Chapter-7

Protection of Human Rights during State of Emergency

State of Emergency as Exceptional Situation

- States may apply various terms to the special legal order introduced in crisis situations such as
“state of exception”, “state of emergency”, “state of alarm”, “state of siege”, “martial law” and
so forth.
- These exceptional situations often involve the introduction of special powers of arrest and
detention, military tribunals etc.
Human rights during emergency
- Some human rights are absolute and may never, in any circumstances, be suspended.
- However, states may suspend certain rights in emergencies under the terms of several
international human rights treaties.
- Derogations have therefore also been called “extraordinary limitations” on the exercise of
human rights
Provision under UN and Regional Conventions
- Possibility for the States parties to resort to derogations in particularly serious emergency
situations.
- International Covenant on Civil and Political Rights (art. 4),
- American Convention on Human Rights (art. 27)
- European Convention on Human Rights (art. 15)
- African Charter on Human and Peoples’ Rights and Commission’s view(There is no provision
of emergency in the charter
- According to the African Commission on Human and Peoples’ Rights (“ the restriction of
human rights is not a solution to national difficulties”)
- “the legitimate exercise of human rights does not pose dangers to a democratic State governed
by the rule of law”
- The civil war could not therefore be used as a legal shield for failure to fulfil the legal
obligations under the African Charter,

Article 4 (1) of ICCPR

- “In time of public emergency which threatens the life of the nation and the existence of
which is officially proclaimed, the States Parties to the present Covenant may take measures
derogating from their obligations under the present Covenant to the extent strictly required
by the exigencies of the situation, provided that such measures are not inconsistent with
their other obligations under international law and do not involve discrimination solely
on the ground of race, color, sex, language, religion or social origin.”
 Background of Article 4
- The introduction of a derogation provision into the Covenant was first proposed by the United
Kingdom in a Drafting Committee of the United Nations Commission on Human Rights in
June 1947.
- United Kingdom expressed the view that “if such a provision were not included, in time of
war it might leave the way open for a State to suspend the provisions of the Convention.” It
was “most important that steps should be taken to guard against such an eventuality”.
- The arguments for and against the advisability of a derogation provision continued during the
subsequent sessions of the Commission on Human Rights.
- The USSR was “in favour of the least possible limitation” by adding the phrase “directed
against the interests of the people” after “in time of war or other public emergency”
- United States and Philippines were against the derogation provision.

Conditions
- The condition of a “public emergency which threatens the life of the nation.
- The condition of strict necessity
- Official proclamation
- Non-derogability of certain Rights and obligations (Art. 4(2) ICCPR)-- Human Rights
Committee : jurisprudence
 Even if not listed in article 4(2), some rights may not be derogated from because they are considered to
be “inherent to the Covenant as a whole”
 one such example is the right to judicial remedies in connection with arrests and detentions as set out
in article 9(3) and (4)
 Right to a fair trial for persons threatened with the death penalty.
 The Committee has further held under the Optional Protocol that “the right to be
tried by an independent and impartial tribunal is an absolute right that may suffer
no exception”

- Consistency with other international legal obligations

- The condition of non-discrimination:
The measures of derogation may not “involve discrimination solely on the ground of race,
color, sex, language, religion or social origin” (art. 4(1) of ICCPR)- (Communication No.
263/1987, M. González del Río v. Peru (views adopted on 28 October 1992, at the 46th session), GAOR,
A/48/40 (vol. II), p. 20, para. 5.2)

General Comment 29 (2001)

- In General Comment No. 29 adopted in July 2001, which replaces General Comment No. 5
of 1981, the Human Rights Committee confirms that “article 4 subjects both this very measure
of derogation, as well as its material consequences, to a specific regime of safeguards.
- With regard to the purpose of derogation, the Committee states that:
- “The restoration of a state of normalcy where full respect for the Covenant can again be
secured must be the predominant objective of a State party derogating from the Covenant.”
 - As noted by the Committee, a State party must comply with “two fundamental conditions”
before invoking article 4(1) of the Covenant, namely
(1) “The situation must amount to a public emergency which threatens the life of the nation”
and
(2) “The State party must have officially proclaimed a state of emergency”

International Notifications ( Art 4. 3, ICCPR)

- A State party must immediately submit a notification of derogation to the other States parties
through the Secretary-General.
- Describe “the provisions from which it has derogated and ... the reasons by which it was
actuated”.
- A second notification must be submitted “on the date on which it terminates such derogation”.

ACHYUT SIR_NOTES
Understanding State of Emergency
- A state of emergency is a situation in which a government is empowered to perform actions
that it would normally not be permitted.
- Emergency declaration makes alert citizens to change their normal behavior and orders
government agencies to implement emergency plans
- Declaration of a state of emergency by authority in an area, it introduces special measures such
as increased powers for the police or army, usually because of civil disorder or because of a
natural disaster/ fail to maintain the law and order etc.
- A state of Emergency is recognizes a temporary system of rules to deal with an extremely
dangerous or difficult situation
- Declaration the State Emergency meaning an extreme condition caused by severe many kinds
of crises( natural disaster or human induced disaster) or war in which a government allows
itself special powers
- State emergency should be declared by Government in official manner or according to law or
it will not necessary to declare the state emergency in disturbance or violence only.
- State can declare the state emergency any other situations such as, COVID-19 pandemic,
Hurricane, Failed of financial system, Natural Disaster etc.
- The declaration of State of Emergency means the authority believes a disaster has occurred or
may be imminent that is severe enough to require State aid to supplement local resources in
preventing or alleviating damages, loss, hardship or suffering.

- Emergency declaration authorizes the authority to speed State agency assistance to

communities in need. It enables to the authority to make resources immediately available to
 rescue, evacuate, shelter, provide essential commodities and quell disturbances in affected
localities.
- A state of emergency derives from a governmental declaration made in response to an
extraordinary situation posing a fundamental threat to the country.
- The declaration may suspend certain normal functions of government, may alert citizens to
alter their normal behavior, or may authorize government agencies to implement emergency
preparedness plans as well as to limit or suspend civil liberties and human rights.
- The need to declare a state of emergency may arise from situations as diverse as an armed
action against the state by internal or external elements, a natural disaster, civil unrest, an
epidemic, a financial or economic crisis or a general strike.
- States of emergency are not uncommon occurrences, particularly in dictatorial regimes where
the state of emergency may endure as long as the regime lasts.
- In some situations, martial law is also declared, allowing the military greater authority to act.
Other terms for referring to emergency situations are state of exception, state of alarm and
state of siege.
- The implementation of emergency law invariably leads to restrictions on normal economic,
civil or political activity and rights in order to address the extraordinary circumstances that
have given rise to the emergency situation and certain restrictions may be fully justified.
- At the same time, there is a danger that a government will take advantage of a state of
emergency to introduce unwarranted restrictions on human rights and civil liberties, to
neutralize political opponents, to postpone elections, or for other self-serving purposes that
would be more difficult to pursue under normal circumstances.

Procedural Requirements for the Declaration State of Emergency

- A country’s constitution or legislation normally describes the circumstances that can give rise
to a state of emergency, identifies the procedures to be followed, and specifies limits on the
emergency powers that may be invoked or the rights that can be suspended.
- While each country will want to define its own practices, international norms have developed
that can provide useful guidance.

Nature/Principles of State of Emergency

The nature of state emergency and principles.
a. Temporality:
This refers to the exceptional nature of the declaration of a state of emergency in the short time
period.
b. Exceptional threat:
The crisis must present a real, current or at least an imminent danger to the community
c. Declaration:
The state of emergency must be announced publicly; this informs citizens of the legal situation
and reduces the possibility of a de facto state of emergency, that is, a situation whereby the state
restricts human rights without officially proclaiming a state of emergency
d. Communication:
 Notification of the measures taken must be made to other states and relevant treaty-monitoring
bodies; for example, if a state is to derogate from its obligations under ICCPR then it must inform
the Secretary General (or regional mechanism) of the UN of its derogation, the measures it has
taken and the reasons therefore, as well as the termination of the derogation.
e. Proportionality:
The measures taken to counter the crisis must be proportional to the gravity of the emergency
situation; this applies to the area of application, their material content and their duration.
f. Legality:
Human rights and fundamental freedoms during a state of emergency must respect the limits
provided for by the relevant instruments of international and national law; furthermore, a state of
emergency does not imply a temporary suspension of the rule of law, nor does it authorize those
in power to act in disregard of the principle of legality, by which they are bound at all times.
g. Intangibility:
This concerns the fundamental rights from which there can be no derogation, even during times
of emergency.
Requirement Procedure for the Declaration of State Emergency in Nepalese Constitution
Art 273 of Constitution,

(1) The President of Nepal may declare or order a state of emergency in respect of the whole of
Nepal or of any specified part, if a grave emergency arises in regard to the sovereignty,
territorial integrity of Nepal or the security of any part thereof, by war, external aggression,
armed rebellion, extreme economic disarray, natural calamity or epidemic
- The Provincial government also may request to Federal Government to declare or order a
state of emergency in respect of the whole of the State or of any specified part thereof, if there
arises a grave emergency in a State by a natural calamity or epidemic.
- Every declaration or order shall be laid before both Houses of the Federal Parliament for
approval within one month after the date of issuance of such proclamation or order.
- The declaration or order need to laid for approval by at least two-thirds majority of the total
number of the then members of both Houses of the Federal Parliament, for the continue in
force for more time. But the approval failed by federal parliament declaration or order shall
ipso facto be inoperative.
- That situation may be extended more 3 months if the federal parliament approved.

Non-Derogable Human Rights during the State of Emergency

- Certain human rights are non-derogable under any circumstances.
- The ICCPR identify these rights as follows:
a. the right to life
b. prohibition of torture
c. freedom from slavery
d. freedom from post facto legislation and other judicial guarantees
e. the right to recognition before the law •
f. freedom of thought, conscience and religion.
 - The UN Human Rights Committee has recognized that, in addition to the non-derogable
rights listed above, there are several other humanitarian provisions that must remain inviolable.
a. the humane treatment of all persons deprived of their liberty
b. prohibitions against hostage-taking and unacknowledged incarceration
c. protection of the rights of persons belonging to minorities
d. the prohibition of propaganda advocating war or national, racial, or religious hatred
e. procedural guarantees and safeguards designed to ensure the integrity of the judicial system.

Non-Derogable Fundamental Rights during the State of Emergency in Nepal

- During the emergency declaration or order the fundamental rights as provided in Constitution
may be suspended until the declaration or order is in operation.
- Although Article 16, (right to live with dignity and right to against death penalty). Sub-clause
(c)freedom to form political parties, (d) freedom to form unions and associations, sub-article
(2) of Article 17
- Article 18, Right to equality: (1) All citizens shall be equal before law. No person shall be
denied the equal protection of law.
- Article 19, (2) Right to Communication: No radio, television, on-line or other form of digital
or electronic equipment, press or other means of communication publishing, broadcasting or
printing any news item, feature, editorial, article, information or other material shall be closed
or seized nor shall registration thereof be cancelled nor shall such material be seized by the
reason of publication, broadcasting or printing of such material through any audio, audio-
visual or electronic equipment. ,
- Articles 20, Rights relating to justice, Article 21 Right of victim of crime, , Article 22 Right
against torture, Article 24 Right against untouchability and discrimination,
- Article 26 (1) Right to freedom of religion: (1) Every person who has faith in religion shall
have the freedom to profess, practice and protect his or her religion according to his or her
conviction.
- Articles 29 Right against exploitation: (1) Every person shall have the right against exploitation.
- Art 30, Right to clean environment: (1) Every citizen shall have the right to live in a clean and
healthy environment.
- Art 31 Right relating to education, Art. 32, Right to language and culture , Art 35, Right relating
to health
- Art 36 (1) (2) Right relating to food: (1) Every citizen shall have the right relating to food. (2)
Every citizen shall have the right to be safe from the state of being in danger of life from the
scarcity of food.
- Articles 38 Rights of women, Art 39 Rights of the child
- Art 40 (2)(3) Provision of free education with scholarship, from primary to higher education,
shall be made by law for the Dalit students. Special provision shall be made by law for the
Dalit in technical and vocational education. (3) Special provision shall be made by law in order
to provide health and social security to the Dalit community.
 - Articles 41 Rights of senior citizens: Art 42Right to social justice, Article 43Right to social
security
- Art 45 : Right against exile: No citizen shall be exiled.
- Article 46: The right to constitutional remedy in relation to the remedy of habeas corpus shall
not be suspended.

Restrictions:
- If any Article of this Constitution is suspended , no petition may lie in any court for the
enforcement of the fundamental right conferred by that Article nor may a question be raised
in any Court in that respect.
- Although, during the continuance of a declaration or order under the constitution, any injury
is caused to a person from any act done by any official in bad faith, the victim may, within
three months from the date of termination of that declaration or order, file a petition for
compensation for such injury. If such petition is made, the court may order for compensation
by, and punish, the perpetrator as provided for in the Federal law.
Derogable Human Rights During the State of Emergency
Emergency powers are granted to the government by virtue of the constitution or statutory laws.
Examples of emergency measures or powers range widely, for example:
- the restriction of press freedom and the prohibition of public meetings domestic deployment
of the armed forces
- evacuation of people from their homes and places of work
- searches of homes and other private places without a warrant; arrests without charges
- confiscation of private property (with or without compensation) and/or its destruction
- regulation of the operations of private enterprise; interference with financial transactions and
export regulations
- Special legislation to punish non-compliance with emergency regulations. In some countries
(e.g., the UK), special judicial bodies may be set up during the emergency situation, whereas
in other countries (e.g., Germany), extraordinary judicial bodies are forbidden. In a state of
emergency, responsibility for government must remain with civilian authorities on the national
and local level. Security forces assist the civilian authorities in a subsidiary role.
Mechanisms and Approaches against the abuse of Emergency Powers
a. The Role of Parliament
- Most legal systems ensure that the executive does not have sole authority to declare a state of
emergency, It should be only temporary measures to addressed the situation.
- Necessary for parliamentary ratification of the decision of the executive with a qualified vote.
Whatever the emergency situation, the post hoc accountability powers of parliament, i.e. the
right to conduct inquiries and investigations on the execution of emergency powers ought to
be guaranteed by law.
- As a general rule, governments, checked by parliament, must provide a well-considered
justification for both their decision to declare a state of emergency and the specific measures
to address the situation.
- Most parliaments also have the power to review the state of emergency at regular intervals and
to suspend it as necessary.
- The parliamentary role is especially important in long-lasting states of exception, where the
principle of civilian supremacy over the security sector may be at risk.
- This is important for both assessing government behavior and identifying lessons learned with
a view to future emergencies.

b. The Role of the Judicial System:

- The judicial system must continue to ensure the right to fair trial.
- It also must provide individuals with an effective means of recourse in the event that
government officials violate their human rights.
- The role of Judiciary in order to guard against infringement of non-derogable rights, the right
to take proceedings before a court on questions relating to the lawfulness of emergency
measures must be safeguarded through independence of the judiciary.
- The courts can play a major role in decisions concerning the legality of a declaration of state
of emergency as well as in reviewing the legality of specific emergency measures.

c. The Role of Civil Society :

- An emergency situation exerts enormous pressure on state and society. To deal with it
effectively, governments need the cooperation of their citizens.
- Any abuse or unwarranted limitation of human rights in such a situation will undermine that
cooperation and make it more difficult to surmount the emergency situation.
- A state has a vital interest in dealing with a state of emergency in an accountable and
responsible manner.
-
d. The Role for neighboring states and the international community :
- Emergency situations may also affect the relations of a state with its neighbors and have
implications for the international community.
- All states should have an interest in ensuring that the declaration and implementation of states
of emergency are subject to certain limitations and proceed in accordance with international
norms.
- The international community needs to be actively engaged in ensuring that governments
observe these norms.
- International Communities must work with concerned governments to secure a swift return
to normalcy and the restoration of the constitutional order in which rights can again be fully
ensured.
 Basic Principles of IHL

a. The principle of distinction

Between parties to an armed conflict must distinguish between civilians and combatants and
between civilian objects and military targets.

b. The principle of proportionality

The expected deaths and injuries to civilians or damage to civilian objects must not exceed the
anticipated military advantage.

c. The principle of precaution in attack

Before and during an attack, every possible precaution must be taken to minimize potential harm to
civilians and civilian objects.

d. Military necessity
Weapons or methods causing superfluous injury or unnecessary suffering are prohibited
 Fair Trial and Administration of Justice

What is Fair Trial?

e. Fair means having the qualities of impartiality and honesty.
f. It is free from prejudice, favoritism and self interest.
g. Getting a fair judgment through legal means or due process. Means administer justice fairly.
h. The term 'fair trial' comprise all processes of justice commencing from the investigation to
ultimate stage of trial.
i. fair trial is a procedural safeguard
j. To protect individuals from the unlawful and arbitrary curtailment or deprivation of other
basic rights and freedoms.
k. The most prominent of which are the right to life, liberty and security of the person.
l. Fair trial justifies the 'dignity'.
m. Right to a fair trial is a legal pillar of a democratic society respectful of the rule of law
n. The concept of a fair trial incorporates both procedural and substantive requirements, aiming to provide a
guarantee of universal justice.

Understanding Fair Trial

o. The term of fair trial comprises all processes of criminal justice commencing from the
investigation to ultimate stage of trial that is sentencing of the accused and even upto
the execution of judgment.
p. Conceptually, the criminal justice system can be defined as a scientific judicial decision making
process by the State in relation to crime and criminal liability.
q. The concept of fair trial is based on the basic ideology that State and its agencies have
the duty to bring the offenders before the law.
r. Therefore the procedure adopted by the State in criminal justice system must be just,
fair and reasonable.
s. The scientific judicial decision making process refers to an accurate and authentic analysis of
crimes and due concern of state on human and rational treatment to offender.
t. In various system of the world, courts have recognized that the primary objective of
criminal procedure is to ensure a fair trial of accused persons.
u. The crux of the fair trial is that human life should be valued and a person accused of
any offense should not be punished unless he has been given a fair trial and his guilt
has been proved in such trial.
v. It also depends upon an unbiased application of available evidence, safeguard of just treatment
to the accused, provide remedy to victims and maintain peace and order in the society.
w. The right to a fair trial is a fundamental safeguard to ensure the protection the accused from
unlawful or arbitrary deprivation of their human rights.
x. Overlooking of any of those elements necessarily leads to the miscarriage of justice and
violation of human right or fundamental freedom including right to life and liberty.
 y. Fair trial requires very scientific approach of functioning of all the agencies involved in
investigation, prosecution, adjudication and administration of justice systems.
z. Fair trial is not just subjective but an Objective proceedings, means not only ‘in accordance
with law, but requires understanding a reasonableness of legal proceeding.
aa. The procedure adopted by the State in criminal justice system must be just, fair and reasonable.
bb. In various system of the world, courts have recognized that the primary objective of criminal
procedure is to ensure a fair trial of accused persons.

State v. Individual

• State exercises huge power and possesses strongly organized machinery for interrogating the
suspect and collecting evidence against him.
• The same circumstance is not available for suspect to prove his/her innocence.
• Hence, the obligation of proving the guilt, without any relaxation, remains upon the
prosecutors.
• His/her any actions prejudicial, therefore, not only create default in given obligation, but they
are necessarily treated as illegal actions with some serious consequences.
• However, an effective system of ensuring fair trial requires an honest, trusted, responsible and
rationale state authority.

Zahira Habibullah Sheikh and Others v. State of Gujarat and Others [(2004) 4 SCC 158]
• The Supreme Court of India observed “each one has an inbuilt right to be dealt with fairly
in a criminal trial. Denial of a fair trial is as much injustice to the accused as it is to the
victim and to society.
• Fair trial obviously would mean a trial before an impartial judge, a fair prosecutor and
an atmosphere of judicial calm.
• Fair trial means a trial in which bias or prejudice for or against the accused, the witness or the
cause which is being tried, is eliminated.”
Principles of Fair Trial
a. Principles of Legality
- Principle of legality means' in accordance with the law'. This is an essential element of
fair trial by which the procedural grounds, legal competency and the mandates of authority is
determined.
- The procedural fairness of all three stages is firstly determined by the lawfulness. For example,
the lawfulness of arrest and detention.
- In other words, remand in custody pursuant to lawful arrest must not only be “ lawful” but
also “reasonable” and “necessary” in all the circumstances for the aforementioned purposes
- Hence, the principle of legality is more than a simply understood meaning of 'in accordance
with law', rather, a principle that justifies the spirit of rule of law as rule of reason.
b. Principle of Presumption of Innocence
- This principle means “to be presumed innocent until proven guilty".
- It requires treating any person charged in whatsoever matter, irrespective the nature of the
case and the status of person presumed as innocent person until proved guilty.
- The right to be presumed innocent until proved guilty conditions both the stage of criminal
investigations and the trial proceedings
- It is for the prosecuting authorities to prove beyond reasonable doubt that an accused person
is guilty of the offence.
- Article 14(2) of the International Covenant on Civil and Political Rights provides that
“everyone charged with a criminal offence shall have the right to be presumed innocent until
proved guilty according to law”.
- Every criminal trial begins with the presumption of innocence in favor of the accused’
- The burden of proving the guilt of the accused is upon the prosecution and unless it relieves
itself of that burden.
- This presumption is seen to flow from the Latin legal principle ei incumbit probatio qui dicit, non
qui negat, that is, the burden of proof rests on whoasserts, not on who denies.
- In State of U.P. v. Naresh and Ors,j(India) the Supreme Court observed “every accused is
presumed to be innocent unless his guilt is proved.
- As per Art 20 (5) of the Constitution of Nepal, 2015, an accused shall be presumed to be
innocent until proven guilty.
- The presumption of innocence is a human right subject to the statutory exceptions.

c. Principle of Equality of Arms

- Means balancing a power between accused and prosecution.
- It respects the possibility for a detainee/ prisoner ‘to be heard either in person or, where
necessary, through some form of representation
- This right also implies that the detained person must have access to all relevant information
concerning his or her case.
- As emphasized by the Human Rights Committee, “the right of an accused person to have
adequate time and facilities for the preparation of his or her defence is an important
element of the guarantee of a fair trial and a corollary of the principle of equality of arms.

d. Principle of Non-discrimination
- The principle of equality must be guaranteed throughout the pre-trial and trial stages, in that
every suspected or accused person has the right not to be discriminated against in the way the
investigations or trials are conducted or in the way the law is applied to them.

e. Adversary trial system:

- In adversarial system, responsibility for the production of evidence is placed on the
prosecution with the judge acting as a neutral referee.
- This system of criminal trial assumes that the State, on one hand, by using its investigative
agencies and government counsels will prosecute the wrongdoer who, on the other hand, will
also take recourse of best counsels to challenge and counter the evidences of the prosecution.
- Article 20 of the Constitution of Nepal underlines the provision of Fair trial.

f. Independent, Impartial and Competent Court

- The basic principle of the right to a fair trial is that proceedings in any criminal case are to be
conducted by a competent, independent and impartial court.
- In a criminal trial, as the State is the prosecuting party and the police is also an agency of the
State.
- It is to be exemplified that the judiciary is unchained of all suspicion of executive influence
and control, direct or indirect.
- The whole burden of fair and impartial trial thus rests on the shoulders of the judiciary.
- Article 14 of the ICCPR underscores that "the determination of any criminal charge against
him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and
public hearing by a competent, independent and impartial tribunal established by law."
- The Preamble of the Constitution of Nepal, 2015 envisages that there should be establishment
of independent, impartial and competent judicial system.
- Article 20 (9) of the Constitution of Nepal underlined that ‘ Every person shall have the right
to a fair trial by an independent, impartial and competent court or judicial body’.

g. Principle of Double Jeopardy (Autrefois Acquit and Autrefois Convict)

- According to this doctrine, if a person is tried and acquitted or convicted of an offence, he
cannot be tried again for the same offence or on the same facts for any other offence.
- This doctrine has been substantially incorporated in the article 20(2) of the Indian
Constitution.
- In Kolla Veera Raghav Rao vs Gorantla Venkateswara Rao, the Supreme Court of India
observed that Section 300(1) of Cr.P.C. is wider than Article 20(2) of the Constitution. Section
300(1) of Cr.P.C. states that no one can be tried and convicted for the same offence or even
for a different offence but on the same facts.
- Article 20 (6) of the Constitution of Nepal, 2015 emphasizes on the principle of double
jeopardy that underlines ‘No person shall be tried and punished for the same offence in a court
more than once.’

Legal Enactment or International Instruments on Fair Trial

• The Constitution of Nepal, 2015 Art. 20
• The Evidence Act, 1974 Section 9
• The Muluki Criminal Procedure Code, 2017 and Rules. 2018
• The Supreme Court Judgments.
International Instruments
cc. The UDHR Article 7, 9, 11
dd. The ICCPR Article 6, 7, 9 & 14
ee. The Basic Principles for Treatment of Offenders Art. 1, 2, 6 & 7
ff. The Guidelines For Public Prosecutors, 1990 Art. 1, 2b, 10, 11, 12, 13 & 14
gg. The Convention Against Torture, 1986 Art. 1
• The Statute of the International Criminal Court, 1998
• The Code of Conduct for Law Enforcement Officials (LEO), 1979
• The Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment, 1988
• The Standard Minimum Rules for the Treatment of Prisoners, 1955
• The Guidelines on the Role of Prosecutors, 1990
• The Basic Principles on the Role of Lawyers, 1990

Recognition of Fair Trial

- Universal Declaration of Human Rights expressly recognized the right to a fair trial and shaped
its content around ideas of impartiality and independence of the courts, presumption of
innocence and pre-trial guarantees. (arts. 8, 9, 10 and 11 ).
- Article 7, 9, 10, 14 of the ICCPR provide conventional guarantee

Art. 20. Rights relating to justice

- No person shall be detained in custody without informing him or her of the ground
for his or her arrest.
- Any person who is arrested shall have the right to consult a legal practitioner of his or
her choice from the time of such arrest and to be defended by such legal practitioner.
- Any consultation made by such person with, and advice given by, his or her legal
practitioner shall be confidential.
- Provided this clause shall not apply to a citizen of an enemy state.
- Explanation: For the purpose of this clause, "legal practitioner" means any person who
is authorized by law to represent any person in any court.
- Any person who is arrested shall be produced before the adjudicating authority within
a period of twenty-four hours of such arrest, excluding the time necessary for the
journey from the place of arrest to such authority; and any such person shall not be
detained in custody except on the order of such authority.
- Provided that this clause shall not apply to a person held in preventive detention and
to a citizen of an enemy state.
- No person shall be liable for punishment for an act which was not punishable by the
law in force when the act was committed nor shall any person be subjected to a
punishment greater than that prescribed by the law in force at the time of the
commission of the offence.
- Every person charged with an offence shall be presumed innocent until proved guilty
of the offence.
- No person shall be tried and punished for the same offence in a court more than
once.
 - No person charged with an offence shall be compelled to testify against himself or
herself.
- Every person shall have the right to be informed of any proceedings taken against him
or her.

Stage of Fair Trial

A. Pre-Trial
a. Knowledge of the accusation:
- Fair trial requires that the accused person is given adequate opportunity to defend
himself.
- In plain words, when an accused person is brought before the court for trial, the
particulars of the offense of which he is accused shall be stated to him.
- A charge is not an accusation in abstract, but a concrete accusation of an offense
alleged to have been committed by a person.
- In case of serious offenses, the court is required to frame in writing a formal charge
and then read and explain the charge to the accused person.
- The right to have precise and specific accusation that is charged against an accused.
- Art. 20 of the Constitution of Nepal, 2015 states that no person shall be put in the
custody without being informed the ground for his/her arrest.

b. Protection against illegal arrest

- No person shall be arrested without arrest warrant.
- Any person arrested shall immediately be informed of the grounds of his arrest.
- The duty of the police when they arrest without warrant is to be quick to see the
possibility of crime, but they ought to be anxious to avoid mistaking the innocent for
the guilty.
- It is the duty of police to have the consent of court if someone is arrested with an
urgent arrest warrant that is issued by the Court.
- The burden is on the police officer to satisfy the court before which the arrest is
challenged that he had reasonable grounds of suspicion
- In Pranab Chatterjee v. State of Bihar (October 13,1970), the court held that Section 50 is
mandatory.
- If particulars of offences are not communicated to an arrested person, his arrest and
detention are illegal. The grounds can be communicated orally or even impliedly by
conduct.
- Section 9(2) (3) of the Criminal Code of Nepal, 2017 provides that a police officer
shall have to submit an application for the permission of the court to arrest a suspected
person on the believable ground that he/she is involved in crime.

B. During Trial
 a. Right to Open Trial
- Fair trial also requires public hearing in an open court.
- The right to a public hearing means that the hearing should as a rule is conducted
orally and publicly, without a specific request by the parties to that effect.
- A judgment is considered to have been made public either when it was orally
pronounced in court or when it was published, or when it was made public by a
combination of those methods.

b. Aid of Counsel
- The requirement of fair trial involves two things:
a. an opportunity to the accused to secure a counsel of his own choice, and
b. the duty of the state to provide a counsel to the accused in certain cases, for example, if
he/she is financially weak and cannot afford the lawyers.
- The Law Commission of India in its 14th Report has mentioned that free legal aid to
persons of limited means is a service which a Welfare State owes to it citizens
- Miranda v. State of Arizona (US SC 1966
- Miranda Warning- Right to legal counsel is a fundamental right of an accused
- Yaggya Murti Banjade v. Kathmandu Magistrate Court (2027).

c) Expeditious trial
- Speedy trial is necessary to gain the confidence of the public in judiciary
- "Delay Justice is Justice Denied".
- Delayed justice leads to unnecessary harassment.
- The concept of speedy trial is an integral part of article 21 of the of the Indian Constitution
- Fair, Competent and Impartial justice includes the speedy justice as well
- The right to speedy trial begins with actual restraint imposed by arrest and consequent
imprisonment, and continues at all stages namely, the stage of investigation, inquiry, trial,
appeal and revision.
d) Proceedings in the presence of the accused
- For the conduct of a fair trial, it is necessary that all proceedings related to the case should
take place in the presence of the accused or his counsel.
- The underlying principle behind this is that in a criminal trial, the court should not proceed
ex parte against the accused person.
- It is also necessary for the reason that it facilitates the accused to understand properly the
prosecution case and to know the witnesses against him so that he can prepare his defence.
- A court proceeding should be held in presence of accused or his or his legal representative.

e) Right to bail
- Bail is basically release from restraint, more particularly, release from custody of the
police. An order of bail gives back to the accused freedom of his movement on
condition that he will appear to take his trial.
- Bail is to be accepted and administered based on certain criteria.
- Section 68 & 72 of the Muluki Criminal Code, 2017 mentions the ground for bail
order.
- A right to bail is a fundamental right of an accused in the United States.
f) Prohibition on double jeopardy
- The concept of double jeopardy is based on the doctrine of ‘autrefois acquit’ and
‘autrefois convict’ which mean that if a person is tried and acquitted or convicted of
an offense, he cannot be tried again for the same offense or on the same facts for
any other offense.
- This clause embodies the common law rule of nemo debet vis vexari which means
that no man should be put twice in peril for the same offense.
g) Right against self-incrimination
- Clause (3) of Article 20 of the Indian Constitution provides: “No person
accused of any offence shall be compelled to be a witness against himself.”
- Self-incrimination must mean conveying information based upon the personal
knowledge of the person giving the information and cannot include merely
the mechanical process of producing documents in Court which may throw a
light on any of the points in the controversy, but which do not contain any
statement of the accused based on his personal knowledge.
- Article 20 of the Constitution of Nepal, 2015 emphasizes on it.

C) Post-Trial Right
a) Lawful Punishment
- Article 20(1) of the Indian Constitution explains that a person can be
convicted of an offense only if that act is made punishable by a law in force.
- Article 20 of the Nepalese Constitution, 2015 provides that that no one
shall be convicted of an act which is not punishable by law.
- It gives constitutional recognition to the rule that no one can be convicted
except for the violation of a law in force.
b) Right to human treatment
- A prisoner does not become a non-person.
- Prison deprives liberty. Even while doing this, prison system must aim at
reformation.
- In prison, treatment must be geared to psychic healing, release of stress,
restoration of self-respect apart from training to adapt oneself to the life
outside.
 - Every prisoner has the right to a clean and sanitized environment in the
jail, right to be medically examined by the medical officer, right to visit and
access by family members, etc.
- Recognizing the right to medical facilities, the National Human Rights
Commission recommended the award Rs. 1 Lakh to be paid as
compensation by the Govt. of Maharashtra to the dependents of an under
trial prisoner who died in the Nasik Road Prison due to lack of medical
treatment.
- Parole and Probation system, Open Prison, Community Service, Fine as
an alternative to jail etc as adopted by the Sentencing Act, 2017.

c) Right to file appeal

- The court needs not to give notice to the public prosecutor before
suspending sentence or releasing on bail.
- Existence of an appeal is a condition precedent for granting bail.
- Bail to a convicted person is not a matter of right irrespective of whether
the offence is bailable or non-bailable.
d) Proper execution of sentence
- There should be proper execution of the sentence after a case.
- The execution of the judgment should also be fair and impartial.
- No one should be executed the punishment more than he/she is
inflicted upon by the court decision.
- And, the execution process of the judgment should be humanistic and
reasonable as well.

Fair Trial Jurisprudence: Principles and Practices

a. US Supreme Court in Powell v. Alabama
- Legal assistance of counselor is an indispensable rule of due process of
law, and as such the denial of what amounts to non-compliance of or
infringement of the principle of free and fair criminal trial.
- Deprivation of right to legal assistance amounts to obvious deprivation
of the liberty.
- Types or categories of offence are immaterial for unrestricted exercise
of the right to legal assistance by counsel
- Even the statute cannot prohibit the legal assistance

b. US Supreme Court on Miranda v. Arizona

- You have the right to remain silent
- You have the right to talk to a lawyer and have him present with you while you are
being questioned.
- If you cannot afford to hire a lawyer, one will be appointed to represent you before
any questioning, if you wish one.
 -

Protection of Fair Trial During Emergencies

- Emergency situations must be considered the litmus test (quality test) for
human rights protection in general and the right to a fair trial in
particular.
- Therefore, it is particularly important in such situations to strike a
balance between the situations of state on the one hand and individual
rights on the other. by guaranteeing a minimum of due process rights.
Right to Fair Trial during Emergency: Nepalese Perspectives
- The Constitution of Nepal 2015, Article 273 (10) provides that state of
emergency in accordance with clause (1), the fundamental rights as
provided in Part-3 may be suspended until the declaration or order is in
operation.
- Provided that Article 16, sub-clauses (c) and (d) of clause (2) of Article
17, Article 18, clause (2) of Article 19, Articles 20, 21, 22 and 24, clause
(1) of Article 26,
- Articles 29, 30, 31, 32, 35, clauses (1) and (2) of Article 36, Articles 38
and 39, clauses (2) and (3) of Article 40, Articles 41, 42, 43 and 45, the
right to constitutional remedy in relation to such Articles pursuant to
Article 46 and the right to seek the remedy of habeas corpus shall not
be suspended.
- Provided that Article 273 (12), during the emergency period the victim
can complaint against authority in the court for justice and
compensation if he/she lost any matter.
International Instruments on the Derogation of Right to Fair Trial in
Emergency

a. Convention on the Rights of the Child, 1989

- Under art. 37 of the Convention on the Rights of the Child, state parties
must ensure that "every child deprived of his or her liberty shall have
the right to challenge the legality of the deprivation of his or her liberty
before a court or other competent, independent and impartial authority
and to a prompt decision on any such action" without providing for any
kind of derogation in case of emergency.
b. The United Nations Convention against Torture, 1986
- The United Nations Convention against Torture, which does not
embody a derogation clause, contains -- apart from the fundamental
guarantee to be free from torture, which is, however, only indirectly
linked to the right to a fair trial -- several due process rights. Inter alia,
evidence obtained as a result of torture cannot be introduced into a trial.
c. The American Convention on Human Rights
 Art. 27 para. 2, "the judicial guarantees essential for the protection of
-
such rights".
- Thus, it might be concluded that certain aspects of the right to a fair
trial are protected against derogation notwithstanding the fact that the
due process guarantees contained in Art. 8 of the American Convention
as such are not protected from derogation.
d. European Convention for the Protection of Human Rights and Fundamental
Freedoms, 1950
- Article 15 – Derogation in time of emergency
- No derogation from Article 2 (right to life), except in respect of deaths
resulting from lawful acts of war, or from Articles 3 (prohibition of
torture), 4 (provision of slavery and forced labor) (paragraph 1) and 7
(no punishment without law) shall be made under this provision.
e. International Covenant on Civil and Political Rights, 1966
- Article 4 of the ICCPR provides:
- No derogation from articles 6 (right to life), 7 (right against torture), 8
(right against slavery) (paragraphs I and 2), 11 (no imprisonment on
civil liability), 15 (no law no crime) 16 (right to recognition) and 18 (right
to freedom of conscience and religion) may be made under this
provision.

Guarantees to protection and participation of victims

- To be informed about the judicial process. Art.21
- To be ensured the interim relief and rehabilitation.
- To be given security from the possible threats.
- To be given the final judgement addressing the issues of protection of
victims rights such as compensation, rehabilitation, restoration and
satisfaction etc.
- Declaration of Basic Principles of Justice for Victims of Crime and
Abuse of Power, 1985 provides the right of victims.
- The Victims Protection Act, 2075.
Rights of Juveniles
- Principles of right of juveniles:
- Children conflict with law
- Best interests of the child
- The guarantees for a fair trial
- Non-discrimination
- Right of juveniles:
- The right to life, survival and development
- The right to be heard
- No retroactive juvenile justice
- The presumption of innocence
- The right to be heard
 - The right to effective participation in the proceedings
- Prompt and direct information of the charge
- Legal or other appropriate assistance
- Decisions without delay and with involvement of parents
- Freedom from compulsory self-incrimination /The right to appeal
- The Children's Act, 2075.
Legal Remedies for the Protection of Fair Trial
- Judicial Recourse for the recovery of victim
- Compensation/Restoration
- Departmental Action to the official working with malafide intention
Conclusion
• The right to fair trial is a fundamental right in many jurisdictions.
• It is a fundamental guarantee against the illegal detention and arbitrary arrest and unjust judicial
process.
• The international instruments also ensures the right to fair trial of accused.
• The right to fair trial is relatively a non-derogable right in most of the country by virtue of its
relation with right to life.
• The right of the victim and juveniles have duly been protected by the international instruments
as well as domestic law of different countries. However, there is still a need of effective
mechanism to protect the right to fair trial.
• There should be proper check and balance among the stakeholders of criminal justice system
apart from the co-ordination and co-operation.
 International Convention for Protection of all persons from Enforced
Disappearance
• Drafted on 29 June, 2006
• Signed on 20 December,2006
• Effective from 23 December 2010
• Number of Signatories -87
• Number of Parties- 21
• Depositary- Secretary General of United Nations
• Language Used- Arabic, Chinese, English, French, Spanish, Russian

Genesis

-In 2001Commission of Human Rights was established as an “inter sectional open ended working
group to elaborate a draft legally binding normative instrument for the protection of all persons from
enforced disappearance.

-The state parties to the convention has

- Considered the obligation of the states under the charter of the United Nations to promote universal
respect for, and observance of human rights and fundamental freedoms.

- Been aware of the extreme seriousness of enforced disappearance, which constitutes a crime and in
certain circumstances defined in international law, a crime against humanity.

- Considered the right of any person not to be subjected to enforced disappearance, the right of
victims to justice and to reparation.

- Affirmed the right of any victim to know the truth about the circumstances of an enforced
disappearance and the fate of the disappeared person, and the right to freedom to seek, receive and
impart information to this end.

Summary
• The convention is heavily modeled on the Convention against Torture
• Under article 1 it has been guaranteed that no one shall be subjected to enforced disappearance
and no exceptional circumstances like state of war, threat of war or political instability can’t
be invoked as a justification for enforced disappearance.
• Article 2 has defined disappearance as the arrest, detention, abduction or any other form of
deprivation of liberty by agents of the state or by persons or group of persons with the
authorization, support or acquiescence of the state.
• Article 3 and 4 provides obligation for the state to take appropriate measure to investigate acts
defined in article 2 and take necessary measures to ensure that the enforced disappearance
constitutes crime under international law.

Article 6-25 provides obligation to the state parties which are as follows.
- take necessary measures to hold criminally responsible
- Make the offence of enforced disappearance punishable.
- Establish its competence to exercise jurisdiction over the offence of
enforced disappearance.
- Extradite or surrender the person found in disappearance.
- Provide right to report to the person subjected to enforced
disappearance.
- Provide in their legislation with regard to the deprivation of liberty.
- Take necessary measures to prevent and punish under its criminal law.
- Article 24 has defined victim as the disappeared person and any
individual who has suffered harm as the direct results of an enforced
disappearance.
- Article 26 has provided for the establishment of the committee on
enforced disappearance which consists of ten experts with high moral
character and recognized competence in the field of human rights and
who will be elected by the member states as per the equitable
geographical distribution.
- Article 28 has provided that the committee shall cooperate with all
relevant organs, offices and specialized agencies in working towards the
protection of all people against enforced disappearance.
- Article 29 has provided that each party shall have to provide report on
the measures taken to give effect to its obligation under this convention.
- Article 30 has provided that a disappeared person should be sought and
found may be submitted to the committee as a matter of urgency by
their relatives, legal representatives of the disappeared person or any
person authorized by them.
PROTECTION OF HUMAN RIGHTS DURING CIVIL STRIFE AND ARMED
CONFLICT

(Lecture Note for International Human Rights Law and Law of War (IHL))

 Meaning/ definition and application of standards:

- Civil strife is synonymously understood as civil unrest, internal tension where the
civilians are involved in the demonstration and not necessarily mobilized by orders.
- Civil strife is the situations of internal disturbances and tensions, such as riots, isolated and
sporadic acts of violence or other acts of a similar nature.
- Civil strife is not the situation of armed conflict and thus Geneva Conventions and
other humanitarian laws DO NOT apply because they are specific laws (lex specialis)
apply only in times of armed conflict or war. Human rights laws are general law (lex
generalis) apply in all situation, including in civil strife.
- During this situation of civil strife, the domestic security laws are more active and a
number of persons may be arrested and detained. Therefore, protection from human
rights violation and abuse is the most.
- Human rights instruments could be used as effective tools to protect from arbitrary and
unlawful arrest and detention and other forms of human rights abuse and violations.

Permitted and Prohibited Weapons:

- There are two types of weapons: Lethal and Non-lethal.

- Lethal weapons are weapons very dangerous that intend to cause death or serious or
superfluous injury or unnecessary suffering. Lethal weapons are prohibited. While non-
lethal weapons are permitted but exceptionally.
- Non-lethal weapons are those weapons which are intended to incapacitate or immobilize
a person without intending to cause death or serious injury to that person. Non-lethal
weapons are intended to provide a more humane and less extreme military response than
the use of standard military weapons that are almost certain to kill or cause serious injury.
The principles of humanitarian law apply in respect of non-lethal weapons
- The means and methods of warfare are not unlimited, even though developing technology
produces means of warfare that are not necessarily lethal.
- Under international law the use or threat of use of weapons is generally unlawful, although
the use of nuclear weapons may be lawful in an extreme case of self-defence.
- ICJ. Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapon 1995. The
ICJ held that “...the threat or use of nuclear weapons would generally be contrary to the
rules of international law applicable in armed conflict, and in particular the principles and
rules of humanitarian law. However, in view of the current state of international law, and
of the elements of fact at its disposal, the Court cannot conclude definitively whether the
threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance
of self-defence, in which the very survival of a State would be at stake.”
- Use of force is prohibited except in case of self-defense. Article 4 of the UN Charter
states “All Members shall refrain in their international relations from the threat or use of
 force against the territorial integrity or political independence of any state, or in any other
manner inconsistent with the Purposes of the United Nations.”
- The object of war is to weaken the military forces of the enemy, and not to senselessly
cause suffering to innocent civilians.
- “Means” of warfare refer to the weapons of war. “Methods” of warfare refer to the
tactics and strategy applied in military operations to weaken the adversary.
(Reference, St. Petersburg Declaration of 1868)
- Means (weapons) and method (ways of attack) is not unlimited. There are two types
of weapons: Lethal and Non-lethal. Lethal weapons are prohibited. While non-lethal
weapons are considered as less dangerous and permitted to use against enemy to achieve
the objective of the war.
- 1977 Additional Protocol I to Geneva Conventions. Article 35: Basic Rule

1. In any armed conflict, the right of the Parties to the conflict to choose methods or
means of warfare is not unlimited.

- 2. It is prohibited to employ weapons, and methods of warfare which may cause

superfluous injury or unnecessary suffering. The use of such arms would be contrary
to the laws of humanity.
- Poison/Poisoned Weapons are prohibited
- The use of chemical weapons in war was totally banned in 1993, in Chemical Weapons
Convention. (Nepal is party to this convention, see the list of ratification)
- A Biological Weapon contains biological agents or toxins that is not justified for peaceful
or protective purposes and designed to use these agents or toxins in armed conflict.
- It is prohibited to employ methods or means of warfare which are intended, or may be
expected, to cause widespread, long-term and severe damage to the natural environment.
( Additional Protocol I of Geneva Conventions, Art 35 (3) and 55 (1))
- To Conclude: weapons to be banned, if

1. Their use has indiscriminate effects –no effective distinction between civilians and
combatants.
2. Their use is out of proportion with the pursuit of legitimate military objective.
3. Their use adversely affects the environment in a widespread, long-term and severe
manner.
4. Their use causes superfluous injury and unnecessary suffering to the combatants.

- Criticism: Some weapons that are not explicitly prohibited (non-lethal) are exceptionally
permitted but can be used only against enemy. Some weapons are controversial as even
ICJ and UN Security Council are not clear. For example, The US, in operation ‘Desert
Storm’, in 1991 (Gulf War), dropped 47,167 bombs containing 13,167,544 bomblets
was justified. Similarly, In 1999, in the former Yugoslavia the US, UK, and
Netherlands dropped 1,765 cluster bombs, containing 295,000 bomblets. In
Afghanistan, during 2001- 02, the US dropped 1,228 cluster bombs containing
248,056 bomblets. In Iraq the US and UK used 13,000 cluster bombs, containing
1.8 to 2 million bomblets in the three weeks of combat in 2003.
Role of Law Enforcement Officials

- Ensuring the safety of the life and property of its citizens is one of the basic responsibilities
of the government in all societies.
- It is by establishing and maintaining an efficient and an effective police force that the
government provides a feeling of security to its citizens.
- In exercising proper control and superintendence over the police, holding them
accountable for the various acts of commission and omission and bringing them close to
the community, therefore, become issues of utmost importance in a democratic Country.
- Police have to play a vital role as the protector of Human Rights and the role of the police
is to maintain the law and order in the country.
- Police work encompasses preventive and protective roles in the course of maintaining law
and order.
- Police should give priority in protecting the rights of the vulnerable section of the society.

The Role Of Police In Protection Of Human Rights

The role played by the Police could play a positive role in the protection of human rights
in the following manner:-

a. To contribute to the liberty, equality and fraternity in human affairs.

b. To help and reconcile freedom with security and uphold the rule of law.
c. To uphold and protect human rights of the citizens.
d. To build up faith of the people in their protection of human rights by the state.
e. To investigate, detect and prevent the offence.
f. To deal with the minor child, in crisis.
g. To accept public service is as a mission
h. To understand the human rights in true spirit and uphold them.

The Code of Conduct for Law Enforcement Officials, 1979

- The Code of Conduct for Law Enforcement Officials, 1979, is aimed at all officers who
exercise police powers, especially the powers of arrest and detention (art. 1 with
Commentary).
- “In the performance of their duty, law enforcement officials shall respect and protect
human dignity and maintain and uphold the human rights of all persons” (art. 2).
- In particular, they “may use force only when strictly necessary and to the extent required
for the performance of their duty” (art. 3) and
- not “inflict, instigate or tolerate any act of torture or other cruel, inhuman or degrading
treatment or punishment”. Furthermore, such acts cannot be justified by superior orders
or exceptional circumstances such as a state of war or other public emergencies (art. 5).
- Lastly, among other obligations, “law enforcement officials shall not commit any act of
corruption” and “shall rigorously oppose and combat all such acts” (art. 7).

Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, 1990:
  Law enforcement officials have duty to control of Illegal Mob and Detention during Civil
Strife.
 The role of law enforcement officials is very important in relation to the administration of
justice, to the protection of the right to life, liberty and security of the person, to their
responsibility to maintain public safety and social peace and to the importance of their
qualifications, training and conduct.
 The use of force and firearms by law enforcement officials should be proportionate with due
respect for human rights.
 Law enforcement officials, in carrying out their duty, shall, as far as possible, apply non-violent
means before resorting to the use of force and firearms. They may use force and firearms only
if other means remain ineffective or without any promise of achieving the intended result.
 Superior officers are held responsible if they know, or should have known, that law
enforcement officials under their command are resorting, or have resorted, to the unlawful
use of force and firearms, and they did not take all measures in their power to prevent, suppress
or report such use.
 Governments shall ensure that arbitrary or abusive use of force and firearms by law
enforcement officials is punished as a criminal offence under their law.
 Rules and regulations on the use of firearms by law enforcement officials should include
guidelines that:

(a) Specify the circumstances under which law enforcement officials are authorized to carry
firearms and prescribe the types of firearms and ammunition permitted;
(b) Ensure that firearms are used only in appropriate circumstances and in a manner likely
to decrease the risk of unnecessary harm;
(c) Prohibit the use of those firearms and ammunition that cause unwarranted injury or
present an unwarranted risk;
(d) Regulate the control, storage and issuing of firearms, including procedures for ensuring
that law enforcement officials are accountable for the firearms and ammunition issued
to them;
(e) Provide for warnings to be given, if appropriate, when firearms are to be discharged;
(f) Provide for a system of reporting whenever law enforcement officials use firearms in
the performance of their duty.

HUMAN RIGHTS DURING ARMED CONFLICT

 Definition of Armed Conflict and International Conventions and Treaties

Purpose of law of armed conflict

a. reduce as much as possible the suffering, loss and damage caused by armed conflict;
b. safeguard the fundamental human rights of:
(1) persons who are in any form of detention as a result of armed conflict,
particularly Prisoners of War (POW), retained personnel, internees and
detainees;
 (2) the wounded, sick and shipwrecked; and
(3) civilians; and
c. to facilitate the restoration of peace.

Modern Law of Armed Conflict: Geneva Conventions

• Geneva Conv I relating to the Wounded and Sick in the Field,

• Geneva Conv II relating to the Wounded, Sick and Shipwrecked at Sea,
• Geneva Conv III relating to prisoners of war, and
• Geneva Conv IV relating to Civilians.
• Conv IV, in particular, developed as customary international law and the existing protections
under the Hague Conv which had failed to adequately protect the civilian populations of the
occupied States during WWII.
• There are 192 State Parties of Geneva Conventions. Nepal has ratified in 1964.

All four Geneva Conventions apply to:

a. any international armed conflict, whether a declared war or not; and

b. partial or total occupation of another State’s territory, even if the occupation has met
with no armed resistance.

• Article 3 (which is common to the four conventions) also extended a minimum of

humanitarian protection to the parties in a non-international conflict.
• The conventions place an obligation upon States to punish particularly serious crimes
described as “grave breaches”.
• The establishment of a principle of universal jurisdiction over grave breaches requires a State
party to either try or extradite war criminals within their jurisdiction.

The 1968 Teheran Conference on Human Rights (UN GA 2444)

• Realization of insufficient codification of the Law of Armed Conflict (LOAC) to cover all
modern armed conflicts.
• It also referred to the need to protect those who were engaged in struggles against racist or
colonial regimes
• Accepted rules of LOAC that:

(a) the right of parties to a conflict to adopt means of injuring the enemy is not unlimited;
(b) it is prohibited to launch attacks against the civilian population as such; and
(c) distinction must be made at all times between persons taking part in the hostilities and
members of the civilian population to the effect that the latter be spared as much as
possible.
  Vulnerable Groups during Armed Conflict (women, Children, Minority, Refugees,
Aliens and Journalists)

- Protection afforded to vulnerable groups during Armed Conflict

- Minimum International Standards applicable to protection to Vulnerable Groups

Protection of women and children:

 Apart from the general protection, the Geneva Conventions provide special provisions
to protect vulnerable groups like women, children, refugee, alien (foreigner), journalist
etc.
 Article 12 of Geneva Convention states that "Women shall be treated with all
consideration due to their sex."
 Common Article 3 and other articles of the Geneva Conventions provide protection
"without any adverse distinction" of any kind including sex discrimination.
 Art. 16 of the Geneva Convention IV related to Protection of Civilians provide that
"The wounded and sick, as well as the infirm, and expectant mothers, shall be the
object of particular protection and respect."
 Geneva Conventions provide " essential foodstuffs, clothing and tonics intended for
children under fifteen, expectant mothers and maternity cases.
 Art. 27 of the Geneva convention IV states " Women shall be especially protected
against any attack on their honor, in particular against rape, enforced prostitution, or
any form of indecent assault"

Protection of aliens (foreigners):

 Art. 38 of the Geneva Convention IV, in particularly by Article 27 and 41 provide

provisions concerning aliens in time of peace.
 In any case, the following rights shall be granted to them:
 (1) they shall be enabled to receive the individual or collective relief that may be sent
to them.
 (2) they shall, if their state of health so requires, receive medical attention and hospital
treatment to the same extent as the nationals of the State concerned.
 (3) they shall be allowed to practise their religion and to receive spiritual assistance
from ministers of their faith.
 (4) if they reside in an area particularly exposed to the dangers of war, they shall be
authorized to move from that area to the same extent as the nationals of the State
concerned.

Preferential treatment: Special protection of women and children:

 Children under fifteen years, pregnant women and mothers of children under seven years shall
benefit by any preferential treatment to the same extent as the nationals of the State concerned.
 Expectant and nursing mothers and children under fifteen years of age, shall be given
additional food, in proportion to their physiological needs. (Art. 89. of GC IV)
 Expectant and nursing mothers and children under fifteen years of age, shall be given
additional food, in proportion to their physiological needs.
 Art. 91. Maternity cases and internees suffering from serious diseases, or whose condition
requires special treatment, a surgical operation or hospital care, must be admitted to any
institution where adequate treatment can be given and shall receive care not inferior to that
provided for the general population
 A woman internee shall not be searched except by a woman. Art. 97 of GC IV
 Maternity cases and internees suffering from serious diseases, or whose condition requires
special treatment, a surgical operation or hospital care, must be admitted to any institution
where adequate treatment can be given and shall receive care not inferior to that provided for
the general population. (Art. [Link] GC IV)
 Art. 97 of the GC IV states "A woman internee shall not be searched except by a woman".
 Art. 127 of the same convention provides that "Sick, wounded or infirm internees and
maternity cases shall not be transferred if the journey would be seriously detrimental to them,
unless their safety imperatively so demands".
 Article 75 of the Additional Protocol I of Geneva Convention states "Women whose liberty
has been restricted for reasons related to the armed conflict shall be held in quarters separated
from men's quarters. They shall be under the immediate supervision of women. Nevertheless,
in cases where families are detained or interned, they shall, whenever possible, be held in the
same place and accommodated as family units."

 Art 76. Protection of women

1. Women shall be the object of special respect and shall be protected in particular against
rape, forced prostitution and any other form of indecent assault.
2. Pregnant women and mothers having dependent infants who are arrested, detained or
interned for reasons related to the armed conflict, shall have their cases considered
with the utmost priority.
3. To the maximum extent feasible, the Parties to the conflict shall endeavor to avoid the
pronouncement of the death penalty on pregnant women or mothers having
dependent infants, for an offence related to the armed conflict. The death penalty for
such offences shall not be executed on such women.

Art 77. Protection of children

1. Children shall be the object of special respect and shall be protected against any form
of indecent assault. The Parties to the conflict shall provide them with the care and aid
they require, whether because of their age or for any other reason.
2. The Parties to the conflict shall take all feasible measures in order that children who
have not attained the age of fifteen years do not take a direct part in hostilities and, in
particular, they shall refrain from recruiting them into their armed forces. In recruiting
among those persons who have attained the age of fifteen years but who have not
attained the age of eighteen years the Parties to the conflict shall endeavour to give
priority to those who are oldest.
3. If, in exceptional cases, despite the provisions of paragraph 2, children who have not
attained the age of fifteen years take a direct part in hostilities and fall into the power
of an adverse Party, they shall continue to benefit from the special protection accorded
by this Article, whether or not they are prisoners of war.
4. If arrested, detained or interned for reasons related to the armed conflict, children shall
be held in quarters separate from the quarters of adults, except where families are
accommodated as family units as provided in Article 75, paragraph 5.
5. The death penalty for an offence related to the armed conflict shall not be executed
on persons who had not attained the age of eighteen years at the time the offence was
committed.

Art 78 talks about evacuation of children

1. No Party to the conflict shall arrange for the evacuation of children, other than its own
nationals, to a foreign country except for a temporary evacuation where compelling
reasons of the health or medical treatment of the children or, except in occupied
territory, their safety, so require. Where the parents or legal guardians can be found,
their written consent to such evacuation is required. If these persons cannot be found,
the written consent to such evacuation of the persons who by law or custom are
primarily responsible for the care of the children is required. Any such evacuation shall
be supervised by the Protecting Power in agreement with the Parties concerned,
namely, the Party arranging for the evacuation, the Party receiving the children and
any Parties whose nationals are being evacuated. In each case, all Parties to the conflict
shall take all feasible precautions to avoid endangering the evacuation.
2. Whenever an evacuation occurs, each child's education, including his religious and
moral education as his parents desire, shall be provided while he is away with the
greatest possible continuity.
3. Authorities of the receiving country shall establish for each child a card with
photographs, which they shall send to the Central Tracing Agency of the International
Committee of the Red Cross. Each card shall bear, whenever possible, and whenever
it involves no risk of harm to the child, the detail record keeping of such children is
mandatory.
 Article 3 of Common to all Four Geneva Conventions:

What is common article 3?

This provision is common to all Geneva Conventions. It is applied in non-international armed conflict
(means armed conflict between state and non-state actors or between groups within the same country
(such as Nepal, Sri Lanka, Rwanda, Sierra Leone etc.).

Except this article, all other provisions apply ONLY in internal armed conflict. This is why common
article 3 is called as a mini convention.

Application of the provision and guiding principle:

 Principle of humanity is guiding principle of this article. Thus each Party to the conflict shall
be bound to apply, as a minimum standard.
 Persons taking no active part in the hostilities, including members of armed forces who have
laid down their arms or not in the situation due to sickness, wounds, detention, or any other
cause, shall in all circumstances be treated humanely, without any adverse distinction founded
on race, color, religion or faith, sex, birth or wealth, or any other similar criteria. (means
principle of non-discrimination is guiding principle both in human rights and humanitarian
law)

Prohibited acts

(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) Taking of hostages;

(c) Outrages upon personal dignity, in particular humiliating and degrading treatment;

(d) The passing of sentences and the carrying out of executions without previous judgment
pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized
as indispensable by civilized peoples.

2. The wounded and sick shall be collected and cared for.

Scope of enforcement and Implementation: How parties can be placed under obligation?

 An impartial humanitarian body, such as the International Committee of the Red Cross, may
offer its services to the Parties to the conflict.
 The Parties to the conflict should follow this provision by means of special agreements. for
example, Code of conducts adopted by Government and Maoists in the armed conflict in
Nepal.

Note: Refer Example of Nepal and Situation of armed conflict and issues as asked in the
question
Independence and Impartiality of the Judiciary

- All general universal and regional human rights instruments guarantee the right to a fair
hearing in civil and criminal proceedings before an independent and impartial court or
tribunal, and the purpose of this section is to analyse the meaning of the terms
“independent” and “impartial” in the light of the case-law of the competent international
monitoring organs.
- The International Covenant on Civil and Political Rights states in its article 14(1) that “all
persons shall be equal before the courts and tribunals” and further, that “in the
determination of any criminal charge against him, or of his rights and obligations in a suit
of law, everyone shall be entitled to a fair and public hearing by a competent,
independent and impartial tribunal established by law” (emphasis added).
- The Human Rights Committee has unambiguously held that “the right to be tried by an
independent and impartial tribunal is an absolute right that may suffer no exception”.
(See, Communication No. 263/1987, M. Gonzalez del Río v. Peru (Views adopted on 28 October
1992), in UN doc. GAOR, A/48/40 (vol. II), p. 20, para. 5.2)

Women and Armed Conflict

- All the conflicts, both of international and non-international characters, provide lessons
to pay a serious concern to gender perspective
- Women experience armed conflict in diverse ways as victims, survivors, combatants and
peacemakers.
- Sexual violence against women during conflict is a tactic of war that has reached epidemic
proportions. For example, up to 500,000 women were raped, many at gunpoint, in Rwanda
in 1994.- Sexual violence as tool of war
- Women are often raped to humiliate the men to whom they are related (the men are often
forced to witness the assault).
- Arrest and abduction is one of the most common methods of sexual abuse and other form
of exploitation.
- A research conducted by UNICEF in Sierra Leone's conflict reports that 75% women and
girls abducted by armed forces were sexually abused.
- Women and children constitute the majority (80%) of world’s Internally Displaced
Persons and Refugees (according to UNHCR estimation).
- Women are the major target of sexual violence including rape, forced prostitution, sexual
slavery, forced pregnancy and forced prostitution.
- Widows of missing men are often left without any entitlement to land, shelter, or other
social assistance.

International Standards
- Declaration on the Protection of Women and Children in Emergency and Armed
Conflict, 1974
 (Attacks and bombings on the civilian population, inflicting incalculable suffering, especially on women
and children, who are the most vulnerable members of the population, shall be prohibited, and such acts
shall be condemned." )
 Obligations under Geneva Conventions of 1949, as well as other instruments of international law relative to
respect for human rights in armed conflicts, which offer important guarantees for the protection of women and
children.
 All the necessary steps shall be taken to ensure the prohibition of measures such as persecution, torture, punitive
measures, degrading treatment and violence, particularly against that part of the civilian population that consists
of women and children
International Human Rights Standards against Gender-based violence:
- CEDAW failed to incorporate explicit provision
- General Recommendation 12 (1989) and 19 (1992) of CEDAW Committee adopted the concept and
issues
- Declaration on the Elimination of Violence Against Women, 1993 (DEVAW)
- Beijing Declaration and Platform of Action, 1995
- UNSC Resolutions (1325, 1820)
ACHYUT SIR NOTE

Protection of Human Rights During Civil Strife/Disturbance

Understanding of Civil Strife/Disturbance
- Civil war exists when two or more opposing parties within a country resort to arms to
settle a conflict or when a substantial portion of the population takes up arms against the
legitimate government of a country.
- Civil disorder, also known as civil disturbance or civil unrest, is an activity arising from a
mass act of civil disobedience (such as a demonstration, riot, or strike) in which the
participants become hostile toward authority, and authorities incur difficulties in
maintaining public safety and order, over the disorderly crowd that in any form, prejudicial
to public law and order.
- Civil disturbance means acts of violence and disorder prejudicial to the public law and
order. It includes acts such as riots, acts of violence, insurrections, unlawful obstructions
or assemblages, or other disorders prejudicial to public law and order.
Causes and Nature of Civil Disturbance or Strife
- Most often they arise from political grievances, urban economic conflicts and community
unrest, terrorist acts, or foreign influences.
Nature:
- Demonstrations of political grievances range from simple protests of specific issues to
full-scale civil disobedience.
- Many forms of political protest, while disruptive, are not unlawful
- These protests may be spontaneous, but they generally are planned events.
- Most protectors are law-abiding citizens.
- They intend their protests to be nonviolent
- Violence occurs mainly when control forces must try to contain a protest or arrest
protectors involved in civil disobedience.
- The presence of agitators increases the chance of violence.
- Agitators want to provoke the control force into overreacting. This embarrasses
authorities.
- The event may be triggered by a single cause
- It can also gain media and public sympathy for the protectors.
- Urban conflicts and community unrest arise from highly emotional social and economic
issues.
- Economically deprived inner-city residents may perceive themselves treated unjustly or
ignored by the people in power.
- Tension can build in a community over a variety of issues.
- Community services and housing and labor issues are often disputed: Tension creates the
potential for violence.
- When tension is high, it takes only a minor incident or a rumor of an injustice to ignite a
civil disturbance.
- This is particularly true if the community's relations with local police are part of the
problem.
- Urban areas can be the scene of inner-city conflicts, labor disputes, and political struggles.
- Disturbances in urban areas are usually fueled by aggrieved members of the community.
- Refugee and resettlement camps can become the focus of a civil disturbance.
- Large numbers of refugees entering others states in mass are often placed temporarily in
refugee camps until they can be resettled. Resettlement can be a slow and difficult process.
The boredom, frustration, and other stresses refugees experience in these camps can create
tensions that may erupt into violence.
- Significant cultural differences in a community can create an atmosphere of distrust.
- Unrest among ethnic groups competing for jobs can erupt into civil disturbance.
- Sometimes a large group of refugees resettles in one community, creating unrest in the
community.
- If jobs are in short supply and refugees are taking what jobs there are, feelings of animosity
can arise.
- As emotions run high, violence becomes likely.
- Civil disturbances may be organized by disaffected groups. These groups like to embarrass
the government.
- Their goal is to cause an over-reaction by authorities.
- They think this will generate sympathy for their cause among the general population.
- Foreign nations may promote civil disturbances through surrogate organizations.
- The surrogates involve themselves in activities that promote a particular nation's interests.
- Their actions may be quite overt. Sometimes they even conduct fund-raising and
membership drives.
- The sponsors give money, organizational help, and moral support. They may also help by
training members of the surrogate group in civil disobedience, vandalism, and agitation
and manipulation of crowds and media.
 - Agents of foreign nations may influence civil disturbances. Agents infiltrate disaffected
groups to increase their potential for violence. If they are successful and government
forces overreact, the targeted government may be seen as repressive.

Applicable IHRLs during Civil Strife

- In peacetime, international human rights law, including regional human rights treaties, will
apply.
- International human rights law also applies during disturbances, sporadic violence and
internal strife, but the State may suspend or derogate from some rights if it officially
declares a state of emergency and respects certain strict conditions.
- Some basic human rights cannot be suspended even during armed conflict or other public
emergencies; they are found in article 4 of the International Covenant on Civil and Political
Rights or common article 3 of the Geneva Conventions, or have been qualified as non-
derogable by the Human Rights Committee.
- International human rights and humanitarian law requires States to prosecute and
punish those responsible for violations of such law so as to end impunity.

Suspend/Limitation the Provision of IHRLs during Strife

- Limitations on rights under certain specific conditions set forth in the relevant
international human rights treaties.
- States can impose limitations on the exercise of some human rights.
- It should be clear, limitations should be the exception, rather than the rule.
- Limitations on rights, where they are permitted, are specified in the various human rights
treaties.
- In general, limitations and restrictions are determined by law and necessary in a democratic
society to:
a. Ensure respect for the rights and freedoms of others;
b. Meet the just requirements of public order, public health or morals, national security or public
safety.
- International human rights law does not tolerate limitations on rights imposed outside or
beyond the above-mentioned conditions.
- Derogation of some civil and political rights during a state of emergency
- The ICCPR allows States to derogate from (that is, to temporarily suspend) some rights
under the specific and strict conditions indicated in its article 4 (1):
a. In time of public emergency which threatens the life of the nation and the existence
of which is officially proclaimed,
b. the States Parties to the present Covenant may take measures derogating from their
obligations under the present Covenant to the extent strictly required by the exigencies
of the situation,
c. The measures are not inconsistent with their other obligations under international law
and do not involve discrimination solely on the ground of race, color, sex, language,
religion or social origin.
The Provision that Never suspend in any situations
- non-derogable rights are:
- the right to be free from arbitrary deprivation of life;
- the prohibition of torture and other ill-treatment; the prohibition of slavery, imprisonment for debt and
retroactive penalty;
- recognition as a person before the law;
- and freedom of thought, conscience and religion (art. 4 (2)).
- The Human Rights Committee has noted that, in addition to the rights specifically
mentioned as non-derogable in the Covenant, there are other rights that cannot be
derogated from by virtue of their status as peremptory norms, or because they are also
applicable in international humanitarian law or their protection is necessary in order not
to undermine explicitly non-derogable rights.

These rights are:

- the right of all persons deprived of liberty to be treated with humanity;

- the prohibition against taking of hostages, abductions or unacknowledged detentions;
- the prohibition of genocide;
- non-discrimination;
- the prohibition of deportation or forcible transfer of a population;
- the prohibition of propaganda for war, or advocacy of national, racial or religious hatred
that would constitute incitement to discrimination, hostility or violence;
- the right to a remedy;
- procedural and judicial guarantees necessary to protect nonderogable rights; and the
fundamental principles of fair trial, including the presumption of innocence.

(Human Rights Committee, general comment No. 29 (2001) on states of emergency)

General requirement to declare the Limitation of IHRLs/Procedural requirement for

Declaring State of Emergency
- Existence of a threat to the life of the nation
- Official proclamation of a state of emergency
- Derogations to be strictly required by the exigencies of the situation
- Derogations not to be inconsistent with the State’s other international obligations
- Derogations not to be discriminatory
- Non-derogable rights to be respected.
- Article 4 (3) further requires that States introducing derogations from rights should
immediately inform, through the United Nations Secretary-General, the other State parties
to the Covenant of the provisions from which they have derogated and of the reasons for
the derogations.
Applicable Non-Treaty International Standards during Strife
 - Standard Minimum Rules for the Treatment of Prisoners
- Declaration on the Rights of Disabled Persons
- Code of Conduct for Law Enforcement Officials
- Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power
- United Nations Standard Minimum Rules for the
- Administration of Juvenile Justice (“The Beijing Rules”)
- Declaration on the Right to Development
- Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment
- Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and
Summary Executions
- Basic Principles on the Use of Force and Firearms by Law Enforcement Officials
- Declaration on the Protection of All Persons from Enforced Disappearance
- Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and
Linguistic Minorities
- Declaration on the Elimination of Violence against Women
- Declaration on the Right and Responsibility of Individuals, Groups and Organs of
- Society to Promote and Protect Universally Recognized Human Rights and Fundamental
Freedoms.
Situation of Non-International Armed Conflict
- Non-international armed conflicts are those involving either government armed forces
fighting organized groups of armed dissidents or organized armed groups fighting each
other within a State.
- Treaty law regarding non-international armed conflict is more limited than that dealing
with international armed conflict.
- However, an important range of human rights-related protections apply to internal armed
conflicts and are laid down in common article 3 to the four
- Geneva Conventions and, when applicable, in Additional Protocol II.
- Common article 3 applies to all internal armed conflicts. Additional Protocol II, however,
is applicable only if the State has ratified it and the internal armed conflict reaches a certain
intensity with the following characteristics (art. 1 (1)):
- A confrontation within the territory of the State between the armed forces of the
Government and opposing “dissident armed forces or other organized armed groups”;
- The dissident armed forces are under responsible command;
- They control a part of the territory as to enable them to “carry out sustained and concerted
military operations” and to implement the Protocol.
- Military target not civilian target
- Additional Protocol II “shall not apply to situations of internal disturbances and tensions,
such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as
not being armed conflicts” (art. 1 (2))
 Supreme Court Judgments on Applicability of International Instruments

Judiciary Role on Human Rights

- The Judiciary has the responsibility to apply the laws to specific cases and settle all disputes.
- Judiciary is the most important organ of the government because it acts as their protector
against the possible excesses of legislative and executive organs.
- Role of Judiciary as the guardian-protector of the constitution and the fundamental rights
of the people makes it more respectable than other two organs.
- The judiciary plays a significant role in interpreting constitutional complexity, applying the
law and adjudicating controversies between people and the state.
- Judiciary safeguards the constitution by keeping all state authorities within the
constitutional framework
- The role of Judiciary, as a whole, and particularly of the Supreme Court, is paramount in
constitutional democracy as it is the final arbiter of any constitutional and legal dispute
between state and citizen and among the institutions of the State.
- Functional judiciary must protect right of the citizen and maintain constitutional order at
any cost as it is the guardian and authorized interpreter of the Constitution, the supreme
law of the land, and all other laws of the State.
Power and functions of Judiciary in Nepal
- Right to constitutional remedies: There shall be a right to obtain constitutional remedies
in the manner set forth in Article 133 or 144 for the enforcement of the rights conferred
by this Part. Art 46.
- There is a constitutional provision that the power relating to justice in Nepal shall be
exercised by courts and other judicial bodies in accordance with the provisions of the
Constitution, other laws and the recognized principles of justice.
- The Constitution of Nepal has entrusted the Supreme Court with the final authority to
interpret the Constitution and law.
- A constitutional provision to file a petition in the Supreme Court to have any law declared
void if it imposes any unreasonable restriction on the enjoyment of an fundamental right
or it is inconsistent with the Constitution for any other reason, and the Supreme Court
shall have the jurisdiction to declare that law to be void or invalid either ‘ab initio’ or from
the date of its decision.
- The Supreme Court has got, for the enforcement of the fundamental rights conferred by
the Constitution or for the enforcement of any other legal right for which no other legal
remedy has been provided or………., the extra ordinary power to issue necessary and
appropriate orders, to provide appropriate relief, to cause enforcement of such right or to
end the dispute.
- The Supreme Court may issue appropriate orders including the writs of habeas corpus,
mandamus, certiorari, prohibition, and quo warranto under its extraordinary Jurisdiction.
- The Supreme Court has also got the jurisdiction to hear appeals and the petitions seeking
revision of cases in accordance with the law.
- The Supreme Court is also vested with the authority to initiate contempt proceedings
against any person who refuses to comply with such order or decision and penalize him.
 NHRIs and NHRC Nepal
Vienna Declaration ( Declaration No.36)
- The World Conference on Human Rights reaffirms the important and constructive role
played by national institutions for the promotion and protection of human rights, in
particular in their advisory capacity to the competent authorities, their role in remedying
human rights violations, in the dissemination of human rights information, and education
in human rights.
- The World Conference on Human Rights encourages the establishment and strengthening
of national institutions, having regard to the "Principles relating to the status of national
institutions" and recognizing that it is the right of each State to choose the framework
which is best suited to its particular needs at the national level.

National human rights institutions ( NHRIs)

- National HR Institutions (NHRIs) are State bodies

- Constitutional and /or legislative mandate
- Objective to protect and promote human rights
- Operate and function independently from the Govt.
- Broad mandate for HR Protection and Promotion
- Addresses all forms of Discriminations
- Promotion and Protection of Fundamental Rights and IHRLs
- Complaint handling, HRE and Law Reform
- Bridge between Duty Bearers and Rights Holders including Civil Societies

Independent bodies established to ;

• stand up for those in need of protection
• hold governments to account for their human rights obligations
• help shape laws, policies and attitudes that create stronger, fairer societies
• established by law or in the constitution
• However, operate and function independently from government.

Paris Principles
- Paris Principles defined at the first International Workshop on National Institutions for
the Promotion and Protection of Human Rights in Paris 7-9 October 1991, adopted by
Human Rights Commission Resolution 1992/54, and General Assembly Resolution
48/134, 1993.
- Principles relating to the status of national human rights institutions (Paris
- Principles)
- The Paris Principles set out six main criteria that NHRIs require to meet
A. Broad mandate
B. Independent
 C. Pluralism
D. Autonomous
E. Adequate resources
F. Adequate Power of Investigation
• set out the minimum international standards required for NHRIs to effectively fulfil their role,
they include:-
a. the need for a broad-based mandate;
b. guarantees of independence; autonomy from government;
c. pluralism of members and staff;
d. adequate powers of investigation;
e. and adequate resources

Status Accreditation of NHRIs

- At the International Conference held in Tunis in 1993, NHRIs established the
International Coordinating Committee of NHRIs (ICC) with the aim to coordinate the
activities of the NHRI network
- The Global Alliance of NHRIs (GANHRI) was established in 2016, and previously known
as the ICC (International Coordinating Committee).
- GANHRI promotes the role of NHRIs worldwide, providing a forum for its members to
interact and exchange, as well as facilitating their engagement with international
organizations.
- The Global Alliance is formed by all the NHRIs member of the four regional networks.
Global Alliance for NHRIs (GANHRIs)
- Member NHRIs in full compliance with the Paris Principles (‘A’ status) are entitled to
become voting members and to hold governance positions.
- NHRIs partially in compliance with the Paris Principles (‘B’, ‘C’ and no status) can
participate in the meetings but are not entitled to vote or to hold governance positions.
- GANHRI is incorporated as a legal entity under the Swiss law, and has a Bureau consisting
of 16 “A status” NHRIs representing the four regions of GANHRI.
- General annual meetings of GANHRI, meetings of the GANHRI Bureau and of the Sub-
Committee on Accreditation, as well as international conferences of
- GANHRI are held in cooperation with UN Human Rights in its capacity as the GANHRI
[Link] & every activities of NHRC are evaluated in GANHRI (Global Alliance
of NHRIs)
Status: A, B, C.
A: Compliance with the Paris Principles;
B: Not fully in compliance with the Paris Principles;
C: Non-compliance with the Paris Principles.
Number of Reviewed NHRIs on 2021
A - Status- 84
B - Status- 33
C-Status 10
Total- 127
NHRC Nepal is ‘A’ status since its establishment.

Role of NHRIs
NHRIs help bridge the "protection gap"
 Monitoring the human rights situation in the country and the actions of the State
 Providing advice to the State so that it can meet its international and domestic human rights
commitments
 Receiving, investigating and resolving complaints of human rights violations
 Undertaking human rights education programs for all sections of the community
 Engaging with the international human rights community to raise pressing issues and
advocate for recommendations that can be made to the State.

National Human Rights Commission- Nepal

• Constitution of Nepal, Part-25, Article 248-249
• Interim Constitution, 20639 The Interim Constitution, 2007 incorporated NHRC as a
Constitutional Body at first time)
• Human Rights Commission Act, 2053
• Human Rights Commission Act, 2068
Background of Establishment of NHRC
- Paris Principle endorsed, 1993
- Establishment of NHRIs realized In Nepa
- HR Commission Bill endorsed in Parliament as private bil
- Human Rights Commission Act, 2053 passed by Parliament
- Delay in formation of Commission
- Writ in the Supreme court, Bhoj Raj Aeir/Hemang Sharma for formation of NHRC
- Supreme Court’s verdict to establish NHRC
- Established on 26th May, 2000 as a statutory body (Human Rights Commission Act 2053)
.
Appointment of Members
• A Chairperson and four other members
• Chairperson : a retired Chief Justice or retired Judge of the Supreme Court and having rendered
outstanding contribution to the protection and promotion of human rights or being a
renowned person having been active for at least twenty years in and rendered outstanding
contribution to the protection and promotion of human rights or to various fields of national
life
• Member : a person being involved in the field of the protection and promotion of human
rights or rights and interests of the child or being a renowned person having been active for
at least twenty years in and rendered outstanding contribution to various fields of national life,
Guarantee of Independent of Members
 Guarantee of terms and conditions through law, can’t be altered to their disadvantage.
 A person once appointed as the Chairperson or a Member of the National Human Rights
Commission shall not be eligible for appointment in any other government service except
political or advisory positions
 The President appoints the Chairperson and members on the recommendation of the
Constitutional Council
 Term of office of the Chairperson and members is six years from the date of appointment.
Duty of National Human Rights Commission
• to respect, protect and promote human rights and ensure effective enforcement thereof
Functions
• Related to complaints : enquiry into complaints of human rights violations, own initiative
or on petition or complaint
• investigate complaints of violations of human rights of an individual or group or thereof,
 Actions against Authority : make recommendation for action against the perpetrators, make
recommendation to the concerned authority to take departmental action if official who has
the responsibility or duty to prevent violations of human rights fails to fulfill or perform his
or her responsibility
 Filing Case : make recommendation to file case in the court against any person who has
violated human rights
 Relation with Civil society: Mandate to Collaboration with civil society to enhance
awareness on human rights
 law Review : Mandate to review the laws and make recommendation to the Government of
Nepal for necessary improvements
  Treaty Ratification: Power to recommend Nepal government to become the state party to
any international human rights treaties
 Publish names and keep record: Mandate to publish the names of the officials, persons or
bodies who have failed to observe or implement any recommendations or directives made or
given by the National Human Rights Commission in relation to the violations of human rights,
and record them as violators of human rights.
 Power as of a court: To exercise all such powers as of a court in respect of the
investigation of complaints
 Search and seizure: On receipt of information, power to search any person or his or her
residence or office, enter such residence or office without notice, and, in the course of making
such search, take possession of any document, evidence or proof related with the violation of
human rights;
 Rescue: In the event of necessity to take action immediately on receipt of information that
the human rights of any person are being violated, to enter any government office or any other
place without notice and rescue such person;
 Order for compensation: To order the provision of compensation to any person who is a
victim of the violations of human rights;
 Compensation Rule (Death, Torture, Illegal Detention and Disappearance, Sexual Harassment,
excessive use of force, damage of organs, ESCR,Collective Rights, Maximum 3 Lakhs, Interim Relief)
Legal Mandates (NHRC Act 2012/2068)
- Suo-motto power on HR violations/abuses
- Recommend to Govt. to Prosecute the Perpetrators
- To assessment of NHRAP implementation
- Draw attention to authority/officials for prevention and promotion of HRs, Act. 5
- Provide advisory services for GoN for preparation of HRs report or enactment of law
,Act . 6
- Publicize the name of HR violator/s, Act . 7 ( Published 286 Name of Persons)
- Commission may from a committee or taskforce as it requires, for execution of its
function. Act 8
- NHRC Can Order for interim relief and rescue, Act . 9
- Mediation in joint request of the parties, Act . 14
- Prosecute through Attorney General, Act . 17
Accountability
Annual report
 The National Human Rights Commission shall submit to the President an annual report; the
President shall arrange to submit such report to the Legislature-Parliament through the Prime
Minister.
Specialty: (Art 293)
 - Constitutional Bodies must be accountable and responsible to the Federal Parliament.
- The committees of the House of Representatives may monitor and evaluate the
functioning, including reports, of the Constitutional Bodies, other than the National
Human Rights Commission, and give necessary direction or advice.
Achievements
- 12826 case registered till Ashoj 2077 (20 years
- 6615 Case has been only settled ( half of the cases remained to settled)
- Interim recommendation 77 cases to GoN
- Recommended 1195 cases to GoN
- Within the recommendation numbers the cases related of Women HRs 20
- Within the recommendation : Case related with armed conflict 940 and others 255
- Compensation from Indian Govt.: Mukul Roy Yadav, - Routahat
- Killing by SSB- (Recommended by NHRC India 2009 – 2017 case)
- Coordination for exhumation of conflict era case with TUTH, Police, DoA, NAFOL,
German and Helsinki University experts, CSO, OHCHR, ICRC / Judiciary
- Completed the Memorandum of Understanding with regard to the protection of the rights
of the migrant workers with NHRIs of Qatar , Korea & Malaysia.
- Participating actively in global initiatives and discussions on the implementation of the
interests and aspirations of all segments of society, giving particular attention to the pledge
to leave no one behind, as reflected in the 2030 Agenda for Sustainable Development;
- Continuously cooperated and constructively engaged with the UN Human rights
mechanisms.
- Initiative periodically reviewing of Statutes in compliance with IHRLs and make
recommendation to the GoN.
- Initiated to covered all HRs including ESCRs
- Conducted the exhumation of the dead bodies that happened in past armed conflict
situations
- Initiatives to study and research into various theme of HRs issues.
- Started to conduct the consultation meetings with relevant stakeholders including
parliamentarians and courts.
- Settlement of Hundreds of IDPs’ issues
Challenges
• The state of impunity,
• Ever stretching transitional phase,
• lack of implementation of the recommendations,
• lack of discussion on the annual progress report of the Commission in the parliament,
• limited sources and infrastructures
• Misbehavior faced by the monitoring team
 Status of Ratification of Human Rights Instruments in Nepal

List of International HRs Conventions: Ratified by Nepal

a. Labor Rights related Conventions: 11
- International Labor Organization , Constitution signed at Versailles June 28, 1919 (Part
XIII of Treaty of Versailles)
- Abolition of Forced Labor Convention, 1957 (No. 105), Convention Concerning the
Abolition of Forced Labor, Entry into force: 17 Jan 1959
- Forced Labor Convention 1930 (No 29), Ratified on 03 Jan 2002
- Convention Concerning Discrimination in Respect of Employment and Occupation, 1958
- Convention Concerning Indigenous and Tribal Peoples in Independent Countries, 1989,
(ILO Convention No. 169)
- Convention Concerning Minimum Wage Fixing, with Special Reference to
- Developing Countries, 1970 (ILO Convention No. 131)
- Right to Organize and Collective Bargaining Convention, 1949 (No. 98), Ratified
- on 1996
- Convention Concerning the Prohibition and Immediate Action for the Elimination of the
Worst Forms of Child Labor, 1999 (ILO Convention No. 182)
- Convention Concerning the Protection of the World Cultural and Natural
- Heritage, Adopted by the General Conference at its seventeenth session Paris,16
November 1972, Entered into force on 17 December 1975
- Forced Labor Convention, 1930 (No. 29)
- Minimum Age Convention, 1973 (No. 138) Adopted on 26 June 1973 by the
- General Conference of the ILO at its 58th Session Entry into force: 19 June 1976, in
accordance with Article 12.
- Weekly Rest (Industry) Convention, 1921 (No. 14)
- Equal Remuneration Convention, 1951 (No. 100), Ratified on 1976

b. Ratification status of IHRLs in Nepal

- Convention against Torture and Other Cruel Inhuman or Degrading Treatment or
Punishment, 1984 (14 May 1991)
- International Covenant on Civil and Political Rights 1966, (14 May 1991)
- Optional Protocol to the International Covenant on Civil and Political Rights 1966 (1991)
- Second Optional Protocol to the International Covenant on Civil and Political
- Rights aiming to the abolition of the death penalty 1989 ( 04 Mar 1998)
- Convention for the Protection of All Persons from Enforced Disappearance 2006
- Convention on the Elimination of All Forms of Discrimination against Women 1979 (05
Feb 1991)
- International Convention on the Elimination of All Forms of Racial Discrimination 1965
(30 Jan 1971)
- CESCR - International Covenant on Economic, Social and Cultural Rights 1966, (14 May
1991)
 - CMW - International Convention on the Protection of the Rights of All Migrant Workers
and Members of Their Families 18, Dec,1990
- CRC - Convention on the Rights of the Child 1989 (14 Sep 1991)
- CRC-OP-AC - Optional Protocol to the Convention on the Rights of the Child on the
involvement of children in armed conflict 2000 (03 Jan 2007)
- CRC-OP-SC - Optional Protocol to the Convention on the Rights of the Child on the sale
of children child prostitution and child pornography 2000 (20 Jan 2006)
- CRPD - Convention on the Rights of Persons with Disabilities 2007 (07 May 2010)
- Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, 1984, (14 May 1991)
- Charter Of The United Nations, 1945, adopted in San Francisco on 26 June 1945,
- Constitution of United Nations Educational, Scientific and Cultural Organization
(UNESCO), 1945,
- Convention for the Suppression of the Traffic in Persons and of the Exploitation of the
Prostitution of Others, 1949,
- International Convention on the Suppression and Punishment of the Crime of Apartheid
1974
- Optional Protocol to the Convention on the Elimination of Discrimination against
Women 1999 (15 June 2007)
- Optional Protocol to the Convention On the Rights Of Persons With Disabilities Adopted
on 13 December 2007, (2010)
- Protocol Amending the Slavery Convention, Signed at Geneva on 25 September 1926,
- SAARC Convention on Preventing and Combating Trafficking in Women and Children
for Prostitution 2002.
- Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions
and Practices Similar to Slavery, 1956
- United Nations Convention Against Corruption 2004
- Convention on the Political Rights of Women, 1953
- Convention on the Prevention and Punishment of the Crime of Genocide, 1948

c. Conventions related to Armed and Conflict or Geneva Conventions-11

- 4 Geneva Conventions, 1949, Ratification / Accession:1964
- Geneva Convention (I) on Wounded and Sick in Armed Forces in the Field,1949 ,
12.08.1949
- Geneva Convention (II) on Wounded, Sick and Shipwrecked of Armed Forces at
- Sea, 1949 , 12.08.1949
- Geneva Convention (III) on Prisoners of War, 1949,
- Geneva Convention (IV) on Civilians, 1949
- Additional Protocol (I) to the Geneva Conventions, 1977
- Additional Protocol (III) to the Geneva Conventions, 2005, Signature:14.03.2006
- Convention on the Prohibition of the Development, Production, Stockpiling and
- Use of Chemical Weapons and on their Destruction 1992
- Geneva Protocol on Asphyxiating or Poisonous Gases, and of Bacteriological Methods,
1925, Accession: 09.05.1969
- Convention on the Prohibition of Biological Weapons, 1972, Accession: 04.11.2016
 - Convention prohibiting Chemical Weapons, 1993, Accession:18.11.1997
- Treaty on the Prohibition of Nuclear Weapons, 2017, Signature:20.09.2017

d. Conventions related to Right to Environment

- Kyoto Protocol To The United Nations Framework Convention On Climate Change,
1997
- Paris Agreement, 2015 Adopted on 25th December, 2015 Entry into force 4th November,
2016.
- United Nations Framework Convention On Climate Change, 1992
- Paris Agreement, 2015, Adopted on 25th December, 2015, Entry into force 4th
November, 2016.
The Process of Ratification and Accession of International (HRs?) Treaties
- The domestic law relating to ratification or accession of a Treaty, Agreement, Convention
or Protocol is "Treaty Act of Nepal 1990".
- The Treaty Act prescribes two steps to become a Party to any Treaty, both bilateral and
multilateral.
- In the first step, under section 3 of the Treaty Act, a Treaty is concluded and signed, by
which Nepal becomes signatory to the Treaty.
- A signatory is not a Party but it is an expression of willingness to become a Party or
Member.
- The second step is a step of ratification, accession, approval or acceptance.
- Under Vienna Convention on Law of Treaties 1969, these different words mean in each
case the international act so named whereby a state establishes on the international plane
its consent to be bound by a treaty
Definition:
Treaty” means an agreement concluded in writing between two or more states, or between any state
and any inter-governmental organization and this term also includes any document of this nature,
irrespective of how it is designated.
Power to Conclude Treaties:
No one, except, President, the Prime minister and the Minister of Foreign Affairs, shall negotiate,
accept the final draft or a certified copy, or sign or maintain reservations, or perform any other
function related to a treaty to which Nepal or Government of Nepal is a party, without full power.

Procedure Relating to the Ratification and Accession of Treaties:

- In case it becomes necessary for Nepal to ratify, accede to accept, or approve any treaty,
on subjects other than those mentioned of the Constitution, which needs ratification,
accession, acceptance or approval, or in case it becomes necessary for Nepal to accede to
any treaty, it shall table a resolution to that effect at the Parliament.
- The resolution concerning the ratification, accession, acceptance or approval of any treaty
tabled shall be adopted by a majority of the members present in the House of
Representatives.
- Nepal shall notify the concerned party or authority about the ratification, accession,
acceptance or approval of the treaty in accordance with the provision made in the treaty
after a resolution is adopted by the Parliament.
- Nepal may not become a party to any treaty relating to the establishment of any
- inter-governmental organization, or acquisition of membership of such organization, or
of any treaty that conflicts with any prevailing law, until a resolution is adopted by the
Parliament for its ratification, accession, acceptance or approval, even if no provision has
been made in such treaty for ratification, accession, acceptance or approval
- Unless otherwise contained in the treaty, it shall not be enforced with retroactive Effect
- In case of the provisions of a treaty, to which Nepal is a party upon its ratification
accession, acceptance or approval by the Parliament, inconsistent with the provisions of
prevailing laws, the inconsistent provision of the law shall be void for the purpose of that
treaty, and the provisions of the treaty shall be enforceable as good as Nepalese laws.
- Any treaty which has not been ratified, accede to, accepted or approved by the Parliament,
though to which Nepal is a party, imposes any additional obligation or burden upon Nepal,
and in case legal arrangements need to be made for its enforcement, Nepal shall initiate
action as soon as possible to enact laws for its enforcement.
- A notice, regarding a treaty accepted and enforced by Nepal according to Section 6, shall
be presented before the House of Representatives for its information within a month after
the meeting of the House of Representatives in convened.
- Government of Nepal, if thinks it appropriate, may register a treaty to which Nepal is a
party, with the Secretariats of the concerned International Organizations or the United
Nations Organization.
- The authentic copies of the treaties, deemed appropriate by Government of Nepal from
among those to which the Nepal is a party, shall be published in the Nepal Gazette.
- Unless otherwise contained in the treaty to which Nepal is a party, Nepal shall have the
power to denounce, or partially or fully suspend such treaty, or withdraw the suspension
imposed thereon and if the treaty is related to
- Article 279 of the Constitution, the House of Representatives shall be informed regarding
such action.
 International Human Rights law and Civil Society/NGOs

General Understanding on CSO role

- Civil society organization is generally understood as collective efforts of individuals,
groups or institutions that represent the civic voice to contribute or question to the
authorities for their accountability
- Civil society generally reflects that this entity represents voice of the voiceless beyond the
character of market and machineries of the state
Global Context
International Covenant on Civil and Political Rights (ICCPR)
- Article 22: Everyone shall have the right to freedom of association with others… No
restrictions shall be placed on the exercise of this right other than those which are
prescribed by law and which are necessary in a democratic society in the interests of
national security or public safety, public order, the protection of public health or morals,
or the protection of the rights and freedoms of others.
Universal Declaration of Human Rights
Article 20
- Everyone has the right to freedom of peaceful assembly and association.
- No one may be compelled to belong to an association.
UN Special Rapporteur: “The right to freedom of association not only includes the ability of
individuals or legal entities to form and join an association but also to seek, receive and use resources
– human, material and financial– from domestic, foreign, and international sources.”
(April 2013)

“Enabling” Legal Framework in Nepal

- Article 17 of the constitution of Nepal guaranteed the rights to freedom of association and
assembly as fundamental rights of the citizen
- Some restrictions by the constitution: national sovereignty, conflict related activities…..
- Laws and policies that allow, facilitate and encourage a healthy, vibrant civil society.
- Laws and policies that strengthen the capacity of CSOs to engage in development
processes in a sustained and effective manner.
CSO related existing legal instruments in Nepal
- Associations Registration Act of 2034 ensures rights to establish organizations as non-
government organizations.
- National Directives Act of 2018 provides space to register and operate federation
- Social Welfare Act of 2049 regulates foreign and Nepali organizations to operate their
projects and program
 - Companies Act, 2063 envisions not for profit companies
- The Constitution of Nepal ensures rights to freedom of association and assembly
International treaties and role of CSOs
- Advocacy for the ratification of international treaties and conventions after 1990
(exception: International Convention on the Elimination of All Forms of Racial
Discrimination): international obligation.
- Monitor the international obligation (domestication, reporting and review in the UN treaty
bodies)
- CSO can submit the shadow report to the UN Committees
- CSOs can submit of the special cases to the UN Committee for their proper engagement
to ensure the justice to the victims
- Human Rights Treaty Monitoring Coordination Centre in Nepal (coalition of CSOs for
treaty related works)
- Advocacy for ratification (International Convention on the Protection of the Rights of All
Migrant Workers and Members of
- Their Families, International Convention for the Protection of All Persons from Enforced
Disappearance)
Human rights protection and CSOs as watchdog
- Joint missions for fact finding in the cases of human rights violation
- Issues of HRV and abuse documentation of CSOs can support the NHRIs for their
further investigation
- Advocacy for reform in policy, governance
- Protection of the victims and HRDs
- Emergency support through the human rights help desks established in province offices
- Monitoring of the police response to those kept in custody
- International engagement and advocacy for rule of law, human rights friendly governance,
democratic process and social justice.
- Legislature engagement
- Global, regional and national level collaboration and networking among the CSOs
Example of CSOs contribution in Protection of human rights in Nepal
- Conflict Victims Profile prepared by monitoring the situation of individual household of
the victims
- Total victims documented (killing: 13248, enforced disappearance: 931, severe disability:
780)
- Nepal conflict report of OHCHR cited CSOs documentation for presenting the status of
HRV cases during armed conflict between the then Maoist and Government of Nepal.
- Obligation for accountability towards victims rights to truth, justice, reparation and
improved institutional arrangement (due to CSOs engagement and collaboration)
- Watchdog for the Protection of Human Rights(Implementation, reporting, review)
Promotional initiatives
- Human rights awareness and education to people, society, state agencies, law makers and
stakeholders for their engagement
- Major thrust of engagement is to ensure the fulfilment of the human rights
- Human rights based approach promotion in governance and policy
- Planning, execution and evaluation (human rights at the centre)
- Actions: training, education, social mobilization, institution building and enabling
environment
- Research, academic discourse
- Promotional Activities (Awareness,sensitization, capacity building)

CSO Engagement in Treaty Based Mechanism

A) Before the consideration of State report concerned
- Participate in the preparation of the State report
- Provide information for the list of themes.
- Prepare and submit an alternative report.
- Submit their own answers to the list of themes.
B) During the session:
- Organize an informal briefing
- Lobby in Geneva.
- Observe the sessions.
C) Follow-up - After the consideration of the State report concerned:
- Monitor implementation.
- Lobby national governments.
- Disseminate information and raise awareness.
2. Submit Individual Communication under Article 14
3. Submit information under Early Warning measures and Urgent Procedure
4. Submit information to and/or participate in thematic discussions
CSO Engagement in Charter Based Mechanism- UPR
- Gov- Max 20 pages - 6 weeks before of working committee meeting
- OHCHR- NHRIs and CSO national regional, expert compilation max 10 pages
 Constitutional Provision and Frame Work on Human Rights
Preamble
- Both Human Rights and Fundamental Rights are mentioned in Preamble
- Various themes of IHRLs are also incorporated in Preamble
- ……base on democratic norms and values including the people's competitive multiparty
democratic system of governance, civil liberties, fundamental rights, human rights, adult
franchise, periodic elections, full freedom of the press, and independent, impartial and
competent judiciary and concept of the rule of law…
- Constitutional guaranteed of the Participation and inclusiveness people:
- Nepal is …. inclusive, democratic, …..state. Art. 4
- All languages spoken as the mother tongues in Nepal are the languages of the nation,
- Art 6 (Non-Discrimination)
- Identity of citizen including gender guaranteed
- No citizen of Nepal may be deprived of the right to obtain citizenship. Art. 10
- Citizenship with descent and gender identity by the name of his or her mother or father.
Art. 12
Features of the Fundamental Rights and Duties
- Rights are thematically with categorically mentioned: Individual, Citizens and Collective
natures
- Responsibility of citizens are indirectly mentioned
- Duties of Citizens and individuals are separately and importantly incorporated
- Various kinds of themes on ESCRs are incorporated
- Remedial provisions are mentioned
- Introduced the victim oriented justice System
- Implementation of Fundamental Rights are guaranteed (Forcefully enactment of
- laws)
- Thematic Rights such as, Children, Women, Dalits mainly incorporated
- Rights of various others themes such as, PWDs, Sexual Minorities, Labours, Peasants,
Senior Citizens etc also incorporated
- Concept of Social Justice and Social Security widely incorporated
- Rights of Consumer, Rights relating to food and food sovereignty, Right to housing,
Rights to employment, Right against untouchability and discrimination , victim of crime
etc are guaranteed
- Right to live with dignity guaranteed
- Explanation of topic also mentioned in Fundamental Rights chapter (indigent, legal
practitioner, property, "labourer" etc)
- Positive discrimination accepted for the protection, empowerment or development of the
marginalized citizens and member of Communities.
- FRs are mention of 32 articles (10 articles of ICCPRs, 8 ESCRs, 4 mixed ICCPRs &
- ESCRs, Collective Rights 3(Social Justice, Security, Consumer) Thematic articles
4(Women, Child, Dalits and Senior Citizens)
- Remedial and implementation each one
- Duties related article one
Categorization of Fundamental Rights
- Rights related with Civil and Political : 10 thematic area: ( Articles: 17, 18, 19, 20, 21, 22,
23, 24, 27, 28)
- Rights relating with Economic, Social and Cultural ( Articles: 30,31,32,33,34,35,36,37)
- Jointly mentioned CPRs and ESCRs
a. Right to live with dignity: Art 16
- Every person (not citizen) shall have the right to live with dignity.
b. Right relating to property: Art 25
- Citizen have the right to acquire, own, sell, dispose, acquire business profits from, and
otherwise deal with, property.( Rights to freedom)
c. Right to freedom of religion: Art 26
d. Right against exploitation: Art 29
Thematic Issues or Rights
a. Rights of women: Art 38
b. Rights of the child: Art 39
c. Rights of Dalit: Art 40
d. Right to social justice: Art 42 (Rights of Marginalized Communities and individuals)

a. Rights of National Heros.

b. Right to social security: Art 43 ( Rights of helpless and required persons)
c. Rights of the consumer: Art 44
d. Right against exile: Art 45
e. Right to constitutional remedies: Art 46
Implementation of fundamental rights: Art 47 (Implemented)
Duties of citizens: Art 48
Established HRs and others Thematic Mechanism
- National Human Rights Commission: Art 248
- National Women Commission: Art 252
- National Dalit Commission: Art 255
- National Inclusion Commission: Art 258
- Indigenous Nationalities Commission: Art 261
- Madhesi Commission: Art 262
- Tharu Commission: Art 263
- Muslim Commission: Art 264
- Review of Commissions: Art 265
 Regional Human Rights Framework

UN Charter
Chapter VII: Regional Arrangement
Article 52
- Nothing in the present Charter precludes the existence of regional arrangements or
agencies for dealing with such matters relating to the maintenance of international peace
and security as are appropriate for regional action provided that such arrangements or
agencies and their activities are consistent with the Purposes and Principles of the Unite
Nations.
- The Security Council shall encourage the development of pacific settlement of local
disputes through such regional arrangements or by such regional agencies either on the
initiative of the states concerned or by reference from the Security Council.
- This Article in no way impairs the application of Articles 34 and 35.(Chapter-VI-Pacific
Settlement )
Human Rights Protection Mechanism: Universal, Regional & National
a. Universal Mechanism Developed by UNO
- UN Charter Based Mechanism on Human Rights
- UN Treaty Based Mechanism on Human Rights
b. Regional Mechanism: Developed by Regional States Associations
- European Community of States
- American State Communities
- African States Communities
- Asian States Communities
- East-Asian States Communities
- Arab States Communities
Importance of Regional Human Rights System
- Regional human rights systems, consisting of regional instruments and mechanisms, play
an important role in the promotion and protection of human rights.
- Regional human rights instruments (e.g. treaties, conventions, declarations) help to localize
international human rights norms and standards, reflecting the particular human rights
concerns of the region.
- Regional human rights mechanisms (e.g. commissions, special rapporteurs, courts) then
help to implement these instruments on the ground.
Rationality of RHRs Mechanism
- Assists national governments with the implementation of their international human rights
obligations;
- Provides people with more accessible mechanisms for the protection of their human
rights, once national remedies have been exhausted;
 - Helps to raise people awareness of their human rights, placing them in a more localized
context and reflecting their particular human rights concerns;
- Provides regional input to the development of international human rights standards and
the improvement of international human rights mechanisms;
- Helps national governments to better address regional human rights concerns that cross
national borders; for example, human rights concerns related to migration, transnational
crime and environmental disasters.
Advantages of Regional Human Rights Mechanisms
- It presents certain advantages that other protection mechanisms cannot offer.
- The likelihood of similarity in cultural, political, and economic peculiarities among states
that are in a region makes it easier to reach agreement on the text of a common
convention.
- Better enforceability to decisions of regional mechanisms over their international
counterparts.
- More closer than other international human rights organizations; they offer a more
accessible forum in which individuals can pursue their cases.
- The political, cultural, and economic similarity further enables regional systems to offer
better enforcement potential than their international contemporaries.
- To show stronger political will to conform to decisions of regional bodies.
- Regional sanctions can be more effective than other international sanctions.

A. European Human Rights System

Instruments and Mechanisms:

- The Council of Europe founded 1949 (Don’t confused with European Union)
Instruments
- European Convention for the Protection of Human Rights and Fundamental Freedoms
- The European Convention on Human Rights (ECHR),
- The European Social Charter
Mechanisms
- European Commission on Human Rights ( Later merged to ECHR in 1998 by protocol
11)
- The European Court on Human Rights,
- Committee of Ministers
- Parliamentary Assembly.
- The Commissioner for Human Rights.
European Courts on Human Rights
- Established in 1959,seats in Strasbourg, France and full-time court in 1998
 - Consists of 47 judges
- Grand Chamber (17 Judges), Chamber (7 Judges), Committee (3 judges), Single bench
- Nine years not-renewable
- Adjudicate and advisory functions
- Individuals, groups and States can directly access to court
- European Social Charter for social and economic Rights
- Committee of Ministers ( Foreign Ministers of CoE) –Supervising the implementation of
the decision of the court
- Commissioner for Human Rights- For human rights awareness and sensitization
Landmark decision by ECHR
- In December 1977, in the case of Ireland v United Kingdom (5310/71), the Court ruled
that the government of the United Kingdom was guilty of "inhuman and degrading
treatment", of men interned without trial, following a case brought by Ireland (Case No.
5310/71).

- The Court found that while their internment was an interference of the convention rights,
it was justifiable in the circumstances; it however ruled that the practice of the five
techniques and the practice of beating prisoners constituted inhumane and degrading
punishment in violation of the convention, although not torture. This is considered this a
"key decision" by the court.

Cases of Russian Military Abuses

- Since the Russian military invaded Chechnya for the second time in 1999, the nCourt
agreed to hear cases of human rights abuse brought forward by nChechen civilians against
Russia in the course of the Second Chechen War, with 104 rulings to date as of April 2009
(including regarding the cases of torture and extrajudicial executions).

- In 2007, the Court ruled that Russia was responsible for the killings of a human rights
activist Zura Bitiyeva and her family Bitiyeva herself had filed a omplaint against Moscow
with the Court in 2000 for abuse while in detention, in then-second case from Chechnya,
but she was murdered in 2003 before the ruling was issued.

- Other cases ruled against Russia included the deaths (or presumed deaths after years of
forced disappearance of Ruslan Alikhadzhyev, Shakhid Baysayev, Nura Luluyeva and
Khadzhi-Murat Yandiyev, the case of the indiscriminate bombing of Katyr-Yurt, and some
of the deaths during the Novye Aldi massacre.
 B. Inter-Americans Human Rights System
Legal Basis and Normative Rules
- International Union of American Republics, formed in 1890
- Charter of the Organization of American States ( OAS in 1948)
- Adoption of an American Declaration on the Rights and Duties of Man-1948
- OAS established the Inter-American Commission on Human
- Rights with a limited mandate in 1959.
- The American Convention on Human Rights was adopted in 1969 at the Inter-American
Specialized Conference on Human Rights in San José, Costa Rica
- The Convention came into force in 1978
- The Convention established inter-American Court on Human Rights on 22 May,1979
Organs of the Inter-American Human Rights System
The IAHRS is composed by two main organs:
The IAHRS is composed by two main organs:
1. The Inter-American Commission on Human Rights (IACHR) 1959
2. The Inter-American Court of Human Rights (The Court) in 19792.

1. The Inter-American Commission on Human Rights (IACHR) 1959

- The Commission’s headquartered located in Washington DC,USA.
- Composed of seven persons, elected in their personal capacity by the General Assembly
of the OAS, who shall be persons of high moral character and recognized competence in
the field of human rights.
- They are elected for a four-year term, and may be re-elected once.
- The Commission has different functions and powers with respect to the States party to
the American Convention from those that refer to the Member States of the OAS not
parties thereof.
Functions of Commission
- Adopt “precautionary measures,” to prevent irreparable harm of human rights in grave
and urgent cases
- It ask the Inter-American Court to order the adoption of “provisional measures” in
extreme grave and urgent cases to prevent irreparable harm to persons even if the case has
not yet been presented to the Court.
- Submits cases to the Court and appears before it during the processing and consideration
of cases.
- Requests advisory opinions to the Court.
- Receives and examines communications in which one State party alleges that another State
party has committed human rights violations recognized in the American Convention.
 2. The Inter-American Court of Human Rights
- Founded by OAS on 22 May 1979 and seats in San Jose, Costa Rica
- Consists of seven judges for six years and may be re-elected
Functions of the Court:
The Court has two principal functions:
a. Adjudicatory function (Articles 61, 62, and 63 of the American Convention),
- Only the Commission and the States parties to the American Convention that have recognized the
jurisdiction of the Court
- Both are authorized to submit a case regarding the interpretation or application of the American
Convention for its decision, on condition that the procedure before the Commission has been
exhausted.
- The declaration of recognition of the jurisdiction of the Court can be unconditional for all cases, or,
on condition of reciprocity, for a given period or a specific case.

[Link] Functions
- Regarding the advisory function of the Court, the American Convention provides that any
Member State of the OAS may consult the Court regarding the interpretation of the
American Convention or other treaties concerning the protection of human rights in the
American States.
The jurisprudence of the Court consists of: Decisions and judgments (which are binding and
obligatory forthe States), Advisory opinions, Provisional measures, Compliance with judgments.

Groundbreaking achievements on Access to Information

- The Inter-American Human Rights System through its various organs, the Commission,
the OAS General Assembly and the Court has played an active role in advancing the right
to information in Latin America. Two main achievements of the Inter-American Human
Rights System stand out because they were groundbreaking and because they set the
foundation for realizing the right to information in the region.
- The Court has played a preeminent role in acknowledging the right to access state-held
public information in Latin America. Two paradigmatic decisions of the Court stand out
because they represent a turning point in enforcing the right to access information in the
region:
-
a. Claude Reyes et al. vs. Chile In 2006
- After requests and appeals for accessing information on government contracts were
denied by the Chilean government and the Chilean Supreme Court, a civil society
organization brought this case to the Inter-American Court.
- The Court ruled that the Chilean government must provide the requested information and
adopt the necessary measures in terms of adopting or modifying its domestic law to ensure
the right of access to state-held information.
 - This decision inspired the adoption of FOIAs in other countries under the jurisdiction of
the Inter-American Court, such as Nicaragua (2007), Chile (2008), Guatemala (2008),
Uruguay (2008), El Salvador (2011) and Brazil (2011). In countries without a FOIA, such
as Colombia, Costa Rica and Argentina, civil society has used this ruling to successfully
request public information from their governments.

b. Gomes Lund et al. vs. Brazil

- For more than three decades, family members of students and workers that were tortured
by the Brazilian army and who disappeared during the 1970s tried to find answers about
what happened during those years.
- An Amnesty Law, however, prevented them from accessing military files.
- The government continuously denied their requests, arguing that the archives were not
available despite strong evidence that they existed.
- In 2010, the Inter-American Court ruled that the Brazilian Amnesty Law was incompatible
with the American Convention on Human Rights and lacked legal effect.
- The court also issued a number of important guidelines on the question of access to
information about past human rights violations.
- In October 2011, Brazil created a Truth Commission to investigate human rights
violations and to ensure families of victims know what happened during the military
dictatorship of 1964-1985.
- The ruling was also ground breaking in the region, as it enabled citizens in other Latin
American countries that also experienced military or authoritarian dictatorships to
successfully push for open investigations of human rights violations.

c. Atala Riffo and Daughters v. Chile

- An LGBT child custody case in the Inter-American Court of Human Rights, which
reviewed a Chilean court ruling that in 2005 awarded custody to a father because of the
mother's sexual orientation.
- In 2012, the IACHR ruled in favor of the mother. It was the first case the Inter-American
Court took regarding LGBT rights
- The Court's ruling also determined sexual orientation to be a suspect classification.
 C. The African System of Human Rights
Legal Basis and Normative Rules
- Organization of African Unity (OAU); an intergovernmental organization founded in
1963-2002 headquartered in Addis Ababa ,Ethiopia
- Charter of OAU entry into force on 13 September 1963
- African Union (AU) replaced OAU in 2002
- The African Charter on Human and Peoples' Rights was drafted in Banjul,
- The Gambia, in 1981 entered into force in October 21st 1986.
- Oversight and interpretation of the Charter is the task of the African Commission on
Human and Peoples' Rights, which was set up in 1987 and is now headquartered in Banjul,
The Gambia.
- A protocol to the Charter adopted in 1998 that established African Court on Human and
Peoples' Rights on 25 January 2005.

Features of African Charter (Banjul Charter)

- One documents for all civil, political, cultural, economic, cultural, and social rights
together.
- It reflects its African identity and experiences by creating collective rights such as the right
to freely dispose of wealth and natural resources .Recognition of peoples’ rights such as
the peoples’ rights to development, and self-determination.
- The concept of individual duties in Charter.
- No derogations are allowed. Charter cannot be justified by emergencies and special
circumstances.
- The Banjul Convention also allows for deriving inspiration from other international
instruments in interpreting the provisions of the Banjul Charter.
Instruments
- The African Charter on Human and Peoples' Rights
- Specific Aspects of Refuge Problems in Africa
- African Charter on the Rights and Welfare of the Child
- The African Committee of Experts on the Rights and Welfare of the Child
- The Protocol to the African Charter on Human Rights on the Rights of Women in Africa; and,
- The Protocol establishing the African Court on Human and Peoples’ Right
The African Commission on Human and Peoples’ Rights
- Established under African Charter, ACHPR inaugurated on 2 November 1987 in Addis
Ababa, Ethiopia and secretariat in Banjul, The Gambia.
- Consists of 11 members elected by the AU Assembly from experts nominated by the state
parties to the Charter
- Hold session ( two ordinary session each year and extraordinary session as per need)
- Submit report of session to AU assembly
- Communication handling( Individual and inter-state)
- Provide legal Aid and provisional measure
- Effort for amicable settlement of dispute
Some landmark decision of Commission
- Social and Economic Rights Action Center (SERAC) v. Nigeria(2001) AHRLR 60
(ACHPR 2001)
- The communication alleges that the military government of Nigeria has been directly involved in oil
production through the State oil company, the Nigerian National Petroleum Company (NNPC), the
majority shareholder in a consortium with Shell Petroleum Development Corporation (SPDC), and that
these operations have caused environmental degradation and health problems resulting from the
contamination of the environment among the Ogoni People.
- The communication alleges that the oil consortium has exploited oil reserves in Ogoniland with no regard
for the health or environment of the local communities, disposing toxic wastes into the environment and
local waterways in violation of applicable international environmental standards.
- The consortium also neglected and/or failed to maintain its facilities causing numerous avoidable spills in
the proximity of villages.
- The resulting contamination of water, soil and air has had serious short and long-term health impacts,
including skin infections, gastrointestinal and respiratory ailments, and increased risk of cancers, and
neurological and reproductive problems.
- The African Commission held that Nigeria violated Articles 4, 14, 16, 18, and 24 of the African
Charter by condoning and facilitating environmentally degrading and polluting practices of oil companies
in traditional Ogoniland, through military force.
Inter-state communication
- The first and only inter-state communication the Commission has handled was decided on the merits in
2004.
- DRC v Burundi, Rwanda and Uganda (2004) AHRLR 19 (ACHPR,2003)
- This communication was filed by Congo against the Burundi, Rwanda and Uganda.
- DRC alleged that Burundi, Rwanda and Uganda (respondent states) had committed grave violations of
human and peoples’ rights in the Congolese provinces through the activities of rebels groups which the
applicant alleged were supported by the respondent states.
- Drawing inspiration from general principles of international law as well as the UN Charter and resolutions
of the UN General Assembly, the Commission stated that the actions of the respondent states in occupying
the territories of the complainant violated the rights of the Congolese people to self-determination and
constituted a threat to national and international peace and security.
- The Commission stated that the acts of barbarism displayed by the respondent states in the complainant’s
territories constitute an affront on ‘the noble virtues’ of African tradition.
- The Commission further found that by taking charge of several natural resource producing areas of the
complainant’s territory, the respondent states had deprived the Congolese people of their rights to freely
dispose of their natural resources.
- The Commission therefore concluded that the respondent states were in violation of several provisions of the
African Charter and urged them to take measures to abide by their obligations under the UN Charter,
the OAU Charter and the African Charter and to further pay adequate reparations to the victims of the
violations.
The African Court on Human and Peoples’ Rights
- African Court was established through a Protocol to the African Charter. on 9 June 1998 and entered
into force on 25 January 2004. its seat to Arusha, the United Republic of Tanzania
 - The Court was established in order to complement the protective mandate of the Commission. Its decisions
are final and binding on state parties to the Protocol.
- The Court consists of 11 judges elected by the AU Assembly from a list of candidates nominated by
member states of the AU.
- Jurisdiction ; Contentious and Advisory

Access to Court
a. Direct Access
The African Commission, state parties to the Court’s Protocol and African inter-governmental
organizations. NGOs with observer status before the Commission and individuals may submit cases
directly to the Court, if the state has made a declaration under article 34(6) of the Protocol establishing
the Court. The Commission is entitled to submit the case to the Court. If the Commission concluded the
case on its merits, finding a violation against a state party to the Protocol, it may refer the case to the Court
if the state fails to comply with the Commission’s findings.

b. Indirect Access
Individuals and NGOs may approach the Court indirectly, by first submitting a communication to the
African Commission. This applies to all states that have ratified the Court Protocol.

Admissibility criteria
- Communications must indicate their author(s) Communication must be compatible with the AU
Constitutive Act and the African Charter
- Communication must not be written in disparaging or insulting language Communication must not be
based exclusively on media report
- Domestic remedies must have been exhausted unless the domestic procedure has been unduly prolonged
- Communication must be submitted within a reasonable time after exhausting local remedies
- The issues raised in the communication must not have been settled under other UN or AU procedures.
No need to exhaust local remedy
- Only remedies of judicial nature that are available, effective and sufficient to redress the wrong are required
to be exhausted.
- If the victims are indigent /Poor/Weak
- If the complaints involve serious or massive violations
- If domestic legislation ousts the jurisdiction of national courts
- If the rights claimed are not guaranteed by domestic laws
- If it is physically dangerous for the complainant to return to the erring state in order to exhaust local remedy
- If the complaint involves ‘impractical number’ of potential plaintiffs
- If the procedure for obtaining domestic remedy will be unduly prolonged
Decisions
a. Mtikila v Tanzania (14 June 2013) The applicants in this case claimed that certain sections of the
Constitution of Tanzania barring independent candidates from running for elective positions violated citizens’
freedom of association, the right against discrimination, and the right to participate in the public and
governmental affairs of the country.
The Court therefore found that there was a violation of the rights guaranteed under articles 2, 3, 10 and 13(1) of the
African Charter.
b. Zongo and Others v Burkina Faso (28 March 2014) In the Zongo case, the applicants alleged that the state
of Burkina Fasos failed to investigate and prosecute those responsible for the death of Nobert Zongo and three
others, on account of their journalistic investigations, and that this unduly exposed journalists to the risk of
working under fear and intimidation. The African Court found that the state’s failure to investigate and
prosecute the culprits constituted a violation of the freedom of expression as well as the right to have a person’
cause to be heard by competent national courts under articles 7 and 9 of the African Charter.

Other Regional Initiatives

a. Asia and The Pacific Regions

- This region has exerted the stiffest resistance to the concept of human rights. Asian leaders
have persistently argued that human rights are particular to the West and do not fit Asian
values and traditions.
- There have not been any inter-governmental human rights instruments in this region until
now. At present, there is an Asian Human Rights Charter developed by non-governmental
organizations as a declaration.
- It has been adopted by many non-governmental organizations as reflective of their
position on human rights.
b. Arab Charter of Human Rights
- This Charter is created on 22 March 1945 within the framework of the Arab League.
Members (22) of the Arab League have adopted the Arab Charter of Human Rights in
1994.
- A Revised Charter came into existence in 2004.
- The Revised Charter requires seven state ratifications to enter into force.
- So far, only Jordan and Tunisia have given their ratifications. Regarding its contents, the
major concern has been that it does not meet international standards.
- The Charter recognizes most of the civil and political rights but in most instances leaves
out important component aspects of the rights.
c. ASEAN Intergovernmental Commission on HR
- ASEAN Foreign Ministers Meeting in July 1993
- Adoption of ASEAN Charter in 2007
- AICHR established in 2009
- ASEAN Human Rights Declaration (AHRD), adopted in November 2012
 Human Rights Enforcement Mechanism

a. Charter Based Mechanism of Human Rights under UN System

UN Human Rights System is a collection of mechanisms that work together to:

- To hold States accountable for their human rights obligations.
- To discuss and take action on human rights concerns around the world.
- To set standards for the promotion, protection, and fulfillment of human rights.
- To provide support, guidance and expertise to a wide range of human rights monitoring
mechanisms in the UN system, all within the framework of international human rights
law.
Human Rights Mechanism
- The UN has created a global structure for protection and promotion of HRs
- HRs mechanism/system based largely of UN Charter, non-binding declarations, legally
binding treaties, Resolutions, Policy and Guidelines.
- UN initiated various Policies, Plans, Programs activities aimed at enhancing HRs standard
in the world.
- The UN's system of HRs has basically five main components:
a. It establishes international standards through its Charter, legally binding treaties, non-binding
declarations, agreements, and documents
b. It established permanent mechanism to deal all HRs, such as, Commission on HRs, Human
Right Council, UPR etc
c. It mandated Special Procedures to deal the HRs, such as, Special Rapporteurs, experts,
working groups, committees
d. It established treaty bodies/ Committees, to work in various manners for the promotion and
protection of human rights
e. It offers technical assistance through the Voluntary Fund for Advisory Services and Technical
Assistance in the field of Human Rights.
Types of human rights monitoring mechanisms
There are two types of human rights monitoring mechanisms within the United Nations system:
a. Treaty-based bodies
b. Charter-based bodies
- The ten human rights Treaty Bodies, made up of committees of independent experts,
monitor implementation of the core international human rights treaties.
- The charter-based bodies include the Human Rights Council, Special Procedures, the
Universal Periodic Review and Independent Investigations.
a. General Assembly
- The General Assembly is the legislative body of the UN.
- It currently consists of 193 member states, all of which must take part in its sessions and
none of which may have more than five representatives.
- The General Assembly passed the Declarations, binding treaties Resolutions, Guidelines
on the various issues including HRs
- It is also responsible for appointing the Secretary-General, upon recommendation from
the Security Council, to a renewable five year term.
-
- Established/Formation of Human Rights Council
- Evaluated the treaty obligated report sent by States

b. Secretariat/Secretary General
- The Secretariat is headed by the Secretary General who is recommended by the Security
Council and then appointed to a five-year term by the General Assembly.
- It is in charge of carrying out programs designed by other branches of the United Nations,
such as peacekeeping missions, international dispute mediation, and studying economic,
cultural, human rights, or social trends.
- It also handles administrative details, such as speech and documents translations, UN news
and information releases, and international conference co-ordinations.
- Appointment of UN OHCHR and established their mission in various states
- Appointed the Secretary General Representative work for HRs and deploying the peace
and others mission etc.

c. Security Council
- The SC possesses the power to enact resolutions for the use of force, maintain peace and
security and protection of HRs.
- Permanent members hold veto power.
- Its composition has established in the UN Charter, and consists of five permanent
members and ten non-permanent members serve on the Council who are elected to two
year terms.
- Non-members may participate in hearings and meetings, but may not vote.
- The SC is an important branch of the UN, developed for the maintenance of peace and
security in the world.
- It passed the several resolution on HRs issues, such as, 1325, 1820, 1888, 1612 etc.

d. International Court of Justice (ICJ)

- The ICJ, the judicial branch of the UN, is based in the Hague, the Netherlands, and was
established in 1945 by the Charter of the UN.
- All states that have signed the UN Charter are members of the ICJ.
- Its jurisdiction extends to international conflicts, with the exception of political ones.
- Its responsibilities include: giving opinions on concrete topics; ruling on cases; and
clarifying international legal norms.
- The ICJ is the latest step in the continuing evolution of international courts.
 - The Permanent Court of International Justice was created by the League of Nations and
existed between 1922 and 1946. It served as the model on which the International Court
of Justice is based.
- Several cases decided on the issues of Right to Self- Determination and human rights of
People. Such as, Western Shahara, Palestine wall issues.

e. Economy and Social Council

- The ECOSOC makes recommendations to the GA on human rights issues.
- ECOSOC reviews the reports submitted by the various Commission and Body.
- ECOSOC is composed of 54 members serving three year terms; members meet twice a
year.
- ECOSOC oversees several Treaty Committees and others mechanisms, such as,
- UN specialized agencies, such as the International Labor Organization (ILO) and the
World Health Organization (WHO).
- The ECOSOC resolution allows civil society participation in the work of the UN.
- The Committee on NGOs oversees its implementation and processes all applications by
civil society organizations for ECOSOC status.
- The status allows NGOs to participate fully in the UN system. Without it, they are
confined to the sidelines - unable to submit questions, attend UN sessions or hold side
events in their own name.

f. Trusteeship Council
- This council was originally established to preside over the so-called "dependent areas"
within the international Trusteeship System, under Article 75 of the UN Charter.
- The tasks of the Council have largely been fulfilled, and it is therefore now mostly
obsolete/ outdated
- Trusteeship Council only meets if and when a scenario requires it.
Importance of UN HRs Mechanism
- National mechanisms are unable or unwilling to provide remedies
- National Mechanism undue influence upon remedying
- National measure is incompatible to international standards and principles.
- To set common standard at international level based on the principle of universality of
HRs for uniformity
- To set common standards in newly emerged issues of HRs
- National mechanism being to lengthy and non-competent to proceed
Charter based Mechanisms
a. Human Rights Council
b. Universal Periodic Review
c. Special Procedures ( Special Rapporteurs, Representatives, Advisory Committee etc)
Treaty Based Mechanism
a. Treaties Committees
Advantages of Charter Based Mechanism
UN Charter stipulates that promotion and protection of human rights is immensely important for
maintaining peace and development
Under the Charter a number of mechanisms are functioning, some are for multiple purposes and some
for exclusively on Human Rights
- Wide mandates on dealing on HR issues
- Sometimes enforced even in the absence of ratification of treaties by state
- Derive their establishment from provisions contained in the Charter
- of the United Nations
- Hold broad human rights mandates
- Address an unlimited audience
- Take action based on majority voting
- Comparatively an effective and influential mechanisms
- In general observatory, monitoring, fact finding and recommending mechanisms,
- Charter based mechanism is not based on HRs treaty obligations
- Authority have to review HRs practices of the all members of the UN

Specific HRs Mechanisms under the UN System

a. Human Rights Council (HRC)
- September 2005: World Summit attended by Heads of State and Governments through
UN for the purposed to create HRC.
- The HRC was created by the United Nations General Assembly on 15 March 2006 by
resolution 60/251,
- In 2006, HRC replaced Commission on HRs (CHR) created by ECOSOC as subsidiary
body in 1946
- The HRC is an inter-governmental body within the UN system responsible for
strengthening the promotion and protection of human rights around the world.
- HRC addressing situations of human rights violations and make recommendations on
them.
- HRC has the ability to discuss all thematic HRs issues and situations that require its
attention throughout the year.
- The establishment of the HRC was part of a comprehensive UN reform effort by former
Secretary-General Kofi Annan outlined in his 2005 report, ‘In Larger Freedom: Towards
Development, Security, and Human Rights for All’.
- The Council is made up of 47 UN Member States which are elected by the UN General
Assembly.
- The Human Rights Council replaced the former United Nations Commission on Human
Rights.
- HRC meets in regular session three times annually and in special session as needed
- UPR is a state-driven exercise to review/audit the HRs situations of all member states of
UN under the HRC mechanism
- HRC to ensure that the complaint procedure be impartial, objective, efficient, victim
oriented and conducted in a timely manner. (Complaint Procedure HRC Res 5/1)
 - HRC is composed with diplomats (not HRs expert) who work on the basis of national
policy than HR principles.
- Members are ‘directly and individually’ elected for 3 years by secret ballot and by simple
majority of 193 members of GA
- Universality, impartiality, objectivity and non-selectivity are guiding principles
- Constructive international dialogue and cooperation, for the promotion and protection of
all human rights, including the right to development.
Mandates of Human Rights Council

a. For the Promotion of HR

- Promote human rights education, learning, advisory services, technical assistance and
capacity-building, to member states concerned
- Serve as a forum for dialogue on thematic issues on all HRs
- Make recommendations to GA for further development of international HRs law

b. For the Protection of HR

- To address situations of violations of HRs, including gross and systematic violations,

- Make recommendations thereon.

c. Coordination and Cooperation

- To promote the effective coordination and the mainstreaming of HR within UN system

- Contribute, through dialogue and cooperation, towards the prevention of HR violations
and respond promptly to HR in time of emergencies
- Work in close cooperation in the field of HR with Governments, regional organizations,
national HRs institutions and civil society;

b. Commission on Human Rights (CHRs)

- The Commission was established in 1946, is the main United Nations legislative body
working to promote and protect human rights.
- CHRs composed of 53 States members that elected by 54 members of ECOSOC
- The CHRs provides overall policy guidelines, studies HRs problems, develops and codifies
new international norms and monitors the observance of HRs around the world.
- The CHRs provides a forum for states, civil society through I/NGOs to voice their
concerns about HRs issues
- In 1947, the CHRs met for the first time, its sole function was to draft the UDHRs which
was accomplished within a year and the Declaration was adopted by the General Assembly
on 10 December 1948.
- For the first 20 years (1947-1966), the Commission concentrated its efforts on standard-
setting, such as promulgation of binding treaties on HRs
- CHRs briefly expanded over time to allow it to respond to the whole range of HRs
problems and it set standards to govern the conduct of states
- During its regular annual session in Geneva, for which over 3,000 delegates from member
and observer states and from I/NGOs participated
 - CHRs was assisted in this work by the Sub-Commission on the
- Promotion and Protection of Human Rights (expert groups)
- In 1947, the ECOSOC realized that the Commission had no competence to deal with any
complaint about violations of HRs
- In 1967, after 20 years, the Commission was specifically authorized by the ECOSOC with
the encouragement of the GA to start to deal with violations of HRs
- The CHRs has set up an elaborate machinery and procedures, named Special procedures
such as, country-oriented or thematic (SRs and WGs)
- ECOSOC Res 1503, (1970) Procedure for dealing with communications relating to
violations of human rights and fundamental freedoms
- The mandate of SPs to monitor compliance by states with IHRLs and to investigate alleged
violations of HRs, by dispatching fact-finding missions in states in the world.
- In the 1990s, the Commission has increasingly turned its attention to the needs of states
to be provided with advisory services and technical assistance to overcome obstacles to
securing the enjoyment of HRs by all.
Universal Periodic Review (UPR)
- The UPR is a unique process which involves a review of the human rights records of all
UN Member States.
- The UPR is a State-driven process, under the auspices of the Human Rights Council,
which provides the opportunity for each State to declare what actions they have taken to
improve the human right situations in their countries and to fulfil their human rights
obligations.
- As one of the main features of the Council, the UPR is designed to ensure equal treatment
for every country when their human rights situations are assessed.
- The ultimate aim of this mechanism is to improve the human rights situation in all
countries and address human rights violations wherever they occur.
- Currently, no other universal mechanism of this kind exists.
- UPR is a HRs reporting process to the HRC by the governments in every 4.5 years
- UPR is a generic reporting process of HR situation of country that primary contains on
HRs situation
- Report incorporation: National efforts to maintain and enhance to all thematic issues of
HRs and constraints and challenges facing.
The basis of review in the UPR process:
(a) The Charter of the United Nations;
(b) The Universal Declaration of Human Rights;
(c) Human rights instruments to which a state is party;
(d) Voluntary pledges and commitments made by States, including those undertaken when presenting their candidatures
for election to the HRC.
- UPR is expected to shows national efforts to improve HR situations in order to fulfill
national obligation on HRs
 - 48 States per year have to submit report during three sessions of the working group of
HRC ( for two weeks each)
- The process of UPR based on objective and reliable information
- Each State fulfill its HRs obligations and commitments in a manner which ensures
universality of coverage and equal treatment with respect to all States
- The process of review shall be a cooperative mechanism, based on an interactive dialogue,
with the full involvement of the country concerned and with consideration given to its
capacity-building needs
- The process will not duplicate the work of treaty bodies
Report Preparation Processes
Guidelines is developed by UN that contains the process to be followed during preparation of UPR
report at national level, as below
a. Consultations required:
- Consultation is unwieldly process in the preparation of UPR report.
- Various consultations in the form of meetings, seminar, interactions, focused group,
conference etc. across the country from grass roots to the center
- Separate consultations with different groups of people such as women, indigenous
minorities, persons with disabilities and other disadvantaged groups]
- Consultations with government officials, political parties, NGOs working in different
fields, different professional groups, student groups, mother groups, religious or faith
based groups, media etc.

b. Review and Studies:

- Carry out studies and review on HRs
- Review the national government reports
- Assessment of the relevant decisions of superior courts on HRs
- Review the NGO, CSO, CBO reports on status of various HRs
- Reports of INGOs, as UNDP, UNICEF as Human Development Reports both national
and global
- Reports and publication of the universities, Research institutes and academia
- Any other relevant reports both national and international
- Ensure correct fact and figures are used during preparation of the report
b. NHRIs/CSOs
- NHRIs can submit the HRs report to HRC
- CSOs/ NGOs coalition or separate can submit reports to HRC
- NHRIs/CSOs may be critical to government report
- NHRIs and NGOs reports are not mandatory and depends on the interest of those
agencies
- Report should not exceed 10 pages excluding annexure
- The government’s higher level representatives as the Minister/Secretary would make oral
submission of report in 10 minutes before HRC working group meeting
- NHRI representatives are given 2 minutes for oral submission of the report
- NGOs representatives can observe the submission process and can respond if any
member sought clarifications
 - HRC members can ask questions mainly to the government representatives
- Adoption /Rejection of UPR Recommendations by Government
- After hearing upon national reports UPR Working Group submits its recommendation to
HRC
- Based on the report of state, UPR Working Groups collection of recommendation that
raised by others states
- Based on UPR Working Groups recommendations the concerning state declares the
number of recommendations adopts or noted (rejects
- Governments have to work for the implementation of UPR recommendation with in the
assigned period, mid-term report and follow up
- The implementation, monitoring and follow up the UPR recommendations are the
combined process with in the government, NHRIs and CSOs but primary responsible
goes to government
- The government should provide the reports on the developments in the post submission
period
HRC Complaint Procedures on HRs Violations
- In 1970, a confidential procedure was adopted under ECOSOC resolution No. 1503 that
refers as a ‘petition-information’
- 1503 Resolution allowed to examine communications relating to “situations which shows
consistent pattern of gross and reliably tested HR violations that require CHR
consideration”
- 1503 was replaced on 2007 by HRC Institution Building Package (5/1) creating new
complaint procedure
- Resolution 5/1 sets procedures ‘to address consistent patterns of gross and reliably tested
violations of all HRs occurring in any part of the world under any circumstances’ .
- The entire procedure remains confidential to enhance State co-operation
- Two mechanisms for communication and assessment
- Five-member Working Group on Communications represented by a member from each
regional group (constituted by the HR Advisory Committee) would examine the
communications
- The WG on Situations is formed by Council itself to collect the evidence of consistent
pattern of violation of HR and submit to the HRC. (Checking admissibility of
Communications)
- The Working Group on Situations develop report with recommendations and submit to
HRC
Inadmissibility of complaints /Communications
- Politically motivated
- Inconsistent with the UN Charter, UDHR and other applicable HR instruments
- Lacking of a factual description of the alleged violations
- Abusive language
- Exclusively based on reports disseminated by mass media;
- Already dealt by special procedure, a treaty body or other UN or similar regional
complaints procedures;
 - Domestic remedies have not been exhausted: unless it appears that such remedies would
be ineffective or unreasonably prolonged.
Special Procedures (SPs) of the HRC
- The SPs of the HRC are independent human rights experts with mandates to report and
advise on HRs from a thematic or country-specific perspective.
- The HRC's Special Procedures mandate holders are made up of special rapporteurs,
independent experts or working groups composed of five members who are appointed by
the Council and who serve in their personal capacity.
- These independent experts report at least once a year to the Council on their findings and
recommendations, as well as to the UN GA,
- They are the only mechanism alerting the international community to certain human rights
issues.
- There are two types of Special Procedures mandates:
A. the thematic mandates, which deal the thematic issues of HRs and,
B. the country-specific mandates, which deal to various HRs issues within the state
- This mechanism may be formed by different authorities as the Secretary General, Human
Rights Council
- They are formed for different purposes and mandates on diverse issues of HR on various
occasions when deemed necessary
- They are non-paid and elected for 3-year mandates that can be reconducted for another
three years.
- As of September 2020, there are 44 thematic and 11 country mandates.
- OHCHR supports as a officials to the SPs
The functions of special procedures:
- Undertake country visits
- Act on individual cases of reported violations and concerns of a broader nature by sending
communications to States and others
- Conduct annual thematic studies, seek information from calls for input and convene
expert consultations
- Contribute to the development of international human rights standards,
- Engage in advocacy, raise public awareness, and provide advice for technical cooperation
- Studies on the situation and fact finding
- Providing advice on technical cooperation at the country level
- Reporting with recommendations to appointing authority
Basis of SPs appointment
- Expertise, Independence , Impartiality, Integrity , Objectivity, Gender balance
- Experience in the field of mandate
- Equitable geographical representation
- Appropriate representation of different legal systems
Nomination Process
- By governments
 - By regional Groups
- By international organizations (eg. OHCHR)
- NGOs/CSOs
- Other HR bodie
- Individual nominations.
- A consultative group (appointed by Regional Groups) propose a list of qualified candidates
and President ( in case of HRC) select
UPR and Nepal
- Nepal’s first UPR reviews took place in Jan 2011
- Nepal’s second reviews took place in Nov 2015
- Nepal’s third reviews took place in Jan 2021
- In first cycle 2011, 135 recommendations, 120 accepted, 15 Noted
- In second Cycle 2015, 195 recommendations, 143 accepted, 52 Noted
- In third cycle, 233 recommendations, 196 accepted, 37 noted.
- Some of the recommendations continuously repeated since 2011
- NHRC, NWC & NDC jointly submitted HRs report in HRC in all past cycles
- CSOs of Nepal jointly and separately submitted HRs report in HRC in all cycles
Office of the High Commissioner for Human Rights (OHCHR)
- The UN GA established The OHCHR in Dec 1993 through its resolution 48/141.
- Vienna Declaration and Plan of Action 1993 derived to established the OHCHR.
- OHCHR (UN Human Rights) is the leading UN entity on human rights.
- OHCHR represent the world's commitment to the promotion and protection of the full
range of human rights and freedoms set out in the UDHR-1948.
Role of OHCHR:
a. Promote and protect all human rights:
OHCHR speak out objectively in the face of human rights violations and help elaborate the standards
that are used to evaluate human rights progress worldwide.
b. Help empower people:
OHCHR can or may research, education, and advocacy activities, contributes to the increased
awareness and engagement by the international community and the public on human rights issues.
c. Assist Governments:
Through its field presences, OHCHR help prevent abuses and contribute to defusing situations that
could lead to conflict. Its work of monitoring and analysis feeds sensitive decision-making and
development programming.
OHCHR also provide capacity-building and legal advice to thousands, supporting the development
and judicious enactment of laws and policies the world around.
d. Inject a human rights perspective into all UN programs:
OHCHR mainstream human rights into all UN programs to ensure that peace and security,
development, and human rights - the three pillars of the UN - are interlinked and mutually reinforce

Treaty Mechanism on Human Rights under UN System

Incorporation Process of Treaties

State Party
- A State party is a State which has agreed to be bound by a treaty under international law.
- The State must have expressed its consent to be bound by the treaty through an act of
ratification, acceptance, approval or accession, and the date of entry into force of the treaty
for that particular State must have passed.
- Some treaties, such as the human rights treaties (ICCPR) are open only to States, whereas
others are also open to other entities with treaty-making capacity.
- The ICERD are open to signature and ratification by "any State Member of the UN or
member of any of its specialized agencies, by any State Party to the Statute of the ICJ, and
by any other State which has been invited by the GAof the UN.
- The other core human rights treaties are open to all States.
- The optional protocols are all restricted to the State parties to the parent treaty, except the
Optional Protocol to the Convention on the Rights of the Child on the involvement of
children in armed conflict, to which any State may accede.
Signature
- Expresses the willingness of the signatory state to continue the treaty-making process.
- The signature qualifies the signatory state to proceed to ratification, acceptance or
approval.
- It also creates an obligation to refrain, in good faith, from acts that would defeat the object
and the purpose of the treaty
- Multilateral treaties, like the human rights treaties, usually provide for signature subject to
ratification, acceptance or approval.
- The act of signing only does not impose legal obligations on the State.
- Signature does indicate the State’s intention to take steps to be bound by the treaty at a
later date.
- Signature is a preparatory step on the way to ratification.
- Providing for signature subject to ratification gives States time to seek domestic approval
for the treaty and enact any legislation necessary to implement the treaty domestically,
before undertaking international obligations under the treaty.
Accession
- Act whereby a state accepts the opportunity to become a party to a treaty.
- It has the same legal effect as ratification
- Accession usually occurs after the treaty has entered into force
- The Secretary-General of the UNs, as depositary, has also accepted accessions to some
conventions before their entry into force.
- Accession is generally used by States wishing to express their consent to be bound by a
treaty for which the deadline for signature has passed.
- Many modern multilateral treaties provide for accession even when the treaty remains
open for signature.

Ratification, acceptance or approval

- Ratification defines the international act whereby a state indicates its consent to be legally
bound to a treaty.
- Definitive acts, undertaken at the international level, whereby a State establishes its
consent to be bound by a treaty which it has already signed.
- It does this by depositing an “instrument of ratification” with the Secretary General of the
United Nations.
- To ratify a treaty, the State must have signed the treaty first; if a State expresses its consent
to be bound without first having signed the treaty, the process is called accession.
- Upon ratification, the State becomes legally bound by the treaty as one of its State parties.
- There is no time limit within which a State is requested to ratify a treaty which it has signed.
- Once a State has ratified a treaty at the international level, it must give effect to it
domestically.
- Ratification indicates to the international community a State’s commitment to undertake
the obligations under a treaty.
Succession
- Succession takes place only if a State, which is a party to a treaty, has undergone a major
constitutional transformation which raises some doubt as to whether the origina
expression of consent to be bound is still valid.
- If the states becomes independence, changed the political systems, independent form
colonization, dissolution of a federation or union, and secession of a State or entity from
a State or federation, the Succession of treaty obligation will become the issues.
- The successor State may ratify or agree to the treaty in its own capacity or, alternatively, it
may express its consent to continue to be bound by the legal obligations assumed by the
original State party with respect to the same territory through an act of succession.
- The State will notify the United Nations Secretary-General of its intention to succeed to
the legal obligations.
Importance of Human Rights Treaties
a. Human rights treaties provide a legal basis and structure to support internationally agreed goals
on HR
b. Strong link human rights-development: Measures at the domestic level need to be taken to
ensure that legislation and policies conform to international standards
c. It provides a legal regime of accountability
d. Enables the realization of HRs and strengthens adherence to the rule of law
e. Provides an opportunity to strengthen cooperation within government;
f. Provides an opportunity to strengthen cooperation with CSOs on specific HRs issues;
g. Provides an opportunity to receive international expert advice on improving the human rights
situation;
h. Improves the international profile of countries;
i. Encourages a more effective system of aid, technical support and global justice;
j. SDGs will only be sustainable if State’s HRs obligations are respected and strengthened.

Nature of HR Treaties

Treaty Based Mechanisms

- Establish by special treaty provision
- All treaties have not provisioned to enforcement of their provision
- Limited mandate for addressing the HRs issues and situations
- Enforced only for the rectified states
- Adopted the soft decision for enforcement of HRs in states
- Less effective mechanism than Charter base
General Application : Human Rights Treaties
- Covenant on Civil and Political Rights (ICCPR), 1966
- 1st Optional Protocol (individual complaints), 1966
- 2nd Optional Protocol (abolition of the death penalty),1989
- Covenant on Economic, Social and Cultural Rights (ICESCR), 1966
- Optional Protocol (individual complaints), 2008
Application of Specific Phenomena: Human Rights treaties
- The International Convention on the Elimination of All Forms of Racial Discrimination
(ICERD), 1965
- The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (CAT), 1984
- Optional Protocol to CAT (establishment of the Subcommittee on the Prevention of
Torture and other Cruel, Inhuman or Degrading Treatment inspections of detention
facilities)
- The International Convention for the Protection of All Persons from Enforced
Disappearance (ICCPED), 2006
Application of Specific Groups: Human Rights Treaties
- The Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW), 1979
- Optional Protocol (communications) 1999
- The Convention on the Rights of the Child (CRC), 1989
- OP on the sale of children, child prostitution and child pornography 2000
- OP on the involvement of children in armed conflict 2000
- OP on a communications procedure 2011
- The International Convention for the Protection of the Rights of All Migrant Workers
and Members of Their Families (CMW), 1990
- The Convention on the Rights of Persons with Disabilities (CRPD), 2006
- Optional Protocol (communications) 2006
Status of Human Rights Treaties
- Legally binding documents negotiated and adopted by States within the framework of the
United Nations
- Obligations undertaken voluntarily by States
- Once ratified/acceded to, treaty obligations are not optional: legally binding obligations
- States obligations entail a threefold responsibility to:
a. Respect (Refrain from violating a right…)
b. Protect (Prevent violations of a right…)
c. Fullfil (Take measures to ensure the realization of a right…)
Nature of Treaty Bodies
- Mandate: to monitor and review the implementation of the relevant treaty by States parties
- Composed of independent experts, nominated and elected by States parties for fixed,
renewable terms of four years
- Membership: 10-25 members depending the Committee
- In total: 172 members in total (10 TBs)
- Criteria: Expertise, equitable geographical distribution, representation of principal legal
systems and different forms of civilization and balanced gender representation
- Non-remunerated, and serve solely in their personal capacity
- Meet for 1-4 weeks session, held 2-3 times per year in Geneva
Treaty Based Mechanism
- Treaty-based mechanisms have been created to monitor the implementation of the core
human rights treaties respectively.
- Treaty Bodies are made up of independent experts that assess the compliance of these
treaties by State parties
- The Member of Treaty Committee meet periodically throughout the year and monitor
State implementation via the following means:
a. State Reports
- Each signatory to a treaty is obligated to produce periodic reports that highlight domestic
compliance with international standards.
- Treaty bodies examine these State reports and, based on their findings, produce
“concluding observations” that comment on state compliance with treaty obligations.

b. Individual Complaint Mechanisms

- Individuals may complain to each treaty body regarding alleged violation of their rights
under the relevant treaty.
- The treaty body considers the complaint and makes a decision as to whether or not there
has been a violation of a right set out in the treaty.
- In particular cases, the treaty body might take urgent action by asking a State party to
implement “interim measures” prior to the outcome of the communication.

c. Inter-States Complaint Procedures

- Some of the treaties allow for States to claim that another State is not fulfilling its
obligations under the treaty.

d. Inquiry Procedures
- Some treaty bodies have other special mechanisms, such as inquiry procedures, where
treaty bodies can investigate a particular State it believes has seriously violated relevant
rights protected under the particular treaty body.
- A treaty body may also request a State visit.

e. General Comments or Recommendations (Concluding Observation)

- Treaty-based mechanisms contribute to the understanding and interpretation of human
rights standards by occasionally producing General Comments or Recommendations
 - Treaty Committee recommend to the states parties respectively while they review the states
reports that called ‘ Concluding Observation’

Respective Treaty Mechanism

- Human Rights Committee (ICCPR): State reports, Inter-state complaints, Individual
complaints
- Committee on ESCRs : State reports, Individual complaints
- Committee on CEDAW : State reports, Individual complaints
- Committee Against Torture : State Reports, Individual complaints, Undertake inquiries,
Inter-state complaints
- Sub-committee on Prevention of Torture : State visit
- Committee on CRC : State reports, Individual complaints
- Committee on CMW: State reports, Individual complaints
- Committee on PWDs : State reports, Individual complaints
- Committee on Enforced Disappearances : State reports, Potential individual complaints
- Committee on CERD : State reports, Early-warning procedures, Inter-state complaints,
Individual complaints
Features of Respective Treaty Committees
a. Human Rights Committee (HRC):
- The HRC is responsible for overseeing implementation of the ICCPR through State
reports, individual complaints, and inter-State complaints
- The HRC preparation of general comments, substantive statements, Concluding
Observation and general discussions on topics addressed in the ICCPR.
- Till on August 2020, 173 States are party to the ICCPR.

Composition:
 - The HRC consists of 18 independent experts who are elected for a term of four years by
States Parties
- Each member must be a national of a State Party to the ICCPR, of high moral character,
and have recognized competence in the field of IHRL
- No more than one national of a State can be included in the Committee.
Working Methods of Committee
- The HRC works on a part-time basis and makes decisions during its sessions, generally
held three times per year in either Geneva, or New York.
- The members of Committee are not representing their own state
- They are nominated by their own States but working as a independent expert after elected.
State Reporting
- One year after entry into force, each State Party must submit a report to the HRC detailing
the status of its implementation of the ICCPR’s provisions.
- In 2020, the Committee will introduce a simplified reporting procedure for initial reports.
- After the initial report, a State will submit periodic reports whenever the Bureau of the HRC
requests them.
- The Committee would adopt a list of issues based on previous report to identify the topics
it most wanted to discuss during a constructive dialogue with the State.
- On the basis of the reports and replies to the list of issues submitted by the State and civil
society, the Committee would then prepare its concluding observations.
- The HRC implemented changes intended to result in a simplified reporting procedure, also
referred to as “list of issues prior to reporting.”
- The Committee may now prepare the list of issues before the State submits its periodic
report
- The State’s periodic report must only answer the questions raised by the Committee in its
list of issues, rather than addressing the State’s implementation of each article of the
ICCPR.
- States will only answer the questions raised in the Committee’s list of issues unless they
request to submit a full report.
- The Committee may still decide to request a full report, “in particular, where a fundamental
change has occurred in the State party’s political or legal approach to ensuring the
enjoyment of Covenant rights
- The State under review may also decide to use the traditional reporting method.
- The list of issues is adopted before or after the State submits its report, a Country Report Task
Force of between four and six members takes primary responsibility for creating the list.
- A designed individual member of the Task Force, the “country rapporteur,” is responsible
for overseeing the drafting of the list of issues and the Task Force members are then charged
with taking the lead on specific questions.
- Submission of a State report, the HRC engages in an in-person constructive dialogue with
representatives of the State party about the list of issues and the contents of the State and
civil society reports submitted.
- The members of the Country Task Force responsible for preparing the list of issues
generally have priority when asking questions of the State party representatives
 - These constructive dialogues are held during the Committee’s sessions and are generally
webcast live on on UN Web TV.
- The Committee drafts and adopts concluding observations during the last phase of the report
- The Concluding Observation incorporate: an introduction, positive aspects, factors and
difficulties impeding the ICCPR’s implementation, principal subjects of concern, and
suggestions and recommendations.
- The Committee will implement a follow-up procedure for two to four recommendations in its
concluding observations for immediate implementation within one year.
- A Special Rapporteur is also appointed for follow-up to concluding observations, and will
produce a follow-up progress report for each session.
- The Committee will implement a follow-up procedure for two to four recommendations
in its concluding observations for immediate implementation within one year.
- A Special Rapporteur is also appointed for follow-up to concluding observations, and will
produce a follow-up progress report for each session.
Individual Complaints
- The HRC may consider individual complaints that allege a violation of an individual’s
rights under the ICCPR, if the State is a party to the First Optional Protocol to the ICCPR,
which establishes the complaints mechanism.
- As of January 2020, 116 States are party to the Optional Protocol.
The complaint require :
(1) basic information,
(2) the State party to which the complaint is directed against and the rights set out in the ICCPR that
have been alleged to be violated,
(3) steps taken to exhaust domestic remedies,
(4) a chronological list of facts on which the complaint is based,
(5) a checklist of supporting documents, including copies of complaints or decisions before domestic
courts and corroborating evidence.
Inter-State Complaints
- ICCPR provides a mechanism for States to complain about violations by another State.
- Both States concerned must have made declarations accepting this procedure, or the
complaint will not be considered.
- This procedure for inter-State complaints, however, has never been used.
Urgent Interventions
- Early warning measures were used in the 1990s when the Committee asked several States
(Bosnia and Herzegovina, Croatia, Federal Republic of Yugoslavia, Burundi, Angola, Haiti,
Rwanda, and Nigeria) either to present their overdue reports without delay or to prepare
ad hoc reports on specific issues.
- The Bureau of the HRC discussed the possibility of reviving the urgent procedure
mechanism in March of 2004, but has not yet done so as of 2020.
Complaints of Systematic Violations (Inquiry Procedures)
- The Committee does not have a system in place for initiating inquiries regarding allegations
of serious or systematic violations of the ICCPR.
General Comments
- The HRC issues general comments to clarify the scope and meaning of the ICCPR’s
articles.
- The general comments help elucidate to States Parties what the Committee’s views are on
the obligations each State has assumed by acceding to the ICCPR.
- Each general comment specifically targets a particular article of the ICCPR and is included
on the HRC’s that have been drafted or adopted.
Thematic Discussions and Conferences
- The HRC may also host general discussions to solicit input from other UN agencies,
NHRIs, NGOs, and interested CSOs on topics of interest.
- As of January 2020, the HRC had organized three general discussions.
a. The first general discussion took place in October 2012 to prepare the drafting of the Committee’s
General Comment on Article 9 (Liberty and Security of Person) of the ICCPR.
b. The second general discussion took place in July 2015 to enhance the drafting process of the
Committee’s General Comment on Article 6 (Right to Life) of the ICCPR
c. The third general discussion which took place in March 2019, the Committee prepared the drafting
of its General Comment on Article 21 (Right to Peaceful Assembly) of the ICCPR
Civil Society Participation
- NGOs and other CSOs do not require ECOSOC consultative status to engage with the
HRC.
- Any group may submit information to the Committee or prepare an individual complaint
on behalf of a victim.
- Certain requirements, including prior registration, regulate civil socie organizations’
participation in-person in the Committee’s sessions, however.
- CSOs are encouraged to participate in the Committee’s activities by providing alternative
reports that contain information on States’ implementation of the ICCPR, comment on
State reports and State replies to a list of issues, and convey information on States’ progress
with regard to the Committee’s previous concluding observations.
- The Committee also invites NGOs and other civil society stakeholders to address the
Committee during the process of drafting lists of issues.
Attending Sessions
- The Committee welcomes oral presentations by NGOs and other civil society
organizations during the presentation of States parties’ reports.
- The Committee has allowed NGOs to engage with Committee members during a formal
closed meeting preceding the examination of a State party’s report.
- All CSOs/NGOs are also welcome to attend Committee sessions as observers, in which
case they will not be given the opportunity to address the Committee.