ISLAMIC UNIVERSITY IN UGANDA

FACULTY OF LAW
BACHELOR OF LAWS (LLB) SEMESTER I

INTERNATIONAL HUMAN RIGHTS LAW NOTES

LECTURE TIME: THURSDAY 4:00PM-7:00PM

DR. HANIFA TYAKAGIRE

Historical and theoretical / philosophical dimensions of human rights

Communalism
Communal mode of production refers to a stage where the natural economy prevailed, where
there is no distinction between sexes or division of hour where there are no classes (classless
kind offices men and women are equal and basically population is not for user values. The
concept of private property can exist and no domination of one gap by another.

At this time the concept of Human rights can’t exist because there was no oppression based on
power against oppression of rights enjoyed by Individuals ideas like freedom of movement, right
to property, torture had no meaning:-

Feudalism: - where the concept of Human rights has first noticed. This is a system of
government based on feudal mode of governance where one has feudal fords on one hand and
slaves. Feudalism is expressed largely by the existence of a dominant class of individuals’ i.e.
mobility who own the means of production including land: Also they own serfs who own
nothing but their labour. During this period, there is emergency of private property i.e. one group
owns slaves and others don’t there are contractors that emerged during this period i.e. oppression
of one group over another and the slaves were the most affected (distinct own property, had no
freedom of movement) Communalism

During this period, a few philosophers emerged and they articulated a therefore based on Natural
law. This therefore advances the nation that Human beings derive their livelihood on the divine
source and that the Human beings can do little to alter the traditions of society.

They believe that it’s who has conferred rights upon individuals on it fights can’t be taken away
by fellow men. Philosophers such as Aristotle, Thomas Acquinas believed very much in the
concept of natural rights that originate on advertise source from a Human rights perspective, this
therefore of law has some problems:-

(a) The theory is premised on the religious background. However, He developed of religion of
the concept of God is not always linked to Human rights. 1king at teachings of the bible,
some are oppressive not consistent with Human rights e.g. Happy are the poor and what God
has ordinary, no man can destroy it.
Natural law theory articulates the thinking that what God has ordained can’t be challenged.
In this way it reinforces the ideology, and supremacy of the ruling classes.
(b) Although the natural law theory is a ways pointed to as one of the pillars of H/Rs. If negated
its applicability and universality by asserting that everyone is equal before God, it denies the
fact that there are social inequalities on earth which are produced not before God but man
himself.
(c) Natural law offers no alternative vision of society by asserting that social relations are
preordained can’t be challenged.
(d) The theory asserts that H/Rs (human rights) are inalienable i.e. they can’t be taken away.
Natural law expresses itself differently through different periods and in spite of all the
criticism that are labeled to exist, it is recognized as the source of the idea of equality, the
fact that H/Rs are inherent.
The potential of Natural law survival over the ages represents its dual character as both a
pool of liberation in the hands of the oppressed and on the other hand of law in so as they are
developed by states and are accepted as part of International law.
In Historical terms, positivism represents the final stage in the consolidation of the states and
separation between the citizen and the states. The primary source of law was no longer seen
as some divine source but rather as the product of the sovereign/ the state. It also provided for
definite means of ascertaining the full parameters of state power. In various forms, positivism
continues to develop considerable away in the minds of jurists for philosophers in the
interpretation of legal principles.
The criticism that cause analyzed

(a) Positivism was developed to support capitalism and acc. To the positivists the law is to be
respected regardless of its consequences of morality or immorality. In this way positivism and
dictatorships go hand in hand.

(b)Positivism ignores the fact that the law is a product of political, social of immoral systems,
therefore a law which doesn’t embody these values and the law may negate. -H/Rs may have
respect or recognition tender the positivist theory which is wrong. If the law says that there is no
right to life, the positivists interprets this as such leaving behind or aside the moral issues of such
a law the only avenues will be through the reform of legal structure.

(c) The theory is based in form of the status quo regardless of the laws that are enacted. In a
society which has oppression with its legal regime, the only question posed by positivists is the
extent to which that law conforms to existing rules and not whether the rules themselves conform
to the aspirations of the majority of society.

Human rights in the period of monopoly capital with decay of feudalism, the mode of
production, social formation was monopoly. Capital or social capital. This period be said the
period in which the issues human rights became for granted within the political economy of the
European states and the new industrial class has established itself as the paramount economic
and pol power.

At the same time, this period is largely characterized by relationship between individuals and the
capitalist or industrial society with the emergency of industry, the issue of cheap at the
government and capitalism thrived on the exploitation labour because it operates on the principle
of maximizing and minimizing expenses with the cost of labour.

At the same time rights of women and black people especially working in the U.S at that time
were infringed during colonialism, their rights were violated this achieved 2 things.

1. Socialization of western ideals throughout the social values and culture exploited.
2. If sought the emergency of new forms of rights including the right of self-determination as
well as social and cultural norms.
What did monopoly capitalism entail?

1. It sought the spread of western liberal values, culture as well as systems of government to
colonize.
2. Also capitalism, in order to stop the increase of the profits at home were forced to search for
new source raw materials, cheap labour and market for their goods.
At an ideological level, imperialism and this followed it has justified under a mission to a
Age civilization through Christianity with aimed at Good news’’, Civilization of the natives.
Imperialism was itself a gross violation of human because one is deprived of their right to
self-determination it destroyed indigenous system of Government and social organs it also
subjected the oppressed colonized people to inhuman methods of exploitation including
forced labor, slavery etc.
During colonialism, this issue of H/Rs was never the agenda, instead it was characterized by
oppression, theft and cruel treatments. The colonial state existed simply to guarantee the
exploitation of the colony and its people and this meant the existence of the irreconcilable
conflict between the colonial masters and the colonized people.
However, while imperialism achieved the most sophicated forms of H/Rs violations, it also
produced the reverse especially resistance, domination, oppression by the colonized people,
but after the emergency of new forms and demands, the 1917 revolution in Russia, as well as
the 2nd world war played a great role in this process.
The Russian revolution gave rise to 2 elements that have characterized the H/Rs debts in
modern times and include
a) The right to self-determination.
b) The promotion of Economic, social and cultural rights.
For colonized people the 1st aspect of self-determination was of particular impact because it
represented the means by an effective challenge would be laid in the colonial order and the
attainance of political independence.
In Africa, this issue of self-determination was used or contributed to the growth of African
nationalism the Nationalists such as Nkwame Nkrumah, Kabalega, Mutesa. But as the reality
of colonial domination is a system of oppression and denial of H/Rs became more and more
 current, sought the realization that fundamental H/Rs shouldn’t be derived forever. Thus with
the independence of India in 1947, the wave of freedom could no longer be held back. The
minister (Harrold Wilson) talked about ‘’wind of change’’
Globalization has both positive and negative trends.
-Trafficking of drugs/Humans
-Environmental waste
-Proliferation of arms/ leading to conflict / wars etc.
-Exploitation of child /labour workers discrimination etc.
-Imposition of policies on other cities e.g. privatization liberation, assumption of fair
competition cost of pattern high SAP’s < structural Adjustment programs-affect
realization of rights
-Tended to benefit the more industrialized cities then under developed cities
NB
-Globalization is imperialism on a new form
Negative
-Promotion of H/Rs across the globe.
-Possible to access inform fairly quickly e.g. [Link] rights
[Link].<
-FDI (Foreign direct investments) many countries have benefited from this through
employment.
-Democratization and good governance because of spread of own ideas not only in but
also in Asia etc., Good governance until rule of law, constitutionalism.

UNIVERSALITY OF HUMAN RIGHTS

One of the intense debates in the H/Rs movement involves the universal or relative, character of
human rights those who advocate for universality of H/Rs believe that human rights should be
the same and should be enjoyed by all people in all places and at all times. The advocates of
cultural relativism claim that rights and rules about morality should depend on the cultural
context of any given society of a given time. To them, the world contains an impressive
diversity in views about right and wrong and that linked to the diverse underlying cultures.
The relatives argue strongly that H/Rs are cultural imperialism, a sign of western arrogance that
imposed upon other continents by the word. Universalization of norms is said to destroy cultures
and norms and hence aims to homogenization in the modern world. The realization advanced for
university of the H/Rs include.

1) Many countries in the world have ratified international treaties on Human rights including the
U.D.H.R and Intl convection on the civil and political rights (ICCPR)

2.) Because principles of H/Rs have been embraced states in their domestic legislation and
national constitution e.g. chapter 4 of the 1995 Uganda constitution.

3) Because the principle of H/Rs are always referred to a quoted in International bodies such as
the U.N general Assembly
They are also reflected in resolutions of international bodies.
4) There are arguments by people who believe in H/Rs that H/Rs principles enshrined in the
U.D.H.R have between parts of the customary international law. H/E, notwithstanding UNC and
UDHR, universal consensus on the concept of H/Rs and context of fundamental freedom doesn’t
exist.

H/Rs continue to be perceived as written liberal the values and further that the European and
American heritage fundamental to their basic principles.

In his work schwelb argues that the roots of U.D.H.R in the legal and pol. thoughts of the 17 th to
the 20th century in France, England and the United States. It is further emphasized that other
states didn’t participate in the creation of H/Rs concepts to argue that H/R have a universal
strategies as to contradict reality.

Relativist say that H/Rs are attempt by the western economies to improve western ideology by
internationalizing their belief and values. They did this without due respect to phenomenon such
as religion, politics and cultures of other systems.

The majority of African countries are unable in practice to accept the western liberal bias of the
U.D.H.R of the I.C.C.P.R. For them, the priority may be the urgent need to improve their
developing economies and not infrastructure and therefore to them ECOSOC right are more
important than the civil and political rights.
Consequently the app in non-western countries of western concept in the U.D.H.R has frequently
met resistance from the societies the states are not easily implement the rights of the rights are
not acceptable in society. It is frequently argued that many non-western state have incorporated
the value of rights in the UDHR into their constitutions and into characters of regional such as
the organization of American states (OAS), former O.A.U and currently A.U, hence giving these
rights universal legal standing but such a claim ignores several factors that vitiate these rights
that render them completely and substantively useless.

Shivji argues that the dominance of the United States over Latin America especially in 1948
when the organization of American states (OAS) founded as well-known equally known is the
western paternalism that influence former colonies in Africa and Asia during constitutional
drafting in the wake of Independence. For the colonies, the west minister model was the sine qua
non for most constitutions before independence.

In turn, the regional charters were also written under external pressure and they further represent
the principle in the UDHR as the U.N.C. Taking an e.g. of the former O.A.U charter, it stated in
its preamble that adheres to the principles of UNC and U.D.H.R. Yet as the know the principle of
contained in the U.D.H.R underlie certain western philosophers and they include the democratic
and liberal values based on the nation of individuals possessed of certain inalienable rights in
nature and further the nation that political values are distinct from economic , social and cultural
values. All the above can be traced directly in ENGLAND, France and the U.S.A.

The declaration was drafted on the assumption that western values are paramount and ought to
be extended to the non-western world. The reality is that most of the values and philosophers are
limited in the content of the non-western world and hence can only come into existence after a
stable economic life which a minimum of economic prosperity for any given society. H/E very
often the pursuits of economic and social goals have marginalized and compromised the rights of
the individual in the name of development.

In conclusion, one can say that the relation of H/Rs can only be attained with due to regard to
cultural patterns, differing nations of human nature and the different in social and political goals.
There is need to reconceptualise and recontextualise H/Rs in order for it to be a universal norm.
THE BILL OF RIGHTS
U.D.H.R
I.C.C.P.R
I.C.E.S.C.R
Following the conclusion of the UDHR, the issue of bill became of concern and those led to
some controversy in the East and West due to ideological different countries in the Eastern block
advocated for social, Economic and cultural rights while other countries e.g. America stated that
the above rights could not be the binding of Intl instruments they also argued on their national
laws, those rights were not guaranteed. The reasons were based on the fact that the issue of
colonialism and self-determination also the justiciable nature i.e. whether or not a part right can
be subject of justice. The third controversy was whether or not provisions of the UDHR were
adequate and substantive as far as H/Rs were concerned of the Economic, social and cultural
rights, there were questions whether there should be special provisions on countries that were
still under colonization and whose duty was it to show that these H/Rs were protected and
enforced.

The biggest ideological question was whether or not Econ, social and cultural rights (ECOSOC)
as well as civil and pol. Rights should contained in one document. The general Assembly was of
the view that they should be in one document but later decided that they should have to separate
instruments.

 The reason given for this position was that the 2 sets of rights were essentially different
and stated -That pol. rights (CIVPOL) were capable of immediate implementation
whereas ECOSOC could be implemented immediately based on the availability of
resources.
 They also said that CIVPOL rights protected the individual against unlawful and unjust
action from state authorities while ECOSOC would have to be promoted through positive
state action. Because of these reasons they argued that 2 sets of rights would require the
method of Int’l implementation

The UN general Assembly and revolution adopted the idea of 2 covenants on the proposition that
the Enjoyment of CIVPOL freedoms as well as ECOSOC rights are interconnected and
interdependent. There were advantages and disadvantage.
These Advantages include: This position maintained the absolute character of CIVPOL rights
and also strengthened the International position:

Secondly, this would encourage a bolder approach to the economic, social and cultural rights.

The principle disadvantage was that it created university about the equality of the 2 covenants
and led to a no of provisions in the 2 instruments which has contributed the interpretational
difficulties.

CLASSIFICATION OF RIGHTS AND FREEDOMS IN MODERN

Classification and Demarcation of Human Rights
Human rights can be classified on to various categories. The most distinct is that between
CIVPOL rights and ECOSOL rights on the other hand the UDHR has both these sets of rights in
one document.

However, when the International Bill of rights was agreed upon, it was decided to split these 2
categories of H/Rs into 2 separate documents i.e. I.C.C.P.R and I.C.E.S.C.R. The rationale for
this division was that the 2 sets of rights were differently limitation measures were casted for. It
is H/E questionable whether a clear distinction can be made between ECOSOC and CIVPOL
rights, CIVPOL rights include.

The right to life, liberty and security of the Human person; The right to fair trial; right to privacy;
freedoms of religion, opinion, Expression, movement, right to assembly and Association and the
right to political participation and freedom from torture.

ECOSOC include: The right work; trade through freedoms:

The right to adequate standard of living with the include food, clothing for increasing, the right
to health care the right of Education; and the right to take part in cultural people

 -The first generation rights are CIVPOL rights

 -The 2nd generation rights are ECOSOC rights
 -The 3rd generation are the right to have etc.
The argument is one generation of rights is important than the other but these rights cannot be
enjoyed alone. Because H/Rs are interdependent there shouldn’t be a class of 1 st generation, 2nd
generation rights and 3rd generation.
Is there an international duty for developed countries to support countries like Uganda which are
underdeveloped.
There are some scholars who argue that this duty exists.
The Int’l Agency for developed exists the DANIDA.

Classification of H/Rs/ Generation of Rights

The idea was propagated by Dr..Karen Vasae in his book ‘The Generation of rights’ the
categorization was mainly based on findings that received when each category of rights came its
place.

The first generation right are civil and political rights referred to as BLUE rights. These rights
were mainly advocated by the capitalists so they include the right to associate , assemble, life,
freedom from torture, freedom of movement etc.

The obligation of the state in this regard is negative thus means that government has to abstain
from derogating from the rights e.g. if can’t stop people from enjoying the rights . To note that
these are 1st generation rights because they require little resources to be enforced.

Second generation are the Econ. Social and cultural rights (RED). They include the rights work,
property etc. These rights were advocated by communists. The nature of its obligation of the
state is positive i.e. government has a positive duty to ensure the enjoyment of those rights e.g.
building schools to fulfill the right be Education provide employment right to work facilitate
cultural institutions in a bid to fulfill the right to culture.
These rights; require Tremendous resources.

NOTE: 2nd generation right and immediately be enjoyed their enjoyment is gradual or
progressive or the other hand civil and pol. Rights can be immediately enjoyed.

In most cases enjoyed of Econ, social and cultural rights is subject to availability of resources.

Third generation right are group / solidarity rights. They can only be enjoyed if an individual in
the content of the community that include right to peace clean environment of development.
Note that, 3rd generation rights have been congested. The charter in human people’s right is the
only document that has these three generation of rights in a single content.
INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (ICCPR)
This covenant together the ICESCR were adopted by the U.N in the general assembly in 1966. It
took 10 years from 1966 before the 35 states ranged them i.e. the number is required in terms of
countries that sine parties it created a new binding legal regime of H/Rs internationally, and
between the states that had ratified the treaty; the issues relating to the compliance of the rights
in those treaties no matter of Int’l concern and thus they were no longer matters with their
domestic jurisdiction.

The list of civil and political. Rights (I.C.C.P.R) are entailed in a more juridical way more than
the universal deduction of H/Rs i.e. from a legal point view.

The I.C.C.P.R has a protocol, it has 2 protocols namely the individual promulgations as the first
optional protocol. The preamble 10 the covenant sets out broad terms on the nature and content
of the principles of Human rights contained their natural wealth and resources and the duty to
promote the right of self determination

The 2nd part of the covenant (Art 2-5) stipulates the right of states and the extent of their
expectations to individuals.

DUTIES OF STATES UNDER THE COVENANT

These are outlined in Art 2 the provides that each state party to the present covenant universities
to restrict and to ensure to all individuals with the rights territory and subject covenant out
discrimination this provision is supplemented by Art 2(2) that requires state parties to adopt such
legislature on livers measures as they deem necessary to give effect to the rights guaranteed in
the covenant.

Phrases in Article 2(i)

[Link] duty to protect and to ensure’ under this article states have an immediate duty or obligation
to respect and ensure the rights in the treaty or in the covenant as well as to take whatever other
measures necessary to bring about that result) this covers government measure/state action by
any official of the government to any level.

The phrase ‘to Ensure’ is much broader and extent to an obligation for states to take whatever
measures that are necessary to enable individuals to enjoy or exercise the rights guaranteed in
the covenant including the removal of obstacles whether public, or private to the enjoyment of
these rights. These measures may include disciplining state officials, improvements in the
administration of justice, ensuring that there is freedom of speech and access in the media.

2) Each states undertakes ensure and protect all individual rights. This phrase has been
interpreted to mean all natural persons corporations and other legal entities may not claim rights
under the ICCPR. This both contrasts to that of the European convention on H/Rs which refers
not to everybody all individuals but to every one means that co-operations, group if individuals
etc. may claim the rights under the covenant.

3) The Article refers to all individuals ‘’with its territory subject to its jurisdiction; for instance
does a person who is provision of Art 2 / the rights in the convection. The answer to this is that
the state party must be deemed to have assumed the obligation to respect the and en sure the
rights of the covenant to both individuals which in its territory for a subject to its jurisdiction,
thus even if an individual is subject to the states jurisdiction is outside the territory, this
obligation still holds.

H/E, this is subject to the limitation that state parties do not undertake to protect individuals’
subject it their jurisdiction against violations committed against them while they are abroad.

Secondly, this obligation of states to all individuals applies to non-nationals residing in the
territory of the state party e.g. if you are a Congolese, Somali, living in Uganda as a state party in
the ICCPR has an obligation to ensure and protect your rights in Uganda.

What is meant by ‘’territory or jurisdiction this phrase refers to areas where a state party is in
actual control of all or that part of the territory of anor state.

There are situations, where a state party may be boundaries that state is respectively for the
violation of human rights in that area even outside its boundaries.

This introduction applies even if no formal annexation is provided as long as you have effective
control.

Article 3 relate to non – discrimination therefore there is a duty not to discriminate receiving
level race, sex etc.
Art for related/ provides for the derogation clause (i.e. department from) There are certain
situations where parties are allowed to department from their obligations as entitled in for the
right to derogate with provided for in order a member state to copy with situations of public
emergencies that threaten the life of a nation there are 3 tests that must be fulfilled before a entry
is allowed to derogate;

i) It must be strictly be required by the demands at the moment.

ii) The derogation must not be a conflict which other Int’l states

iii) The derogation must not be made in a manner that is discriminatory to one another.

Art 4 provides for phrase public emergency e.g. Natural disaster such as outbreak of disease. The
covenant does not desire the world public emergency but be get from THE LAWLESS
CASE,THE GREEK CASE (1969) with interpreted a similar provision under the European
covenant whose Article was Art 15 (which provides in that in terms of over’ or other public
emergency …) the above cases interpreted this provision for it was held that there must be theft
character for something it isn’t to a public emergency, i.e. it must be actual or imminent;
secondly, the effect must involve a whole nation; Thirdly the continuation of the community life
exceptional a normal measures must be inadequate to address such an exceptional danger.

The other aspect of Art 4 is that this public emergency must be officially proclaimed this
suggests that the domestic legality of the proclamation is not the test, there must be public
announcement.

Also under Art 4 (3) there is an obligation 4 state parties to immediately inform other states
parties of the specific provision from which it intends to derogate or it has derogated. This would
imply that notice must be given almost simultaneously (at the same time) which the proclamation
of the emergency.

Under Art 4 (2) there are some rights that are not derogate even in situations of public
emergency may not derogated from Art 6 refers to right to life. Art 7 which refers to inhuman
degrading treatment, Art 8 (1 and 2) with refers a slavery, ART 11 for imprisonment of
convectional obligation, Arty 15 which talks about retrospective criminal sanctions, Art 16
(freedom of thought consensus Art 18. These non-derogable rights even under public emergency,
the state can’t derogate on them Art 18. These non-derogate must not be inconsistent which other
party states and must not be discriminatory.

This question of derogation has generated ac lot debate in the H/Rs field there are some scholars
who believe that allow countries to derogate water down or weaken the protection of H/Rs.
These scholars’ argues to the African character with does not provide for derogation. We can’t
guarantee that this provision should be removed because sometimes it is inevitable for states in a
situation of war to ensure that all their individuals enjoy human rights. He the African character
provides for some limitations, they are always subjected to public order etc. The application of
Int’l treaties is always implemented subject to the national laws as the national laws take
precedence. Unless the Int’l treaties and laws are affected in to the nations have then therefore
will always not operate.

The second additional protocol

The advantage of legal scholar views provides for a systemized method of addressing H/Rs
during these situations and omit it.

Secondly, countries that aim or wish to derogate from their rights know the scope of their
derogation

Thirdly, if these derogation clauses were not available, some characteristics most treaties the is
that derogation clauses water down the H/Rs regime as some characteristics may abuse this
provision on which of public emergency.

There are other forms of limitation of H/Rs

-Reservations (i.e. what the countries reserve when relating generation
-Claw back clauses and have advantage and disadvantage.
Rd: What are the various rights under past III has the ICCPR provides for and the past IV on
enforcement of the rights.

ENFORCEMENT OF RIGHTS UNDER ICCPR under past IV

This means know to put in practice/ realize the rights contained in the ICCPR ant the various
procedures one goes through committee (HRC) and confers upon if various functions that consist
of the Administration of the Reporting system (a system that requires states for port to the
committee) as well as the interstate mechanism where our country may lodge a complaints under
the 1st optional protocol. This 1st often states if those states are members or signatures to the
covenant.
-Introduction of U.P.E (eradicate poverty)
-Freedom of worship as controlled under constitution
-Government has allowed improved autonomy and regional governance (decentralization)

N.B
It is not enough to write such a report yet in practice it is illusory because there are challenges
met with should be included therein. Failures should be pointed out.
a) The issue of safe houses, limitation on foundation of speech insecurity in limited spaces.
Over the it’s the committee has developed a comprehensive set of reporting guidelines and
failures of dealing with these reports. These guidelines are designed to assist the states to comply
with their treaty obligations. And in examining these reports, the committee is assisted with
information provided by NGO’s etc. (L.K at the report of Uganda to the committee on the
Internet). Once the committee has on how the right in that country may be improved.

This is the 1st method of enforcement through periodic reports by state parties.

The 2nd way is under Art 41 which allows for states to make communications against others
states party if they obligations under the covenants e.g. if there are 3 states (Uganda, Kenya and
Tanzania) and all of them are partly to the covenant, and if Tanzania feels that Kenya is not
fulfilling its obligations, then it may file a report to the committee alleging this, but before
Tanzania files this communication, she must recognize the competence of the HRC. If Tanzania
has not recognized the competence of the committee, then if may not make a complaint against
another country.

In practice, this Art 4 has not worked as no country reported another 4 violation of human rights.

The 3rd ore is individual complaints which are provide3d 4 under the first optional protocol to
the covenant.

This protocol is a separate treaty for requires separate ratification. It supplements the measure of
implementation of the ICCPR. It enables private parties claiming to be victims of the violation of
H/Rs under the covenant to file individual communications/ complaints state parties to the
covenant that have ratified the protocol.

The committee deals with complaints under the F.O.P in 2 stages.

It must first pass the Admissibility of the community governed by Art 1, 2, 3 and 5 of the
protocol. Under Art 1 you must be a victim of the violation by state party under the covenant. Art
2 before common considered by committee, you must have exhausted all domestic remedies this
is implies because it is found under the African character, the European convention, American
covenant. If the average remedy in terms of courts are not independent i.e. operate on ruling
power, the one may not the burden to prove that these remedies are not average are on the person
claiming the violation. In Uganda the local remedies includes courts Uganda human rights
communication which has power to entertain complaints

The committee shall not entertain a community that is anonymous as a wear, Art 3, Art 5 (2) a
committee shall not consider communication from an individual unless it has ascertained the
matter examined by another procedure of International law
Expectations to the exhaustion of domestic remedies i.e. where the local remedies are relatively
long.

2)The second stage class which the merits of the complaint the committee brings the matter to
the attention of the state parties concerned the state has 6 months with those 6 months, the states
writes are response and complaints are presented to the H/RC as views . At the end of this,
where the committee has found a violation, it will advise that this art has been violated and a
ward the partly, these views are not binding as it is not mandatory for these views are not
implement them. These views are presented to the U.N gen .Assembly.

Look at report / communications from H/Rs library

No state would like to be a subject of discussion in this Int’l manner. In spite of this weak
mechanism, many states have tended to comply which the recommenders of the committee. In
recent years the committee has been able to gradually strengthen the effectiveness of this
mechanism by introducing interim measures to avoid or prevent irreparable damage to the victim
e.g. they issue an injunction: Also the committee requires states to indicate in their reports what
measures they have taken to give to the author of the community.
This issue on the second optional protocol to the ICCPR, the objective of this protocol is the
abolition in the death penalty. And it provides that once a state has ratified the protocol, no one
with in its jurisdiction.

2) Shall be executed also if a state has ratified, it must take all measures necessary to abolish
the death penalty with its jurisdiction art Uganda has not ratified this S.O.P but if has ratified the
protocol

The only reservation Art 2 may be made to the protocol would allow ‘’for the application of the
death penalty in time of a military nature committed during wartime Art 2 the protocol also
makes the right if guarantees non organization under Art of the covenant reference to Art 6 (2)

The S.O.P the jurisdiction of the HRC under Art 40 the covenant. It does so also for inter-state
complaints which regard to state that have recognized the commitment jurisdiction under Art 41
of the covenant 4 for individual complaint in cases involved state parties is the (first) optional
protocol. Second optional protocol, lk at Art 3-5.

INTERNATIONAL CONVENANT ECONOMIC, SOCIAL AND CULTURAL RIGHTS

This covenant came into force in 1966 and it achieved the codification of rights on Econ social
and cultural nature. This ECOSOC covenant also articulates a system of their implementation.
The covenant a long list of ECOSOC rights with the longer than that of the UDHR of recognizes
the following rights.

a) The right to work

b) The right to just and favorable conditions of work
c) The right to form and join trade towns
d) The right to social security
e) The right to the protections by the family
f) The right to an adequate stand of living, this is under Art 11 and covers the right to adequate
food, clothing and housing.
G) The right to the enjoyment of the highest standard of physical and mental health.
h)The right of everyone to Education as under Art 13 this elaborates the above right including
the right to primary education under Art 15.
The language in this covenant is somehow different from that need in the ICCPR. In the ICCPR,
the language used that the state shall do this..e.g. Art 4 provides that for the right to life the long
is very primitive and definitive of these rights. But the ICESCR is different as does not impose
mandatory obligation.

The states to the covenant undertake to ensure i.e. it is not an immediate obligation. Art 8, Art 9
etc. In addition, the right under this covenant are couched in general terms and does not limit
their scope this allows for one LK elsewhere for the interpretation of the rights under this
covenant.

What is the nature of the obligation for states under the covenant?

States under the covenant are outlined under Art 2 which provides the Each state under the
covenant undertakes to take steps individually and through Int’l assistance and co-operation
especially through economic and technical maximum of its available resources which the view
achieving progressively the full realization of the rights in the covenant by all appropriate means
including taking measures by way of legislation.

King at Art 2 paragraph 3, in the case of developing countries with due regard to human rights
for their national economy may determine the extent to which to guarantee their H/Rs to non-
nationals e.g. Aliens there is a determination as to the enjoyment of H/Rs between nationals and
non-nationals the phrase ‘undertakes to take steps’ means that the rights should be
programatiised i.e. should be accordance with the government programs, ‘’individually and
through Int’l assistance and co-operation’’, the obligation thus existence individuals to provide
Economic, social and cultural rights. Int’l assistance what is the obligation under this note that
may International countries have not ratified this treaty because it contains obligation with
unjustifiable, but also creates obligations on international assistance and this means the
obligation obliges developed countries who have ratified the treaty to provide assistance to the
developing countries with regard to the economic situations.

The other phrase is on ‘’maximum and avail resources this has been interpreted to mean that the
state must apply all resources it has to ensure that H/Rs are clearly enjoyed, this also includes
support from abroad. This does not mean that you must use all your available resources. H/E,
you must use all your available resources in the enjoyment of human rights
The interpretation of this provision shows that you must not squander resources in a fluable
manner it is about not enough for a country to say that it does not have resources, but the
interpretation means that you must use the ones she has progressively e.g. using adoptive
measures, legislature measures. The obligation is that a country is obligated to take all
appropriate mean including legislature measures but does not mean that it should take only
legislature measures; there are other measures e.g. administrative, investment.

Looking at part 3 of the covenant

Look at some Articles/ books on these rights under ICESCR part IV covers the obligation/
implementation mechanisms of the covenant. This covenant does not establish the individual or
interstate complaint system. It only requires that the measures parties to submit reports under Art
16 on the measures that they have taken and the progress they have made in achieving the rights
in the covenant

The covenant itself does not establish a species committee similar to that of ICCPR to review the
report merely that these reports are to be submitted to the UN Economic and social council, this
council (ECOSOC) council started in 1976 adopted a series of assistance to the developing
countries with regard to the Economic situations.

The other phrase is on ‘’maximum and avail resource’ this has been interpreted to mean that the
state must apply all resources it has to ensure that H/Rs are clearly enjoyed, this also includes
Donor support from abroad. This does not mean that you must use all your available resources.
H/E, you must apply the available resource in the enjoyment of human rights

The interpretation of this provision shows that you must not squander resources in for stance
corruption but you must use the resources in a fluable manner it is also not enough for a country
to say that it does not have resources, but the interpretation means that you must use the ones she
has progressively e.g. using adoptive measures, legislatures measures. The obligation is that a
country is obligated to take all appropriate means including legislative measures but does not
mean that it should take only legislature measures; there are other measures e.g. Administrative,
investment

Looking at part 3 of the covenant

Look at some Articles/books on these rights under ICESCR

Part IV covers the obligation/implementation mechanisms of the covenant. This covenant does
not establish the individual or interstate complaint system. It only requires that the states parties
to submit reports under Art 16 on the measures that they have taken and the progress may have
made in achieving the rights in the covenant

The covenant itself does not establish a species committee similar to that ICCPR to review the
report it stipulates merely that these reports are to be submitted to the UN Economic and social
council, this council (ECOSOC Council) started in 1976, adopted a series of resolutions the years
to 20% poverty has a direct relevance to the study of H/Rs because there has been an argument
that poverty is the violation of rights although not only under ECOSOC rights, but also under
CIVPOL rights poverty in Uganda negates the realization of ECOSOC rights because their
enjoyment depends on resources

The legal mechanisms both national and international are weak, but there are no individual
complaint mechanism, interstate complaint procedure even there is no committee. Therefore one
to complaint to the UN even some don’t recognize these rights under the ICESCR as rights. Yet
these rights contain a binding force in them i.e. the duty to ensure,

How can we realize ECOSOC rights in Uganda?

 -Encourage government to realize these rights
 -Government has taken some measures as far as Education is concerned e.g. it has
introduced [Link], licensed many universities, and liberalized the university.
 -Given the resources avail to state, time it has had, it could have done more as issues of
shelter are concerned.
 -As far has food is concerned, the government has adopted the food policy e.g. the plan 4
modernization of Agriculture, poverty eradication Action plan (PEAE) . If this
document was implemented truly, would help in realization and enjoyment of these
rights.
 -On the right to work, the government is practicing investment, e.g. ASGO’s, created the
conducive environment in which privatization policy as worked. Adopted a national
 policy on employment, established the N.S.S.F, we have kept a reasonably big no of
people in parliament i.e. creating employment.
 Place several committees (the more the resource are squandered by private individuals
then the less realization will be seen in the enjoyment of these rights) corruption countries
to hinder and a constraint on realization of enjoyment as its cases alluvial resources
 -Pol insurgent e.g. in north, 6 with Uganda

In addition to the above 2 covenant, there are other treaties dealing with specific types of human
rights issue so the U.N promulgated include:-

1)The convention on the prevention and punitive of the crime of genocide was adopted by the
U.N general assembly in 11g 48 and entered into force in 1951

This convention declares that genocide is a crime under Int’l law. Genocide is defined under this
convention as acts to acts that have an intention to destroy or in part a national, ethnic, ratio or
religious group

These acts may be either killing members of the group causing serious bodily or mental herm in
members group in directing commissions of life calculated to destroy the group, improving
measures intended to prevent births within a certain group of forcefully transferring with a
certain group.

2) The other treaty is the Int’l convention on the elimination of all forms of racial discrimination
(CERD) adopted in 1965 and entered into force in 1969. The covenant prohibits racial
discrimination and racial discrimination is defined as distinction, exclusion, restriction or
preference based on race, color, dissent, national or ethnic organization

Ref. to Art 1 of the convention. There are issues of racial discrimination performing around the
world to denf 5 even in Uganda.
3)Anor convention is the international convention on the suppression and punishment against
Apartheid.
It came into force in 1976 has been ratified by more than to states.
Apartheid is derived as a crime against humanity.
4)The convention on elimination of all forms of discrimination against women (CEDAW) it aims
to do away with discrimination of women so that women may enjoy H/Rs and final freedom in
Econ social cultural civil rights. It also aims to promote equality between men and women and
obliges state parties to adopt ways or measures aimed at prohibiting all discrimination of all
forms

5) The convention against torture and other cruel, inhuman and degrading treatment adoption in
1954 and came into force in 1987 and it aims to prevent and punish torture committed by or at
the instigation or with consent of a public official or other person acting in an official capacity
i.e. it covers not only torture inflected by government officials but also by private individuals or
groups whose conduct such tolerate. The convention defines torture as any act by with severe
pain-and suffering whether physical or purpose inter alia of alternating or confession or alters
purposes Uganda is a party.

6) The convention on the rights of a child. The treaty referred by most states widely 3 states
parties are obligated to support children with their jurisdiction which the extensive catalogue of
civil pol, economic and cultural rights lk al Art 2 A child is deprive to be every human being
below the Age of 18 unless the few applicable to a child the majority age is attained parties. In
obligation case, 18years is the majority age, Uganda is a party and has ratified this convention.

THE UNITED NATIONS (U.N)

Charter based mechanisms

The U.N is a primary body for the promotion of H/Rs a cross the world. The U.N charter, 1945
LK at history of U.N charter, organ (ICJ). In addition to the supervisory bodies e.g. H/Rs under
the various U.N treaties there also exist with in the U.N frame work variables institutions which
have their constitutional basis in the charter of the U.N’s and those include. The U.N
commission on human rights (UNCHR).
The treaties have their committees. This U.N commission is charter based and it contains sub-
commission on the promotion and protection of H/Rs. Also under the U.N these are specialized
agencies e.g. WHO, ILD all of which touch on H/Rs. The U.N commission is a wide system. The
sub-committees include U.N see general, office of High commander of H/Rs, The commission
on the status of women for this purpose, we shall LooK at the commission and sub commission.
The U.N general Assembly is at the apex of all the commission with the primary Authority of
H/Rs control with the U.N. It has a powers to create subsidiaries under the charter particularly
under the Economic social council.

Art 68 of the charter mandates the Economic and social council to establish commissions in
Economic and social fields and for the promotion of H/Rs, also to make recommendations 4 the
promotion and observance of H/Rs and fundamental freedoms. Ecosoc, Unchr, United Nations
Commission On Human Rights (1946-2006)

In 1946, the U.N general Assembly created the commission of H/Rs by ECOSOC was to serve as
the U.N’s principle body in the field of H/Rs activities. The commission was composed of 18
members initially, but now it has expanded as if has 53 states and appoint their by
representatives who serve not in their individual capacity by representing their states unlike the
members of H/Rs are independent. Because of this the commission is highly criticized. The 53
members of the commission are destroyed in such a way that there is equitable representation of
all members’ states. The terms of reference of the commission are to submit to the council
(ECOSOC), proposals in recommendations with reports basing with Int’l H/Rs instrument
protection of minorities and prevention of discrimination realization of H/Rs activities. It is also
mandated to assist council (ECOSOC) in coordinating H/Rs activities with the U.N system. It is
that commission that has the respective for the classifying and implementation of the instrument
including the UDHR and ICCPR and the one on Economic, social and cultural rights.

Today all U.N organs including the security course healing with some H/Rs matters, the
jurisdiction of H/R has expanded for there is no doubt that it is one most influenced bodies in the
U.N on the question promotion and protection of H/Rs. The commission works in a series of
policies also through the network of work groups of special rapporteurs with are based on
country e.g. a special rapporteur to investigate H/Rs violations in like also thematic like children
dis-appropriate etc.

The commission has been criticized by many 4 it being ineffective largely because of the pol. In
the commission but in spite of these criticism, it is understood that it is a pol body, it is not
surprising that it lends not work. In spite of the fact that it is a pol. Body it should be recognized
that the commission has done a lot of work in standard sitting. It is a bore 4 putting human rights
on the proper agenda and today, H/Rs is one of the key there is also commission and subsidiary
organize used to be called a commission for promotions protection H/Rs implies the name. It was
Esto and its membership is or theresn’t inadequate who serve in personal capacities the
commission councils of 36 members elected by the commission from a list of nominees
designated by member states they serve for a period of 3 years and may be respected

The terms of reference of commission require of to undertake studies and make recommenders to
the H/R commission on the promotion and protection of H/Rs throughout the Globe it is also
empowered to perform any of their functions that may be reguired by ECOSOC council. In
practice these T.O.R have been interpreted very widely and have been used to solve many issues
on poverty etc.

UN CHARTER-BASED INSTITUTIONS

In addition to the supervisory bodies that have been established under U.N human rights treaties,
there also exist with the UN framework various institutions and procedures with their
constitutional basis in the charter of the U.N itself. This is true of such major human rights
organs as the UN commission on H/Rs, the sub-commission on prevention of discrimination and
protection of minorities the commission on the status of women and the newly created office of
High commissioner of H/Rs. The same is true of the procedures of the UN has developed to deal
with especially serious violations of H/RS. The discussion before describes only the 4
institutions just referred to and the procedures for dealing with so-called grass violations of
H/Rs. For a comprehensive overview, see p. Alston (ed), the united nations and Human Rights:
A critical Appraisal (1992)

The Commission on Human Rights

Art 68 of the UN charter mandates the Economic and social council (ECOSOC) to establish
‘’commissions in Economic and social fields for the promotion of H/RS’’ ECOSOC compiled
with this mandates in 1946 by creating the commission human rights initially composed of 18
members, size of the commission has been expanded over the today it consists of 53 states. The
states name own commission representatives, who serve as instructed government delegates and
not in their personal capacities.
53 member states are designated by ECOSOC according to the formula designed to ensure
equitable geographical distribution between different regions of the world reference ‘’The UN
commission on H/Rs (1987): Alston, ‘’The commission H/Rs ‘ (1992) at page 126.

The commission’s terms of reference require it to serve as to ECOSOC proposals,

recommendations and reports dealing the international human rights instrument s, the protection
of maits and prevention of discrimination, and other related human rights matters. Its charge also
in cludes assisting the co-ordination of H/Rs activities in the U.N

In the first decades of its 50-years existence, the commission devoted itself principally to purely
promotional and the preparation of drafting international H/Rs instruments universal declaration
and the covenants for e.g were by the commission. In those years, the commission was from
taking only action on specific situations or charge a U.N member state engaged in h/Rs
violations. It role began to thelate 1960’s as H/Rs concerns included on, and become an integral
part of, the policy agenda of the U.N. The past two decades have served dramatic expansion of
the H/Rs issues brought into the attention of the UN address them. Although all UN organs
including the Security Council, deal the some H/Rs matters, the Human Rights commission’s
jurisdiction and agenda have vastly expanded over as far as promotion and protection are
convened. There are new few human rights and related subjects that are not brought to the
attention of the commission (ref: commission on human rights, report on the 50 th session UN
Document (1994). The commission has become together the UN H/Rs Centre which serves as
the human rights secretarial at UN, the nerve Centre of the UN human rights apparatus. It acts as
coordinator of the many existing U.N human rights institutions and programs as well as the
proposal U.N forum for addressing charges of human rights violations.

Although the commission deserves credit for existing many useful programs to promote H/Rs
(e.g. UN H/Rs advisory serves to day if focuses principally on efforts to deal with human rights
violations. It discharges the later’s function through an ever expanding network of working
groups and rapporteurs with thematic or country mandates. (ref: T. Meron, ‘’Human rights law-
making in the U.N’ 272 (1986), Wersbrodt ‘’the three ‘theme’ special rapporteurs of the U.N
commission on H/Rs’’ so Am J. international L. 685 (1986) etc. Although some have criticized
the operation of these institutions e.g. Van Dongen, ‘’system overload of the U.N special
procedures’ (1993), it cannot be doubted that these techniques all the world’s attention to
massive violations of H/Rs s. mialt otherwise go un noticed outside the countries where they are
being committed the rapporteur system grew out of and is the logical consequence of special
procedures established under ECOSOC resolutions 1503 and 1235, with empower the
commission to deal with gross violations of human rights.

The commission has been criticized for its ineffectiveness, for its politically motivated or
selective approach in dealing with charges of H/Rs violations. Although much of this criticism is
justified, it overlooks like fact that the commission can do no more than the states compare it
want if to do ref: Tosley, supra at page 187. Morex since the commission is a political;body, it
should surprise, regrettable as this may be, that it tends to policies the issue before it. Yet it
would be a mistake not to recognize broadening the H/Res agenda of the U.N and in pronnering
the H/Rs violations. It deserves much of credit for transforming H/Rs into a major item on the
agenda the internationally community and for broadening the legal scope application of the H/Rs
provisions of the U.N charter.

SUB-COMMISSION ON THE PREVENTION OF DISCRIMINATION AND

PROTECTION OF MINORITIES

The sub-commission, a subsidiary organ of the communications at on H/Rs, was established in

1947. It has traditionally been the UN institution most thematic to the cause of H/Rs. There is
due in large part to the fact that its members, unlike the commission, serve in their personal
capacities. Although this fact does not always guarantee that each member be a free agent-here
much depends upon the form of government the representative’s home state-many independent
mind individuals have in the past served and continue to serve on this body (see, Tolley, sudra at
163: Eide, ‘’The sub commission on prevention of discrimination is protection of minorities in
Alston at 211)

The sub-county commission consists of 26 members, elected by the commission from a list of
nominees designated by the members’ states of the UN. They serve 4 a period of 4 years and
may be respected. The terms of reference of the sub-commission require it to undertake studies
and to make recommendations to the H/Rs commission ‘’concerning the power of discrimination
among kind relating to H/Rs and fundamental freedoms and the protection of racial nationals,
religious and linguistic minorities.
-It is also empowered ‘’to perform any other functions may be entrusted to it by the economic
and social council or the commission on H/Rs. LK at ECOSOC ref.9 (ii) of June 1946. (In
practicing there terms of ref have been interpreted broadly enough to permit the sub-commission
to deal the whole range of human rights issues that rise the UN context. See Humphrey, U.N sub-
commission 62 Am J international.

As a result, the sub-commission has prepared a variety of studies and report it has participated in
the drafting of H/Rs instruments and if has devoted much time in recent years to the examination
of charges of H/Rs violations. In fact, the sub-commission is largely respectively for stimulating
the development of various UN procedures for dealing with such violations for pushing the UN
pol. H/RS organs to strengthen these institutions it has played a particularly important role in the
implementation of the 1503 procedures and in focusing the UN’S attention in H/Rs issues
relating, inter alia, to minorities, indigenous populations slavery, and disappearances. It also laid
the grid work for many implementation normative the 1992, declaration of the rights of persons
belonging to national or ethnic, religious and linguistic minorities, adopted by t5he UN General
Assembly on December 18, 1992 (ref. Thornberry, ‘’The UN Declaration the rights of persons
Background Analysis and observations 1995)

UN Commission on the Status of Women

This commission was established in 1947 it consists of 4 members elected as a state
representatives a long geographic lines similar to those applicable to the commission on H/Rs
(ref. Reanda , ‘’The commission on the status of women, in Alston sapra at 265). The
commission’s mandate charges 4 with the preparation of studies, reports and recommendations
on human right related issues affecting women. It has played an important role in initiating UN
agreements designed to eradicate factor discrimination against women, including the drafting the
principal contemporary treaties dealing with women’s rights as Graley points out. The first few
decades of the commission existence were devoted to these normative activity

In recent years the commission has been able to focus more on issues relating to the role and
needs of women in contemporary societies and on improving their political economic and social
status. By serving as the preparatory committee and increasing more implements. UN world
conferences on the subject, the commission has gradually gained the pol. Influence it but lacked
in the past to make a significant impact and evolution of the commissions role, are reanda at 265
This far, it has proved much easier for the commission engage in promotional activities than to
act on specific violations of women rights. The commission has had to struggle for a long time
to acquired the authority to deal the complaints alleging such violations. In the early 1980’s
ECOSOC empower commission to undertake a limited review of commissions charging specific
violations of women rights. The commission has uses these comes principally as a source of
information for its studies rather than as an instrument designed to produce governments to
address the specific complaints. Efforts are way to reform the communications procedures and
give the commission more power to act on complaints, it remains to be seen how successful
these efforts will be ( Byrnes)

The ICCPR (additional information to note)

The ICCPR as of October 2005 had 154 members’ states. Uganda ratified this covenant on 21 st
June 1995, Tanzania ratified on 11th June 1986, Kenya ratified on 1st may 1972, Rwanda ratified
in 10th April 1975, and Uganda was thus the last country to ratify.

Regarding the first optional protocol concerning individual commission had 105 member states.
Uganda ratified in 100, Kenya, Tanzania and Rwanda have not ratified this instrument because
these countries are not keen on the H/Rs commission.

Not all countries that have ratified the ICCPR have also ratified the F.O.P (get 154-105=49

The S.O.P has been ratified by 54 member states. More than 2/3 of the countries that have
ratified the ICCPR still support the death penalty

Economic, social and political covenant.

This covenant as of October 2005 had 1964 states that have ratified it. Uganda ratified this
covenant on 21st January 1997, Uganda ratified the ECOSOC covenant before ratified the ICCPR
does this mean Uganda respect the ECOSOC rights than the CIVPOL rights,

As soon as the NRM, Government come in to power in 1966, we ratified this covenant compared
to other countries why? Between 1966 and 1972, H/Rs was not on top of the government agenda;
it does not surprise anyone that NRM after 1986 ratified
Tanzania 11st June 1976, Kenya ratified 1 st may 1972, Kenya was one of the few countries to
ratify. Tanzania and Uganda for the treaty to have acquired sufficient acceptability. This is
because Kenya

Procedures for dealing with Grass violation of H/Rs

Resolution 1235, and resolution 1503

The establishment of the UN created great expectations and gave hope to millions of oppressed
peoples the world over who believed that the organization would bring them the freedom and
justice for which they had been wasting so long it’s not surprising therefore, that almost as soon
as the UN came into being it began to precise a large no of petitions from individuals and non-
governmental organizations alleging violations of H/Rs and seeking UN intervention from 1947-
1957, e.g. some 65000 such commissions were received by the UN as Buergenthal observes in
this ‘’The UN and He developed of rules relating to H/Rs ‘’ 1965) These numbers increased
even more in later years, at times reaching more than 20000 communications annually as the
Tardu notes in ‘UN response to Grass violations of H/Rs: the 1503 procedures , ‘’ 1980.

But the UN commission on H/Rs logically the most appropriate body with the organization to
deal with these petitions, decided in 1947 that it had ‘’no power to take any action in regard to
any complaints concerning H/Rs ‘’ This decision was confirmed by ECOSOC in resolution 15(v)
of August 5, 1947, and also established a method for classifying the petitions and provided that
they be included in a confidential list. Access to that list was so severely restricted that the
information contained in it don’t even be used by members of the commission to invite any
action in a specific areas.

Between 1947 and 1959, various effort were made to get ECOSOC to reverse its 1947 decision
and empower the commission to act on communities alleging violations of H/Rs

Although these efforts were not successful, they led to the adoption of ECOSOC revolution 128 f
(xxviii) of July 30th 1959. It consolidated existing UN procedures for classifying communities
while at the same time regarding the decision of the commission that ‘’it has no power to take
any regard to any complaints concerning H/Rs’’
In practice, this general rule remains in force to this day, although the exceptions that have been
engrafted on it have limited its scope significantly by empowering the commission to deal with
and act on certain very serious types of H/Rs violations. These changes were ushered in by two
ECOSOC resolutions: Resolutions; Resolution 1235 (xlii) of June 6, 1967, and Resolutions
1503 (xlviii) of May 27,1970. Resolution 1235 permits the commission to examine certain grass
violations of H/Rs that came to its attention, whereas Resolution 1503 establishes a limited
petition system 4 dealing with communications that ‘’reveal a consistent patter’’ of such
violations. The letter procedure is confidential but the former is not.

ECOSOC Resolution 1235 authorizes the commission 4 its sub county commission on
prevention of discrimination and protection of minorities to examine information relevant to
gross violations of H/Rs and fundamental freedoms, as exemplified by the policy of a partied as
practiced in the republic of S.A and to racial discrimination as practiced notably in southern
Rhodesia contained in the communications listed…pursuit to resolution 728f (xxviii) of 30 th July
1959 (parg 2)

Reveal this a consistent pattern of violations of H/Rs as exemplified by the policy of apartheid…
I racial discrimination ‘’ the commission is empowered to undertake a thorough study and to
report its conclusions to the Economic and social; council (parg. 3)

While some countries sought to limit the application of the 1235 procedure to a partied and
related policies, these efforts did not successes. Today it’s no longer disputed that the 1235
procedure applies to any situation involving large scale violations of H/Rs and the commission
has to interpret it in established by the commission to report on these types violations and the
measures adopted by the commission deal with them derive their legal basis principally from
resolutions 1235 and to closer extent resolution 1503.

It is clear today that situations falling with in scope of the 1235 procedure may be placed on the
covenant agenda by its members and that they need not first to be considered by the sub
commission.

Resolution 1503 authorities the sub commission to a small working group to examine the
communications received from individuals and other private groups by the UN a view to identify
those that ‘’appear to reveal constitution pattern of gross and reliable attested violations of H/Rs
and freedoms in the terms of reference of the sub commission

The resolution also provides that these communications, together with any relevant comments
there on from the governments concern should be reviewed by the sub commission ‘’in private
more with a view to determining whether to refer to the commission on H/Rs particular
situations and appear to reveal a consistent pattern of gross and reliable attested violations H/Rs
requiring consideration by the commission’’ under resolution 1503 the commission, when acting
on any community referred to it by the sub-commission, is empowered to meet determination
whether (a) to undertake a ‘’through thereof in accordance with the provisions of paragraph 3 of
resolution 1235, supra, or (b) to make it the ‘’subject of an investigation by an ad hoc committee
to be appointed by the commission shall be undertaken only with the consent of the state
concerned..’’

It should be noted that on August 13, 1971 the sub-commission adopted resolution 1 (xxiv) on a
specific procedures for these application of ECOSOC resolution 1503. One note word aspect of
this resolution is that it provides, in setting standards and criteria of admissibility that
‘’communications shall be admissible only if. There are reasonable good to believe that they
reveal a consent pattern of gross and reliably attested violations of human rights and fund
freedoms, ‘’including ‘’ policies of racial discrimination and segregation of apartheid , ‘’in any
country’, including ---and other dependent countries .

The words ‘including’ and the phrase ‘in any country’ used in the sub-commission Resolution 1
of 1971, were inserted to make clear that the procedures for dealing with communications are
applicable to any gross violations of H/Rs, whether or not they are related to policies of racial
discrimination or apartheid.

Although some governments sought in the past to limit the application of the 1503 procedures to
racial discrimination, they did not prevail. Today it is no longer disputed threat resolution 1503
applies to all situations reviling a pattern of gross violation of human rights whenever they might
be committed.
Here it should be emphasized that the 1503 petition does not establish an individual petition
system as that concept is usually understood for a detailed analysis, see UN document
E/CN.4/1994/42.

Although individuals have standing to file petitions, their cause of action is based on a showing
of ‘’a consistent pattern of gross and reliably attested violations. ‘’The procedure is thus
applicable to large scale or systematization of H/Rs rather than to violations of one’s individuals
right.

Of course, to the extent that one or a series of individual’s cases are symptomatic of the large
scale violations taking place in a particular country, they state a cause of action under the 1503
procedure.

The Petitioner does not have to be the victim of the petitions must show, H/E that domestic
remedies have exhausted ‘’ unless it appears that such remedies would be ineffective or
unreasonably prolonged ‘’ look at paragraph. 4 (b)

Resolution 1503 requires that the proceedings envisaged by it ‘’remain confidential until such
time as the commission make decide to make recommendations to the Economic and social
council’’ look at ECOSOC resolution 1503 (8). The confidentially aspect of the 1503 procedure
is its greatest defeat it is carried to such an extreme that the petitioner is not even kept informed
of the status of the communication beyond the initial acknowledge 4 of its receipt, with is not the
way any mechanism 4 the protection of H/Rs should operate.

A petition received under the 1503 procedures is first examined by a working group of the sub-
commission. The working group may refer it to the sub-commission, with has the power to
decide that the petition should be referred to the commission

The commission, in turn has its own working group the so called working group on situations-to
screen the petitions before they are closed sessions, the commission now identifies the countries
whose conduct it found to be governed by the 1503 procedures. Once that finding has been
made, the commission may refer these situations to the Economic and social council. ECOSOC
as well as the General Assembly may adopted applicable resolutions calling on the governments
concerned to remedy the situation and comply with their charter obligations not to violate H/RS-
At this stage of the proceedings, all debates are public. Neither ECOSOC nor the General
Assembly have the power to do more than condemn a government’s failure to comply with their
Resolutions. In extreme cases, the Assembly may recommend that the member states impose
voluntary sandions on the recalcitrant government.

Commission’s 1993 annual report notes that the commissions ‘’chairman announced that the
commission will no longer examine the human rights situation in the Sudan and Zaire under the
confidential procedure governed by the council Resolution 1503 (xlviii), in view of the public
procedures concerning both countries established by commission Resolutions 1993/60 and 1993/
61, respectively’’ The two resolutions relating to the Sudan and Zaire are reproduced at page 188
and 190 respectively. As this eg indicates, the commission can now ‘’go public’’ which a
particularly serious human rights situation that it had been considering under 1503 procedure by
transforming it into a 1235 case.

In this fashion the commission remains seized of the situation and is free to act on the court
being bound by the confidentially right of the 1503 procedure.

Ref. Bossuyt ‘’the government of special procedures of the UN commission on H/Rs, ‘’ 6 human
rights L.J 179 (1985)

On the interaction between the 1503 and 1235 procedures, ref to cook, ‘’International
mechanism, the role of the special procedure in the protection of H/Rs – the way forward after
Vienna, ‘’ I.C.J Rev. no 50 at 31 (1993)

Gross violations of human rights and the UN charter.

1) What is meant by the UN ‘’special procedures’’ for dealing with violations of Human
rights?

The establishment of the United Nations created great expectations and gave hope to millions of
oppressed peoples the world over who believed that the organization would bring them the
freedom and justice for which they had been waiting so long therefore, it is not surprising that as
soon as the U.N came into being, it begun to receive a large number of petition from individuals
and non-governmental organizations alleging violations of H/Rs and seeking U.N being
considered as the most appropriate body logically for dealing with these petitions decide in 1947
confirmed by the ECOSOC resolution 15 (i) of 1941, the it had no power to that which these
petition take any action in regard to any complaints concerning human rights . Even against
various efforts were made, this decision remained binding it was reaffirmed by ECOSOC
Resolution 128F (XXVIII) of 1959

Although in practice, this general rule has remained in force this day, the exceptions that have
been allowed on it has limited its scope significantly by empowering the commission to deal
with and act on certain very serious types of Human rights. These changes were ushered in by 2
ECOSOC resolution namely 1235 (x41) of 1967 and resolution 1503 (xlviii) of 1970

Therefore, the UN special procedures for dealing with violations of human rights are those
resolutions procedures created to deal with gross violations of human rights after the community
had considered itself in sufficient/ ineffective to deal with an act on certain violations. The
former procedure (1235) the commission to examine certain gross violations of human rights that
come to its attention, whereas the (1503) pro 1235 procedure. Even the working groups and
special Rapporteur system derive their legal basis from this special procedure. Although some
countries tended to limit the application of this special procedure to apartheid violations effort
did not succeed.

Notably, the 1503 procedure authorities the sub-commission to establish a small working group
to examine the commission received from individuals for other private groups.

UN with the view to identify those that appear to be consistent pattern of gross and reliable
attested violation of human rights and fund freedoms. This procedure as to the commission to
receive petition of individual or groups organs as long as local remedies have been established
except for certain cases i.e. where they should be unduly portrayed

As long as the commission shows ‘’consistent violations of H/Rs though this procedure has been
considered to deal with violations of H/Rs at great length, it is limited by its confidently clause
i.e. No individual after submitting in his petition is not entitled to review it again.

In conclusion, the ECOSOC Resolutions of 1235 of 1967 and Resolution 1503 of 1970 are
considered to be the UN Special procedures for dealing with violations of human rights.
ii) Describe the enforcement and implementation mechanism provided for under the
international covenant on civil and political rights (ICCPR)

State parties to the international covenant on civil and political rights (ICCPR) should enforce
the forms of the treaty in good faith by the principle of pacta sunt servanda of international law
which literally means agreements are binding

On its background, we had civil and political rights and Economic, social and cultural rights in
the same document but there was a need to separate these two categories rights of for purposes of
enforcement and implementation, thus we has the covenant on civil and political rights with its
uniqueness hence, the ICCPR was adopted by the united nations general Assembly and opened
for signature in 1966. Being treaty, this covenant creates a binding legal obligation for state
parties, and the enjoyment of the rights guarantee by covenant as a matter of international
concern

Notably, the covenant was established majorly to give effective to their rights guaranteed there in
if state parties fail to respect the rights in the covenant then they will be able under the ICCPR.
However, if their failure to guarantee a remedy to a person who brings up a complaint, as a result
of a limitation contained on the right then the enforcement are mechanisms become non-
justiciable for example Article 4 which allows derogation from any right ion case of public
emergency which threatens the life of a nation.

The covenant states the rights or lists the civil and political rights in a more judicial specificity as
it imposes an –obligation to respect them for example, the right to self and association, and the
right to political participation and freedom from torture.

The above rights are supposed to be enjoyed by people to state parties and to ensure the
enjoyment, the covenant establishes a distinct international enforcement system and designed to
ensure that the state parties comply with their obligations. This is true for the implementation
mechanisms.

Pertinent to note is that the enforcement and implementation of the rights the ICCPR means to
put in practice/ realize the rights contained there under and various procedures are goes through.
These are contained under part IV of the covenant and are discussed below:-
REGIONAL HUMAN RIGHTS
The major objective of this courts is to familiarity with the students the major H/Rs instruments
and their different t modes of implementation

Back ground
Concepts of human rights lack a definite and universally applicable design. According to prof.
Cranstone ‘’what are human rights (1973), human rights are inherent entitled that accrue to every
human being for being human. To him they are rights for all people, in all places at all times.

Louis Henkin ‘’The age of rights (1985), H/Rs are universal and do not depend on geography,
history , anthropology

In short, H/Rs accrue independently of Acts or declarations of law and that they are of universal
will be depth with later in this course i.e. in international H/Rs)

As moral claims, H/Rs are both as and when they can and should be born. They are not born
either, or at once for all.

H/Rs are not given facts but a contrast that a human invention subject to an on-going process of
construction and reconstitution i.e. H/Rs are not stalk but dynamic. They are the fruits of our
history our past and present from a symbolic place of struggle and social action.

In FILARTIGA V PENA IRARA, there were 2 citizens of Paraguay who sought asylum while
still in Paraguay one child was tortured to death. The complainant brought an act in American
courts. Court said that matters of H/Rs are matters that can be dell-with in any court and the
U.D.H.R is of universal application.

Louis Henkins points out that international law may be divided into 2 major phrases. I.e.
international law before

It W/W II stood for a breach with human rights, them the post-war period must stand for their
reconstruction.

It was in this context that the effort to reconstruction H/Rs was formulated as an ethnical
paradigm and bench mark to guide international contemporary international order.
With this, the protection of H/Rs could not; be limited exclusively to the jurisdiction of the state,
or even be defeated by state sovereignty. It became an issue of legitimate international interest
(see the case of FILARTIGA V PENA IRARA) (1980), where the court among others said
states can no longer hide behind boundaries to mistreat their citizens especially where the
mistreatment attract international attention / concern further that the enjoyment of rights is at an
international level.

After 1945, state sovereignty was broken and other states could penetrate other states to check
the art of H/Rs.

In spired by the above of principles, the U.D.H.R and the American Declaration of the rights
and duties of man ware approved in 1948. These laid down principles to be respected by states
in order to preserve human dignity. The U.D.H.R emphasize that H/Rs are universal,
interdependent and indivisible.

These were followed by other international H/Rs covenants and conventions like the
international Covenant on Civil and Pol. Rights ([Link]), 1966, the international covenant
economic, social and the cultural rights (I.G.E.S.C.R), 1966, the convention on the rights of the
child, the convention relating to the status of refugees 1951 and convention

-The above instruments provide norms and in some institutions (e.g committees. Commissions
and courts) for protection of human rights at the international level

-In addition, they establish monetary mechanisms aimed implementing rights (e.g reports,
communications between states and individual petitions) at the international level.

INTRODUCTION
Beginning with the adoption of the European convention 1950, the trend to elaborate regional
standards continues the adoption of the American convention on H/Rs in 1967 with was a
subsequently followed by the African charter on human and people’s rights adopted in 1981,
there also being a fledging Arab system and a proposal for the creation of a regional system in
Asia.

Various other treaties have been elaborated in an effort to render the protection not only of civil
rights but also of the economic social and cultural rights more efficient
Regional system aim at internationalizing H/Rs at the regional level and making g them more
acceptable to the peoples of the regions. At the same time regional and global H/Rs system are
not divergent but complementary regional H/Rs systems draw inspiration from the global and
then interact with the national systems in order vto forward the cause of human rights protection.

WHY REGIONAL HUMAN RIGHTS SYSTYEMS

According to Rowland K.,[Link] (Textbook on international H/Rs, oxford university

press,2003, page 84 ‘’while there are a lower no of states involved. The political economical
easier still relatively homogeneous with regard to culture language and traditions with
advantage.’’

In addition, regional system fill the gap in the internal system

 They eater for the historical backgrounds of the region and make human rights more
realize eight African system strongly provides against slavery colonialism among others
 They are geographically accessible, in fact it is cheaper for one to file a complaint under
the regional system compared to the global.
 Regional institutions are familiar with the situation in their regions. It is therefore
believed that they can make realistic or informed decisions. Unlike the international
institutions that base their decision on findings in written reports (this is H/E rebuttable
depending on the circumstances of each case)

EUROPEAN SYSTEM ON HUMAN RIGHTS

The European convention for protection of H/Rs and fund freedoms and its protocol provide
extensive protection of the rights and freedoms of human person at the European level. It was
signed in 1950 and came into force in 1953, it is of particular importance with in the efficient
context of international H/Rs for several reasons:-

It was first comprehensive treaty in the world this field established the 1 st court for determination
of H/Rs matters. If remains most developed of the 3 regional system and has generated on more
extensive jurisprudence has any other

BROAD STRUCTURE OF THE SYSTEM

The European convention on human rights and fundamental. Freedom (E.C.H.R) is the
documents within which the European system of H/Rs is anchored. The 3 major mechanisms of
H/Rs in European are:-
 -The council of European (C.O.E)
 -The European Union (E.U)
 -The organization for security and co-operation in European (OSCE)
 The council of European created the E.C.H.R implement onto note that none of the 3
bodies is exclusive concerned with human rights.

THE COUNCIL OF EUROPE (C.O.E)

It was established by 10wn European in 1940 primarily to promote democracy there of law
greater unity among nations of western European members of the council had a committee the
above mentioned

After 1990, its membership extended 10 countries that have in 10th Epe .

Art 8 of the council statute provides others ‘’that for a state to be admitted must be of genuine
democracy that it the rule of law, and human rights’’ There must further be willing to collaborate
councils of the above areas members this may be big ……10 the convention of H/Ratifying the
convention and additional protocol.

EUROPEAN UNION (E.U)

This originated from the Paris 1952 that established the European and steel community and
subsequence the two treaties of Rome from 1957 that created the European Economic
Community and the European atomic energy community

The treaty of Economic union combination’’ the above communities into the European Union on
November 1.1993.

What was the driving force at the time?

Some rights had developed more than the so there was need to balance.
The main version for the 1957 treaties was to encourage closer economic intervention ….rather
than H/R. Its however important to point out at European court of justices (organization of E.U)
is an organization of E.U started to involve H/R electives in 1968. All the same the purpose of
these electives was more for the protection of competences for the communities and that of
individuals.

Further has more often than not applied H/R to actions of the community rather than those of the
states involved.
Later the E.C.H/R was accorded a privilege position in the community in 1979, i.e. E.U proposed
that the community should formerly to the European convention and in 1977, the European
porl<of convention study of the E.U> emphasized the importance H/R has laid down in E.C.H.R
laws of inner and states of the European community.

Member states includes France, Belgium, Norway, Luxemberg, Ireland, Greece the two treaties
of Rome from 1957 that created the European atomic energy community

The treaty of Economic union combination the above communities into the European Union on
Novermber 1-1993

Organization for Security and Co-Operation in Europe (O.S.C.E)

It was formerly for security reason only. It grew out of the final act of the 39 states (all European
except Allania Canada and U.S) in the year 1975

The main focus was of states to join the organization and 26…concessions in relation to security
matter security matters and H.R were mainly which collapse of commission a utility of the
organization as divided led and it focus has …..2 cotributily H/R discourse with the European

The organization …concerns itself with the development of standards in democracy and rule law
and European national minorities

REF: Henry 1 steiner and philip Alton ‘’int H/R law in context in political and moral press
oxford 1996

Ref: J MC Bridge and Brown UK the community and European convention of H/R and yr Buon
European law 1967 (1981)

COMMENTS ON SOME OF THE UNDER RIGHTS RECOVERED UNDER THE

EUROPEAN COVENTION FOR THE PROTECTION OF H/R AND FREEDOMS OF
1950 as enacted the obligation of high contracting parties to secure for everyone in their
jurisdiction the rights and freedoms that are accrued to them.

The convention provides for a wide range of rights i.e. civil political economic social and
cultural rights.
At the same time limitations of the exercise of certain rights of the convention are permissible
provided that they comply with the principles below:-
1. Legality
2. The legitimate needs of a democratic society, and
3. Necessity/ proportionality in that the measures must be necessary for democratic society.
The rights provided for in the European convention are limited but there is a check to this
limitation.
Art 2 protects the rights to life but has a saving for deprivation of life by way of execution or the
death penalty. This provision has been a subject of controversy because it does not cater for the
urban children. However looking at to Art 15 (2) the right to life is non-derogable to state can
suspend. This shows us how they considered the right to life as important. H/E this provisions
protects the death penalty; there is a conflict in this Article.

Art.3 contains the prohibition against torture, cruel in human and degrading treatment or
punishment. The question here is what arms to torture? In the convention what aims to torture
should be at the instigation of the state or any one acting for the on behalf of the state doing shy
that causes mental suffering.

Torture has been derived under the UN convention against torture, 1984 as ‘’any act by severe
pain or suffering whether physical or mental is intentionally inflicted on a person for such
purposes as obtaining from him or her or a 3 rd person information for any reason based on
discrimination of any kind when such pain or suffering is inflicted by him at the instigation of or
with the consent or acquiescence of a public official or other person acting in an official
capacity. It does not include pain or suffering arising only from inherent in on incident tyo lawful
sanctions, ‘’ e.g. paragraph convicted

In the case of LABITA V ITALY (application No 26772/95), the applicant was arrested on
suspicion that he was a member of the mafia-type organization he was held in prison from 1992
– 1993. He alleged that between July and September 1992, he was subjected to numerous acts of
violence, humiliation and debasement, threats and other forms of torture to which being slapped
and trunked in many occasions; he suffers injury to his fingers, knees and testacles and subjected
to body search and further that he remained handcuffed during medical exams. He filed a
complaint under Art 3 of the E.C.H.R and below are parts of the courts holding:-

The court recalls that ill-treatment must attain a minimum level of severity if it is to fall which
the scope of Art.3 the assessment of this minimum is relative it depends on all the circumstances
of the case such as the duration of the treatment, it’s physical and mental effects and in some
cases the sex Age and Health of the victim.

In case of the person deprived of his liberty, resource to physical force which has not been
strictly necessary by his or her own conduct, diminishes human dignity is principle an
infringement of the right set forth in Art 3 by the court to be inhuman’’ because inter alia it was
pre-modified, was applied for his at a stretch and caused either actual bodily injury or intense
physical and mental suffering and also ‘’degrading ‘’ because it was such as to arouse in its
victim feeling of fear, anguish and inferiority capable of humiliating and debasing them

In order for punish or treatment to be ‘’in human’’ or degrading the suffering or humiliation
involved must in any event go beyond that inevitable element of suffering or humiliation
connected with a given form of legitimate treatment or punishment. The question whether or not
the purpose of the r=treatment was to humiliate or debate the victim is another factor to be taken
into a/c ,

The court said on the Burden of proof in such cases, allegations of all treatment must be
supported by appropriate evidence. To evidence , the court adopts that such proof may follow
from the court existence of sufficiently strong clear and concordant inferiors of similar
unrebutted presumptions of fact i.e. it court can refer from circumstances evidence.

Note: see other provision of the convention and study the limitations if any e.g. Art 9 guarantees
freedom of conscious, though and religion but the right is subject to such limitation as
‘prescribed by law and unnecessary in a democratic society’’.

Art 4 provides for the prohibition against slavery and forced labour.
Art 6 is about failure trial every one pressured innocent until proved

Art 7 provides against retrospective criminality (no punishment for law)

Art 9 guarantees freedom of thought conscience and well honored there is a limitation right in
the sense that Art 2) it is a subject to such limitations as are prescribed by law and are necessary
for a democratic society.

Art 10 provides freedom of expression this freedom has a duty attached according to clause 2
one can’t claim to limitation enjoy the right if they haven’t at national level for the enjoy of the
right.

According to Art 4 enjoy of all rights the without discrimination on goods of race sex, colour etc.

It should be noted that the European convention echoes some of the provisions of other
international instruments like the U.D.H.R and I.C.C.P.R. Not with standing there are major
differences ICCPR and the European convention e.g. the European convention has no provision
relating to self-determination and 10 the rights of minority groups unlike Art 1 and 27 for the
ICCPR The other different is while the convention limits freedom of expression association and
assembly in similar ways, the European convention consistently requires that the limitation must
be necessary in a democratic society.

Lastly the non-derogable rights under Art 15 are different from those on the ICCPR. LK Art
Article 15

In the first case to reach the court had to interpret and apply Art 15, which permits the state
parties to derogate in the time of war or other national emergency from some of their obligation
under the convention. This provision and its implications were the subject of a much more
existence analysis in the case of IRELAND V UNITED KINGDOM, (1978) 25 public ECHRS
which remains the leading case on the subject. Here the court made clear that although the state
parties had ‘’ a margin of appreciation’’ in assessing the facts bearing on the existence of a
public emergency and the need for suspending certain rights with the convention guarantees, the
states do not enjoy the. Power in the respect. The court with the commission responsible for
ensuring the observance of the state’s engagements (Art 19) is empowered to rule on whether
states have gone beyond the ‘’extent strictly required the exigencies of the crisis…The domestic
margin appreciation is thus a complied by a European supervision

Permissible derogations from legal obligations under the European convention

Like the ICCPR, Art 4, The American convention on H/Rs, Art 27. ART 15 OF THE European
convention provides for the possibility of derogations from legal obligation in exceptional
situations. Below are the conditions:-

Art 15 reads derogation in form of emergency

1) The condition of exceptional threat: A high contracting party may resort to derogations in
times of war, or other public emergency threatening the life of the nation ‘In THE LAWLESS
CASE (Judgment of 1st July 1961, series A, no 3, page 56 paragraph 28), lawless claimed that
the convention had been violated by the authorities of the republic of Ireland for he was detained
without trial between 13th July , 11th December 1949, The European court interpreted the above
phrase. The court said, it means that the high contracting party must face an ‘’exception’
’imminent’’ situation of crisis or emergency with affects the whole nation/ population and
constitutions of which the state is composed.

If Uganda was a party to the European convention would the war in the north justify derogation
of these rights No!

The reason why this provision is given a strict interpretation i.e. the state of emergency should
affect the organized life of commission

In THE GREEK CASE (Report of the commission volume 12 book, page 72, paragraph 152,
The commission specified in that ‘’the measures or restrictions permitted by the convention 4
partly inadequate ‘’ In short, these case shows that the state of emergency should be the only
available remedy after all other avenges have failed.

According to the case of BRANNIGAN v MCBRIDGE (June of 26th may, 1993 page 49 of
series A no 258) the states have been granted a wide ‘’margin of appreciation’’ deciding whether
they are faced with the public which in the meaning of Art 15 (i). Further, that in exercise its
supervision, the court must give appropriate weight to such relevant factors as the nature of the
rights affected by the derogation, the circumstances leading the and the duration of emergency
situation. I.e. the states are given a wider discretion to determine the circumstances that allow a
state to declare a state of emergency for the judge should lk at existence.

2) The condition of non-derogability of certain rights according to Art 5 (2) of the convention the
Hg articles don’t be derogated
Art 2 (right to life)
Art 3
Art 4(i)
Art 7 no punishment without law
The condition strict necessity according to ART 15 (I) High contracting party majority take
measures derogating from its obligation under the convention to the extent strictly required by
the Exigencies of the situation

This means the measures taken should be enough to take case of the emergencies not excess. In
the case of BRANNIAN v MC BRIDGE the European court held than a high contracting
parties enjoy a wide margin of appreciation in deciding law’’ far it is necessary in attempting
to over comes the emergency

H/E the decision taken by the domestic authorities always subjected to supervision at the
European level

In the case of IRELAND v U.K ( decision of 29th April 1926), it was held among others ‘’by
reason of their direct and continuous contact of the impressive needs at the moment, the national
authorities are in principle at better position than the international judgment to decide both on
the state of an emergency and on the scope and nature of derogation necessary to avert it.

In the above case, it was noted that the states do not enjoy unto power in this respect. The court
or commission is respectively or empowered to rule on whether the state has gone beyond the
extent strictly required by the exigencies of the situation.

4) The condition of consistency with other international obligations:

The measures of derogation taken by the high contracting party must not be in consistent with its
other obligation under international law. In BRANNIGAN v MCBRIDGE the European
court of H/Rs had to examine whether the U.K government had fulfilled the request of official
proclamation’ under Art 4(i) of the I.C.C.P.R

5) The condition of non-discrimination: Art 15 contains no specific prohibition on

discrimination. All the same, states should not discriminate on goods of race or sex in situations
of crises or emergency. The above request is exclusively regulated by Art 14.

6) The condition of international notification: The high contracting party availing especially the
right to derogate must keep the secretary general of the company .E informed of the measures
taken of the reasons thereof.

At the same time it must inform him or her of when such measures ceases to operate and the
provisions of the convention are again fully executed. It need be the European court of human
rights examines pro motive’ whether this condition has been compiled with the above condition
was related in IRELAND v U.K,

IMPLEMENTATION MECHANISM OF THE SYSTEM

The European convention provides for procedures this with member states may be held
accountable by other member states and individuals for violation of recognized right using:

1) The individual complaint procedure (Art 34 (i)

2) The inter-state procedure (Art 33)

Originally the organs that were respectively for setting such complaints were the European
commission on H/Rs the European court on human right under the former Art 19 of the
convention

Protocol number 11 of the European convention of the H/Rs was entered into force in 1st
November 1998 to replace the a above former monitory machinery of the European system

By virtue of protocol November 11 the commission and the court have ceased to be and now
there is a new European court of human rights operating full time of strasbourg.

THE STRUCTURE OF THE COURT

The court is established under Art 19 of the convention to function on a permanent basic it
consists of a number of judges equal to that of high contracting Art 20 parties rather than the old
post where the number of judges was equal to the member of the council of Europe

Art 26 provides 4 the plenary court with among

A) Elects its president and vice president

b) Set up chamber constituted of a fixed period of time

C) Elects the president of the chamber of the court. Art 27 creates committees of chambers and
grand chambers composed of 3 and 7 judges respectively

The grand chamber includes the president of the court, the vice president, the president of the
chamber and in other judges chosen in accordance with the rules of the court.

The complaint procedures

Art 33 provides 4 interstate complaints. There is no request that the state party concerned must
have recognized the jurisdiction of the court for the court to have locus to hear any case brought
against the state

Individual complaint are provided for under Art 34 of the convention which is to the effect that
the court may receive applications from person, non-Governmental organizations ort a group of
individuals causing to be the victims of the rights set forth in the convention or the protocols.

Admissibility procedure

According to Art 35 the court cannot deal with any matter unless domestic remedies have been
exhausted, according to the recognized law of international law (Exhaustion of local remedies).
The matter must have reached the highest court in the case of DEJONG DEN BRINK v
NETHERLANDS, exhaustion of local remedies was signed to mean that those remedies must:-

(i)Be available and sufficient

(ii)Relate to the breach which has been alleged and
(iii)Be sufficiently contain
However, the requirement of Exhaustion of remedies has been over emphasized to an extent that
some cases that generally deserve the judgment of the council are left out for its non-satisfactions

Further in the case of AKOWAR and ORS v TURKEY application number 21893, December
10th October 1994, the observe of effective remedies for deliberate destruction of villages by
security forces and any criminal prosecutions against them was taken as an indication of absence
of proper remedies to the applicant. In short the European court can hear a matter when the
application shows that there is absence of local remedies.

It can further be noted that from international law that the states undertaking to abide by the
provisions of a ratified treaty afford little law within the system if incorporation is completely
neglected. Thus where international law is not incorporated into domestic laws, effective local
enforcement is unlikely. If internationally unlawful conduct is not criminalized under domestic
law no local remedy exist to exhaust and claims can be brought directly before a competent
international tribunal rendering this claim inadmissible before the court on the issue look at
PHEOBE OKOWA ‘’Admissibility and the law of international responsibility oxford universe
press 2003 at page 499 or K. HOPKINS ‘’the effect of an African court on the domestic legal
orders of African states 2002 African journal at pages 236-238

Further the complaint has to be a victim of the violation this means that one must be the direct
person whose right has been violated but not a representative. These has stated in the case of
BETTY PURCELL v IRELAND and further that the application has to be the victim of the
violation of a right enshrined in the expectation

In addition, in the …from BROCEK v ITALY, it was decided that the complaint has to be
brought in 6 months of the national last resort body has made a decision hence beyond 6 months
a complaint is inadmissible the Art the above cases illustrate the request under 5. 35

Along the same line ART 35 (2) is to the effect that the court shall not deal with any individual
application that

(a)Is anonymous

(b)Substantially the same as a matter that has already been examined by the court or has already
been submitted to another procedure of international investigation/enforcement
This provision helps the court to prevent feverous applications that are brought by individuals to
tarnish the name of their government. The court also does not want to compete with other
international bodies over the same matter

Note: Rd Art 35 (3)

In case a petition does not satisfy the test in article 34 and 35, it is declared inadmissible.

H/E of it satisfies the test and as: admissible the court with ) procedures the examination of the
case together with the representative of the parties and it may be at times undertake an
investigation for the effective conduct of the states concerned furnish the necessary facilities.

(ii)May advice the parties concerned with the view of securing a friendly settlement of the matter
on the basis of respect for human rights as defined in the commissions and protocols. Such
matters of a friendly settlement are pursed in confidence despite the fact that all proceedings of
the court have an attribute of a public hearing as provided for under Art 40.

Further the court has power to order just satisfaction to any person where it deemed that there
remedy offered by internal law and insufficient. This was only introduced to the European
system by virtue of protocol number 11 recently in 1998.

With a period of 3 months from the date on exceptional circumstances request that the case be
referred to the grand chamber. If the request is accepted the grand chamber shall decide the case
by means of the judgment that will be final (also see articles 43-44) otherwise the judgment of
the chamber will be final when the parties declare that they have no intention of requesting
referral to the grand chamber or 3 months after the judgment in absence of such of request or
finally when the request has been rejected.

According to Article 46 the high contracting parties under take to article by the final judgment of
the court and it is a committee of ministers of the. European responsible for supervising the
execution of the final judgments.

NOTE: In determining the cases before for the court relies on the decline of margin of
appreciation. This is considered possible since the court consists of a no. of judgment from
different parties of Europe well versed with the law and situation of life in those particular
regions. The doctrine of margin of appreciation underscores the cultural relativism paradox or
ideas it also brings into play questions of university of H/Rs.

If under article 47 the court is respectively for giving advisory opinions on the request of the
committee of ministers on any legal question concerning the interpretation of the conventions
and the protocols.

Questions:

Will protocol no. 11 of the European convention on H/Rs help or hinder the protection of H/Rs
in European?
What are the arguments for against jurisdiction of regional H/Rs systems?
On what official standards would you evaluate the effectiveness of the European H/Rs
mechanism?
Which areas do you think require reform/
Do you think the European system is more efficient than the international mechanism?
In which ways?
HUMAN RIGHTS IN AFRICA

Did we have human rights in traditional age?

We did not have namedeture / they were not baptized they were in age but were not known by its
name and can be seen from the ways things operated e.g. the society had rules, norms and if
somebody violated these rules, then he/she was punished. There was values which society
protected for these values were a key to human rights.

The leaders of society had powers to determine what was rights and wrong and this means that it
was easy to abuse H/Rs since powers was vested in one individual.

Rights had corresponding duties. The concept of rights in the African context was that you were
given a right and was expected to return a duty. The African children were taught about their
enjoyment of rights by their parents for they had to in turn be loyal to their parents.

E.g. Uganda martyrs (human rights not yet institutionalized, communal as opposed to individual
enjoyment of rights.
There is a connection between a traditional concept of H/Rs in age of international
responsibilities and the African charter of Human people’s right look at the African union
(charter of the O.A.U)

The constitutive Act of the A.U, 2001 look at (NAPAD) the agreement and partnership for Age
is development.

THE AFRICAN HUMAN RIGHTS SYSTEM

This is the youngest systems of all established regional instruments and follows its counterparts
with a provision of similar procedures such as the interstate and individual commission
mechanisms and the reporting system.

The regional mechanism for the continents is anchored in the African charter of Human and
people’s rights adopted under the auspices of the O.A.U, 1981 and came into force in 1986. The
system is among countries geared to African adherences to the principles of human and people’s
rights freedom and duties and the promotion and protection of H/Rs.

THE BROAD STRUCTURE WITHIN THE SYSTEM IS SITUATED:

THE ORGANISATION OF AFRICAN UNITY. (O.A.U)

It was initially the official regional body of the African states which was inspired by the Anti-
colonial studies and primarily dedicated to the eradication of colonialization.

Through the O.A.U, African states created a pol block to facilitate intra-African relations and
forged a regional approach to African’s relationship with external powers. A conference of the
Heads of states in government adopted the O.A.U charter in 1963 and virtually all African states
were neighbors (members) it emphasized co-operation among members states, and peaceful
settlement of disputes among its purposes is the promotion of unity and solidarity of African
states defense of their sovereignty, territorial integrity and independence.

One of the O.A.U’s central has been the noninterference of internal affairs of member’s states
and the invariability of territorial boundaries of a country. The above has contributed to a
common phenomenon in age where by member states are reluctant to critique one another about
human rights violations.
Currently the African Union (A.U) has replaced the O.A.U, the idea of forming the African on
(A.U) was adopted as the fourth extraordinary session of the Assembly of heads of state since the
Great socialist people Libyan republic on 9th September 1999

By virtue of Art 33 of the constitutive Act of A.U (C.A.A.U), the ACT REPLACED THE
CHARTER OF THE O.A.U after the launch off the African union in Durban in July 2002
African union now supersedes the O.A.U.

The formation of the A.U was in conformity of the objective of the charter of the continent and
the treaty establishing the African Economic community. The union was actually established by
the constitutive Act of African union which entered into force in May 2001 its heads are in Addis
Ababa in Ethiopia. The objectives of the Union include,

-To promote and protect human’s peoples’ rights in accordance with the African charter on
human and peoples’ rights and other relation H/Rs instruments (Ref. Art 3 (b)

The principle of the union are laid down under Art 4 and include respect for democratic
principles, H/Rs rule of law and good governance.

A Glance at the NEW PARTNERSHIP FOR AFRICA’S DEVELOPMENT (NEPAD)

There is also groomed a new partnership for Africa’s development (NEPAD) by virtue of the
NEPAD declaration 2001. By this the Africans share a convention that they have a pressing duty
to collectively on the part to sustainer’s growth and development.

According to Art 18 human 2 of the, duration, the African states through NEPAD undertake to
respect human rights which is seen as a road to democracy

This NEPAD enforces human rights as stated in the African charter.

THE AFRICAN CHARTYER ON HUMAN AND PEOPLES RIGHTS

Point out the issues of the preamble

Freedoms, justice, equality for dignity principle objectives

Civil and pol rights can’t be dis associated from ECOSOC rights
Undertake to eliminate colonialism, neocolonism, etc. it is a charter for human and peoples right.
This means rights for individuals and the community freedom, Justice, equality and dignity. This
shows a link to the O.A.U.

Promote international co-operation taking into regard the UN

Charter and the [Link] this shows the African s to this extent believe in the university of human
rights through they wanted to create a system of their own since they follow the rules of UDHR:
By virtues of ….historical traditional African believe that UDHR helps them in their
interpretation of their rights i.e relatives: It also shows ‘’No rights with own duties in order to
enjoy these rights: To them, the African don’t believe in the stratification of the rights i.e
classification of right intheir importance: The duty to achieve total liberation.

Age this preamble gives a total insight into the systems.

N.B It is the newest mechanism least efficient and most controversial on the regional H/Rs
regime. The Assembly of heals of states and government in 1981 adopted the charter and it came
into force in 1986, THE African charter is the basis for advocacy for H/Rs in Africa. It puts into
consideration the virtues of historical traditions and the values of African Civilization. This
accordingly should inspire and characteristic the African states from recreation on the concept of
human and people’s rights.

It should be noted from the preamble that African states believe that enjoyments of H/Rs has to
be followed by the performance of duties. Further, they are convinced that all H/Rs are equal and
interdependent, therefore enjoyment of civil and political .rights cannot be disassociated from
economic, social and cultural rights to this end the Africans do not believe in the classification of
rights as first, second and third generation allegedly in order of importance.

Generally, it can be noted that the charter was constructed in a way that would be responsible to
Age needs hence it provides for rights in height of the ….and nature of African states e.g.

ART 18 (2) provides for the duty of the state to assist the family which is the custodian of morals
and traditional values recognized by the community. And art 27 provides for a duty towards
one’s family in society.
Would the state be liable for not assisting a family in African states in breakdown of morals?

How can we enforce international al instruments in Uganda? It has to domesticated, so if the

African charter is not domesticated one can’t bring an action e.g. the rights of the child
convention related to children is almost a replica of this convention ion Uganda.

COMMENTS ON SOME OF THE RIGHTS IN THE CHARTER

Art 1 provides that member states of the A.U to the African charter shall recognize the rights and
freedoms enshrined therein and shall undertake legislative or others measures.

(ACHPR), the complaint alleges that journalists are harassed both directly and indirectly. The
attacks are open by identified individuals whom the complaint claims are security agents of
Government but government denies responsibility there were several cases of killings, torture
and dis appearance among others. The commission in coming to its judgment noted that the state
has other states or non-state agents further that even where it can’t be proved that the violations
were committed by state and liberty of its citizens and to conduct investigations into the
manners.

The commission also noted that unlike other H/Rs instruments, the African charter does not
allow for a state to derogate from its obligations even in emergency situations, thus the civil war
in chad cannot be used as an excuse by the state violating or permitting violations of the rights in
the African charter.

Further comment: Art 6, Art 7 (right to be heard) , Art 10 ( right to free …..) were interfered in
the case of Art CIVIL LIBERTIES ORGANISATION (in respect of the Nigerian bar
Association) v NIGERIA (2000) AHRLR 186 (ACHPR 95)

The case was a protest against the practitioners (amendment) degree No.21 of 1993. The degree
established a body of benchers and out of the bar 128 members of this body, only 31 were
nominees of the bar Association and the rest, nominees of government. The bodies of benchers
were among others 40 disciplines practitioners in Nigeria. The degree was retrospective. The
commission held to the effect that the act of the state was an infringement with the free
formation of Association; That the interference constitutes a violation of Articles, 10, 6, 7 of the
African charter on human and people’s rights.
Many rights in the charter are expressed in significantly different ways from equivalent
provisions of the ICCPR comparing Art 13 of the African charter and Art 25 of ICCPR on pol.
Participation, the latter is more specific than the former.

The charter in some respects makes more political SHs than those of H/Rs e.g. Art 20 (2)
‘’coloniced on oppressed people shall have the right to free themselves’’

Some provisions state familiar laws with those of other H/Rs regional instruments but illustrate
them in specific ways putting into consideration Africa’s experience with western slave trade,
e.g. Art 19, 20 paragraph 2 and 5

Further the African charter provides for ECOSOC rights Articles 15-17 but does not go ahead to
qualify them the respect to their progressive realization and resource instants as was done in
Article 2 of the inter convention economic social and cultural rights, 1966 (the provision on …is
beautiful but can’t be enforced practically

In addition to the above, unlike others regional …... the African charter does not have any
derogation in time of war or public emergency. This implies there should not be abuses of H/Rs
at all times. Some of provisions are ideal but are they practicable? This to be a good aspect of the
system since it implies than are protected under all circumstances.

Newspapers was for any reason but simply criticized government if the Newspapers had been
guilty of libel could have sued them individually and called upon their to defined themselves
other than sealing up the premises many publications (lk at the full text of this case.

Limitations must be proportionate to the standards of community

Another salient feature of the African charter is the inclusion of individual duties besides the
rights (Articles 27)

This is an ‘’indication’ that the African charter is weak in that respect compared to other regional
systems.

There are H/E divergence schools of thoughts on the effectiveness of the above inclusion. It is
implemented to note that the negative school has gained more support or popularity as opposed
to positive hence the inclusion duties in an international instrument is seen as limitation or the
rights guaranteed in the charter.

ENFORCEMENT MECHANISMS UNDER THE CHARTER

Art 30 of the charter establishes the African commission within the African union (same as the
O.A.U) whose function is two food i.e. to promote and protect human and peoples’ rights. It
consists of all members who serve in their individual capacities and not on behalf of their
countries.

With regard to the function of promoting human and peoples’ rights the commission shall be in
place in parties collect documents undertake studies and research on Africa’s problems organizes
conferences, encourage domestic H/Rs institutions and it is also mandated to make or give view
and make recommendations to governments. The commission may further lay down principles
and roles aimed at solving legal problems relating to human and peoples’ rights.

It can also promote human and people’s rights by co-operation with other African and
international institutions concerned with the promotion and protection of these rights.

The protective mandate of the commission requires it to receive communications both from
states and other sources and also authorized it to interpreted all provisions of the charter of the
request of a state party, an institution of the A.U or an organization recognized by the A.U as
laid down in Art 45 (3)

INTER-STATE COMMUNICATIONS:

These are provided under Articles 46-54 of the charter if a state party to the charter has good
reason to believe that nor state party has violated the provision of the charts

It may be written communication draw the attention of the violating state party to the matter.

State to which the commission is addressed has 3 months Involved through bi-lateral
negotiations, or by any other Excel procedure either state can according to Art 48 bring to the
attention of the commission.

Withstanding the above provisions, the state party Refer the matter directly to the commission.
The commission can only deal with the matter after domestic remedies have been exhausted (Art
50)

In possession of all the necessary information, and having tried all appropriate of human and
peoples’ rights commission shall prepare a report starting the facts findings. The commission
then sends this report.

It must be submitted only after all domestic remedies have been exhausted unless it is obvious
that this procedure has been unduly prolonged. The case of SOCIOAL AND ECONOMIC
RIGHTS ACTION CENTER (SERAC) and Anor V NIGERIA 2001 AHRLR(60 ACHPR
2001), concerned environmental degradation caused by shell co-operation on collusion with the
Nigerian government while considering the request of exhaustion of local remedies under Article
56(5) the commission had this to say.

a) One purpose of the exhaustion of local remedies request is to give the domestic courts an
opportunity to decide upon cases before they are brought to the international forum thus avoiding
contradictory judgments of law at National and international levels where domestic law does not
cover a right it is likely that a case will be heard, therefore the potential of conflict does not a
rise. Likewise, if the right is not acknowledged there cannot be effective remedial action or any
action at all

b) Another rationale for the request (i.e. exhaustion of local remedies) is that the government
should be notified of H/Rs violation in order to have the opportunity to remedy such violation
before being called upon to a/c by an international tribunal

c) Requesting the exhaustion of local remedies ensures that the African commission does not
bine a tribunal of first instance for cases for which an effective domestic remedy exists.

Note: The commission took cognizance of the fact that the federal republic of Nigeria
incorporated the African charter into its domestic law with the result that all rights contained
therein can be involved in the Nigerian courts

However, at the time of submitting the communication the then military government of Nigeria
had enacted various desires ousting the jurisdiction of the courts for acts of government that
violate fundamental H/Rs local remedies could therefore.
Examination of these reports, the African charter on human and peoples’ rights has proceeded to
examine these reports in public sessions (e.g. see the Report by Ghana examined during the 14 th
session, December 1993)

([Link] edu/human rights/achpr/[Link].)

PERFORMANCE OF THE COMMISSION

The question here is whether the commission has been a success or failure since its inception. It
has had problems ranging from financial, institutional and normative (historical)

To some commentators like Ankumah Makau Matun the commission has been a disappointment.
It is a kind of institution that promises little in respect to its ambiguous promotional function and
delivers nothing.

It has not aggressively promoted H/Rs. Nevertheless it as in some cases organized seminars
jointly in non-government organization to grapple with H/Rs issues in Age.

Further the commission’s way of hearing communications basically mirrors closely that of the
U.N’s H/Rs committee the ICCPR but to one’s statesmen the procedure under art 59 of the
African charter has been strictly followed.

Communications are heard in strict confidence to an …..of excluding the petitioners for states
concerned all proceedings.

From the jurisdiction of the commission, it is obvious at its decisions are formulae, not binding
and attract attention from government and the H/Rs community at large…., the commission has
funding problems with affect the operation as if that is not enough there is lack of an
[Link] because the commission is anchored in look at charter which may claw-back
clauses (most of the were diluted by limitations the commission goes ……charter sometimes.

Seeing that the commission is not performing to its expectations, the Africans decided to
establish an African court on human and peoples’ rights to salvage the entire system from its
mere total irrelevancy and obscurity.
NOTE: We don’t usually study our history to see that can work and what can’t (the African
should first know their rights in order to establish a court by establishing an in situation to do
business in this area.

When a court is established, it complements the commission, but again one has to use much
funds to establish the court.

Therefore over having the whole system is a need for court to make binding decisions with
regard to enforcement of H/Re-elect members who can fight for people’s rights.

Conceptual issues that might affect its success= foundational History. The court puts a limitation
to access by individual our commission has direct access to the court. It requires a state party to
have party’s the treaty/ protocol for established of court.

THE AFRICAN COURT ON HUMAN AND PEOPLES RIGHTS

In June 1998, the protocol on the establishment of an African court on human people’s rights
was adopted by heads of states and government of the African union.

According to Art 2 of the protocol, the court is to complement the protective mandate of the
commission.

Further according to Art 3 the jurisprudence of the court is to extend to all cases and disputes
submitted to it in respect to interpretation and application of the charter and any other H/Rs
instruments ratified by the states concerned.

Qn. Do you think the age court will be a solution to the H/Rs problems in Africa?

There are divergent view on the likely effectiveness of the African court a 2-legged stool’
African states are aggregerous violates of human rights and cannot create an effective regional
H/Rs system, that can stand the test of time. In addition to that the court will most likely minor
for weaknesses of the commission, since the commission is already weak and the court is to
complement it. That the mere addiction of the court though a significant development is unlikely
in itself to address the normative and structural weakness that have plugged the African system
since its inception (structural weakness the commission working for itself poorly funded.
In addition to the above, must Africans do not know their rights and are not even aware when
there are abused. This means that educating the Africans of their rights is more urgent than the
institutions of the court

The court if created prior to educating the Africans on their rights might have less cases to deal
with due to the Africans insufficient knowledge of the need to violate their rights (there are
massive violations in Africa party due to illiteracy or partly due to lack of clear enforcement
mechanisms.

Another short coming of the court is the limitation of the access placed on individuals and non-
governmental organizations.

Art 5 of the protocol gives the commission, state parties for Africans inter-governmental
organizations automotive access to the court once a state party ratifies the protocol

According to Art 5 (3) of the protocol, individuals cannot bring a suit against the state unless 2
conditions set out in Art 34 (6) are met to say or i.e. i) at the time of ratification of the protocol
the state made a declaration accepting the competence of the court to receive any petition under
Art 5(3) involving a state party which has made such a declaration.

Some arguments for the court include:

That if the court avoids the pitfalls of the commission, it could deliver to the expectations of the
Africans

That the African system’s normative and institutional deficiencies can only be cured by the3
court which can effectively restrain states from H/Rs violations the court will definitely reduce
the burden of the commission and it will hence forth yield better results.

The solutions the African states should be allowed to domesticate the African charter.

There should be a complete over all of the system in order to reduce on the normative and
institutional deficiencies

THE INTER – AMERICAN SYSTEM OF H/Rs

The above system is a creature of the organization of American states (O.A.S) whose 1948
statute contains ref to human rights and where political organization play part in the operation of
the system. The substance guarantee of the system’s protection of H/Rs is found in the American
convention on H/Rs, 1969 and the American declaration of the Rights and duties if man, 1948.

The H/Rs mechanism in the America covers 25 states of O.A.S which include Brazil , Argentina,
Mexico, U.S etc.

To understand the American system it is implemented to consider the crucial pol. Context on the
system operates. The history of much of the America’s has since 1960 been characterized by
military dictatorships, violent expression of political opposition and in limited jurisdictions (Egs
of states where the above has been prevalent are Cuba, Haiti, Mexico, North Paraguay etc.)

The result of the above is that H/Rs issues in the America’s have often concerned gross as
opposed to ordinary violations of H/Rs. It is against this background that the current functioning
of the inter-American system should be examined.

THE CHAPTER OF THE O.A.S (Organization of American States)

This charter was adopted in 1948 and came into force in the pre-dates the UDHR by months and
was not intended to be legally binding on states. It was founded on principles which include:

A) To strengthen peace and security in the continent

b) To promote and consolidate representative democracy of ensure respect by the principle of

non-intervention principle was directed to the U.S which was priority to the O.A.S norm to
interferers in internal affairs of other dates.

c) To ensure peaceful settlement of disputes

d) To promote economic, social and cultural development

The O.A.S has a no. of organizations which include the Assembly with is the supreme body, the
committee ministers which meets at the request of any members to consider problems of an
urgent nature councils the ECOSOC council, the inter-American judicial committee which is the
advisory body on judicial matters and general secretariat. The above pol. Organization play role
in the H/Rs system to achieve its goals.

THE AMERICAN CONVENTION ON H/Rs

The convention was signed in 1969 in Costarica, hired into force in 1978. It has 25 members
states USA having signed but not yet ratified for Tobago having denounced the convention on
May 1998 in accordance with Art 8

Member states include Argentina, Brazil, Canada, Peru, Barbados, Bolivia, Chile, Colombia,
Dominica, Republic, Ecuador, Elsalvador, Grenada, GUATE, Honduras, Mexico, Nicaragua,
Panama, Paraguay, Uruguay and Venezuela. Note the united the convention and president Jimmy
carter referred it to the senate for its advice and consent to ratify the senate did not act on the
request which has not been renewed by subsequent administration.

The system seeks to consolidate a system of personal liberty and social justice based on respect
for essential rights than with the frame work of democratic institutions.

Part 1 of the convention establishes the obligation of a state to adopt such legislative measures as
may be necessary to give effect to those rights and freedoms.

Regarding the duty to respect, the inter-American court on the case of VELASQUEZ (H.R
series with no. 4. Paragraph 1 10 (1968), (a rising from Trinidad), it was stated that whene3ver a
state organ official or public entity violates one of the rights in the convention there is failure of
the duty to respect the rights and duties set forth in the convention.

Part 11 establish the H/Rs enforcement or protection namely the inter-American commission on
H/R and the inter-American court on H/Rs. It should be noted that the convention concerns itself
with detail of civil and political rights and only contains a blanket provision on economic, social
and cultural rights. The convention is more elaborate and advanced in its text than the European
convention and the protocols e.g. ART 23 gives a full detail of the right to participate in
government for detail is lacking in the European convention. Like the European convention and
ICCPR, The American convention provides for derogation in times of war under Art 27

THE INTER-AMERICAN COMMISSION ON H/R

Look at this.