UNIT 11

International Protection of Human Rights

Prof S Ncube | University of Johannesburg | 24 April 2026

Overview
This unit examines how human rights are protected at the international level across three tiers:
global (UN), regional/continental, and sub-regional. It also considers how South Africa
incorporates international human rights law domestically.

Topic Key Content

Rationale Standards, safety net, independent oversight
Layers of Protection Global → Regional → Sub-regional
Universality vs Culture Tensions, subsidiarity, reservations
Global System (UN) UDHR, ICCPR, ICESCR, HRC, UPR, treaty bodies
European System ECHR, European Court of Human Rights
African System African Charter, Commission, Court, AU norms
Sub-regional Systems SADC, ECOWAS, EAC (self-study)
SA Domestic Enforcement S231(4), S39(1), self-execution

1. Introduction — Rationale
Key Principle
The international system is SUBSIDIARY to the national system. States retain primary
responsibility. Exhaust local remedies before accessing international mechanisms.

Why International Human Rights Law?

• Serves as a standard upon which states must construct domestic laws and policies
• Acts as a safety net where internal/local remedies have failed
• Provides independent oversight over domestic human rights

Sources of International Human Rights Law

• Treaties (hard law — binding on ratifying states)
 • Customary international law (e.g. certain UDHR provisions)

2. Layers of International Human Rights Protection

There are THREE layers, each established under an intergovernmental organisation. Each layer
has a normative framework (instruments/norms) and an institutional framework (bodies that
enforce them).

Layer Organisation / Examples

Global United Nations (UN)
Regional / Continental African Union (AU) | Council of Europe (CoE)
Sub-regional SADC | ECOWAS | EAC

Choosing the Right Forum — Consider:

• Jurisdiction: Does the institution have authority over this violation? (substantive,
personal, territorial)
• Available Norms: Which legal instruments cover the rights violated?
• Accessibility: Can the applicant actually access the institution?
• Effectiveness: Can the institution enforce its decisions?

Types of Jurisdiction
Type Question to Ask
Substantive Which instruments protect the right that was violated?
Personal Which treaties bind the respondent state?
Territorial Which institution covers the place/time of the violation?

Extra-territorial Application
• Human rights obligations generally apply within a state's territory
• BUT also apply where a state exercises effective control over an individual — including
in another country's territory
◦ Hassan v United Kingdom (2014, ECtHR) — UK violated an Iraqi national's right to
liberty when British forces detained him in Iraq without following ECHR procedures.
◦ Kaunda v President of RSA — Examined SA's obligations to nationals detained
abroad.

3. Tensions — Universality vs Socio-Cultural Specificity

 Distinction to Know
Human rights (moral claims) vs Human rights law (binding legal instruments). Universality is
an aspiration — the international project attempts to convert moral claims into binding law.

Key Tensions
• Human rights are described as universal — but in practice, not all humans enjoy equal
rights
• Global South states often resist expansion of human rights law, arguing values are not
truly universal
• Examples of contested rights: LGBTQi+ rights, religious freedoms, certain women's
rights

Mechanisms That Accommodate Specificity

• Subsidiarity: States hold primary responsibility and give detailed content to broad rights
(e.g. abortion rights vary by state)
• Reservations: States may limit their treaty obligations on ratification

4. The Global System — United Nations

Established post-WWII to prevent war and promote human rights. Takes two forms: (1)
mandatory obligations via UN membership, and (2) voluntary treaty obligations.

4.1 Key Normative Instruments

Instrument Nature / Notes
UDHR (1948) Soft law — but some provisions now customary international
law; informed constitutions worldwide
ICCPR (1966) Hard law — civil and political rights; monitored by Human
Rights Committee
ICESCR (1966) Hard law — economic, social and cultural rights; monitored by
CESCR
CERD (1965) Convention on Racial Discrimination
CEDAW (1979) Convention on Discrimination Against Women
CRC (1989) Convention on Rights of the Child
CMW (1990) Migrant Workers and their Families
CRPD (2006) Rights of Persons with Disabilities
CAT (1984) Convention Against Torture — thematic instrument
 CED (2006) Convention on Enforced Disappearances — thematic
instrument

4.2 UN Charter-Based System — Human Rights Council

History
• Originally: UN Commission on Human Rights (UNHCR) under ECOSOC — made
significant standard-setting contributions
• Problem: applied double standards; states used membership to shield themselves from
scrutiny
• 2005: UN Secretary-General recommended replacement → Human Rights Council
(HRC) created in 2006

The Human Rights Council (HRC)

• Subsidiary organ of the General Assembly
• 47 members, elected for 3-year rotational terms
• Membership based on equitable geographical distribution across 5 UN regions
• State's human rights record considered for membership
• Can be suspended for gross violations (e.g. Libya 2011)
• US withdrew membership in 2018

Universal Periodic Review (UPR)

What is it?
A peer-review process conducted every 4 years assessing every UN member state's human
rights record against the UN Charter, UDHR, and treaties ratified by that state.

• Based on a national report (prepared by UN Office of High Commissioner for Human

Rights) + civil society reports
• Working group assesses the report → interactive dialogue with state under review
• Concludes with recommendations → state may accept or reject (voluntary process)

4.3 UN Treaty-Based System — Mechanisms

Each core treaty establishes a treaty-monitoring body (committee of independent experts).
Member states must give domestic effect to treaty obligations.

Mechanism How It Works

State Reporting State submits national report → Committee issues list of
issues → constructive dialogue → recommendations
 Individual Communication Optional for states (must opt in). Allows individuals to
complain. E.g. Prince v SA; McCallum v SA (Human Rights
Committee)
Interstate Communication One state complains against another. Omitted from many
recent instruments.
Inquiries / On-site Visits Invasive. Under Optional Protocol to CAT, committee can
undertake periodic and ad hoc visits to places of detention.
General Comments Expand normative content of rights. Not binding but carry
persuasive force.

4.4 International Court of Justice (ICJ)

• Founded 1945 (replaced Permanent Court of International Justice 1922–1946)
• 15 judges, appointed by General Assembly and Security Council (Art 3 & 4, ICJ Statute)
• State-to-state only — individuals cannot bring cases directly

Jurisdiction
• Contentious: cases referred by parties or provided for in treaties (Art 36 ICJ Statute)
• Advisory: GA or Security Council may request opinions on any legal question (Art 96 UN
Charter)
• Compulsory jurisdiction: states may declare acceptance via optional clause (Art 36(2))

Provisional Measures
• Court may indicate interim measures to preserve the rights of either party pending final
decision (Art 41)
• Notice of measures given to parties AND the Security Council

Key Case to Know

South Africa v Israel (ICJ, December 2023): SA instituted proceedings alleging violations of
the Genocide Convention (1948) arising from IDF military operations and blockade in Gaza.
Study: the facts, SA's legal basis, Israel's response, and the provisional measures
requested.

5. The European System

Critical Distinction
The European Union (EU) was established for economic cooperation. The Council of Europe
(CoE) was established to promote human rights and the rule of law. These are DIFFERENT
institutions.
5.1 Normative Framework
• European Convention for the Protection of Human Rights and Fundamental Freedoms
(ECHR, 1950)
• Protocols to the Convention (expand rights over time)
• European Social Charter (economic and social rights)
• European Convention for the Prevention of Torture and Inhuman and Degrading
Treatment (1987)

5.2 Institutional Framework

Institution Role / Status
European Court of Human Adjudicates individual complaints; binding decisions
Rights (ECtHR)
European Committee on Monitors the European Social Charter
Social Rights
European Commission of ABOLISHED in 1998
Human Rights

6. The African System

6.1 The African Union (AU)
• Formed in 1963 as the Organisation of African Unity (OAU) — primary objective was
decolonisation
• Transformed into the AU with the adoption of the AU Constitutive Act
• Has a human rights-friendly approach — notably Article 4(h): right of the Union to
intervene militarily in a member state in respect of grave circumstances (war crimes,
genocide, crimes against humanity)

6.2 African Normative Framework

Instrument Key Points
OAU Refugee Convention Mirrors UN Convention; extends definition to include events
(1969) 'seriously disturbing public order'; provides regional standard
with socio-political context
African Charter on Human Covers civil, political, economic, social and cultural rights; also
and Peoples' Rights (1981) collective/peoples' rights (Art 22 right to development); unique
duties on individuals
 African Charter on Rights Outlaws child soldiers; outlaws child marriages; addresses
and Welfare of the Child internally displaced children; individual communications
(1990) possible
African Women's Protocol Extends beyond CEDAW; protection in private sphere; medical
(Maputo Protocol) abortion; HIV; criminalise marital rape; women in conflict
Kampala Convention on First legal instrument on IDPs globally; state + non-state actor
IDPs (2009) obligations; replicates Art 4(h) AU right to intervene

6.3 Peoples' Rights — Key Concepts

• The Charter protects both individual AND collective rights ('peoples' rights')
• What constitutes 'Peoples'? Consider shared identity, territory, political claims
• Tension between peoples' rights and state sovereignty (secession question)
◦ DRC v Burundi, Rwanda and Uganda (African Commission) — Addressed collective
violations of peoples' rights.

Indigenous Peoples' Rights

• Criteria: long-standing presence; lifestyle dependent on land; face political/economic
marginalisation; self-identify as indigenous
• UN Declaration on Rights of Indigenous Peoples (2007)
◦ Enderois Case (African Commission) — Landmark recognition of indigenous
peoples' rights in Africa.
◦ African Commission v Kenya (Ogiek case) — Ogiek evicted from Mau Mau forest —
consultation requirement.

Socio-Economic Rights & Right to Development

• Included in the African Charter (unlike most global instruments)
◦ Ogoniland Case — SERAC v Nigeria (African Commission) — Extended rights to
include implied rights to housing, food etc. (implied rights theory).
◦ Darfur Case — Sudan Human Rights Organisation v Sudan — More restrictive
approach taken.
• Article 22: Right to Development — states obliged to address internal disparities
◦ Mike Campbell v Government of Zimbabwe (SADC Tribunal) — Fear of displeasing
states can limit enforcement.

6.4 African Institutions

Institution Key Features
African Commission on Established 1987; 11 members; promotional + protective
Human and Peoples' Rights mandate; individual + state communications; on-site missions;
 recommendations NOT binding; non-compliance referred to
Executive Council
African Court of Human Created to complement Commission; advisory + contentious
Rights jurisdiction; decisions ARE BINDING; Art 34(6) declaration
needed for individual complaints; jurisdiction = states that
ratified the Protocol
African Children's Rights Promotional mandate; individual + interstate communications;
Committee state reports; fact-finding missions; under-resourced
African Peer Review Under NEPAD; voluntary; links development and human
Mechanism (APRM) rights; constructive peer dialogue; based on Declaration on
Democracy, Political, Economic and Corporate Governance

African Court — Additional Notes

NGOs with observer status cannot bring cases directly (court held they are not 'recognised
by the AU' as required by the Protocol — see SERAP Advisory Opinion, 26 May 2017).
Plans to merge African Human Rights Court + African Court of Justice (2008 Protocol —
needs 15 ratifications). 2014 Protocol proposes adding a criminal section.

7. Sub-regional Systems & South Africa

7.1 Sub-regional Systems (Self-Study)
Organisation Focus
SADC (Southern African Economic + political integration; SADC Tribunal (controversial
Development Community) — Mike Campbell case)
ECOWAS (Economic Has Community Court of Justice with human rights jurisdiction
Community of West African
States)
EAC (East African East African Court of Justice
Community)

7.2 Domestic Enforcement of International Human Rights in SA

Constitutional Framework
Provision Effect
Section 231(4) International treaties not ratified by Parliament can still apply
as law if not inconsistent with the Constitution —
domestication route
Section 39(1) When interpreting the Bill of Rights, courts MUST consider
international law and MAY consider foreign law — interpretive
guidance

Key Concepts
• Domestication: Incorporating international obligations into domestic law via legislation
or constitutional recognition
• Direct application / self-execution: Some treaty provisions can be directly applied by
courts without implementing legislation
• Domestic enforcement of international decisions: How decisions of international
bodies (e.g. African Commission) are enforced in SA courts

Quick-Reference: Cases to Know

Case Principle / Forum
Hassan v United Kingdom Extra-territorial application of ECHR — ECtHR
(2014)
Kaunda v President of RSA SA's obligations to nationals detained abroad — Constitutional
Court
South Africa v Israel (ICJ, Genocide Convention; provisional measures — ICJ
2023)
SERAC v Nigeria Implied socio-economic rights — African Commission
(Ogoniland)
Sudan Human Rights Org v Restrictive approach to socio-economic rights — African
Sudan (Darfur) Commission
Mike Campbell v Zimbabwe SADC Tribunal jurisdiction; enforcement defiance — SADC
Tribunal
Enderois Case Indigenous peoples' rights — African Commission
African Commission v Consultation rights; eviction from forest — African Court
Kenya (Ogiek)
DRC v Burundi, Rwanda Peoples' rights; collective violations — African Commission
and Uganda
Prince v South Africa Individual communication — Human Rights Committee
McCallum v South Africa Prisoner's rights; individual communication — Human Rights
Committee
Good v Botswana Non-binding nature of African Commission recommendations
SERAP Advisory Opinion NGO standing before African Court — African Court
(2017)
University of Johannesburg | LLB International Law | Unit 11 Study Notes