principle allow supervisory bodies to scrutinize the
motives behind particular restrictions being imposed on fundamental rights, and to screen out, in

65
particular, illegitimate motives, such as where restrictions are animated by prejudice against
certain groups.
These acceptable grounds of restriction include: national security, public order or safety,
protecting the rights and freedoms of others, and protecting public health and morals.

With a view to avoiding a loose interpretation of these purposes, the Siracusa Principles stipulate
various guidelines on how these purposes should be interpreted. The Principles, for instance,
state that ‘national security may be invoked by states to justify measures limiting certain rights
only when they are taken to protect the existence of the nation or its territorial integrity or
political independence against force or the threat of force’. ‘National security cannot be invoked
as a reason for imposing limitations on rights if the threats to law and order are local or relatively
isolated’.

The Siracusa Principles define Public order as ‘the sum of rules which ensure the functioning of
society or the set of fundamental principles on which society is founded’

The condition of proportionality (‘necessary in a democratic society’)

In order for an interference with a protected right to be justified, the measure creating the
interference (i) must be appropriate to the fulfillment of the legitimate aim pursued (a condition
referred to as ‘appropriateness’ or ‘rational connection’); and (ii) it must not go beyond what is
strictly required by the need to achieve that aim, i.e. it must be necessary to attain the objective
justifying the interference (condition of ‘necessity’ or ‘minimal impairment’).

Thus, interference may also be deemed to be proportional if only if the means employed is the
least restrictive means among those that might achieve the desired results.

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.

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There are derogation clauses in, inter alia, Article 4 of the ICCPR, Article 15 ECHR, Article 27
ACHR and Article 31 European Social Charter.
Some human rights instruments, such as the Convention on the Right of the Child, the ICESCR,
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.
According to the derogation clauses, the Siracusa Principles, General Comment No. 29 of the
HRC, such derogations have to meet several criteria:

A public emergency threatening the life of the nation

In order for a derogation to be admissible, the situation must constitute a ‘public emergency
which threatens the life of the nation’.

In its General Comment No. 29 on Article 4 of the ICCPR, the Human Rights Committee noted:
Not every disturbance or catastrophe qualifies as a public emergency which threatens the life of
the nation, as required by article 4, paragraph 1.
By reference to Article 4 ICCPR, the Siracusa Principles, paras. 39–40, state the following,
under the heading ‘Public Emergency which Threatens the Life of the Nation’:
A threat to the life of the nation is one that:
(a) affects the whole of the population and either the whole or part of the territory of the
State, and
(b) threatens the physical integrity of the population, the political independence or the
territorial integrity of the State or the existence or basic functioning of institutions
indispensable to ensure and protect the rights recognized in the Covenant.

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40. Internal conflict and unrest that do not constitute a grave and imminent threat to the life of
the nation cannot justify derogations under Article 4.
The existence of a public emergency to be officially proclaimed
ICCPR 4 requires the existence of a public emergency to be ‘officially proclaimed’. This is
designed to prevent a state from derogating arbitrarily from its obligations where such an action
is not warranted by events. A formal, public act of derogation, such as a declaration of a state of
emergency, is required.

No derogation of obligation with respect to certain rights

Under ICCPR 4, ECHR 15 and ACHR 27, no derogation is permitted in respect of: the right to
life, the prohibition of torture, the prohibition of slavery and servitude, the prohibition of
retroactive criminal laws and penalties, and freedom of thought, conscience and religion.
Additionally, ICCPR 4 prohibits any derogation in respect of the prohibition of imprisonment for
non-fulfillment of contractual obligations, and the right to be recognized as a person,

Extent strictly required by the exigencies of the situation

Since states of emergency may be declared to deal with different situations, and since the
measures that may be taken in each case must be tailored to ‘the exigencies of the situation’,
what might be permissible in one type of emergency may not necessarily be lawful in another.
The lawfulness of the measures taken to deal with each of the special situations will depend,
moreover, upon the character, intensity, pervasiveness and particular context of the emergency
and upon the corresponding proportionality and reasonableness of the measures.
measures not inconsistent with other obligations under international law
Even measures strictly required by the exigencies of the situation may nevertheless be
impermissible if they conflict with other obligations of the derogating state under international
law. These obligations may arise under the Charter of the United Nations, other human rights
treaties or under customary international law.

discrimination solely on the ground of race, color, sex, language, religion or social origin
The word ‘solely’ was included to indicate that a state might take measures derogating from the
rights recognized in the ICCPR that could be construed as discriminatory merely because the

68
persons affected belonged to a certain race, religion, etc., although the actual reason for the
derogation might be otherwise. It was therefore important to emphasize that the evil to be
avoided was discrimination based solely on the grounds mentioned.

Other states parties to be informed of the provisions from which a state has derogated and
of the reasons by which it was actuated
When a state avails itself of the right of derogation in time of public emergency, it is required to
comply with three steps concerning notification of its actions.

Chapter 5: Regional Protection of Human Rights

The African Regional Human Rights System

The Inter-American Human Rights System

 The Inter-American human rights system was created by the Organization of American
States (OAS).
 The OAS has thirty-five Member States.
 The organization has promulgated a series of instruments governing human rights in the
region and set up institutions.
 These instruments include the Charter of the OAS which was adopted in Bogota,
Colombia in 1948, which is the constitutive treaty forming the alliance between the
American States.
 Over time, the Charter has been amended to incorporate other provisions on human
rights.
 The same year, the nonbinding American Declaration of the Rights and Duties of Man
was adopted, even before the U.N. General Assembly approved the UDHR.
 In 1959, the General Assembly of the OAS established the Inter-American Commission
on Human Rights.
 Until 1978, when the American Convention on Human Rights (in 1969, in San Jose,
Costa Rica) entered into force, the non-binding American Declaration of the Rights and Duties

69
 of Man, together with select provisions of the Charter provided the sole legal basis for the
protection of human rights.
 The Declaration has created binding international obligations through the
jurisprudence of the Inter-American Court of Human Rights and Inter-
American Commission on Human Rights. I
 The American Convention on Human Rights, sets forth the human rights protected.
 Currently 24 of 35 members of the OAS are states parties to the ACHR.
 The Convention empowers two bodies:
 the already-established Inter-American Commission on Human Rights
 the Inter-American Court of Human Rights

 The rights and freedoms protected by the Convention are mainly civil and political rights

The American Convention of Human Rights has been complemented by two additional
Protocols.
 The Additional Protocol to the American Convention on Human Rights in the Area of
Economic, Social and Cultural Rights (the Protocol of San Salvador), signed on 17
November 1988 and ratified by 14 American States
 The Convention’s second Protocol, the Protocol to the American Convention on Human
Rights to Abolish the Death Penalty, was signed on 8 June 1990, and has been ratified by
11 American States so far.

The European Human Rights System

 Europe has a number of regional systems that deal with human rights:
 The European Union (EU)
 The Council of Europe (COE)
 The Organization for Security and Cooperation in Europe (OSCE).

This course only focuses on the COE.

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 After WWII, European nations faced with the need to recover from the aftermath of what
is today an unimaginable level of destruction.
 The Council of Europe was set up on 5 May 1949 by the Treaty of London.
 Main objective: to defend human rights, democracy, and the rule of law, and to
standardize member countries’ social and legal practices to guarantee the dignity of the
nations and citizens of Europe.
 From 10 founding member states in 1949, the CoE has enlarged continuously and now
covers nearly entire Europe with 47 member states.
 New member states are required to sign the ECHR when they join and to ratify the treaty
within one year.
 The Council of Europe member states decided to draft the European Convention on
Human Rights because it was apparent that the United Nations' efforts to produce a
binding international treaty along the lines of the non-binding UDHR could take many
years. This was a relatively easy process at that time only ten western European member
States were involved.
 The European Convention for the Protection of Human Rights and Fundamental Freedoms
(ECHR) was entered into force in 1953.
 The European system originally had a two-tier structure, in which the European Commission of
Human Rights screened applications from individuals and ruled on their admissibility.
 The rights enshrined in the ECHR and the functioning of the Commission and the Court
have been complemented and defined over the years by already 14 Protocols.
 Protocol 11 changed the two-tier Commission and Court machinery for bringing
complaints to a single reformed permanent Court
 Since the 11th Protocol came into force in 1998, individuals have had direct access to the
European Court of Human Rights and it has adjudicated more than 10,000 complaints.
 The European Court of Human Rights is seen as the "world's most advanced international
system for protecting civil and political liberties."
 The ECHR contains in Section I basically civil and political rights which only can be
derogated by states under certain circumstances.
 The European Social Charter 1961(ESC): aims to create State obligations to guarantee
and respect social and economic rights.

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Why not a regional system for Asia?
 The Asia-Pacific region remains the only UN defined region without a specific human
right treaty and without a region-wide mechanism directed at the promotion and
protection of human rights.

Factors That Have Hindered Progress

There have been many factors that have hindered progress in the quest for a human rights
mechanism in Asia.

 Vastness and Diversity

 Lack of political commitment: A number of Asian states have used the argument that
civil and political rights disrupt political stability and hinder economic development.
 The "Asian Values" Debate: Western notions of human rights are seen as excessively
individualistic
 State Sovereignty: Many Asian governments have insisted that human rights are within
the domestic jurisdiction of a sovereign state.

Chapter 6: Human Rights, Development & Globalization

Human Rights and Development

Development and human rights are intricately linked.

As such, numerous documents have explicitly acknowledged their indivisibility, including the
Declaration on the Right to Development (1986) and the UNDP Human Rights and Sustainable
Development policy document.

The fact that a relationship exists between human rights and economic and social developments
is already indicated in article 55 of the UN Charter.

The relationship between human rights and development is also recognized in the adoption of
(SDGs).
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  In September 2015, the United Nations (UN) General Assembly adopted the 2030
Agenda for Sustainable Development (2030 Agenda) to guide sustainable development
efforts for the period from 2016 to 2030.
 The 2030 Agenda sets out 17 Sustainable Development Goals (SDGs) and 169 targets
which jointly constitute a comprehensive plan of action to eradicate poverty and ensure
sustainable development in an integrated and balanced manner.
 The 2030 Agenda is in many ways a human rights agenda.
 Agenda 2030 links to human rights in four ways.5
 First, it seeks to ‘[r]ealize the human rights of all’ (2030 Agenda Preamble) and is
explicitly grounded in the UN Charter, the Universal Declaration of Human Rights and
international human rights treaties and instruments and informed by other instruments
such as the Declaraion on the Right to Development.6
 Second, the 17 SDGs and their related 169 targets directly or indirectly reflect human
rights standards.
 Most of the 169 SDG targets (92%) are linked to international human rights instruments.7
 Third, the Agenda explicitly intends to ‘leave no one behind’ in the pursuit of sustainable
development, reflecting the fundamental human rights principle of non-discrimination.
 Fourth, the human rights principles of accountability and participation are key
components of the Agenda.
 Further, Targets 16.6 and 16.7 of the SDGs refer specifically to the development of
effective, accountable and transparent institutions; and responsive, inclusive,
participatory and representative decision-making at all levels, respectively. 8
Ultimately, both development and human rights movements share the same enthusiasm and
motivation to promote the freedom, well-being and dignity of individuals.

The link between human rights and development is visible by the increasing acceptance of
human rights-based approach to development.

5
Danish Institute for Human Rights & Network of African National Human Rights Institutions, African National
Human Rights Institutions and Sustainable Development: An Overview of Good Practice, P. 5.
6
Id., P. 2.
7
The Danish Institute for Human Rights & Network of African National Human Rights Institutions, Human Rights
and Accountability In the 2030 And 2063 Agendas, 2018, P. 13.
8
Id, P. 18.

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What is a RBA?
A RBA has attracted enormous attention from the UN agencies, international CSOs and donors
since the end of the 1990s.

There have been huge disparities among them regarding its content.
In 2003, the UN issued the Human Rights Based Approach to Development Cooperation:
Towards a Common Understanding among UN Agencies.

Pursuant to the Common Understanding, RBA has the following three pillars.

First, all policies and programs should have the ultimate goal of advancing the protection and
fulfillment of human rights as envisaged in the UDHR and other human rights documents.

The document makes it explicit that programs and policies “that only incidentally contribute… to
the realization of human rights do… not necessarily constitute a human rights-based approach to
programming.”
Second, human rights principles laid down or derived from various human rights documents
should direct the design, implementation and evaluation of all programs and policies of all
sectors.

This requirement seeks to test the systematic integration of human rights principles in all phases
of the programming and policy process:
 universality and inalienability; indivisibility; interdependence and interrelatedness;
 equality and non-discrimination;
 participation; and
 accountability (M & E, Reports, remedies)

A RBA is concerned with the process as much as it is concerned with the outcome. This is on the
basis of a valid assumption that the end may not necessarily justify the means.

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Third, development cooperation should build “the capacities of ‘duty-bearers’ to meet their
obligations and/or of ‘rights-holders’ to claim their rights” in terms of skills, resources,
authorities and responsibilities.

 Amartya Sen's Development as Freedom argues that development isn't just economic
growth (GDP) but the expansion of people's real freedoms to live lives they value, making
freedom both the goal and the means of development.
 He identifies five key freedoms—political, economic, social opportunities
(health/education), transparency guarantees, and protective security—whose
removal (unfreedom) constitutes poverty.
 Sen emphasizes that empowering people with these capabilities, not just
income, allows them agency, driving change and fostering genuine progress
beyond mere resources.

Another indication of the link between the two is the recognition of the right to development.

The right is not accepted in the covenants.

This approach has mainly been advanced by Third World countries, while Western states have
expressed reservations, arguably based on the fear that they would be faced with claims on the
part of the developing countries for entitlements to resources.

It is recognized in the Declaration on the Right to Development and ACHPR

Article 1 of the Declaration on the Right to Development states that:

The right to development is an inalienable human right by virtue of which every human person
and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural
and political development, in which all human rights and fundamental freedoms can be fully
realized.

Article 22 of the ACHPR reads as follows:

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1. All peoples shall have the right to their economic, social and cultural development with due
regard to their freedom and identity and in the equal enjoyment of the common heritage of
mankind.
2. States shall have the duty, individually or collectively, to ensure the exercise of the right to
development.

MAIN CONTENTS AND NATURE OF THE RIGHT TO DEVELOPMENT

The precise meaning and status of the right to development are still open to debate.

The 1986 Declaration is not a legally binding document and, outside the group of states bound
by the AfCHPR, it is questionable whether the right to development can be considered as a
specific human right recognized under existing law.

A further difficulty is presented by the fact that Article 22 of the AfCHPR and the 1986
Declaration are not free from ambiguities and inconsistencies.
First of all, it is clear that the right to development is not meant to only cover economic and
social issues but, enjoy 'economic, social, cultural and political development. Article 22 of the
AfCHPR is more limited in scope, as it does not mention political development separately.

Second, the right to development as expressed in the 1986 Declaration seems to contain elements
of both individual and group rights. Article 22 of the AfCHPR on the other hand, only mentions
'all peoples' as the beneficiaries of development.

Above all, it remains an open question in what respects they add to existing rights, notably the
right of self-determination, the right to political and other participation and economic, social and
cultural rights.

As to the content of the right to development, three aspects should be mentioned here.

First of all, the 1986 Declaration emphasizes the importance of participation.

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Second, the Declaration should be seen in the context of basic needs and social justice.
 The need to ensure the improvement of the wellbeing of the entire population
 The need to ensure all individuals' take part in the fair distribution of the benefits
resulting from development(second preambular paragraph, Article 2(3))
 equality of opportunity for all in their access to basic resources and other public services
and the fair distribution of income' (Article 8(1)).
 The eradication of extreme poverty that cannot be neglected in such a context.

Third, the realization of the right to development is a duty to states, 'individually or collectively'
(international cooperation) (Article 2(3), Article 3, 4, 7, 8 of the Declaration and Article 22(2) of
the AfCHPR).

Globalization and Human Rights

 The term ‘Globalisation’ encompasses a range of transformations of capital, commodities,

services and workforce across international boundaries, leading to a transnational nature.
 Globalisation also promotes the cross-border exchange of related lifestyles, ideas, preferences,
and culture and even values.
 It involves a deepening and broadening of rapid transboundary exchanges due to developments
in technology, communications, and media.
 The following elements of globalization have the potential to impact human rights
jurisprudence.
1. The Evolving Role and position of States: State Sovereignty is put to test by globalization,
which forces governments to put the interest of multinational corporations ahead of
local needs. This may make it harder for states to uphold human rights, particularly
when faced with pressure from outside governments and corporations.
2. The proliferation and growing impact of multinational corporations (MNCs): Presently,
multinational corporations possess significant economic and political influence, but they
do not have explicit, legally enforceable responsibilities regarding human rights. They
exert significant influence over the formulation of policies in crucial domains, and
although their involvement can be advantageous for consumers, that they are also
entailed in transgressions against human rights and detrimental effects on the

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 environment.
3. Technology and globalization: Technology plays a significant role in globalization,
affecting human rights in multiple ways. Although it facilitates worldwide dissemination
of information and cooperation, it also gives rise to concerns such as privacy matter. The
economic variables in the production and distribution of technology can have an impact
on the future years of human rights, possibly favouring certain groups over others.
4. Free market dependence: Globalization relies on free markets and economic efficiency,
which can promote or hinder human rights. Trade law and human rights disagree,
leaving it unclear if free market principles can effectively support human rights.
5. Rights of Workers and Globalization: Cheap labour becomes a competitive advantage in
the new economy, resulting in terrible working conditions and labour rights violations in
developing countries.
6. Economic Inequality: Uneven distribution of globalization's benefits exacerbates
poverty and social disparities, hindering the right to development.
7. Spread of Norms: The diffusion of liberal ideas and democratic values through
global interaction can promote better governance and rights.
8. Indigenous community Rights: The international community is becoming worried about
the indigenous rights breaches after years of apathy. Global demand for
resources can displace indigenous communities, impacting their
homes, culture, and rights.

The post-globalization era and human rights

 The post-globalization era describes the current period following the peak of neoliberal
globalization (roughly post-2008 crisis), characterized by a shift away from free-market
dominance towards increased nationalism, protectionism, regional blocs (like BRICS),
and greater state intervention, creating a more fragmented, multipolar world with rising
geopolitical tensions and new economic models beyond simple Western liberal ideals.
 It's a time of "unsettled times" marked by adapting to irreversible changes, new power
dynamics, and a search for resilient strategies beyond the old global consensus.

Key features:

Key Characteristics:

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  Rise of Populism & Nationalism: Decline of centrist parties, emergence of populist
movements, and increased focus on national interests over global integration.

 Shifting Power Dynamics: Rise of new economic powers (like China, India) challenging
established Western dominance, leading to a multipolar world.

 Economic Rebalancing: Move from pure free trade to strategic industrial policies, with
governments playing a bigger role in shaping economies (e.g., China's tech sector).

 Increased Fragmentation: Weakening of global institutions, rise of regionalism, and

new geopolitical fault lines.

 "Deglobalization" Debates: Discussions about slowing, reversing, or reshaping

globalization, focusing on resilience and national security.

 In a post-globalization era, human rights face dual pressures: for example, rising nationalism,
and challenges to the global human rights normative setting.

Chapter 7: Gross Violation of Human Rights

Introduction
 Sometimes, human violations may be committed grossly & systematically that the normal
procedures are not enough to address them.
 Mostly, the systematic & serious violations were/are committed by State officials as an
instrument of achieving some policy, e.g., crushing opposition & sustaining their power,
maintaining territorial integrity & the like.
 The serious & systematic violations in Chile during the Pinochet regime, Uganda during the Id
Amine regime, South Africa during the Appartied regime, in Ethiopia during the Dergue regime
were all committed as part of State policy to achieve some result.
 Millions have suffered because of the horrific acts committed during WWII, the civil war in
Former Yugoslavia, & Rwanda.]
 Examples of grave breaches are War crimes, the crime of genocide, crimes against humanity.
 Human rights cannot be realized without having an effective mechanism of dealing with such
systematic & gross violations. This chapter therefore, discusses the available international &
domestic responses to such violations.

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National responses -Transitional Justice

 It is an accepted principle that violations of rights shall first be addressed at the national level.
 This holds true even in the case of systematic & gross violations.
 The international system of addressing such violations becomes relevant if the domestic system
is unable/unwilling to provide remedies.
 Systematic & gross violations are often committed by State institutions and officials, and with
their tolerance.
 However, non-state actors like rebel groups in case of civil war, may also be involved in such
violations.
 Usually, the question of addressing such a violation at the national level doesn’t arise if the
rights-violating regime holds power.
 Regime change is a prerequisite for putting the national mechanism of responding to such
violations.
 This regime change may result in many ways, for e.g., armed struggle, negotiation & others.
 Thus, it is a requirement that the rights-violating regime be substituted by a regime that is
committed to the values of human rights & democratisation, and thus bringing a transition
within the society.
 At this period of transition, the need to address past violations would arise.
 This need is addressed through what is usually referred to as transitional justice.
 Transitional justice has to address the needs of societies in transition. Societies in transition may
have a variety of needs/concerns related to past violations.
 Modalities of Transitional Justice: address past violations and pave the way for creating a human
right compliant just, and democratic society:
 Prosecution. This is one of the modalities of transitional justice often employed by societies to
address past violations.
 This process involves the apprehension, investigation & prosecution of alleged perpetrators, and
imposition of penalty if found guilty.
 Thus, it is a mechanism of fighting impunity.
 Some people hold that criminal prosecution is an obstacle to reconciliation & achievement of
peace & successful transition. Thus, they support amnesty for a durable peace.

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  Truth & reconciliation. This modality is the mechanism by which a society may identify truth
about the past & create conciliation among its members.
 Institutional reform
 Remedies for victims of human rights violations

International Responses
 The international response is premised on the conviction that such violations constitute crimes
against the whole nations/international community, and results from the inadequate/ non-
existence of national responses.
 Thus, certain crimes do constitute international crimes for which the perpetrators are held
individually responsible.
 The criminal responsibility of individuals under international law contributes to fighting
impunity, however, limited it is.
 The underlying idea is that the perpetrators of such crime shall not go free.
 The mechanism by which international law ensures that has taken different forms.
 These include: (1) the recognition & application of the principle of universal jurisdiction, (2)
prosecution and trial by ad hoc international tribunal, and (3) prosecution & trial by a
permanent international tribunal called the International Criminal Court.

(1) Application of the principle of Universal Jurisdiction.

 The principle of universal jurisdiction is classically defined as ‘a legal principle allowing or
requiring a State to bring criminal proceedings in respect of certain crimes irrespective of the
location of the crime and the nationality of the perpetrator or the victim’.
 Universal jurisdiction allows for the trial of international crimes committed by anybody,
anywhere in the world.
 There are offences recognized by international law as punishable by any country.
 Traditionally, piracy on the high seas is regarded as one of the first international crimes,
grounded on the violation of international customary law.
 CIL & international conventions specified various forms of prohibited behaviour recognized as
international crimes, which include piracy, slavery, war crimes, crimes against peace, crimes
against humanity, genocide, and torture.

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(2) Prosecution and trial by Ad hoc tribunal

 Another mechanism by which the international community has been responding to gross
violations is through the prosecution of perpetrators before an international tribunal.
 Until recently, international prosecution has primarily been conducted before ad hoc tribunal.
 These tribunals have specific/limited jurisdiction over crimes listed under the instrument
creating the tribunal.
 The first among these tribunals is the International Military Tribunal at Nuremberg established
by the London Agreement of August 1945.
 The London Agreement has defined the jurisdiction of the tribunal.
 Many Nazi officials were prosecuted before this tribunal.
 Other ad hoc tribunal includes the International Criminal Tribunal for the former Yugoslavia &
for Rwanda (ICTY & ICTR, respectively).
 These tribunals are established pursuant to the Decision of the UN Security Council.
 The Statutes establishing these tribunals set out the crimes that fall with in the jurisdiction of
each tribunal.
 These are ad hoc tribunals established to address certain crimes committed in certain
geographic location or during a specific period.

(3) The procedure under the ICC

 One of the most significant developments made in the direction of dealing with grave violations
& fighting impunity is the establishment of the International Criminal Court.
 It is established pursuant to the Rome Statute of the International Criminal Court, which was
adopted at a diplomatic conference in Rome, on 17 July 1998.
 The Statute entered in to force on 1 July 2002 and the Court is now fully functional at its seat in
The Hague.
 The Rome Statute provides for the creation of a permanent international criminal court to
prosecute people accused of genocide, crimes against humanity and war crimes.
 As specified under Article 5 of the Rome Statute, the Court has jurisdiction over the most serious
crimes to the international community.
 These crimes are genocide, crimes against humanity, war crimes & war of aggression.
 However, the court functions as complementary organ.
 Thus, the Rome Statute embodies the principle of complementarity.

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  Thus, the ICC has jurisdiction over the stated international crimes when States are unable or
unwilling to prosecute these crimes at national level.
 By so doing it makes sure those that committed grave crimes are brought to justice &
contributes to the fight against impunity.

Chapter 8: Domestic Implementation of Human Rights in

Ethiopia
Status of Ratification/Accession

Ethiopia is a State Party to almost all core international human rights instruments

It did not ratify the key treaties which entitle individuals to lodge complaints before international

human rights monitoring bodies and seek remedies for violations of human rights.

Ethiopia has, however, accepted procedures of individual complaint mechanisms under the ACHPR and

ACRWC.

This means that individuals aggrieved of human rights infringement under these treaties can have

recourse to the African Commission on Human and Peoples’ Rights and the African Committee of

Experts on the Rights and Welfare of the Child

Save reservations, States Parties shall undertake all appropriate legislative,

administrative, and other measures for the implementation of the rights

recognized in the Convention.

The importance of implementing recommendations

Requirements for Application of Treaties in Domestic Legal System in Ethiopia

States follow a variety of approaches in domesticating and applying international treaties in the

domestic legal system.

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In a few States, international law, including human rights treaties, is directly applicable before a

domestic legal system without any further requirement.

These countries adopted the monist theory where national law and international law are taken as part

and parcel of a single legal system.

Consequently, international treaties are directly applicable by domestic judicial and quasi-judicial

organs without a need to be domestically incorporated by parliaments.

In others, treaties forms part and parcel of the domestic law only after they are transformed to the

domestic legal system via the act of lawmakers. The practice of these countries reflects the dualist

theory of the relationship between international law and municipal law.

According to this theory, national law and international law are two distinct legal systems.

As a result, national courts do apply international law after passing the transformation procedure via

legislation.

A close scrutiny of the provisions of the FDRE Constitution and the practice demonstrate that Ethiopia

has adopted the dualist approach.

Article 9(4) of the Constitution provides that “[a]ll international agreements ratified by Ethiopia are an

integral part of the law of the land.”

In practice, treaties are given the status of domestic law only after they are ratified by the parliament

and published in the Federal Negarit Gazette in the form of Proclamation.

The requirement of transformation of treaties through parliamentary acts is an evidence of Ethiopian

subscription to the dualist approach.

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3.1.1 The Status of International Treaties in the Ethiopian Legal System
Once treaties acquire a national law status after passing the necessary procedures, it is crucial to

determine their status via-a-vis other national laws.

If the treaties are not given an important place or given a subordinate position against other domestic

laws, their effective implementation at national level will be highly compromised particularly where they

conflict with these laws.

Determination of their precise status is a difficult exercise in Ethiopia owing to dearth jurisprudence.

Thus, any attempt to assess the position of human right treaties in the Ethiopian legal system is based

on the pertinent constitutional provisions and views of government officials, academicians and senior

judges.

Three positions:

First position

In reports to treaty bodies, it is said that treaties are subordinate to the Constitution but superior to

other laws

Case law-cassation

Recent judicial developments demonstrate that the Convention on the Rights of the Child and African
Children’s Charter prevail over ordinary legislation in Ethiopia.

In W/t Tsedale Demissie vs Ato Kifle Demisse, contrary to Article 235(1) of the Family Code of the
Regional State, the Cassation Bench of the Federal Supreme Court awarded the guardian and tutor of a
child to an aunt while the father is alive based on the best interest of the child as recognized in the CRC
and Con.

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The Cassation Bench noted that regardless of the fact that Ethiopian Laws give primacy to parents of
children for the purpose of guardianship and tutorship; this would be the case only in the event that
parents serve in the best interests and well-being of children.

Second Position

Treaties subordinate to the Constitution but equal status with proclamations

The FDRE Constitution, in article 9 (1), proclaims that “[t]he Constitution is the supreme law of the land.”

This supremacy clause of the Constitution unequivocally states that the Constitution is superior to all

laws, including human rights treaties.

Third position

Treaties superior to the chapter three of the Constitution and other laws

Article 13(2) states that:

The fundamental rights and freedoms specified in Chapter [chapter three-fundamental

rights and freedoms-arts.13-44] shall be interpreted in a manner conforming to the
principles of the Universal Declaration of Human Rights, international covenants on
human rights and international instruments adopted in Ethiopia.

The fact that fundamental rights and freedoms should be construed in conformity with international

human rights standards implies that, at least, chapter three of the Constitutions on fundamental rights

and freedoms is subordinate to human rights treaties.

Some critics who take this stance substantiate their position by making reference to article 27 (1) of the

Vienna Convention on the Law of Treaties.

Article 27 (1) of the Vienna Convention states that “[a] State party to a treaty may not invoke the

provisions of its internal law as justification for its failure to perform the treaty

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For them, the constitutional provisions should not have precedence over human rights treaties because

the later, being international obligations, should be implemented without the possibility of raising as an

excuse contradictory constitutional provisions that may render implementation impossible or difficult.

Others dissent from the above interpretation and take a firm position that the Constitution is superior

to human rights treaties.

They claim that article 13 (2) does not show hierarchy. It, rather, shows the possibility of interpretation

of fundamental rights and freedoms provisions of the Constitution in the light of principles human rights

treaties if and when interpretation is necessitated.

Thus, principles of international human rights law are mere interpretative guidelines.

The status of international human rights treaties against other domestic laws is not, however, as

controversial as their position vis-a-vis the Constitution.

Because they have to be ratified by the principal law maker, they are clearly superior to regulations

(delegated legislation to be issued by the Council of Ministers) and directives to be issued by

government agencies upon delegation by the Council of Ministers.

Moreover, international human rights treaties are at least on equal footing as proclamations (primary

legislation).

This is due to the fact that the ratification of the former and the making of the later is the mandate of

the parliament.

The Institutional Arrangement for the Enforcement of Human Rights

Article 13 (1) of FDRE Constitution

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Pursuant to this provision, the primary institutions responsible for the protection, promotion, and
enforcement of human rights are the legislature, the executive, and the judiciary, both at the Federal
and State level.

For instance, the legislature can make protective laws and facilitate the enjoyment of rights

The executive, on its part, has the role of respecting human rights and preventing violations by others

The judiciary enforces rights by interpretation, punishing violators, and by redressing the victims.

Besides, there are other institutions that are established to handle human rights issues like the Ethiopian
Human Rights Commission (EHRC) and the Institution of the Ombudsman as per Article 55 (14) and
Article 55 (15) of the FDRE Constitution, respectively.

Other entities: article 9(2) of Cons

3.1.2 The role of courts in enforcing human rights in Ethiopia

Treaty bodies and other international supervisory bodies play a complementary role in terms of

ensuring remedies to victims of human rights violations.

This is evidenced by the principle of exhaustion of domestic remedies before resort is made to

international quasi-judicial bodies.

Thus, States have the principal obligation to guarantee accessible and effective remedies for human

right violations.

For quite a number of reasons, domestic remedies for human rights violations are by far better than the

international ones. Domestic remedies are “normally quicker, cheaper, and more effective than

international ones”.

Remedies for violation of human rights may take different forms including “cessation of an ongoing

violation” and reparation to victims of human rights violations. The Human Rights Committee explained

that reparation may include “restitution, rehabilitation and measures of satisfaction, such as public

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apologies, public memorials, guarantees of non-repetition and changes in relevant laws and practices, as

well as bringing to justice the perpetrators of human rights violations.”

Courts are the main institutions through which governments are held accountable and individuals obtain

redress for human rights violations.

Courts have various options to apply human rights standards including:

 Direct applicability of the Covenants and the constitution

 Indirect application through other laws

 the interpretive effect of the Covenants and the constitution in the application of national law.

As in other jurisdictions, judicial power is given to courts in Ethiopia.

The FDRE Constitution also gives courts a specific responsibility of enforcing the human rights provisions

of the Constitution.

They can also directly apply global and African regional human rights treaties. This can be understood

from article 9(4) of the FDRE Constitution which gives treaties ratified by Ethiopia the status of national

law.

In practice, the direct application of human rights standards, enshrined in the FDRE Constitution and

human rights treaties which Ethiopia has ratified, to adjudicate cases by courts is uncommon in Ethiopia.

Several studies conducted in this area unanimously demonstrate that there is generally a poor record of

direct application of human rights by courts in Ethiopia.

HRC Concluding observation: the Committee is concerned that none of the provisions of the
Covenant have been invoked before national courts

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There are a host of legal and practical challenges that hamper the direct application of human rights by

Ethiopian courts.

First, courts generally show a hesitant position on adjudication of disputes based on the Bill of Rights of

the Constitution. For latest developments, see Art. 11, Proc. No. 1234/2021

Second, the non-publication of texts of human rights treaties in the official gazette translated into the

working language of the Federal Government and other local vernaculars also partly contributes to the

limited human rights litigation in Ethiopia. The publication of the translated version of the treaty helps

improve human rights litigation by making the treaties accessible to judges and the general public in the

language they understand. It is for this reason the CEDAW, HRC and the ACHPR recommended that the

Ethiopia Government officially translate the treaties and publish the entire content of the treaties in the

Federal Negarit Gazeta.

 There are, however, encouraging developments recently

Third, there is limited legal basis for PIL (actio-popularis) before judicial and quasi-judicial bodies in

Ethiopia.

 For latest developments, See Art. 11, Proc. No. 1234/2021

Fourth, the divided position of judges on the justiciability of socio-economic rights has an impact on

judicial enforcement of these rights. Is it true still today?

Fifth, ouster clauses in several laws have excluded courts from overseeing decisions of administrative

bodies and tribunals. A number of laws have incorporated provisions (ouster clauses) that make

decisions of administrative bodies and tribunals final with no possibility of appeal to regular courts.

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3.4.2 The Role of Ethiopia’s National Human Rights Institutions
National human rights institutions have an important place in holding government and other actors

accountable for the implementation of human rights.

Especially, they function as a guardian of human rights through:

 supervising the conformity of national laws, policies, practices and programs with human rights

principles;

 resolving human rights complaints;

 paying visits to places where there may be potential human rights violations and

 Tracking the implementation of concluding observations of treaty bodies and recommendation

of other human rights supervisory bodies.

National human rights institutions can effectively carry out these tasks only where they are

independent and have the necessary legal mandate, budgets and human power.

EHRC Establishment Proc. No. 210/2000 as amended by Proc. No.1224/2020

In. of Ombudsman Establishment Proc. No. 211/2000 as amended by Proc. No. 1142/2019 and

further amended by Proclamation No. 1307/2023

The two relevant institutions in this regard in Ethiopia are the EHRC and the Institution of the

Ombudsman, established by law as autonomous organs in 2000. (Art. 3 of both)

Strictly speaking, IO cannot be taken as an NHRI (lacks international accreditation and international

engagement, as well as predominantly focuses on addressing executive maladministration)

EHRC has broader power than the Institution of Ombudsman. Whereas the EHRC has the power of

supervising the implementation of human rights in all government institutions, the power of the

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Ombudsman is limited only to the executive institutions??? Public Enterprises and Private Organizations

are added. See Proclamation No. 1307/2023

With respect to standing requirements to lodge complaints, the enabling legislation of the two

institutions give victims of human rights violations, their spouse, family members, representative or a

third party the right to lodge complaints.

Compared to ordinary courts, standing requirements before these institutions is exceptionally liberal.

They allow a number of people, including third parties, to lodge complaints without a need to show that

they themselves suffer from human rights violations or have a special interest in the case.

Their findings are in the form of recommendations to which the institutions the recommendation are

forwarded should cooperate in the execution.

The House of Federation and the Constitutional Inquiry Council

Are involved in the interpretation of the bill of rights of the Constitution

Justifications to give constitutional interpretation to non-judicial power:

 The framers viewed the Constitution as “a political contract,” among the NN&P and therefore
believed it is only representatives of the ethnic groups who have the power to interpret the
contract.
 In addition, some argue that the Ethiopian people did not trust the judiciary because centralized
executive power under Selassie and the Derg had stunted the development of a well-functioning
judiciary capable of conducting judicial review. The framers seemed to assume (and one might
argue desire) that the judiciary would remain the weakest branch of the government.
 Doing so would undermine democracy. This ground, also called counter-majoritarian argument
in the literature, posits that unelected and unaccountable few judges should not be given the
chance to annul a law passed by democratically elected legislatures.

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  While Ethiopia is stuck with its parliamentary sovereignty stance, countries from which it has
transplanted this notion (France & UK) have made tremendous reforms in favor of constitutional
judicial review.

Downsides of interpretation by the HOF:

 The Independence of the House of the Federation: The HOF is a political organ operating within
the context of a federal government dominated by a ruling party, which has an excess of power
in all branches of government. The HOF lacks complete independence from the ruling party and
the executive branch of government. HOF members are typically also State Council members
and sometimes Regional Chief Executives.
 The way the CCI is organized and the criteria for appointment of its members also evoke the
question of impartiality and independence. Out of its eleven members, six of them are expected
to be ‘legal experts, appointed by the President of the Republic on recommendation by the
House of Peoples' Representatives, who shall have proven professional competence and high
moral standing.’ Neither the Constitution nor the CCI Proclamation requires these members to
be impartial and independent. In practice, it is not uncommon to see ruling party-affiliated
individuals serving as a members of this body. Moreover, three members of the CCI, which are
elected by the HF from its members, have similar problems mentioned above.
 Two of members of the CCI who serve as its president and vice-resident are the president and
vice president of the Federal Supreme Court (FSC).9 ‘This has made both members to see cases
in the CCI which they have already decided as either FSC or FSC Cassation Bench judge capacity.
 Protection of Minorities: though the HOF is meant to protect minority ethnic groups, this cannot
be fully realized due to the HOF's majoritarian make-up. Each ethnic group is represented in the
HOF by one member with an additional representative per million of its population. Accordingly,
the Oromos, the largest ethnic group in Ethiopia, and the Amharas, another majority ethnic
group, control over fifty out of the 112 seats in the HOF. Thus, even though the HOF was meant
to be a counter- majoritarian balance to the majoritarianism in the HOPR, the larger ethnic
groups still maintain a numerical advantage.
 Access to Justice: In its entire history, the HOF has issued only few decisions involving the
government???.

9
Ibid.

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  Part of the reason for the HOF's inefficiency in constitutional review rests in the part-time status
of the institution. The HOF is supposed to meet twice a year, and the CCI is mandated to meet
four times per year. Now a secretariat is established
 Members of the House also lack the requisite legal knowledge and skills to engage in
constitutional adjudication

The Role of NGOs

The significant role of non-governmental organizations (NGOs) and their immense contributions towards
the betterment of human rights situations should not also be neglected.

These institutions help in fostering the human rights culture through:

 training, education, and dissemination of information

 through counseling and legal aid services to victims,
 through conducting policy research and lobbying
 through PIL

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