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INTRODUCTION TO INTERNATIONAL HUMAN RIGHTS LAW

[Link] is international law?

Public international 8law* consists of rules and principles of general application dealing with
the conduct of states and of international organizations and with their relations with persons,
whether natural or juridical.

It defines States’ legal responsibilities in their conduct with each other, with international
organizations (governmental or nongovernmental), within their boundaries, and with individuals.
International law includes a variety of topics. These can include human rights, disarmament,
refugees, migration, statelessness, the treatment of prisoners, the use of force, the conduct of war,
and the environment.s
1.1. Where does international law come from?
1.1.1. Primary sources of law
Primary sources include treaty law and customary international law.
a) Treaties
What is a treaty?
A treaty (also known as a covenant or convention) is an international agreement between States.
Treaties can be either bilateral (between two States) or multilateral (between more than two State
parties). The core human rights treaties are multilateral.
Treaties can also be between states and intergovernmental organizations (IGOs).
How do treaties become law?
States begin with negotiations to come to a consensus on what treaty terms should be. States
must next express their “consent to be bound” (or their willingness to undertake legal rights and
obligations) by the treaty provisions. This commonly occurs when a state signs and ratifies a
treaty, although other methods are possible. Once a state has consented, it is considered a party
to the treaty and must perform the treaty terms in good faith.
.b) Customary International Law

What is customary international law?

3dCustomary law results from a general and consistent practice of states from a sense of legal
obligation. State practice must be widespread and followed most of the time. Simply put, certain
practices can become customary law if states believe they are legally bound to those practices.
These practices can take the form of action or non-action.
Where do customary norms come from?

Customary norms can come from state practices themselves, or from general statements of the
law (such as UN General Assembly resolutions). Customary practices can also be codified into
treaty law
1.1.2. Secondary sources of international law
Secondary sources can help provide guidance in a legal dispute when treaty or customary law do
not. Supplementary rules may include general principles of law, judicial decisions and teachings
of the most highly qualified publicists.

Introduction.
International human rights law (IHRL) is the body of international law designed to
promote human rights on social, regional, and domestic levels.
As a form of international law, international human rights law are primarily made up
of treaties, agreements between sovereign states intended to have binding legal effect
between the parties that have agreed
International human rights law, which governs the conduct of a state towards its people in
peacetime is traditionally seen as distinct from international humanitarian law which
governs the conduct of a state during armed conflict
Human rights are standards that recognize and protect the dignity of all human beings. Human
rights govern how individual human beings live in society and with each other, as well as their
relationship with the State and the obligations that the State have towards them.

Human rights law obliges governments to do some things, and prevents them from doing others.
Individuals also have responsibilities: in using their human rights, they must respect the rights of
others. No government, group or individual person has the right to do anything that violates
another’s rights.

Principles And Philosophical Underpinnings

Universality and inalienability

Human rights are universal and inalienable. All people everywhere in the world are entitled to
them. No one can voluntarily give them up. Nor can others take them away from him or her.

Indivisibility
Human rights are indivisible. Whether civil, political, economic, social or cultural in nature, they
are all inherent to the dignity of every human person. Consequently, they all have equal status as
rights. There is no such thing as a 'small' right. There is no hierarchy of human rights.

Inter-dependence and inter-relatedness

The realization of one right often depends, wholly or in part, upon the realization of others. For
instance, the realization of the right to health may depend on the realization of the right to
education or of the right to information.

Equality and non-discrimination

All individuals are equal as human beings and by virtue of the inherent dignity of each human
person. All human beings are entitled to their human rights without discrimination of any kind,
such as race, color, sex, ethnicity, age, language, religion, political or other opinion, national or
social origin, disability, property, birth or other status as explained by the human rights treaty
bodies.

Participation and inclusion

Every person and all peoples are entitled to active, free and meaningful participation in,
contribution to, and enjoyment of civil, political, economic, social and cultural development,
through which human rights and fundamental freedoms can be realized.

Accountability and rule of law

States and other duty-bearers must comply with the legal norms and standards enshrined in
human rights instruments. Where they fail to do so, aggrieved rights-holders are entitled to
institute proceedings for appropriate redress before a competent court or other adjudicator, in
accordance with the rules and procedures provided by law.

The Evolution and Development of Human Rights

Human rights are rights inherent to all human beings, regardless of our nationality, residence,
sex, sexual orientation and gender identity, national or ethnic origin, color, religion, language or
any other status. We are all equally entitled to our human rights without discrimination.

This is the modern concept of our fundamental rights but it was not always this way. The belief
that everyone, by virtue of her or his humanity, is entitled to certain human rights is fairly
new and is something stemming from an evolution of the consideration of human dignity
over the last centuries.

The origins of Human Rights are ideally pinpointed to the year 539 BC. When the troops of
Cyrus the Great conquered Babylon. Cyrus freed the slaves, declared that all people had the right
to choose their own religion, and established racial equality. These and other principles were
recorded on a baked-clay cylinder known as the Cyrus Cylinder, whose provisions served as
inspiration for the first four Articles of the Universal Declaration of Human Rights.

Another cornerstone in Human Rights History is represented by the promulgation of the Magna
Charta in 1215 which introduced a raw concept of “Rule of Law” and the basic idea of defined
rights and liberties to all persons, which offers protection from arbitrary prosecution and
incarceration. Before the Magna Charta, the rule of law, now considered as a key principle for
good governance in any modern democratic society, was perceived as a divine justice, solely
distributed by the monarch or the king or, in this case, King John of England.

An evolution of the concepts expressed by the Magna Carta is represented by the English Bill of
Rights. It was an act signed into law in 1689 by William III and Mary II, who became co-rulers
in England after the overthrow of King James II.
The Declaration of the Rights of Man and of the Citizen, adopted in 1789,
by France’s National Assembly , represents one of the basic charters of human liberties,
containing the principles that inspired the French Revolution.

The basic value introduced by the Declaration was that all “men are born and remain free and
equal in rights”, which were specified as the rights of liberty, private property, the inviolability
of the person, and resistance to oppression. All citizens were equal before the law and were to
have the right to participate in legislation directly or indirectly; no one was to be arrested without
a judicial order. Freedom of religion and freedom of speech were safeguarded within the bounds
of public “order” and “law”. Private property was given the status of an inviolable right, which
could be taken by the state only if an indemnity were given and offices and positions were
opened to all citizens.

Significant is the adoption of the first three Geneva Conventions and the Hague Conventions
expressing the deep concern of the public opinion to promote a respect of a basic level of
Human dignity of individuals even in wartime and posing the foundations of modern
International Humanitarian Law. The concerns over the protection of certain minority groups,
which were raised by the League of Nations at the end of the First World War, and the
establishment of the International Labor Organization (ILO) to oversee treaties protecting
workers

Many multilateral treaties on human rights arose out of war. In the field of International Law-the
oldest branch of human rights is protecting human rights in armed conflict and to relieve human
sufferings. The birth of human rights is started with the Geneva Convention in 1864, in which
the International Red Cross was officially recognized. Subsequently, there was the Hague
Convention in 1899 and 1907 and Second Geneva Convention in 1906. Both regarded the law of
warfare. In 1899, the permanent Court of International Justice was established in Hague.

 How to treat captives.

 Attacking non-combat facilities
 Red cross
 Types of conventioinal weapons to be used

After the Second World War, in the wake of atrocities the leaders of the victorious nations set
about to create peace and understanding among all the nations. In 1945, the founding charter of
United Nations underscored the need for all nations to encourage respect for fundamental
freedom and human rights of all persons.
Every person born in this world however is entitled to certain minimum rights which ought not to
be curtained in any matters. It is in this spirit, the United Nations General Assembly adopted
about forty years ago, on 10 December, 1948, the Universal declaration of Human Rights.

Subsequently, it has enacted many conventions and protocols relating to human rights and placed
them before the member countries for their acceptance and implementation. A large number of
states have ratified them.

Introduction.
International human rights law (IHRL)is the body of international law designed to
promote human rights on social, regional, and domestic levels.
As a form of international law, international human rights law are primarily made up
of treaties, agreements between sovereign states intended to have binding legal effect
between the parties that have agreed
International human rights law, which governs the conduct of a state towards its people in
peacetime is traditionally seen as distinct from international humanitarian law which
governs the conduct of a state during armed conflict
Human rights are standards that recognize and protect the dignity of all human beings. Human
rights govern how individual human beings live in society and with each other, as well as their
relationship with the State and the obligations that the State have towards them.

Human rights law obliges governments to do some things, and prevents them from doing others.
Individuals also have responsibilities: in using their human rights, they must respect the rights of
others. No government, group or individual person has the right to do anything that violates
another’s rights.

Principles And Philosophical Underpinnings

Universality and inalienability

Human rights are universal and inalienable. All people everywhere in the world are entitled to
them. No one can voluntarily give them up. Nor can others take them away from him or her.

Indivisibility
Human rights are indivisible. Whether civil, political, economic, social or cultural in nature, they
are all inherent to the dignity of every human person. Consequently, they all have equal status as
rights. There is no such thing as a 'small' right. There is no hierarchy of human rights.

Inter-dependence and inter-relatedness

The realization of one right often depends, wholly or in part, upon the realization of others. For
instance, the realization of the right to health may depend on the realization of the right to
education or of the right to information.

Equality and non-discrimination

All individuals are equal as human beings and by virtue of the inherent dignity of each human
person. All human beings are entitled to their human rights without discrimination of any kind,
such as race, color, sex, ethnicity, age, language, religion, political or other opinion, national or
social origin, disability, property, birth or other status as explained by the human rights treaty
bodies.

Participation and inclusion

Every person and all peoples are entitled to active, free and meaningful participation in,
contribution to, and enjoyment of civil, political, economic, social and cultural development,
through which human rights and fundamental freedoms can be realized.

Accountability and rule of law

States and other duty-bearers must comply with the legal norms and standards enshrined in
human rights instruments. Where they fail to do so, aggrieved rights-holders are entitled to
institute proceedings for appropriate redress before a competent court or other adjudicator, in
accordance with the rules and procedures provided by law.

The Evolution and Development of Human Rights

Human rights are rights inherent to all human beings, regardless of our nationality, residence,
sex, sexual orientation and gender identity, national or ethnic origin, color, religion, language or
any other status. We are all equally entitled to our human rights without discrimination.

This is the modern concept of our fundamental rights but it was not always this way. The belief
that everyone, by virtue of her or his humanity, is entitled to certain human rights is fairly
new and is something stemming from an evolution of the consideration of human dignity
over the last centuries.

The origins of Human Rights are ideally pinpointed to the year 539 BC. When the troops of
Cyrus the Great conquered Babylon. Cyrus freed the slaves, declared that all people had the right
to choose their own religion, and established racial equality. These and other principles were
recorded on a baked-clay cylinder known as the Cyrus Cylinder, whose provisions served as
inspiration for the first four Articles of the Universal Declaration of Human Rights.

Another cornerstone in Human Rights History is represented by the promulgation of the Magna
Charta in 1215 which introduced a raw concept of “Rule of Law” and the basic idea of defined
rights and liberties to all persons, which offers protection from arbitrary prosecution and
incarceration. Before the Magna Charta, the rule of law, now considered as a key principle for
good governance in any modern democratic society, was perceived as a divine justice, solely
distributed by the monarch or the king or, in this case, King John of England.

An evolution of the concepts expressed by the Magna Carta is represented by the English Bill of
Rights. It was an act signed into law in 1689 by William III and Mary II, who became co-rulers
in England after the overthrow of King James II.

The Declaration of the Rights of Man and of the Citizen, adopted in 1789,
by France’s National Assembly , represents one of the basic charters of human liberties,
containing the principles that inspired the French Revolution.

The basic value introduced by the Declaration was that all “men are born and remain free and
equal in rights”, which were specified as the rights of liberty, private property, the inviolability
of the person, and resistance to oppression. All citizens were equal before the law and were to
have the right to participate in legislation directly or indirectly; no one was to be arrested without
a judicial order. Freedom of religion and freedom of speech were safeguarded within the bounds
of public “order” and “law”. Private property was given the status of an inviolable right, which
could be taken by the state only if an indemnity were given and offices and positions were
opened to all citizens.

Significant is the adoption of the first three Geneva Conventions and the Hague Conventions
expressing the deep concern of the public opinion to promote a respect of a basic level of
Human dignity of individuals even in wartime and posing the foundations of modern
International Humanitarian Law. The concerns over the protection of certain minority groups,
which were raised by the League of Nations at the end of the First World War, and the
establishment of the International Labor Organization (ILO) to oversee treaties protecting
workers

Many multilateral treaties on human rights arose out of war. In the field of International Law-the
oldest branch of human rights is protecting human rights in armed conflict and to relieve human
sufferings. The birth of human rights is started with the Geneva Convention in 1864, in which
the International Red Cross was officially recognized. Subsequently, there was the Hague
Convention in 1899 and 1907 and Second Geneva Convention in 1906. Both regarded the law of
warfare. In 1899, the permanent Court of International Justice was established in Hague.

 How to treat captives

 Attacking non combat facilities
 Red cross
 Types of conventioinal weapons to be used

After the Second World War, in the wake of atrocities the leaders of the victorious nations set
about to create peace and understanding among all the nations. In 1945, the founding charter of
United Nations underscored the need for all nations to encourage respect for fundamental
freedom and human rights of all persons.

Every person born in this world however is entitled to certain minimum rights which ought not to
be curtained in any matters. It is in this spirit, the United Nations General Assembly adopted
about forty years ago, on 10 December, 1948, the Universal declaration of Human Rights.

Subsequently, it has enacted many conventions and protocols relating to human rights and placed
them before the member countries for their acceptance and implementation. A large number of
states have ratified them.

CLASSIFICATION, PHILOSOPHICAL UNDERPPININGS AND CRITIQUE OF

HUMAN RIGHTS.
Human rights are a highly contested concept. There exists a gap between the promise that every
human being enjoys a number of fundamental human rights and a world where human rights
violation abound and many people are excluded from the enjoyment of human rights. There is a
gap between human rights ideal and practice.
UNIVERSALISM VS CULTURAL RELATIVISM — DEBATE

The heated debate within the human rights discourse is the idea of universalism, which is based
on the contemporary international mandate of human rights, and cultural relativism, which is in
return continuously criticised as being absurd and illogical.
To begin with, the concept of universalism refers to the dogma that all human rights are usually
universal in nature. Consequently, such rights should be applied to human beings in every corner
of the world. Proponents of this concept use different theories such as rationalism, positivism,
and natural [Link] concept of universalism is mainly founded on the theory of natural law.
According to natural law theory, human rights are inherent and appropriate for every human
being

Universalist believe that human beings possess rights which have been there since birth. Since
the existence of the first human being, individuals have been entitled to certain rights that are
God-given. Therefore, rights are inherent to humans, and the roots of today’s human rights
concept. This concept informs the origins of the UN’s Universal Declaration of Human Rights of
1948 or even The French Declaration of the Rights of Man and the Citizen of [Link] concept
also shaped shaped the United States of America’s Declaration of Independence of 1776 which
also contained an outline of the basic human rights such as rights to liberty, life and pursuit of
happiness as inherently “endowed by their Creator”.

The universalistic approach mainly revolves around a liberal political ideology which propagates
freedom, equality, democracy, individualism and so on. These main concepts are a part of
today’s legal enactments. These values are considered to be superior as they are the ones who
promote peace, prosperity and development in society. The universality of human rights simply
means that every society even though each of them possesses absolutely opposite beliefs, norms,
values and system of governance is expected to be obedient to one set of rules. The globally used
UN Universal Declaration of Human Rights name itself contains the word “universal” which
points to the fact that it is an international legitimate framework that is expected to be accepted
worldwide by every single country that is recognised internationally.

A universal moral philosophy affirms principles that protect universal, individual human rights
of liberty, freedom, equality, and justice everywhere, giving them a nontransient, nonlegal
foundation. To suggest that fundamental rights may be overridden or adjusted in light of cultural
practices is to challenge the underlying moral justification of a universal system of human rights,
reflecting the autonomous individual nature of the human being.
Many examples illustrate repressive rulers who seek to rationalize repressive practices by
claiming that the culture of their society accepts those practices over universalist international
human rights prescriptions, and that to criticize their society's human rights practices is to impose
Western cultural imperialism over their local culture. Thus, rulers use cultural relativist
arguments to justify limitations on speech, subjugation of women, female genital mutilation,
amputation of limbs and other cruel punishment, arbitrary use of power, and other violations of
international human rights conventions. It is no wonder that the doctrine that human rights are
contingent on cultural practice has been called the "gift of cultural relativists to tyrants."
The most used and recognised legitimate mechanism that defines and summarises the rights of
individuals is the Universal Declaration of Human Rights adopted shortly after World War II
(1939 - 1945) in 1948. Since then it is regarded as a holy scripture by a majority of people,
especially within the Western part of the globe. The adaptation of a legal document that outlines
human rights is a core around which revolves the political, economic and social life just as the
planets revolve around the sun.

However, not many realise that Universal Declaration of Human Rights is not as definite as they
believe. The contemporary framework of human rights is not globally accepted by everyone,
especially by those who do not belong to the Western part of the world.

Culturalist argue that although human beings have the same lineage, as per historical
development, people grow into different cultures, norms, beliefs and traditions. People tend to
change their system of beliefs which also makes one person to be different from another

The other perspective of human rights can be examined and analysed using the cultural
relativism concept. Proponents of the notion indicate that human rights are dependent on the
existing cultural aspects.

Individuals who embrace this concept go further to argue that the ideas outlined in the Universal
Declaration of Human Rights of 1948 should be treated as the inappropriate products of Western
political thoughts and ideologies. Consequently, many cultural relativists have gone further to
argue that universalism is an inappropriate concept that should not be embraced in the world
today.
The cultural relativists go further to indicate that the western powers use their ideas and political
strengths to support the concept of universalism. According to such proponents of cultural
relativism, imperialism is “something that should be treated as a form of cultural imperialism”
In order to find an acceptable solution, cultural relativists believe strongly that local approaches
should be considered in order to promote universal justice.

Cultural relativism, as a concept to justify departure from human rights standards in international
law on cultural grounds, has scant claim to moral validity. Still, because cultural relativism has
been given the trappings of philosophic credentials even in UN circles
Cultural relativism is a concept loosely grounded in the theory of moral relativism. The notion is
that cultures manifest so wide and diverse a range of preferences, morality, motivations, and
evaluations that no human rights principles can be said to be self-evident and recognized in all
times and all places.
Cultural relativists, in their most aggressive conceptual stance, argue that no human rights are
absolutes, that the principles that one may use for judging behavior are relative to the society in
which oxne is raised, that there is infinite cultural variability, and that all cultures are morally
equal or valid.
Put into a philosophical calculus, the relativist says that "truth is just for a time or place"
identified by the standards of one's cultural peers.
For Cultural Relativists, however, human rights represent values that attach to communities: it is
the latter and not the individual that is their intended beneficiary. Relativists hold that because
alues are culturally specific, human rights should also be culturally oriented.

It would be a mistake to assume that the contemporary human rights framework is accepted
worldwide. This debate givesn an understanding as to why the enforcement of the legal
international framework as human rights has been problematic in the past decades and continues
to be an issue of disagreement among different entities.

NATURAL VS POSITIVIST APPROACH TO HUMAN RIGHTS

A. NATURAL LAW
Natural law can be thought of as the idea that power of law does not come from voice of
authority. Natural law says there is a higher reason why the law is the law (e.g morality,
universal principles, religious, etc.). Under natural law, horrific immoral laws would not be valid
even if they came from a legitimate authority.
Natural law finds its origins in ancient Rome and Cicero the philosopher. Thomas Aquinas
examined source of the law’s legitimacy; according to him natural law is God’s natural law.
A modern definition explores how natural law is universally applicable with rules derived from
reason; a doctrine that human affairs should be governed by ethical principles understood by
reason.
Natural law would understand international law as the source being a validity that comes from a
system of norms such as reason or morality. A natural law understanding would say that a law
cannot be created by states that contravenes jus cogens norms.
Natural law embodied those elementary principles of justice which were right reason, i.e., in
accordance with nature, unalterable, and eternal. Medieval Christian philosophers, such as
Thomas Aquinas, put great stress on natural law as conferring certain immutable rights upon
individuals as part of the law of God.
He claimed that an act, according to whether it is or is not in conformity with rational nature, has
in it a quality of moral necessity or moral baseness.
Natural law theory led to natural rights theory--the theory most closely associated with modern
human rights. The chief exponent of this theory was John Locke, who developed his philosophy
within the framework of seventeenth century humanism and political activity, known as the Age
of Enlightenment. 12
Locke imagined the existence of human beings in a state of nature. In that state men and women
were in a state of freedom, able to determine their actions, and also in a state of equality in the
sense that no one was subjected to the will or authority of another. However, to end the hazards
and inconveniences of the state of nature, men and women entered into a "social contract" by
which they mutually agreed to form a community and set up a body politic. Still, in setting up
that political authority, individuals retained the natural rights of life, liberty, and property.
Government was obliged to protect the natural rights of its subjects, and if government neglected
this obligation, it forfeited its validity and office. 13
The Natural law component is visible in the French Declaration of the Rights of Man, 14 in the
US Declaration of Independence, 15 in the constitutions of numerous states created upon
liberation from colonialism, and in the principal UN human rights documents.
Natural rights theory makes an important contribution to human rights. It affords an appeal from
the realities of naked power to a higher authority that is asserted for the protection of human
rights. It identifies with and provides security for human freedom and equality, from which other
human rights easily flow. It also provides properties of security and support for a human rights
system, both domestically and internationally.
Under Locke's view of human beings in the state of nature, all that was needed was the
opportunity to be self-dependent; life, liberty, and property were the inherent rights that met this
demand.
-jus cogens. A peremptory norm. Is a fundamental principle of international law which is
accepted by the international community of states as a norm from which no derogation is ever
permitted.
LEGAL POSITIVISM:
The most serious attack on natural law came from a doctrine called legal positivism. This
philosophy came to dominate legal theory during most of the nineteenth century and the
twentieth.
In contrast positivisim says the authority is what makes the law the law. There are 3 key
assumptions of positivism as explanation for law’s legitimacy: positive declaration i.e. law
must be expressed; IL is created by sovereign states which are the subject of international
law; it holds that law is effective even if it is unjust when measured against some moral standard
ie there is no necessary conformity of international law to morality.
Cassical positivist philosophers deny an a priori source of rights and assume that all authority
stems from what the state and officials have prescribed. This approach rejects any attempt to
discern and articulate an idea of law transcending the empirical realities of existing legal
systems. Under positivist theory, the source of human rights is found only in the enactments of a
system of law with sanctions attached to it. Views on what the law "ought" to be have no place in
law and are cognitively worthless. The theme that haunts positivist exponents is the need to
distinguish with maximum clarity law as it is from law as it ought to be, and they condemned
natural law thinkers because they had blurred this vital distinction. In its essence, positivism
negates the moral philosophic basis of human rights.
By divorcing a legal system from the ethical and moral foundations of society, positive law
encourages the belief that the law must be obeyed, no matter how immoral it may be, or however
it disregards the world of the individual.
Positivism in general holds international law based on state consent. It is created in contractual
like fashion between states.
A positivist approach would say that its state consent that creates international law. Law does not
have to be consistent with morality or a higher state of reason.
Even granting the validity of the criticism, the positivist contribution can still be significant. If
the state's processes can be brought to bear in the protection of human rights, it becomes easier to
focus upon the specific implementation that is necessary for the protection of particular rights.
F. RIGHTS BASED ON THE VALUE OF UTILITY
Another theory that has played a commanding role in political and moral philosophy is
utilitarianism.
Utilitarianism is a maximizing and collectivizing principle that requires governments to maximize
the total net sum of the happiness of all their subjects. This principle is in contrast to natural
rights theory, which is a distributive and individualizing principle that assigns priority to specific
basic interests of each individual subject.
Classic utilitarianism, the most explored branch of this school, is a moral theory that judges the
rightness of actions affecting outcomes in terms of securing the greatest happiness to all
concerned. Utilitarian theory played a commanding role in the philosophy and political theory of
the nineteenth century and continues with some vigor in the twentieth.
Jeremy Bentham, who expounded classical utilitarianism, believed that every human decision
was motivated by some calculation of pleasure and pain. He thought that every political decision
should be made on the same calculation, that is, to maximize the net produce of pleasure over
pain. Hence, both governments and the limits of governments were to be judged not by reference
to abstract individual rights, but in terms of what tends to promote the greatest happiness of the
greatest number.
CRITIQUE OF HUMAN RIGHTS
REALIST CRITIQUE
They reject that Human rights pre-exist any legislative imprint or social recognition. They reject
that Human rights are inalienable and imprescriptible. They reject that human rights cannot be
transferred forfeited or waived. They also reject that human rights are natural, discoverable by
reason. Realist reject the idea that human rights are natural – existing out there to be recognized
and implemented .. They argue that human rights cannot be above and beyond the state.
Man made origins of human rights are not obvious at all. Rights are imaginary. Making people
believe these rights exist is dangerous as this could lead to an insurrection. The promise of rights
which could not be respected. Human beings are obviously not born equal. Utopian world.
Giving or recognizing supposed natural, superior, fundamental rights, which could be defeated
by legislation meant nothing . Was against the idea that human rights are natural. The state does
whatever it requires for its own survival. It is not guided by private morality. Human rights law
is yet another sphere where states play power games as evidence by reservation clauses and
derogations which make them apply double standards. They reject the idea that human rights
could exist above and beyond the state. Human rights belong to the imagination of utopian
dreamers.
THE UTILITARIANISM CRITIQUE
Utilitarianism is the ethical philosophy that believes that an action must be judged morally in
relation to the welfare/ utility it produces. The idea of human rights seems good to the common
interest of society. Good acts is the one that maximises happiness. Before deciding on a course
of action, utilitarianism demands that the likely consequences be weighed and considered. Is
utilitarianism opposed to human [Link] and No..On the one hand, it cannot accept the idea of
absolute and inalienable rights which seems central to human rights, on the other hand,
individual rights seems conducive to collective human rights. Most utilitarianism believe that
individual sacrifice for the benefit of the common good is important. They don’t accept that
some rights are inalienable and absolute.
Utilitarianism (seeking common good)- reject the idea granting individual rights regardless of the
consequences of common good It is impossible for human beings to be absolute and inalienable.
Moral interest, goods, welfare, justice, utility
Common good and general interest of society;
MARXIST CRITIQUE
Marxists see rights as feeding the burgeois order and thus feeding oppression by privileging a
particular class over others. Rights are meant to split the citizen from the burgeois. Man is put at
the service of burgoise. Rights are meant to sustain inequality and oppression… capitalistic
society. They view rights to enjoy, use, possess property arbitrary as right of selfishness.
Institution of state, law and property should wither away
THE CULTURAL RELATIVITY AND PARTIULARIST CRITIQUE
Cultural relativism is the theory founded on the double observation that moral systems are
embedded in culture and that different cultures produce different moralities. The debate was
spurred by the discussions generated following the adoption of the Universal Declaration of
Human Rights. One major question was how could proposed declarations be applicable to all
human beings. Rights were viewed as values prevalent in western Europe and America. Bearing
in mind the cultural destruction heralded by colonialism and imperialism. The school advocated
for respect for cultures of various people.
They state that no declaration could ever manag e to identify universal human rights across all
human kind across time and space. This school dictates tolerance of cultural embedded moral
system. Different societies hold different values and all these values must be tolerated. The
observation that cultures produce various moral norms
Cultural relativism highlights the difficulties of establishing reasonable and general grounds for
making moral judgements about the actions of others and the strong tendency among powerful
peoples of the world to use their own standards favourable to them in relation to others. The
doctrine acts as a counter to the arrogance and abusive effects of universalism. The universalism
of human rights is not a fact. Human rights universalism is a theory. The universalist too often
assume that they stand on firm ground in making judgements about others.
Culturalist/ particularists object that there exists moral judgements that hold true across cultures.
They call for tolerance for practices that are not comprehensible within the dominant perspective.
Inherent imperialism of human rights
Cultural relativism however has to be denigraded by demanding that the intolerable be tolerated.
It has been abused
THE FEMINIST CRITIQUE
Human rights remain pre dominantly male in their conception and implementation. The
affirmation in law of women entitlement to equal rights is assuredly a momentous achievements.
Feminist dispute the idea that human rights are gender neutral. They attack human rights
claim of equality and neutrality by observing that rights tend to regulate the perceived
public sphere. Feminism is a way of looking the world as organized along gendered lines wich
benefit men and trying to change it so that women are empowered. Women must not be excluded
from the rights enjoyed by men.
THE POST COLONIAL CRITIQUE
Views the concept of rights from the lenses of oppression and imperialism. Human rights is
entrenched in the colonial logic. Post colonial theorist link human rights to imperialism.
INTERNATIONAL AND REGIONAL HUMAN RIGHTS ENFORCEMENT; THE UN SYSTEM
OF HUMAN RIGHTS PROTECTION AND REGIONAL HUMAN RIGHTS PROTECTION
SYSTEMS.

The story of the United Nations

In 1920, at the Paris Peace Conference that ended WWI, the League of Nations was born. It was
the first intergovernmental organization with the goal to maintain world peace. While the
organization proved to be ineffective, the concept of a unified group of nations lived on. The jns
was officially established in 1945 in response to WWII.
When the UN first met, there were 51 Member States who ratified the United Nations Charter. In
1948, the assembly adopted the Universal Declaration of Human Rights, which elaborated on the
Charter’s principles and established universal human rights. This was a high priority for the UN
following the Holocaust and other atrocities during the war.

The UDHR has since become a guiding document for various human rights treaties and
instruments. Currently, the UN has 193 members and is headquartered in New York City.

The purpose of the UN

Article 1 of the UN Charter lays out the purpose of the organization :

1. To maintain international peace and security ;
2. To develop friendly relations among nations based on respecting the equal rights and
self-determination of people;
3. To achieve international cooperation in solving economic, social, cultural, and
humanitarian problems (including promoting respect for human rights and freedoms)
4. To be a center for harmonizing the actions of nations as they try to accomplish these
goals.

What’s the Role of the UN in Protecting Human Rights?

The United Nations is the world’s largest intergovernmental organization. Currently made of five
main organs – the General Assembly, the Security Council, the Economic and Social
Council, the International Court of Justice, and the UN Secretariat
At the 1945 San Francisco Conference, the idea of promulgating an "international bill of rights"
was considered by many as basically implicit in the Charter. One of the first tasks facing the UN
was to enumerate and define what human rights were, and to articulate the means for their
recognition and protection at universal level.
Codifying the “International Bill of Human Rights” was the exclusive focus of human rights
activities in` the UN for the first years of life of the Organization. Since then, the UN has served
as a privileged forum for the creation and crystallization of human rights standards as customary
law, treaty law and general principles of laws.
Some human rights standards are now well-established norms and principles (e.g. the right to self
determination, prohibition of torture, freedom of conscience, non-discrimination) while many
others are still emerging customary law or remain in the drafting process before becoming new
conventional law (e.g. right to democracy, global governance, environment, peace, collective
rights link to minorities or indigenous people, etc.).
How does the UN protect human rights?

Instruments and entities are used to protect human rights?

Treaties and legal instruments
The International Bill of Human Rights
The International Bill of Human Rights is made of three instruments: The UDHR, the
International Covenant on Civil and Political Rights, and the International Covenant on
Economic, Social and Cultural Rights. The UDHR is the foundation of international human
rights law. The two covenants reiterate many of the articles in the UDHR, but the covenants are
legally-binding treaties.
Conventions
A convention is a legally binding agreement between contracting countries and the UN. Several
conventions address human rights issues, such as the International Convention on the
Elimination of All Forms of Racial Discrimination; the Convention on the Elimination of All
Forms of Discrimination Against Women; and the Convention on the Rights of the Child.
Entities that address human rights:
The Office of the High Commissioner for Human Rights (OHCHR)
Based in Geneva, the OHCHR is the main UN entity that protects and promotes human rights. It
supports the human rights aspects of peacekeeping missions and maintains offices in different
regions such as Africa, the Americas, the Middle East, and Europe and Central Asia. The High
Commissioner for Human Rights has the authority to investigate human rights situations, publish
reports, and comment on human rights issues.

The Office of the High Commissioner for Human Rights (UN Human Rights) is mandated by the
UN General Assembly to promote and protect the enjoyment and full realization, by all people,
of all human rights.

UN Human Rights is mandated:

 Promote and protect all human rights for all

 Recommend that bodies of the UN system improve the promotion and protection of all
human rights
 Promote and protect the right to development
 Provide technical assistance to States for human rights activities
 Coordinate UN human rights education and public information programmes
  Work actively to remove obstacles to the realization of human rights and to prevent the
continuation of human rights violations
 Engage in dialogue with Governments in order to secure respect for all human rights
 Enhance international cooperation for the promotion and protection of all human rights
 Coordinate human rights promotion and protection activities throughout the United
Nations system
 Rationalize, adapt, strengthen and streamline the UN human rights machinery
 Promotion and protection of human rights
 Monitoring and reporting
 Technical assistance and capacity building

The Human Rights Council

In 2006, the HRC replaced the UN Commission on Human Rights. Its mission is to promote and
protect human rights. The Council has 47 elected members that address human rights violations,
make recommendations, and discuss “thematic human rights issues and situations.”
The Security Council
The Security Council frequently deals with human rights abuses, especially in conflict zones.
The Council has the authority for certain actions. They can investigate, mediate, dispatch a
mission, appoint special envoys, dispatch a peacekeeping force, and issue a ceasefire directive.
They can also establish travel bans, economic sanctions, arms embargoes, and more.
UN peacekeepers
The UN sends out many peacekeeping operations and peace-building missions. Working on the
ground, human rights teams are responsible for protecting civilians, addressing conflict-related
human rights violations, and strengthening respect for human rights and the rule of law.

Through Sanctions, embargo, freeze

The UN Development Group’s Human Rights Working Group

This group was established in 2009 at the request of the UN Secretary-General. Abbreviated as
UNDG-HRWG, this group’s role is to advance human rights mainstreaming efforts with the UN
development system. The OHCHR serves as the Chair. Priorities include making human rights
expertise available to national development actors and helping the UN development system
deliver rights-based development results.

Treaty bodies
There are ten human rights treaty bodies made of independent experts in human rights. Their role
is to monitor the implementation of the core international human rights treaties, such as the
International Covenant on Economic, Social and Cultural Rights.

Special advisors/experts
Special Advisors
There are two Special Advisors (who are individuals appointed by the Secretary-General) that
focus on human rights: the Special Advisor on the Prevention of Genocide and the Special
Adviser on the Responsibility to Protect.
Special Representatives
In addition to Special Advisers, the Secretary-General also appoints special representatives who
advocate against major human rights abuses. There are currently three special representatives
focused on Children and Armed Conflict; Sexual Violence in Conflict; and Violence Against
Children.
Special Rapporteurs
The Human Rights Council appoints Special Rapporteurs, who are human rights experts. Their
role is to monitor, advise, and report on human rights situations in specific countries and
worldwide. They respond to individual complaints, conduct studies, and travel to countries to
assess human rights situations.
What challenges threaten the UN’s role in protecting human rights?
The UN has many entities and instruments addressing human rights, but the organization faces
significant challenges in its role as a protector of human rights. Here are three problems:
 The acceptability of universality of human rights
 The Security Council veto power
There are mechanisms within the UN system that cause problems. The veto power system of the
Security Council is a key example. Because of their role in founding the United Nations, the US,
UK, China, France, and Russia get special status as permanent members of the Security Council.
They’re also given a special voting power: “the right to veto.” That means if any one of these
five Members decides to vote “no” in the 15-member Security Council, the decision or solution
won’t move forward. A decision could have support by every single member except one of the
five Permanent Members, but their veto stops it cold. x
 A damaged reputation
Many scandals and controversies have tainted the UN’s record on human rights. One of the most
pressing issues involves the Human Rights Council. In 2020, the General Assembly elected
fifteen new members, including China, Pakistan, and the Russian Federation. China managed to
be elected despite weak support; compared to its previous election, it lost the support of 41
Member States. Of the countries elected, it got the fewest votes. This is due to China’s
deteriorating reputation on human rights, which includes a violent response to pro-democracy
protestors in Hong Kong.

 The last main challenge facing the UN is the scope and scale of human rights issues.

As an intergovernmental, global organization, the UN has a responsibility to deal with all of

them. Issues include security, poverty, climate change, sustainability, children’s rights,
disarmament, healthcare, food security, gender equality, forced migration, and more. The cost
and complexity of addressing these issues are hard to fathom, but there’s another factor that
affects the UN’s effectiveness as a human rights protector: its power.
Despite its size and influence, the UN does not hold much actual power over its Member States.
It doesn’t take long to find evidence that many of the 193 Member States are not upholding
international human rights law. While Article 6 of the Charter does give the UN power to expel
Members who have “persistently violated the Principles contained in the present Charter,” it
never has. Even if it did expel a Member, how does that halt the human rights violations still
going on? What can the UN do about countries not bound to its treaties? The UN’s toothlessness
leaves many wondering just how effective the organization can be at upholding human rights.
THE UNIVERSAL DECLARATION OF HUMAN RIGHTS
 Holocaust
 World war 1 and 11


The UN Charter, signed on 26 June 1945 in San Francisc o, mentioned human rights
seven times, but without definition of the term. It mandated the Economic and Social
Council (ECOSOC) to create a permanent Commission on Human Rights (UNCHR),
which commenced operation in January 1947.
The meaning of the abstract term “human rights” was explained with the adoption of the
Universal Declaration of Human Rights (UDHR) on 10 December 1948, which is
primarily concerned with the relationship between the government and the individual.
Discussions began in the United Nations Commission on Human Rights in January 1947,
ending in an overwhelming vote of endorsement in the General Assembly on 10
December 1948. The Declaration embodied an organic unity between civil, political,
economic, and social rights that were equal, inherent, and inalienable for all persons.48
states endorsed, eight abstentions, and two absences. All of the Communist states
abstained, the Union of Soviet Socialist Republics (USSR), the Ukrainian Soviet
Socialist Republic (UKSSR), the Byelorussian Soviet Socialist Republic (BSSR),
Poland, Czechoslovakia, and Yugoslavia. The final 30-article text emerged out of a
protracted drafting process entangled by the philosophical idealism, sovereign self
interest, and bureaucratic politics of national delegates.
The 1948 Universal Declaration of Human Rights established an international standard
for measuring the enjoyment or violation of the rights entitled to all members of the
human family. The Declaration is beyond doubt a great inspirational document, a
remarkable achievement, a worldwide referential document, and the one with the highest
moral status. It has been referred to in international and regional human rights
instruments, numerous national constitutions

The UDHR was influenced by a variety of sources, including:

  The Magna Carta (UK) was issued in June 1215 and was the first
document to put into writing the principle that the king and his government
were not above the law. It sought to prevent the king from exploiting his
power and placed limits on royal authority by establishing law as a power in
itself.
 The American Declaration of Independence (1776)
 The French Declaration of the Rights of Man and the Citizen (1789)
 The Atlantic Charter (1941)-The Atlantic Charter was the statement of
principles agreed to by President Roosevelt and Prime Minister Churchill of
Great Britain at their first wartime conference.

Whilst it can be read as a list of civil and political and economic, social, and cultural
rights, there are principles underpinning the Declaration:
i. The equal status of human persons;
ii. The need for the protection of the physical and psychological integrity of
the person;
iii. The requirement for full participation in the political, economic, social,
cultural, scientific, etc. life of the society;
iv. The right to minimum welfare.
v. INALIENABLE. INTERDEPENDENCE,INHERENT, INDIVISIBILITY

1. GUIDE GOVT
2. STANDARD
3. ISPIRE
The importance of equal status is clear from the first two provisions:
 Article 1 provides that “All human beings are born free and equal in dignity and
rights,” while
 Article 2 establishes that the rights in the Declaration are to be enjoyed without
distinction of any kind.
 The rights to life, liberty, and security of person (Article 3, UDHR);
 The prohibitions on slavery (Article 4),
 Freedom from torture (Article 5),
  Freedom from arbitrary arrest (Article 9); and
 The right to freedom of movement (Article 13).
 Declaration prohibiting arbitrary interference with privacy, family, home, or
correspondence (Article 12) and
 protecting my right to my property (Article 17).
 The right to personhood, or meaningful agency, is seen in the right to marry and to
found a family (Article 16)
 Rights to freedom of thought, conscience and religion (Article 18),
 Freedom of opinion and expression (Article 19),
 Along with the right to education, which “shall be directed to the full development
of the human personality” (Article 26).
 The Declaration further recognizes that meaningful agency can only be enjoyed in
community with others, with the establishment of the rights to political
participation (Article 21);
 to work (Article 23);
 to rest and leisure, including periodic holidays with pay (Article 24);
 and to participate in the cult ural life of the state (Article 27).
 Finally, the Universal Declaration affirms the need for minimum welfare,
recognizing the right to an adequate standard of living, including food, clothing,
housing, and medical care, and the right to social security in the event of
circumstances beyond the individual’s control (Article 25(1)).
However, despite the numerous achievements, billions of people are still living in dire
conditions of (extreme) poverty, 4 income and other inequality discrimination,
deprivation, exclusion, fear, oppression, powerlessness, subordination; and millions are
facing death. Although the vision set out in the UDHR was characterized by its elegance,
the path to its completion was protracted as a result of the following;
 Philosophical idealism,
 Sovereign self-interest;
 bureaucratic politics.
 the conception of human rights outside the state,
 itself a fundamental aspect of the concept;
 a purported Western bias toward individual rights;
 patterns of cultural and religious relativism.
 Debate surrounding universalism
 Lack of Political will
 Judicial enforcement
  Religious and cultural differences..cultural relativism..western idealism,
individualism, secularism.
 Selective enforcement and double standards
 Poverty and lack of recources
 Technological development
 Non binding nature
 Lack authority to impose meaningful sanctions
 Prioritisation of National security and counterterrorism
 Environmental issues not adequately addressed.
SUCCESSES
1. Foundation of HR laws- 1CCPR, ICESCR
2. Development of regional human rights
3. Influence of national constitutions and laws
4. Judiciary decisions
5. Inspired Human rights and civil society movements – Martin Luther Kings
6. Inspired treaties and conventions
7. Global human rights awareness- Translated into many languages
8. ICC formation..WAR crimes and crimes against humanity
APPLICATION OF THE UNIVERSAL DECLARATION OF HUMAN
RIGHTS

The Universal Declaration of Human Rights (UDHR) has had widespread

application since its adoption in 1948, influencing global, regional, and local
practices and legal systems in various ways.

1. As a Foundation for International Human Rights Law

The Universal Declaration of Human Rights is generally agreed to be the

foundation of International Human Rights Law. Adopted in 1948, the UDHR has
inspired a rich body of legally binding international human rights treaties such as
the International Covenant on Civil and Political Rights (ICCPR) of 1966 and the
International Covenant on Economic, Social and Cultural Rights (ICESCR) of
1966. It continues to be an inspiration to us all whether in addressing injustices, in
times of conflict, in societies suffering repression, and in our efforts towards
achieving universal enjoyment of human rights.

It represents the universal recognition that basic rights and fundamental freedoms
are inherent to all human beings, inalienable and equally applicable to everyone,
and that every one of us is born free and equal in dignity and rights. Whatever our
nationality, place of residence, gender, national or ethnic origin, color, religion,
language, or any other status, the international community on December 10 1948
committed to upholding dignity and justice for all of us

2. Influence on National Constitutions

The principles and values articulated in the UDHR have influenced national
constitutions, laws, policies, and judicial decisions worldwide. It has shaped
human rights advocacy and activism, guiding efforts to hold governments
accountable for human rights violations. Examples include South Africa in its Bill
of Rights Chapter 2 which closely mirrors UDHR, India with its Fundamental
Rights Part III which reflects UDHR principles, Brazil’s Constitution’s Bill of
Rights Title II and Canada’s Charter of Rights and Freedoms Section15 which
reflects UDHR’s equality provisions.

3. Establishment of International Courts and Mechanisms

The UDHR has been central to the creation of the International Criminal Court
(ICC) which investigates and where warranted tries individuals charged with the
gravest crimes of concern to the international community such as genocide, war
crimes, crimes against humanity, and the crimes of aggression.

It has also laid the groundwork for the European Court of Human Rights (ECHR)
established under the European Convention on Human Rights (1950), the Inter-
American Court of Human Rights (IACHR) which protects rights based on the
American Convention on Human Rights (1969) and the African Court on Human
and Peoples’ Rights (ACHPR) established under the African Charter on Human
and Peoples’ Rights (1981).

4. Support for Decolonization and National Liberation

The UDHR’s emphasis on equality and the prohibition of discrimination in Article

2 was a powerful tool for delegitimizing colonial systems based on racial and
economic exploitation. Colonial subjects used the language of the UDHR to argue
against systemic inequalities imposed by colonial rule, such as racial segregation,
forced labor, and economic disenfranchisement.

Activists and leaders of national liberation movements cited the UDHR to justify
their struggles for independence and equality such as Kwame Nkrumah of Ghana
who invoked human rights principles to argue for African sovereignty and
Mahatma Gandhi’s campaign for Indian independence resonated with the UDHR's
emphasis on freedom, dignity, and non-violence.

5. Empowering Civil Rights Movement

The UDHR was instrumental in inspiring the global Civil Rights Movement in the
United States. Leaders like Martin Luther King Jr. and organizations like the
National Association for the Advancement of Colored People (NAACP) used the
language of the UDHR to demand racial equality and an end to segregation. The
UDHR reinforced the legitimacy of demands for voting rights, desegregation, and
equal opportunities in education and employment. International attention to racial
discrimination in the U.S. heightened after the adoption of the UDHR, pressuring
governments to align with global human rights norms.
The UDHR’s call for equality in Articles 1 and 2 empowered women’s movements
globally to challenge gender-based discrimination and violence. Women’s rights
activists used the UDHR to push for equal pay and workplace rights, reproductive
rights, and the criminalization of domestic violence and gender-based
discrimination.
6. Addressing Modern Issues
The UDHR’s Article 19 (freedom of expression) and Article 12 (protection from
arbitrary interference with privacy) are applied to safeguard digital rights. Activists
and policymakers use the UDHR to advocate for the protection of personal data
and privacy online, combating censorship and surveillance by authoritarian
regimes and ensuring access to the internet as a fundamental right.
The UDHR is also vital in addressing the rights of refugees, migrants, and stateless
individuals. Article 14 affirms the right to seek asylum from persecution and
Article 15 asserts the right to a nationality. These principles underpin modern
frameworks like the 1951 Refugee Convention and guide responses to migration
crises caused by war, persecution, or climate change.

SUCCESSES OF THE UNIVERSAL DECLARATION OF HUMAN

RIGHTS (UDHR)
The Universal Declaration of Human Rights (UDHR), adopted by the United
Nations General Assembly in 1948, has achieved significant milestones in
promoting and protecting human rights globally. Here are some notable successes:

1. Foundation for International Human Rights Law

The UDHR is widely recognized as a foundational text that inspired the
development of international human rights law. It paved the way for over 80
international treaties and declarations, establishing a comprehensive framework for
human rights protection worldwide.
2. Global Adoption and Influence
Initially adopted by 48 countries, the UDHR now influences all 193 member states
of the United Nations, with each country ratifying at least one treaty derived from
its principles. This widespread acceptance underscores its role as a universal
standard for human rights.

3. Incorporation into National Laws

The principles outlined in the UDHR have been incorporated into many national
constitutions and legal frameworks. A study indicated that at least 90 national
constitutions include references to fundamental rights inspired by the UDHR[2].
Countries such as India and various African nations have explicitly cited the
UDHR in their legal texts, demonstrating its impact on domestic law.
4. Promotion of Human Rights Bodies
The establishment of various UN bodies dedicated to human rights, such as the
Human Rights Council, can be traced back to the UDHR’s influence. These
institutions work to monitor and address human rights violations globally,
reinforcing the Declaration’s principles in international governance.
5. Cultural and Linguistic Reach
The UDHR is the most translated document in the world, available in over 360
languages. This extensive translation effort has made its principles accessible to
diverse populations, enhancing its global reach and relevance.
6. Moral and Legal Impact
The UDHR has served as both a moral compass and a legal benchmark for human
rights advocacy. It has inspired movements worldwide, including anti-apartheid
efforts in South Africa, where it provided hope and guidance to those fighting
against oppression.
7. Recognition of Inalienable Rights
The Declaration asserts that rights are inherent to all individuals, regardless of
nationality or status. This universal recognition has shifted perspectives on state
sovereignty, emphasizing that governments cannot use sovereignty as a
justification for human rights violations.
In conclusion, The UDHR stands as a monumental achievement in human history,
establishing a common standard for human rights that transcends cultural and
political boundaries. Its ongoing influence is evident in international law, national
constitutions, and grassroots movements advocating for justice and equality around
the globe.

RECOMMENDATIONS
Despite its successes, challenges remain in the implementation and enforcement of
human rights. Here are several recommendations for strengthening the UDHR's
impact:

 Enhanced Monitoring Mechanisms: Establish more robust mechanisms to

monitor compliance with human rights standards, including increased
funding and support for UN bodies and regional organizations.
 Education and Awareness: Promote human rights education at all levels,
focusing on the rights enshrined in the UDHR to foster a culture of respect
and understanding.
 Strengthening Civil Society: Support and protect civil society organizations
that advocate for human rights, particularly in regions where these rights are
under threat.
 Engaging Non-State Actors: Encourage engagement with non-state actors,
including corporations and technology companies, to ensure they respect
human rights in their operations.
 Cultural Sensitivity: Promote dialogue that respects cultural diversity while
upholding universal human rights. This involves recognizing the importance
of local customs and practices while advocating for the fundamental rights
enshrined in the UDHR.
 Global Cooperation: Foster international collaboration and partnerships to
address transnational human rights issues, such as migration, climate
change, and global inequality. Collaborative efforts can facilitate the sharing
of best practices and resources.
 Accountability Mechanisms: Strengthen international accountability
mechanisms for human rights violations. This could involve enhancing the
role of international courts, such as the International Criminal Court (ICC),
and ensuring that perpetrators of human rights abuses are held accountable.
 Intersectionality: Address the intersectionality of human rights by
recognizing how different forms of discrimination—based on gender, race,
sexual orientation, disability, and other factors—interact. Policies and
advocacy should be inclusive and consider the unique challenges
marginalized groups face.
 Sustainable Development Goals (SDGs): Integrate the principles of the
UDHR with the United Nations Sustainable Development Goals (SDGs) to
ensure that economic, social, and cultural rights are prioritized alongside
civil and political rights. This can help create a more holistic approach to
human well-being.
 Youth Engagement: Actively involve young people in human rights
advocacy and education. Engaging youth can foster a new generation of
human rights defenders and ensure that human rights remain a priority for
future leaders.
CHALLENGES

Conceptual Challenges

Universality vs. Cultural Relativism: Debates on whether human rights are

universal or should be interpreted based on cultural norms.

Defining Human Rights: Challenges in clearly defining and operationalizing

certain rights, particularly economic, social, and cultural rights.

Implementation Challenges

State Sovereignty: Governments’ resistance to international scrutiny and

interference in domestic affairs.

Lack of Enforcement Mechanisms: Weak international legal frameworks and

limited capacity to hold states accountable for human rights violations.

Resource Constraints: Difficulty in allocating resources to effectively promote

and protect human rights.

Specific Human Rights Challenges:

Gender-Based Violence: Prevalence of violence against women and girls,

including domestic violence, sexual assault, and female genital mutilation.

Racial Discrimination: Systemic racism and discrimination based on ethnicity.

Caste-Based Discrimination: Social exclusion and discrimination based on caste

systems in certain societies.

LGBTQ+ Rights: Persecution and discrimination against lesbian, gay, bisexual,

transgender, and queer individuals.

Disability Rights: Lack of accessibility and inclusion for people with disabilities.
Contextual Challenges

Armed Conflict: Human rights abuses committed during armed conflicts,

including civilian casualties, forced displacement, and torture.

Poverty and Inequality: How economic disparities hinder the realization of

human rights.

Authoritarian Regimes: Political repression and restrictions on freedom of

expression, assembly, and association.

Emerging Challenges

Cybersecurity and Privacy Concerns: Threats to privacy and freedom of

expression in the digital age.

Climate Change: Impact of climate change on human rights, including

displacement and access to necessities.

Non-State Actors: Human rights abuses perpetrated by corporations and armed

groups.
CONCLUSION

The Universal Declaration of Human Rights represents a monumental achievement

in the global pursuit of dignity, freedom, and justice. Its historical context,
conception, application, successes, and ongoing challenges illustrate the dynamic
nature of human rights as both a moral imperative and a legal framework. While
the UDHR has significantly influenced international norms and national laws, there
remains a pressing need for continued advocacy, education, and cooperation to
ensure these rights are realized for everyone, everywhere.

In summary, the UDHR is not merely a document but a living commitment to

uphold the rights and dignity of all people. Its universal principles continue to
inspire individuals, communities, and nations in the ongoing struggle for justice
and equality, reminding us that the fight for human rights is a collective
responsibility that transcends borders and cultures.

THE INTERNATIONAL COVENANT FOR CIVIL AND POLITICAL RIGHTS

Whereas the Universal Declaration of Human Rights had its successes, in order to make
human rights an instrument effectively shaping the lives of individuals and nations, more
than just a political proclamation was needed. Hence, from the very outset there was
general agreement to the effect that the substance of the Universal Declaration should be
translated into the hard legal form of an international treaty.
The International Covenant on Civil and Political Rights (ICCPR) is a
multilateral treaty that commits nations to respect the civil and political rights of
individuals, including the right to life, freedom of religion, freedom of speech, freedom
of assembly, electoral rights and rights to due process and a fair trial.
The Universal Declaration of Human Rights is not legally binding on states parties. To
codify the rights embodied in the UDHR, two treaties would be created: the International
Covenant on Civil and Political Rights (“ICCPR”) and the International Covenant on
Economic, Social and Cultural Rights (“ICESCR”). These two documents would form
the basis of the International Bill of Human Rights. The International Covenant of Civil
and Political Rights (ICCPR) attempts to ensure the protection of civil and political
rights. It was 0 by United Nations General Assembly Resolution 2200A (XXI) on 16
December 1966 and entered into force 23 March 1976 after its thirty-fifth ratification or
accession. As of June 2022, the Covenant had 173 parties and six more signatories
without ratification, most notably the People's Republic of China and Cuba.
Franklin D. Roosevelt, claimed four fundamental freedoms existed “everywhere in the
world”: the freedom of speech, the freedom of worship, the freedom from want, and the
freedom from fear.

The ICCPR is Monitored by the United Nations Human Rights Committee.

 The covenant commits its parties to respect the civil and political rights
of individuals, including the right to life, freedom of religion, freedom of
speech, freedom of assembly, electoral rights and rights to due process and a
fair trial.
 The ICCPR is part of the International Bill of Human Rights, along with
the International Covenant on Economic, Social and Cultural Rights
(ICESCR) and the Universal Declaration of Human Rights (UDHR).
 It became effective in 1976. Article 49 allowed that the covenant would
enter into force three months after the date of the deposit of the thirty -fifth
instrument of ratification or accession.

The ICCPR recognizes the inherent dignity of each individual and undertakes to promote
conditions within states to allow the enjoyment of civil and political rights. Countries that
have ratified the Covenant are obligated “to protect and preserve basic human rights take
administrative, judicial, and legislative measures in order to protect the rights.
The rights protected under the ICCPR include:
Article 6 – Right to life.
Article 7 – Freedom from torture.
Article 8 – Right to not be enslaved.
Article 9 – Right to liberty and security of the person.
Article 10 – Rights of detainees.
Article 11 – Right to not be imprisoned merely on the ground of inability to fulfil a
contractual obligation.
Article 12 – Freedom of movement and choice of residence for lawful residents.
Article 13 – Rights of aliens.
Article 14 – Equality before the courts and tribunals. Right to a fair trial.
Article 15 – No one can be guilty of an act of a criminal offence which did not constitute
a criminal offence.
Article 16 – Right to recognition as a person before the law.
Article 17 – Freedom from arbitrary or unlawful interference.
Article 18 – Right to freedom of thought, conscience and religion.
Article 19 – Right to hold opinions without interference.
Article 20 – Propaganda for war shall be prohibited by law.
Article 21 – Right of peaceful assembly.
Article 22 – Right to freedom of association with others.
Article 23 – Right to marry.
Article 24 – Children’s rights
Article 25 – Right to political participation.
Article 26 – Equality before the law.
Article 27 – Minority protection.
Article

The Covenant follows the structure of the UDHR and ICESCR, with a preamble and
fifty-three articles, divided into six parts.[10]
Part 1 (Article 1) recognizes the right of all peoples to self-determination, including the
right to "freely determine their political status", pursue their economic, social and cultural
goals, and manage and dispose of their own resources.

Part 2 (Articles 2 – 5) obliges parties to legislate where necessary to give effect to the
rights recognised in the Covenant, and to provide an effective legal remedy for any
violation of those rights. It also requires the rights be recognised "without distinction of
any kind, such as race, colour, sex, language, religion, political or other opinion, national
or social origin, property, birth or other status," and to ensure that they are enjoyed
equally by women.

Part 3 (Articles 6 – 27) lists the rights themselves. These include rights to:

 physical integrity, in the form of the right to life and freedom from torture and
slavery (Articles 6, 7, and 8);
 liberty and security of the person, in the form of freedom from arbitrary arrest
and detention and the right to habeas corpus (Articles 9 – 11);
 procedural fairness in law, in the form of rights to due process, a fair and
impartial trial, the presumption of innocence, and recognition as a person
before the law (Articles 14, 15, and 16);
 individual liberty, in the form of the freedoms of movement, thought,
conscience and religion, speech, association and assembly, family rights, the
right to a nationality, and the right to privacy (Articles 12, 13, 17 – 24);
 prohibition of any propaganda for war as well as any advocacy of national or
religious hatred that constitutes incitement to discrimination, hostility or
violence by law (Article 20);
 political participation, including the right to the right to vote (Article 25);
 Non-discrimination, minority rights and equality before the law (Articles 26
and 27).
Part 4 (Articles 28 – 45) governs the establishment and operation of the Human Rights
Committee and the reporting and monitoring of the Covenant.
Part 6 (Articles 48–53) governs ratification, entry into force, and amendment of the
Covenant.
Rights to physical integrity[edit]
Main articles: Right to life, Torture, and Slavery
Article 6 of the Covenant recognises the individual's "inherent right to life" and requires
it to be protected by law.
Article 7 prohibits torture, cruel, inhuman or degrading punishment and non-consensual
medical or scientific experimentation.
Article 8 prohibits slavery and enforced servitude in all situations. The article also
prohibits forced labour, with exceptions for criminal punishment, military service and
civil obligations.
Article 9 recognises the rights to liberty and security of the person. It prohibits arbitrary
arrest and detention, requires any deprivation of liberty to be according to law.
Article 10 requires anyone deprived of liberty to be treated with dignity and humanity.
convicted prisoners, and children to be separated from adults. It requires prisons to be
focused on reform and rehabilitation rather than punishment.

Procedural fairness and rights of the accused[edit]

Article 14 recognizes and protects a right to justice and a fair trial.
Article 16 requires states to recognize everyone as a person before the law.[49]
Individual liberties[edit]
Main articles: Freedom of movement, Freedom of religion, Freedom of thought, Freedom
of speech, Freedom of assembly, Freedom of association, and Right of Return
Article 12 guarantees freedom of movement, including the right of persons to choose
their residence, to leave and return to a country.
Article 13 forbids the arbitrary expulsion of resident aliens and requires such decisions to
be able to be appealed and reviewed.
Article 17 mandates the right of privacy.
Article 18 mandates freedom of religion or belief.
Article 19 mandates freedom of expression.
Article 20 mandates sanctions against inciting war and hatred.
Article 21 mandates freedom of assembly and 22 mandates freedom of association.
These provisions guarantee the right to freedom of association, the right to trade unions
and also defines the International Labour Organization.
Article 23 mandates the right of marriage. The wording of this provision neither requires
nor prohibits same-sex marriage.
Article 24 mandates special protection, the right to a name, and the right to a nationality
for every child.
Article 27 mandates the rights of ethnic, religious and linguistic minority to enjoy their
own culture, to profess their own religion, and to use their own language.

 Open for signature

 Ratification- Deposit instrument of ratification ..SG
 Asession – Deposit instrucments of assession
 State Party

General Assembkhy plays A ROLE

CHALLENGES

1. Lack of domestic legislation

2. Judicial enforcement
3. Political will.
4. Derogation and National Security
5. Reservation
6. Conceptual differences
7. Philosophical differences
8. Religion and cultural differences.
9. Political instability and armed conflict
10. Weak international enforcement.
11. Non ratification of the optional protocol

ACHIEVEMENTS
1. Incorporation into national laws and national constitutions
2. Strengthening rule of law
3. Strenthening protection of minorities
4. Freedoms and liberties
5. Judicial decisions

LIMITATIONS:
`
Article 4 of ICCPR allows for certain circumstances for States Parties to derogate from
their responsibilities under the Covenant, such as during times of public emergencies.
However, State Parties may not derogate from Articles 6, 7, 8 (paragraphs I and 2), 11,
15, 16 and 18.

ENFORCEMENT
In addition to State Parties’ formally adopting and recognizing the ICCPR in their
jurisdiction, Article 28 of ICCPR provides for a Human Rights Committee (Committee)
to be established for monitoring the State Parties’ implementation of the Covenant. State
Parties are required to submit reports to the Committee for review, on measures used to
adopt and give effect to the rights enshrined in the ICCPR.
The Human Rights Committee is the principal actor at the international level mandated to
enforce the rights enunciated in the ICCPR. The instruments put at its disposal for that
purpose are of limited scope, however. States are required to submit at regular intervals
reports which are carefully scrutinized; at the end of that process, the Committee
summarizes its assessment of the prevailing human rights situation by noting in particular
its concerns in open and straightforward language without any diplomatic inhibitions.
Such concluding observations are not legally binding.

Article 2(2) of ICCPR provides that State Parties are to take the “necessary steps…. to
adopt such laws or other measures as may be necessary to give effect to the rights
recognized in the present Covenant.” Countries that have ratified the ICCPR must takes
steps in their own jurisdictions to recognize the acceptance of this international covenant
because, in “international law, a signature does not usually bind a State. The treaty is
usually subject to a future ratification, acceptance, approval or accession.

States are expected to live up in good faith to the views addressed to them by the
Committee.
It is at the national level that the ICCPR has exerted its greatest impact. When today
anywhere in the world a national constitution is framed, the ICCPR serves as the natural
yardstick for the drafting of a section on fundamental rights. In most countries, the
ICCPR has been made part and parcel of the national legal order although there is no
general rule of international law that would enjoin States to embrace a specific method of
implementation.
In some countries, administrative authorities and the courts are specifically enjoined to
follow the applicable international guarantees when interpreting the national constitution
(e.g., article 10, paragraph 2 of the Spanish Constitution). In other countries, the ICCPR
has even been given the legal force of a provision of constitutional or quasi-constitutional
rank (These legal techniques are not automatically successful, since, as a rule, national
judges are not very familiar with the guarantees laid down in international human rights
instruments and are more often than not reluctant to accord them precedence over the
applicable national laws and regulations.
DEROGATION
RESERVATIONS AND INTERPRETATIONS
A number of parties have made reservations and interpretative declarations to their
application of the Covenant.
Denmark reserves the right to exclude the press and the public from trials as per its own
laws.
Pakistan, has made several reservations to the articles in the convention; "the provisions
of Articles 3, 6, 7, 18 and 19 shall be so applied to the extent that they are not repugnant
to the Provisions of the Constitution of Pakistan and the Sharia laws.
The United States has made reservations that none of the articles should restrict the right
of free speech and association; that the US government may impose capital punishment
on any person other than a pregnant woman, including persons below the age of 18.
The United States Senate ratified the ICCPR in 1992, with five reservations, five
understandings, and four declarations
NON-COMPLIANCE
In 1994, the United Nations' Human Rights Committee expressed concerns with
compliance:
Of particular concern are widely formulated reservations which essentially render
ineffective all Covenant rights which would require any change in national law to ensure
compliance with Covenant obligations. No real international rights or obligations have
thus been accepted. And when there is an absence of provisions to ensure that Covenant
rights may be sued on in domestic courts,
In 2006, the Human Rights Committee expressed concern over what it interprets as
material non-compliance, exhorting the United States to take immediate corrective
action:
Among many others, it is recommended
The State party should review its approach and interpret the Covenant in good faith, in
accordance with the ordinary meaning to be given to its terms in their context, including
subsequent practice, and in the light of its object and purpose.
The State party should in particular
(a) acknowledge the applicability of the Covenant with respect to individuals under its
jurisdiction but outside its territory, as well as its applicability in time of war;
(b) take positive steps, when necessary, to ensure the full implementation of all rights
prescribed by the Covenant; and
(c) consider in good faith the interpretation of the Covenant provided by the Committee
pursuant to its mandate.
INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL
RIGHTS
The International Covenant on Economic, Social and Cultural Rights (ICESCR) is a
multilateral treaty adopted by the United Nations General Assembly (GA) on 16
December 1966 through Resolution 2200A (XXI), and came in force from 3 January
1976. It commits its parties to work toward the granting of economic, social, and
cultural rights (ESCR).
The Covenant follows the structure of the UDHR and the ICCPR, with a preamble and
thirty-one articles, divided into five parts. The original intention was to draft a single
human rights treaty, but political differences within the international community could
only be resolved by agreement to draft two parallel treaties. ICESCR is therefore
mirrored by the International Covenant on Civil and Political Rights. The two documents
follow a similar format and have many common provisions. The United Nations has
consistently stressed the universality, interrelatedness and interdependence of all human
rights. In other words, civil and political rights are not more important than economic,
social and cultural rights and vice versa. All human beings are entitled to all human rights
equally.
The first two parts of the Covenant establish the general principles under which
economic, social and cultural rights should be protected.
These general principles are:
i) the right of all peoples to self-determination and to freely depose of their
natural resources (article 1);
ii) The principle of non-discrimination (article 2) in the exercise of Covenant
rights; and
iii) The principle of equality between men and women (article 3) in the enjoyment
of these rights;
iv) The principle of “progressive realization” (article 2).
Part III of the Covenant sets out the substantive economic, social and cultural rights to
which everyone is entitled. These include:
(Article 1) recognises the right of all peoples to self-determination, including the right to
"freely determine their political status",[13] pursue their economic, social and cultural
goals, and manage and dispose of their own resources.
(Articles 2–5) establishes the principle of "progressive realization. It also requires the
rights be recognised "without discrimination of any kind as to race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth or other
status.
(Articles 6–15) lists the rights [Link] include rights to

 work, under "just and favourable conditions",[18] with the right to form and join
trade unions (Articles 6, 7, and 8);
 social security, including social insurance (Article 9);
 family life, including paid parental leave and the protection of children (Article
10);
 an adequate standard of living, including adequate food, clothing and housing,
and the "continuous improvement of living conditions" (Article 11);
 health, specifically "the highest attainable standard of physical and mental
health" (Article 12);
 education, including free universal primary education, generally available
secondary education and equally accessible higher education. This should be
directed to "the full development of the human personality and the sense of its
dignity",[19] and enable all persons to participate effectively in society (Articles
13 and 14);
 participation in cultural life (Article 15).
(Articles 16–25) governs reporting and monitoring of the Covenant and the steps taken
by the parties to implement it. It also allows the monitoring body – originally the United
Nations Economic and Social Council – now the Committee on Economic, Social and
Cultural Rights to make general recommendations to the UN General Assembly on
appropriate measures to realise the rights (Article 21)
(Articles 26–31) governs ratification, entry into force, and amendment of the Covenant
The Principle of Progressive Realisation.
 Incremental approach
 Reasonable steps and Measures
 Obligation to take steps
 Minimum core obligation
 Recource allocation
 Accountability
 Participation.
Article 2 of the Covenant imposes a duty on all parties to take steps... to the maximum of
its available resources, with a view to achieving progressively the full realization of the
rights recognized in the present Covenant.
This is known as the principle of "progressive realisation". It acknowledges that some of
the rights (for example, the right to health) may be difficult in practice to achieve in a
short period of time, and that states may be subject to resource constraints, but requires
them to act as best they can within their means.d
The principle differs from that of the ICCPR, which obliges parties to "respect and to
ensure to all individuals within its territory and subject to its jurisdiction" the rights in
that Convention.[21] However, it does not render the Covenant meaningless. The
requirement to "take steps" imposes a continuing obligation to work towards the
realisation of the rights.[22] It also rules out deliberately regressive measures which
impede that goal. The Committee on Economic, Social and Cultural Rights also interprets
the principle as imposing minimum core obligations to provide, at the least, minimum
essential levels of each of the rights.
The notion of progressive realization is an important element of economic, social and
cultural rights and one which, to a certain extent, distinguishes them from most civil and
political rights. Some rights are absolute and must be enforced immediately and
completely from the moment they enter into force. Some economic, social and cultural
rights however cannot be implemented immediately and absolutely: they require time and
resources for infrastructure and policies to be developed. So, for example, full
implementation of the right to education requires first the building of schools and the
training of teachers and these require resources which in many countries are scarce. In
order to address this issue, the Covenant requires States to ensure the progressive
realization of the rights. The essential point is that, although resources may be limited,
States must at least make continual and verifiable progress to improve the realization of
the rights as much as possible. Where the rights can be realized in full immediately, they
must.
Labour Rights:
Article 6 of the Covenant recognizes the right to work as defined by the opportunity of
everyone to gain a means of sustenance by means of freely chosen or accepted
work.[26] Parties are required to take "appropriate steps" to safeguard this right, including
technical and vocational training and economic policies aimed at steady economic
development, and ultimately full employment. The right implies parties must guarantee
equal access to employment and protect workers from being unfairly deprived of
employment.
The work referred to in Article 6 must be decent work. This is effectively defined
by Article 7 of the Covenant, which recognises the right of everyone to "just and
favourable" working conditions. These are in turn defined as fair wages with equal pay
for equal work, sufficient to provide a decent living for workers and their
dependants; safe working conditions; equal opportunity in the workplace; and sufficient
rest and leisure, including limited working hours and regular, paid holidays.
Article 8 recognises the right of workers to form or join trade unions and protects
the right to strike. However, it allows these rights to be restricted for members of the
armed forces, police, or government administrators. Several parties have placed
reservations on this clause, allowing it to be interpreted in a manner consistent with their
constitutions
Right to social security
Article 9 of the Covenant recognises "the right of everyone to social security,
including social insurance". It requires parties to provide some form of social insurance
scheme to protect people against the risks of sickness, disability, maternity, employment
injury, unemployment or old age; to provide for survivors, orphans, and those who cannot
afford health care; and to ensure that families are adequately supported.
Several parties, including France and Monaco, have reservations allowing them to set
residence requirements in order to qualify for social benefits. The Committee on
Economic, Social and Cultural Rights permits such restrictions, provided they are
proportionate and reasonable.
Right to family life
Article 10 of the Covenant recognises the family as "the natural and fundamental group
unit of society", and requires parties to accord it "the widest possible protection and
assistance" Parties must ensure that their citizens are free to establish families and that
marriages are freely contracted and not forced. Parties must also provide paid leave or
adequate social security to mothers before and after childbirth, an obligation which
overlaps with that of Article 9. Finally, parties must take "special measures" to protect
children from economic or social exploitation, including setting a minimum age of
employment and barring children from dangerous and harmful occupations.
Right to an adequate standard of living
Article 11 recognises the right to an adequate standard of living. This includes, but is not
limited to, the right to adequate food, clothing, housing, and "the continuous
improvement of living conditions". It also creates an obligation on parties to work
together to eliminate world hunger.
The right to adequate food, also referred to as the right to food, is interpreted as
requiring "the availability of food in a quantity and quality sufficient to satisfy the dietary
needs of individuals, free from adverse substances, and acceptable within a given culture.
The right to adequate housing, also referred to as the right to housing, is "the right to
live somewhere in security, peace and dignity.
The right to adequate clothing, also referred to as the right to clothing, has not been
authoritatively defined and has received little in the way of academic commentary or
international discussion. What is considered "adequate" has only been discussed in
specific contexts, such as refugees, the disabled, the elderly, or workers.
Right to health
Article 12 of the Covenant recognises the right of everyone to "the enjoyment of the
highest attainable standard of physical and mental health".[46] "Health" is understood not
just as a right to be healthy, but as a right to control one's own health and body (including
reproduction), and be free from interference such as torture or medical
experimentation.[47] States must protect this right by ensuring that everyone within their
jurisdiction has access to the underlying determinants of health, such as clean water,
sanitation, food, nutrition and housing, and through a comprehensive system of
healthcare.
Article 12.2 requires parties to take specific steps to improve the health of their citizens,
including reducing infant mortality and improving child health, improving environmental
and workplace health, preventing, controlling and treating epidemic diseases, and
creating conditions to ensure equal and timely access to medical services for all.
The right to health is interpreted as requiring parties to respect women's reproductive
rights, by not limiting access to contraception or "censoring, withholding or intentionally
misrepresenting" information about sexual health.
Right to free education
Article 13 of the Covenant recognises the right of everyone to free education (free for
the primary level only, and "the progressive introduction of free education" for
the secondary and higher levels).
Article 13.2 lists a number of specific steps parties are required to pursue to realise the
right of education. These include the provision of free, universal and compulsory primary
education, "generally available and accessible" secondary education in various forms
(including technical and vocational training), and equally accessible higher education.
Article 14 of the Covenant requires those parties which have not yet established a system
of free compulsory primary education to rapidly adopt a detailed plan of action for its
introduction "within a reasonable number of years"
Right to participation in cultural life[edit]
Article 15 of the Covenant recognises the right of everyone to participate in cultural life,
enjoy the benefits of scientific progress, and to benefit from the protection of the moral
and material rights to any scientific discovery or artistic work they have created.

RESERVATIONS

A number of parties have made reservations and interpretative declarations to their

application of the Covenant.
Bangladesh interprets the self-determination clause in Article 1 as applying in the
historical context of colonialism. It also reserves the right to interpret the labour rights in
Articles 7 and 8 and the non-discrimination clauses of Articles 2 and 3 within the context
of its constitution and domestic law.
Belgium interprets non-discrimination as to national origin as "not necessarily implying
an obligation on States automatically to guarantee to foreigners the same rights as to their
nationals.
China restricts labour rights in Article 8 in a manner consistent with its constitution and
domestic law
Egypt accepts the Covenant only to the extent it does not conflict with
Islamic Sharia law.
India interprets the right of self-determination as applying "only to the peoples under
foreign domination"[3] and not to apply to peoples within sovereign nation-states.
Indonesia interprets the self-determination clause (Article 1) within the context of other
international law and as not applying to peoples within a sovereign nation-state.
Ireland reserves the right to promote the Irish language.
Japan reserved the right not to be bound to progressively introduce free secondary and
higher education, the right to strike for public servant and the remuneration on public
holiday.
Kuwait interprets the non-discrimination clauses of Articles 2 and 3 within its
constitution and laws, and reserves the right to social security to apply only to Kuwaitis.
It also reserves the right to forbid strikes.[3]
Mexico restricts the labour rights of Article 8 within the context of its constitution and
laws.
Norway reserves the right to strike so as to allow for compulsory arbitration of some
labour disputes.
Pakistan has a general reservation to interpret the Covenant within the framework of its
constitution.
Thailand interprets the right to self-determination within the framework of other
international law.
CHAPTER 2 HUMAN RIGHTS IN AFRICA
The existence of human rights in traditional African societies has been a controversial
issue for many decades. According to some western scholars, human rights did not exist
in pre-colonial Africa
To them, pre-colonial societies were lawless and savage and could not in any` way have
regard for human rights. In s fact, some positioned the continent outside history and
civilization.
The existence of such proof notwithstanding, Africa has generally been depicted as a
place of doom and despair in as far as human rights are concerned. Consequently, the
analysis of its level of compliance with human rights focuses more on its failure to
adopted Western standards. In other words, the continent’s success or failure to promote
and protect human rights is construed against the background of Western ‘models’.
Mmiim m
Evaluation of human rights standards in Africa against those of the Western countries
has, therefore, to say the least, `painted a poor image of the continent’s commitment to
human rights values. This, however, is not to say that Africa’s human rights record is
excellent and needs not to be criticised in the light of other jurisdictions. The point being
made is that, whereas one would concur with the view that human rights are not highly
esteemed in Africa, the same could also be said of other continents. European and Asian
countries, as well as America, the s]elf-styled ‘mother of democracy and human rights’,
also have their share of human rights violations.
We cannot close our eyes to the fact that some of these continents have at one time in
their history experienced massive violations of human rights, even to the magnitude of
genocide, war crimes and crimes against humanity. For instance, diverse forms of
discrimination, particularly on racial grounds, have been and continue to be, perpetrated
in some Western countries.
HUMAN RIGHTS IN PRE-COLONIAL AFRICA
it is important to=”’ note that Africa’s precolonial period witnessed the prevalence of
traditional communities living under various socio-political arrangements.
However, although Africa’s pre-colonial societies differed in a number of ways, there is
ample information to prove that they not only had legal systems but also some measure of
respect for and protection of human rights. According to Mutua, pre-colonial Africa
consisted of two categories of societies. The fi rst comprised those societies with
centralised authority, administrative machinery, and standing judicial institutions, such as
the Zulu and the Ashanti, while the second are those with more communal and less
intrusive governmental paraphernalia, such as the Akamba and Kikuyu of Kenya
‘African conception of man is not that of an isolated and abstract individual, but an
integral member of a group animated by a spirit of solidarity.’17 Mbiti illustriously
summed up this philosophy by stating, ‘I am because we are, and because we are,
therefore I am.’
means of production, collective ownership, collective labour and equal distribution of the
fruits of labour were necessary for subsistence.31 There was no room for private
acquisition and accumulation of wealth. Since the society had no classes, there was
neither the need for a state nor law.
Accordingly, this explains the argument from certain quarters to the effect that societies
in precolonial Africa had achieved a reasonable degree of political, social and economic,
organisation akin to the modern state. In West Africa, for example, there were the Ghana,
Songhai, Mali and Walata empires.
Notwithstanding the above observations, the existence of law generally and human rights
in particular, in pre-colonial Africa has been doubted. It has been contended that law did
not exist in traditional African societies.45 This has partly been attributed to the fact that
those societies were largely governed by customs which were extremely rigid and whose
obedience could only be ensured
Indeed, it is not proper for the West to pretend to be the inventor or the model of human
rights. Human rights, constitutionalism and democracy are not un-African; nor were they
unknown in precolonial Africa.
No country has the monopoly of human rights respect or abuses; nor can any society
claim to be a paradise for human rights.
Africans do not espouse a philosophy of human dignity that is derived from natural
rights and individualistic framework. African societies function within communal
structure whereby a person’s dignity and honour fl ow from his or her transcendental role
as a cultural being.
84 Hence, to understand the concept of human rights as articulated in pre-colonial Africa,
the starting point ‘is not the individual but the whole group including both the living and
the dead.’85 The above sentiments notwithstanding, there are other African scholars who
perceived the enjoyment of human rights in precolonial Africa not solely from
communalistic, but also individualistic perspective. Asante, for example, argued that
‘human rights, quite simply, are concerned with asserting and protecting human dignity,
and they are ultimately based on a regard for the intrinsic worth of the individual.’86
Indeed, since human rights are concerned with the preservation of human dignity and the
recognition of the intrinsic worth of the individual, there is no conceivable reason why
they should not be a preserve for all societies.
HUMAN RIGHTS IN COLONIAL AFRICA
Throughout the second half of the nineteenth century, some European states brutishly
jostled one another for infl uence and control over trade of certain valued commodities in
Africa.176 So intense was the competition that in 1884 Chancellor Bismarck of Germany
convened a conference of European nations ‘to establish rules for recognising spheres of
commercial suzerainty.’177 Eventually, Africa found itself under the control of European
colonialists. The major colonial powers at that time were France, Britain and Belgium.
Portugal, Germany, Italy and Spain exerted some measure of colonial authority as well,
though they had no great impact as the other three.178 It is important to reiterate that
before the coming of foreigners to Africa, local societies were mainly governed by
customary law and traditions.
Foreign intrusion later led to the decline and subsequent demise of the then subsisting
African kingdoms, chiefdoms and empires. But in spite of this, there remained a
substantial part of the cultural, political systems and customs inherited from the past.180
In other words, some aspects of African customary law survived the onslaught of foreign
invasion, even after vehement attempts to subjugate it.
African societies became subject to political, economic and social domination, and local
cultures were either ignored or supplanted with foreign ones.181 Besides tampering
THE AFRICAN SYSTEM OF HUMAN RIGHTS
In Africa, a number of important events influenced the emergence and evolution of a
regional human rights system.
 The OAU has been accused of failing to condemn human rights in abid to uphold
member countries sovereignty. It emphasized the principle of non-interference in
the internal affairs of member states. The passiveness to international protection of
human rights was more of a ‘global syndrome’ than an African creation.
 Other factors such as the lack of adequate resources to accommodate the
increasing numbers of human rights violations
 The adverse effects of the cold war.
 Some states were not comfortable with the human rights standards established by
the UN because their participation ‘in the early years of the human rights
revolution was meagre.
 Africans were not consulted during the drafting and adoption of the Universal
Declaration on Human Rights (UDHR) in 1948.
 might have motivated the establishment of the existing regional human rights
systems.
 encouragement at the UN level for regional human rights mechanisms, NGO
lobbying and the unprecedented acknowledgement by some African leaders that
human rights violations in other states were also their concern.
THE NORMATIVE INSTRUMENTS OF THE AFRICAN SYSTEM ON HUMAN AND
PEOPLES’ RIGHTS
The 111 This explains why its Charter did not afford human rights deserved attention and its
activities were limited within the context of the right to self-determination in colonised African
states and the abolition of apartheid in South Africa.
Its organs focused almost exclusively on strengthening African unity and ensuring independence
for Africans, sometimes at the expense of human rights.
In other words, human rights were often detached from the mainstream OAU bodies in Addis
Ababa and were relegated to the African Commission in Banjul.
This should not be taken to mean that the OAU was totally out of tune with human rights issues.
In all fairness, it is important to acknowledge that the organisation, to some extent, played a
crucial role in the human rights agenda of the continent, particularly in the years just prior to its
demise. Resolutions and decisions adopted by the former Council of Ministers and the AHSG,
for example, indicated an increasing recognition of the relevance of human rights.26 Some
conferences convened by the OAU also indicated appreciation for human rights.27 Some
commissions established under the organisation’s Charter equally had the mandate to consider
human rights matters. These included the Labour and Social Affairs Commission, the
Population Commission and the Women’s Committee on Peace and Development.28 These
initiatives, as well as the adoption of regional human rights treaties, such as the African
Charter on Human and Peoples’ Rights (ACHPR), the African Charter on the Rights and
Welfare of the Child (ACRWC), the Additional Protocol to the ACHPR on the Rights of
Women in Africa, and the Convention on the Specifi c Aspects of Refugees in Africa,
among others, evidenced the OAU’s regard for human rights.
The worrisome issue about this pan-continental organisation related to the absence of clear
human rights provisions in its Charter. Thus, the Constitutive Act of the AU which replaced it
should be seen as a successful attempt, at least on paper, to infuse human rights in the agenda of
the pan-continental political institutions created under it. This is clear in the Act’s preamble,
objectives and guiding principles.
The Constitutive Act of the African Union is the treaty that establishes the African Union (AU),
the political institution within whose framework the African human rights system operates. Its
adoption by the Organisation of African Unity (OAU) Assembly of Heads of State and
Government (AHSG) in 2001 csan be said to have been an attempt to transform Africa’s human
rights landscape. The Act places the promotion and protection of human rights in the
agenda of the AU, something which was not visible in the OAU Charter.
Under the Charter, the rights of OAU member states superseded those of individuals, thus giving
credence to authoritarianism, single-party or military rule, armed confl icts and the whole
host of human rights violations experienced during the subsistence of the organisation.
Specifically, Article III of the Charter was a safe haven for states that perpetrated gross human
rights violations. Pursuant thereto, OAU member states solemnly affi rmed and declared their
adherence to principles such as: the sovereign equality of all member states; non-interference
in the internal affairs of states; and respect for the sovereignty and territorial integrity of
each state and for its inalienable right to independent existence.
The establishment of the AU, whose Constitutive Act has been hailed by many scholars for
entrenching the culture of human rights on the continent. Although the Act is not a source of
substantive rights, its emphasis on human rights protection and promotion in the region and its
establishment of the ‘political institutions’ of the African human rights system needs to be
underscored.
STRUCTURE AND FEATURES OF THE CONSTITUTIVE ACT OF THE AU
The Act consists of 33 Articles. Alth ough it retained a number of the purposes and principles of
the OAU, it goes further to include new objectives and principles aimed at promoting and
protecting human rights on the continent.
In principal, it reiterates the determination of the African Heads of States and Government to
‘promote and protect human and peoples’ rights, consolidate democratic institutions and culture,
and to ensure good governance and the rule of law.
One remarkable feature of the Act is the imposition of sanctions on members that fail to comply
with the decisions and policies of the AU.
The Act also provides for the creation of organs within the AU framework, some of which could
be useful in the promotion and protection of human rights.
The scope of the right to intervene in a member state provided for in the Act is however not
satisfactory because most of the human rights violations in Africa do not reach the levels of war
crimes, genocide or crimes against humanity.
What the Act seems to suggest is that other forms of violations of human rights are not important
to the AU, as long as they have not reached the magnitude or status of genocide, war crimes or
crimes against humanity.
Article 4(h) of the Act, therefore, keeps other forms of human rights violations outside the
purview of the AU’s intervention
The right to intervene as entrenched in the Act also presents some problems. First, it conflicts
with a number of other principles and protection of human rights on the [Link] is
unfortunate that the Act has retained the OAU’s infamous principle of non-interference in the
internal affairs of member states. This principle, in the main, accounted for the failure of the
OAU to address human rights violations perpetrated by its member states.
However, unlike the OAU Charter which blatantly prohibited interference with the internal
affairs of its member states, the Act is commendable because it permits intervention in respect of
grave circumstances, namely: war crimes, genocide and crimes against humanity. It also
provides for the right of member states to request intervention from the AU in order to restore
peace and security.
The following principles in a way can undermine human rights:
 sovereign equality and interdependence among member states
 ‘respect of borders existing on achievement of independence
 prohibition on the use of force or threat to use force among member states
 ‘non-interference by any member states in the internal affairs of another.
Secondly, the right of the AU to intervene in a member state conflicts with the UN Charter,
which provides that such a right can only be exercised in accordance with a resolution of the
Security Council.
Thirdly, the inability and unwillingness of African leaders to chastise each other for human
rights violations has been proved in more than one occasion.
They simply lack the political will and energy to rebuke each other for simple violations
committed against their citizens.
It would therefore be a draconian step, very much against the norm, for them to intervene in a
situation of gross human rights violations.
HUMAN AND PEOPLES’ RIGHTS IN THE OBJECTIVES OF THE CONSTITUTIVE
ACT
According to the Act, one of the objectives of the AU is to promote and protect human and
peoples’ rights in accordance with the African Charter and other relevant human rights
instruments.
AU resolved to take human rights issues more seriously.
It also sends the message that gross violations of human rights should not be permitted anywhere
on the continent without serious repercussions. It should be noted, however, that in spite of its
reference to the promotion and protection of human rights in accordance with the African
Charter, the Act is silent on the place of the Charter’s enforcement institutions, namely, the
African Commission and Court on Human and Peoples’ Rights.
It further raises the pertinent question as to whether the AU seriously intended to incorporate
human rights in its [Link] should be recalled, when the African Charter was adopted and the
Commission established, Africa was the continent with the worst human rights record in the
world.
Another objective of the Union that is stipulated in the Act is to promote democratic principles
and institutions, popular participation and good governance.
Promotion and protection of democratic principles and institutions and good governance are
important ingredients to the realisation of human rights. Democratisation and good governance
in Africa are untenable without respect for human rights. In fact, human rights violations have
been the main cause of the governance crises on the continent and the impediment to the much-
anticipated African renaissance. It follows therefore that the prospects for democracy and good
governance in the region would be bleak without their promotion and protection.
Other objectives of the AU that are linked to that of promoting democratic principles and good
governance include to: promote peace, security, and stability on the continent; promote
sustainable development at the economic, social and cultural levels as well as the integration of
African economies; and promote cooperation in all fi elds of human activity to raise the living
standards of African peoples.
All these objectives have human rights implications because they are geared towards the
promotion and protection of human dignity.
HUMAN AND PEOPLES’ RIGHTS UNDER THE PRINCIPLES OF THE
CONSTITUTIVE ACT
The guiding principles of the AU that embody human rights provisions are: respect for
democratic principles, human rights, the rule of law and good governance; promotion of gender
equality; promotion of social jus ytice to ensure balanced economic development; respect for the
sanctity of human life, condemnation and rejection of impunity and political assassination, acts
of terrorism and subversive activities.
Additionally, the Act categorically stipulates that a government that shall seize power through
unconstitutional means shall not be allowed to participate in the activities of the Union.
THE AFRICAN CHARTER ON HUMAN AND PEOPLES’ RIGHTS
STRUCTURE AND SALIENT FEATURES OF THE AFRICAN CHARTER.
The African Charter on Human and Peoples’ Rights is the main normative instrument of the
African human rights system. Structurally, it consists of 68 Articles and is divided into four
chapters: Human and Peoples’ Rights; Duties; Procedure of the Commission; and Applicable
Principles. It includes all the three generations of rights: civil and political rights; economic,
social, and cultural rights; and group (peoples’) rights.
 CLAW BACK CLAUSES

Claw back clauses an essential feature- Within the law, provided that, in the interest of
security…Rights given by one hand and taken by the other

One of the continuing problems, which had faced the African Charter, is many of its
substantive provisions that are raven with qualifications without reasonable justification.
These rights guaranteed under the Charter are subject to “claw-back” clauses that are
introduced by governments and public authorities thereby undermining their citizen‟s
basic constitutional rights of securing fundamental freedoms. They are those rights that
impose negative duty on the state and are meant to promote the values of pluralism,
equality and human dignity, which should be enjoyed free from state interference. It is in
the interference of these rights that commentators have frequently criticized the African
Charter for rendering its protective mandate meaningless and unenforceable. With
hindsight, it is evident that the foregoing critique levelled against the “claw-back” clauses
under Charter is justified, as they have a chilling effect on the exercise of human and
peoples‟ rights on the African continent.
DEROGATION CLAUSE ISSUE
The Charter lacks a derogation clause that would permit the suspension of certain rights and
freedoms in strictly defined circumstances. This has both advantages and disadvantages. One
advantage is that no emergency or special circumstances can justify the suspension of the rights
enshrined in the Charter.
States parties are therefore obliged to uphold the rights enshrined in the Charter in good as in bad
times. The disadvantage of having no derogation clause in the Charter, on the other hand, is that
during emergencies or special circumstances, a state may choose to disregard the Charter in its
entirety.
From the analysis of some of the human rights instruments, it may be concluded that at least
three types of circumstances may permit states to derogate from rights: (i) in the event of an
exceptional public danger that threatens the existence of the nation, (ii) during a war or
other public danger threatening the life of the nationand (iii) during a war or any other
crisis situation that threatens the independence or security of a state.13 Because of the
absence of a derogation clause in the Charter, a state is able to disregard, for political reasons, its
responsibilities while ill-advisedly reducing the democratic space between the separation of
powers and civil liberties.
The second notable feature of the Charter relates to its social and economic rights’ provisions.
Arguably, the intention of incorporating this genre of rights in the Charter was to give effect to
the International Covenant on Economic, Social and Cultural Rights (ICESR) at the regional
level. The Charter’s approach, however, differs from that of the Covenant in that it avoids the
incremental language of ‘progressive realisation’ of this category of rights. Instead, the
obligations that states parties assume with respect to these rights are clearly stated as being of
immediate application.
Thus, the Charter places economic, social and cultural rights on the same footing as other rights.
Although the African Commission acknowledged the difficulty posed by ‘the present hostile
economic circumstances’, it reminded states parties that the Charter required immediate
implementation of the rights it contained.
Because realisation of socio-economic rights in the Charter is not subjected to availability of
resources, the Charter is said to be overly ambitious and [Link], it p
States parties have the
duty to promote and ensure through teaching, education and publication, the respect of the rights
and freedoms contained in the Charter. The rationale of this provision is to ensure that the
freedoms, rights and corresponding obligations in the Charter are understood. This duty is in line
with the undertaking by states to take legislative or other measures to give effect to the rights and
freedoms enshrined in the Charter.
THE AFRICAN CHARTER ON THE RIGHTS AND WELFARE OF THE CHILD
The African Charter on the Rights and Welfare of the Child was the first regional treaty for the
promotion and protection of the rights of children. Its adoption was necessitated by a number of
factors.
Adopted on 11th July 1990- and came into force on 29th November 1999
To begin with, there was the recognition of the fact that everyone, without distinction of any
kind, is entitled to all the rights and freedoms guaranteed in the African Charter on Human and
Peoples’ Rights (hereafter the ‘ACHPR’ or ‘African Charter’)
To this end, the former Organisation of African Unity (OAU) decided to take appropriate
measures to promote and protect the rights and welfare of the African children, due to their
vulnerability.
The member states of the OAU noted with concern that ‘the situation of most African children
remains critical due to the unique factors of their socio-economic, cultural, traditional and
developmental circumstances, natural disasters, armed confl icts, exploitation and hunger, and on
account of the child’s physical and mental immaturity.
Secondly, the adoption of the Charter was necessitated by the need to take into consideration the
values of African civilisation ‘which should inspire and characterize their reflection on the
concept of the rights and welfare of the child.
Although this Convention received overwhelming global support , its provisions were thought
not to be adequate to protect the African child who was exposed to unique circumstances that
required additional measure of protection, more so, from an African perspective.
GENERAL STRUCTURE AND FEATURES OF THE CHILDREN’S CHARTER
The Children’s Charter is divided into a substantive part containing a catalogue of rights and
duties and a procedural part providing for the establishment and organisation of the Committee
on the Rights and Welfare of the Child.
It guarantees a number of civil, political, economic, social and cultural rights, akin to those in the
UNCRC. However, while upholding the universal standards contained in the UNCRC, the
Children’s Charter goes further to address a number of problems that specifically affect African
children.
For example, it seeks to protect the African child from harmful cultural practices, provides for
the rights of refugee children and accords priority to the special needs of children living under
Apartheid and in states subject to military destabilisation by the Apartheid regime.
Like the African Charter, the Children’s Charter does not seem to give civil and political rights
pre-eminence over social, economic and cultural rights. Rather, it dispenses with the traditional
approach of ‘progressive realisation’ of socio-economic rights and requires their ‘immediate
implementation.
Charter requires states parties to ‘take all appropriate measures with a view to achieving the full
realisation’ of the right to education. Similarly, states parties undertake to pursue ‘the full
implementation’ of the right to health and health services entrenched in Article 14 of the Charter.
With regard to the rights of the children of imprisoned mothers, Article 30(1) requires states
parties to ‘… undertake to provide special treatment to expectant mothers and to mothers of
infants and young children who have been accused or found guilty of infringing the penal law.’
Thus, a cursory glance of these provisions would make one to conclude that socio-economic
rights under the Charter are of immediate implementation.
In a similar vein, the Charter imposes obligations on states parties. Some of the obligations
require states parties: to recognise the rights, freedoms and duties enshrined in the Charter and to
adopt such legislative or other measures as may be necessary to give effect to its provisions; and
to discourage any custom, tradition, cultural or religious practice that is inconsistent with the
rights, duties and obligations contained in the Charter. Another notable feature of the Charter
concerns the interpretation and application of its rights and duties. Generally, the Charter, like
the UNCRC, embodies four principles that would assist with the interpretation and application of
its substantive provisions.
The first principle is the ‘best interests principle’ which requires that ‘in all actions concerning
the child undertaken by any person or authority, the best interests of the child shall be the
primary consideration.
The second principle, that of ‘non-discrimination’, entitles every child the enjoyment of the
rights and freedoms recognised and guaranteed in the Charter, irrespective of the child’s or
his/her parents’ or legal guardians’ race, ethnic grouPS colour, sex, language, religion, political
or other opinion, national and social origin, fortune, birth or other status.
Thirdly, the ‘principle of participation’ requires states parties to ensure the participation of
children in any matter affecting them.
The final principle is that of ‘maximum survival and development’ which deals with the actual
protection of life and the holistic development of the child.
THE PROTOCOL TO THE AFRICAN CHARTER ON HUMAN AND PEOPLES’
RIGHTS ON THE RIGHTS OF WOMEN IN AFRICA
Women’s rights are an integral component of the African system on human and peoples’ rights.
The African Charter on Human and Peoples’ was the first normative instrument under the system
to provide for the protection and promotion of these rights. It imputes an obligation on states to
‘ensure the elimination of every discrimination against women and also ensure the protection of
the rights of the woman … as stipulated in international declarations and conventions.
This provision, however, has attracted mixed reactions from scholars and women’s rights
activists, a majority of them stressing its inadequacy in protecting the rights of women on the
continent. Following this disquiet, the Protocol to the African Charter on Human and Peoples’
Rights on the Rights of Women in Africa was subsequently adopted. The Protocol is the first
regional human rights treaty to specifi cally and comprehensively provide for the protection and
promotion of women’s rights.
The initiative to promulgate a regional human rights treaty on women began in 1995 at a seminar
held in Lome Togo, organised by the African Commission in conjunction with Women in Law
and Development in Africa (WILDAF).During this seminar, proposals were made for the
formulation and adoption of a protocol that would specifically address the rights of women in
Africa. Affirming the need for such a normative instrument t, the former Organisation of African
Unity (OAU) consented to the appointment of experts to spearhead the process. Within three
years, ‘the Draft Protocol to the African Charter on the Rights of Women in Africa’ (hereafter
‘the Draft Women’s Protocol’) was approved by the African Commission on Human and
Peoples’ Rights (hereafter ‘the African Commission’ or ‘the Commission’) and was
subsequently tabled before the OAU for its comments. Meanwhile, the Women’s Unit of the
OAU was busy working on the ‘Draft OAU Convention on the Elimination of All Forms of
Harmful Practices (HPs) Affecting the Fundamental Human Rights of Women and Girls’
(hereafter ‘the Draft OAU Women’s Convention’).9 To avoid unnecessary duplication, the OAU
urged the African Commission and the Women’s Unit to work together and come up with an
integrated normative instrument embodying various aspects of women’s rights.
Lastly, the Protocol was also motivated by the need to recognise the crucial role of women in the
preservation of African values, based on the principles of equality, peace, freedom, dignity,
justice, solidarity and democracy. Despite the ratification of the African Charter and other
international human rights instruments by a majority of African states, African women have
continued to be victims of all forms of discrimination and harmful practices. This necessitates
not only the condemnation, but also the elimination of any practice that hinders or endangers the
normal growth and development of women and girls.
GENERAL STRUCTURE AND FEATURES OF THE PROTOCOL
The Women’s Protocol is divided into 32 Articles, guaranteeing both individual and group
rights. Unlike other international human rights instruments on women’s rights (such as
CEDAW), the Protocol provides some unique rights for women. These include special protection
of women in armed conflicts, widows’ rights,women with disabilities, and in distress.25
Moreover, the scope and content of some of the rights in the Protocol could be distinguished
from that of the CEDAW. For instance, the defi nition of ‘discrimination’ in the former is much
broader than that of the latter. Whereas in the CEDAW the term is limited to ‘any distinction,
exclusion or restriction’, the Protocol broadens it to include ‘any differential treatment based on
sex and whose objectives or effects compromise or destroy the recognition, enjoyment or the
exercise by women, regardless of their marital status, of human rights and fundamental freedoms
in all spheres of life.

INSTITUTIONAL MECHANISMS OF THE AFRICAN SYSTEM ON HUMAN AND

PEOPLES RIGHTS
It is notable that the institutional mechanisms of the legal component of the system1 are designed
to operate within the African Union (political) institutional framework. The Constitutive Act of
the African Union (hereafter ‘CAAU’, ‘Constitutive Act’ or ‘the Act’) provides for the
establishment of a number of organs within the framework of the African Union (AU), most of
which have a direct bearing on regional human rights protection and promotion.
Moreover, the AU has also adopted programmes and initiatives that cement its role in human
rights enforcement in the region. These are, for example, the New Partnership for Africa’s
Development (NEPAD), African Peer Review Mechanism (APRM) and the Conference on
Security, Stability, Development and Cooperation in Africa (CSSDCA).
Article 5 of the CAAU provides for the establishment of a number of organs within the AU
framework. These include the: Assembly of the Union; Executive Council; Pan-African
Parliament; Court of Justice; Commission; Permanent Representatives Committee;
Specialised Technical Committees; Economic, Social and Cultural Council; and Financial
Institutions.
The Assembly serves as the supreme organ of the Union vested with the ultimate political
authority. In other words, it is to the AU what the General Assembly is to the UN,
Another AU organ of relevance to regional protection and promotion of human rights is the
Executive Council (EC).16 The EC, comprising of Foreign Affairs Ministers, has two principal
functions. First, it coordinates and takes decisions on policies in areas of common interest to
member states including, among other things, foreign trade; energy, industry and mineral
resources; education, culture, health and human resource developments; and social security.
Secondly, it considers issues referred to it and monitors the implementation of policies
formulated by the Assembly
The Pan-African parliament is also potentially at the core of human rights enforcement in the
region. The Parliament has been established to ensure the full participation of African peoples in
the development and economic integration of the continent.
Another organ in the AU institutional framework that is relevant to human rights enforcement in
the region is the Court of Justice.
The Specialised Technical Committees (STCs), could be relevant in, for example, assessing
states’ compliance with their human rights obligations. These Committees are mandated to
‘submit to the Executive Council, either on its own initiative or at the request of the Executive
Council, reports and recommendations on the implementation of the provisions of this Act.’
The financial institutions listed in the CAAU are also needful in the human rights agenda of the
continent. Their role in fi nancing other institutions and organs, particularly those concerned with
human rights enforcement, cannot be overlooked.
AFRICAN UNION’S PROGRAMMES (INITIATIVES) WITH HUMAN RIGHTS
IMPLICATIONS
The AU embodies two initiatives (programmes) that are relevant to the regional human rights
agenda. These initiatives are the New Partnership for Africa’s Development (NEPAD) and the
African Peer Review Mechanism (APRM).
HUMAN RIGHTS UNDER NEPAD
 As already stated, NEPAD is a vision and strategic framework for Africa’s renewal. It is an
initiative designed to support the vision, objectives and principles of the AU. Although it is
principally an economic development programme, it emphasises the fact that human rights,
peace and development are interdependent matters.
HUMAN RIGHTS UNDER THE APRM
Paragraph 28 of the NEPAD Declaration on Democracy, Political, Economic and Corporate
Governance (DDPECG) acknowledges the establishment of the APRM on the basis of voluntary
accession. The mandate of the APRM is to ensure that the policies and practices of the
participating states conform to the agreed political, economic and corporate governance values,
codes and standards contained in the Declaration. The primary purpose of the mechanism is to:
foster the adoption of policies, standards and practices that lead to political stability, high
economic growth, sustainable development and accelerated sub-regional and continental
economic integration through sharing of experiences and reinforcement of successful and best
practice, including identifying defi ciencies and accessing the needs of capacity building.
THE AFRICAN COMMISSION ON HUMAN AND PEOPLES’ RIGHTS 9.1
STRUCTURE AND COMPOSITION
The African Commission on Human and Peoples’ Rights was established in 1987, a year after
the African Charter entered into force. The Commission consists of eleven members chosen from
amongst African personalities of the highest reputation, ‘known for their high morality, integrity,
impartiality and competence in matters of human and peoples’ rights; particular consideration
being given to persons having legal experience.
The eleven Commissioners are elected by secret ballot by the Assembly of Heads of State and
Government (AHSG) (now the African Union Assembly) from a list nominated by states parties
to the African Charter.
The Commissioners, who serve in their personal capacity,4 are elected for a six-year term and
are eligible for re-election.
MANDATE OF THE COMMISSION
The Commission’s mandate is stipulated in Chapter II of the Charter.
Specifi cally, Article 45 entrusts it with four broad functions:
• Promotion of human and peoples’ rights;
• Protection of human and peoples’ rights under conditions laid down by the Charter;
• Interpretation of the African Charter at the request of a state party, an institution of the AU or
an African organisation recognised by the AU; and
• Performance of any other tasks that may be entrusted to it by the AU Assembly
THE STATE REPORTING MECHANISM
State reporting is more of a promotional activity of the Commission than it is a protective one.
Article 62 of the African Charter requires member states to submit reports every two years. Such
reports are to indicate the legislative or other measures taken by states to give effect to the rights
and freedoms recognised and guaranteed
THE AFRICAN COURT ON HUMAN AND PEOPLES’ RIGHTS
Within less than ten years after the African Charter and Commission came into existence, there
was mounting pressure to consider appropriate ways of improving the African human rights
system. Several possibilities were mooted, particularly on how the effi ciency of the Commission
could be enhanced.1 It was suggested that the Commission be strengthened, complemented, or
altogether be replaced by a court. The option of strengthening the Commission was rather a
theoretical one because, among other shortcomings, it is not independent of its political parent,
the African Union (AU).2 The option of replacing the Commission with a court was also found
not to be very noble because a court is not well-suited to promote human rights by conducting
studies or organising conferences.
The adoption of its Protocol on 9 June 1998 and its entry into force on 25 January 2004 heralded
the beginning of a new era in the history of the African human rights system.6 The process of
establishing the Court has, however, been very slow and somewhat encumbered with some
challenges. These challenges shall be discussed later in detail but at least two of them need to be
mentioned here.
ESTABLISHMENT AND COMPOSITION OF THE COURT
The African Court is established to operate within the AU framework, in accordance with Article
1 of its Protocol. The Court was established when the Protocol to the African Charter on Human
and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights
(hereafter the ‘Court’s Protocol’ or ‘Protocol’), came into force in January 2004. The Protocol
consists of thirty-fi ve Articles, addressing various issues pertaining to the Court’s composition
and operation.
ACCESS TO THE COURT
Access to the African Court is regulated by Article 5 of the Protocol, which stipulates as follows:
The following are entitled to submit cases to the Court:
a) The Commission
b) The state party which had lodged a complaint to the Commission
c) The state party against which the complaint has been lodged at the Commission
d) The state party whose citizen is a victim of human rights violation
e) African Intergovernmental Organisations.
AFRICAN COMMITTEE OF EXPERTS ON THE RIGHTS AND WELFARE OF THE
CHILD 11.1 STRUCTURE AND COMPOSITION
The African Committee of Experts on the Rights and Welfare of the Child (hereafter ‘the African
Committee’, ‘Committee of Experts’ or ‘the Committee’) is the main regional body exclusively
mandated to promote and protect children’s rights in Africa.1 The Committee was established by
the Assembly of Heads of State and Government (AHSG) of the former Organisation of African
Unity (OAU) on 10 July 2001. It comprises 11 members of ‘high moral standing, integrity,
impartiality and competence in the matters of the rights and welfare of the child.’2 The members,
who are from different nationalities, serve in their personal capacity.3 Normally, they are elected
by the Assembly by secret ballot, from a list of persons nominated by the states parties to the
African Charter on the Rights and Welfare of the Child (hereafter ‘Children’s Charter’ or ‘the
Charter).

PART IV CHALLENGES AND REFORMS TO THE AFRICAN SYSTEM ON HUMAN

AND PEOPLES’ RIGHTS.
The African human rights system has largely been criticized as being ineffective, hence causing
doubt on its potential to improve the continent’s poor human rights record. It is needless to
emphasise that states have acted and continue to act in ways that are antithetical to their human
rights obligations under the African human rights system.
Normative reform of the African human rights system may take different forms, including, for
example, the amendment of certain aspects of the provisions of the African Charter5 , the
Protocol Establishing the African Court on Human and Peoples’ Rights6 , the Rules of
Procedure of the African Commission , or any other instrument that is relevant to the
[Link] the African Charter is the main substantive instrument of this system, our debate
on normative reforms shall be limited to the provisions of this instrument.
As for the African Charter on the Rights and Welfare of the Child and the Protocol to the
African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, most of
the rights contained therein resonate those in the African Charter. The only difference is that they
have been ‘contextualized’ to guarantee the promotion and protection of rights of children and
women.
When addressing the question of how to reform the African Charter, two approaches may be
considered. The first would be to reform the ‘flawed’ or ‘inadequate’ provisions through
interpretive and jurisprudential mechanisms. This approach contemplates a situation where
the African Commission and the Court are given the opportunity to interpret the Charter and
bring its provisions in line with international jurisprudence. With regard to the Commission,
this approach fi nds support from Articles 60 and 61 of the Charter. Article 60 provides: The
Commission shall draw inspiration from international law on human and peoples’ rights,
particularly from the provisions of various African instruments on human and peoples’ rights, the
Charter of the United Nations, the Charter of the Organisation of African Unity, the Universal
Declaration of Human Rights, other instruments adopted by the United Nations and by African
countries in the field of human and peoples’
The African Commission is under obligation to ‘draw inspiration from’, and ‘take into
consideration’, other international human rights instruments. By extension, the Commission
could give effect to the rights in the Charter in conformity with the standards of the universal and
other regional human rights systems.
The second approach calls for the comprehensive reform of the normative framework of the
Charter. This approach is premised on the argument that many events have transpired since the
adoption of the Charter, justifying radical reforms to the content and substance of its provisions.
From this viewpoint it has been contended that, while the Commission is entitled to develop the
Charter through its jurisprudence, ‘this is not a healthy practice in the long run, unless its
interpretations are followed up by the reform of the Charter provisions. The jurisprudence
evolved by the Commission and the Court may also not be regarded with the same degree of
seriousness as the Charter provisions. It is much easier for one to understand the provisions of
the Charter than to peruse through a lengthy judgement that purports to interpret the Charter.
REFORMING THE CIVIL AND POLITICAL RIGHTS PROVISIONS OF THE
AFRICAN CHARTER
As already stated, the African Charter is an innovative human rights instrument that incorporates
into one document all the three generations of rights: civil and political rights; economic, social,
and cultural rights; and group (peoples’) rights. Sadly, however, the Charter’s civil and political
rights provisions have a number of shortcomings, although they constitute the bulk of its
substantive provisions. First, the Charter has conspicuously omitted several internationally
recognised civil and political rights. For example, it does not guarantee the right to privacy
which is an important right entrenched in all the regional human rights instruments, as well as in
those of the Universal system. The Charter also does not guarantee the right against forced
labour. The Charter has also failed to explicitly give credence to the right to form trade unions
and other civic organisations within states. Article 10 should have incorporated this right in clear
and precise terms. The Charter should have gone ahead to require states to take legislative and
other measures to promote and encourage trade unions and civil society participation in
decision-making and in public affairs at all levels of government.
Further, the provisions of the Charter guaranteeing the rights to liberty and security of the
person and those of an arrested person do not reflect international standards and are
inadequate.
Secondly, the drafters of the Charter failed to acknowledge that this right goes beyond
arbitrary arrest or detention to envisage important issues such as the right of every person:
(a) not to be detained without trial, except in conditions that are clearly laid down under
international law;
(b) to be free from all forms of violence from either public or private sources; (c) not to be
tortured in any manner, whether physically or psychologically; and (d) not to be subjected to
corporal punishment or to be treated or punished in a cruel, inhuman or degrading manner.
Further, although Article 7(1)(c) guarantees every person the right to be defended by Counsel of
their choice, the Charter fails to make provision for state-provided legal assistance.
The Charter is also silent on the right to bail. The right of an accused person to be released on
bond or bail pending trial or appeal should be mandatory, unless there are compelling reasons to
the contrary. Other important rights of an accused person which have not been addressed in the
Charter include: the right to judicial review of one’s detention; the right to compensation for
unlawful detention or release from such detention; the right to public hearing or the
circumstances under which public hearing may be excluded; the right to adequate time and
facilities to prepare a defence; the right of the defence to examine and cross-examine witnesses
in court and the right to an interpreter; the right of those acquitted to compensation for
miscarriage of justice and; the right not to be subjected to a new trial for the same cause.
The drafters of the Charter could have failed to entrench the right to vote and other related
rights. This is a serious omission that needs to be addressed urgently. The civil and political
rights provisions of the Charter could therefore be enhanced by incorporating rights that were
omitted or inadequately addressed but which are guaranteed under the universal and other
regional human rights instruments.
The absence of a derogation clause means that the Charter ‘does not allow for states parties to
derogate from their treaty obligations during emergency situations. First, a derogation clause is
essential because, in certain circumstances, rights must be limited in any society. This process,
however, must be carefully managed, ‘in order to ensure that such limitations are done in an
acceptable way.’ Thus, derogation clauses serve the dual function of allowing infringements of
rights and at the same time defining standards that must be met by such infringements. The
absence of a derogation clause in the Charter therefore means that states can infringe rights in
cases of emergencies without being called to question. Hence, limitation of rights under the
African human rights system must be imposed only in strictly defined circumstances.
REFORMING THE ECONOMIC, SOCIAL AND CULTURAL RIGHTS AND OTHER
SUBSTANTIVE PROVISIONS OF THE CHARTER
Like civil and political rights, the Charter does not comprehensively guarantee some economic,
social and cultural rights in accordance with international standards. For example, under Article
15, it guarantees the right to equitable and satisfactory work [Link], unlike Article
7 of both the International Covenant on Civil and Political Rights (ICCPR) and the International
Covenant on Economic, Social and Cultural Rights (ICESCR).
It does not expressly guarantee the right to rest, leisure, limited working hours and paid
holidays.
The right to health demands more than receiving medical attention when one is sick. It includes
the right to health care services and reproductive health care. The Charter fails to guarantee
emergency medical treatment, which is usually denied in many African states.
The Charter is also not elaborate in its provision that guarantees the protection of the right to
education. It simply states that ‘every individual shall have the right to education’ without
stipulating the parameters of this right. The Charter also does not contain certain economic,
social and cultural rights, including the right to food, social security and adequate standards of
living. These are basic rights which any state is expected to guarantee its citizens. Many African
states have been violating these rights with impunity. State funds, which would have been used
to safeguard these rights, have always been mismanaged.
From the foregoing, it is inevitable to conclude that economic, social and cultural rights have not
been fully addressed under the Charter and as such the relevant substantive provisions need to be
reformed. Like with the civil and political rights provisions of the Charter, there is the need for
both progressive interpretation and, in certain cases, the promulgation of protocols to address
the shortcomings in this category of rights. Particularly, protocols should be adopted to protect
the rights of vulnerable groups such as the aged, disabled and minority communities, thus
expounding on Article 18(4) of the Charter. The inadequacies of the provisions relating to
women and children’s rights under Article 18(3) have been redressed through the adoption of
the Protocol on Women in Africa and the African Charter on the Rights and Welfare of the
Child, respectively. It is recommended that economic, social and cultural rights should be taken
as seriously as civil and political rights in both the agenda of the AU and the activities of the
African human rights system.
People should be educated on the existence of these rights and their enforcement procedures. It
is sad to note that, while economic, social and cultural rights are very essential, they are
generally not known to, or are ignored by, the lay person.
Enforcement mechanisms such as the African Commission and the [Link] scope and
content of peoples’ rights under the Charter also needs to be revisited. If peoples’ rights are to be
utilised to address some of the human rights challenges affecting the continent, it would be
imperative for the Commission to put extra effort in their interpretation and application and in
the promotion of their understanding.
INSTITUTIONAL CHALLENGES AND REFORMS UNDER THE AFRICAN HUMAN
RIGHTS SYSTEM
The image of the African human rights system, particularly its enforcement mechanisms, is not
very appealing. The system is generally perceived as a juridical misfit, with a treaty basis and
institutional mechanisms that are dangerously inadequate.
The African Court, which is still at its infancy, has also already had a share of criticism. Some
scholars are sceptical of its potential to improve the human rights situation in the region. Those
aspects of the Court that have contributed to this scepticism include its jurisdiction , access and
its relationship with the Commission, AU and other relevant human rights bodies in the
region.
While the above observations are indisputably true, there are some prospects for an invigorated
and efficient regional human rights system. As already pointed out, some developments of
historical proportions have already taken place on the regional human rights landscape with the
likelihood of impacting the future of Africans.. In this respect, it is expedient to review the
achievements, challenges and possible reforms to the key enforcement institutions of the system,
namely, the African Commission and Court on Human and Peoples’ Rights.
THE AFRICAN COMMISSION ON HUMAN AND PEOPLES’ RIGHTS
The reform of the African Commission on Human and Peoples’ Rights necessitates a multi-
dimensional and incremental process, based on a careful and rigorous assessment of its actual
performance and real potential. In tandem with this realisation, it is crucial to examine a number
of aspects of the Commission which may be in need of reform. These aspects include, but are not
limited to, its composition, organisation, mandates and functions.
To begin with, a number of concerns have been raised regarding the Commission’s composition
and organisation. These include the mode of election, independence and impartiality of its
members; gender representation; and equitable geographic and legal cultural
representation.
It has been noted, and correctly so, that the Commission is effectively under the control of the
Assembly of the Heads of State and Government (AHSG), thus bringing to question its ability to
function independently and impartially.
A number of provisions in the Charter attest to this fact. For example, it provides for the
establishment of the Commission ‘within the OAU’10; its Commissioners are political
appointees and its power to make decisions, including the publication of measures taken lies
with the AHSG. This situation is aggravated by the fact that the Commission cannot make
binding decisions against state parties but only recommendations to the AHSG. This is in
stark contrast with, for instance, the European Convention on Human Rights and Fundamental
Freedoms, which has provision for mechanisms with jurisdiction to make binding decisions
against contracting [Link], the involvement of the AHSG in the election of the
Commissioners has raised some doubt about the effectiveness of the Commission, as it appears
to be subordinate to the AHSG.
The Charter emphasises that the Commissioners ‘shall serve in their personal capacity. This
means that they ought to serve independently without any iota of influence from their home
governments.
The AHSG has been accused of asserting its influence and position to interfere with the
Commission’s work. This is in light of, for example, the Assembly’s decision to suspend the
publication of the African Commission’s 17th Activity Report and deletion of certain aspects of
the Activity Report before its publication.
At its sixth Summit in Khartoum, Sudan, in January 2006, the Assembly decided ‘to adopt and
authorise, in accordance with Article 59 of the Charter, the publication of the 19th Activity
Report of the African Commission and its Annexes, except for those containing the Resolutions
on Eritrea, Ethiopia, Sudan, Uganda and Zimbabwe.’ The decision to suspend the publication of
the Report was made after Zimbabwe protested that the report did not incorporate its response to
the fi ndings of the Commission on a fact fi nding mission. This is despite the fact that the
Commission had solicited the said response to no avail.
It is therefore important for the Commission to clarify its status, and dialogue with the AHSG to
ensure that interference with its work by both individual states and the Assembly is curtailed.
The geographical composition of the Commission has also remained unsatisfactory until
recently. It is unfortunate that the Charter does not provide for geographical and gender balance
in the Commission. Thus, over the years, most Commissioners have come from West Africa.26
At its Twentieth Session, for instance, six Commissioners were from West Africa, two each from
North and Central Africa, and one from East and Southern Africa. East and Southern Africa have
particularly been under-represented. Equitable geographical representation at the Commission
has often been made an issue, and rightly so.
Apart from geographic representation, the issue of gender balance in the Commission has also
been of concern. From its inception, it appeared that the role of women in the Commission was
taken for granted. This trend has changed in the recent years and a more representative
Commission is now in place. Its membership now reflects gender and regional balance.
Another area in which the Commission is in need of reform relates to its promotional mandate.
Although initiative has been taken to promote human rights in the region, the same has not been
satisfactory, partly because the Commission is hampered by a number of internal and
external challenges. To begin with, it is inevitable to note, although publicity is essential to the
realisation of the Commission’s promotional mandate, the same has not been done
effectively. many Africans are not even aware of its existence or, if they are, they do not
appreciate its mandate and capacity. There is the need to publicise the Commission and the
Charter through, for example, publications, promotional missions, hosting more sessions in all
states and through the mass media. Additionally, national human rights institutions, civil society
and educational institutions have a great role to play in creating awareness and sensitising the
general public of the regional human rights mechanisms.
It could, for example, organise public awareness campaigns in African towns and villages,
targeting people from diverse backgrounds. This, however, requires the collaboration and
cooperation of states.
Additionally, sufficient resource allocation needs to be considered towards this end. It is
needless to emphasise that the size of the continent and the inadequacy of material and human
resources present challenges to effective regional promotion of human rights. With one
Commissioner working part time and responsible for promoting the Charter in three to fi ve
countries, chances of effective promotion are slim.
It is therefore necessary for the Commission to operate through a network of national,
international and private organisations based in those areas. Because human rights promotion
requires publicity in the mass media, which in many African countries are stillcontrolled by
governments, the Commission must seek the support of all stakeholders if its promotional
mandate is to be a success.
Another promotional activity of the Commission that warrants reform is the state reporting
mechanism. The effectiveness of this mechanism is undermined by several factors, the first one
being its inadequate legal framework. The African Commission’s initial guidelines on state
reporting, which were unnecessarily complex, also contributed to the ineffi ciency of the
reporting mechanism. In the formative years of state reporting, the Commission did not have
clearly laid down procedures.
These guidelines were too detailed, complex and diffi cult to follow. They were later amended,
only to find that states were already demotivated and therefore unwilling to comply with their
reporting obligations because no seriousness was attached to the process from the beginning.59
Other reasons for non-compliance by states with their reporting obligations include the general
lack of political will and the lack of a co-ordinated effort between state departments The
noncoercive nature of the reporting mechanism is also likely to have contributed to the lack of
commitment to the reporting process.
Some of the problems mentioned above, such as the lack of adequate time to consider reports
and their non-submission in the approved languages, are linked to the Commission’s budgetary
constraints and the attendant lack of secretarial support.90 These problems have given rise to
other challenges such as limited periods of working sessions, inability to make documents
available for circulation to those who need them, default in transcription and translation of
reports; and the unavailability of easy access to modern communication technology such as e-
mail and the Internet. The Commission’s fi nancial allocations from the AU have often declined
rather than increased.
One such way is to increase the role of NGOs and national human rights Institutions in state
reporting. For example, the Commission can request these organisations to furnish ‘shadow’ or
alternative reports to those of the states. The ‘shadow’ or alternative reports provide the requisite
information that will enable the African Commission to engage in constructive dialogue with
state representatives when the reports are considered.
Moreover, national human rights institutions and NGOs that have been granted observer status
by the Commission may also be called upon to exert the necessary pressure on their governments
to supply their reports.
The quality of the Commission’s decisions is also quite unsatisfactory.125 Generally, they are
not detailed and seldom expound on the Charter’s provisions.126 It is therefore recommended
that the Commission should make its decisions more elaborate. Other than expressly citing the
relevant provisions of the Charter, the decisions should be supported with judicial precedents, as
well as jurisprudence from national and other international mechanisms. Such elaborate and well
formulated decisions are essential in deepening the normative understanding of the rights in the
Charter.127
Another factor inhibiting the effectiveness of the Commission’s protective mandate is the
undue prolongation of its proceedings. The Commission is on record for taking between two to
six years to render its decision on admissibility. For example, Diakité v. Gabon was filed
with the Commission in April 1992. The Commission, however, declared this case inadmissible
more than eight years later, a length of delay that is both unsatisfactory and worrisome
The inadequate staffing and management of the Commission’s Secretariat, particularly
during the initial years of its existence, and the attendant failure of states to respond promptly to
inquiries, are said to have contributed to these delays.
One may be argued that since the Commission is faced with fi nancial constraints, it is not
conducive at this time to implement the idea of sub-commissions, especially if their budgets
would strain the meagre resources of the human rights system.
THE AFRICAN COURT ON HUMAN AND PEOPLES’ RIGHTS
The challenges include heavy dependence on the AU Commission, lack of awareness among
those in the AU Commission of the importance and status of the Court. The prolonged
operationalisation of the Court is a culmination of the apparent resistance to the establishment of
a powerful regional judicial mechanism. It has been argued in some quarters that there are
adequate mechanisms for the protection of human rights at the national level.
Another challenge to the potential effectiveness of the Court may be linked to resource
allocation. African states are ravaged by poverty and are in most cases left with no option but to
prioritise
Their resource allocation. Already, there are a number of new pancontinental institutions that
require support from states in terms of resources. Additionally, a majority of the states rely on
donor aid to manage their huge economic burdens. Given such circumstances, supporting a
regional court that would more likely than not create further adverse economic implications, is
not an idea most states are prepared to embrace.
Further, certain provisions on the jurisdiction of the Court also present some challenges which
may possibly have negative implications to its effectiveness. Jurisdictional issues relate to who
can and should present cases to the courts.
Another area of equal importance to the Court’s efficiency is its power to issue binding
judgements. The ability of the system to bring about change depends on how binding the
judgements of the African Court will be.
States parties therefore ought to be compelled to comply with, and enforce the judgements of the
Court. At least one of two approaches could be used to achieve this intention. First, Article 30 of
the Protocol could be amended with an express provision spelling out the consequences of a
state’s failure to comply with, or enforce the Court’s judgements. Alternatively, the Court’s
Rules of Procedure could provide for the enforcement of the Court’s judgements at the national
level because supra-national enforcement of decisions is normally practically diffi cult.171 This
diffi culty is mainly caused by the reluctance of states to enforce decisions against each another.
The Court will only be useful if it will manage to correct the shortcomings of the African system
and provide victims of human rights violations with an effective and accessible forum to
vindicate their rights It is needless to state that the Court will not meet the expectations of
Africans if it is not provided with material and other forms of support that it may require for its
effective performance.
European System of Human Rights
In 1945, Europe was economically, spiritually, and physically devastated. Nearly all of its
countries had recently been or currently were occupied by foreign armies. Thirty-six and
a half million Europeans had died in the war.

Conceptually, the human rights framwework in Europe is based on;

i) Basic rights and fundamenxtal freedoms for the human race.

ii) The universality principle
iii) The inalienability and indivisibility
iv) Equality and Dignity principle
v) Importance of protecting the vulnerable such as women, children, minority
groups.
vi) Non discriminations.
vii) Responsibility and Obligations of Governments
viii) Accountability.

Components of the European System of Human Righs

 The European Convention on Hum an and Peoples Rights

This is the main treaty that establishes the European System of Human Rights. It
sets out a range of human rights and freedoms that must be respected by all states
that have ratified the convention. It also established the European Commission on
Human and Peoples Rights which was subsequently dissolved and replaced with
the European Court of Human Rights.

 European Social Charter

The European Social Charter protects social and economic rights. It is a

counterpart to the European Convention on Human Rights.

 Council of Europe Commissioner for Human Rights

The Commissioner for Human Rights is an independent and impartial institution

established by the Council of Europe to promote awareness of and respect for
human rights in the 47 Council of Europe member states.

 European Committee for the Prevention of Torture and Inhuman or

Degrading Treatment or Punishment
 The Committee acts under the European Convention for the Prevention of Torture
and Inhuman or Degrading Treatment or Punishment.

 Framework Convention for the Protection of National Minorities

The Convention is the first legally binding multilateral instrument devoted to the
protection of national minorities.

 Convention on Human Rights and Biomedicine (Oviedo Convention)

The full name is Convention for the Protection of Human Rights and Dignity of
the Human Being with regard to the Application of Biology and Medicine.

 European Charter for Regional or Minority Languages

The Charter is designed to protect and promote regional and minority languages
and to enable speakers to use them both in private and public life. It obliges states
parties to actively promote the use of these languages in education, courts,
administration, media, culture, economic and social life.

 European Commission against Racism and Intolerance

The Commission is a human rights monitoring body that works on issues of

racism, racial discrimination, xenophobia, antisemitism and intolerance.

 The Charter of Fundamental Rights of the European Union

It brings together the fundamental rights of the European Union together with the
fundamental rights of everyone living within the European Union. It sets out the full
range of civil, political, economic and social rights.

Institutional and Normative Mechanisms for the Protection of Human Rights in

Europe

The Council of Europe

The Council of Europe emerged from the Congress of Europe on May 5, 1949. The
founding document of the Council is its Statute. The preamble reaffirms the contracting
states’ “devotion to the spiritual and moral values which are the common heritage of
their peoples and the true source of individual freedom, political liberty and the rule
of law, principles which form the basis of all genuine democracy.
Article 1 states that the Council’s purposes are “to achieve a greater unity between its
Members for the purpose of safeguarding and realizing the ideals and principles which
are their common heritage and facilitating their economic and social progress.

The organization is governed primarily by the Committee of Ministers, which consists

of the foreign ministers of the contracting states or their designated substitutes.

The second organ was originally named the Consultative Assembly, but since February
1994 has been referred to in all Council documents as the Parliamentary Assembly. It is
composed of representatives selected by or appointed from the legislatures of the
contracting states.

The European Convention for the Protection of Human Rights and Fundamental
Freedoms
The first major treaty the Council produced after the Statute and the General Agreement
on Privileges and Immunities of the Council of Europe was the [European] Convention
for the Protection of Human Rights and Fundamental Freedoms (ECHR). The
convention was signed on November 4, 1950, and came into force on September 3,
1953. It was the first real human rights treaty. The U.N.’s Universal Declaration of
Human Rights was proclaimed during the Convention’s drafting process, but that was a
proclamation, not a treaty.
The convention was basically a response to the atrocities committed in Europe during
World War 2. Over the Years, the Convention has been supplemented by about 11
Protocols.
The ECHR’s preamble states clearly that the purpose of the ECHR was “to take the first
steps for the collective enforcement of certain of the Rights stated in the Universal
Declaration. While the Universal Declaration was intended to be universal and a
declaration of ideals, the ECHR was intended to be a regional, binding agreement.

The first section of the Convention sets out the particular human rights and
fundamental freedoms that were to be protected. The first thirteen items, which appear
in the original ECHR, were intended to restrain governments from tyrannizing the people.
Article 1 of the Convention, the State Parties must secure to everyone within their
respective jurisdictions the rights and fundamental freedom defined in the convention.
And must in terms of Article 13 provide effective remedies before national authorities
for persons whose conventional rights had been violated

Finally, Articles 15, 17, and 18 restrict the scope of the contracting parties’ ability to
derogate from the ECHR in times of emergency beyond the “extent strictly required by
the exigencies of the situation.
Until recently, the implementation machinery created by the convention consisted of the
commission and a court. The size, composition, function, and operation of the original
institutions, the European Commission of Human Rights and the European Court of
Human Rights, are described in the second and third sections of the Convention. The
Commission’s purposes were to investigate conflicts and to mediate friendly settlements.

One of the great innovations of the Convention was Article 25, which allowed “any
person, non-governmental organization, or group of individuals” to file a complaint with
the Commission. Article 25 required that governments allow their own citizens to file
complaints against them in the Council of Europe’s Human Rights Commission.

Complaints had to meet certain requirements in order to be considered. Article 27 of the

Original Convention (now Article 35) indicates that the following kinds of complaints
were inadmissible:

· Anonymous complaints;
· Matters that had already been examined by the Commission or the court;
· Those previously submitted to another international organization for
investigation
that contain no new information;
· Those that had not exhausted all domestic remedies and had been filed six
months
after the last decision of the relevant domestic institution; and
· Those “incompatible with the . . . Convention, manifestly ill-founded, or an
abuse of the right of petition.”

The jurisprudence on admissibility is still an important shield against inappropriate

applications.

If a settlement was reached in a case, article 30 provided that the Commission would
write a report consisting of a summary of the facts and a description of the settlement and
send the report to the states involved, the Committee of Ministers, and the Secretary-
General of the Council. The case would then be removed from the list. If no settlement
was reached, however, article 31(1) provided that the Commission write a report that
included the opinion of the Commission on whether or not the Convention had been
violated. The report was sent to the Committee of Ministers and the states involved in the
dispute] If neither party appealed the decision to the European Court of Human Rights
(ECtHR) within three months, article 32(1) provided that the Committee of Ministers
decide whether or not there had been a violation.

In November 1st, 1988, Protocol 11 to the convention entered into force abolishing the
commission and created a single permanent European Court of Human Rights with full
jurisdiction. The Commission became obsolete in 1n 1998. The move was prompted by
the fact that the previous system could not cope with the workload.

Resolution of Cases Before the European Court of Human Rights

Applications are reviewed for admissibility by a three judge committee, if found to be
admissible, the case goes forward before the chamber of seven judges that has
jurisdiction to decide on the admissibility and merits of individual and inter state
application

5.1 Principles Guiding Decisions

There are several principles that are not explicitly discussed by the ECtHR, but that
nevertheless influence it. The first is subsidiarity, which means that any task that an
organization undertakes should be done at the lowest level possible. It could be expressed
conversely: the only tasks that should be done at a higher-level are those that only the
higher level is capable of doing.

Article 13 puts the burden on the contracting states to provide domestic remedies to
citizens whose rights under the Convention have been violated “notwithstanding that the
violation has been committed by persons acting in an official capacity.”

The second principle is the “margin of appreciation.” It is essentially the deference the
court shows contracting states’ interpretations of the particularities of their own legal
systems. This principle has been “used to decide whether or not a state’s interference
with a protected right is ‘necessary in a democratic society’ to achieve certain interests.

A related principle is that of proportionality. When the ECHR allows states to restrict a
right, the state must restrict that right only insofar as is necessary to achieve a legitimate
goal. In some cases the Convention explicitly allows such restrictions; in others the
ECtHR
In the most general terms, the purpose of proportionality is to protect individual rights
from limitation by states when such limitation exceeds what is necessary to accomplish
some public good, such as the exercise of the Convention’s rights, the protection of
democracy, or the suppression of crime.

Under the principle of “Fourth Instance,” the ECtHR is not an appellate court and
applications to it are not appeals “from the decisions of national courts applying national
law.

Enforcement
Article 46(2) of the Convention gives the Committee of Ministers the responsibility for
enforcement
Compliance
Although there have been a number of partial or impressionistic attempts to assess the
contracting parties’ compliance with the court’s judgments, there has been no
comprehensive and reliable study.

Indeed there are deep, inherent difficulties to any such assessment. There is an enormous
variation in the cultures of the forty-seven members of the Council.

There are, however, some good reasons for concluding that compliance is high. Although
states have obvious, material interests in international economic, trade, and travel
agreements, human rights agreements require governments to accept an obligation with
no corresponding benefit to them. Indeed, agreement to the ECHR opens a government to
potential complaints, embarrassment, and the payment of damages.

The Social Charter and the Expansion of Rights

Although commentators regard the ECHR as the crowning achievement of the Council of
Europe, the Council has adopted many other treaties that have developed human rights
beyond their traditional core. First among these is the European Social Charter (ESC( The
Charter was opened for signature on October 18, 1961.
The ESC has a preamble, six parts, and an appendix. The preamble makes clear that the
Charter is an extension of the ECHR and that its purpose is to improve the “standard of
living and social well-being” of members’ populations. The ESC deals with economic
and social policies that apply to groups of people within members’ societies, whereas the
ECHR enumerates individual rights. The first part of the ESC consists of thirty-one brief
policy statements that members pledge to pursue.[[172]] They cover principles such as
the right to work; the right of both labor and employers to organize; the right to the
protection of health; the right of the family to social, legal, and economic protection; the
right of elderly persons to social protection; and the right to housing. Although at first
glance most of them appear to have to do with conditions of work, many deal with
protecting the disadvantaged of all kinds. The second part amplifies the meaning of each
of the policies stated in part I.

This function of the ECSR is quasi-judicial insofar as its reports have a particularly
strong influence on subsequent actions [Link] are nevertheless not binding. The
Committee can also send a copy of the report to the International Labour Organization
(ILO).

The ECSR then writes a report that describes its investigation and presents its conclusion.
That report is sent to the party that made the complaint, the Committee of Ministers, and
all contracting parties of the ESC.[[192]] The Committee of Ministers then votes on
whether or not the state against whom the complaint was lodged applied the ESC
satisfactorily. If the vote is against the party, the Committee of Ministers votes on a
resolution that recommends the actions the defendant party must take to improve its
application of the ESC. Only contracting parties to the ESC can vote and the resolution
must pass by a two-thirds majority
The Inter- American system of human rights
The Inter-American System for the protection of human rights is a regional human rights system,
and is responsible for monitoring, promoting, and protecting human rights in the 35 independent
countries of the Americas that are members of the Organization of American States (OAS).
The Inter- American system of human rights protection possesses a distinctive dual structure. All
American states which are members of the OAS have human rights obligations under the
Charter, while some voluntarily assume obligations through the American Convention on
Human Rights. The two strands of protection do not, however, stand alone, but interact and
may, at certain points, be regarded as symbiotic.
The Organization of American States as established in the ninth Inter-American Conference held
in Bogota in 1948 is the old regional mechanism to protect human rights. There are treaty
obligations to respect and protect human rights enshrined in the OAS Charter. In the OAS
system, human rights are protected under two interrelated frameworks. The first is founded upon
charter and the 1948 American Declaration of the Rights and Duties of Man.
The second, and more effective, is founded upon the American Convention of Human Rights .
The Convention is applicable to only those states that have ratified it, whereas the Declaration is
applicable to all OAS member states”.
The Charter-based system applies to all 35 Member States of the OAS. The Convention system
is legally binding only on the States Parties to it. The two systems overlap and interact in a
variety of ways.
The American Declaration of the Rights and Duties of Man.
In 1948, the Ninth Pan-American Conference adopted the American Declaration on the Rights
and Duties of Man, which set out the duties as well as the rights of individual citizens. The
American Declaration was the first international human rights document, preceding the
Universal Declaration of Human Rights by a few months. There was a broad regional support for
the adoption of an American Declaration on the Rights and Duties of Man during the same 1948
conference that created the Charter of the Organization of American States.
The American Declaration is not a legally binding instrument per se. However, the American
Court and Commission have subsequently accepted it as a source of legal obligations for OAS
(Organisation of American States) member States.
The legal basis justifying the binding nature of the Declaration lies in the treaty obligation to
respect and protect human rights enshrined in the OAS Charter, a general and broad
obligation that the Declaration has arguably detailed.
The Declaration constitutes the standard by which the Commission assesses States‘ compliance
with their human-rights obligations under the Charter. However, the Commission cannot refer a
case to the Inter– American Court under the American Declaration.
The American Convention on Human Rights

In 1969, the Inter-American Specialized Conference on Human Rights adopted the American
Convention on Human Rights, which, among other things, after entering into force in July
1978, made the existing Inter-American Commission an organ of the convention and
established the Inter-American Court of Human Rights. Not all OAS members have ratified/
acceded to the Convention. Currently, it only binds twenty–four States of the 35 OAS members.

The bodies responsible for overseeing compliance with the Convention are the Inter-American
Commission on Human Rights and the Inter-American Court of Human Rights, both of which
are organs of the Organization of American States (OAS).
According to its preamble, the purpose of the Convention is to consolidate in this hemisphere,
within the framework of democratic institutions, a system of personal liberty and social
justice based on respect for the essential rights of man.
Chapter I establishes the general obligation of the states parties to uphold the rights set forth in
the Convention to all persons under their jurisdiction, and to adapt their domestic laws to bring
them into line with the Convention.
The 23 articles of Chapter II give a list of individual civil and political rights due to all persons,
including the right to life "in general, from the moment of conception", [2] to humane treatment, to
a fair trial, to privacy, to freedom of conscience, freedom of assembly, freedom of movement,
etc.
Chapter IV describes those circumstances in which certain rights can be temporarily suspended,
such as during states of emergency, and the formalities to be followed for such suspension to be
valid.
It also contains provisions for the creation and operation of the two bodies responsible for
overseeing compliance with the Convention
The convention mandates two organs to supervise the implementation and enforcement of the
rights contained therein. These are the Commission and the court. Both institutions have
specially assigned functions under the Convention.
The Inter-American Commission on Human Rights

In 1959, a meeting of the American Ministers for Foreign Affairs created the Inter-American
Commission on Human Rights. Its establishment was adopted by an OAS resolution in 1959. It
began operating in 1960.
In 1969, the Inter-American Specialized Conference on Human Rights adopted the American
Convention on Human Rights, which, among other things, after entering into force in July
1978, made the existing Inter-American Commission an organ of the convention and
established the Inter-American Court of Human Rights.
The Commission is composed of seven members who are elected by the OAS Member States
and who serve part-time and in their individual capacities for four-year terms that may be
renewed once. The commissioners are supported by the staff of the Executive Secretariat.

Article 112, which provides that the principal function of the Commission is to promote the
observance and protection of human rights and to serve as a consultative organ of the
Organization in these matters

It addresses human rights conditions and violations in the 35 Member States of the OAS. Those
States are: Antigua and Barbuda, Argentina, Bahamas, Barbados, Belize, Bolivia, Brazil,
Canada, Chile, Colombia, Costa Rica, Cuba, Dominica, Ecuador, El Salvador, Grenada,
Guatemala, Guyana, Haiti, Honduras, Jamaica, Mexico, Nicaragua, Panama, Paraguay, Peru,
Dominican Republic, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines,
Suriname, Trinidad and Tobago, United States of America, Uruguay, and Venezuela.

In addition to carrying out visits and receiving complaints, the Commission also holds thematic
hearings on specific topical areas of concern, publishes studies and reports, requests the adoption
of precautionary measures to protect individuals at risk, and has established several thematic
rapporteurships to more closely monitor certain human rights themes or the rights of specific
communities in the hemisphere.

The Commission acts as the first step in the admissibility process for contentious cases, promotes
friendly settlements between parties, and investigates and presents reports on human rights
conditions in American States, even where no legal claim has been filed.
The Commission receives and processes complaints of specific human rights abuses. The
Commission may investigate and report on the human rights situation in any country in the
hemisphere. The Commission may receive individual petitions alleging a violation of the
American Convention or other OAS convention or protocol by any State Party to the
[Link] may also receive petitions alleging a violation of the American Declaration by
States which have not ratified the Convention. The Commission assists the Court in identifying
and handling these cases, and also develops separate activities of human rights monitoring and
promotion in order to prevent future abuses. When the Commission concludes that a violation of
human rights has taken place, it prepares a preliminary report including its recommendations for
how the State should redress the violation, and transmits it to the State.

Individuals, groups of individuals, and non-governmental organizations recognized in any OAS

Member State may submit complaints (“petitions“) concerning alleged violations of the
American Declaration of the Rights and Duties of Man, American Convention on Human Rights,
and other regional human rights treaties.

The Inter-American Court Of Human Rights

The Inter-American Court of Human Rights began to actually operate in 1979, after the eleventh
state ratification brought the American Convention. Within the Inter-American Human Rights
System, the Court and the Commission play distinct yet complementary roles. The Court
resolves contentious disputes and issues advisory opinions on specific questions of law.
The Court operates as a forum of last resort for complaints of human rights abuses that are not
adequately addressed by domestic remedies.
Both the Court and the Commission are composed of seven members. Judges on the Court serve
six-year terms and may be reelected once.
The Court and the Commission are each supported by a full-time Secretariat.
The State remains responsible to the Court for any human rights violations committed before the
date of renunciation. States over which the Court currently has jurisdiction include:
Argentina, Barbados, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominica, Dominican
Republic, Ecuador, El Salvador, Grenada, Guatemala, Haiti, Honduras, Jamaica, Mexico,
Nicaragua, Panama, Paraguay, Peru, Suriname, Uruguay, and Venezuela.88 Members of the
OAS that have not submitted to the jurisdiction of the Court include: Antigua & Barbuda,
Bahamas, Belize, Canada, Guyana, St. Kitts & Nevis, St. Lucia, St. Vincent & Grenadines,
Trinidad & Tobago (withdrawn), and the United States.89 The Court‘s jurisdiction is also limited
by subject matter.
The Court is specifically empowered to hear allegations of state violations of the American
Convention and other binding human rights instruments of the OAS.
Enforcement
The American Convention and the OAS Charter are vague on the subject of how the Court‘s
judgments should be enforced. The European human rights system invests the Committee of
Ministers with the responsibility of ensuring that States comply with the ECHR‘s rulings.196 No
similar provision exists in the American system.
The Convention does, however, direct the Commission and the Court to submit annual reports to
the General Assembly of the OAS which provides some enforcement oversight. The General
Assembly regularly discusses human rights issues at its sessions.
The General Assembly of the OAS also has the discretionary authority to pass sanctions against
States that have not complied with the recommendations of the Commission or orders of the
Court.
The Court itself has assumed responsibility for monitoring the domestic enforcement of its
reparations decisions, a practice which consumes a considerable amount of its attention and
resources.
The Additional Protocol to the American Convention on Human Rights in the Area of
Economic, Social and Cultural Rights.
The first, the Additional Protocol to the American Convention on Human Rights in the area
of Economic, Social, and Cultural Rights was opened for signature in the city of San
Salvador, El Salvador, on 17 November 1988. It represented an attempt to take the inter-
American human rights system to a higher level by enshrining its protection of so-called second-
generation rights in the economic, social, and cultural spheres. The protocol's provisions cover
such areas as the right to work, the right to health, the right to food, and the right to education. It
came into effect on 16 November 1999.
THE RIGHTS OF THE VULNERABLE, MINORITY, DISADVANTAGEOUS
GROUP
Vulnerable groups are those groups of people who may find it difficult to lead a
comfortable life, and lack developmental opportunities due to their disadvantageous
positions.
Further, due to adverse socio-economical, cultural, and other practices present in each
society, they find it difficult many a times to exercise their human rights [Link] may
be defined as, certain groups of population who often encounter discriminatory treatment,
or need some kind of special attention for protection of the State to avoid exploitation or
from a harmful environment. They are Groups that experience a higher risk of poverty
and social exclusion than the general population, ethnic minorities, migrants, disabled
people, the homeless.
Human rights universally recognise the realisation of rights by all sections of people
without any discrimination. However, many a times, due to a number of adverse social,
economic, cultural aspects, which play a vital role in the realisation of the rights, the
vulnerable and disadvantaged groups are often not in a position to exercise their rights
freely.
There is no agreed standard definition, concept, or standard classification of list of people
who are to be classified as vulnerable and disadvantaged groups. In general, women,
children, socially, economically, culturally deprived sections, disabled, minorities etc.
form part of disadvantaged groups. Poverty is the main contributing factor towards
degradation of the status of these people that are classified as disadvantaged groups. The
above definitions are only illustrative in nature.
In general, the discrimination is often based on humiliation, harassment, intimidation,
through social, political, economical, customary, and cultural factors. The idea behind
such practices is to keep away such people from the forefront of the social activities and
deprive them of their life and liberty.
 Women and Girls
Women and girls are normally in a disadvantageous position all over the World.
However, compared to developed countries, they are in a more disadvantageous position
in developing countries due to abject poverty, other social, cultural, and derogatory
customary practices adopted in each country
 Children:
Children again are the most disadvantaged people in the World. Children of developing
countries, compared to developed countries face a number of problems, such as poverty,
malnutrition, and other socio, economic, cultural abuses.
 Refugees:
Refugees means, persons who migrate from their country to another country to seek
temporary shelter; due to adverse events such as famine, persecution, religious
intolerance, racial discrimination or any other reason.
 Internally displaced Persons.
People who are forced to leave their home and place of residence due to adverse affects
or events that take place in their habitual dwelling are described as Internally Displaced
Persons. These However, according to UN Principles of Internal Displacement, an IDP
means: ‘internally displaced persons are persons or groups of persons who have been
forced or obliged to flee or to leave their homes or places of habitual residence, in
particular as a result of or in order to avoid the effects of armed conflict, situations of
generalized violence, violations of human rights or natural or human-made disasters, and
who have not crossed an internationally recognized State border.’
 National Minorities
Those people who do not form part of majority population of a country could be
classified as national minorities. The classification may be based on religion, ethnicity,
language or any other factors. The United Nations adopted a number of declarations to
protect rights and appointed several commissions to augment the rights of these people. It
adopted a specific declaration on 18th December in 1992. According to the declaration, it
is the duty of every state to protect the Ethnic, Cultural, Religious, and Linguistic
minority rights without any deviance at all times.
 Disabled Persons
Disability assumes different meaning in different contexts. According to UN Declaration
on the Rights of Disabled Persons (1975) “any person unable to ensure by himself or
herself, wholly or partly the necessities of a normal individual and or social life as a
result of a deficiency either congenital or not in his /her physical or mental abilities”
could be described as disabled.
Accordingly, any individual may also qualify as disabled if he/she has had impairment in
the past or is seen as disabled based on a personal or group standard, or norm. Such
impairments may include physical, sensory, and cognitive or developmental disabilities.
People who suffer from mental disorders such as, psychiatric or psychological infirmities
are also described as disabled persons.
 HIV/AIDS affected Persons
The people those who are afflicted by this most dreaded disease are another kind of
persons who are discriminated on many counts in enjoying their basic rights around the
World.
 Sexual Minorities; LGBTQ Community
Due to the sexual orientation an\d other habits of these people, they are illtreated in many
parts of the world. These people are often targeted by society for their sexual preference.
WOMEN’S RIGHTS.
Women constitute almost half of the world population. However, their enjoyment of
rights equally with that of men is far from satisfactory. In every society from ancient to
modern times, women are considered as the property of men to serve their interests in
both society and domestic front. In order to halt such practices, the UN and the
international community have evolved a number of methods to augment the rights of
women on par with men without any kind of discrimination.
Women’s Rights Are Human Rights. Soon after the adoption of the Universal
Declaration of Human Rights in 1948, criticism of its language arose.
The declaration refers to “man” and uses the pronoun “he” when discussing individuals.
While drafters of the declaration did not appear to intentionally exclude women from
human rights, central concerns about the male focus have persisted. Subsequent human
rights documents did little to correct the male orientation of human rights until 1980,
when delegates from the United Nations endorsed the Convention on the Elimination of
All Forms of Discrimination Against Women (United Nations, 1980).
Based on the feedback, the UN in 1979 adopted The Convention on the Elimination of
All Forms of Discrimination against Women (popularly referred to as CEDAW
Convention). This convention became a milestone in the development of women’s rights
and addressed to eliminate all kinds of discrimination. The convention has come into
force in 1981 and 187 states have ratified the convention and became parties. Among the
few who have not become parties to it are Iran, Palau, Somalia, Sudan, South Sudan,
Tonga, and United States of America. USA and Palau have signed but not ratified the
convention. The convention has a preamble and 30 articles.
Since then, the concept that human rights are for women, as well as men, has gained
significant momentum, if not always put into practice. The most prominent human rights
document concerning the human rights of women is the Convention on the Elimination of
All Forms of Discrimination Against Women (CEDAW). This convention became
effective in September 1981, and at least 170 countries have approved the
convention. The focus of CEDAW is elevating the status of women to that of men in the
area of human rights. CEDAW notes “the great contribution of women to the welfare of
the family and to the development of society,” which so far is not fully recognized
The underlying purpose of CEDAW is to ensure that women’s human rights receive the
same attention as those of men. Of course, some may object to special treatment of
women as a vulnerable group. The underlying concept of human rights aims to avoid
favoring one group over another. However, when one group appears disadvantaged or
discriminated against in respect to other groups, human rights principles suggest that
assistance be provided to the vulnerable group.
It defines acts that constitute as discrimination and specifies the strategies to the national
governments to adopt policies to eliminate such discrimination against women.
According to the Convention, discrimination against women as "...any distinction,
exclusion or restriction made on the basis of sex which has the effect or purpose of
impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of
their marital status, on a basis of equality of men and women, of human rights and
fundamental freedoms in the political, economic, social, cultural, civil or any other field."
(Article 1)
By accepting the Convention, States commit themselves to undertake a series of
measures to end discrimination against women in all forms, including: (Article 2) It sets
out equal rights for women, regardless of their marital status, in all fields - political,
economic, social, cultural and civil - and calls for national legislation banning
discrimination. (Article 3). As per the provisions of the Convention, each country need to
submit independent reports to the committees appointed by the UN at periodical intervals
on the steps taken by them in the promotion of women’s rights. In this context, it is to be
noted that the effectiveness of the Convention in promoting the rights of women is
significantly undermined by the states by making reservations to several provisions of the
convention.
CHILDREN RIGHTS
Children need special protection because of their fragile state of development. Children
are readily susceptible to abuse and neglect and often do not have means to defend
themselves against these wrongs. In its Convention on the Rights of the Child, the United
Nations states that the “child, by reason of his physical and mental maturity, needs
special safeguards and care, including appropriate legal protection, before as well as after
birth” (United Nations, 1989).
Convention on the Rights of the Child
Recognizing that children need special protection, the United Nations adopted the
Convention on the Rights of the Child in 1989. This convention specifies basic rights that
every child should enjoy.
To date, almost every member country of the United Nations has approved this
convention Who Is a Child? Under the convention, a child “means every human being
below the age of eighteen years . This definition of child allows states to define a child as
having reached adulthood before the age of 18 years if, in a particular instance, the law
allows this earlier age of adulthood.
What Rights Does a Child Have Under the Convention?
The following list summarizes important rights contained in the Convention on the Rights
of the Child: States may not discriminate against a child on the basis of “race, color, sex,
language, religion, political or other opinion, national, ethnic, or social origin, property,
disability, birth, or other social status”
In all actions concerning children, the best interests of the child shall be a primary
consideration (Article 3, para. 1).
The convention does not expressly define the term “best interest,” but leaves the matter
open to individual countries. However, states are expected to follow established human
rights principles in matters relating to children. Parents and guardians have primary
responsibility for the upbringing of their children but are expected to carry out those
responsibilities in a manner consistent with the evolving capacities of the child (Article
5).
A child has the right to a name, nationality, and, as far as possible, to know and be cared
for by his or her parents (Article 7, para. 1). A child has the right to maintain contact with
both parents unless that contact is contrary to the child’s best interest (Article 10, para. 2).
A child capable of forming his or her own views has the right to express those views with
due weight given to the age and maturity of the child (Article 12, para. 1).
A child has the right to “freedom of expression,” including the freedom to “seek, receive,
and impart information and ideas of all kinds” (Article 13, para. 1). However, a state may
restrict this right to protect the reputations of others and the national security, public
order, public health, or morals (para. 2). A child has the right to be free from arbitrary or
unlawful interference with his or her privacy, family home, or correspondence (Article
16).
A child has the right to adequate health care (Article 24); treatment for mental health
(Article 25); social security (Article 26); adequate standard of living, including nutrition,
clothing, and housing (Article 27); and primary education (Article 28). Education of a
child shall include development of the child’s personality, talents, and mental and
physical abilities to their fullest potential (Article 29, para. 1[a]
A child has a number of basic rights, such as, right to nourishment, adequate nutritious
food, basic health care, love and affection of family, society, not to abuse the tender age,
recreation, right to basic education, right to development, right to identity, community
and social life, etc.
After the adoption of the Universal Declaration of Human Rights, 1948, it has explicitly
recognized the rights of every person including the children. The Declaration clearly
described, “…. motherhood and childhood are entitled to special care and assistance” and
describes the family as “the natural and fundamental group unit of society.”
The United Nations considering the number of abuses that are alarmingly raising all over
the world in the protection and promotion of children’s rights adopted a legally binding
convention directly addressing the children rights as human rights. 190 states become
parties by ratifying the Convention on the Rights of the Child. The objective behind the
Convention is, children being human; their rights too constitute as human rights. As
human rights, children rights legally guarantee their rights internationally and to halt all
kinds of discriminatory abusive practices that are adopted against their life and liberty.
Apart from the civil, political, economic, social, cultural rights, they have independent
rights to live with parents and to be taken care
The Convention is the first legally binding comprehensive document addressing all the
rights of children, imposing binding obligations on the States to adopt and implement the
Provisions of it. The fifty-four articles of the convention apart from guaranteeing all the
rights of children also provided for the establishment of an International Commission on
Child Rights to monitor and to seek reports from the states parties on the various aspects
of the implementation of the provisions of it.
The Convention imposes an obligation on the States parties to take steps that any law that
is in vogue or enacted in future, including societal conditions, practices in no way effect
the best interests of children. It is the duty of the states to take care of the development of
child, which includes physical, mental, emotional, cognitive, social, and cultural
developments in no way harmful to the life and survival of the child. Children should be
freely allowed to express their opinions. The views expressed by them considering their
age, mental maturity need to be respected, encouraged, while giving due weight-age
taking into consideration of interest and welfare of child.
PERSONS WITH DISABILITIES
Another group receiving special protection within a human rights context is that of
persons with disabilities, including mental illness. In 1975, the United Nations adopted a
declaration on the rights of persons with disabilities (United Nations, 1975). The
declaration defines a person with a disability as any person unable to ensure by himself or
herself, wholly or partly, the necessities of a normal individual and/or social life, as a
result of deficiency, either congenital or not, in his or her physical or mental capabilities
(para 1).
Persons with disabilities are entitled to measures designed to enable them to become as
self-reliant as possible (para. 5); medical, psychological, and functional treatment,
including prosthetic and orthetic appliances (para. 6); medical and social rehabilitations,
education, vocational training and rehabilitation, counseling, placement services, and
other services to assist in social integration (para. 6); economic and social security and a
decent level of living.
People with disabilities have the right to secure and retain employment or to engage in a
useful, productive, and remunerative occupation and to join trade unions (para. 7); live
with their families and to participate in all social, creative, or recreational activities (para.
9); protection against exploitation and treatment of a discriminatory, abusive, or
degrading nature (para. 10)
STATUS OF INDIGENOUS PEOPLE AND THE ROLE OF UN
There are nearly 370 million indigenous people living in the world according to available
estimates. They are affected by historical colonization and invasion of their territories,
face discrimination because of their distinct cultures, identities, and ways of life. They
face marginalization, gender discrimination, extreme poverty, and other human rights
violations and often dragged into armed conflicts. These groups are mostly found in
USA, Latin America, Canada, Australia, New Zealand and many other countries around
the world. In particular, the following issues are of particular concern to indigenous
people: access to land and ancestral territories; access to justice and strengthening of
indigenous customary law and justice systems; impact of mining and other extractive
industries on indigenous peoples; Lack of right to education and health.
 The UN Declaration on the Rights of Indigenous Peoples 2007,
The Declaration establishes a universal framework of minimum standards for the
survival, dignity, well-being, and rights of the world's indigenous peoples. It
addresses “both individual and collective rights; cultural rights and identity; rights
to education, health, employment, language, and others. It outlaws discrimination
against indigenous peoples and promotes their full and effective participation in all
matters that concern them. It also ensures their right to remain distinct and to
pursue their own priorities in economic, social, and cultural development. The
 Declaration encourages harmonious and cooperative relations between States and
indigenous peoples. It calls for the maintenance and strengthening of their cultural
identities, and emphasizes their right to pursue development in keeping with their
own needs and aspirations. The Declaration states that native peoples have the
right “to the recognition, observance, and enforcement of treaties” concluded with
States or their successors. The Office of the UN High Commissioner for Human
Rights developed a set of guidelines to be adopted by the UN and the member
nations in the promotion and protection of the rights of Indigenous people. These
guidelines mainly aim to guide the UN in implementing and monitoring its policy
perspectives to adopt specific programmes to focus and in mainstreaming the
issues of indigenous people
 Special Rapporteur on the situation of human rights and fundamental
freedoms of indigenous peoples
 Observance of the First United Nations International Decade of the World’s
Indigenous Peoples [1995 – 2004] which was followed by the Second
International Decade The Office of the High Commissioner for Human
Rights (OHCHR) carries out a range of country specific and regional
activities to advance the rights of indigenous people.
LGBTQ COMMUNITY AS A VULNERABLE GROUP
Countries may claim that homosexuality is against religion and culture and therefore not
entitled to protection under any human rights theory. Certainly, however, the Universal
Declaration of Human Rights contradicts discrimination against gays and lesbians.
VICTIMS OF RACISM AS A VULNERABLE GROUP
All human groups, whatever their composition or ethnic origin, contribute according to
their own genius to the progress of the civilizations and cultures. However, racism, racial
discrimination, colonialism, and apartheid continue to afflict the world in ever-changing
forms, a result of government and administrative practices contrary to the principles of
human rights. Injustice and contempt for human beings leads to the exclusion,
humiliation, and exploitation, or to the forced assimilation, of the members of
disadvantaged groups. (United Nations, 1978, preamble).
All human beings belong to a single species and are descended from a common stock.
They are born equal in dignity and rights and all form an integral part of humanity.
Refugees and Human Rights
The United Nations Declaration of Human Rights was written in 1948 to protect
every human being no matter where they were born, what language they speak,
or what religion they follow. In 2021, 73 years later, there are over 80 million
displaced refugees and asylum seekers around the world who require this
document to access their human rights. Unfortunately, human rights abuses take
place daily against refugees, so how can we help fight against this?

The 1951 Refugee Convention defines a refugee as ‘an individual who is outside
his or her country of nationality or habitual residence, who is unable or
unwilling to return due to a well-founded fear of persecution based on his or
her race, religion, nationality, political opinion, or membership in a particular
social group’. This means that someone is forced to leave their home simply for
being who they are.

Definition - owing to well-founded fear of being persecuted for reasons of race, religion,
nationality, membership of a particular social group or political opinion, is outside the
country of his nationality and is unable or, owing to such fear, is unwilling to avail
himself of the protection of that country; or who, not having a nationality and being
outside the country of his former habitual residence as a result of such events, is unable
or, owing to such fear, is unwilling to return to it.
Comparatively, an asylum seeker is someone who is seeking international
protection from dangers in their country, but their claim for refugee status
has not yet been determined legally. Crucially then every refugee was an
asylum seeker at some point.

Moreover, a migrant is someone who moves from place to place (this can be
internally in a country) not because of a direct threat but mainly to improve
their lives through finding a better job, receive better education or join their
family. In comparison, an immigrant has made a conscious decision to leave
their home and move to a foreign country with an intention to settle. These
distinctions are important to remember when it comes to talking about refugees
and human rights, although there are many crossovers.

The Key Human Rights

As mentioned, every human being is entitled to the rights listed in the
Declaration of Human Rights, but which ones specifically affect refugees and
are sometimes mistreated? There are six which are particularly important for
refugees:
 Article 3 claims ‘Everyone has the right to life, liberty, and security of
person’. This means you have the right to live your life freely and
without risk of persecution.
 Article 5 notes that ‘No one shall be subjected to torture or to cruel,
inhuman or degrading treatment or punishment’ meaning if you are
 subjected to violence or torture by anyone, including governments, this
is a violation of your human rights.
 Article 13 promises ‘Everyone has the right to leave any country,
including his own, and to return to his country’ so everyone has the
human right to leave their country if they want or need to.

 Article 14 states that ‘Everyone has the right to seek and to enjoy in
other countries asylum from persecution’ and this is essential for
refugees as this shows it is within their human rights to seek asylum in
a safe country, and notably this doesn’t have to be the first safe country
they reach.
 Article 23 allows ‘Everyone has the right to work’ however many
countries and governments ban asylum seekers from working, which is
actually a violation of their human rights.
 Article 26 claims ‘Everyone has the right to education’ yet sadly up
to 48% of school-aged refugees are out of school.

It is premised on the principle that human beings shall enjoy fundamental rights and
freedoms without discrimination,
Every refugee has duties to the country in which he finds himself, which require in
particular that he conform to its laws and regulations as well as to measures taken for the
maintenance of public order. —
Article 3 NON-DISCRIMINATION The Contracting States shall apply the provisions of
this Convention to refugees without discrimination as to race, religion or country of
origin. Article 4 RELIGION The Contracting States shall accord to refugees within their
territories treatment at least as favourable as that accorded to their nationals with respect
to freedom to practice their religion and freedom as regards the religious education of
their children. Article 5 RIGHTS GRANTED APART FROM THIS CONVENTION

HUMAN RIGHTS AND CONTEMPORARY ISSUES:

1. Right to picket, demonstrate and Security

2. Economic crises, climate change, and environmental degradation
disproportionately affecting marginalized communities.
3. Targeting of human rights defenders advocating for marginalized
communities.
4. Backlash against the rights of women, girls, and LGBTI people.
5. Growing transnational repression and autocratic leaders sacrificing rights
to consolidate power.
6. Human trafficking and refugee crises.
7. Worker rights, gender equality, and LGBTQ+ rights.
8. Human rights and technology.
9. Attacks on journalists and the spread of misinformation.
10. Artificial intelligence and human rights
11. Globalisation vs Nationalism
12. Poverty
13. Terrorism and Human Rights
14. Congo, Sudan and Palestine. etc