HUMAN RIGHTS LAW NOTE bearing on relations both between the

Chapter One: Introduction to individual and the state, and between

individuals themselves. The individual-state
Human Rights Law
relationship is known as the ‘vertical effect’
of human rights vertical location has not
1.1 Nature and Definition of Human
elaborated to be clear for the students. While
Rights
the primary purpose of human rights is to
establish rules for relations between the
Human rights are a special sort of
individual and the state, several of these
inalienable moral entitlement. They attach to
rights can also have implications for
all persons equally, by virtue of their
relations among individuals. This so-called
humanity, irrespective of race, nationality,
‘horizontal effect’ implies, among other
or membership of any particular social
things, that a government not only has an
group. Human rights belong to an individual
obligation to refrain from violating human
as a consequence of being human.
rights, but also has a duty to protect the
The concept of human rights is based on the
individual from infringements by other
belief that every human being is entitled to
individuals. The right to life thus means that
enjoy her/his rights without discrimination.
the government must strive to protect people
against homicide by their fellow human
Human rights differ from other rights in two
beings.
respects. Firstly, they are characterised by
being:
1.2 Historical Development
• Inherent in all human beings by
1.2.1 Pre World War II Developments
virtue of their humanity alone (they
The origins of human rights may be found
do not have, e.g., to be purchased
both in Greek philosophy and the various
or to be granted);
world religions. In the Age of
• Inalienable (within qualified legal
Enlightenment (18th century) the concept of
boundaries); and
human rights emerged as an explicit
• Equally applicable to all.
category. Man/woman came to be seen as an
The specific nature of human rights, as an
autonomous individual, endowed by nature
essential precondition for human
with certain inalienable fundamental rights
development, implies that they can have a
that could be invoked against a government humans by defending the personal rights of
and should be safeguarded by it. the indigenous peoples inhabiting the
territories colonised by the Spanish Crown.
Before this period, several charters
codifying rights and freedoms had been The Enlightenment was decisive in the
drawn up constituting important steps development of human rights concepts. The
towards the idea of human rights. The first - ideas of Hugo Grotius (1583-1645), one of
were the Magna Charta Libertatum of 1215, the fathers of modern international law, of
the Golden Bull of Hungary (1222), the Samuel von Pufendorf (1632-1694), and of
Danish Erik Klippings Håndfaestning of John Locke (1632-1704) attracted much
1282, the Joyeuse Entrée of 1356 in Brabant interest in Europe in the 18th century.
(Brussels), the Union of Utrecht of 1579 Locke, for instance, developed a
(The Netherlands) and the English Bill of comprehensive concept of natural rights; his
Rights of 1689. These documents specified list of rights consisting of life, liberty and
rights, which could be claimed in the light of property. Jean-Jacques Rousseau (1712-
particular circumstances (e.g. threats to the 1778) elaborated the concept under which
freedom of religion), but they did not yet the sovereign derived his powers and the
contain an all-embracing philosophical citizens their rights from a social contract.
concept of individual liberty. The term human rights appeared for the first
time in the French Déclaration des Droits de
In the centuries after the Middle Ages, the l’Homme et du Citoyen (1789).
concept of liberty became gradually
separated from status and came to be seen All human beings are equal (American
not as a privilege but as a right of all human Declaration of Independence 1776) and it
beings. was based on the assumption that all human
beings are equal. It also referred to certain
the work of Francisco de Vitoria (1486- inalienabe rights, such as the right to life,
1546) and Bartolomé de las Casas (1474- liberty and the pursuit of happiness.
1566) should be highlighted. These two men
laid the (doctrinal) foundation for the
recognition of freedom and dignity of all
1.2.2 Post World War II Developments human rights implies that no right is more
The atrocities of World War II put an end to important than any other.
the traditional view that states have full
liberty to decide the treatment of their own i. CLASSIC AND SOCIAL
citizens. The signing of the Charter of the RIGHTS
United Nations (UN) on 26 June 1945 One classification used is the division
brought human rights within the sphere of between ‘classic’ and ‘social’ rights.
international law. ‘ Classic’ rights are often seen to require the
non-intervention of the state (negative
ICCPR, ICESCR and UDHR form the obligation), and ‘social rights’ as requiring
International Bill of Human Rights. active intervention on the part of the state,
Classfying human rights in terms of negative
Human rights have also been receiving more and positive obligations may have its own
and more attention at the regional level. For defects for a certain right may involve both
example, in the European, the Inter- negative and positive obligations for its
American and the African context, standards effective realization. In other words, classic
and supervisory mechanisms have been rights entail an obligation for the state to
developed have already had a significant refrain from certain actions, while social
impact on human rights compliance in the rights oblige it to provide certain guarantees.
respective continents, and promise to Lawyers often describe classic rights in
contribute to compliance in the future. terms of a duty to achieve a given result
(‘obligation of result’) and social rights in
1.3.1 Classification of Human Rights terms of a duty to provide the means
Although human rights have been classified (‘obligations of conduct’). The evolution of
in a number of different manners it is international law, however, has led to this
important to note that international human distinction between ‘classic’ and ‘social’
rights law stresses that all human rights are rights has become increasingly awkward.
universal, indivisible and interrelated (e.g. Classic rights, such as civil and political
Vienna Declaration and Programme of rights, often require considerable investment
Action (1993), para. 5). The indivisibility of 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 i. CIVIL, POLITICAL,
fair trial, for instance, requires well-trained ECONOMIC, SOCIAL AND
judges, prosecutors, lawyers and police CULTURAL RIGHTS
officers, as well as administrative support. Civil rights

On the other hand, most ‘social’ rights The term ‘civil rights’ is often used with
contain elements that require the state to reference to the rights set out in the first
abstain from interfering with the eighteen articles of the UDHR, almost all of
individual’s exercise of the right. As several which are also set out as binding treaty
commentators note, the right to food norms in the ICCPR. From this group, a
includes the right for everyone to procure further set of ‘physical integrity rights’ has
their own food supply without interference; been identified, which concern the right to
the right to housing implies the right not to life, liberty and security of the person, and
be a victim of forced eviction; the right to which offer protection from physical
work encompasses the individual’s right to violence against the person, torture and
choose his/her own work and also requires inhuman treatment, arbitrary arrest,
the state not to hinder a person from detention, exile, slavery and servitude,
working and to abstain from measures that interference with one’s privacy and right of
would increase unemployment; the right to ownership, restriction of one’s freedom of
education implies the freedom to establish movement, and the freedom of thought,
and direct educational establishments; and conscience and religion.
the right to the highest attainable standard of
health implies the obligation not to interfere The difference between ‘basic rights’ (see
with the provision of health care. below
) and ‘physical integrity rights’ lies in
the fact that the former include economic
In sum, the differentiation of ‘classic’ rights and social rights, but do not include rights
from ‘social’ rights does not reflect the such as protection of privacy and ownership.
nature of the obligations under each set of
rights. Although not strictly an integrity right, the
right to equal treatment and protection in
law certainly qualifies as a civil right. the conditions necessary for prosperity and
Moreover, this right plays an essential role wellbeing. Economic rights refer, for
in the realisation of economic, social and example, to the right to property, the right to
cultural rights. work, which one freely chooses or accepts,
the right to a fair wage, a reasonable
Another group of civil rights is referred to limitation of working hours, and trade union
under the collective term ‘due process rights. Social rights are those rights
rights’. These pertain, among other things, necessary for an adequate standard of
to the right to a public hearing by an living, including rights to health, shelter,
independent and impartial tribunal, the food, social care, and the right to education (
‘presumption of innocence’, the ne bis in Articles 6 to 14 of the ICESCR).
idem principle and legal assistance (see, e.g.,
Articles 9, 10, 14 and 15 of the ICCPR). Cultural rights
The UDHR lists cultural rights in Articles
Political rights 27 and 28. These include the right to
In general, political rights are those set out participate freely in the cultural life of the
in Articles 19 to 21 of the UDHR and also community, to share in scientific
codified in the ICCPR. They include advancement, and the right to the protection
freedom of expression, freedom of of the moral and material interests resulting
association and assembly, the right to take from any scientific, literary or artistic
part in the government of one’s country, and production of which one is the author (see
the right to vote and stand for election at also Article 15 of the ICESCR and Article
genuine periodic elections held by secret 27 of the ICCPR).
ballot (see Articles 18, 19, 21, 22 and 25 of
the ICCPR). ICCPRs are considered to be expressed in a
very precise language, imposing merely
Economic and social rights negative obligations which do not require
The economic and social rights are listed in resources for their implementation, and
Articles 22 to 26 of the UDHR, and further which, therefore, can be applied
developed and set out as binding treaty immediately and they are justiciable (that
norms in the ICESCR. These rights provide only violations of civil and political rights
can be adjudicated by judicial or similar 1.4 Sources of Human Rights Law
bodies). Whereas ICESCRs are considered a) International conventions, whether
to be expressed in vague terms, imposing general or particular;
only positive obligations conditional on the b) International custom, as evidence of
existence of resources and therefore general practice accepted as law;
involving a progressive realisation and they c) The general principles of law
are not justiciable. recognised by civilised nations;
d) Subsidiary means for the
First, second and third generation determination of rules of law such as

rights judicial decisions and teachings of the

most highly qualified publicists.
The division of human rights into three
generations was first proposed by Karel
A. International Conventions
Vasak at the International Institute of
International treaties are contracts signed
Human Rights in Strasbourg. His division
between states. They are legally binding and
follows the principles of Liberté, Égalité and
impose mutual obligations on the states that
Fraternité of the French Revolution.
are party to any particular treaty (states
parties). The main particularity of human
First generation rights are related to liberty
rights treaties is that they impose obligations
and refer fundamentally to civil and political
on states about the manner in which they
rights. The second generation rights are
treat all individuals within their jurisdiction.
related to equality, including economic,
social and cultural rights. Third generation
i. UNIVERSAL CONVENTIONS FOR
or ‘cover group and collective rights, which
THE PROTECTION OF HUMAN
include, inter alia, the right to development,
RIGHTS
the right to peace and the right to a clean
solidarity rights’ environment. The only
The UDHR, adopted by a resolution of the
third generation right which so far has been
United Nations General Assembly (UNGA),
given an official human rights status - apart
although not a treaty, is the earliest
from the right to self-determination, which
comprehensive human rights instrument
is of longer standing - is the right to
adopted by the international community. On
development.
the same may that it adopted the Universal II REGIONAL CONVENTIONS FOR
Declaration, the UNGA requested the UN THE PROTECTION OF HUMAN
Commission on Human Rights to prepare, as RIGHTS
a matter of priority, a legally binding human
rights convention. Wide differences in The UN Charter encourages the adoption of
economic and social philosophies hampered regional instruments for the establishment of
efforts to achieve agreement on a single human rights obligations, many of which
instrument, but in 1954 two draft have been of crucial importance for the
conventions were completed and submitted development of international human rights
to the UNGA for consideration. Twelve law. The Council of Europe adopted in 1950
years later, in 1966, the International the European Convention for the Protection
Covenant on Economic, Social 21 and of Human Rights and Fundamental
Cultural Rights (ICESCR) and the Freedoms, supplemented by the European
International Covenant on Civil and Political Social Charter in 1961, the European
Rights (ICCPR) were adopted, as well as the Convention for the Prevention of Torture
First Optional Protocol to the ICCPR, which and Inhuman or Degrading Treatment or
established an individual complaints Punishment in 1987, and the Framework
procedure. Both Covenants and the Optional Convention on National Minorities in 1994.
Protocol entered into force in 1976. A
Second Optional Protocol to the ICCPR, on The American Convention on Human Rights
the abolition of the death penalty, was was adopted in 1969, under the auspices of
adopted in 1989 and entered into force in the Organisation of American States. This
1991. Convention has been complemented by two
protocols, the 1988 Protocol of San Salvador
The ‘International Bill of Human Rights’ on Economic, Social, and Cultural Rights
consists of the Universal Declaration of and the 1990 Protocol to Abolish the Death
Human Rights, the ICESCR, and the ICCPR Penalty. Other Inter-American Conventions
and its two Optional Protocols. The include the Convention to Prevent and
International Bill of Rights is the basis for Punish Torture (1985), the Convention on
numerous conventions and national the Forced Disappearances of Persons
constitutions. (1994), and the Convention on the
Prevention, Punishment and Eradication of One of the important features of customary
Violence against Women (1995). international law is that customary law may,
under certain circumstances, lead to
In 1981, the Organisation of African Unity, universal jurisdiction or application, so that
now the African Union, adopted the African any national court may hear extra-territorial
Charter on Human and Peoples’ Rights. claims brought under international law. In
Two protocols to the Charter have been addition, there also exists a class of
adopted: the Additional Protocol on the customary international law, jus cogens, or
Establishment of the African Court on peremptory norms of general international
Human and Peoples’ Rights (1998), and the law, which are norms accepted and
Protocol on the Rights of Women in recognised by the international community
Africa (2003). Other African instruments of states as a whole as norms from which no
include the Convention Governing the derogation is permitted. Under the Vienna
Specific Aspects of Refugee Problems in Convention on the Law of Treaties (VCLT)
Africa (1969), and the African Charter on any treaty which conflicts with a peremptory
the Rights and Welfare of the Child (1990). norm is void.

B. International custom C. General principles of law

Customary international law plays a crucial In the application of both national and
role in international human rights law. The international law, general or guiding
Statute of the International Court of Justice principles are used. In international law,
refers to ‘general practice accepted as law’. they have been defined as ‘logical
In order to become international customary propositions resulting from judicial
law, the ‘general practice’ needs to represent reasoning on the basis of existing pieces of
a broad consensus in terms of content and international law’. At the international level,
applicability, deriving from a sense that the general principles of law occupy an
practice is obligatory (opinio juris et important place in case-law regarding
necessitatis). Customary law is binding on human rights. A clear example is the
all states (except those that may have principle of proportionality, which is
objected to it during its formation), whether important for human rights supervisory
or not they have ratified any relevant treaty. mechanisms in assessing whether
interference with a human right may be Chapter Two: Human Rights
justified. Systems :( Substantive Rights,
Institutions and Procedures)
Therefore, rules of law or principles that
enable decision-makers and members of the
2.1 The Universal System: The UN
executive and judicial branches to decide on
System
the issues before them are needed.
2.1.1 The Legal Framework

General principles of law play two important

A. The UN Charter
roles: on the one hand, they provide
Adopted on 26 June 1945, the United
guidelines for judges, in particular, in
Nations Charter was designed to establish
deciding in individual cases; on the other
the foundations of a new peaceful world
hand, they limit the discretionary power of
order.
judges and of members of the executive in
Drawing lessons from the appalling
their decisions in individual cases.
atrocities of the Second World War, the
Charter’s primary aim was thus to save
D. Subsidiary means for the
succeeding generation from the scourge of
determination of rules of law
war (preamble, paragraph 2) and to ensure
According to Article 38 of the Statute of the
the maintenance of international peace and
International Court of Justice, judicial
security.
decisions and the teachings of the most
qualified publicists are ‘subsidiary means
As reflected in the preamble to the Charter,
for the determination of rules of law’.
the United Nations were guided, among
Therefore, they are not, strictly speaking,
others, by the motive to reaffirm faith in
formal sources, but they are regarded as
fundamental human rights, in the dignity
evidence of the state of the law.
and worth of the human person, in the equal
rights of men and women and of nations
large and small (preambular paragraph 3).
 B The UDHR Declaration and inspirations for
The Declaration was adopted on 10 further development of human rights.
December 1948 during the third session of ✓ The Preamble also reflects its pre-
the Assembly at the Chaillot Palace in Paris. 1945 roots by pointing out that
disregard and contempt for human
The Declaration was adopted by forty-eight rights have resulted in barbarous acts
votes in favor, none against and eight which have outraged the conscience
abstentions (Byelorussia, Czechoslovakia, of mankind.
Poland, Saudi Arabia, South Africa, ✓ Another important element of the
Ukraine, USSR and Yugoslavia). Preamble is the recognition, in its
final paragraph, of the rights and
The Universal Declaration was adopted freedoms contained in the
through Resolution 217(III) which contained Declaration as a common standard of
five parts: Part A, the text of the Declaration achievement for all peoples and
as such; Part B, Right of Petition; Part C, nations.
Fate of Minorities; Part D, Publicity to be
Given to the Universal Declaration of The operative part of the Declaration can be
Human Rights; and Part E, preparation of a divided into three groups of provisions.
Draft Covenant on Human Rights and Draft ✓ The first group (Article 1) contains
Measures of Implementation. Contained in an affirmation of the philosophical
part A of Resolution 217(III), the Universal foundations of human rights by
Declaration is made up of the Preamble and saying that all human beings are born
30 articles which comprise its operative part. free and equal in dignity and rights.
They are endowed with reason and
The Preamble to the Declaration is conscience and should act towards
significant for several reasons. one another in a spirit of
✓ The Preamble refers to the concepts brotherhood.
of inherent human dignity and the ✓ The second group of provisions
inalienable nature of human rights as proclaims a number of general
the philosophical sources of the principles. One is the principle of
equality and non-discrimination
 (Article 2), the principle that plays a Opponents of such a view submit that the
fundamental role in the whole of establishment of a customary international
human rights law. The second legal rule requires the existence of general,
principle relates to the concept of the uniform and consistent practice by States
duties of States in the form of the followed by the mergence of an opino iuris
right of everyone to a social and that is of a conviction or belief by States in
international order in which the the obligatory character of such a practice.
rights and freedoms set forth in the
Declaration can be fully realized By the adoption of the Universal
(Article 28). Declaration, Members of the United Nations
✓ The third principle spells out a have made a political commitment to
concept of the duties of everyone to implement the rights contained therein. The
the community (Article 29(1)) and legal and political significance of the
permissible limitations in the Universal Declaration may be illustrated by
exercise of the human rights and several development and tangible
freedoms (Article 29(2)). achievements. As a universally accepted
✓ And the fourth principle provides for normative reference system, the Declaration
the prohibition of activates by any permeated
State, group or person aimed at the domestic legal systems of numerous States
destruction of the rights and by the incorporation of its provisions into
freedoms set fourth in the national constitutions and other legislative
Declaration (Article 30). instruments.

The legal and political status and On the international level, the Declaration
significance of the UDHR. has established the very first international
There are, however, ongoing discussions catalogue of human rights as a common
among legal scholars as to whether the standard of achievement for all peoples and
Declaration has, over the years, become a all nations. This model catalogue may thus
legally binding instrument. Proponents of be said to play also the role of the first
the binding character of the Declaration definition of human rights, the definition
argue for its status as a customary law. which is missing from the UN Charter. The
legal and political significance of such a preambles, but above all in the very
function of the Declaration has further been formulation of specific rights and freedoms.
strengthened by its adoption by the General
Assembly of the United Nations. The significance of the Universal
Consequently, the definition and catalog of Declaration has not been confined solely to
human rights in the Declaration may safely influencing international standard-setting in
be regarded as a quasi-authentic the field of human rights. It has also created
interpretation of the human rights opportunities for developing international
provisions of the UN Charter. The universal procedures and mechanisms for the
message reflected in the Declaration is implementation of human right’s In the
further strengthened by the fact that some of United Nations, the Declaration has become
its provisions constitute general principles the main basis and references sources for
of law or represent elementary establishing the communications and
considerations of humanity. investigative procedures.

Another important aspect in the adoption of Similarly, the significance of the

the Universal Declaration has been the implementation of the Declaration has been
establishment of the basis for further explicitly emphasized in the Preamble to the
international law-making in the field of European Convention for the Protection of
human rights. This contribution has gone Human Rights and Fundamental Freedoms,
well beyond the program of the whose signatory governments declared their
International Bill of Human Rights. In resolve to take the first steps for the
addition to the adoption of both the collective enforcement of certain of the
International Covenants on Human Rights rights stated in the Universal Declarations.
in 1966, the Universal Declaration exerted a
profound impact on the content and scope of The Universal Declaration of Human Rights
other human rights instruments should, therefore, be seen above all as a
organizations. This impact may be identified document that has exerted a profound and
not only in explicit references to the comprehensive impact internationally and
Declaration, contained usually in domestically in furthering the promotion
and protection of human rights. Its
inspirational role has not yet been states are parties to the first protocol and 45
exhausted. states to the second.

C. The Covenants on Civil a political and The International Covenant on Economic,

Economic, social and Cultural Rights Social and Cultural Rights
As of January 2001, 146 states are parties to
the Covenant on Civil and Political rights The International Covenant on Economic,
and 142 states to the covenant on Economic, Social, and Cultural Rights consists of 31
Social and Cultural Rights. articles, of which the first 15 are of a
normative character and the last 16 of a
The two covenants contain some identical or more procedural nature. In its normative
similar provisions, such as the right to self- articles it sets out many of the fundamentals
determination (Article 17 both covenants) for the well being and prosperity of an
and the principle of non-discrimination individual. Each state party is under an
(Article 2 of both covenants). Also the obligation to undertake steps “to the
safeguard clauses that the rights should not maximum of its available resources with a
be used as a pretext for the destruction of view to achieving progressively the full
other rights, are the same (Article 5 of both realization of the rights recognized in the
covenants). present covenant, by all appropriate means,
including particularly the adaption of
❖ The International Covenant on legislative measures” (Article 27 the
Civil and Political Rights Covenant). A core provision is Article 11,
The International Covenant on Civil and which recognizes the rights of everyone to
Political Rights contains 53 articles, of an adequate standard of living, including
which 27 are of a normative character. It adequate food, clothing and housing, and to
also consists of a first optional protocol the continuous improvement of living
adopted at the same time as the Covenant in conditions.
1906, establishing a procedure for individual
complaints, and a second optional protocol,
adopted in 1989 aiming at the abolition of
the death penalty. As of January 2001, 98
D The International Convention on the E The Convention on the Elimination of
Elimination of All Forms of Racial Discrimination against Women
Discrimination
The commission on the status of women was
In 1969, seven years before the afore established in the early days of the United
discussed two covenants entered into force, Nations, in 1943. In 1967, the General
the International Convention on the Assembly adopted the Declaration on the
Elimination of All Forms of Racial Elimination of Discrimination Against
Discrimination (CERD) entered into force Women (CEDAW). This was a reaction
after having been adopted in 1965 by the based on a growing concern that additional
General Assembly. The Convention, which means for promoting and protecting equal
as of January 2001 has 156 states parties, enjoyment of human rights by women is
was the first United Nations human rights necessary.
instrument outside the provisions on Human
Rights in the Charter that established an The Convention was adopted by the General
international monitoring system, including a Assembly in 1979, which is entered into
procedure for individual complaints. force in 1981, and has as of January 2001
165 states parties.
The Convention contains 25 articles, of
which the first seven articles are of a The Convention consists of 30 Articles, of
normative character. A broad definition of which the first 16 are of a normative
racial discrimination is found in Article 1, character. The definition of discrimination
and the Convention sets out a number of against women, contained in the first article,
detailed prohibitions and obligations to is more detailed than in many other
prevent discrimination based on the grounds discrimination clauses. It was inspired by
of race, color, descent, or national or ethnic the definition of racial discrimination as
origin. States are under an obligation to contained in the convention on that subject.
criminalize dissemination of ideas based on In both its definition and in other provisions
racial superiority and hatred and the convention on the elimination of All
participation in racial organizations or Forms of Discrimination Against Women
activities. (Article 18 of the Convention) reflects the
depth of exclusion and restriction practiced related matters and stresses the social
against women because of their sex. It services needed especially childcare
identifies many areas where there have been facilities for a full participation of women in
a notorious discrimination against women; public life.
for example in regard to political and civil
rights, economic rights and employment. It The issues of gender-based violence are not
calls for equal rights for women, regardless specifically addressed in the convention.
of their marital status. It calls for national The committee set up under the convention
legislation to ban discrimination. It allows has also addressed this subject in its General
for temporary special measures to accelerate Recommendation of Article 19, in which it
the achievement of equality between men formally extends the general prohibition on
and women. The Convention recognizes gender-based discrimination to include
that, even if women’s equality is guaranteed gender-based violence.
by law and special measures taken in order
to promote a de facto equally, there is still a F The Convention against Torture and
necessity to take measures to remove the Other Cruel, Inhuman or Degrading
social, cultural and traditional patterns Treatment or Punishment
which perpetuate gender-role stereotypes In 1966, with the adoption of the Covenant
and to create an overall framework in on Civil and Political Rights, the
society that promotes the equal rights and international community unequivocally
responsibilities between men and women, repeated the prohibition against torture.
including shared responsibilities in the Efforts continued to reach further through
domestic sphere. The Convention provides developing specific and detailed measures,
for equal rights of women in political and of normative, practical and remedial nature,
public life, equal access to education and against torture and ill-treatment. In 1975 the
employment, equality in access to health General Assembly adopted a Declaration on
facilitates and an end to discrimination in the Protection of All Persons from being
the field of finance and areas of economic subjected to Torture and other Cruel,
and social rights. The Convention also Inhuman or Degrading Treatment or
stresses the need to eliminate discrimination Punishment, which contained in its first
in all matters relating to marriage and family article a definition of the term “torture.”
Another way to proceed was to address the of January 2001, 122 states parties. The
behavior of the various professional groups provisions in this Convention build on
that normally were directly exposed to elements from the other instruments
situations where acts of torture or ill- mentioned above. The Convention provides
treatment might occur. In 1979, a code of for a definition of torture in its first article,
conduct for Law Enforcement Officials was which includes intentional acts for certain
adopted by the General Assembly, which enumerated reasons which causes severe
prescribes that “no law enforcement official pain or suffering of physical or mental
may inflict, instigate or tolerate any act of nature for a persons, “When such pain or
torture or other cruel, inhuman or degrading suffering is inflicted by or at the instigation
treatment or punishment, nor --- invoke of or with the consent or acquiescence of a
superior orders or exceptional circumstances public, official or other person acting in an
such as state of war or threat of war, a threat official capacity” (Article 1 of the
to national security internal political Convention Against Torture). During the
instability or any other public emergence as negotiations a group of countries insisted on
a justification of such acts.” (Article 5 of the adding a clause explicitly precluding pain or
Code of Conduct for Law Enforcement suffering arising from lawful sanctions, an
Officials). In 1982 the General Assembly exception not found in earlier instruments
adopted the principles of Medical Ethics containing provisions relating to torture
relevant to the role of health personnel, (Article 1 of the Convention).
particularly physicians, in the protection of
prisoners and detainees against torture and G The Convention of the Right of the
other cruel, in human or degrading treatment Child
or punishment. The Convention was adopted by the General
Assembly in 1989, and entered into force in
On 10 December, 1984, another major step 1990. It soon received unprecedented
was taken when the General Assembly support and achieved unique political
adopted the Convention Against Torture on commitments, inter alia, evidenced at the
Other Cruel, Inhuman or Degrading World Summit for Children in New York in
Treatment or Punishment, which entered 1990 and the World Conference on Human
into force in 1987. The Convention has, as Rights in Vienna in 1993. The Convention
on the Rights of the Child is the first specific all actions concerning children the best
Human Rights treaty that has achieved an interest of the child shall be the primarily
almost Universal adherence. As of January consideration (Article 3 of the Convention).
2001 it has 190 states parties and only the Thirdly, the principle of the right to life does
United States and Somalia have failed to not only entail the right to be protected
accede to the Convention. against being killed but a right to survival
and development (Article 6 of the
The Convention consists of 54 articles, of Convention). Fourthly, the principle that
which the first 42 are of a normative children, who are capable of forming their
character. The Convention is all own views, shall also have the right to
encompassing and sets up a holistic participate and express their views, which
approach where civil, political, economic, shall be duly respected (Article 12 of the
social and cultural rights are included, all Convention).
being of importance for safeguarding the
dignity of the child and a harmonious 2.1.2 Reservations and Declarations
development of his personality. A child is When becoming party to a treaty, a state
defined as “every human being below the may, by formulating reservations,
age of eighteen years. Unless, under the law declarations and interpretative statements,
applicable to the child, majority is attained seek to limit its domestic application beyond
earlier” (Article 1 of the Convention). what is permissible under the limitations
referred to above.
Four general principles have guided the
authors of the Convention, and later been [Link] Reservation
highlighted by the committee on the Rights
in the General Guidelines as the core In general terms, a reservation is a statement
message of the Convention. Firstly, the made by a state by which it purports to
principle of the full and equal value of exclude or alter the legal effect of certain
children and that each child shall enjoy the provisions of a treaty in their application to
rights set out in the convention without that state. A reservation may enable a state
discrimination (Article 2 and 4 of the to participate in a multilateral treaty that it
Convention.) Secondly, the principle that in
would otherwise be unable or unwilling to concerning the extent to which they are
participate in. bound by a certain provision. Such
statements may relate to the competence of a
A state may, when signing, ratifying, supervisory mechanism. For instance,
accepting, approving or acceding to a treaty, Article 41 ICCPR stipulates that a state
formulate a reservation unless: party may choose (not) to recognise the
(a) The reservation is prohibited by the competence of the Human Rights
treaty; Committee to receive state complaints
(b) The treaty provides that only specified regarding its human rights performance.
reservations, which do not include the This type of declaration, as provided by the
reservation in question, may be made; or instruments, does not pose major problems.
(c) In cases not falling under subparagraphs However, a state party may also make
(a) and (b), the reservation is incompatible interpretative declarations, otherwise known
with the object and purpose of the treaty. as understandings, whereby it does not
intend to modify or limit the provisions of
Unless expressly permitted by a treaty, the the treaty, but indicates merely how it
effectiveness of a reservation is dependent interprets a particular article. Such
on its acceptance by other states parties, and interpretative declarations may raise certain
any other state party may object to it. As a problems in international law as to their
rule, a reservation is considered accepted by differentiation with reservations.
another state party if that state party has
raised no objection within twelve months One of the major differences between a
after it has been notified of the reservation ‘reservation’ and an ‘interpretative
(Article 20(5)VCLT). declaration’ lies in the author’s purpose in
making that declaration. While a reservation
Article 57(1) of the ECHR prohibits seeks to exclude or modify the legal effect
reservations ‘of a general character’. of the treaty’s provisions in their application
to the state author, the interpretative
[Link] Declarations declaration seeks only to clarify the meaning
Some conventions allow or even require or scope of the treaty provisions.
states parties to make declarations
2.1.3 Restrictions and Derogations others, collective security, morality and
[Link] Restrictions common interest.’
Conventions and other instruments may
contain a number of restrictions or Most human rights treaties contain specific
limitations to the rights they stipulate. It is provisions in various individual articles,
generally accepted that only few rights and which specify the limitations and restrictions
freedoms are ‘absolute’. At the same time, that are allowed on the particular right. Such
such restrictions must be used only to specific limitation clauses include
establish the proper limits of the protected ‘prescribed by law’, ‘in a democratic
right and not as an excuse for undermining society’, ‘public order (ordre public)’,
the right itself or destroying it altogether. In ‘public health’, ‘public morals’, ‘national
general, there must be a proportionate security’, ‘public safety’ and ‘rights and
relationship between the restriction of the freedoms of others’. For a few rights, such
right as such and the reason for the as freedom from torture or slavery, no
restriction. limitations have been formulated.

Article 32(2) of the American Convention When a right is subject to a limitation, no

on Human Rights (ACHR): ‘The rights of other limitations are permitted and any
each person are limited by the rights of limitation must comply with the following
others, by the security of all, and by the just minimum requirements:
demands of the general welfare, in
a democratic society’. • The limitation must not be
interpreted so as to jeopardise the
The African Charter on Human and Peoples’ essence of the right concerned;
Rights does not contain a specific provision • The limitation must be interpreted
on restrictions but Article 27(2) on ‘duties’ strictly in the light and context of
has come to play the role of a general the particular right;
limitation clause providing: ‘The rights and • The limitation must be prescribed
freedoms of each individual shall be by law and be compatible with the
exercised with due regard to the rights of object and purpose of the
instrument;
 • The restriction must be based on a heavy burden of proof, but it is consistent
law; with the object and purpose of human rights
• The restriction must be necessary; treaties to protect the individual.
there must be a pressing social need,
assessed on a case-by-case basis. [Link] Derogations
That the law would be useful is in Some human rights instruments allow states
itself not sufficient; it must be to take measures derogating temporarily
consistent with other protected from some of their obligations. Derogating
rights. In some treaties, the measures must be of an exceptional and
condition that it be ‘necessary’ (in a temporary nature. There are derogation
democratic society) is added; and clauses in, inter alia, Article 15 of ECHR,
• The restriction must be justified by Article 27 of ACHR and Article 31 of
the protection of a strictly limited European Social Charter. Some human
set of well-defined public interests, rights instruments, such as the Convention
which usually includes one or more on the Right of the Child, the ICESCR, and
of the following grounds: national the African Charter on Human and Peoples’
security, public safety, public order Rights, do not contemplate any derogation
(ordre public), the protection of clause.
health or morals, and the protection
of the rights and freedoms of others. The rationale for derogation provisions is to
strike a balance between the sovereign right
In sum, any restriction on the enjoyment of of a government to maintain peace and order
the rights enshrined in human rights during public emergencies, and the
instruments must be legally established, protection of the rights of the individual
non-discriminatory, proportional, from abuse by the state.
compatible with the nature of the rights, and
designed to further the general welfare. When derogation measures are allowed,
Finally, it is also important to stress that the such derogations have to meet several
burden falls upon states parties to prove that criteria:
a limitation imposed upon the enjoyment of
the rights is legitimate. This is, of course, a
 • There must be a war or general state mechanisms are often called ‘treaty bodies’,
of emergency threatening the life of e.g., the Human Rights Committee and the
the nation; Committee on the Rights of the Child. The
• The state of emergency must be African Commission and future Court on
officially proclaimed; Human and Peoples’ Rights, the European
• Measures may not go beyond the Court and commission of Human Rights and
extent strictly required by the the Inter-American Court and Commission
situation; of Human Rights are also treaty bodies.

• Measures may not be inconsistent

with other obligations under b) Non-treaty- based mechanisms:

international law; and supervisory mechanisms not based on

• Measures may not be discriminatory legally binding human rights treaty

solely on grounds of race, colour, obligations. Generally, this type of

sex, language, religion or social mechanism is based on the constitution or

origin. charter of an intergovernmental human

rights forum, or on decisions taken by the

❖ Institutions and Procedures assembly or a representative body of the

The numerous human rights conventions forum in question. Under the UN

under the framework of the United Nations framework, the non-treaty-based

and the regional systems in Africa, the mechanisms are referred to as ‘charter-

Americas and Europe have led to the based’ mechanisms, which include the 1503

creation of a wide range of mechanisms for procedure

monitoring compliance with the standards and the country mandates. The European

agreed upon. Commission against Racism and Intolerance

under the Council of Europe is also an

There are two distinctive types of example of a regional non-treaty based

supervisory mechanism: mechanism.

a) Treaty-based mechanism: supervisory

mechanisms enshrined in legally binding
human rights instruments or conventions.
Within the UN framework these
[Link] Treaty Based Mechanisms In general, reporting procedures under the
The six most well-known human rights different treaty-based mechanisms are meant
treaties are the two Covenants (ICESCR and to facilitate and initiate a ‘dialogue’ between
ICCPR), CERD, CEDAW, CAT and CRC. the supervisory body and the State Party.
In addition, mention should be made of the
CMW, which entered into force in 2003. . In addition to the government report, the
treaty bodies receive information on a
Each of these conventions has a supervisory country’s human rights situation from other
body. These bodies consist of a number of sources, including non-governmental
experts of a high moral character and organisations, UN agencies, other
recognised competence in the field of human intergovernmental organisations, academic
rights. They act in their personal capacity, institutions, and the press.
which means that although they are
normally nationals of a state party to the All UN human rights conventions contain a
treaty in question, they are not acting under reporting procedure: Article 16 of ICESCR,
instructions from respective governments. Article 40 of ICCPR, Article 9 of CERD,
Article 19 CAT, Article 44 of CRC, Article
The various supervisory procedures 18 of CEDAW and Article 73 of CMW.
established in human rights treaties can be
divided into four main groups: ➢ Inter-state-complaint procedure
• Reporting procedures Some human rights instruments allow states
• Inter-state complaint procedure parties to initiate a procedure against another
• Individual complaint procedure state party, which is considered not to be

• Inquiries and other procedures fulfilling its obligations under the

instrument. In most cases, such a complaint

➢ Reporting procedures may only be submitted if both the claimant

Most human rights treaties include a system and the defendant state have recognised the

of periodic reporting. States parties to them competence of the supervisory body to

are obliged to report periodically to a receive this type of complaint.

supervisory body on the implementation at

the domestic level of the treaty in question.
The possibility to lodge complaints against only be initiated after all domestic remedies
another state party is contemplated in, inter have been exhausted.
alia, Article 41 of ICCPR; Article 21 of
CAT; Article 11 of CERD. In practice, inter- At the UN level, individual complaint
state complaint mechanisms are seldom mechanisms are found under five
used. Inter-state relationships are delicate conventions: in the First Optional Protocol
and inter-state mechanisms may not be ideal to the ICCPR; Article 22 of CAT; Optional
procedures as states bringing complaints Protocol to the CEDAW; Article 14 of
may elicit reprisals. In addition, many states CERD and Article 77 of CMW.
have not recognised the competence of the
supervisory bodies to receive inter-state The two major stages in any case are known
complaints. as the ‘admissibility’ stage and the ‘merits’
stage. The ‘admissibility’ of a case refers to
➢ Individual complaint procedure the formal requirements that the complaint
It seems reasonable that individuals, on must satisfy before the relevant committee
whose behalf human rights were stipulated can consider its substance. The ‘merits’ of
in the first place, should be enabled to the case are the substance, on the basis of
initiate proceedings to protect their rights. which the committee decides whether or not
Such a procedure, whereby an individual the rights under a treaty have been violated.
holds a government directly accountable
before an international supervisory body ➢ Inquiries and other procedures
aims to afford far-reaching protection to the , for instance, act upon receipt of complaints
individual. In order for an individual to or take an initiative itself. It may also initiate
bring a case/communication/petition under a a visit in loco to gather information, or do so
human rights convention, the following as part of a regular visit-programme. One
requirements have to be met: a) the alleged example of a visit-programme - an enquiry –
violating state must have ratified the and in loco visits procedure - is that set out
convention invoked by the individual; b) the in Articles 126 and 132 of the Third Geneva
rights allegedly violated must be covered by Convention (1949), and the provision in
the convention concerned; and c) Article 143 of the Fourth Geneva
proceedings before the relevant body may Convention providing for on-site visits to
places of internment or detention. Mention B. Security Council
should also be made of the International Under the charter of the United Nations
Fact-Finding Commission established under member states have conferred on the
Article 90 of Protocol I to the Geneva Security Council primary responsibility for
Conventions the maintenance of international peace and
[Link] Non-treaty Based (Charter Based) security and have agreed that in carrying out
Mechanisms its duties under this responsibility the
A. International Court of Justice (ICJ) Security Council acts on their behalf. The
The International Court of Justice is the Security Council may investigate any
principal judicial organ of the United dispute, or any situation which might leads
Nations. Its statute is an integral part of the to international friction or give rise to a
charter of the United Nations and, dispute, in order to determine whether the
consequently, all member states of the continuance of the dispute or situation is
United Nations are ipso facto parties to the likely to endanger the maintenance of
statue of the court. Only states may be international peace and security. Any
parties in cases before the courts and the member of the United Nations may bring
jurisdiction of the court will comprise all such dispute to the attention of the Security
cases which the parties refer to it. In Council. When the Security Council
addition, states parties to the statute may at determines the existence of any threat to the
any time declare that they recognize as peace, breach of peace, or act of aggression,
compulsory ipso facto and without special it may make recommendations, or decide
agreement, in relation to any other state what measures shall be taken to maintain or
accepting the same obligation, the restore international peace and security
jurisdiction of the court in all legal disputes measures which the security council may
concerning: (a) the interpretation of a treaty; initially take include complete or partial
(b)any fact which, if established, would interruption of economic relations and of
constitute a breach of an international rail, sea, air postal, telegraphic, radio, and
obligation; and (d) the nature or extent of the other means of communication, and the
reparation to be made for the breach of an severance of diplomatic relations.
international obligation.
C United Nations General Assembly
One of the functions of the United Nations assistance for refugees and other
General Assembly is to initiate studies and displaced persons.
make recommendations for the purpose of (c) The Special Committee on
‘assisting in the realization of human rights Declaration, or the ‘Committee 24’,
and fundamental freedoms for all without whose principal function is to
distinction as to race, languages or religion. monitor the implementation of the
Such matters are usually referred by the Declaration on the Granting
General Assembly to its Third Committee Independence to Colonial Countries
which deals with social, humanitarian and and Peoples.
cultural matters. (d) Committee on the Exercise of the
Inalienable Rights of the Palestinian
The General Assembly has established a People, which was required to
number of subsidiary organs which are consider and recommended to the
concerned with human rights. These include; General Assembly a programme of
(a) The International Law Commission; implementation designed to enable
whose object is the promotion of the the Palestinian People to exercise ‘its
progressive development of inalienable rights in Palestine;
international law and its codification. including the right to self
Among the international human determination and the right to return
rights instruments it has prepared are to their homes and property from
the Genocide Convention, the which they had been displaced and
Refugees Convention, the uprooted.
Conventions Relating to the Status of
Stateless Persons and the Reduction D. Economic and Social Council
of Statelessness, the Declaration on The Economic and Social Council is
Territorial Asylum, and the Statute authorized by the charter of the United
of the Office of the United Nations Nations to make recommendations for the
High Commissioner for Refugees. purpose of promoting respect for, and
(b) The Office of the United Nations observance of human rights and
High Commissioner for Refugees, fundamental freedoms for all.”
which provides protection and
 of American solidarity and good
2.2 Regional Human Rights systems neighborliness can only mean the
2.2.1 The European Human Rights consolidation on this continent, within the
System framework democratic institutions, of a
The statute creating the Council of Europe system of individual liberty and social
was signed in London on 5 May 1949. A justice based on respect for the essential
common history and shared cultural rights of man.’
traditions, coupled with what was perceived #######################...............
as a growing threat to their accustomed way
life from an alien transplanted ideology, 2.2.3 The African Human Rights System
enabled its member states, barely two years The other regional human rights instrument
after the proclamation of Human Rights and is the African Charter on Human and
Fundamental Freedoms, (ECHR). Twelve Peoples’ Rights (ACHPR). The initiative for
states signed the EHCR in Rome on 4 an African Human Rights Charter was taken
November 1950. It entered into force in at a meeting of African jurists, the African
September 1953, and has now been ratified Conference on the Rule of Law, convened
by all member states. by the International Commission of Jurists
(ICJ) in Lagos in 1961.
2.2.2 The Inter-American Human Rights
System In 1998, the thirty-fourth summit of Head of
The Charter of the Organization of State and Government of the OAU adopted
American States (OAS) was singed on 30 a protocol to the ACHPR for the
April 1948 at the Ninth International establishment of an African Court on
Conference of American States convened in Human and People’s Rights.
Bogota. The Charter enters into force on 13
December 1951. Its preamble stated that ‘the 2.2.4 The Arab and Asian Human Rights
historic mission of American is to offer to Systems
man a land of liberty, and a favorable The Arab and Asian states have not yet
environment for the development of his created regional human rights regimes, but
personality and the realization of his just some steps have been taken in that direction.
aspirations,’ and that ‘the true significance In 1968, the Council of the Arab League
adopted a resolution relating to the creation enhance human rights respect and awareness
of a Permanent Arab Commission on in the region through the dismantling of the
Human Rights. On September 15, 1994, the concept of “Asian values” which states often
League of Arab States approved an Arab use to limit human rights, the opportunity to
Charter on human Rights building on earlier create a regional system may improve in the
texts adopted by regional non-governmental future.
organizations and inter-governmental
organizations. The Charter has not yet Chapter three: Systems of
entered into force. It requires acceptance by Protection for Vulnerable Groups
seven states before it comes into force. As of
This part focuses on groups that are
January 1, 1998, only Egypt had ratified the
especially vulnerable to abuse of human
Charter. Iraq signed it on February 5, 1996.
rights; groups that have difficulties
defending themselves and are therefore in
In Asia, despite efforts by NGOs and the
need of special protection. Twelve groups
U.N., governments in the region have been
are discussed: 1) women and girls; 2)
unwilling in general to ratify global human
children; 3) refugees; 4) internally displaced
rights instruments, or create a regional
persons; 5) stateless persons; 6) national
human rights system. As of March 1998, for
minorities; 7) indigenous peoples; 8)
instance, 27 states in the region, including
migrant workers; 9) disabled persons; 10)
virtually all Pacific Island States, had not
elderly persons; 11) HIV positive persons
signed or ratified either the UN Covenants
and AIDS victims.
or the Torture Convention. The vastness of
geographical scope of the region, the vast
3.2 The rights of the child
differences in culture, language, political
Every child has the right to grow to
ideology and economic development among
adulthood in health, peace and dignity.
nations, the recent economic crisis in Asia,
Young children are vulnerable and
coupled with a lack of a regional
dependent on adults for their basic needs,
organization, constitute serious hurdles to
such as food, health care and education.
the creation of an Asian- Pacific regional
system. However, with ongoing effort by
Intenational Human Rights Standards
the UN, NGOs and political movements to
In 1924, the League of Nations adopted a The Convention is meant to be all
Declaration on the Rights of the Child encompassing and sets out civil, political,
(Declaration of Geneva), containing five social, economic and cultural rights for
basic principles reflecting the clear ‘every human being below the age of
consensus that children were in need of eighteen years, unless under the law
special protection. In 1959, the UNGA applicable to the child, majority is attained
unanimously adopted another more earlier’ (Article 1). Four general principles
elaborate Declaration on the Rights of the have guided the authors of the Convention:
Child, stating in the preamble that ‘the child,
by reason of his physical and mental · The principle of non-discrimination
immaturity, needs special safeguards and (Article 2);
care, including appropriate legal protection, · The best interests of the child (Article 3);
before as well as after birth’. · The right to life, survival and development
(Article 6); and
Serious work on drafting a convention on · Respect for the views of the child (Article
the rights of the child began in the final 12).
years of the 1970s, resulting in the UNGA
adoption of the Convention on the Rights of Supervision
the Child The CRC establishes the Committee on the
(CRC) on 20 November 1989. The Rights of the Child to supervise the progress
Convention entered into force on 2 made by the states parties in achieving the
September 1990 and a few years later the realisation of their obligations contained in
majority of the world’s states had ratified it. the Convention. The Committee is
As of July 2004, 192 states had ratified the composed of ten multidisciplinary experts
Convention, making the CRC the most from fields such as international law,
universally accepted human rights treaty medicine, education and sociology, whose
ever drafted. The United States and Somalia main task is to review reports submitted by
are the only UN members, which have not states on actions they have taken to
ratified the Convention. implement the Convention, as it has no
competence to receive individual
complaints.
 cultural patterns, social institutions and
3.3 Minority protection regime legal system.
3.4 The rights of indigenous people
Indigenous peoples have only after World Looking at Mr Martinez Cobo’s definition
War II become the subject of international and the ILO Conventions mentioned below,
human rights debate. There have been a number of characteristics can be
numerous attempts to formulate a definition distinguished:
of the term ‘indigenous peoples’, but a • Indigenous peoples have a strong
generally accepted definition has not affinity with the land they live on.
emerged. Their environment is essential for
their survival as a cultural entity; it is
In his Study of the Problem of decisive for their social and cultural
Discrimination Against Indigenous conditions;
Populations, the rapporteur of the Sub- • They are not dominant in their
Commission, Mr Martinez Cobo, has present national society, usually they
formulated a definition, which features the have little if any influence on state
most important characteristics: policy;
• They generally speak their own
Indigenous communities, peoples and language and have common cultural
nations are those which, having a historical qualities; and
continuity with pre-invasion and pre- • Their political/organisational
colonial societies that developed on their structure is generally of a
territories, consider themselves distinct from decentralised nature.
other sectors of the societies now prevailing
in those territories, or parts of them. They International Human Rights Standards
form at present non-dominant sectors of The first international standard on
society and are determined to preserve, indigenous populations was ILO 107 (1957),
develop and transmit to future generations revised and reformulated in 1989 and
their ancestral territories, and their ethnic amended in ILO 169. In this Convention, a
identity, as basis of their continued existence definition of indigenous peoples is given in
as peoples, in accordance with their own Article 1(1):
 groups; legality of rules stipulating loss of
a) Tribal peoples in independent countries membership in an indigenous minority
whose social, cultural and economic following marriage to a non-indigenous
conditions distinguish them from other person; forced use of language other than
sections of the national community, and the indigenous language during official
whose status is regulated wholly or partially court proceedings; indigenous rights to
by their own customs or traditions or by natural resources; and state interference with
special laws or regulations. traditionally indigenous lands.

b) Peoples in independent countries who are Three charter-based bodies have been
regarded as indigenous on account of their established to deal with issues relating to
descent from the populations which indigenous peoples at the UN: a) the Special
inhabited the country, or a geographical Rapporteur on the Situation of Human
region to which the country belongs, at the Rights and Fundamental Freedoms of
time of conquest or colonisation or the Indigenous People, b) the Working Group
establishment of present state boundaries on Indigenous Populations, and c) the
and who, irrespective of their legal status, Permanent Forum on Indigenous Issues.
retain some or all their own social,
economic, cultural and political institutions. Rapporteur has under his mandate addressed
a wide range of human rights issues. He has,
Supervision for instance, formulated a proposal for a
At the UN treaty-based level, the Human definition of indigenous peoples, and
Rights Committee has been called upon addressed the role of intergovernmental and
several times by indigenous persons to non-governmental organisations, the
decide on possible infringements of their elimination of discrimination, and basic
human rights. A number of cases have human rights principles, as well as special
involved complaints relating to the areas of action in fields such as health,
preservation of culture of indigenous groups, housing, education, language, culture, social
language rights and access to effective and legal institutions, employment, land,
remedies. Issues include dispossession by political rights, religious rights and
the state of the ancestral land of indigenous practices, and equality in the administration
of justice. His conclusions, proposals and the integration and co-ordination of
recommendations mark important progress activities relating to the indigenous issues
in United Nations consideration of the within the UN system; and c) to prepare and
human rights problems facing indigenous disseminate information on indigenous
peoples; many are still under consideration issues.
and others have been incorporated into
resolutions of the Sub-Commission. 3.5 Protection of disabled persons,
International Human Rights Standards
Apart from facilitating and encouraging
dialogue between governments and In general, international human rights
indigenous peoples, the Working Group on instruments protect the rights of persons
Indigenous Populations has a two-fold with disabilities through the principles of
mandate: a) to review developments equality and non-discrimination. The
pertaining to the promotion and protection UDHR refers expressly to disabled persons,
of human rights and fundamental freedoms stipulating in Article 25 that ‘everyone has
of indigenous peoples; and b) to give the right to security in the event of
attention to the evolution of international disability’, but its derivatives, the ICCPR
standards concerning indigenous rights. and ICESCR, do not contain any explicit
reference to persons with disabilities.
The Permanent Forum on Indigenous Issues
serves as an advisory body to the Economic Supervision
and Social Council, with a mandate to In 1994, the position of Special Rapporteur
discuss indigenous issues relating to on Disability of the United Nations
economic and social development, culture, Commission for Social Development was
the environment, education, health and established. The task of the Special
human rights. The Forum focuses on the Rapporteur is to monitor implementation of
following issues: a) to provide advice and the Standard Rules on the Equalisation of
recommendations on indigenous issues to Opportunities for Persons with
the Council, as well as to programmes, Disabilities and to advance the status of
funds and agencies of the UN through the people with disabilities throughout the
Council; b) to raise awareness and promote world. Furthermore, under the auspices of
the UN, the Division for Social Policy and African Charter on the Rights of Women in
Development of the United Nations Africa sets out special protection for elderly
Secretariat is the focal point on matters women. Article 17 Protocol San
relating to disability. Salvador stipulates that everyone has the
right to special protection in old age and
3.6 Elderly Persons calls upon states to progressively provide
International Human Rights Standards suitable facilities, food and medical care for
In general, the rights stipulated for the elderly persons that lack them; to undertake
elderly in international instruments stem work programmes to enable the elderly to
from the principles of dignity and non- take part in productive activity; and to foster
discrimination. Neither the UDHR nor its establishment of social organisations aimed
derivatives, the ICCPR and ICESCR , at improving the quality of life of the
contain any explicit reference to older elderly. The Revised European Social
persons, but many provisions of these Charter sets out the right to social
instruments are of direct relevance to protection for the elderly in Article 23.
ensuring equal opportunities and the full According to this provision states parties
participation of the elderly. Although the undertake to adopt measures: a) to enable
rights of older persons are not referred to in the elderly to remain full members of
the Bill of Rights, the ICESCR Committee society for as long as possible by providing
expressly addresses the economic, social and adequate resources and information about
cultural rights of older persons in General available services; b) to enable the elderly to
Comment No. 6 - The economic, social and choose their life-style freely and live
cultural rights of older persons. independently for as long as possible by
providing adequate housing and services;
Three regional human rights instruments and c) to guarantee support for older persons
expressly mention older persons as a group living in institutions. In addition, the Charter
in need of special protection. In Article on Fundamental Rights of the European
18(4), the African Charter stipulates that the Union (2000) sets out the rights of the
aged shall have the right to measures of elderly ‘to lead a life of dignity and
special protection in keeping with their independence and to participate in social and
physical or moral needs. The Protocol to the cultural life’ (Article 25).
 Who is a refugee?

Supervision According to the 1951 Convention relating

to the Status of Refugees, a refugee is
The protection of elderly persons is a topic
someone who:
that is increasingly being addressed by
• Has a well-founded fear of
different treaty bodies. Several supervisory
persecution because of his/her
bodies are progressively developing the
o Race
application of their respective instruments to
o Religion
afford protection to this group and now
o Nationality
concluding observations frequently offer
o Membership in a particular
recommendations on the protection of
group, or
elderly persons (see, for example, the
o Political opinion;
Concluding Observations of the CESCR on
• Is outside his/her country of origins;
Jamaica E/2002/22 (2001); CEDAW
and
Committee on Iceland A/57/38 (2002) and
Is unable or unwilling to avail him/herself of
CERD Committee on Iraq
the protection of that country, or to return
CERD/C/304/Add. 28 (1997)).
there, for fear of persecution.

3.7 Refugees
International Human Rights Standards
In 1950, the Office of the United Nations
The 1951 Convention Relating to the Status
High Commissioner for Refugees (UNHCR)
of Refugees, as amended by the 1967
was created to protect and assist refugees,
Protocol Relating to the Status of Refugees,
and, in 1951, the United Nations adopted the
is the most important international
Convention Relating to the Status
instrument protecting the rights of refugees.
of Refugees (1951 Convention), which is
the cornerstone document of refugee In Article 33 of 1951 convention, the
protection. In addition, the Protocol principle of non-refoulement is established.
relating to the Status of Refugees (the 1967 This principle forbids states to expel or
Protocol) helped to widen the definition of a return a refugee, in any manner whatsoever,
refugee, as it lifted the time and geographic to the frontiers of territories where his/her
limits found in the 1951 Convention. life or freedom would be threatened on
account of race, religion, nationality, might suffer torture or other cruel, inhuman
membership of a particular social group or and degrading treatment or punishment.
political opinion (the non-refoulement Moreover, nearly all of ICCPR’s provisions
principle also encompasses non-rejection at apply to non-citizens.
the border and can oblige a state to accept a
person on its territory). It does not oblige a Article 3 of CAT provides for protection
state to grant the person asylum. The refugee from refoulement in situations where there is
may be expelled to another state where his a substantial risk of torture. The non-
life and freedom will not be in danger, refoulement provision under CAT is
provided that state is prepared to admit him. absolute. Unlike the non-refoulement
Granting of asylum may, however, be the provision of the 1951 Convention it is not
result of non-refoulement, if no other state is linked to cases where a person fears harm on
prepared to admit the refugee. account of race, religion, nationality,
membership of a particular social group, or
In addition to the 1951 Convention and the political opinion and it does not provide for
1967 Protocol, two regional instruments exceptions based on national security. This
have been adopted expanding the definition means that the prohibition of return applies
found in the 1951 Convention, the OAU to all persons regardless of their past
Convention Governing the Specific Aspects criminal conduct.
of Refugee Problems in Africa (1969) and
the Cartagena Declaration on Refugees CRC applies to all children without
(1984) (see textbox above). discrimination, including child refugees and
asylum seekers. CRC specifically stipulates
In addition to international and regional that every child seeking refugee status has a
refugee conventions, international human right to protection and humanitarian
rights law and international humanitarian assistance in the enjoyment of the rights set
law play a significant role in guaranteeing forth in the Convention, as well as other
international protection of refugees. conventions to which the state is party.

Article 7 ICCPR has been interpreted to Regional human rights conventions also
prohibit return to situations where the person establish important safeguards for refugees.
For example, Article 3 of European Protocol (Article II) bestow upon UNHCR
Convention has been interpreted by the responsibility for supervising
European Court as prohibiting return of implementation by states.
persons where there is a risk of torture while
Article 22(7) of the American Convention 3.8 Stateless person
recognises the right to seek and be granted Nationality and citizenship are fundamental
asylum and Article 22(8) prohibits elements of human security because they
refoulement. provide people with a sense of belonging
In humanitarian law, Article 44 of the and identity. They provide a legal basis for
Fourth Genena Convention Relative to the the exercise of many human rights. Persons
Protection of Civilian Persons in Time of without a nationality are in many countries
War deals specifically with refugees and denied numerous human rights that citizens
displaced persons. Moreover, the 1977 take for granted, like access to schools and
Additional Protocol which one provides that medical care, ownership of property,
refugees and stateless persons are to be marriage and foundation of a family and
protected under the provisions of Parts I and enjoyment of legal protection.
III of the Fourth Geneva Convention.
A stateless person is the person who is not
Supervision considered a national of any state under

UNHCR was created to provide operation of its law. Statelessness occurs for

international protection to refugees and to many different reasons. A person may loose

find durable solutions to refugee problems. her/his nationality and is not able to acquire

These functions include securing legal and a new one because of extended stay abroad

practical protection to refugees with and or because of marriage or dissolution of

through governments, overseeing the marriage to a person of a different

mobilisation and co-ordination of resources nationality (women are particularly

for the well-being and survival of refugees vulnerable). In the case of children, if they

and encouraging conditions in conflict zones are born to stateless persons or refugees, or

that will allow refugees to return voluntarily in some cases out of wedlock, they may be

to their countries of origin. Both the 1951 denied citizenship. Some individuals may

Convention (Article 35) and its 1967 find themselves stateless because of faulty
administrative practices, such as excessive established link with a state through birth or
fees or the failure to be notified of descent. It deals with cases of statelessness
registration or other obligations. Children resulting from, inter alia, a change of civil
who are not properly registered at birth can status, residence abroad, or the voluntary
easily become stateless, as they are not able renunciation of nationality. It also stipulates
to show where or to whom they were born. that children should be granted the
nationality of the state party in which a
parent had citizenship. The Convention
Internaional Human Rights Standards
prohibits states parties from depriving
The two primary international conventions
people of their nationalities on racial, ethnic,
on statelessness are the Convention relating
religious, or political grounds. The
to the Status of Stateless Persons (1954) and
Convention does not, however, oblige states
the Convention on the Reduction of
to grant nationality to stateless persons who
Statelessness (1961). Article 1 Convention
enter their territory, unless those persons
relating to the Status of Stateless Persons
already have strong connections with the
defines a stateless person as a person not
state and do not have any chance of
considered a national (or citizen) under the
acquiring a nationality elsewhere.
law of any state. In addition to providing a
definition to statelessness, the Convention
seeks to improve the status of stateless Supervision
persons and helps ensure that stateless Similar to the situation of IDPs, there is
persons enjoy fundamental rights and today no specific body that deals with the
freedoms without discrimination. It problem of statelessness, or that supervises
regulates, inter alia, the legal rights of the 1954 and 1961 statelessness
stateless persons, their access to work and conventions. In order to fill this vacuum,
welfare and urges states to facilitate their upon the entry into force of the Convention
assimilation and naturalisation. on the Reduction of Statelessness in 1975,
UNHCR was provisionally asked to assume
The Convention on the Reduction of the responsibilities foreseen in Article 11
Statelessness defines ways in which persons Convention on the Reduction of
who would otherwise be stateless can Statelessness ‘of a body to which a person
acquire or retain nationality through an claiming benefit of this convention may
apply for the examination of his claim and
for assistance in presenting it to the
appropriate authority’. However, no mention
was made of UNHCR’s competence with
regard to the Convention relating to the
Status of Stateless Persons and UNHCR was
not asked to assume any wider
responsibilities regarding statelessness
issues.
3.9 Migrant workers have access to interpreting services
Interantional Human Rights Standards and are not sentenced to
In 1990, the UNGA adopted the disproportionate penalties such as
International Convention on the Protection expulsion (Articles 16-20, 22).
of the Rights of All Migrant Workers and • Guaranteeing migrants’ equal access
Members of Their Families . The main to educational and social services
thrust of the Convention is that persons who (Articles 27-28, 30, 43-45, 54).
qualify as migrant workers under its • Ensuring that migrants have the right
provisions are entitled to enjoy their human to participate in trade unions
rights regardless of their legal status. The (Articles 26, 40).
Convention does not create new rights for • Ensuring that migrants can return to
migrants, but aims at guaranteeing equality their country of origin if they wish
of treatment and the same working to, that they are allowed to pay
conditions for migrants and nationals, as occasional visits, and that they are
well as guaranteeing the rights of migrants encouraged to maintain cultural links
to maintain ties to their countries of origin. (Articles 8, 31, 38).
The Convention aims at: • Guaranteeing migrants’ political
participation in the country of origin
• Preventing inhumane living and (Articles 41, 42).
working conditions, physical and • Ensuring migrants’ right to transfer
sexual abuse and degrading their earnings to their home country
treatment (Articles 10, 11, 25, 54). (Articles 32, 46-48).
• Guaranteeing migrants’ rights to Chapter Four: Culture, Globalization
freedom of thought, expression and and Human Rights
religion (Articles 12, 13).
Section One: Culture and Human
• Guaranteeing migrants’ access to
Rights
information on their rights (Articles
33, 37).
• Ensuring their right to legal equality.
This implies that migrant workers
are subject to correct procedures,
Universal Human Rights and cultural relativism could raise their own
Cultural Relativism cultural norms and particularities above

Cultural relativism is the assertion that international law and standards.

human values, far from being universal, vary

a great deal according to different cultural
Universal Human Rights and
perspectives. Some would apply this
International Law
relativism to the promotion, protection,
interpretation and application of human Largely through the ongoing work of the

rights which could be interpreted differently United Nations, the universality of human

within different cultural, ethnic and religious rights has been clearly established and

traditions. In other words, according to this recognized in international law. Human

view, human rights are culturally relative rights are emphasized among the purposes

rather than universal. of the United Nations as proclaimed in its

Charter, which states that human rights are
Taken to its extreme, this relativism would
"for all without distinction". Human rights
pose a dangerous threat to the effectiveness
are the natural-born rights for every human
of international law and the international
being, universally. They are not privileges.
system of human rights that has been
painstakingly constructed over the decades.
The Charter further commits the United
If cultural tradition alone governs State’s
Nations and all Member States to action
compliance with international standards,
promoting "universal respect for, and
then widespread disregard, abuse and
observance of, human rights and
violation of human rights would be given
fundamental freedoms".
legitimacy.
UDHR, ICCPR, ICESCR are also recognize

Accordingly, the promotion and protection universality of human rights.

of human rights perceived as culturally Human rights are common standard of all

relative would only be subject to State human beings.

discretion, rather than international legal

imperative. By rejecting or disregarding The legal obligation is reaffirmed for all

their legal obligation to promote and protect states to promote "universal respect for, and

universal human rights, States advocating observance and protection of, all human
rights and fundamental freedoms for all". It human rights on the grounds of cultural
is clearly stated that the obligation of States distinction is discriminatory. Human rights
is to promote universal respect for, and are intended for everyone, in every culture.
observance of, human rights. Not selective, Human Rights, Cultural Integrity
not relative, but universal respect, and Diversity
observance and protection. Universal human rights do not impose one
cultural standard, rather one legal standard
Furthermore, the obligation is established of minimum protection necessary for human
for all States, in accordance with the Charter dignity. As a legal standard adopted through
of the United Nations and other instruments the United Nations, universal human rights
of human rights and international law. No represent the hard-won consensus of the
State is exempt from this obligation. All international community, not the cultural
Member States of the United Nations have a imperialism of any particular region or set of
legal obligation to promote and protect traditions.
human rights, regardless of particular Inherent Flexibility
cultural perspectives. Universal human Out of this process, universal human rights
rights protection and promotion are asserted emerge with sufficient flexibility to respect
in the Vienna Declaration as the "first and protect cultural diversity and integrity.
responsibility" of all Governments. The flexibility of human rights to be
relevant to diverse cultures is facilitated by
Everyone is entitled to human rights without the establishment of minimum standards and
discrimination of any kind. The non- the incorporation of cultural rights.
discrimination principle is a fundamental Cultural Rights
rule of international law. This means that Every human being has the right to culture,
human rights are for all human beings, including the right to enjoy and develop
regardless of "race, colour, sex, language, cultural life and identity. Cultural rights,
religion, political or other opinion, national however, are not unlimited. The right to
or social origin, property, birth or other culture is limited at the point at which it
status". Non-discrimination protects infringes another human right. No right can
individuals and groups against the denial be used at the expense or destruction of
and violation of their human rights. To deny
another, in accordance with international CHAPTER Five: RESPONSES TO
law.
GRAVE VIOLATION OF HUMAN
Cultural rights do not justify torture, murder,
RIGHTS
genocide, discrimination on grounds of sex,
Mostly, the systematic & serious violations
race, language or religion, or violation of
were/are committed by State officials as an
any of the other universal human rights and
instrument of achieving some policy, e.g.,
fundamental freedoms established in
crushing opposition & sustaining their
international law. Any attempts to justify
power, maintaining territorial integrity & the
such violations on the basis of culture have
like. The serious & systematic violations in
no validity under international law.
Chile during the Pinochet regime, Uganda
during the Id Amine regime, South Africa
A Cultural Context
during the Appartied regime, in Ethiopia
The argument of cultural relativism
during the Dergue regime were all
frequently includes or leads to the assertion
committed as part of State policy to achieve
that traditional culture is sufficient to protect
some result.
human dignity, and therefore universal
human rights are unnecessary. Furthermore,
Section One: National responses -
the argument continues, universal human
Transitional Justice
rights can be intrusive and disruptive to
It is an accepted principle that violations of
traditional protection of human life, liberty
rights shall first be addressed at national
and security.
level. This holds true even in case of
Traditional culture is not a substitute for
systematic & gross violations. Thus, the
human rights; it is a cultural context in
perpetrators of such violations/crimes shall
which human rights must be established,
be brought to justice at national level. The
integrated, promoted and protected. Human
international system of addressing such
rights must be approached in a way that is
violations becomes relevant if the domestic
meaningful and relevant in diverse cultural
system is unable /unwilling to provide
contexts.
remedies.

The term transitional justice has two

meanings. In one sense, it means justice at
the time of transition. It may also be It is generally suggested that justice shall be
understood as justice in transition it self, i.e., rendered in order for a society to break with
referring to the idea that our conception of the past & move forward.
justice is not static but dynamic. We use the
first meaning for the purpose of this 2. The need to know the truth. The
teaching material. We use the term society in general, and victims or
transitional justice broadly to signify the relatives in particular, wants to know
mechanisms by which societies in transition who among its members did
deal with past violations. It thus represents participate in the violations. As the
the various modalities of addressing past past violations were committed
violations. systematically & grossly, the society,
even victims/relatives, may not know
Transitional justice has to address the needs all that happened & all the
of societies in transition. Societies in perpetrators & the degree of their
transition may have variety of participation. Above all society
needs/concerns related to past violations. needs to know why the violations
The three main needs that arise in societies happened. Thus, the need to know
in transition are the following: who did what & why is one of the
basic issues that may arise at the
1. The need for justice. Victims of time of transition. It is claimed that
violations or their relatives and the knowing the truth about the past is
society at large need to see the crucial to build a viable, rights-
perpetrators of the violations are respecting & democratic society as
brought to justice. It is thus well as to ensure that violations
necessary that transitional justice wouldn’t happen again. Some
should provide a mechanism by commentators, however, argue that
which this need may be satisfied. knowing the truth about is not
One of the questions in this respect desirable as it may lead to further
is: What does justice mean? suspicion & animosity between those
that claim to be victims & their
relatives on the one hand and alleged
 perpetrators, who are usually former The modalities of transitional Justice
officials, & their relatives (& even There are, however, certain modalities of
supporters) on the other hand, and transitional justice that are well known &
thereby motivating revenge & well utilized by different socialites. Three of
leading to further conflict. They thus them are worth discussing because of their
suggest it is better to forget the past usual application.
& move forward. Others criticize this 1. Prosecution. This is one of the
by arguing society cannot move modalities of transitional justice
forward without knowing the past. often employed by societies to
Some rather propose ‘you shall never address past violations. This process
forget but forgive’. involves the apprehension,
3. The need for conciliation. Society investigation & prosecution of
may also need to create conciliation alleged perpetrators, and imposition
among its members. of penalty if found guilty. Thus, it
Thus, the main needs of societies in involves the apprehension of
transition regarding past violations are the perpetrators, the gathering of
need for justice, the need to know the truth, evidence, and the filing of criminal
& the need for conciliation. However, we charges, judicial hearing and
have to make two remarks here. First, these decision according to the law. The
needs are not exclusive of each other. In main concern here is to maintain the
other words, they may overlap. Secondly, rule of law, which is considered as
these needs are not exhaustive, i.e., there the cornerstone of democracy.
may be other needs for example, the need
for compensation. These other needs may, 2. Truth & reconciliation. This
however, be subsumed under any of the modality is the mechanism by which
above main needs. For example, the need of a society may identify truth about the
victims/relatives for compensation may be past & create conciliation among its
considered as the need for justice. To members. For this purpose, societies
conclude, societies should have a may establish truth commissions or
mechanism of addressing these different truth and reconciliation
needs. commissions. The main priority of
 this modality is to reveal truths about are inexact; pardons, like amenities,
the past, create conciliation, and can be used to foreclose
achieve a successful transition. prosecutions, and amnesties
However, there are variations among sometimes cover persons serving
these commission on their mandate prison terms’.
& emphasis. Usually, the
However, these modalities are neither
commission/authorized organ seeks
exhaustive nor exclusive to each other.
& documents the truth about the past
by this procedure. Members of the
society are encouraged to come Section Two: International Responses

forward and speak their stories. The international response is premised on

Thus, both victims/relatives & the conviction that such violations

perpetrators give their statements and constitutes crimes against the whole

such other information relating to the nations/international community, and results

past. from the inadequacy/ non-existence of

national responses. Thus, certain crimes do
3. Amnesty. The third modality of constitute international crimes for which the
transitional justice is amnesty. The perpetrators are held individually
term amnesty refers to an official act, responsible. The criminal responsibility of
usually through law, prospectively individuals under international law
barring prosecutions of a class of contributes to fight impunity, however,
persons for a particular set of actions limited it is. The underlying idea is that the
or events. Amnesty is often perpetrators of such crime shall not go free.
contrasted with pardons, which The mechanism by which international law
usually refer to the exemption of ensures that has taken different forms. These
criminals from serving all or part of include: (1) the recognition & application of
their sentences but do not expunge the principle of universal jurisdiction, (2)
the conviction. It is stated that prosecution and trial by ad hoc international
amnesties shield from prosecution tribunal, and (3) prosecution & trial by a
and are not pardons. However, it is permanent international tribunal called the
commented that ‘these distinctions International Criminal Court.
 (1) Application of the principle of Nuremberg set out international crimes
Universal Jurisdiction. issuing from both treaty law & customary
The principle of universal jurisdiction is law (crimes against peace, war crimes &
classically defined as ‘a legal principle crimes against humanity). Later treaties &
allowing or requiring a State to bring international conventions specified various
criminal proceedings in respect of certain forms of prohibited behaviour recognized as
crimes irrespective of the location of the international crimes. Principle 2 of the
crime and the nationality of the perpetrator Princeton Principles on Universal
or the victim’. This principle is said to Jurisdiction reads: (1) for purpose of these
derogate from the ordinary rules of criminal principles, serious crimes under
jurisdiction requiring a territorial or personal international law include (i) piracy, (ii)
link with the crime, the perpetrator or the slavery, (iii) war crimes, (iv), crimes against
victim. The rationale behind it is broader: ‘ peace, (v) crimes against humanity, (vi)
it is based on the notion that certain crimes genocide, and (vii) torture. Paragraph 2
are so harmful to international interests that provides the application of universal
states are entitled-and even obliged to bring jurisdiction the crimes listed in paragraph 1
proceedings against the perpetrator, is without prejudice to the application of
regardless of the crime and the nationality of universal jurisdiction to other crimes under
the perpetrator or the victim’. Universal international law.
jurisdiction allows for the trial of
international crimes committed by anybody, The derogation from the ordinary rules of
anywhere in the world. There are offences criminal jurisdiction is traditionally justified
recognized by international law as by two main ideas. First, some crimes are so
punishable by any country. Traditionally, grave that they harm the entire international
piracy on the high seas is regarded as one of community. Secondly, no safe havens must
the first international crimes, grounded on be available for those who committed them.
the violation of international customary law.

(2) Prosecution and trial by Ad hoc

After the Second World War, the London
tribunal
Agreement of 8 August 1945 establishing
Another mechanism by which the
the International Military Tribunal at
international community has been
responding to gross violations is through One of the most significant developments
prosecution of perpetrators before an made in the direction of dealing with grave
international tribunal. Until recently, violations & fighting impunity is the
international prosecution has primarily been establishment of the International Criminal
conducted before ad hoc tribunal. These Court. It is established pursuant to the Rome
tribunals have specific/limited jurisdiction Statute of the International Criminal Court,
over crimes listed under the instrument which was adopted at a diplomatic
creating the tribunal. The first among these conference in Rome, on 17 July 1998. The
tribunals is the International Military Statute entered in to force on 1 July 2002
Tribunal at Nuremberg established by the and the Court is now fully functional at its
London Agreement of August 1945. The seat in The Hague. Governments, legal
London Agreement has defined the experts and civil society all hailed the treaty
jurisdiction of the tribunal. Many Nazi as the most significant development in
officials were prosecuted before this international law since the adoption of the
tribunal. Other ad hoc tribunal includes the United Nations Charter.
International Criminal Tribunal for the The Rome Statute provides for the creation
former Yugoslavia & for Rwanda (ICTY & of a permanent international criminal court
ICTR respectively). These tribunals are to prosecute people accused of genocide,
established pursuant to the Decision of the crimes against humanity and war crimes.
UN Security Council. The Statutes The Court will be of particular importance
establishing these tribunals set out the because:
crimes that fall with in the jurisdiction of
each tribunal. These are ad hoc tribunal • It will serve as a permanent deterrent
established to address certain crimes to people considering these crimes.
committed in certain geographic location or In most cases in the last fifty years
during specific period. However, we can international mechanisms to
understand that this is employed as a means prosecute people accused of these
of ending impunity. crimes have only been set up after
the crimes have occurred;
(3) The procedure under the ICC • It will have a much wider
jurisdiction than existing ad hoc
 tribunals. For example, the work of main body fails to exercise its primary
the International Criminal Tribunals function. The principle of complementarity
for the former Yugoslavia and in international criminal law requires the
Rwanda have been limited to crimes existence of both national and international
committed in a particular territory criminal justice systems functioning in a
while crimes committed in other subsidiary manner for curbing crimes of
territories have not been addressed; international law: when the former fails to
and do so, the latter intervenes and ensures that
• The Statute contains advanced the perpetrators do not go unpunished.
provisions for the protection of
victims from retraumatization as well
as provision that the Court may order
a convicted person to provide
reparation, in the form of
compensation, restitution,
rehabilitation, satisfaction,
guarantees of non-repetition, and any
other type of reparation the Court
deems appropriate.
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
complemntarity. The principle of
complementarity can be defined as a
functional principle aimed at granting
jurisdiction to a subsidiary body when the