You are on page 1of 73

T

.........Chapter 1

INTERNATIONIAL
HUMAN RIGHTS LAW AND
THE ROLE OF THE LEGAI,
PROFESSIONS: A GENERAL
INTRODUCTION,o o.e..c.,.e e.c... o

To e.nsure tbatptartictpants acquire a basic working krowlrdge of tlte oigin, purpote


and scope of interzational hurnan ights law;
T.ofa.ruiliaiqeparticipants witb the appliution of interzational human rigbtr law at
tbe domestic leuel and to begtn to make filtem aware of the
inpotaat roleplryed fut the
legatprofeiriom in this rrs?ect. - :
:

e IYfu didyu want tojoin tlte caurse?


s What is a human ight?
e lt/b1 are haman igbts inportafi in general?
o [vb1 are bunan igb* importad ia tbe coantry wbet'e1ou areprafersionallt actiue?
w Hoa doloa, prosecatort andf or hu3ters, reeJ,ur r6/e as promorerr and
_atjudgu,
protectort of baman rigbts in tbe exercise oflourprafe:sional datie:i
* wlat rpecifcpmblems, rf ani, doryuface with regard to tbeprotection ajbuman

iitnen Ngbt in tbc Admititratian oJfuttite: A Nlarlal on Hunan Ngbtrfrr.ldgx, Prusurlor: and l--atgers
cbdPtcr I ' Ifiematiorul Hman Ngb* lzw and tbc Roh of tbc rtgal PnJo:ioE; A Gcnaral bnodtction
_il
il.

Introduction
In recent
decades, international human rights lavr has had an ever-growing
I
impact on domestic legal systems throughout the wlrld, and thereby also on *-,. a^ify
wgrk of domestic judges, prosecutors and lawyers. This evolving legal situation, the
true dimensions of which could hardly have been foreseen half a century ago, requires
each State concerned, and also the televant legal professions, carefully to consider ways
in which effective implementation of the State's legai human rights obligarions can best
be secured. Tliis may in many instances constitute a chalienge. to legal pracrihoners,
owing to the conflicting requirements of different laws, lack of access to inforraarion,
and the need for further ttaining.

The obiective of the present N{anual is therefore to convey a basic knovrledge


of, and skills in, the implementadon of international human rights law to judges,
prosecutors and lawyem - legal professions without which rhere can be no truly
efficient protection of the rights of the individual at the domestic level. To this end, the
Present chapter will provide a general inuoductory survey of the basic notions of
internadonal human rights law, whilst the
5ema.ining {ifteen chapters wi.ll conrain more
detailed information and analyses of human rights standards that are of partlcular
relevance to the administration of justice.

Origin, Meaning and Scope of


International Human Rights Law
2.1 The Charter of the United Nations and the
Universal Declaration of Human Rights
Humanity's yearning for respecf, tolerance and equariry goes a long way back
in history, but the curious thing to note is that, aithough our societies have in many
resPects made great strides in the technological, polirical, social and economic freldi,
contemporary grievances remain very much the same as they were hundreds, even
thousands ofyears ago.

As to the Protecdon of the'rights and freedoms of the iqdividual at the


international level, work began in the n?neteenth cenrury to outlaw slavery and to
improve the situation of the sick and wounded in times of war.l At the end of the First
World War, several treaties were concluded with the allied or r:ewly created Srates for
the purpose of providing special protection for minorities.2 At abour the same rine, in
1919, the rnternational Labour organization (ILo) was founded for the putpose
of
improving the conditions of workers. Although the inirial motivation of the ILO was
humanitarian, there were also, intet alia, political reasons for irs crearion, i, i"l"g i."r.J

1A.H. Rob"rtson Httnan


, Rigba itt lhe lVirld Svlanchestet, N{anchester University press, 1972), pp. 15-20,
2tbid.' pp, 20-22. on
the history of human rights, see resource list in Handour No. 1 to Chapter 2 of
the Manual.

Hrman Ngltt in tbc Adninbtration ofJttsticc: A Mantal on Hman NghtJorJydgui pmsecttar and l-an1e6
r cttaptcr I 'ktcmationar Hman Ngbtr l-aw aatr ttt, not o1*drga p.Jofatioat:A G*oo1 1o114o16*

T
that, unless the conditions of the ever-increasing
number of workers were improved,
the workers would create sociar unrest, .rr.n
: ,Joor,r.rr;;;;, dso imperlring the
peace and harmony of the wodd.l

, Fo.llowing the atrocities commitged during the Second !7o4d rwar, the acute
I need to maintain peace and justice for h.,mrnkinj
pr.+ir"iJ
strengthening international cooperation, includ.irrg
.oop".rtion aimed both at
;;i,].5;;;, ;;
protecting the human-pemon against the arbitrary".*.r.ri.-oi sut".po-",
; ;;
I improving standards of living. Th! foundations
on'cerrain fundamental p:rp"l.: and principles
of a new interr,"tiorrd legal order based
were thus laid in san Francisco on 26
June 1945 with the adbption of the Charte, tf th. United Nations.
In the preamble to
I the charter, faith is first reaffirmed ,'io fundamentar
worth of the human person"in the equal rights
of mer,
t o*"., a*i", in the dignity and
*orrr-.n and of nations iarge
and ss1all". Secondly, the:p1g2rn61ralso,"irrt"r ^rrd
"tir,
.*fr.*
,.to Le deter*nation
I Promote social progress and better standards of rife
the four PurPoses of the United Natioris is,
in rarger freedom,,. rhiraiy, ;;" ;;
according ,o]Arri.l. 1(3) of the Charter,
"2, To ach.ieve . in solving inrernationel
inrernarional co-operation
I prob.lems of an economic, social, cultural,
frr,rr."U,u.iotd;#:::
o,
in promoting and en-couraging ,".p.., f"; ;;;;;i;;-il,;;;
fundamental freedoms for a! *itlout d.istinction
",
,;;;.;:::r,;;";:;
I or religion,,.

other
Charter ptovisions containing referenc.s to
human rights aie; Articles
13(1)(b)' 55(c),62(2),-68, and_76(c). rt is
of"par,i."i;; ,i;il;;;;. ,, poinr out rhat,
I according to Articles 56 and 55(c) read
in conjunction, ui-jt.d Nadonp Member
states
legal obligation "ro take' joint ,oa ,.pr*";;,r;';l-op.rrtio,,
Tyt i
organization for the achievemeni of ' ',universd with the
,.rp..t for, and obseryance of, human
rights and fundamental freedoms for
r;ligion"' rls meqlant Iegal a",, rl"a,i;
dt;il;;;;;;;..,
all without J;,1;;;;;;
throughout the United NationJqman'rights
,;;;'6,r,"r,
-' participation
p-gr;*;:-'-
with the adoption by the united Nations General Assembly
Declararion of Human Rights on 10 December of the universal
194g, ,h.,r;;;;;;;;;.;; r;
"human rights and fundamentil freedoms,,
in th. ct rrt., ,.q*r.a an authoritative
interpretation' The universal Declaration
recognizes-civil, cultural, economic, political
socj{ rights, and,'arthougii t,;
1d "", ;;;a[y binding documenr per se, sl.]ce it was
adopted ba. a resolution of th-e Gen"rrr
Atsrlm[ry, ,rr. fr..;;r-.;",""ed therein
norv considered to be legaly bindilg on are
srates .i,n., ,, .,rr,o*u",,'i;;";;"-
generai principles ofraw, or as fundatentar ffi,
principr., oir-,"-^Jr;. ," i,, dicrum in the
case concetning the hostages in
Tehran, the Inlernational court of
invoked "the fundamentar Justice clea4y
frincipt., .nr-Jt.d in the ,.. Decrarationflas being legaily
binding on Iran in particurai witiregard
imposicion of "physical constraint
* ,il;;i;"i;"rr#; ---' or[berry and the
iri condition, of nT.arf,ii;;

3For the
history of the ILO, ILO web j*,14.r.ilo.orglpubli./.r$.
see the
4See
Unircd Sra*t Diplonatic and Co^*r trrn,,, iri*ffir r*o, a/Ancica tt. Iran),fudgne*, ICJ fupotr 19g0,p.42, para.97,

Htnar Ngbtt in the Atlninittration offustia: A Matsar on Htnaa R)gbttfarJrtrgu, pnecilort an1 LauJen
J
Cb4tcr t . Inhmational Hman Ngttt l^aw and thc Rtlc of thc bgal Pnfeilon.r: A Gcrural Intmdiction

2.2 The ethical dimensiori of human rights


The very specificity of the concept of ihuman rights" is that they belong to
the individual in his or hei quality aS a hurnan being, who cannot be deprived of their
substance in any circumstarices; these rights are thus inuinsic to the human condidon.
The Universal Declaration of Human Rights, the International Covenant on Civil and
Political Rights and the International Covenant on .Economic, Social and Cuitural
Rights ali giue expression to this fundamenul ethical basis in their frst pream'oular
paragmphs by recognizing'othe inherent digriry and ... the equai and inalienable rights
of all members of the hunan family". Here,'then, is dn expression of the principie of
'equal protection before the law and by the
uniaersaliE of rights, including the right to
law, which, as will be seen in Chapter 13,'is a fundamental princ.iple conditioning the
entire field of international human rights law.

, As to the regional level, the second preambular paragtaph to the Arnerican


Convention on Human Rights also expressly recognizes "that the ess-ential rights of
man are not derived from one's being a narional of a certain Sqate, but are based upon
atLributes of the human personality". As stated by the Inter-Ameiican Court of Human
Rights in its Advisory Opinion on Habeas' Corpas fu Emeryeny Siltatiorls, the rights
protected by the Convention cannot, per. se; be, suspended even in emergency
siruations, because they are "inherent to man".S It follows, in the view of the Court,
that "what may only bL suspended or limi?ed" under lhe Convention is the "fui1 and
effective exercise" of the rights contained therein.6 Finally, the African Charter on
Human and Peoples' Rights, in its fifth preambular paragraph,.also recognizes "that
fundamental human rights stem from the aqtributes of human beings, which iustifies
theirnationalandinternationalprotection,,.,:,];
Consequently, human rights are owed by States to all indivjduals within their
jurisdiction and in some situations also to gro,rp, 'of individuals. The principle of
rmiuersal and inalienable igbtt 0f all human beitgs is thus solidly anchored in internatronal
humanrightslaw. : i ' l

"jt:. ir :.-

L Iu m an rigl tt,,are i n h e run t in a ll n e n bg:;rc ;9f 'th e b a n an fa n i !,


Ltru man ightq are th ur u,iusi sal,an d ldl;gn4bJs',rigli ts 0l atl
:

huaan,,beingi,l': .':; ,1,


:i- , . :: . ,,,:,,,,

5SeeI-l CoartH\Habea.rCorppinEnergenEsinatiorc(arr.27(2),25(t)and7(6),AdtisorlOpinionOC-S/87ofJarttaryi0, 1987,


Scries A, No, 8, para. 18 at p. 37.
6Ibid., loc. cit.

I-Irnan Ngbb in tbc Atlninitration ofJnstice: A Maniual on Hanan NgltsJorJadg*, Pm*canr and l-at1cn
x ChdPter t . Iabnatimal.Hman Ngb* Iau
a
and tbe Rob of tbe l4dl Pmferint: A Gncral latu&tctioa

; -,,:
. ., ' ':,:

..:-'-.i.. :,:. lii'.' :

,'..'.,,..i
;

;
2.3 Human rights and,their impact,on national and
T international peace, security' and development
.t I ,:l
As already explained, it
was the uagedies of the nro lflorld $flars that
compelled the international community to create a wodd organization with the pupose
: of furthering peace and justice, inter alia by encouraging the promotion and protecrion
of human rights and fundamental fr5edoms. The all-too-evident lesson to be &awn
T ftom the Second Wodd lVar was that, when a State pursues a deliberate policy of
denying persons within its teritory their fundamental iiglts, not only is the internal
security of that State in jeopardy, put itr spdqug gituations thdre is a spillover effect that

T imperils the peace and security gf other States as well. This hard-ivon'lirson h11 been
confirmed on numerous occasions since in every part of the world. Effective
proteCtion of human rights promoi.r p.^.ri and stabi.lity at the national level not only
by allowing people to enjoy their basic rights and freedgms, but also by providing a
: basic democratic, culfural, ec.ongmic, poligical and scjciai framework *i,l.,in which

I conflicts can be peacefully' resolved. Effective protection of liqman rights is


consequendy also an essential precon{ition for peace and justice at the international level,
since it has inbuilt safeguards that offer the population ways of easing social tension at the
domestic level before it reaches such proportions as to creatg a threat on a wider scale.

: As a read.ing of, in particular, Article'1 of the Charter of the United Nations


and ,the first preambular paragraphg of the univers,al Declaradon'and the two

r Intetnational Covenants makes clear, the drafters were well aware of the essential fact
that effective human rights'protection it the municipal level is the foundation of jusrice,
peace and social and .Iorr*rri. development throughout the worid.

More recently, the link between, inter alia, the de of law, effective human
T rights protection and economic progr"rg has been emphasized by the Secretary-
General of the United Nations intttsMillenniun $rport,where he emphasized that
, .t-? t. r .. I ,
... : ;,i

T ' "84. It is now widcly accepted that economic success depends in


considerable measure on the quality ofgovernance a country enjoys. Good
governance comprises the rule of law, effectiye State institutions,
transpaf,ency and accountability in the management of public affairs,
: respect for human rights, and the participation of all citizens in the
decisions that affect their lives. \fl'hile there may be debates about the most . i
appropriate forms they should take, therb can be no dispyung the ,,,,.,,,,

: . importance of these principfes".z ' ,,, , . '


,' , ;

7UN doc A/ 54/2oOO,


T I{/e tbc Pcopbs: the Roh of tbe Unitcd Natioat in tbe Twcnj-Firt Century, Rrport of thc Swetary-Gcncral,para. g4.
,. ,:

f, Httuat Ngbts k the Adnin**atioa ofJu$ce: A Manaal on Pleman NgbtsforJtdget, Pmnuton and Laayrs 5
thc r.cgal Pnfissiont: A Gcacml lntnduction
cbaptcr t i lntcnationol Hrn dtt Ngpts Law and tbc Roh oJ

2.+, The sources of law


,/:
(/
The third preambular paragraph of the Universal Declaration
of Human

",..itisessential,ifmanisnottobecompelledtohave,recourse'asalast
resort' to rebellion against ryranny and oppression' that hulnan
rights

ir. should be ptotected b:y irr'e rxte of lail' (eryphasis added)'


.

The
rigb,ts ffi|,$t be effectizsely pr.otectefl by domestic legal systems'
'tbese
rights,
overarching piinciple in the
pinciple of thelie of taw can ttus alsobl described as an
resPect for hurnan
ir"ta o( no^an rights protection because, wheie'ii does not exist,
aqcording to article 3
rights becom.s iilrsory. It is interesting in thi_: respel lo note that'
of the statute of the council of Eulope' "every' Member state "' must accept
the
is thus legally binding on th-e 43
q;".ipl" of the rule of law". This fundamgntal pdnciple
of the
irt.*b., States of the orq4nizatign, ,4 fact thl! has also influenced the case-law

European Court of Human Rights'a .

Consequently, iudges, P{osecutors and lawyers have a crucial role


to f':lfil in
ensuring that human rigk,,i eff-ectiveJy implemented at the-dornestic level' This
rt.
themselves
,.rporr.Ibiliry requires th-e members of thEse legal professirons. to famtJtarize
human rights law' Whilst their access to
. ad"qrat"ly with both nadonal and rnternational
is rnore complex at
domestic i.g^l sources should pgqe no maiot problem, the situadon
level, whete there are's.eve1+f legal sources and a case-law rich in many
the international
respects.
:

107ith some modification, the next section will foliow the hi_erarchy-of legal
Court ofJustice'
sources as they aPPear in articie 38 of the Statute of the International
of in this provisjon, it
Although,rr. *igtt disagree with the classif,cation sources
, serves i', n or"frlitartingloint. According to article 38(1) of the Starute, the sources
' afe:.

8
Ean Cottt HR, Goldcr Ftbnary 1!75, Sciu A, No, l8,para,- 34 at p. 17. The Court stated that one "reason
cau, Jndgncnt of 2l
collective enforcement of certain of the fughts stated in the
why the signatory Gor"r*"nii a"-.ia"aio 'tak. tlre fust steps for,the
was thcir profound belief in the rule of law"; it therefore scemed "both natural and in conformity with the
Universal Declamtion,
proclaimed consideration when'interpreting the terms ofl' article 6(l) of the
pri.,.ipf" of good faith ,., to b"", in mind this widely
Referring
L*oi""o Cinu"ntion ,,according to their context and in the light of the obiect and.purpose of the Convencion"' *rat "in civil
oflaw in the Statrte of the Council ofEurope, the Court conclud_ed
rnoreover to rhe references to tl.,frul" contained
of having access to the courts"' Thq,C-oon"il,
m.tte., o,'c.cafl scarcely conceive of the rule o[ law witholt there being a possibi.lity
of Europe had 43 Member States as ol22 Aprtl2002

H*nan Nght in tlx Atlninilration ofJutice: A Manaal on Hanan frights for Jttdgu, Pm*cttton and Lartlen
x cbaptcr t .Intentational Htman N$tt J-o,u atld tbc Roll o/he l4al pmfadou;
..,.'.::|
A Gia*t liltuds*ot, .,

x + "internadonal convention!";
. .,,.,. :.;1, . ,,, r .: . .,rj?.ir
d" "international custom, as evi{gg.cg gf a general practice accepted as law,,;
: .;. "general principles of law
rq.gognized.bt', qhe comrnunity of nation5;r
";$ "judicial decisions and the teachings of the most highly quatified
publicists ... as
subsidiary means for the determination of.rules of law-.
: ; :r, 1.: .

I
;

:' I
: ',ri;,:'::.;.1

t,,..j
. 1',
t
,,
,t,
:.. ::- : i': :l-1,;i;1.: l:

:
2.4. 1 lnterna,tional treaties
: In the human rights field, the most important todi for judges, prosecutors
and
lawyers to consult, uprrt
fro* existing domestic law, is ,,o ao,rUitnJ ;;;;ilUdr;

I incumbent on the State within whose.jurisclictiqn they are working.


generally
agreement between, for instance, the United Nadons and a state
A",,o.rlq,,, i,
a.l@b binding writte4 agreement conehded getwepr States,ro br.i"rn dr; b"
for specific p"rpor.r.
;
Treatie-s-may go by different narnes, such as conaettion, cnuetailt, protocol,
ot bact.but the
legal effects thereof are the same. At'the .internadon^l lerr.!',
; stri:-;J;;iJ#;;;
consent to be bound b.y a.ffe;att1 principally *uough ratifcatiolr, ortp*irr,--;pr*,';;

I arcailonlt only- exceptionally is',i.,. .or,r*, ,o U? Uoii"J ;;;;.J


However, the function of signature of a treary is often that of zuthenti.r,irrgif,.
and it creates an obligation on the State concerned "ro refrain from
acts -ntn *ootj
,.*t,
;y"riw;;rrl;

I
defeat the object and Purpose" of the treaty, at least until the moment
it has ,.made its
intention clear not to become a paity,, theieto.li . r ,i ,

Once a ffea;ty has,entered into force and is binding upon the


.,
States parties,
thes.e must perform ti',. u""ty obLigatigns 'iin good.fai ay
ipnk lril.seruantla).ta !111s
: implies, inte.r alia, that a State 9*rrot avoid responsibiliry under
international law by
invoking the provisions of its internal laws io.lustifr its failure
to perform it's
internationat tegar obtgations. Moreover,
io.inrSrir"-Jo;i ;;; rrg#il; i";;
: gatti.t.
3ag;1"; archaically refers ro .,civilized nations,,.l ' ,. :
loa.tia" Z1t;1";-of che Vienna Convention on the Law
of Treades.
1 ltbid.,
article z1r;1b).
: 1zlbid,, atticle
12.
l3bid.,.rticl. 1g14. :

14lbid., article
26.
;

Henan Nghfi in tbe Atlministratiott ofJutricc: A Manral Hmatt Ngbtsfirjtdgs, pmsccutors


; on attd Laage*
Cbaptcr I , Intemational Hnzan Ngbx L.au and thc Roh oJtbc l-cgal PnJutions: A General lntmdtetion

responsibiliry is strict in that States are responsibletfor violations of their treary


obligations eaefl @bere tbey wye not intefiti.ondl. ' ' ' '
.

'
Human rights treades are law-making treaties
'of
an obiective naflre in that
; they create general norms that are the same for all States parties.'These norms have to
be applied by a State pafty irrespective of the state of implementation by odret States
parties. The traditional principle qf rctprlci! loes not,.in otherwords, apply to human
rights ueatjes.ls

, The fact that human rights treacies have been concluded for the purpose of
i,ensuring effective protecdon of the rights of the individual takes,on particular
importance in the course of the interpretative process. In explaining tire meaning of the
provisions of a human rights ueaty, it is therefore essential for judges to adopt a
teleological and bolistic interpretatizte dPprodcb by searching for an interpreradon
that respects the rights and interests of the individual and is also logical in the context of
the treaty as a whole.

Examples of law-making treaties in the human rights {ield are the rwo
International Covenants on Civil and Political and on Economic, Social and Culrurai
Rights, which will be considered in further detail below. Suf{ice it to mention in this
regard that the Committees created under the terms of each treary to monitor: its
impiementation have by now adopted many views and comments which provide
valuable interpretative guidance to both national and internatjonal lawyers.

Obltgations incarred b1 Statry undqr intemartonal treatis-nu$ be


p erfo rru e d in go o d faitlt.
.1l ' ,...:.:,y , " ': .. .,: 1, .

In internationral human ightr lap State risponsibitig iq s.trict in that


,itoru ore iepoiAUleJoriiolations oJ4fuir treaE obigolloq, grrn ahere

',,,;A;huain rifi.ts;,trcafit,itust,,bi intlrp7e1gd,,on tlte ltasis olf a tetcologicat


i n d b.9 li s tic ;'4ppIo a cbl: fu, r e a rcb i ngfo r a n i(e rp re ta ti o n tl) a t re sp c fi tb e
:,,.,

et

indiuiduat and is.aln logical in the context of


;ngbt,..t4,!a 1!t 1f,!4

2.4.2 International customary law


: To follow the hierarchy of legai sources in article 38(1) of the Starute oi rl:e
International Court o[ Justice, judges can in the second pJ"ace'apply q'internationa]
custom, as evidence of a general practice accepted as law". International custon-rary
iegal obligations binding upon States are thus created when there is evidence of both
.l acts amounting to a "setded pracdce" of States; and .l:..
g

'i' a "belicf that this pracdce is rendered obligatory by thc existence of a mle ot law 9

requiring it" (opittio jait).to rl'i


-:fl
: l,:1.3
'..,!;{
15
Eur. Conn. FIII' Applicanon No. 7 88 / 60, Autttid 0. It.,b, decition ol I 1 Jatttraty t 961 otr ttn adn*tibili!, 4 \larbook of the Etrap:- ,

': ,,:,

:'-.s
]]:rd
.rlrirr$
i"j:,jid

Hwnan Nghtr in Adnitiilration ofJrstice: A ii,{


tbe tv*lanual oil Hunan Nght; firJtdgu, Pmteaiors aw! L;.4t:: ,:{
,q
a q
;
chapter I ' Iflxnathnal Htffia, Ngh, rzu and the Roh of y5, 1iro, pmfettkw: A Geacral latndtction
;
The judge will thus have to assess
consisting of the general pracrice,
the existence of one objectiae element
: be.lief among Strte"s
and one ssbjectiue.l.**,,1*ely, that there is a
,o .i," r"a"ii:r,Ai;ai"g of,tli practige.rT
narure
",
- 'irith regard to the question of practice,
it follows from the ruling of the
rnternationar courr ofJustice in the Nr"b's;;;;;;;r;;;1'ilyi^rrrrhat,
: regard to "the formation ar reast with
of a new de of customary internaional
what was originalry a purely convenrional law on the basis of
short, although
,"rgr', #;;r"g. o*. can be reladvery
T ";
"an indispensabre requircment wou.ld
be that wicrrin the period in
*or*n quesdon,
it might,be, State pr"cti.s ;.,"d_;;;'i?Sr.,., *hor"
,.1:"
: rnterests are speciary affected, should have
virnrally uniform in ihe sense
beei ;;;;_r""rt";-r;;
of the o;;";;"#.J,:
. moreover have occurred in such , aqd should

I *^,, J.;;;;l.s.r ffiffN1|;il:jl:X


a a gcncrar recogn*ion

In the subseque:t ca,le of Nicaqog,;


o:, thii io;ta Sut r:,
Internadonar court ofJusu." ,r1 America, the
I strict interpretation or
placing correspondingry greater
a
,fo.;r rrr*"v,er qo have som"*hrt softened
*,. ou,i.ii".t r;;;j ;1s,;" j#il *ir,r, ,, the same time
this rather

ln
e;il;r;:: he op;iroidtin the creadon
rts reasoning, which retated of custom.
rh.'rr. of force, the court herd, in pard.cu_rar:
I "1 g6,
to
It is not to be expected that in the practice
of states the application of
' the rules in questica rl,o,la
hr',r. b..., perfect, in the sense
that states
rl.;il;;;;;';;ff
should have refrained, wjth

consider that, for a ru-le, to


comtlet., ,,?;:J;;r::f;
:,Jn:::ff :.;:::,":::,J:f
be estabrished .. *rro*^ry't,r.--."J.r.*porrairs
practice must be.in absoiu_tely
rigorous conformity with the
to deduce the existcnce or.,.rto"*^ry rule. In orcler
rures, the court deems it
drat the condlc,t of S^tates sufficient
sho,ild, in jenerar, be consistent
and that instances of State *ith" r,,.h *.t.r,
.orrdr.t irr.orr.irt.rrt with a given
genera'y have been fieated as rule should
breaches_of that rure, notls
the recognidon indications of
of a ,..r". ii .
p a 1 ""*
in c omp ati bre wi
ognr,.a,yi., ;T,t:lTd.j',, jHox:l
fr,ffi .ft :;
c
to exceptions or justificationr
.o.riri.r.d *irr""
ornot the t*,:.,:^::"0".:is in fact justifirUt. ,ir. L."r,r.ii ,ly.n *r,.,r,.,
, of that attitude is to confina ruth.i
o'J.ti-"rlr,
*Jr*O*"..
thrn to weahen the rule,,.rq
The question now arises as'ro
whar legar principres for the
human person might have protection of the
been .r;;.;;;; fo-.m po.t .r..,r.*".,
by rhe International Cout internadonar raw
ofJusdce.

*
il fi }rl"ffi y,?iJ?.?: :111?], :^', ": :, :
o *, : t h e o n u e, ti o n o n G e r o cide, the
-c
:;:x';:"ffi*l:li:l;:-*"lr:.:;:;:,:,w:;:;:L::::K::::';:r::#:
]#;1,:::,;'i,Tiil1^,-::.:tll{:;ffi
obligation"'20 Fuirhetmor., ;.;'.:";[ffi 'il;i:,,l'.fi 'jj;
17ibid.,
r, rout*.? iJ"* ,n. pr.^*br.
I
to il #]Jff1;li
loc. cir.
l8tbid., p.
43., para. 74.

,,1|^,lii:{r,:;dPamnilitat1Attiuitiuitanda8ainstNiu*,@1,Meitl,Judgnenl,lCJRQotrt9s6,
2O'Rtsertatiou
to rhe Conaettion on Genocide,
AdyisotJOrrr,,"Mj

Hilndn k the Adminitration ofJrctite: A


Maryal on Hrnan N4btt/orltclgx, protecunn
Y and r-awyen
. Intcnutional Hman Ngbtt Law and
il
Chaptcr I the Roh of thc L4al Pmfesiont: A Getural Intmducilon

il
was of "universal chatacter" both with regard to "d1e condemnation of genocide and ...
the co-operation required 'in order to liberate mankind from such an ociious
scourge"'.2[ Finally, the Court noted that the Convention had been approved by a
resolution which was unanimously adopted by the States.22 It is thus beyond doubt that
il
in 1951 rhe crine ofgenocidewas already part of customary international law, applicabie to
all States. .il
Later, in rhe Barcelona Traction case, the International Court of Jrisrice
significantly made "an essential distinction" between "the obligations of a State
towards the international community as a whole, and those arising vis-i,-vis another
State in the {ield of diplomatic protection".23 It added that by "their very natur-e the
t
former are the concern of all States", and, in "view of the importance of the rights
involved, all States can be held to have a legal interest in their protection; they are
obligations erga onuel'.za In the view of.the Court, such "obligations derive, for
example, in contemporary international law, from the outiawing of acts of aggression,
and of genocide, as also from the pdncipies and ruies concern-ing the basic rights of the
human person, including protection from slavery and racial discrimination".zs It added
that whjlst some "of the corresponding r.ights of protdction have entered into the body
of general international law ... ; others are conferred by international instruments of a
universal or quasi-universal character".26 .
.
Finaily, and as already noted above, inits dictmtin the hostages in Tehran case,
the Court stated drat

"Wrong6.rlly to deprive human be.ings of their freedom.and ro subject


thcm to physical constraint in conditions of hardship is ir: itsilf manifestly
incompatible with thc principles of the Charter of thc United Nadons, as
well as with the fundamental principiles cnunciated in the Universal
Declaration of Human Rights".zr

,It is drus beyond


doubt that basic human tights obligations form pa;:r of
customary international law. Whilst the International Court of Justice has expressly
mentioned the crimes of genocide and aggression, as well as the prohibirion of racial
discriminarion, slavery, arbitrary detention and physical hardship as forlning part of a
universally binding corpat of law, it has not.limited the scope of the law to these
elements.

't General Assembly resolutions: It may not be an easy rask to idenrify internarional
custom, but resolutions adopted by the United Nadons General Assembly can in
cettain circumstances be regarded as having legal value, aibeit not legally binding per
se. This is, for instance, the case with the Universal Declaration of Human l{rghts.
Thus, although not. a source of law in thi strict sense, they can provide etidence of
customary la$/. Howevet, this will to alarge extent depend on their contents, such as

21Ibid., loc. cir.


11-

Trution, I)gltt atd Pouer Conpatl, Lilikd, !ilgnent, ICJ Rzport: 1970, p. 32, para. 33.

2slbid., p. 32, pan.34.


26Ibid., loc. cit.

Rcpo,'ts I980,
27
ICJ p. 42, pzlra. 91.

t0 Hunan Nglttt in the Adniti$rafion ofJwtiu: A Nlantal m Htnan Ngltt forJttlgx, Pmncutot and Lt*1ers
I Cbapter I ' lntenational Htman Ngbtt Lzw ad tbc Rolc of tbe Legal Pmfessionc A Genral Ifivdaction

I tbe degru ofprecision oJthe nonm and urdertakingt defned tbereir,and tbe mearsforeseenfortbe

I connol of tbeir apptlication; it will also depend on tbe namber of coantriet bauing uoted infauoar
tbereof, and tbe circamstanns of their adoption.2s A particulady relevant question in this
resPect would be vbetber tbe resolqtion concerned has been adoptgd in isolation or phether it

I *
forzu part of a rciu oJ reulatiott ofl the same subjut witb a consistett aad uniuercal content.
Peremptory norms (jus cogens): It should finally be noted that some legal norms,
such as the prohibition of siavery, may be considered to be so fundamental that they

I arc calledperemptorl norms of international law. According to arcicle 53 of the Vienna


convention on the Law of rrearies, a te ty is simply "void if, at the time of its
conclusion, it conflicts with a peremptory norm of internationhl law". According to

t the same article, such a norm is described as "a norm from which no derogation is
permitted and which can be modified only by a subsequent norm of general
internationai law having the samc character". Flowever, whenever the notion of

I Peremptory norm is being discussed, disputes arise as to its exact coritents, and.
consequendy it wiil not be further deait with in tiris Manual.

I 2.4.3 General principles


of nations
of law recognized by the community

I Justice
This third source of law cited by the Statute of the Inrernadonal Court of
helps ensure that, in cases where internariooa.l trearies and customary law might
provide an insufficient basis for the Court to take a decisiorr. it will be able to draw on
other resources.
T , A general principle of law, as a source of international human rights law, is a
iegal proposition so fundamental that it can be found in all major legal systems

I throughout the world. If there is evioence that, in their dornestic law, Srates adhere to a
particular legal principle which provides for a human right or which is essential to the
ptotection thereof, then this illustrates the existence of a /ega/$ bindingpnncipla under

I international human rights law. Judges and lawyers can thus look to other Iegal systerns
to determine whether a patticular human rights principle is so ofren accepted that it can
be considered to have become a general pdnciple of internarional law. Domestic law

I - analogies have thus, for instance, been used in the


judicial process, such as the question 3f evidence.ze
{ield of principles governing the

I 2.4,4 Subsidiary means for the determination of


As subsidiary meafls for the determination of rules of law, articie 38 of the
rules of law

I sTTr: mendons "judicial decisions and che teachings of the most highly qualified
publicists". As previously mentioned, in the human rights fieid, judicial decisio.r, ,..
particulady important for a full ,understanding of the law, and the wealth of
international case-law that nov/ exists in this field must be regarded as authoritative
: evidence of the state of the law. However, neither the International Court ofJustice
nor

T 28Fut
'o*"
of these elements, see e.g. Les ruolttiont darc laJamatiort da droit inhntationat du diteloppnnr, Colloque des 20 etZl
novernbre 1970, L'Insticut universitaire de hautes tudes internationales, Genive, 1971
(intervention by Professor Vira.lly).
@cudes.,,orrr*, No. 1i), pp.9,30-31
29lan Brownlie, Pinciplu
o/Pillit Inrenatiorul Lzw (Oxford, Clarendon Press, 1979), 3rd edn., 1979, p. lg.
T

I Hwan Nghtt in lhe Adnini:tratian ofJ*tia: A Mannal on Hrman Ngb*forJttlgu, Proyeilar: antl l-at1en fi
Cbd?ter 1 . htematianal Human Nghtt l-aw and rhe Rok of tbc Lzgal Pnfcstionr: A Gmeral lntroduction

the international monitoring organs i., the human rights field are obliged to follow
previous iudicial decisions.so Although this is usually done, it is particulady important
for the monitoring organs in the human rights field to retain the flexibility required to
adjust eadier decisions to ever-changing social needs, which, at the intemational level,
cannot easily be met through legislation.3l Suffice it to add in this context thac the
reference to "judicial dectsions"'can also mean iudicial decisions taken by domestic
courts, and that the higher the court, the,greater weight the decision will have.
However, when international,monitoring organs interpret human rights law, they are
Iikely to do so independently of domestic laws.

As to "the teachings of the most highly qualilied publicists", it must be


remernbered that article 38 was drafted at a'rime when international jurisprudence on
human rights law was non-existent. \fftrilst the interpretation and application of this law
must principally be based on the legal texts and relevant case-iaw, writings of "the :nost
highly qualified publicists" can of course in some situations contribute to an improved
understanding of the law and its practical implementation. Yet it is advisable to exercise
considerable cate before relying on legal articles and principles and'comments adopted
by private bodies outside the framework of the officially established treaty organs, since
they may not in ail respects correcdy reflect the status of the law to be interpreted and
applied.

2 .5 International human rights law and international


humanitarian law: common concerns and basic
V differences
Although this Manual is aimed at conveying knowledge and skills in human
' rights law, rather than in international humanitarian law, it is important to say a few
words about the relationship between these.rwo closely linked fields of law. .:

Whilst both human rights law and international huraanitarian law are aimed at
protecting theindividual, international human rights law provides non-discriminatory
tredtfitent to eoerybody at all times, wbether in peacetime or in times of war or
otber wpbed.vdl. International humanitarian law, on the iither hand, is aimed at
ensuring a minimum of protection to victims of armed conflicts, such as the sick,
iniured, shipwrecked and prisoners of war, by outlawing excessiae bunan suffering
and material destructioft in tbe li.gbt of military necessifT.:z 6,*o,rgh the 1949
Geneva Conventions and the two Protocols Additional thereto adopted in 1977
guarantee certain fundamental rights to the individual in the specifically deilned
siruadons of international and internal armed conflicts, neither thepels ondl,teffipordl
nor mdteridl fields of applicabiliry of internationai humanimrian law are as wicie as

30As to the International Coutt ofJusrice, see article 59 of the


Statute.
31S"" the case in wllich the European Commission of Hurnan Rights reversed its own eailier decision according to which
",g,
a legal person, such as a church, could not bring a case under afticle 9(1) of the European Convention on Fluman Rights claiming
a violation of "the right to freedom of thought, conscience and religion", E# Cutn. HIt" App/ication No. 7805 / 77, X. and Cburcb
of Scieatoiory v. Snuden, duitiott of 5 May t 979 on tfu adnistibitin of thc otolicatiott, t 6 Dk o.7O.
)z Scgaridad del Ettado, Denclto Httnnnitaiol Dencbot Htaruno4 hfornrc Final, San Jos6, Cosra fuca, Comitd Internacional de la
Cruz Rofa/Instituto Intemmericano de Derechos Humanos, 1984, p. 7.

-
12 Hunat Ngbtt ia the Adnitistration ofJnstice: A l[anwl on Hnzan Ngbtfortdgu, Proneuton aru! Lttlen
r Chapht 1 ' ktenational Htnatt Nghts Lau ad the Rtlc oJtbc Lagal Pmfisiont: A General latmdtaion

:T
r
those afforded by international hurnan rights law.3: In that sense, humanitarian law is
also less egalitadan in nature, although , t}1e p{nciple ,of nondiscrimination is
guaranteed with regard to the enjoyn:ent of the rights afforded by this law.:+

r !7hat it is of primordial importance to stress at this stage is that, in


international andnon-intemational armed conflicts,internationalhuman rights
humanitarian law will ''apply simuliiieously. As to the modifications
implementation of human dghts'goaraniees that might be authoriied in
lawand
to
what is
the

x generally czlledpublic energencies thwateningthe


to in section 28 below and in more deail ln Chapter
lfe of th, ,otioo,these will be briefly
16.
re ferred

r r;,: 'ri'

r i,.:t':;

T :.:: :r: i' i

r 2.6
,a'
vkeseruations
and interpretative declarations to
international human rights trea.ries
:r In assessing the exact extent of a giyen.state;s
rtghts tre?ty, it is necessary to ascertain wheth'er the State hasLade a
lelal oh,ligations ur.der a hul ran

I
retentation, ot,
possibly, an ifi@retatite declamticri at the time of ratificarion or irccessior..
The majoi
human-rights treaties dealt with in this Manryi allow for reservz.[ioRs
to be made,

t
although they have somewhat different ways
9f regulating the rubject. ln J..ffi
whether a Stare party has actually made a t*. r"r"*rtion, rather
rhrn a merf
declaration as to its own understanding of the interpretation of
a provlrio., or-"
statement of policy, the Human Rights r committee set up to monitor

r
the
implementation of the International Covenant on Civil and Political
itights t u, ,,rt.i,
in its General Comment No. 24, that it will have regard "to the intefiian
of the State,
rather than the form of the instrumer$".3s whilst this covenant contains
no specific
regulating the question of reservations, the Human Rights Committee
1od: t r, ,r""a
T that the "absence of a prohibition on reservations does ,ro,
-Lr., thai
petmitted", but that the matter "is governed by international 1aw,,.36
any ,.r.*r,iorrl,
liasing irself on

r article 19(3) of the Vienna Convenlion on the Law of Treaties, the

P^trt'oBic and B'Ja-kovlievi c,Iafinatioul Heaaritarian


Committee stated

r
.,33J' L-au in th carknpomry lyorld,sanremo, Italy, International
of Humanitarian Law (Collection of publications I0), 1991, p. 2g. Institute
34s"" e'g' article
3 common co the Four G"n.r" corrr"ntions of 12 August 1949;
^ article 75 of protocoi Additional ro the
Geneva cooventions of 12 August 1949, and relating
to the Protcction of victims of Intemadonal Armed contlicts (protocol
I);

r
andarticle2(1)ofProtocolAdditionaltotheGenevi'conventionsof
l2August rg4g,ndrelatingtotheprotectionofvictims
of Non-Inrernationa.l Armed Conflicts (ptotocol II),
35Sec General
comrnent No. 24, in UN doc. HRI/GEN/I/R ev.S, Co@ihtion oJGneral conaeztt and Gcncral Rtconnroao*r,
AdoptedlgHmanRfullttTrcagBodiu(rueinafterreferredroas
utuN"*iconliiianoJGncralconnattj,g.isqBr*.+
w$nsu,tfU*"

r 36tuid., p. 151, para.


6.

Htnan Ngh* in the Aelniaiilration


T ofJnrtice: A Manaal on Hmaa NgbxJorJldgts, Proseailo7 and Lauyers t3
Chapter l. . Iatemational Httman Ngbtt Lau antl thc Roh oJ the L4al Pmfrsiont: A General lntrodsdion

that "the matter of interpretation and acceptability of reservations" is governed by the


"object and purpose test",37 ilhis'means, fOr instance, that teservations "must be
specific and transparent, so that the Committee, those under the iurisdiction of the
reserying State and other States parties may be clear as to uThat obligations of human
rights compl,iance have or have not been undertaLsnt'; similady a resolution must "not
be, general, but tnust refer to Pul,i""l"1-qtovision of the Covenant and indicate in
."
precise terms its scope in relatioq thereto'i,38

The American Convention on Human Rights expressly stipulates in its article


75, that it "shall be subject to reservations only in conformity with the provisions of the
Vienna Convention on the Law of Treaties". In its Advisory Opinion on Tbe Efut of
n'makes
Reseruations,the Inter-American Court of Fluman Rights starcd that aticfeT5
sense" only if understood as enabling "states to make whatever reservations they deem
appropriate", provided that they "are not incompatible with the obiect and purpose of
rhe treary".:r In its Advisory Opinion onRzstrictions to the Death Penalfl it further r:oted
with regard to the rights that cannot be suspended in any c.ircumstances under article
27Q) of the Convention that it'lwould follow therefrom that a reservation uzhich was
designed to enable a State to suspend any of the non-detogable fundamentai rights
musr be deemed to be incompatible with the obiect and purpose of the Convention
and, consequently, not permitted by it".+o The Court accepted, however, that the
"situation would be different if the reservation sought merely to restrict certain asPects
of a non-derogable rightwithout depriving the right as a whi:le of its basic purpose".41
Uke the International Covenant cjn Civil and Polirical Rights, the African
Charter on Human and Peoples' Rights is silent on the que-s[ion of reservations.
However, article 64 of the European Conyention on Human Rights expressly oudaws
reservations of "a general character'?, whilst permitting reservations "in resPect of any
particular provision of the Convenlion to the extent that any law" in force in the
l...itory of the State at the time of signafire or ratification "is not in conformiq'with
the provision" concerned

In interpreting and applying international tteaties, domestic iudges,


prosecutors and lawyers may thus also have to consider the relevant State's legal
obJigations in the light of reservations or interyretative deciarations.

The scobe of a State's lepal oblisatiofis ,mder afi intentational huruan


'ghts
trea! ruE/ l)aue lo bg mnsidered in tbe light of at1 existing
-
':resenatioin"t;,or,inter?ritatiiedgilal'atiO;ns...' ;: :

37ibid., loc. cit.


38$id., p, 155, para. 19.
39
I-A Cor* Hg The Efrt oj'fuuruations on ilte Erfir Into Fora ol thc Autrican Cottacntion on Hrtnan Ngbt: (Artt. 74 and 75),
Adui:ot1 Opiniott OC-2/ 82 of SePteubu'24, 1982, Seia A, No.2, p. 18, para. 35.
a0l-A Cont HB, I\utrictions to thc Dtatb Pcnatg (Arts. a(2) and 4(4) Antcricar Cottucntion on Htman Ngbtr), Adtisoty Opinion
OC-| / 8l of Septcnbt 8, l93), Seil.t A, Na l, p. 83, para. 61' .
41
Ibid., at p. 8+.

r+ Hanan Nghts it the Adatinitration of Jwtia: A Llatural on Hunan NltfiJorJrdgu, Pn*adors antl Latlen
x cbaptcr 1 'InhnationalHrnaa Ngbtr
t
l-rl,:rd tb: &ole of the r4at pmfesiotts:A Gnerallntmfuaion

tr
ffi
x
t 2.7
r Limitations on the exercise of rights
The exercise - albeit not the substance per se of cerrfln rights,
-
right to freedom of expression, the right to freedtm of associatior,
such as the
.id ,rr.*bly, the
x right to freedom of movement and the right to respect for one's private
and correspondence, is generally accompaaied ty
"ertain
imposed, for instance, in order to prrt..tihe righti aed,
and famiiy life
lirnitations that can be
rrh;;;;;;r;
I
freedom,
tttlli'y: and public health 9r morals.a2 These, limitations are the "f
result r:f carefully
weighed interests. \lrhat they show is the balance suuck between,
on the one hand,
indi',Ji.duals'interest in maximizing the enjoyment of the right
that belongs ,o ,r-r"-,

iI and, on the other hand, the interesr of sociery in generai,


imposing certain restrictions on the exercise of Lis right,
in.accordance witb tbe lau and are neceisary in i dernoudtic
that iJ, tbe generalinterest, n
provid.jrhr, ;.;;;;.;
,on;rry'too ."ni

x s4ecific legitimate purposes. In interpreting and applJrng


given case, it will therefore'be necessary t" mrt.
;"r. ;;;;;;
":cir".ful examination of the
;;;

r proportiondlity of tbe restrictiue medsure o,r measures concerned both in grnriit


and as.applied in the indiitiduat case. chapter 12 of this Manual pro.,rides
exainples of how these limitations have been applied in
specific ca.ies,
numerous

r
r
I
r
r
r 42st"
12(2)
tg' articles 12(3), 13, 18(3),
of the African charter on Hum-
1g{3),u,nQ)of the Inret.;rrional.Covenant
n.opt"rirugiur *,i.r.' r rir,;;bffidj: ii
on Civil and political Rights; artic.les 11 and

:I on Human fughts; and articles Be)-r1(2)"nI


of th" i*opein cor.rvenr.ion .i n"ir* iugi,.. "",
,u1ry or the American convention

r ruilan Nghts i: thc Adniritration ofJuria: A Manaal ot Hman Nghtsfor jrdget, prunurors
and Latgen t5
Cbapter I . litfln$iaral Hsman Ngbt l-aw antl tbe Role of the L,egal ProJedont: A Gmeral lntrodaction

2.8 Derogations from international legal obligations


In interpreting and applying the terms of the three main general human rights
reaties in pafticularfi cisis itaations wben tbe hfq of the nation is impeilled, domestic
seuere

)udges, prosecutors and lawyers will also have to consider


the possibiliry that the State
concerned has modified the extent of its international legal obligations by resorting to
tenporary derogations. The question of the administration of criminal justice during
states of excepdon will be deait with in Chapter 16, and it wiil therefore suffice in this
context to point out that the International eovenant on Civil and Political Rights (art.
4), the American Convenribn on Fluman Rights (art.27) and the European Convention
on Human Rights (art. 15) all provide for the possibility for the States parties to resort
to derogations in particulariy serious emergency situations. However, the African
Charter on Human and Peoples'Rights has no cortesponding emergeocy provision,
and the absence thereof is seen by the African Commission on Fluman and Peoples'
Rights "as an expression of the principle that the restricrion of human rights is not a
soludon to national difficulties", and that "the legitimate exercise of human rights does
not pose dangers to a democratic State governed by the rule of law".a3
In the trearies where it exists, the right to derogate ig subiected to stict
formal and substantiae requirements, and was never intended to provide
Governments with unlimited pou/ers to avoid their treary obligations. In particular, a

qudffied. principle of proportionality applies in ,that, according to a[ the


aforementioned treaties, the limitafions resorted to, must be "suicdy required by the
exigencies of the situation". It is noteworthy, furthermore, thattome rights, such as the
right to life and the right to freedom fiom torture, may not in any circumstances be
derogated from, and that the list of non-derogable rights found in the second
paragraphs of the aforesaid articles is zol exhaustive. Li other words, one cannot a
^r'g$e
contraio rhat, because a right is not expressly listed as non-derogable, the States parties
can proceed to extraordinary limiutions on its enioyment.

Since the derogation articles provide for extraordinary Limitations ofl the
exercise of human rights, iudges, both national and international, have to be conscious
of their obligadon to inteqpret these articles by construing them suictly so that
individuais' rights are not sapped of their substance. By at aJJ times maximizing the
enioyment of human rights, States are more likely than not to overcome their crisis
situations in a posirive, constructive and sustainable manner.

,.'[Jnder the Interuatioiral CoycnanLon Ciai| and Political,N, ghts:and tlte


.*nerican and Earopean Conuentions on Human Nghts, Staites,partiu
haae the igbt in ceiainparti6ulartl clrficah ilnartons to derogatefrrn
sone oJ their kgal obligationr. l

,'The ighit,l1yt,,f,i iiii;lybjlcted n and subiiiitiue;;lggql


!fictfornal

a1^
"See undated deusron; z4CHP& Casu of Antmj Intematiottal, Conili Looili Bachelard, I-aultut Cotimittee Jor Hunan llights,
Assaciation o/Mcnbers oJtbc Epbcopal ConJirena o.f EutA.fita u. Sudan,No.48/90,50/91,52/91 and 89/9),para.19 the text usd j:
that found at the fol.lowing web site: hto://w1.umn.edu/humanrts/africalcomcases/48-90 50-91 52-91 89-93.litml.

to Hanan Right: in tbe Atlaitiilratiot oJlulie: A illanul u Huran Ngbt;forJrdgu, Prowulors and l;ujer;
cbaPtcr 1 'kterrrdtional Elnndr,
\eb*
Izy lnd
tbc
!9!e
of tba l-cgal profc.$1ns; a Genral lnrmdttctiotr

2.9 International state responsibirity for human rights


..vioIations.']....,.'..,.
Under international law, States will incur responsibility for not complying
with their legal obligations ro respect and gns.ure, that is, ,o guoronirr, tne
.rrlcurrl
enjoyment of the human rights recognized either in , tr.aiy binding'on
concerned or in any other source of law' As explained by the Inter-Ami'ri.;a;;;
,h;;;;;
Human Rights in the vet,isqaeqcase, an "impairment lr rrr"r;,igh;Jffiil;';;
attributed under the rules of international law,to the acriofi or omiJsion
of *y prUfi"
authority constitutes ari act imputable to the State, which assrunes
responsibiliry in the
' teflns provided bl'ttLelegal source concerned.44,Whilst the Courtwasln
thisJudgmenr
elplaining the meaning of article 1(1) of the American.(ionvention
on Huma, niit o, i,
indeed stated a general rule of l4w applicable to inrer.narional
lerely humin,id;;i;;
I
' Agents for whom a State rs tesponsrble include such groups and inclividuals as
ininisterial civil setvants, judges, porice officers, prison orioar,
custorns officials,
teachers, goYernment-controlled business and other similar groups.
This means that
States are under an obLigation @ preoent, inaestigate, -pooith,
and, whenever
possible, restore rights that hav-e been violated arrd/ oi to prooide
compensation.4s
Internationai human rights law also somerimes has an
important tbird-party
ffict n that states may be responsibre for not having trk.., ,."rorabr"
to
preoent piz:ate indioiduals or groups from carrying our ^ctio'
acts ttrt,viorrrc-;;;;
or to prooide adeqaate proteaioo againti,t iuclb aiolatior.ts,under
f8hts, d,omestic
law.aa As held by the European court of Human. Rights with
regard to the right to
resPect for one's private and family life in amicle 8 oi rhe Eoropfan
Convenrion on
Human Rights, for instance, this provision

a,aI-A C*t H4 VekqteqRodigteUa$, t ttt, Sciu C, No. 4, p.


Jildgncilt ojJ,ab 29, 151, parz.164.
n":" e'g'jbld', p' 152, para' 169.-A:
,
Intetnational covenant on civil lo
obfigations to provide effecrirt pro,".,io. or rt . ;gnt to tif. under
ardcle 6 of the
and Political Riihrs, see eg. G"rr"tat commcnt No. 6,il Llilitcd
Nations conpilation o,f Gneral
Commaatt,pp. 1l+116.
to theAmerican Convention on Fluman Riglr a,L4, Co*t
- .nu:":_*
Jan'ar Q, frta 4, pp. 155.156, paras. 1?6-17?;
and as to thJlnternational
e'-p"";r"'"r, ;:;;;;;;e;';;t;;;;):;";:?r;;;;'ii;;;:;;dttr,V
ill{j}!:P,IflS:I:?21;\T
21 Sqhnbcr 1998, Rtports t9gg-W,at?'!i'r'"
p, 2692 et scq.

Hanan Ngb* in tbe Adninitratiod A Matual


ofJaslice: on Hauan Ngtttfnrry$dger, ppnrutort antl Lantlert t7
I

Cbaphr I ' Inhnational Httnan Nglttt l-.ap and the Role of the L^egal Pnferiont: A General Introduction

"is essentially that of protecting the individual against atbiuaryinterference


by the public authorities, it does not mercly compel *re State to abstain
from such interference: in addition to this primarily negative undertaking,
there may be positive obligations inherent'in'an effective,'respect for
private or family life (...). These obligations may involve the adoption of
measures designed to secure respect for private life even in the sphere of
the relations of individuals bctween rhemselves."4T

The States parties to the European Convention will thus have to provide
"practical and effective protection" in their domestic law "where fundamental values
and essential aspects of private life are. at stake", spch as, .for instance, in order to
protect'persons against sbxual 2buse,48 or in cases of corporal punishment by family
members that constitutes a violation of article 3 of the Convention.ae

\X/ith regard to the duty to secure for everyone within its jurisdiction the right
to life, the European Court has held that it "involves a pdmary duty'i to put "ifl place
effective criminal-law provisions to deter the commiision of offences againsi the
Person backed up by law-enforcetnent maShinery for the prevenr.ion, supprJssion and
punishment of such provisions", and, further, that this duty

"also extends in appropriate circumsrances ro a positive obligation on the


authodties to take preventive operational measures to protect an individual
or. individuals whose life is at risk from the criminal acts of another
individual(...)".s0

These rulings are significanr in that they exrend the scope of States'
international legal obligations beyond the strict public sphere inio the field of private
l-ife, thereby allowing for a more adequate and effective protection against vario,rs
forms of human rights violations, such as,physical and mental abuse of children,
women and the mentally handicapped.

' '"t'**x
A will however only incur international responsibiJiry for ahuman rights
State
violation if it has failed to provide the alleged victim with un and effective
remedy through the workings of its own iourts'or adminisrrarive' "d.q.r^t.
aurhorities. The
requirement at the internadonai level that all, ef,ectiuedomesdc remedies must have 'ceen
exhausted before an aileged victim's complaints can be considered by an internauonal
monitoring body of a iudiciai or quasi-judicial character has been introduced precisely
in order to allow the State itseif to remedy
$e wrongs committed. This also means that
the establishtnent of the various internari6nal machineries for the protection of the
human Person is in fact "subsidiary" to the avai.lable domesric ryrt.-i for safeguarding
the individual, since they "become involved only through contentious proceed.ings anJ
once all domestic remedies have been exhausted,,.5l

47
Em cosrt HR, can ojX. and Y. v. tbe Netherlandt, Jttdgnerl o! 26 seprenber 19g5, seier A, No. 9l , p.11, para. 23.
aBlbid., p. 14, para.30 and
p. 13,para.27.
on
Cgrttt HIt, Cax of A. s. the Ubihd Kiflgdvrl,, ludgnnnt 2t Srptcnber I 9gB, Reofti l29s-W,concerning the responsi6i.liry
- l1r,
of the United Kingdo4.,!95.144ing of child by stepfa*ret.
oJ

5oEur. Cofft
85. The text used is that found on the CourCs
web site:
Slst"t"me.,t with regard to the European
Convention on Human fughts, Eur Corct HR, Catc oJl-landltidc,Jdgnnnt o!l
-
Dcccntber 1976, Suict A, Vol 24, p.22, para. 48.

/8 Hunar Nghts in the Adninittration ofJwtice: A Manual on Hunon NghtsJorJatleer, Proreciltvn dnd Latrye6
r t-.

r l-ay and tln Roh


ChzPtcr 1 ' ktematioaal Httmatt Ngbtt of tbc L,egal Prufusiont: A General lilmfuctiott

r
States' responsibility t9 ptgvidg protection and redress for,victims of abuses
of powet vr[ be .dealt with in some detail in phppter 15 of this Manual.

r
t
I
H
T
Business Corporations and
:

r - In recent years there has been wide discussion of


$9 question wherher, and to
what extent, entities other than states, such as busines.s .o.porrtiorrr, could aad shouid

I
be held l"grlly resporrsilrle for not complying with rules of internadonal human
rights
law in the exercise of their various tctivities. \)Thilsc it is ciear from the pr"."iirg
sub-secdon that States themselves may have a duty ro ensure that their domestic law
also offers adequate teme.lies against serious human rights violations that may
be
committed by private individuals, this reasoning would appear to be equally applicable
T to the activities of business corporaLions. However, this is not, of course, ,lr. ,u*.
t-'yi"g that these corporations arc themselau incurring intemational legal iesponsibiliry",

I {or any wrongful acts. :


The discussion at the international level on the legal responsibiliry of business
.

I coqporations to guaranree human rights offers a wealth of-id.^.ion.e*ing, i;;r


standards to protect wotkers fiorn abuses'or the environment"from ,irrrr...r.ury
damage and destruction. However, the development of the law in this irnportant
rlir,

is

I still very much in its infancy, and the arguments pu! forward at this stage belong
prinrarily to the field of bxferenda.
"re,

Since the aim of this Manual is to explain the legal duties of States rhemselves
under internarional law, no further considerarion will be"devo,.d ;;;;;;;ilil;;;
T responsibijities of business corporarions to protect human rights. However, jodgir,
prosecutors and lawyers may well be confronted with these problems

i
in the exercise of
their professional duties at the tiomestic level. In addirion to any duties
business
corporations may have to protict individual rights and the environment under
domestic law, ir might therefore be uqpflrr for members of the legal professior6

i aware of the fact that discussions are taking place at rhe international level
to b.
and that

Hunzn Rig!* k
T tbe Adninishatioa ofJutin: A Maalal on Llman i\igb*JarJttlgu, pmncutorl and latlers t9
Cbqxr t . Iahnational Htaun Ngha t-au a*t tbc Rolc of thc Legal PnJcsrkw: I Gcneml Inrmdaction

there is, as a minimum, an ethicil duty under i{riernational law for co-r.porations to r.rn
their businesses in such a manner io ,"rp"., basic human righis.sz
",

International Hunlan Rights Law


at the Domestic Lbvel
4.1 Incorporating international law into domestic
Iegal systems
As previously noted, and as provided in atticle 27 of rheVienna Convention
on the Law of Treaties, a State "may not invoke the provisions of its internal law as
justification for its failure to perform a treatf'. On the other hand, States are free to
choose their own modalities for effectively implementing their intemational iegal
obligations, and for bringing national lawinto compliange with these obligations. Since
domestic legal systems differ considerably in this respect,rilbeii also having some
similarities, it will be for each domestic judge, prosecutor and Lawyer concerned to keep
himself or herself informed as to the manner of incorporation of the, State's
intern4tional legal obligations,into national law..Below, a rpelq general account wiil be
giveo of the various wayg in which a State,can modify its.municipal law so as to bring it
into conformiry *ith its inte,rnational legal obligations. i
* First, according to the nonist theory, of which there are in fact several divergent
vetsions,53 international law and domestic law can in general terms be described as
forming one legal system. This means thrat once a State has ratified a treaty for the
protection of the human person, for insta4ce, the terms of that trc^ty aututilaticalb
become binding rules of domestic law. . ,

s2Srggot"d reading on the question of business corporations and human ;ghsi Mic#d Addo, Haman Ngbts Srandards and tbe
fuEonibilig oJTranuational Corporationt $1te Hagug Kluver lav International, 1999); and Alan Dignam and David A.llen,
CoapanllawandthcHmaaWghttAdl99S(London,Butterworth,2000). .,: : ;. .:
53See Ian Brownlie,Principb ojPrbliclnknutionall-ap (Oxford, Clarendon Press,3d edn., 1979), p. 34.

20 Htnan Ngbtt itt thc Adaittittration ofJttstice: A Maruat on Hsnan Ngt)* lor Jildga, Protecrtors and Larlen
r" Aapur I . ktoriatioilal Ht!?,an ni!6y .yw aA *c fuh
i

of tk'I(gal-Pnfessions:
.'

A Qoneqal Intndttction

.} Secondly, according to the &talist {gory 5nunicipal l1w- and international laru are
different iegal systems. Municipal fuw is suPreme, anf for municipal iudges to be
competent to apply internatio:ral ueaty rule.s, for in,stance, thesghave tobe specifcalll
law. It foliolvs that hqman rights ueaty ratified by
,. . adopted or trantpowdinto domeitic I
the State concerned caflnot in principle be invokeci by local juflges unless the treaty
is incoqporated into municipal law, a process which nolmally requires an Act of
Parliament.

However, these theorigs have been criticized for_not qeflegting $e conduct of


national and international orgaps, and they are gradually losing ground, For legal
practitioners it is ther'efore more importaot to emphasize practice rather than theory.sa
Changes in the role and in.dpmqstic perception an{ understanding of international law
in geaeral, and of international hyry11righ-ts-law in particular,trave led to ao increased
use of such iaw in domesric courts. Ofie of the purposes of this lvlanual is therefore to
prepare ludges, prosecutors and layyers tq adapt and contribute to these fundamental
changes. The following is a list of some of the principal tmelns through which
international human rights norms can be contained in municipal larv or othervrise
app[edbydomesticcourtSandothercornPetentauthorities:
$- Constitutions: Many constirutions actually contain'nurnerous human rights
provisions, which may follow the text of, for instance, the Universal Declaration of
Human Rights, the International Covenant on Civil and Political Rights or the
regional homan rights conventions. The use of such cornmon language enables
' judges, prosecutors and lawyets to draw uPon the iurispmdence of, in paticular,
international colrts and:other monitoring organs in interpreting the meaning of
theit own constitutional or other provisions; . :

* Other ndtiondl legislation: Many States a.lopt specific l,-'gislation either to clarify
or elaborate on their constitutional provisions, or in otder to adapt therr domestic
lavrs to their intemational legal obligations.,When tlansfotmiog international law
into municipal law, the same legal tefms are often used,.thus allowing the iegal
professions to draw inspitation from inter:national jurisprudence or the
jurisprude4ce of other States;
$ Incorporation: It is also common for Stales to incpqpotate ipternational human
rights tteaties into their.domestic lllw. by enagting a national l4w. Thip is for instance
,.the case with the European Conventicn onlluman Rights in the United Kingdom,
where that Convention was incoqporated in,to British law by virtue of rhe Human
Nghts Act 1998,whtch entered into force on 2 October 2000;

* Automatic appligability:In some States treaties take ptecedence over domestic


law and are thns automatically applicabie in domestic courts as s.ggn as they have
been ratified by thg State concerne{
'
,

* Interpretati,on of comnon laus:.In interpreting common-law principles, iudges


, Eay be governed by international human rights law and inlgrnational iurisprudence
interpretingthatlaw; ,. i. . : :

T 54r\s co monism and dualism Fliggins sutcs that of"course, whichever view you uke, thcre is still the problem ofwhich
system prevails.when there is a clash between the two"; and that "in the real world thc answet oftcn depends upon,the tribunal
answering it (vhether it is a tribunal of international or dornestic lav) and upon.thq question asked"; in her viev different "coults
do address that problem differently", see Rosalyn Higgins) Pmbbns ad Pmcea: Intcnatiud Lan' and Hop lVc Urc b (Axfod,

x Clarendon Press, 1994), p, 205, '' '

x HmanMghts in the Adnin*trafiot ofJastin:A Maruul on HttmanNglttsforJadgu, Pmserutgn anti L-attlen 2l


Cbapter 1'
' I*national Htnan Rigltt Lau, and tbc Rolc of the l-cgal Pmfeaiont: A Gcncral Introdution

* 'Wben
tbere is a legal n;dcuam: In some counrries there may be an absence of
' national legislation with regard, inter alia, to human ughts; but,'depending on rhe
circumstances, judges and lawyersmay be able to rely on international human rights
law as well as relevant international case-law - or domestic case-law from other
' countries in order to apply
- some basic legal principles for the protecrion of the
humanperson. i i:
Numerous efforts have been made in recent years - both through the
: technical assistance programmes of the t{nited Nadons, and through various training
Programmes provided by regional'organizations such ai the Organization of American
States, the Council of Europe and the Orgarizaion for Security and Cooperarion in
F.urope - to help States adjust their laws to their international legal otiligations, and also
to uain the legal professions so as to enable them to make human rights a living reality
within their specific jurisdictions. Numerous independent human rights institutes and
non-govelnmental organizations $llGOs) also have extensive trainingprogrammes for

,S-to*i io1, niot inuo,ke tbqir i.ntemal kw to juttrjt uiobrtptns of


intqmationql law, bat.are free to choosq tb i, mo,dalities foi, intp knenting
thatkw.j..,,],::,,.,.-,,.,...,,,..,.,.,,,.-....,:],:

4.2 The application of international hurnan rights law


in domestic courts: some practical examples
.1 1

' A growing number of domestic courts in both common-law and civil-law


countries now regulady interPret and apply international human rights standards. The
following cases show how such standardt can influence decisions taken by domestic
coufts.
Gennatry:In a case involving an American pianist beionging to the Church of
Scientology and the Government of Baden-Wrirttemberg, the Adminisuative Cou.r:t of
Appeal of3aden-!fliirttemberg considered the grounds of appeal of the plaintiff in the
light not only of the Gerrnan Basic Law but also of article 9'of the European
Convention on Human fughts and articles 1B and 26 of the Ir:rernational Covenanr on
Civil and Politicai Rights.
,

Thecomplaintoriginatedinnegotiationsbetweenanagentactingonbehaifof
the Government and the pianist, regarding the latter's participation in a concert ro be :;

held in connecdon with the presentation to the public of the framework programrne for
the World Athletics ChampionshiprThe negodations were broken off when ir becrme
known that the pianist concerned was a member of the Church of Scientolo gy.In z
written reply to a question put by the Parlament of Baden-V'rirttemberg, the Ministry
of culrure and spott, acring in concertation with the Ministry of the Family, women,
Education and Art, expiained that the promgtion by theState of cultural events musr be
questioned when the Persons performing are active and self-avowed members,of the
Chulch of Scientology.gr other similar groups; for this reason they hadr,declined to,
engage the pianist as originally envisaged. The pianist argued that his right io freedom' '
a

22 ITmtan Ngbts in tfu Adninitration ofJwlie: A Mantta! on Hunan NgltfirJadgu, Pmaailors and l-tw1en
r Cbqtet I ' lnteraatiottal Hnaan Ngltts Law ad thc Bfu of tbe Legal PmJesioat: A Gancml Infiodlctiol

:
ot- teligion had been violated by the written reply from the Ministries.

r
However, tJre
Administrative Coutt of Appeal concluded that the protection afforded by article
9 of
the European Convention and'article 18 of the International Covenant hod not
been
infringed. As to the alleged violation of article 26 of the Internadonal Covenant,

r
the
Court likewise found that it had not been violated, since the ministerial reply did not
result in discriminatoy Eealment of the pianist on the basis of his b*.r,
oi*tigio*
co-nvictions, the reply being limited to the announcement of a specific procedureio
be

r followed in the future with regard to the allocation of grants made available
'organization of for
events by third persons/agents. For this rerson, and considering thai
the plaintiff in this case was not himseif a recipient of any grant, it v/as not necessary
the

to

r clarify whethet he ccjuld base himself inter alia on the prof,.tion afforded by
of the International Covenant, were an application ro, gr^-nt to b. ..;..t.d on the
an:cle2e
^

r New Zealancl;The 7
human dghts cases in New
of the most famous
unreasonable search of
the plaintiffs home which, it was claimed, violated ttre Ne* Zealand,Bill of
Rights Act

I 1990' In its decision, the Court of Appeal emphasized that the purposes of the
Rights were to
Bill of

r "affirm, protecg and promore human righs arrd fundamental flreedoms in


New Zealand and to affirm New Zearand's commitment
International covenaflt on civil and political fughts. From thcse puposes,
to rhe

r
. it was implicit that effective remedies should be available to any persofl
whose Biil of fughts guarantees were aleged to hav5 been .,iolrt.di.su

When there had "been an infringement of the rights of an innocent person,,,

I "monetary compensation was", in the view of the courg "zrrr appropri"t.


indeed the only effective, rmcdy".Sz As observed by rhe co"it, *-rrt ,.*",^*d

remedies for human rights violations", and reference was in this respect,
paop"r,
.onrirt*t
with a rights-centred approach to the Bill of Rights and international jurisprudence on
inter alia,
made to the judsprudence on remedies of both the Human Rights Committee
and the
: Inter-American Court of Human Rights.sa

I uni*d Kngdon: The most prominent case decided in recenL+urs_ia which


international human dghts law played;an important role.is the case
df'pirorhe,r\,f,i.f,,
was decided by the House of Lords on 24 March 1999,,and whichi?fimr#d
in a
. tequest that the Chilean Senabr - and former Head of the Chilear Sr"t.
--6-. l:<rl;d";
T from the United Kingdom to Spain to be tried for crimes'of tortr:re *a.or,rpir".f
torrure' hostage-taking arld conspiracy to take hostages, as well as conspiracy
tb
tJ commit

I murder - acts committed whiist he was still in power. The obligations to which
convention against Torrure and other cruel, Inhum* o, b"grrding
Punishment gave rise, were incorporated into United I{iagdomlaw
Treatment or
b/secticn 134 of
the criminalJustice Act 1988, which entered into force on 29 septembEr
the 19g4

19gg. The
;

r SSurtail vom 15' oktober


1996' Verwaltungsgerichtshof Baden-wfirttemberg,
altade26 of the International Covenant, ,"" p. i6.
56si,zpun t AttontE Ceneral (1994) 1 FIRNZ ar 4243.
10 s 176s/g6,in puticulr, pp. 11-16: es ro

t
s7Ibid., at 43,
58lbid., loc. cit.

n
Hmat Nglts itt tbe Adninistration ofJttrice: A Manual or Hrman NgbttflTJudga, prourutorc and Larycn
23
Chapter 1 , Intenational Haman Nghtr Lan, and tbe Roh of the L,egal Pro/esiont,2 Gmcral Introdtctiut ,.d
j

Convention against Torture as such-was ratified on B December 1988. By virtue of


these changes, torrure,'il/herever it takes place in the world, became a triable criminal
offence in the United I(ngdom. The question before the House of Lords on second
appeal turned on whether ,h.r. *.r. in the affirmarive,
any extraditable offences and,
whether Senator Pinochet was immune from uial for committing those crimes.se The
question of double criminaliry became an important issue, with a majoriry of the Lcrds
being of the view that Senator Pinochet could be extradited only on charges concerning
acts which were criminal in the United i(ngdom when tbg tookplace. A majority of the
law Lords concluded that State immunity in respect of tortute had been excluded by the
Convention against Torture, and that the offences of torfure and conspiracy to totture
committed after 8 December 1988 were exuaditable, with a minority of the House of
Lords hoiding that English courts had extraterritorial jurisdicdon as from29 Septernber
1988 when Section 134 of the CriminalJustice Act 1988 entered into force.

This decision allowed the United I{ngdom Home Secretary to go ahead with
tire proceedings relating to the relevant parts of the Spanish request for Senator
Pinochet's extradition. Flowevcr, on 2 March 2000, after medical experts had
concluded that the former Head of State of Chile was unfit to stand trial, the Home
Secretary decided .frrt n" would not be extratited to Spain buc was free to lcave Bricain.
In spite.of its final outcome, this case is a landmark in the,international law of hurnan
rights in that it confirmed the erosion of the notion of State irrrmunity for international
crimes as a result of the entry into force of the Convention against Torrure.
'Soat/.t
A"fica: The example of South Africa is significant in that, after the
collapse of the apartheid regime, it drafted a constitution whichwas heavily influenced
by international human rights standards and which contains, in its Chapter 2, a detailed
BilI of Rights, which includes a wide range of rights, such as the right to equalitv, the
right to freedom and securiry of the person, the freedorr^s of expression, assembi), and
association, po,litical rights, environrnental rights, the right to ProPerry, the right of
access to adequate housing, the right to health care services, sufficient food and v'ater,
social securiry, the rights of the child, the right to basic education, the right of access to
coufts and the rights ofarrested, detained and accused Petsons.

Iitematiopg|;;brnaa rig[ti lgtv:bas bad q,,,corcideral/e intpact on tlte


'deielipiiiiit of lgw at tbie do;nqtic !et1e/ and b now j"lquent| inwked

ao_
5vSee delirudon of quesdon by Lord Brou'n Wilkinson, Houe aJ Lnrd4 Jrdgnutl ol 24 Marcb 1 999 -
Rqina u. Bartle and tbc
Coatni.riowr oJPoliccJor the Metropolk attd Otbcrs E>: Partc Pimchet; R4itta v. Etau and Arothr and the Connirioncr oJPotafor thc
Merropolis and OtbenEx Parte Pinochx (an Appal fnn a Diritionol Coni of the Qrwn\ Benclt Ditision); th.is Judgment is found on the
following web site: http://wv'wpub.lications.Parliament.uk.

z+ Hatnan Ngltts h tbe Adainittration ofJutice: A Maanal oa Hrnan Nghrslor J*tgO Pmncators and Lztgert
r :.
Cbaphr I . Irtcmatiottal Htman.Ngbtt Law ad the fub of the Lzgal PnJmiottt: A Gcileral lfltrad$ctiol

x
r The Role of the Legal Professions
in the Implementation of Human
x Righu
As a consequence of legal developrnents over the last few decades, human

x rights have ceased to be a "fringe activity", instead becoming o'an area of la,w which is
fundamental to everyone and which permeates all legal activity, econornic and social, in
public .law and in.private".60 In a-particularly interesting recent development, the

x "pervasive importance of human rights law" to corporations and business lawyers has
also been recognized.6l Yet, whilst the influence of international human rights law on
many dimensions of domestic law is thus steadily gaining ground, its true potential still
remains to be explored.62
* It is the professional role and duty of judges, prosecutors and lawyers
throughout the wodd to explore this potentiai, and at all times to use thek respective

f, comPetences to ensure rhat a just rwle of lAat prevails, including respect for the rights
of the individual. 1il7hilst this entire Manual focuses on providing knov,ledge and
guidance to the legai ptofessions in their daily work, Chapter 4 will focus on the specific
rules and principles conditioning the work of judges, prosecutols and lawyers. These
; rules and principles have to be consistendy and meticulously applied, since judges,
prosecutors and lawyers perhaps have the single most imporrant role to play in applying
national and international human rights law. Thbir work.constitutes the chief pillar of
ffi the effective legal protection of human rights, without wnicf, the noble principles

j aimed at protecting the individual against tire abuse of power ar-e likely to be sapped of
much ot evcn all of their siglificance.

x Concluding Remarks
The present chapter has provided a synopsis of the modern development of
: the international protection of the human person, which originated in a devastated

I world's yearning for pedceful, secure and just domestic and intemational legal orders.
Futther, it has expiained some of the basic legal notions relevant to intemational human
rights law and offered a description, however general, of the role to be played by the
legal professions within their respective fields of competence in ordir to be able

T effectively to use the legal tools available to protect the human person against abuses of
Power. We shall now tutn to a succinct examinatiqn of the terms and funcrioning of the
major existing universal and regional human rights conventions.

x
60See ed.itodal of Lord Goldsmith QC and Nicholas R. Cowdery QC, "The Role of the Lawyer in Fluman Rights,,, in
- Hflf
Ncws (Ilewrhtter of thc IBA Hwan Nghts lrcfitln),vol. 4, No. 2,1999,p.1.
61Ibid.,lo.. cit See also Nicholas R. Cowdery QC, "Fluman Righrs in Commetciai Pracdce
- an IBA Perspecrivc,,, ibiC., pp.
16-18, and Stephen Bottornley, "Corporarions and Human Rights,'jbid., pp.lg-22,

x 62Sce reference
to speech of Justice Iftby, ibid., p. 10.

x Hman Ngbtt in tltc Adniniilration ofJuttice: A Manaal on Hanan NgbtforJrulgu, Protuators ard Lotgen 25
Chopter t Basic Outline of lnternational Human Rights Law

I chapter 3 outtine of Internationai Human Rights


Pruic
I Law

I
I
t
t
I
I 31
Humon Rights and Refugee Protection, Self-study Module 5,Volume t

3.1 Concept and development of international human


rights law r, r .

Human rights are commonly understood as those rights to which a


person is inherently entitled merely.for being human. Human rights ,

may not be.renounced or forfeited- \fhile some national consritutions


stipulate that certain basic human and political riglrts may be iorfeited
under pardcularly grave 5:ircumstances, provided that certain procedures
are followed, and while the 1951 Convention establishes in its exclusion
clauses (Article lF) that certain'individuals are not deserving of
internationd protection as a refugees,.thg. idea,that basic human rights I
may be forfeited is alien to exiqprng,international human rights law.
Because of the inalienable nature of human.rights, an individrel is
unable to waive any human right; but he/she may waive the exercise of a
particular right in a certain situation. For example, when applying for
funds to support his/her return under a stranded migrant programme, a.' ,

rejected asylum-seeker may sign a waiver indicating his desire not ro


appeal the refugee'status determihation'decision. At thg sSme rirne,'.',, ;

ho*.r.., he/she may not waive his/her right to be protected againsrl' :

refoulernent, which derives from international refugee and human rights '
Iaw.

3.1.1Historicalantecedents,,...,.:^
The origins of human righ.ts may be found both in Greek philbsophy
and the various world religions. larer, several charters rhat codified
human righm and freedoms, particularly Magna Carta Liberutum
the
(121il and the Englisfr. B// of Nghts (1689), made significanr sreps
toward establishing a singular body of norms. Vhile these documents
specified rights, they did not contain an all-embracing philosophical
concept of individual liberry. Freedoms were often seen as righrs
conferred upon individuals or groups by vircue of their rank or s,.arus.

It in the 1B'h cenrury, when the


was during the Age of Enlightenmenr,
concepc of human rights emerged as a specific caregory. The ideas of
Hugo Grotius (1583-1545), Samuel von Pufendo$ (1632-1694), John
Locke (1632-1704), and Jean-Jacques Rousseau (1712-1778), among
others, helped to develop the philosophical underpinnings of the
modern idea of human rights.

The phiiosophical developments made prior to the 1Bm century led to


the adoption of ground-breaking declaradons of righrs thar included
fundamenal rights inherent to all human beings, regardless of their
social or economic sratus. Thus, the American Deckration of
Independence (1776) was based on the assumprion that all human beings
are equal, and referred ro certain inalienable rights, such as the righi to
life, liberty, and rhe pursuir of happiness. These ideas were also reflecred
in the United States' Bilfof Rights, which was promulgated by the State

32
T
cha(9: Basic Outline of tnternoilonal
? Humon RighgsLaw

I of vrginia in the sarne year. The


',,first time,in term human rights appeared
for rhe
drelFrench bhkration des Droits
a, iUr**l;;;;;;_;;
(1789). Both the American'and
T the r*"J o.i;;:;";:re
inrended
" ro be systematic enurneradgn, of there rights., , .

The ffrst internadonal


-."ru.., to .prorect human righr were
I established during the r9'h,
,h. d""^1rrade, the
ienrury*,rr, ,r* ."rir;;;;"iies to ban
.evotutig*
woqk.of Swiss phf,langhropirt "f'h";*i;;il
*,";J"rn"! rr"* ,r,.
I the adoprion inrernational
9f
U.r,ry Oqnant (see v"i. f i6lp"rer
agreements ro prorect minorities.
Z), and

3'1'2 The charter of the united


Nations
internationathumanrighi;iirt'r;lnn,and subsequent .

The
leaV thar _qitpblish:d, m_. League of Nations in t92a _ rhe
organization rhat preceded the unitei N"tiorr,
provisions dealing -th hu*"r'r.ightrli
- .o.r,"irr.i ,r-o g.n.r"t
Nations, adopted after trre .rp.ii.,
*", rhe Charter of rhe united
of the second \Morld -!'ar, that
took the decisive srep toward i?rternationar
' (For adetailed or"".i* ;;n-,J" righm.
on the Uri"j N"rions, iee Chapter
".rrlyri. 5).
The Preamble of th1 Charter
of the Ur,ir.a *"rrr"rlfirOr, ,*r*,
"faith in fundamentar hum.an
rights, in the digniry and worrh
human person, in rhe equal ,igh; of rhe
and women, and of nations
large and small". It arso
rp.rto"or,h.";;:n
J.,.r-ir"tion ,.to promore social
ProBress and bemer smndards of life in larger-freedom.,,^
Arricle 1(3) of rhe charrer, one According ro
of rhe f,rfor., of the uN is ro promote
-,and encourage ,,respecr
fo, hu-"n
for all wirhouq distinction as ro,race,
,i;il'i;; ;; il",J:"irf..o"_.
,?;l;"g*ge, or religion,,,
tuticles 13(1Xb), 55(c),.G2(t),68,
and Z6(c) of the Ci,rrL, also
contain
references to human
i,r*h:r,
conjuncrion' united Nations
A:g:rdi; ;.-;;.il^ilfi ;";'r.ra i'
Me*b"i sr"t., have a legar obligation ,,ro
tlke joint and separare acrion ,"."-p.*u"n
t,e achievement of .,. lvith rhe organization for
,.rp.., for, and observance o{ human
rights and fundamental.unjyersal
freedoms for r, *ithout distinction
sex,Iangu3ge,o.,.1igio.'.,..,.-.-.'' as ro race,

The idea of promulgating an.,,Inrernarional


Bill of Righcs,, was
immediater/afr.r-the;rp,;;;; the
developed
theadopdon of the universar
uN charrer and led to
Decrarat*;i**ran fughts (uDHR)
1948. Although not , in
was adopted by a resolution
:r.r_?__-1, of the UN
9r:*'Assembryr- *re tiouR i, ,lr.'."rtr.st
r.ighm instrument adopted
comprehensive hurnan
by the in,.rrr",iorr.t communiry.
on thi same day thar it
adopted dre uDHR, the General Assembry
asked rhe UN Commis;1on
Rigt,, ro prepare, as a matter of
prioriry, a legalry binding 3n-H1*rn
human ;;;;":""r.ntion. Because
divisive dimate of the of the
Cold'War .ir" time, there w;;;
", ;.;_.".

33
'i
Human Rights and Refugee Protection, Self-study Module 5,Volume I

'i -.:: i' t


l' ' ..,1,, i'
"
among States on, E,single.binding human rights insuument
1dopgi11g
that encompas;e{ all h.umq1.righgs: civil, po}tjcal, economic, social, and
cultural; so eighteen years later, in 1166,,nvg, distinct instruments were
adopted: the International Coaenant on Economic, Social and Cubural
Righ* (ICESCR) and rhe International Couenant on Ciuil and Political
Rights QCCPR). A Fint Optioi4.t 'Protocol to the ICCPR, which
established an individuil complaints'piocedure, was also adopted. it
took a full decide b.ior..Uo.li' Cou.rr*tb'and the Opdonal P.otocol
finally entered into force ii"1976.''A Secoiid'Optional Protocol to the
ICCPR ory the abolition of the death penalry was adopted in 1989 and
entered into force two years larer. The UDHR" the rwo Covenants, and
the two Optional Protocols are collecdvely referred ro as the
"fnternationdl Bilt of Human'Righx". ' '

Since 1948, a series of other human rights trearies addressing specific


human rights issues have lgen adopt.i ar the, United N"tiJru level.
Organizations in Europe,. the Americas, aud Africa have also elaborated
on and expanded thg,human rights legal framework at the regional level
(see Vol. I, Chapters 6,7, and 8).
\7hile it is commonly understgod and has been explicitly expressed by
the UN High Commissioner on Human fughm, Mr. Louise Arbour,
that the gfforts o{ UN human rights machinery should refocus from
standard-setting to implementation of human. rights, standard-setting
.

processes havenot come to a conclusion. It is the ever-changing realities


and the technical progress which require the on-going developmenr of
norms, both at the_national and inrernational,level, and in the sphere of
human rights law. A recerlt example is the Intemational Conuention for
tbe Protection of All Personsfrom Enforced Disappearancer adopted in the
2006 Session of the Human Rig\r, Council,:which was iniriated in
reaction to'the dlamadc e*peri.nces in''a number of Latin-American
countries. Other examples of ongoing normative. efforts are the work on
the draft International Conuentiin on the Protection arud Promotion of the
Rights and Dignity iTfroonl with Disabiliries as'well as on an Optional
Protocol to the International Couenant on Economic, Socidl and Culm.ral
Rights

3.2 Reservations tg Iqman rights treaties


A reservadon is a sratement made by a State through which it purports
to cxclutle or xhel the legalelltct olcertdn pruvlsltlm ulrr ttddl/ {s dle/
apply to thar state. In assessing the exact extenr of a srate's legal
obligations under a huq,rap righrs rreary, it is necessary to ascertain
whether rhe state madi a reservation.when it ratiffed or acceded to the
ueary and whether ghe State hqg subsequently maintained the
reservadon.

34
ChoCtSr 3 Basl Outline of lnternattonat Hunon
l!1ilts Law

The major human rights treaties allow for reservadons to be made,


although they have somewhat different ways of reguladng rhe subject.
According to Article 19 of the vienna convention on the Law of
Treaties, when signing, ratifying, accepting, approving or acceding to a
treaty, states may formularc a reservadon unless the reservarion 'is
prohibited by the reary or the reservation is incompatible wirh the
object and purpose qf the ffeary. (See Vol. I, Chapter 1).

The conuention on the Elimination ofAll Forms of Dis*irnination cgainst


women (GEDAW) expressly includes a. provision stating "a reseryation
incompadble. with the object and purpose of the convention shall not

I be permitred" (Article 2812)). The Human fughrs Committee, set up ro


supervise the implementation of the Intemational Couenant on Ciuil and
Pollticat Rights (iccpR) addressed rhe issue of reservadons in irs General
comment No. 24.'sometimes,'reservations "of a general character" are
prohibited by human rights instrurnents (e.g., futicle 57lLl of the
European Convention for the Protecdon of Human fughts and

I Fundamental Freedoms. TECHR]). .However, the effects of invalid


reservarions ro human rights tftaties and of objecrions to reservarions are
t.
subject to condnuing debare in inrernarional law.

I
I 3.3 Restrictlons or limitations on human rights u-/-
t,ghts 'insrruments
I various internadonal humrrr: contain explicit
-provisions allowing for restrictions or limitarions on the exercise of
certain rights, such as rhe right to freedom of expression, rhe right to

I assembln the right to freedom of movemenr, and the right ro ..rp."r fo,
one's private and family life. These limitations can be imposed, for
instance, in order ro prorecr rhe righrs and freedoms of orhers, for

I national securiry, and to protecr public health or morals. Even when no


explicir limitations are formulated, the compedtion among different
rights and different rights-holders musr be considered arrJ carefully
I In order tobe lawful,' acrs limiting the exercise of human rights must

I comply with certain minimum?sqairemmts. They must be:


. Defined by hw; ,i
'i
,, j

' Imposed for one or more specific hgitimate parposes, i.e. objectives
T which are consisrent with the letter and spirit of the inrernational
human rights framework and should be jusdfied by the protecdon of
a strictly limited set of well-defined public interests, which usually
T includes on or more of the following grounds: national securiry,

x
35

T
Humon Rights and Refugee'Protection, Self-study Module 5, Volume I

public safery, public order (ordre public), the protection of health or


morals, and the protection of the rights and freedoms of others;

. Suiuble and necessarlt i.e. there must be a rational connection


between the measure'taken and the objective pursued. The measure
musr be capable to achieve the set objective, and there m,JSt be a
pressing social need to take such measure to be assessed on a case-by-
casebasis; ., ;

. Tbe hast innusiue measure to effecrively achieve the legitimate

. Propot'tional, i.e. the public interest or. gJre rights of others to be


protected by the intrusive measure must outweigh the harm to the
individual affected by the measure; ..

. Interpreted stTictb in the light and conrext oF the particular right,


without jeopardizing the essence of the right concerned.
The burden falls upon States to'prove thar a limitation imposed upon
the enjoyment of ihe rights is legitimate. This is, of course, a heavy
burden of proof but it is consistent with the"object and purpose oF
human rights treaties, rytrich is to protect the igdividual. There are a few
rights, however, which cannot be limited, s,,ch as freedom from torture
and slavery. Gor the limitation provisions of some relevant human
rights, see Vol. II.)

3.4 Derogations tlom internatiory! legal obligations


Many national constitutions allow for,-the.temporary suspension of
certain constitutionally-guaranteed iights and the imposition of martial
law or emergency rule in certain circumstances, such as war. Similarly,
some human righs insurlments allow States to derogate, temporarily,
from some of their obligations.
Derogating measures must be of an exceptional and temporary nature.
There are derogadon clauses in, among other instruments, the ICCPR
(Article 4), the European Convention for the Prorection of Human
Rights and. Fundamental Freedoms (Article 15), ani the American
Convention on Human Rights (futicle 27). Some human rights
instruments, such as the,Convention on the Right of the Chiid (CRC),
the ICESCR, and the African Charrer on Hui.nan and Peoples' Righm
(ACHPR), do not contain any derogation clause.
't l

36,
x Chapter j Eosic Outline of lnternatianal Human Rights Law

: Derogations from human rights obligations

; "ltn.
lrng of public emergency
which lhreatens the life of the
,nation and the existenee of
which is officially proclairned'

r
:

T
;

T
T
I an)z

1ffhen derogation measures are allowed, they are


; subject to strict formal
as:' '
:

and substantive requirements, such

.
T There must be a war or genual state of public tmergency v,,hich
threatens'theilife of th,,ition" (See'futicle 4[1]l of the ICCp&
. An. z7lLl of theAcll of rhe ECHR).
,rld,anflg']5
; . The state of emergengy mus! b9 fficially ;rrockimed. For example,
Anfcle 4(3) of the ICCPR requires.that any,state availing itself of
the right of derogation.musr iimmediarcly inform the other Srates
; Parties to the prqfnt C@enant, through rh-e intermediary of the
Secremry-General,of the Unitid Narions, of the provisions irom
'reason$
T which it has derogater.l'and'of the by whichit was actuated.
A fi-rrrher communjcation shall be made, rhrough the sarne
intermediary, on the drre on whi.ch ir terminaies such ierogatio";

T
I 37
Human Rights and Refugee Protection, Self-study Module 5,Volume I

. Measures must comply with'the pirincip,h of pro7ortionality, they


' may not go beyond what is strictly lequired by.h. situationi

. Measures may not be inconsistmt uith otber obligations under


international law; and
. Measures must not be discritninatory.

A State availing itself of the right of derogation must immediately


provide justification for its decision to proclaim a state of emergency,
and also for any specific measure based on such a proclamation. For
derogations under the 1951 Convention, see Article f,i

3.5 Non-derogable rights '

Several human rights instruments establish a list of "non-derogable"


rights, that is rights from which a State may not in any circurnstances
derogate. These include the ICCPR (Article 4[2]), the ECHR (Artide
r5l2)), and the ACHR (tuticle 27t2)).
The list of non-derogable rights generally includes, at a minimtrm, the
right ro life, freedom from slavery, torture, and iinprisonment for debt,
the principle of legaliry in dre field of criminal law, freedom of rhought,
conscience, and religion, and the right to juridical personaliry. The lists
of non-derogable righm found in human rights treaties are not
exhausdve. That means that one cannot arguei d. contrd.rio, that, because
a righc is not expressly listed as non-derogable, States Parties can proceed
to exrraordinary limitations on its. enjoyment.

The Human fughts Committee, in its General Comment 29 (20C1) sets


out in detail the conditions that must be met in order to derogate from
the rights conuined in the ICCPR and refers at length to those righa
which are non-derogable. The Committee esrablished that thc rights
contained in Article 4(2) of the ICCPR are not the only non-derogable
righm; ilrere are elements pf other rights nor li.sted in Article 4(2) that
cannot be subject to lawful derogation. -

In its Advisory Opinion,ol, Habeas Cprpus in Emergency Situations,


the Inter-American Court of .Human fughts noted that the rights
protected by the ACHR cannot, per se, be suspended even in emergency
situations, because they are "inherent to man."..Thus it noted thar "what
may only be suspended or limited" under the Convention is the "full
and effective exercise?'of the iights'contained therein (see the Advisory
Opinion OC-8/87 of January 30,'l9B/:) '' ' :

In general, under human rights instruments, the prohibition of ronure


and other forms of ill-treatment are non-derogable rights. In case of
"*h.r,
torture, this entails related ,in,-rrfoolrment. oblr:gatio.r, there is a
real risk oF torture. There is currently no gtobal consensus on the
question of obligations to non-refoukment in cases of risk of cruel,

38
ffi Chaptet 3 Basic Autfine of lnternotional Human Rights Law

ffi inhuman or degrading treatment or punishment, that is, when the


treatment feared fails below'the threshold of torture. In European

x contexrs, however, such an obligition is'accepted.

x
n
:

x a:ii:l{-1

3.5 Denunclation

r .i
Denunciation is rhe withdr4wal from a yga,ry by a State
Generally, this may take place in accoriance with-a specific provision of
Parry.

t
the reaty. The 1951 Convention Relating to the Status of Refugees, for
example, foresees in its Artide 44 that "[aJny Contracting State nzay
denounce this Conuention g.t ary ti.mq,by a notificarton addressed to the
Secretary-General of the United. Natiozs. "It also clarifies the conseque nces

I by stipuladng\y "[s]uch dentnciation shall ruke


State concemed one year from ihe dan upon whicll
Secretary-Gmeral of the United Nytion!
i
ffiafo, the Contracting
it is receiaed fu, the

x
,

Some human righrs instrurnen-ts, including theICCPR the ICESCR,


and CEDAV, do not permit denunciation by a State Parry. Other

r human rights treaties, such as..the CRC, Convention against Torrure


and Other Cruel Inhuman or Degrading Treatment of Punishment
(CAT), and the Convention on the Elimination of Racial
Discriminadon (CERD), allow for denunciation.
T ' .1' '
3.7 Savings Glauses a1d interpretaticn provisions
.

I According to human rights and refirgee-law, in the event of a dispariry


berween rwo or more standards,:.ghs rnore generous provision is to be
applied (see, for exarnple, A-rticle 5,of the'ICCP& Article 5 of the

T ICESCR, futicle 29 of the ACHR, and Ardcle 41 of the CRC).

t
Anicle 5(2) of the ICCPR sates, "There'shall be no resuiction upon or
derogation from any of the fundamental human rights recognized or
existing in any State Parry to the present Covenant pursuanr ro law,

t conventions, regulatiols or drstom bn. the pretext rhar the present


Covenant does not recognize such righrs'or thar it recognizes them ro a
lesser extent." Likewise,iccording ro Article 5 of the l9]1 Convenrion,

t "Norhing in this Conventicn shall be'deemed ro impair any rights and

39

x
Human Rights ond Refugee Protection, Self-study Module 5, Volume I

benefits granted ,by,. a Cottracting Stage to refugees apart from this


Convention." Thuq, wten States are parties to the 1951 Convention and
its Protocol and to human righm insruments, the rights most favourable
to individuals
lust
prevail.
,,
, ,, , ,

In explaining the meaning of the provisions of a human rights treary, it


is essential for authorities and UNHCR to adopt a teleohgical and
systematic approiach by searching for an interpretation that respects the
rights and interests of the individuai and is also logical in the context of
th. t.."ry as a whole. ' .
.:

3.8 Types of State duties imposed by internetional


human rights norms
The States' duties imposed by human righs norms are commonly
referred to as a "tripartite typolog;r" (or three-fold classificalion) of
obligations: to 7espect, protect anil fuhfiL. Eich human right generally
impos"s all three rypes of obligation. A State will be held responsibie for
,roi .o*plying with any of theie obligations established in a ueary
binding on the State or in5any other source of law,

3.8.1 Obligation to Respect


This level of obligation requires the State, including all its organs and
agents, to refrain f19m anl measure that may ingerfere with or impair an
individual's enjoyment of his/hqr rights or the abiliry to sadsry those
rights by their own efforts. It entails "negatiye" obligations, such as the
prohibition: .to return or exuadite an individual when 'there are
substantial grounds for believing that he/she would be in danger of
being subject to torture'(see futicle 3 oFthe CAT and Article 7 of the
ICCPR). (For further analysis, see Vol. II.) :

3.B.2 Obligation to Protect , ; -

This level of obligation requires the State, including all its organs and
agents, to take all necessaqy measures to ensure that individuals ur-rder its
jurisdiction are protected from infringements of their rights by third
parties. The obligation'to protect is normally taken to be a central
function of States, which have to prevent irreparable harm froin being
inflicted upon members of sociery. This requires that States: prevent
violations of lights by *ry individual or non-State actor; avoid and
eliminate incentives to violate rights by third par.ties; and provicie access
to legal remedies when violations have o..,rrr.d, in order to prevent
further violations. In pracdce; this level of obligation requires the State
,o trk. measures to'prevent human rights violations, such as, for
example, pgularly monitoring priro.rr] providing education and
training, and assessing dre competence of gcvernment officials wiro serve
in rights-sensitive areas, such as law enforcement or health services.

qU
'!

T Chapter 3 EosicOutline of lnternotional Human Rights Law

T Thus, a state may be responsible for nor having taken reasonable action
to prevent private individuals or groups frortr carrying out acrs that
violate human rights or to provide adequate protection against such
: '

r
violations under domestic law. For example, if a girl has undergone
female genital rnutilarion (see Vol. II, Chaprer Zj, a boy has been
recruited inro a guerrilla group (see Vol. II, Chapter 3), or a woman has
sufFered from domestic violence Gee vol. Ii, chapter 2) and the state is
aware or should have been aware of these events. and is unabLe or
T unwilling ro provide prorecrion against such harm, the Srate may be
held responsible for violating its dury ro prorecr these individuals.

I 3.8.3 Obligation to Fulfil


This level of obligation requires the state, inciuding all its organs and

T agents, to take all positive rneasures to ensure that individuals unier its
jurisdiction enjoy the righrs recognized in human righm instruments.

I
Although this is the key stare obligarion in reladon to economic, social,
and culrural rights, the. dury to fulfil also arises with respefi to civil and
political rights. Erlforcing the prohibition of torture (which requires, For

r example, police training and prevendve measures), t!.re righr to a fai; rrial
(which requires invesrmenrs in courts and juciges), the right of free and
fair elecdons, or rhe righr to legal assistance, entails considerable cosr.

I ' This level of obligation implies that when an individual cannor secure
his/her econornic, social, and cultural rights -(such as the righc to
adequate food or dre right to adequate housing), through his/her own
efforts, a state Parry to the major human rights treacies, such as the
; ICESCR or the cRC, musr provide material assistance. This would
apply to cases involving, for example, unaccompanied children or

I asylum-seekers in detenrion ce-nres.

A state will only be held responsible for a human rights violation in the

r internarional arena if ir has failed to provide the alleged victim with an


a-dequate and effective remedy through its own courts or administiative
authorities. The international prorecrion of human rights is "subsidiary',

I y'./
to th9 available nadonal or domestic mechanisms.
a'-

3,9 State responsibilityfor human riEhts violations

r A state is considered ro have perpetrated an internationally wrongf'll act


when its conduct consists of an action or omission that is artributable ro

I the State under internationd law, and rhat constitutes a breach of the
Statet international obligations (futicie Z). According ro, rhe
International l,aw commission's 2001 Draft Articles on srate

I Responsibiliry, a state is responsible, in the incernational arena, for every


internationally wrongful ac it perpetrates (Article 1).

, All branches of rhe state (executive, legislaiive, and judicial), at the

I nadonal, regional or Iocal level, are responsible for meeting the

41
:
Humon Rights and Refugee Protection, Self-study Module 5,Volume I

obligations of the treatie; ,o *hi.h' the Sla1e is a .party. Historically,


Statfs h"rre assumed reslonsibiliry for human rights violations only
when State agents .91 officiais werl tlre PerPetrators' However, it is now
accepted that State's are responsible fo1 some acts PerPetrated by private
p.rrot, or entides when they, for example, act at the instigation or with
the consent or acquiescence of rhe Srate (A.r-ticle 1 of the CAT) or when
the State fails to irk measure, o, to exercise due <iiligence
"ppropriate
to prevent, investigate, punish,or redress the harm caused by such acts,
,,.,.h when domestic violence is'condoned. (For more details, see the
",
Human Rrghts Commimee General Comment No. 31, paragraph 8)'
stares musr comply with their human rights obligations in regard to all
individuals on their territories or under their jurisdiction, regardless of
nationaliry, including arylum-seekers, refugees,,stateless persons, migrant
workers, and other persons who may find themselves in the territory.or
otherwise subject to the jurisdiction of the. Sate concerned.

The concepr of "jurisdiction" is nor restricted to the national territory of


the State. It includes all territories over which the State exercises control,
even de facto control. This means that a'State Parry must respect and
ensure the rights enumerared in the human rights treaties to which it is
parry ro anyone within the power or effective control of that State, even
if thar individual is nbt siruared within the territory of the state Parry.
According to the Human Rights Committee Gqneral Comment No. 31,
this principle also applies ro rhose within dre power or effective control
of the forces of a State Parry acting outside its territory, regardless of the
circumstances in which such power or effective control was obtained.
This would include forces constituting a Sute's continBent assigned to
an international peace-keeping or peace-enforcement operation.

In addidol, states can be held accountable for human rights violations


that its agenrs commir on the rerritory of another State, either with or
without the acquiescgnce of the government of that State (see, for
example, the Human Righa Committee's Lopez Burgos u. Uruguay and
the European Court of Human fugh-tq' ,Cyprus u. Turhey). States are also
responsible for the actions committed by their diplomatic representatives
abroad (see, for eximple, the Human fughts Committee's Pereira
Montero u. Uruguafl.

These norms. of State responsibility shouid be referred to when


considering transportation carier,liabiliry, interceptions, and related
issues. For a practical application of these notms to refi-rgee Plotection,
see UNHCR s amicus submission in the ERRC case before the UK
House of Lords, available on UNHCRs web page (see above).

\7hile human rights instruments of States towards


stress the obligations
individuals as rights-holders, ,every State has a legal interest in every
other State's adherence to. its'human rights obligations. As srated in

42
..t'

T
I
Chapter 3 Easic Outlini of lnternotional Humon Rights Law

General comment 31 of the Human fughrs committee, this.foilows

I from the fact that the "rules concerning the basic rights of the human
person" are erga omnes obligations, and rhere is a uN chaner obligadon
to promore universal respecr for, and observance of, human rights and

r firndamenral freedoms.

I
I
I
I
I
I
I
I
I
I
I
I
T

43
Chapter 4 lmplementation of lnternotional Humon Rights Law at the Nationd Level

cha*ter 4 #fJ;iffi':fiil- -"J,'J*i[1:i"r


Hurtan

45
a

..
Humon Rights and Refugee Protection, Self-study Module 5,Volume t

\Zhile it is important to develop internationai standards of human righrg.'


that protect .refu$ees and asylum-seekers, 'rh.!.,:rights must also bg .,,
upheld through y'omestic legal systems. Thqrgfore, international human .
rights standards ' (see Vol. 'II) 'qhould be- incorporate4. into national l
'. - -r
Constitutionsandlegislation.
. . : '' ,''
Parliamentarians, judgei, pror.*,ori li,fr|rs,i"*ori others, have a
"rrd
crucial role to play in ensuring that human rights are effectively
implemented at the'narional .level. They should therefore farniliarize
themselves with both' national and internarional liuman rights law.
UNHCR staff and civil sociery .pamners can help ro promore ,h.
incorporation of international srandards inro:domestic legislation as .far' t:.'
as relating to refugees, stateless an{-other persons of concern. To this .:'
end, UNHCR proteptiop.ptaffand pariners sho,uld be familiar ryith both .
international hirman riglits,.,-standards and wi{.r,key;,national humar'
righrs norms in the country_concerned, including the fundamental rights
'in the Constirurion or Bill of Rights, rhe main legislative provisions, rh.,,,'
regional and universal human rights treaties ratified by the stare, and . .-.
relevant rules 9f ggslgmary internadonal law, ' . ,' . .,, , ,, , .r, ..
,l
4.1 lncorporating international human rights standards
into the domestic legql system . -:*',,:
Most srares have included provisions in their-domesdc legislation; thar
are related to rhe protecdon of human rights, often in theirionstirurions
or bills of righrs. Suqh norms may be-applied when arguing for the
protection of reftigees,,asylum-seekers and other. pirsons of .on.ern
to ;

'
UNHCR, particularly when those rights extend not only to citizens, but ,
to "everybody." under certain conditions, international human rights
norms can be directly applied and referred to in nadonj conrexrs.
Generally, internarional rrearies do not stipulate how states should
implement human rights standards ar the national level, aliowing each
state to decide how irs obligations will be met. There is a great variery of
domestic methods for.implementing iniernarional human rights
instrumenrs. scholars have classified rhese methods into adoption,
incorporation, transformation, passiue transfonnation, and reference. States
may apply more than one of these methods. In very broad terms, rwo
systems can be idendfied: monism and dualism. In some srates, rreary
provisions are automatically incorporated into domestic law once they
have been ratified and published in the official gazerte. France, lvlexico,
and the Netherlands, for exampie, work this way. other states,
including the united Kingdom, other commonwealth counrries, and
Scandinavian counrries, require the express legislative enacrment of
treary provisions before they become domesdc law.

since domestic iegal sysrems difFer considerably in this respect, each staff
member should inform himself/herself about the way the state

46
a

T at the National Level


Chopter 4 lmplementotion of tnternotional Human RiOhy
.Low

T concerned incorporates its international legal obligations into national


law, Regardiess of the method that the State has'chosen, however, " [A]
paffy may not invoke the provisions of its internal law as justification for
T its failure perform atreety" (Anicle 27 of the Vienna Convention on
1o
the Law of Treaties). In other words, States should modify their
I domestic legal order as necessary in order to give effect to their treary
obligations. If there is any conflict in the legislarion, predominance
should always be given to rhe obligations arising from a human rights
: treaty.. .
The adoption' of national refugee legislation that is based on
international sm4dards is thus crucial for suengthening asylum, making
T protection more effective, and providing a basis for seeking solutions to
the plight of refugees. In some countties, there may be an absence of
national legisladon that specifically protects the human rights of refugees
T and asylum-seekers.'In these: cases, UNHCR staff and counterParts
should investigate che . availabiliry ' of any domestic' including
constitutional norms which may serve,the.'protecdon of persons of
T concern and should promote the adoption of legisladon for protecting
refugees that takes into account internadonal standards.

T Incorporating international human righa law into national legislation is


particularly important in areas on which the 1951 Convention is silent,

I such as procedures for determining refugee status, and in areas in which


human rights instruments provide broader protec'tion, such as the right
to education or dre absolute prohibition of refoubment (see Val. II,
Chapters 9 and 19).
C
4.2 The protection of international human rights
standards by the judiciarY
T
The effect of applying international human rights standards cannot be
assessed in the abstract, only on the basis of the constitution and

f legislation of a given country.


domestic courts and other
'What

iegal
is crucial is whether or not and how
operators apply human rights norms in
their decisions and day-to-day work.
I If international standards are incorporated into national legislation, it is
'W'hen
easier for domestic courts and legal operators tQ apply them.
international human rights treaties have not been formally incorporated
I into domestic law, national courts can. and should use internadonal
human rights standards as guidance in interpreting national law, and
thereby achieve a human righcs-conform application of t}e domestic
t norms. In other words! national courts and legal oPerators may refer to
international and regional human rights norms when interpreting and
t developing nadonal law, and they may also use international human
rights iaw as the minimurn standard of protection that national law
i should attain. Thus, judges play an important role in refugee protec:ion,
t

47

I
Human Righl: and Refugee Protection, Self-study Module 5,Volume t

although,th"y sometir{res may +pt. h,,9, ,qufficiendy familiar with


international standards. .;
:

4:3 Promoting,lgman,rightr standar{s at the domestic


level
I rt
The domestic implemeniition of human rights norms requires a joint
and coordinated, effort by all branches of the,govrnmert (judiciary,
legislative, and executive). Training and education in human righm is
therefore visl for the effective implementation of human rights at the
.--_--,---_

I'JtrI[:i;#:l;:ffi*il:':il:ii::r::'-il,::ffi :-;*
can have a positive ,impacl o,n prgtecting individuals from being
returned to countries where they qi1,be at risk of torture.

Training efforts alone will, however, hardly be sufficiently effective if

' political will, on the abiliry to explain how human rights ranslate into
. concrete action (or abstention fromraction) within the functions of the
specific Erget group (judges, police, govemment officials, military,
etG),, and gn th9 transtation of human righ* standards
:ecurity.forces, "conduct
.into adminisuative instructions, .codes of or rules of
engagernent, as well as their enforcement. In an environment of totai

ilt#;' *,'i:;:;::'ffir i:*:'m:d s' :ilffi


conuib-ute to th. Jhrnge gf such a clilp3te of impunity
*[#:l
mqHCR can play an important role in providing technical and legal
advice on how ro improve the'protection of refugees and people of

a .:;i

48
r Chopter 5The United Nations System

I
T

T Chapter 5 The United Nations System

t
I
I
I
l
l
53

I
{''5

;
Humon Rights and Refugee Protection, Self-study Modute 5,Volume I

x r '. ''i
Generally, the United Narions (UN) system for the protection of human

r rights is called the,.1'universal system." .The'UN was,,created'in L945


*h.r, th. United'Nations,Ch"rt.1,*"rl adgpted, makiag;iryrrnational''
concern for human rig.frls an establi$ed pan pf internado4al law
;

,, ,

r . 3,lnrclura a,'ltlo Utdtod t{rtiorrt H0rn n Rh{ll E{Idla. o4* lrocirnBmr ' r
"'

E
j
s
Note that the Commission on Human Righs was replaced by the Human Rights
* Council, and thac its subsldiary organs, including dre SubCommission are presently
under revicw and may be replaced.by other bodies. Further note that the chart does not
yer reflect dre Sub-Commitcee on the Prevention of Torture created by. the Optional
* I Protocol as well as the future ComAitree on Enforced Disappearances.

5.1 Main human rights bodies relevant for human rights


T protection
5.1.1 Generat Assembly (UNGA)
x The UN General fusembly (LINGA) is the main deliberative body of
the Unircd Nations. It is composed of representatives of all N{ember
States, each of which has one vote. Decisions on important questions,
T such as those on peace and security,.admission of new members, and
budgetary matters, require a wo-thirds majoriry. Decisions on other
questions are by simple majority.
fi
The Office of the United Nations High Commissioner For F.efugees
(UNHCR) was established on 14 December 1950 by dre UNGA as a
fr subsidiary body. Recenrly, by the adoption of GA Resoludon 601251
dated 3 April 2006, the General Assembly established the new Human
Rights Council which replaced the Commission on Human fughts.
x
a
54
x
Chapter 5The United Nations Systefl

sgverd meetings of the Annual General fusembly session are devoted ro


human rights. .
5.1.2 The lnternational Court of Justice (lCJ)
The International court ofJustice (IC) is the principal judicial organ of
the Unired Nations. Seated at the "peace palace,, in The Hagul, rhe
Netherlands, the ICJ began work in 1946.Its statute forms an-irrtegr"l
pan of the Chartei of the Unired Nations.
The court has a dual role: to serde, in accordance with international
Iaw, the legal disputes submimed to it by srates (individuals cannot bring
cases before the court), and to give advisory opinions on legal questions
referred ro it by duly authorized international organs and agencier.

The ICJ has ruled on several cases relevant to human rights and refugee
protection, including Hay de k Tone (13 June 1951; asylum),
I Nottebohm (6 April 1955; nationaliq,), Barcelona Traction Ligb and
Pou'er company (5 February 1970; human rights as obligations erga
I om,es), and the case on the orders 0n Rquests
for the Indication-of
Prouisional Measures in the case concerning ipplicailon of the
conuention
on the Preuention and Punishment of the crirne of Genocide (Bosnia v.
I serbia and Montenegro) (8 April .'d 13 september 1993; genocide).
The
Court has also addressed human rights issues in its advisory opinions, for
example, on genocide, apartheid, and the immuniry of UN human
I rights special rapporreurs, and elaborat.d on th.'relationship benyeen
internarional humanirarian and international human righrs iaw .in irs

l advisory opinion of 8 July 1995 on the Legaliry of the Threat or use


Nuclear 'Weapons.
of

5.1.3 The Security Council (SG)


I The uN securiry council has 15 members: five permanent members
with the power of vero (china, France, rhe Russian Federadon, the
united Kingdom, and the united states), and 10 members elected by
I the General Assembly for rwo-year rerms. The UNGA is currently
debating a proposal to change the composition of the Council.

In accordance with futicle 24 of rhe LIIrI charter, the securiry council


bears primary responsibiliry for maintaining inrernational peace
and
securiry. !7ith the uN's gradual shift in focus to human security,
many
of the securiry council's decisions have a direct impac on hurnan
rights.
r
The securiry council, acti,g under chapter vII of rhe charter of
the
united Nations, is also the institution that sets up ad hoc tribunals, such
as those for the former, Yrrgoslavia and for Rwanda. These tribunals
should not be confused with the International court of
Justice, wh.ich is
the principal judicial organ of the United Nadons (see above).

55
Humon Rights and Refugee Protection, Selftstudy Module S,Volume I

5.1.3.1 The tnternotional Criminal Tribunal for the {ormer


Yugoslovia (ICTY)
The International Crimihal Tribunal for the Former Yugoslavia (ICTD
was established by Security Council Resoludon 827 of 25 May 1993.
The Tribunal came inro being because , of the serious violations of
international humanitarian law committed in the territory of the former
Yugoslavia since 1991, and as a resPonse to the threat to international
peace and security posed by those violations'

The purposes of the ICTY are to: bring to justice persons ailegedly
responsible for serious violations of international humanitarian law;
render justice to the victims; deter further crimes; and conribute to the
restoration of peace by promodng reconciliadon in the former
Yugoslavia. Such purpose! will be achieved by investigating, prosecuting,
and punishing individuals for the following crimes commimed on the
territory of the former Ytgoslavia since 1 99 1 : grave breaches of the 1949
Geneva Conventions; violations of the laws or customs of war; genocide;
and crimes against humanity.

The ICTY has concurrent jurisdiction with national courts ovel serious
violations of international humanirarian law commimed in *re former
Yugoslavia. In cases where it proves to be in the interests of international
justice, the ICTY may claim primacy over national courts and take over
national investigations and proceedings at any stage' The Tribunal has
its seat in The Hague, The Netherlands.

5.1,3.2 lnternationol Criminal fribunal fat Rwanda (ICTR)


The International Criminal Tribunal for Rwanda (ICTR) was
established by the UN Securiry Council Resolution 955 of B November
i994 to prosecute persons responsible for genocide and other serious
of international humanitarian law that were committed on
violations
Rwandan territoqy beween 1 January 1994 and 31 Decembet L994.
The ICTR may also prosecute Rwandan nationals charged with
committing such crimes in neighbouring countries during that same
period.

The purpose of the Tribunal is, among other things, to contribure to the
process of national reconciliation in Rwanda and to help maintain Peace
in the region. The judges of the Tribunal are elected by the UNGA and
are generally of di!flerent nationalides. The Tribunal has its seat in
Arusha, United Republic of Tanzania.
,l

5.1.3.3 The lnternational Criminal Court ond Other lnternEtionol


Criminal tribunals
The ICTY and ICTR should be differentiated from the International
Criminal Court (lCC), which was estabiished by the Rome Statute.
The iCC is a permanent international criminal court with its seat in The

56
T
Chapter 5 The United Nations System

T Hague, The Netherlands (see Vol. I, Chapter 2). Differences berween


the ICC and the ICTY/ICTR include:
'phile .a
T . the ICTY and rhe ICTR are subsidiary organs of the Securiry
Council and, as such, are embedded in the United Nations, the ICC
was created by a separate international rreary, the Rome Statute.
T Therefore, it is usually the fusembly of the States Parties ro the ICC
that supervises rhe work of the ICC, noc r}re Security Council,

I .
which supervises rhe work of rhe ICTY and ICTR.
Unlike the ICTY and ICTR, the ICC is a permanent judicial body,
the jurisdiction of which is not limited b;o x11y ti*e iimit, save for
I the principle of non-retroacdviry. It also has, at least potentially,
universal reach (chough some key inrerna;ional acrors, such as the

I .
U.S., did nor become parry ro the Rome Starute and are therefore
not bound by irs provisions).
Although the jurisdiction of the *ro ad hoc tribunals is not exclusive,

I but concurrenr with drar of nadonal courrs, both have primacy over
national courts. At a:ry stage oF the procedure, they may formally
requesr nationd courrs ro defer competence..Conversely, the judicial

I activiry of the ICC is intended only ro cornplement that of narional


coufts. k will exercise its jurisdiction only when national courrs are
unwilling or unable genuintly ro carry out the investigation or
prosecudon of a person accused of rhe crimes -defined in the Rome
T
Starute. According to Article l3 of rhe Rome Stature, on rhe exercise
of jurisdicdon, the ICC "may exercise its jurisdiction with ret?ect t0 a
I crime refened to in article
Stante if (a) '
5 in with the prouisions of this
accordznce
A situation in which on or more of such times

I d??edrs to haue been c.ommitted is rgferred ru the Prosecutor by a State


Party in accordance with article 14; (b) A situation in which one or
more of such rimes appears to haue been committed is refened to the
Prosecutor by the Secuity Council acting under Chapter WI of the
T -
Charter of the United Nations; or (c) The Prosecutor has initiated an
inuestigation in respect of such a crirne in accordance with article 15."

These tribunals are also fundamenrally differenc from rhe special court
T for sierra Leone; which was istablished per an agreement berween the
united Nations and rhe Governmenr, of sierra Leone that was ado.ored
I on 16 January 2A02. The'special Court is an inrernarional body rhat is
independent of any governmenr or organizadon. Its mandate is to ry

j those who bear rhe grearesr responsibility fbr serious violations of


international humanitarian law End Sierra Leonean law commirted on
the territory of siera Leone since 30 Novemb er 1996, "including those
leaders who, in committing su,ch *imes., haue threatened the establkhie,t of
T and implementation of the peace procts in Sierra Leone."

I
I
Human Rights and Refugee Protection, Self-study Module 5,Vollme I

5.1.4 Economic and Social Council (ECOSOC)


The Economic and social council (ECOSOC) consists of 54 Member
states elected by the uNGA for overtapping three-year terms. ECOSOC
serves as the central forum for disiussing internarional economic and
social issues, and for formularing policy recommendations addressed to
Member States and the United Nadons system. It takes decisions on the
most important organizational matrers, but frequendy refers policy
matrers to rhe uNGA. In carrying out its mandate, ECOSOC consults
with academics, representatives of the business sector, and non-
governmentalorganizatiort.
, r.
ECOSOC has established a number of important commissions i.nthe
sphere of human rfghts, including the UN Commission on Human
rughtr, which, in turn, set uP the Sub-Cornmission on the Promotion
,rrl Pror...ion of Human Righm;'the Commission on the Status of
'women; the commission for social Development; and the commission
on crime Prevenrion and criminal Justice. The new Human fughts
Council will, however, I1lt rePoft to ECOSOC, but directly to the
General fusembly.
1,..
5.1.5 Human Rights Council .' .

The General Assembly decided at its sixtieth session on 3 April 2006 to


establish the Human Rights council, based in- Geneva, as one o[ its
subsidiary organs. The council succeeds the commission on l{uman
Rights which during recenr years had become the subject of criricism,
including allegations of polidcisation and an imbalanced approach. The
council was creared following a proposal made by the secretary-General
with the aim of creating a sffonger and more effective human rights
body.

Key innovadons as compared to the,.previous charter-based human


rights protection rystem introduced.by General fusembly Resoludon
60 1251 are the following:
. upgrading of the body from a Commission' rePorting to ECOSOC,
,o n Cot which directly rePorls to the Generai Assembly;
. ".il,
creating a permanent body which meers for at least three sessions per
year, including a maiS session, for a total duration of no less dran 10
week;
. reducing ghe number to '47 members (proportionally representing
different regions, to be elecred by absolute majoriry of the General
Assembly, and not eligible to serve mor than two terms in a row)
with a view to enhanced efficiencY;
. the possibilirl for the Gengqal,{ssembly to Suspend, by a two-thirds
majority vote) the membership of a member "that comrnits gross
and systematic violations of human rights";

5B
T n

r ,
',,
,lap-tgr

introduction of a universal periodic review of the fulfillm.r,. Uy .".1,


STheUnited Nations System

r State ofits human righrs obligations and co.inmitmenrs.

J
I !t(c) "Mqfg re7Cqrne-qd.q.tiont tg thg:Gener1lAssembly t0r the tuifier develQp\gtlt-ol. , -'

r ':i:;i;;,tuii;h,iii^;;;:i!Wy,"ii1,,1,i.iy,i:,;;r-;:rriiii:,;ii,,ii'r"it-,,':,
[ri+
,, ,:, I
A1 floqr^gte,t1ri iutl np,tem/nitqlion ofhiimon righx'obtigatiol,:ii:underta[en .by Staqes
,; {9ll9,w,ytpio the gools and iomnitments related to;he
,promor!o0
old protection glhiUmcl
on( :

I
tlntig!!!.gM aif iifiiliiiiiiilifi #1i
ff{fiqsiig***
1;ii=al,iiiiiin ,i
:: ;-...:

ii:ai:til coinmitmenis ii
11;.il;pr,g,!;fi,
o,'moiniir whi|hl :
i ii iti'r u c e'ct i o'o'i 5 t o't e ;' the r ev i iw' i,';, .l

I
s;

i-C41vi;419re siitts: :{ t!:t tti,ii fu tti p,1,9trym gi 1:';


1t";!o,,its goipqgty-building needi; iuch a;.,) ,

wjik,,o,f rregtt,bolies; 1ng


Cou.lci!;1t10 r t:i,
fl

I
,1.1r
illlegri.p"n
iilnn
ilir;,i llgfffi

T
I
T
r As was the case with the Commission, UNHCR
sess.ions of the Council and contribute to the discussion of
relevant to the Office's mandate. The main objectives
panicipation are to:
will closely follow

of UNHCR.'s
$e
issues

I .
e
supply the Council with relevant information
activities and positions;
on UNHC,R.'s

I
promote the development of standards that enhance the protection
of refugees, IDPs, stateless persons and others of concern;
. strive ro ensure that the standards set by these bodies or their efforts

I .
do not contradict international
UNHCR s international protection mandate;
refugee

make maximum use of the findings and conclusions of the Council,


iaw or interfere with

I including valuable country of origin information .,vhich may assist


UNHCR and Smtes in idendfring refugee protection needs.

I
I 59
Human Righu and Refugee Protection, Self-study Module 5,Volume I

a
5.1.6 The Sub-CommissiLn on the Promotion and Protection
of
Human Rights
The Sub-Commission was the main subsidiary body of the UN
commission on Human Rights. It is now subject to teview. Its future is
advice
uncertain and. it may be replaced by another body offering exPert
to newly established Council.
originally called the "sub-comrnission on Prevention of
Dislrimination and Protection of Minorities", it was established h L947
with 12 members. It was renamed in 1999 and is now comPosed of 26
experrs irr the field of human rights who are elected by the commission
orl H,rrn*r, Rights with due regard given to equitable geographical
distribution. The experts work in their personal capacities'
The Sub-Commission mer for three weeks, The sessio:rs of the
eac]1 year

Sub-Commission are attended by its members and/or their alternates,


observers from uN Member states, and representatives of
the uN
Specialized. Agencies, inter-governmental organizations, NGOs
drat hold
.consultative status with ECosoc, and national liberadon movements,
if. there is an item on-the agenda that concbrns them' The Sub-
Commission adopm rerofutions and submits draft resolutions and draft
decisions to the Commission and/or ECOSOC, and reporm to the
commission after each session. some of the sudies prepared by the
Sub-Commission, irrespective of its future, cofltinue to be of particular
importance for the prot"ctior, of refugees and asylum-seekers' such as
the report on the rights of non-cidzens (E/cN.4/Sub.212003123 [2003])
*.,d th. principles on housing and properry restitution For refugees and
displaced persons (E/CN.4/Sub.2 I 2005 I 17 t200 rl )'
'when a study requested of a sub-commission member is oi direct
.
relevance to refugees, asylum-seekers or other persons of concern'
UNHCR, as did NGos and other advocares, can and are encouraged-to
'to, ensure that the study
submit informationi to the expefts
comprehensively reflects issues of concern. LfNHCR ParticiPates in the
S ub-Commission sessions, provides informadon
and frequently assisted
in the formulation of recommendations and resoludons related to its
mandate.

5.1.7 The High commissioner for Human Rights and the office of
the United Nations High Commissioner for Human Rights
(OHCHR)

The High commissioner for Human Rights,'whose Post was created in


t9g3 bi the UNGA (Resolution 4gtt4L), is the principal UN official
,.rponribl, for human rights. The High commissioner has the rank of
under-secretaqy-General and reports directly ro the secrerary-General.

The High commissioner has a special role in coordinating uN activities


in the field of human rights while also cooperating with govefllments to

60
r ChepterS The l)nited NationsSystem

T .
strengthen national human righrs prorection. The High Commissioner
aims to lead the international,human righrs movement by acting as a

n mord authoriry and a voice for victims. The High Commissioner makes
frequent public statements and appeals on human righrs crises.

t The Office of the High Commissioner for Human fughts (OHCHR),


based in Geneva at the Palais Wilson,,,i1tLg,m"ln body within the UN

. Secretariat that deals with human rights. ft is,mandated to promote and


protefi the enjoyment hnd fi.rll realization, by all people, of all rights
T established in the Charter of trhe united Nations and in international
human rights.law and treaties: Its mandate includes preventing human
righ* violarions, securing respefi for all human rights, promoting
T international cooperation ro prorecr human rights, coordinating related
acdvities rhroughour the United Narions, and strengthening and
streamlining the UN sysrem in the field of huraan rights. In addidon.to
* its mandated responsibilities, .the Office leads , efforts to integrate a
human righrs approach wirhin all work carried our by UN agencies.

T OHCHR is increasingly'engaged in preparing, reporrs on the human


' rights situation in a particular country that may serve as valuable

r country-of-origin informadon to help, identify interhational protecrion


needs.

The newly established Human fughts Council assumes "the role'and


responsibilities of the comntission on Human Righu yelating to the worh of
* the Ofice, of the United Nations High Commissionirfor Human Rights, as
decided, by the Ge4eralAsvmbly in.its,re;olutio* 48/l4t of 20 Decernber
1993", thereby taking over rhe role, of a governing body of State
; representatives for the OHCHR. .

The Of;fice ,rrirm u"lious UlrlLorgans, subsidiary organs, and working

I groups, and serves as a secrerariat for charter-based human rights


mechanisms and for all,rreary-monitoring bodies except the CED,{!7
Committee, which is seryed by the Divisio, for the Advancemeni of
'Women.
:
A number of OHCHR field offices have been established with the aim
of ensuring rhar internaiional human rights standards are impleme nred
: and realized at the'national level, both'in law a:rd'in practice. Increased
'field presence of OHCHR enhances rhe scope for pracrical
inter-agenry
co-operation berween OHCHR'and uNHCF.,
farticularly in rerurn
; and IDP operations.

t
.

In 2005, the High Commissioner for Human fughrs submitted a plan


of action thar is included in the uN secretary-General's reporr entitied,
"In Larger Freedom: Towards Developmenr, Securiry, and Human
Rights for AII" (Al59l2OO5). The plan envisagcs an expansion of field
; Presences, thus increasing rhe 'potenrial for cooperation berween
UNHCR and OHCHR in the field.

;
b1

x
Human Rights and Refugee Protection, Self'study Module 5,Volume I

5.2 Supervisory mechanisms under the UN system


At the UN level, there are rwo . distinctive types of supervisory
procedures:,Charrer-based mechanisms, and treary-based mechanisms.
The first procedure is undertaken by bodies'created under the UN
charter, including the Human fughts council and its predecessor the
Commission on Human Rights. The second refers to supervision
conducted by the bodies created under the interhational human rights
treaties.

5.2.1 Gharter-based procedu;es for the Protection of human


rights
Th. Charter-based pro?.du.., were establirfria Uy mo ECOSOC
resolutions: Resolurion 1235 (xLll) of 6 June 1967 and Resolurion
i503 (XtMll) of 27 May 1970,In its Firsi Session inJune 2006, the
Council decided rc "extend exceptionally for lne lear, subject to the reuieu
to be undertahen fu the Coancil in confonnity with General AssernblL
resolution 60/251 [...J the procedure utablished. in accordance tpith
Economic and Social Council reso[ution 1503.|,i and requested "the 1503
procedure to continue with the implementation of [hs] mandate[s] and the
Ofi.ce of the united Natioru High Cornmissioner"for Human Rights to
continue to prouide the necesury $??lrt [,.,]", The future of the 1503
Procedure is not yet known, thoug\ the GA has given strong guidance
when it decided tL-tat |the Council shall assumq reuiew and, where
necessi.ry, improre anl. rationalli all mandatei, mechanisms, functions and
responsibilities of the Commission on Haman Rights in order to maintain a
q,stem of Spe:cial Procedures, exPert oduice a4d a c"omh.laint?rocedure."

Some of the advantages of the established .Charter-based mechanisms


are that:

. They allow,action regardless of whether a State is parry to an


internadonal humari rights treaty o! not, as they'are based on the
general human rights obligations of all UN Meryber Smtes;

. They generally do not require the exhaustion of domestic re;nedies;


and

62
r Chapter 5The United Nations System

I. . Because of the strong political pressure attached to the mechanisms,


'
,,t' ,
r , ,th.ym3yber.ryp.rrurrir.;
5.2.1.1 ECOSOC Resolution 1235 (XLtt)

t This resolution authorized the UN Commission on Human Righrs and


the Sub-Commission . on the Promodon and Protection of Human
Rights to srudy consisrent patrerns of human rights violations and to
investigate gross violations of human,righrs. In practice, the "1235
J procedure" has evolved lnto an annull public debate on human rights
violations anywhere in the ryorld..

I On the basis of the "1235 procedure", the Commission on


Rights appoints Special Rapporteurs, special representatives, experrs,
Fluman

i working groups, and other Cnvoys competent to study human rights


violadons in specific countries ("country procedures") or comperent to
study particular human rights violations around the world ("thematic
procedures"). In carrying out their mandates, and based on "standing"
or specific inyitations by States, Special Rapporteurs and other mandare-
: holders routinely underrake fact-finding missions at the invitation of rhe

r country concerned. LII{HCR frequently assists in rhe preparation and


conduct of such . missions, sharing information and suggesting
interlocutors and sites to be visited by the Rapporteurs whose mandates
are related. to UNHCR's work. The Special R ppo.,.r'rrs and working
: groups reporred annually to the Commission bn Fluman fughts, and
will ,now present their reports and recornmendations to the newly

t established Human fughts Council. Their reports are authoriradve


sourcs of country-of-origin i:information. , Under sorne of these

i
procedures,,urgenr appeals on individual cases can be made on a srrictly
humanitarian basis. :

5.2.1,1.1 "specialprocedures" most releaant to the uorh of \LNIICR,

r includins procedures offertng; urgent app edl ?ro cedures


Special Procedures, whed'rer iL the form of Special Rapporteurs, special

I
represenratives, experrs or working gfoups, are mechanisms designed to
address different aspecrs of human.lighrs.. They may respond ro concerns
related to refugees, asylum-seekers, intemally displaced persons, and
stateless persons ranging from human rights violarions as a root cause of
displacement ro prevencing those who are already displaced from being
*
subjected to imminenc human rights abuses. They may also respond to

T Vhile all special procedures are under, review, the system of special

I
procedures as such shall be maintained. Traditionally, the following
specld procedures are of particular relevance to UNHCR:
. Representative of the Secretary-General on the human rights of
internally displaced persons.. This mandate, created in Z0O4
n
;
Human Rights and Refugee Protection, Self-study Module S,Volume I

replacing the former mandate of the RSG on IDPs which led to the
creation of the so-called Deng-principles,'has been given a particular
human rights focus. The.RSG is mandated to engage in dialogue
and advocacy with Governments and other actors concerning the
rights .of IDPs, strengthen the international response to internal
displacement, and in3iniueam human rights throughout the UN
system. He his become a key'partner for UNHCR in advancing
IDP protection, and'to-operation between the RSG and UI'{HCR
has been institutionalized by way of :a Memorandum of
Understanding (MoU). According to this MoU, in relation to
UNHCR, the activities of the RSG or his staffwill include:

capacity .as cluter had, the sharing of his expertise in the area af
international hta and norms .rekted to IDPs in sapporu of the
dtuelopment or reuision of taining or other materiak;

> the participation in tarining sersions'*n b UNHCR, particukrly as


regards IDPs an( t\ Gutdtng Principles on Internal Displacement."

Special Rapporteur on the Question of Torture. The SR can take


action in cases in which there is an imminent risk of refoalernent or
when the conditions of d.etenrion are consider.d ,o amount to
tortur-e or ill-treatment (See Vol.II, Chap...'9).
\il7orking Group on fubitrary Detention..The '!7G can examine
arbitrary detentions of asylum-seekers,'rsuch.as when the State has
not complied with internadonal standards of due process, when
there is unduly, ' prolonged administrative detention, or when
detention 'is administered without any legal basis (See Vol. II,
Chapter 11). ,i

Special Rapporteur on Extrajudicial, Summary or Arbitrary


Executions. The SR can take action in cases where there is a risk of
imminent expulsion, refotulernent or ,.tuin'of an individual to a
country where his/her life is at risk, when asylum-seekers or refugees
suffer death threats or are at imminentirisk of extra-judicial
execution or o[ death in custody, or when they are subject ro life-
'threatening conditions in detention (See Vol. II, Chapters 9 and
11). The SR'can take ectionwhen the death has occurred or when
there is a significant risk that it may occur.
: ..
Special Rapporteur 9n V.iglqncg agaqrst W{men, its Causes and
Consequences. The SR lxamines violence'or thream of violence
against women perpetrated solely becau# of their gender. The SR
'can action with regard to gender-based violence rhar may
take '
amount to.persecution, which, in rurn, may force them to leave their
.countries. The SR can also take. action againsr the risk of v.iolence
that women suffer ?s asylgm,seekers. or refugees (See Vol. II,
Chapter 3).

64
{

ffi,
I
:.. Chapter,!.The United Nyions Sy:qn

rc
ffi
ffi

. 5.2,1.2 ECOSOC Resolution tSOB (XLVilt)


ECOSOC Resolution 1503 created aiconfidentii'pro..dtrr.
to handle
communications on violadons of humin rights. orrry
indicadng "a consisrenr parrem of seriouJ arrd reliabry "o*-unications
d.ocumented
violations of human rights" qualifr for considerrdon ,rnd.,
the 1503
procedure. The 1503 proceduge is not primarily inrended
to provide
redress to individual complainants, but rather ,o ,"k acdon
in ,.rp..a of
systemadc violadons of human rights designated. as a ..situarion,i.
:
In 2000, the 1503 ,confidential cornmunications procedure was
reformed (ECOSOC Resolution 2OOOI3 of 16
June 200'0). Since then,
the procedure worls as follows: a lworking Group on comrnunications
of the Sub-commission on thO promotion and ?rotection of Human
fughts meets annually to examine - communicarions (compraints)
received from individuals and groups allbging human
righr, ,-i;riorrr,
and any government responses to those communicatio-ns.
'lforking !7hen the
Group identifies reasonable evidence of a consistent pattern of
gross violations of human righps, the rnatlgr is referred
to the 'working
Group on situations of the commission to examine the particular
situations fonrarded to it by the'woiking'Group o' co-*,-icarions,
and to decide.whether, or not,to.refer any.,6f these situations
to the
.plenary of the commission. The commission then rakes a decision
concerning each situation broughr to irs attention
in thisni;;-

65
Human Rights and Refugee Protection, Self-study Modute 5,Volume I

5.2.1.3 Relevance' for' the prctectiotn of osylum-seekers ond


.1

unlike treaty-bodies, chaner-based country and thematic mechanisms


haye no formal complaints 'procedures. Nonetheless, somerimes
communications,,addressed,:to these extra-conventional mechanisms
contain information to the effect that a ierious human rights violacion is
about to be committed,-such as imminent refoulemenr-or fear rhat an
asylum-seeker maf be subjected ro torrure. In ,uch cases, rhe Special
Rappo.rteur or chairperson of a working group may address a message ro
the authorities of the state concerned by fax or telegram, requesdng
clarifications regarding t},e case and appealing to r.he governmenr ro take
the necessarF measures ro gu.uanree the righrs of the alleged victim.
Such appeals, rlough nor strictly binding, are primarily of a preventive
nature and are resorted 'ro on a ' regular basis by certain themadc
mechanisms, pardcularly the speciai Rapporteurs on exrrajudicial,
summary or arbitrary executions, and on rorture, and the rX/orking
Groups on Enforced or Involuntary Disappearances and on Arbirrary
Detention. \7hile the reply-rate, pf, States ro Fome of the special
procedures is evidendy in decline, communicarions by Sf ecial
Rapporteurs had effectively contributed to the prwention of refoubment
on a number of occasions. However, other thematic and country
mechanisms occasionally follow a simildi procedure. In,some insrances,
when the circumstancis of the case justifr sucli an approach, an appeal
may be addressed by several special Rapporreurs and/or working groups
jointly. The criteria for urgent interventions var/ from orr.
-"nJr,. ,o
another and are described in the methods of work of the respective
mechanisms (available ar:

Despite all the inherent iimitations that resulr'from rhe fact thar rhe
1503 procedure is,confidential, it may nonerheless be useful to asylum-
seekers and refugees when there has been such egregious abuse of their
rights that it can be considered a situation of gross violadons of human
rights.

5.2.2 Treaty-based procedures


The supervisory mechanisms established .under uN human righs
.treaties can be divided into four maig groups: ::

. Reporting procedures
. Inter-Smtecomplaintsprocedures
. Individualcomplaintsprocedures
. Inquiry procedures and on-site visits

ob
r
r
Chapter SThe United Nations System
."'r "li'r' ' i

r
r
r
r The trear;r bgdy systgm,as establlsfrgd ovgg the years, faces a number of
problems and challenges and is presently under review. The experienced
shortcomings includer "

r . a large backlog and significant delay in the review of countqy teports;


. limitadons in addressing acute human rights crises;

r . inconsistencies in the approacfres of different committees which may

.
result in 'confusion over the precise scope of human rights
obligations of Stares, and which would ultimately be detrimenml to
'the
interests of the indivi&uals to be'protected; .
heavy"reporting requiiements of States whigh are parqfto rnost, or
: all of the Treaties,'iequiring iignifiiint resources;
r enormous time and extra efforts treary body members have to invest
without any form of remuneration.
: ' :"

r Among the many suggestions which have been made to address these
challenges is thg proposal t3lled,by $e UN High Commissioner for
Human Rightq, Ms.-Louise Arbour, to replace ths present treaty body
system by a single trga-q body, ro be equipped wirh more resources and,
in particular, professional,(fulltime) lnd expert staff, (for details refer to
: the Concept Paper on the High Commissioner's Proposal for a Unified
Standing Tqeaty,Bq{y (HRI/MC/200612). The debate on the ref,orm
will be a lengttry piocess 3nd mligr features of the treary body system,
: such as the review of reports and individual complaints procedures, will
be retained. The following elaboration therefore remains relevant.

: 5,2.2.7 Reporting prccedures


. .r' ,-:.i.it:)i, i .. rl
All UN human.rights ffeades include a sy.srte{r,r of periodic reporring.
T States ?arties are obliged ro rlport perio{icdly ro a supewisory body on
the domestic lmplementation of the ligary.in question. UNHCR, as

x other agencies, cogtribures go the rev{ew pro..s. Unfortunately, the


treatylbodies qtili
"pi{y
a very$iffe.rent ser of norms, rules of procedures
and working methods gciverning co-operadon with agencies and the role

ir-r,,the Jevigw, of
they, lnay play country iqgorr.s. This complicates co-
}. operation. In gengra!, the reporting megfranism ar the UN level is made
.yp o{ phe following stages:, , , ,,! r, ,,
x
x 67
5'Volume I
Human Righti and Refugee Protection, Self-study Module

The sabmission of the Stat''s iiporx Each Siate P"Y to.a UN


human right, must PrePare its [tadonal report followiqg thq '
i.rrt.u*..it
respecdve guidelines and must zubmit it
for examination within a given
timeframe. In addition to the State Report' the
ueary bodies
-receive
;;;;t;-fr"rta.a tf Nco' and asencies the United Nadons"
of
UNHCR may provide co"fidential information to the
relevant ueary

body on the situation of refugees and persons 'of


concern' rr'l

Most but 'not all treary bodies have a pre-sessional worhing


group/ush which
force, *ttts with NGOs and agencies to collect
'"rrd "lso body.
furth.. explain written information submitted to the treary
"List of issua'; Prior to,each Commiccee'session' a few members
tl-rat will
of the Committee meet to iden{! in,advance the qusstions
constitute the principalifocus of discussion with State representatives
"dialggue'
during th. corrluu.tive This "pre-sessional working group"
pr.prii, a listof issues to bq taken,into consideration when examining
,h.^S,",.ParryReport,whlchistransmittedtothePermanentdelegation
;irh. Sq*. aor,..rned. The intent is'to'provide the State with the
opportuniqT to a{Iswers tn adyance and thereby to facilitate
PrePare
dialo gue with the .Cgmmittee-.
be Present at
The Constructiue Dialogur'r States are encouraged to
the meeting when their rePorts are exarnined' The discussion between

government rePresentativ., ,"d Committeet members is called the


"constructive dialogue". r ': '

The conclud.ing obseruatioinsr The final phase of the


exarnination
,' r _t /-__:_, ,
of a State Repon'ir"tt. dr{1lng and ad'optifn of the C-ommittee's
..concluding observadons". These observations are an important source
of .ourr.ry--of-origin information : and niay include recommendations
persons of
which assist UNHCR in the promotion of the iTrotection of
to the scope
concern. Different treary bodies apply a different approach.
detail of recommendationi, which iinpacts on their value
for
and level of
LINHCR. t
5,2,2,2 lnter'State comPlaints ptocedures
l .: , t,1,,.,1,1,.
Some human rights instruments allgw. States Parties to
inidate a
procedure against another State Parry that is considered
not to be
'f.,Httir,g In most
its obligations under human rights instruments. cases,

such a lo*pl*irr-t may only be submiited if both the claimant


and the
defendant
jt*t.,'h"r. recognized the competence of the supervisory

body to receive this fr,pe of complaint. The only Inter-state complaint


.pro..d,rr., that have'bi.ni'used'.are at the regional level, under the
'E,r.op.", Convention''for';the "Protection of Human Righm and
F,.,.rdi*.r,tal Freedoms and under the African Charter on Human and
peoples, Rights. The former has b.irlus.d several times, most recently

68
:l ,.-,i
. ...f

r in 2001 in the
in2004.
case Cyprus u. Turhq,.
Chapter 5 The United Notions System

The limer has been used only once,

T
r
5.2.2.3 ln divi d u a I comp I ai nts p ro cedu re s
This mechanism is' includel in some h**r., rights treaties or their
optional prorocols and atows individuds under the jurisdicdon of rhe

r
State to bring a complaint to the'supervisory body claiming rhar their
rights under che relevant treary have been violated

Advocates seeking to file a


complaint uncler the above-mentioned

r treades must derermine whether the State has ratified the treaty in
quesdon, and if the supewisory body can receive individual complaints,

r
and then ascertai[ wherher the State has attached a reseryation to the
right'in question. If the State has done so, refugees or asylum-seekers
who have'suffered a violadon of one the human rights envisaged in the
ffeary may seek redress by submirring a complaint ro the respective

r treary body, provided that admissibiliry requiremenrs are fuifilled.


lilhile there are some procedural yariations, in general, the system works

r as follows:

ru" ,o*pt int: Thealleged violadng State musr hrve ratified rhe rreary
invoked by the individual and/or the optional protocol which

r established the mechanism. The rights allegedly violated must be


covered by the rrearF concerned. The complainr musr nor be currently
under examination nor hras it been examined under another

I international mechanism. Proceedings before fie relevant body may


only be initiated after all domesric remedies have been exhausted.
Thus, for example, asylum-seekers wishing to submit a petidon to tJre

I Human fughts Commitree or CAT Committee will have to avail


themselyes of every effective remedy in the counrry of asylum, excepr
when such procedures are unreasonably prolonged, plainly ineffective, or
otherwise unavailable to them, such as when rhey are denied legal aid.
:
Procedure: Once a complaint is submitted and it is found to comply

I with the formal requiremcnts of admissibiliry, the case is registered and


transmimed to the Starc Parry concerned to give the State an
opportuniry to' respond. The State is asked to submit its observations
within a set timeframe, which varies among the procedures. The rwo
; major stages in any case aie known as the "admissibiliry" stage and rhe
(a.rt
"merits" stage. The "admissibiliry" of a case refers to the formal

T requirements that rhe complaint must sarisfr before the relevant


supervisory body can consider its substance. The "merirs" of the case are
the substance on''the basis.-of which the supervisory body decides
whether or not the rights L:;idlr a trearF have been vioiated.
:
Interim mecLiures,lf dre 'riolation of the righ:s is extremely grave and.
urBenr and immediate aciion is required in oi-der to a,roii irreparable
:

I: 69
I

Human Rights and Refugee Protection, Self-study Module 5, Volume t

damage to persons, ir is possible' to the supervisory body to adopt


,.inter-im,, "sk
or "provisional" measures to avoid irreparable damage to the
victim of the alleged yiolation,(Human &igh* Committee's Rules of
Procedure No. 85, CAT Committee's Rules of Procedure No' 108'
CERD Committee's Rules of Procedure No' 94O), and Article 5
CEDA\r-OP). Interim rneasures are pardcularly relevant for asylum-
seekers ai they can be invoked, for example, to pfevenr an imminent
expulsion by a Srate Party to the relevant conventions' In numerous
cases, the cAT committee has asked a state Parry to refrain from
removing from its territory a person who is the subject of a complaint'
Although a number of states deny a legal obligation to comply with a
request of interim measuresr most States do so.

Remedies: Upon examining the communication the supervisory body


arlnounces its "views" or judgemenr' The treary bodies' "views" are not
legally binding as are tht "judgements" of the, human righm courts, such
as the Inter-American and European Court of Human Rights'
Nonetheless, they carry significant legal weight. :

5,2.2.4 In q u i ry p r o cedu r e s an d o n'site rrisr'ts

some uN human rights treades that have been negotiated relatively


recently allow the supervisory body to investigate situations that appear
to constitute a consistent Pattern of gross and systematic violation of
human rights. These investigations can be pr6mpted on the bCIis of
reliable information received or on the supewisory body's own initiative.
Such procedures are found in Arricle 20 of the cAT and fudcle B of the
CEDA\r-OP. However, under both instruments, States may refuse to
accept, or "opt out", ofthe procedure.
: '

The procedure is as follows:


According to Artick 20 of the CAT: lf
the Committee receives
reliable information that appears to contain well-founded ind.lcations
rhat rorture is being systemarically practised in a state that is a Party to
fie Convefltion,, the Committee may invite that State to cooperate in
the examination of tthe information. Considering the observations
received, the Commitree may appoint one or more of its merlbers to
undertake a confidential investigation and it .may even visit the country
in question with the consent of im government. After the examination,
the findings are sent to the government together with any colrunents or
suggesdons. The Committee's work during the investigation stage is
con-fidential. However, on completion gf an investigation, the
Committee may decide to include a brief report.of the results of its work
in its annual report. This sanction may give greater weight to the
Committee's position in its dealings with the government concerned.

According to Article I of the CEDAW Optional Protocol: The


Committee is allowed to initiate a confidendal investigation by one or

70
I
r
Chopter 5 The United Nations System

more of its members when it has received reliable information that a

r State Party is gravely or systemadcally violating the rights established in


the Convention.,In rhis case, dso with the consent of the State Party,
t}re Commitree may visir the territory of the State Parry. Any findings,
comments or recommendadpns . are . ffansmitted to the State Parry

T concerned and published.

r 5,2.2.5 Relevance
refugees
for the protection of asylum-seekers and

ExCom nores "the complemenrary narure of international refugee and


human rights law as well as the possible roie'of the Unired Nations
T human rights mechanisms in this area and therefore encourages Srates, as

r
appropriate, to address,the situation of the forcibly displaced in their
reports to the United N"adons Treaw Monitoring Bodies, and suggests
that these bodies may, in turn, wish to reflect, within their mandar.u, ort
the'human rights dimensions of forced displacement"" (Conclusion No.
95,2003)
: Reporting rystetn:
The examinadon of Srare reports by the treary bodies frequently
: provides a comprehensivc analysis of the human rights situation in a

r
given country and thereby valuable country-of-origin information vrhich
can assisr UNHCR and States to assess internaiional prorection needs of
asylum seekers. Reports offe5 helpful reference' and argumenrs when

r
arguing with States for such prorection being granred. Furti'rermore, rhe
examinarion of Srate reporrs offers an opportunity co discuss the
enjoyment of their rights under the respective rrearF by asylum seelrers
and refugees and other persons of concern to UNHCR. Alrhough the

I reporting sysrem is a less adversarial procedure than an individual


complaint (see below), it publicizes situations in which asylurn-seekers
and refugees have seen their rights violated. The whole reporting piocess
provides seyeral opportunides for advoiates ro enter into dialogue with
: the State about the siruation of asylum-seekers and refugees.

Indeed, advocares can engirge State aurhorities


: . \7hen the aurhoriries are in rhe process of drafting rheir report;
. During the sraminaCon of rhe report by &e Commiftee, by giving
: information to dre rnembers and suggesdng issues and quesrions to
be raised; and by . ,. l

. Promodng or following-up on rhe recommendations of the


: Commirtees
. In addition, the ' j'concluding observations" provide
T recommendations on the measures that States should take for
improving and rcdressing rhe situation.

:
7l
I.
Human Righx and Refugee Protection, Self'study Modute 5, Volume I

I
Inter-Slaa cgmplaints:, .

In practice, inter-state complaint mechanisms at the UN level have


never been used, so their relevance for the protection of asylum-seekers
and refugee is very limited.

Indiuidual coruI,laints: ' I

This is the most important type of mechanism to Protect inciividual


asylum-seekers, refugees, stateless persons or IDPs, as well as other
persons of concerns when a State has failed to Protect their rights.
Although lidgation of human rights violations at the international level
does not guarirntee protection of asylum-seekers and reftrgees, landmark
c:rses may have an enormous impact donilestically. A case decided by an
international hurnan rights body may clarify the treaty body's view on
the correct interpretation and scope of.the human righa obligation and
thereby help m itr.ogth.r, the legal protecdon of refugees and asylum-
seekers at the national level and deter future violadons.

Asylurn-seekers and refugees. face particular logisticd hardships


associated with the conditions of displacement that make it difficult for
them to submit complaifits. Even though some suPervisory bodies make
exceptions to the principle of exhaustion bf dornestic rernedies, such as
when rhose remedies'are unavailable or ineffective (which is one of the
main limitations ro the submission of intern4ti.onal complaints), other
factors, such as language barriers, ignorance ofthe judicial system ofthe
host State, and the temporary status of a#um'seekers and refugees,
mal<e it even mote, difficult for these persons of concern to use these
mechanisms. In addition, these procedures'*r. oft.n lengthy, and
asylum-seekers usually do not have the dme to wait. Some of this
inconvenience can be reduced, how.uei, if proper legal counselling
services are established with rhe help of inter alia lawyer networl<s, legal
dinics, NGOs, a3d are operated where necesfV with the support of
UNHCR.
Inquiry procedure and on-site uisi1.*
The inquiqy procedures allow ldvocates to submit cases or other
information to the Committee, such as the CAT and CEDA\I/, in order
to alert them to general situations or patterns of human rights violations,
including thcise suffered by. asylum-seekers, refugees and IDPs. This
informadon may promft the Committee to initiate an inquiry into the
situation and it may also prgmpt a visit to the State concerned to
examine the siuation of asylum-seekers on dre ground.

5.3 UN human rights instruments


This section describes b{efly the'main features of the UN human rights
treaties, their supervisory bodies and mechanisms, some procedural
requirements to submit complaints, when relevant, and the most

72
I ,3

Chopter 5The United Notions System

I relevant general comment or recommendaticn adopted by each treary-


body. Each of theie treaties ctintung a number of substantive rights that
are relevant to refugees and' asylum-seekers.' The analysis oi the
: substantive rights can be found in Volume II'

I There are seven human rights treaties and coffesponding treaty bodies.
All treary bgdies but one: the Commiftee on Economic, Social and
Cultural fughts which is established by ECOSOC, were created by the

T respective ueaty. The reary bodies are committees made up of experts


serving in their personal capacities who are elected by States Parties to
the ueary (except for the Committee on Ec-onomic, Social and Culrural

I fughm, whose constituent experts are selected by ECOSOC members).


The respective mandates of these commiffees only cover States that are

I OOI{CHR
parties to the relevant treary.

t The United t{aUons Human Rlghts Treaty System


showlng thr treitlc .nd thB mand.trt of tlrc trcaly bodhr

I of Hww RightJ

r
I
I q ffi'"
I I
l'"**
rffit
",**"
|
I
I
-,,
Ellnrratm I
d nxral I
I

i I I
C*,:,rurou"
I
: lr,frirb-CwdtrNilFagt,o
-h{$tr Nt pt tt lffi

: 5.3.1 lnternational Covenant on Economi<,Social and Cultural


Rights (lcEscR)
The ICESCR was.adopted by UNG..A, Resolution 2200 A ()Cfl) of 15
: December 1966.k entered i4,to force o.n 3 January 1976.

Main features: The Covenant rights apply to eyeryone "within" the


: jurisdiction of the State, including not only refugees, asylum-seekers,
and. stateless persons but also "illegal" migrants. It recognizes several
rights which are of utmost importance to asylum-seekers and refugees,
: such as the principle of non-discrimination (Articles 2 and 3), the right
to work (futicle 6), the rlght to jLrst and favourable condidons of work
(Ardcle 7), the righc to an adequate standarC of living for oneself and
T
73
T
Human Rights ond Refugee Protection, Self-study Module 5, Volume I

clotling, d housing, and to the


one's family, including a,l.q,r*t. food,
"t
continuous imprgvgment.of living conditions (Article 11), the right to
the highest attainable standard of physical and mental health (Ardcle
12), and the right to education (Article 13). Although each State Party
undertakes to'"take steps...to the maximum of its available resources'
with a view to achiwing progressively the full realisation of the rights
r trt I
recognized", the Covenant
^ also imposes ieveral immediate obligations
(see volume II).

Saperaisory body: The Committee on Econornic, Social and Cultural


Rights is composed of 18 .independent experts elected for a period of

S up eru iso ry tne c h ani*ru:

. Reportingmechanisrn (Ardcles 16 and 17): States Parties are iequired


to submit reports eveqy five years. This instrument has no individual
petitions mechanism as yet.

Releaant General Corutnents: No. 3, on the.nature of States Parties'


obligations (Article 2, paragraph 1) [i990]; No. 4, on the right to
adequate housing (futicle 11, paragraph 1) [1991]; No. !, on persons
with disabilities [1994];tNo. 6, on the .economic, social and cultural
rights of older persons [1995]; No.7, on forced evictions and the right
to ad,equate housing (futicle il, paragraph 0 t1997]; No. 12, on the
right to adequate food (Article ff) if gggl; No. 13, on the right to
educadon (Article 13) U999); No. 14, on the right to the highest
attainable standard of health (Article 12) [2000]; No.'16, on the equal
right of men and women to the enjoyment of all economic, social and
cultural rights [2005]; and No.18, on the right to work [2005].

5.3.2 tnternationat Covenant on Civit and Political Rights (ICCPR)


The ICCPR was adopted by UNGA Resoiution 22OO A ()Cfl) of 16
December 1966.k entered into force on 23 March 1976.

Main features; Under the ICCPR, States undertake "to respect and
ensure] the r.ights gnshrined therein of all individuals within the
territory or the jurisdicdon of the State. Most of the rights conri.ined in
the Covenant are relevanc to asylum-seekers, refugees, lDPs and other
persons of concern, including the principle of non-discrimination
(Article 2), the right to life (Ardcle'6), rhe right not to be subjected to
torture or cruel, inhuraan or degrading treatment or pun.ishment
(futicle 7), th. right to liberry and securiry of the person (Article 9), and
the right to equaliry before the law (Anicle 26). The Human Righm
Committee aclarowledges an exrra-rerritorial dimension of obiigations
under the ICCPR (Sr General Comment,.n1.32, para. 12),

/4
r Chopter SThe United Nations System

m Suplruisory bodyt The Human Righu Committee (which shouid not

x be confused with the UN Commission on Hlrman Righ$) is composed


of 18 independent experts wlro are elected for a period of four years,
S up erais ory rte c b anisnu,'

n . 'F.eporting
mechanism ('\rdcle 40); States Pardes must submit a reporr
every five years,

x . fntur-state clrnplaintt proqedure (Arpicles l.to 43): The proceiure is


optional. No parQr to &e Covenant has made use of the procedure
so far (see section 5.2.2 above).

x . Indiaidual cornplaints mechanisrn (First Optional Protocol to the


iCCPR): The'Comn:ittee's findings are called "views", The yiews
are published in a farm'that' has many of the characteristics of a

x Court judgement and may be iegarded as the Cornmiftee's case-law.


In 1990, the Commitree created the funcdon of Special Rapporteur
for the Follow-up of \ icws.

m
II
x
: Relevant Gmeral Coffirueits: No. 4, on equaliry of rights berween men
and women (Article 3) [i981]; No, 6, or, tir" righr io lift (Anicle 6)

:I [1982]; No. 8, on the rightto liberry and security of rhe person (Article
9) tI9821; No. 10, on freedom of opinion 6riicle 19) t19B3l; No. 13,
on equaliry before.the law (futicl,e 14) ll994::; No. i5, on the position
of aliens [1986]; No. 15, on rhe righrto privacy (Article 17) [1988]; No.
: 17, an the rights qf the
"hild
(Artide 24) il989l; No. 18, on non-
discrimination [1989]; No: 19, on rhe prorection of the family (Article
23) ll990l; No. 20, on rhe prohibition of torture or cruel, inhuman or
; degrading ueatment or punishment (Anicle 7) ll992l; No. 21, on the
treatment of persons dep;'ived of their liberry'(Article 10) [1992]; No.
22, on the freedom of thought, conscience, 4nd religion (Anicle 18)
; [1993]; No. 23, on the right of,minorities to enjoy, profess, and practice
their own culture (Ardcle 27) 11994); No. 27, on freedom of movemenr
(Article L2) ll999l. No. ?8,.0n thg,egualjty.of rights berween men and
; women (fudcle 3)'[2000]. Panicular attention should be paid to
General Comment No. i[, on rhe nature of the general obligations
x imposed on States Parties l2OO4), which inter alia emphasizis rhat
"Stutes Parties are require:l'by auticb 2, p*ragraph I, to res?ect and to
ruure the Couenant rights to all pertons who ntay be within their territory
:
:;

n, 75
Human Rights and Refugee Protection, Self-study Module 5,Volume I

and to all persons subject n their jurisdictioa'l further clarifies that "the
enjoyrnent of Couenant rights is not limited ta citizens of States Parties but
mwt abo be auaikbh to ai;ll indiuidudh, regardless of nationalirT or
statelessness, sach as asylutn seckers, refugees, migrant uorkers and other
Persons, qho mal fnd themselues in the tenltory or subject to the
jurisdiction of thi itat, P\rry". Particularly i*pori"rrt fo, tlh. work of
UNHCR'is the Human fughts Commitree's undersranding of the
extraterritorial dimension of human rights, emphasizing that the article
2 obligation requires "that States Parties respect and ensure the Couenant
righx for.all ?erszru in their territory and a/l prtons under their control
entails an obligation not to extradite, deport, expel or otherwise remoue d
person fom their territory,, where tltere are subttantial grounds
for belieuing
that there is a real rish pf ineparable harm, such as that contemplaud by
articles 6 and 7 of the Couen.ant, e:ither in the country to which remoual is to
be fficad,or in any cuuntty to which the person malt subsequently be
remoued.

5.3.3 lnternational Convention 9n the Elimination of All Forrns of


Racial Discrimination (CERD)
The CERD was'adopted by UNGA Resolution 2106 A QC() of 21
December i965. It'entered into force on 4 January 1969.

Mainfeatures: CERD contains a number of derailed prohibicions and


obligations ro prevenr discriminadon on tire'giounds of race, colour,
origin, and national or.ethnic background. The Convention bans
discrimination in relatiorl ro a range of rights, including the right to
equal treatment before uibunali, securiry of person, freedom of
movement and residence, the righr ro nationaliry, and the right co public
,health, medical care, social securiry and social services. States Parties
shall ensure effecrive procection and remedies againsr acrs of raciai
discrimination (Article 6), and States pledge ro combat prejudices tJrat
-Given
lead to raciai discriminadon (Article 7). the racial and ethnic
discrimination that refugees and. asylum-seellers often face in the asylum
country, and the various civil, polidcal, economic, social, and cultural
rights covered in this Convention, CERD may have a significanc impact
on the.lives of refugees and asylum-seekers.

Superuisory body: _The Committee ,on iJre Elimination of Racial


Discrimination, is composed of 18 independenr experrs elected for a
period offour years.

S up ert isory m ech an iyns :

. Reporting mechanism (furicle 9): States are required ro submit a


report every four years.
, Inter-state clrn?laints frechanism (futicle i l).
, Indiuidual compl^aints ntechanism (Articie 14).

76
;t Chapter 5 The lJnited Notions System

:t
;

k Releaant Gmeral Recommqn/ations No. ,7, on measures to eradicate

x incitement to or acts of discrimination (Articie 4) [1985]; No, 11, on


non-citizens t19931; No. 14, oir the definition of racial discrimination
(futicle l,.p4ragraph t) t1993]; No. 15, on measures to eradicate

x incitement to or acts'of discriminadon'(Article 4) 11993); No. 19, on


the prevention, prohibition, and eradication of racial segregation and
aparrheid (Aiticle 3) t19951; Nol22,' on refugees and displaced pgrsons
(Article f) t19961; No. 2t, on gender-related dimensions of racial
; discrimination [2000]; No. 27, on discrimination against Roma [2000];
and No. 30, on non-cidzens 120041, . ,

x 5.3.4 Convention on the Elimination of All Forms


Discrimination against irYomen (CEDAW)
of

The CEDATV was adopied by UNGA Resoludon 341fiA of 18


: December 1979.Itentered into force on 3 September 1981.
:

x Main features: This Convention sets out a series of obligations for


States with the aim of guaranteeing that women epjoy rights as on equal

r foodng with mq3. lhe CEDA\f sta1es {iat "affirmadve action" and
measures aimed at acceleratin1 di facto equiliry between men and
women will noi be considered discriminatory (Ardcle 4); that States
shall take dl appropriste; magrres to modify cultural patterns that

f perpetuate discrimirration (Anicle 5); that Stares undertake to supPress


trafficking, exploitation, and prostitution of'women (Article 6); and
,e"ognirei women's right to change.'and retain their own and their
chil&en's,nationaliry (fudcle 9). Pan III of the Convention stipulates
; that States must take appropriate rheasures to eliminate discriminarion
with regard to certain socPal and economic issues, such as education
(Article 10),'employmer,r (Anicle l1), and health (Article 12). In
: addition, Anicle 14 provides'several rights for rural women that are
relevant to rnany refugee lwom.n. Part IV provides for the right to
equaliry before the law (futicle 15)'and sripulates that States must
;
undemake measures to eliqinate discrimination regarding to marriage

x and family relations (futicie 16).

Supgrytgory ioay, The Committee ior th" Elimination of


Discrimination against \,'rorqg.q is,composed of 23 independent experts

I; elected for a period of four years by the Stares Parties to the Convention.
This Convention is served by'the Division iof the Advancement of
'\flomen

x
and is therefore ,:he only:treaty body whose secretariat functions

77
;
Human Rights ond Refugee Protection, Self-study Module 5,Volume I

are not'integrated in OHCHR This arrangemenr is presendy under


discussion. i

S up ertt iso ry tn e c b anim u :


, ; t.t ..t ,. -, ... .
. .t i -.
. RePorting system (Article 1B); Under the Convention the only
supervisory mechahism esrablished is rhe reporting rystem. Srates
Parties are required ro submit a reporr .u.ry for.r. y."ir.

In 1999, the UNG.A adopled an Optional Protocol to rhe


Convention on. the Elimination of all Forms of Discriminarion
againsr \7'omen (CEDAWO!). The Optional Protocoi, which
entered into force on 22 December 2000, provides a forum for
women asylum-seekers and refugees seeking redress for human rights
violations based on sex discrimination.
The Optional Protocol contains rwo addidonal supervisory
mechanisms: . .

. Inquiry ?rocedure (Anicle 8): The,Protocol sets out a unique inquiry


procedure that enables the Committee ro initiare inquiries into
situations of grave or systematic violadon of women's rights and that
aliows for counry visirs. The Protocol includes an "opt-our clause"
which allows Stares, upon radfication or accession, to decLare rhat
they do not accepr the inquiry procedur.e.

. Indiuidudl complaints mechanism (futicle'2): This procedure allows


individual woment 'or groups of women, to submir claims of
violations of the rights p.ot."r.d r.rrrder the Convention.

llltf,imgrt1l:""S:.Fpliflllqrl,1lE?Awcorunlttslr,; ', ,,, . ,,, . .:i, ,

complaints may.be"I[ed by of cjn behalf qf individuals or gioups of individuals subie6 to ,',


.theiririsdiaion prtne,stiti pahvrto the conyeption rrytro aiaim to bb victims of a violarion ,

, ola, Convention tright, The CEDAWjOP


Spicjfies dat if'a comntaini'('communJcaiionl i! ,

su.bgt!$g$ lq1,9S,tFll,-oj.ell!ssd,v!a!rlir',it aqst be wrth thbir co-nsent unless the author ,


, can juitiiy'actingol"thellbehaltwithoiriiuthconse_hr. i'I ,':' ,:"':'.i' .,,, , ''"''.,

Rebuant General Recomruendatiotu: No. J, on temporar;z special


measures [1988]; No. 12, on violence againsr womn [1989]; No. 14,
on female circumcision [1990]; No,lB, on disabled women [1991]; No.
19, on violence against women [1992]; and No. 24, on women and
health (Article 12) U999).

5.3.5 Gonvention Against Torture and Other Cruel, lnhuman or


Degrading Treatment or Punishment (CAT)
The cAT was adopted by uNGA Resolution 3914G of 10 December
1984. It entered into'force on26lune 1987.

Main feat4res.. Frorrb a UNHCR


perspective, the prohibition of
i* this insrrurnenr and offers a
refoulement is the most important feature
valuable protection tool, notably where states are nor parry to 1951

78
ffi
ii,l.i,
Chapter 5 The United Nagjfu System.
. .." r_,,". .':!.r
a-

ffi Conventioh or yyhere refugee status under the Convehtion has b.en."'
denied. This provision is broader than the non-refoulentent obligation
under A-rticle 33'of the 1951 Convention in as it does not require any
ffi link' to one of the five Convention grounds, nor does it foresee any
exceptional clause equivalent to Article 33(2) of the 1951 Convention.
It is, howwer, na{rower as it only refers to 'iubstantial grounds for
rc
frtit.,
belieuing" drat an individual would be in danger of being subjected to
torture, and rorture is only one of many possible manifestations of

x persecution. The CAT contains a deffnition of torture (futicle 1) rhat is


narower than that of the ICCPR or ECHR. States Parties are obliged to
take effective legislative, administrative or other measures ,o pr..,r.rr,

x
::: .:..
of tonure and establish that no excepdonal circumstances whatsoever
may be invoked as a justification of torture (futicle 2). Expulsion or
".*

x
refoulement is prohibited . u{ren ,there are grounds ro believe that an
individual wili be subjei:t to tofture (Article 3). Smtes musr ensure
:!.: remedy, re&ess, and reparation to victims of torture (Articles 13 and

x 14).

-.

m
r Superaisoty body:.The Committee against Torrure is composed of ten
independent experts elected to four-year tgrms.

n Sup eruisory tnechanisms :

r
Reporting mechanism (.r\rdcle 19): Stares rnust submir reporrs every
four years. The governmenrs concerned. may respond to the
commenrs with'their own observations (futicle i9t3]). The
.t
Committee may, ar irs discretion, decide ro include any comments

T or suggestions
with the
ir makcs in accordance wirh
observatious thereon received from.
paragraph 3,
the State
together
party

r concerned, in iu annual reporr made in accordance with article 24.


If so requested by thc State Parry concerned, the Commirtee may
also include a copy ol: the report submitted. (futicle l9l4)). Inter-

r .
swu conpkints m,echanism (Anicle 21): An opdonal procedure that
may only be used if both States concerned. have made a declaration
recogrrizing the comperence of the Committee.
.
Inquir! procedure (A.r'cicle 20)r If the Committee receives reliable
* information that conrains well-founded indications that tonure is

t being systematically pra*iced in the territo ry of a State Parry ii may

t 79
Human Rights and Refugee Protection, Self-study Module 5, Volume I

appoint one or more of its members to undertake a confidential


investigation. It may visit the. country in question with the consent
of its government. Such visi$ have, for example, been organized to
Sri Lanka.

5.3.6 Convention on the Rights of the Child (GRC)

The cRc was adopted by uNGA Resolution 44t25 on 20 November


1989. It entered into'force on 20 September i990'

Mainfeatur,es; According to this treary, a chil.d is any person beiow the


oi 18, unless urd.i applicable l"*s ,.-r"lOriry is attained earlier
"g.
(Article 1). The cRC sets out four guiding principles: the best interest
of the child shall be a prirnary consideration (futicle 3); there shall_be no
discrimination on grounds of race, colour, sex, language, religion'
polidcal or other opiniqr-r, national, ethnic or social origin, Properry'
disabiliry, birth or orher srarus (Article 2); each child has a fundamental
right to iife, survival, and development to the maximum extent possible
(futicle 6); and children should be assured rhe right to exPress their
views freely and thar they should be heard and their views be given "due
weight,, in accordance wirh the age and maturiry of the child (futicle
lz). In addition to these four guiding principles, the cRc provides for a
number of fundamental rights crucial for the protection of refirgees and
asylum-seekers, including preyenrion and reduction of stateiessness atld
birth registradon of children (futicle 7)
and economic, social and
cultural rights (futic1es27,28 and 31). It also focuses on the role of the
family in providing care to the child (futicies 20,27,22, and 23) znd
establishes the only explicit refugee protection provision in a universal
human rights instrumenr (futicle 22). This .orovision of an instrument,
which having been ratified by 192 states Parties - is globally the most
-
widely accepted human rights instrument, provides a particularly
important legal tool for UNHCR with regard to rhose states that are
noi parties to the 1951 Convention. Article 22 of the CRC Lequires
stares ro "take appropriate rneasures tu ensure that a child. who k seeking
a

80
I Chapter 5 The United Notions System

I refuge, statw 0r who is considered a ref-agee in accordance with applicable


international or dornestic kw and procedures shall, uthether unaccompanied

t 0r accom?anied by his or her ?arents or b7 any other person, receiue


appropriate protection and h*.manitarian assittance in the enjoyment of
applicable rigbt set forth ln the present Conuention and in other
I international human ights or humanitaian instruments to which the said
states are Parties. " It also provides a suong legal argument for the Srares'
obligarion to co-operate with TINHCR x Article 22(Z) further
I stipulares:

"For this purpose, States Parties shall prouide, as thry corusider apprcpriate,
co-operation in aqt ffirts b7 the Llnited Nations and otber conxpetent
I intergouernmerutal organizationi or non-glaernrnental organizatio)s co-
lPerating with the united Nations to ?rotect and assist such a child and to

I trace the parents 0r ltl)er members of the


to obtain inforrnation necesary
family of any refugee child iit order
for reunificarion with his or her family. In
cases where n0 parntt 0r lthr rnembers of the
family can be four:d, the
child shall be accorded the same protectiln ds any other child permanently or
T temporarily depriued of his or her family enuironment
for any reasln, ds tet
forth in the present Conuention.'! ,

I '!7'ith
192 Stares Pardes, the CRC is, therefore, particularly importanr.

on the of chiid
T

I
T

Superaisory mecbanism:
t441,
. Reporting slstem (Alcirlr The only supervisory mechanisrn
established by rhe CRC. Scates are required to submit a repori every
fi.re years.

t
8i
I
Human Rights and Refugee Protection, Self'study Module 5, Volume I

on 25 May 2000, rwo additional oprional Protocols ro the convention


on the Rights of the Child were adopted, one on the involvement of
children in armed conflict aird $e otfrer on the sale of children, child
prosdtution, and child pornography:
The Optional Protocol to the Conuention on thc Rights of the Child on the
Inuoluement of Children in Armed Conflict entered into force on 12
February 2002. The Protocol prohibits Starcs and other non-State
groups from reuuiting people under the age of 18 to the armed forces.
It requires that countries raise the minimum recruiting age above the age
set by the CRC and that they do everphing possible to keep people
under the age of 18 from taking direcr part in hostilities and take
precautions against the voluntary recruitmenr of people under dre age of
18. States must repoft to the Committee on their compliance with the
provisions of rhe Convention and thq Protocol.

The Optional Protocol to the Conuention on the Rights of the Child on the
Sate of Children, Chitd ,lrostitution and Child Pornography entered into
force on 18 January 2002. h supplements the CRC with detailed
requirements for criminalizing violations oF children's rights in relation
to the sale of children, child prosritution, and child pornography' The
Protocol defines the offences "sale of children", "child prostitution", and
"child pornography." It sets standards for treating violations under
domestic law, not just as they relate to offenders, but also as they relate
to prevention efforts and the Protection of victims. The Optional
Protocol also provides a framework,for greater international coopc'ration
in these areas, particularly for pqosecuting offienders'
Releuant General Cornruent: No. 3, on HIV/AIDS and the rights of
the child t2003] and No. 6, on the treatment of unaccompanied and
separated children outside their country of origin L2OO5), the iatter of
which, to a significant extent drafted by UNHC& also serves as a good
example of co-operation between treaty bodies and UNHCR in the
preparadon of general comments.

al
I Chapter S The United Notions System

I 5.3.7 tnternational Convention on the Protection of the Rights of

r All Migrant Workers and Members of Their Families (CnlW)

I Csmmittee on
Rights. Cornposed of
Ecsnomic, Social and Cultural ii.,lil : Slate
.l,8
experts.
". ""
].i::,, ,St te,report5eye1y,syearr,tertlii.tt,iill:
report5,

' , ',
j,':,
, ,ffiitl",-,,-
i
,
. ,:
...1',,- - ,-, ';
,.
;:' i

'

of jt i,;.:' ,: State.1eporls eVbry,Siiarg{Ar,tiCteO6j ,,:,,,r11;,:,,:


I Human Rights Commitree. Composed
experts(Article2S).
osed or'tj.ij',,','i'rtt.1en!r'ls,,evbus,iiaetA.tlc1e+ol',i
:: i
i .i.,:lnter:state,complaints
i,.+ (Article4l)
,
r,,

I
I -----
-*..:-- .
"-r-**.--;^"-...-^;-..*;-- , ,f r.rr.r : :)...:.:,.:. r-r-,-_t Jr::1re:-,,.)---)".at:,:),lt^r,1y;J

r r,
:
i
:r
Discrimination. Composed of l8 experts (Article g). i

i
i ,lil,
r:irr :r,.irr:.,r-:.r,::l:r.:::
.,:lntgr,lq1atq complaints (Afticle I 1)
I fr : i.:.:,::.:.r.:i

r CRC

CAT
; cornr:nittee on rhe Rights of the child. composed

.,:; i committee. against To(ure. composed of


j*
i
stqtu ,.ports every 5 yea6 (Art;cle 44)

10 i iii,,,srgier.porti.r.1y4r*uruteni.il r,si
iexperrs(ArricrJlT)l
I 1;.,fiJ;;;iiil;ffi;;;;;,'|.',
lnter-state iomplaints (Anicle
,: : 2I)

r
: :,,
lndividual cor.nplaints (Arri( ic 22)
i

. Conirminee
i lurr I ilrLrsE r.rnI rhe
vr lr rq Proiection ut
rruleLLtuil of ,the
Ule illonlS el[i,i .,
of AIL
Rights 0I _S1a1e, re go, rts, evety,5r ye" f 5 (Afi iqle 73)

, ysjlT}lt:::
of Theii Fam;ries.'i 'r:.

r I
ll9-y:Ibers
|, Composedatpi:esentofloexpens(AnliteZzi, : l
l'l
:
* lnterstate ;rrptaints (nrticle Z6)
i
Individual con plaints (Artiale 77)
.'..

rr: .l:i
,!I
,,:i:i.::.,:::i
I

I The cM'!fl was adopted by UNGA Resolution 45ll5B of


1990. It entered into force on I July 2003.

Main features: The convention seeks ro prevenr and eliminate


lg December

the
exploitacion of migrant workers throughout rhe entire migrarion piocess
T by providing a ser of binding internarional standards to address the
trearment, welfare, and human righrs of both documented. and

I undocumenred migranrs. It also sers out the obligations and


responsibilities on the part of sending and receiving states. According ro
futicle 3, this convention shall nbt apply to "refugees and stareless

I Persons, unless such appiication is provided


iegislation of, or international instruments
concerned."
fcr in the relevant naiional
in force for, rhe state parry

I dJ