Lecture Notes - Human Rights Lecture Notes - Human Rights

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Lecture notes - human rights
Legal Protection of International Human Rights (Murdoch University)
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List of human rights:
 Freedom of speech/expression
 Right to shelter – to have a home (UDHR – right to adequate standard of

living: medical, housing, food etc – things to sustain ourselves)
 Freedom of movement
 Right to seek asylum
 Right to property – right not to be arbitrarily deprived of your property.

Interesting because not in list. Fell out because of ideological split in Cold
War. Former communist states arguing against right to property.
 Freedom from torture and cruel, inhumane or degrading treatment. Torture has
to be carried out for particular purpose e.g. Info. Distinct from cruelty in its
own case.
 Freedom to practice own religion
 Right to a fair trial and in public
 Presumption of innocence
 Freedom from forced labor
 Right to education – development of well-being
 Freedom from discrimination –
 Right to privacy – human dignity not to have every element of private life
debated
 Right to participate in government (controversial)
 Freedom from arbitrary arrest, detention etc
 Right to work
 Right to leisure
 Right to social security

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Defining human rights

Human rights are commonly understood as being those rights, which are inherent in
the mere fact of being human. The concept of human rights is based on the belief that
every human being is entitled to enjoy her/his rights without discrimination.
Explaining Human Rights
1. Natural Rights and Social Contracts
Locke
 Men were subject to the law of nature, where they were in a state of equality and
they possessed certain freedoms.
 Locke argued however, that men had agreed to enter into a political community in
order to better secure what might be described as fundamental rights.
 Certain rights were to be surrendered on entry into the political community but
this would allow the greater enjoyment of the fundamental rights: the rights to life,
liberty and property.
 Government existed in order to better secure the rights to life, liberty and property
and did not, according to Locke, have the power to arbitrarily limit them.
 A government that attempted to limit these fundamental rights could be resisted.
 For Locke, the people (or more accurately the men) appeared to be the source of
the authority to govern.
Montesquieu
 People come together and organize in communities and State that exercises power,
out of utility because it progresses wealthier. Without it, you’re not well off.
Hence, it produces and contributes to general welfare and community state will
flourish.
Examples:
a) American Declaration of Independence refers to ‘life, liberty and the pursuit

of happiness’.
b) The French Declaration of the Rights of Man and of the Citizen:

o Influenced by the American Declaration of Independence – included
commitments to life, liberty and property; due process rights, freedom
of religion, and communication of thoughts and opinions
Thomas Paine (social contract theorist)
 Natural rights belong to man in right of his existence

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 Paine argued that certain civil rights originated from these natural rights. “Civil
rights are those which appertain to man in right of his being a member of society.”
 Paine also believed in the importance of a constitution and the separation of

powers and argued that the authority of government came from the people.
 Finally, Paine advocated provision by government of social support to families,

for education and the support of the elderly. “For Paine this was not a matter of
charity but of right, apparently because the poor paid direct and indirect taxes.”
Attacks upon the Concept of Natural Rights
2. Positivism (Jeremy Bentham)
 When government is deciding on a course of conduct, it ought not to be

constrained by any of these so-called natural rights. Decisions of governments
should instead be based on the maximisation of utility, i.e. securing the greatest
happiness of the greatest number. Utilitarianism (and later variations on the
theory, often referred to as consequentialism) is therefore generally hostile to the
notion of rights.
 But without thought of natural rights, can have bad consequences like example;
Nazi Regime where there was a legal govt. but used power for lots of destruction;
legal but no justice.
3. Human Rights and Justice
Rawls and Dworkin:

 Justice is valid if the individual is afforded protections of that individuality
 Provide a basis for the need of protection of liberty
 Rawls identifies two ‘principles of justice’:
a) Each person has an equal right to a fully adequate scheme of equal basic
liberties, which is compatible with a similar scheme of liberties for all.
b) Social and economic inequalities are to satisfy two conditions. First, they
must be attached to offices and positions open to all under conditions of fair
equality of opportunity; and second, they must be to the greatest benefit of the
least advantaged members of society.
4. Human Dignity and Human Rights
 Another version of religious/natural law view

 Concept of human dignity is something special about human beings that they are
born with – space of autonomy
5. Inalienability of Human Rights

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 One absolute right – right to existence (natural persons)

 Right to due process (e.g. free speech)
 Legally treated as people
Functions of Human Rights
 Defence against government intrusion: freedoms directed primarily against

state/government
Obligations to respect: In general, this level of obligation requires the state to

refrain from any measure that may deprive individuals of the enjoyment of
their rights or of the ability to satisfy those rights by their own efforts.
 Objective Function: Permeating the law and its interpretation
 Duty to ProtectActively protect a right
Obligations to protect: This level of obligation requires the state to prevent

violations of human rights by third parties. The obligation to protect is
normally taken to be a central function of states, which have to prevent
irreparable harm from being inflicted upon members of society. This requires
states: a) to prevent violations of rights by any individual or non-state actor; b)
to avoid and eliminate incentives to violate rights by third parties; and c) to
provide access to legal remedies when violations have occurred in order to
prevent further deprivations.
 Participationsocial state principal, sharing in certain public goods (equal access)
Obligations to fulfill: This level of obligation requires the state to take

measures to ensure, for persons within its jurisdiction, opportunities to obtain
satisfaction of the basic needs as recognised in human rights instruments,
which cannot be secured by personal efforts. Although this is the key state
obligation in relation to economic, social and cultural rights, the duty to fulfill
also arises in respect to civil and political rights. It is clear that enforcing, for
instance, the prohibition of torture (which requires, for example, police
training and preventive measures), the right to a fair trial (which requires
investments in courts and judges), the right of free and fair elections or the
right to legal assistance, entails considerable cost.
 Entitlements? To construe Human Rights as entitlements to things requiring

financial resources poses problems
Case Study: The Andrew Bolt Case (Eatock v Bolt [2011] FCA)

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Functional perspective of right to free speech
Defensive Function:
“Government, leave me alone, do not interfere with my speech”!
Objective Function:
Interpretation of the language of Sec. 18C – limiting the restricting scope of this
provision as far as the rules of statutory interpretation allow
Duty to Protect Function:
“Government, do something! Stop this racial (etc) vilification! Protect my personal

honour, integrity etc.!”
How do rights (here: free speech) work perspective
HUMAN RIGHTS IN INTERNATIONAL LAW
In international law, human rights are recognised in three principal ways:
> International treaties, covenants and conventions (also known as ‘treaty law’)
> Customary international law
> Resolutions of the United Nations General Assembly.
UN-System of Human Right Protection

UN Charter – International treaty of its member states
Article 1 defines one of the objectives of the UN as: ‘promoting and encouraging
respect for human rights and for fundamental freedoms for all without distinction as
to race, sex, language or religion’.
Article 55 describes the purposes of the UN in international co-operation, which
include under (c): ‘universal respect for, and observance of human rights and
fundamental freedoms for all without discrimination as to race, sex, language, or
religion’. Article 56 contains a pledge by all members ‘to take joint and separate
action in co-operation with the Organisation for the achievement of the purposes set
forth in Article 55’.
Article 68 authorises the ECOSOC to set up commissions ‘in economic and social
fields and for the promotion of human rights’.
Human Rights Protection Mechanisms under International Law
International law requires States to protect human rights under their municipal law.

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First, consider bodies with responsibilities for global protection of human rights,
including:
 Bodies provided for in the UN Charter, for example:

o The UN General Assembly,
o The Security Council,
o ECOSOC,
o The Commission on Human Rights.
 Bodies created by Charter bodies, for example:

o The Sub-commission on the Promotion and Protection of Human
Rights,
o The Commission on the Status of Women.
 ‘Specialised agencies’ – bodies not created by the Charter or Charter bodies,

but in a formal relationship with the UN. For example,
o The ILO.
 Others owe their existence to human rights treaties negotiated after the
establishment of the UN – for example:
o The Human Rights Committee established under the ICCPR.
 In 1997, the Committee that overseas the ICESCR issued General Comment
Number 8, on human rights and economic sanctions (see booklet for full text):
General Comment No. 8 (1997)
The relationship between economic sanctions and respect

For economic, social and cultural rights
1. Economic sanctions are being imposed with increasing frequency,

internationally, regionally and unilaterally. The purpose of this general
comment is to emphasize that, whatever the circumstances, such sanctions
should always take full account of the provisions of the International
Covenant on Economic, Social and Cultural Rights. The Committee does
not in any way call into question the necessity for the imposition of sanctions
in appropriate cases in accordance with Chapter VII of the Charter of the
United Nations or other applicable international law. But those provisions of
the Charter that relate to human rights (Articles 1, 55 and 56) must still be
considered to be fully applicable in such cases.
2. During the 1990s the Security Council has imposed sanctions of varying
kind and duration in relation to South Africa, Iraq/Kuwait, parts of the
former Yugoslavia, Somalia, the Libyan Arab Jamahiriya, Liberia, Haiti,
Angola, Rwanda and the Sudan. …
3. While the impact of sanctions varies from one case to another, the
Committee is aware that they almost always have a dramatic impact on the

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rights recognized in the Covenant. Thus, for example, they often cause
significant disruption in the distribution of food, pharmaceuticals and
sanitation supplies, jeopardize the quality of food and the availability of
clean drinking water, severely interfere with the functioning of basic health
and education systems, and undermine the right to work. In addition, their
unintended consequences can include reinforcement of the power of
oppressive élites, the emergence, almost invariably, of a black market and
the generation of huge windfall profits for the privileged élites which
manage it, enhancement of the control of the governing élites over the
population at large, and restriction of opportunities to seek asylum or to
manifest political opposition. While the phenomena mentioned in the
preceding sentence are essentially political in nature, they also have a major
additional impact on the enjoyment of economic, social and cultural rights.
4. In considering sanctions, it is essential to distinguish between the basic

objective of applying political and economic pressure upon the governing élite
of the country to persuade them to conform to international law, and the
collateral infliction of suffering upon the most vulnerable groups within the
targeted country. For that reason, the sanctions regimes established by the
Security Council now include humanitarian exemptions designed to permit
the flow of essential goods and services destined for humanitarian purposes.
It is commonly assumed that these exemptions ensure basic respect for
economic, social and cultural rights within the targeted country.
5. However, a number of recent United Nations and other studies, which have
analysed the impact of sanctions, have concluded that these exemptions do not
have this effect. Moreover, the exemptions are very limited in scope. They
do not address, for example, the question of access to primary education,
nor do they provide for repairs to infrastructures, which are essential to
provide clean water, adequate health care etc. …
6. It is thus clear, on the basis of an impressive array of both country-

specific and general studies that insufficient attention is being paid to the
impact of sanctions on vulnerable groups. Nevertheless, for various
reasons, these studies have not examined specifically the nefarious
consequences that ensue for the enjoyment of economic, social and cultural
rights, per se. It is in fact apparent that in most, if not all, cases, those
consequences have either not been taken into account at all or not given the
serious consideration they deserve. There is thus a need to inject a human
rights dimension into deliberations on this issue.
7. The Committee considers that the provisions of the Covenant, virtually all
of which are also reflected in a range of other human rights treaties as well
as the Universal Declaration of Human Rights, cannot be considered to be
inoperative, or in any way inapplicable, solely because a decision has been
taken that considerations of international peace and security warrant the
imposition of sanctions. Just as the international community insists that any
targeted State must respect the civil and political rights of its citizens, so too
must that State and the international community itself do everything possible
to protect at least the core content of the economic, social and cultural rights

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of the affected peoples of that State (see also General Comment 3 (1990),
paragraph 10).
9. Although the Committee has no role to play in relation to decisions to

impose or not to impose sanctions, it does, however, have a responsibility to
monitor compliance by all States parties with the Covenant. When
measures are taken which inhibit the ability of a State party to meet its
obligations under the Covenant, the terms of sanctions and the manner in
which they are implemented become appropriate matters for concern for the
Committee.
10. The Committee believes that two sets of obligations flow from these
considerations. The first set relates to the affected State. The imposition of
sanctions does not in any way nullify or diminish the relevant obligations of
that State party. As in other comparable situations, those obligations assume
greater practical importance in times of particular hardship. The Committee is
thus called upon to scrutinize very carefully the extent to which the State
concerned has taken steps “to the maximum of its available resources” to
provide the greatest possible protection for the economic, social and cultural
rights of each individual living within its jurisdiction. While sanctions will
inevitably diminish the capacity of the affected State to fund or support
some of the necessary measures, the State remains under an obligation to
ensure the absence of discrimination in relation to the enjoyment of these
rights, and to take all possible measures, including negotiations with other
States and the international community, to reduce to a minimum the
negative impact upon the rights of vulnerable groups within the society.
11. The second set of obligations relates to the party or parties responsible
for the imposition, maintenance or implementation of the sanctions,
whether it is the international community, an international or regional
organization, or a State or group of States. In this respect, the Committee
considers that there are three conclusions, which follow logically from the
recognition of economic, social and cultural human rights.
12. First, these rights must be taken fully into account when designing an
appropriate sanctions regime. Without endorsing any particular measures in
this regard, the Committee notes proposals such as those calling for the
creation of a United Nations mechanism for anticipating and tracking
sanctions impacts, the elaboration of a more transparent set of agreed
principles and procedures based on respect for human rights, the identification
of a wider range of exempt goods and services, the authorization of agreed
technical agencies to determine necessary exemptions, the creation of a better
resourced set of sanctions committees, more precise targeting of the
vulnerabilities of those whose behaviour the international community wishes
to change, and the introduction of greater overall flexibility.
13. Second, effective monitoring, which is always required under the terms
of the Covenant, should be undertaken throughout the period that sanctions
are in force.

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14. Third, the external entity has an obligation “to take steps, individually
and through international assistance and cooperation, especially economic
and technical” in order to respond to any disproportionate suffering
experienced by vulnerable groups within the targeted country.
16. In adopting this general comment the sole aim of the Committee is to draw
attention to the fact that the inhabitants of a given country do not forfeit their
basic economic, social and cultural rights by virtue of any determination that
their leaders have violated norms relating to international peace and security.
The aim is not to give support or encouragement to such leaders, nor is it to
undermine the legitimate interests of the international community in
enforcing respect for the provisions of the Charter of the United Nations
and the general principles of international law. Rather, it is to insist that
lawlessness of one kind should not be met by lawlessness of another kind,
which pays no heed to the fundamental rights that underlie and give legitimacy
to any such collective action.
Complaints Procedures under ECOSOC Resolutions 1235 and 1503
In 1967, ECOSOC established a public complaints procedure to investigate and

report on consistent patterns of gross violations of human rights: the Resolution 1235
procedure.
In 1970, ECOSOC established a private complaints procedure: the Resolution 1503

procedure.
The Resolution 1503 procedure: private complaints
Established in 1970. (The use of both the Resolution 1235 and Resolution 1503
procedures was expanded in 1979.)
Established with the support of former colonies and socialist States who sought to use
it against the racist regimes of southern Africa.
Often used as a precursor to scrutiny under the Resolution 1235 procedure.
From 1972 to 2002, 84 States were subject to scrutiny under Resolution 1235.
Essential procedure:
 Initial consideration by a working group of the Sub-Commission.

o It has been estimated that the Commission receives approximately 50
000 distinct complaints per year: Steiner and Alston.
 The working group refers situations to the Commission where they meet
various required admissibility criteria, including ‘a consistent pattern of gross
and reliably attested violations of human rights and fundamental freedoms’.
 Once determined to be admissible, the Commission invites the relevant
government to respond to the situation.

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 If no satisfactory response is made, the Commission makes a public statement,

indicating that the State is under consideration under the Resolution 1503
procedure.
o No other details are officially released (though leaks do occur).
o No other public statement is made.
Opposition:
 In the mid-1970s, Amnesty International described the procedure as “an
undisguised stratagem for using the United Nations, not as an instrument for
promoting and protecting and exposing large-scale violations of human rights,
but rather for concealing their occurrence.”
Supporters:
 Defenders of the procedure argue that it facilitates subsequent review via the
public procedures.
 It is also said to provide an “incremental technique for placing gradually
increasing pressure on offending governments”.
The Resolution 1235 procedure: public complaints
Application: to ‘gross violations of human rights and fundamental freedoms’.
The procedure is the foundation for two activities:

1. An annual public debate during the Commission’s annual session.
o Governments and NGOs identify publicly those country-specific
situations they consider to merit the Commission’s attention.
2. A Commission study or investigation of a particular situation or individual
case.
o This is by ‘whichever techniques’ the Commission considers
appropriate.
o (Only a small proportion of situations are investigated under this
procedure.)
If the Commission decides to take up a ‘situation’, various options are open to it:
 The Commission can decide to provide the State with ‘advisory services’.
o A State might avoid condemnation this way.
 The Commission could undertake a country examination.
o These are entrusted to:
 An individual expert, or
 An expert body.
o These experts:
 Receive complaints,
 Intervene with governments on their behalf,
 Carry out country visits,
 Research and study issues of concern,
 Report to the Commission, and sometimes to the General
Assembly.
o Experts have complained of inadequate administrative assistance.

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o Steiner and Alston say there has been ‘considerable unevenness’ in the
reports’ quality, but that the overall quality ‘has been strong’.
 The Commission can adopt a resolution criticising the government and calling
on it to take specific measures.
Thematic Approach
The Thematic Approach is a third approach. It began in 1980.
The Thematic Approach does not openly focus on particular States – instead, it looks
at particular rights and relevant State practice.
The first thematic inquiry related to disappearances.

 It was apparently directed at Argentina, but government support for naming
Argentina was lacking.
Inquires are generally conducted by either:

 An independent expert (a ‘special rapporteur’), or
 A group of such experts (a ‘Working Group’).
There are currently 25 thematic inquiries under way, including:

 Arbitrary Detention;
 Sale of children, child prostitution and child pornography;
 Right of everyone to the enjoyment of the highest attainable standard of
physical and mental health;
 Enforced or Involuntary Disappearances;
 Protection of persons from enforced or involuntary disappearance;
 Right to education;
 Extrajudicial, summary or arbitrary executions;
 Right to food;
 Adequate housing;
 Human rights and fundamental freedoms of indigenous people;
 Independence of judges and lawyers;
 Promotion and protection of the right to freedom of opinion and expression;
 Freedom of religion or belief;
 Internally displaced persons;
 Use of mercenaries as a means of impeding the exercise of the right of peoples
to self-determination;
 Human rights of migrants;
 Human rights and extreme poverty;
 Contemporary forms of racism, racial discrimination, xenophobia and related
intolerance;
 Problems of racial discrimination faced by people of African descent;
 Structural adjustment policies and foreign debt;
 Torture;
 Adverse effects of the illicit movement and dumping of toxic and dangerous
products and wastes on the enjoyment of human rights; and
 Violence against women, its causes and consequences.

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These mechanisms can be used to focus on conditions in particular States.
Techniques used include:

 Requests to governments for information on specific cases,
 An urgent action procedure, involving a request that a government take
immediate action to rectify or clarify a case,
 On-site visits for a more intensive examination – either of specific cases or the
overall situation,
 Submission to the UN Commission of detailed reports containing conclusions
and recommendations for further action.
Case study: The Working Group on Arbitrary Detention
 Established in 1991.
 Mandate expanded in 1997 to include arbitrary detention of immigrants and
asylum-seekers.
 The Group has three principal activities:
o To receive communications of individual detainees and issue opinions
on their detention.
 In 1998, the Group issued 21 opinions concerning 91 persons in
15 States.
 Four of the 91 were subsequently released.
o To issue urgent appeals in relation to individuals.
 In 1998, the Group issued 83 appeals to 37 governments in
relation to 763 individuals.
 13 governments replied.
o To seek and accept invitations to visit States about which the Group
has concerns.
 The Working Group visited Australia in 2002 to examine
detention practices in relation to asylum seekers.
 In its subsequent report, the Group raised several
concerns regarding mandatory detention of asylum
seekers.
Problems and Criticisms
General problems with thematic mechanisms:

 Inadequate financial and human resources,
 Overlapping mandates,
 Insufficient coordination,
 Dilution of pressure on States resulting from scrutiny under the mechanisms
due to their proliferation.
Problems with the Resolution 1503, Resolution 1235 and thematic approaches
together:
 In practice, there is considerable overlap between these.
o Different aspects of a particular situation might be reviewed using each
procedure.
o There is the potential for simultaneous consideration by a global or
regional treaty body.

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NGO concerns with the Commission:

 The number of repressive regimes now controlling seats on the Commission.
o Current members include Sudan, Zimbabwe, Cuba and China.
 Repressive regimes are using the need for reform to justify introducing
reforms that would undermine the effectiveness of the Commission.
 Developed States have been criticised for their opposition to the establishment
of a thematic procedure examining human rights and counter-terrorist
measures, and for obstructing scrutiny of their allies in the campaign against
terrorism.
Human Rights Watch asserted in 2003 that the Commission on Human Rights was in
“serious decline”.
The Commission on the Status of Women
The Commission reports to ECOSOC on “policies to promote women’s rights in the

political, economic, civil, social and educational fields”.
It is a representative body, comprising 45 State members.
The Commission was involved in drafting CEDAW and the optional protocol to
CEDAW.
Criticisms:
 The Commission is chronically under-funded.
 It usually meets for only eight days per year.
 There have been a number of attempts to disband it.
Defences:
 The Commission has made a positive contribution to standard setting in
relation to women’s human rights.
 The Commission’s focus has not been limited to traditional equality-based
concerns – it has also (for example) focused on the impact of development on
women’s rights.
General Comments
All the Committees issue General Comments on the operation of their respective
treaties.
These relate to topics including:

 Assisting States with reporting obligations,
 Interpretation of substantive rights and related obligations.
Helfer and Slaughter question the usefulness of general comments for specific cases
of violations.
Rights of Individual Petition

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Some Conventions allow States to agree to individual petition to the treaty bodies.
The Human Rights Committee is the most significant in this regard. We focus upon
that.
The Scope of the Right of Individual Petition – ICCPR Optional Protocol
In June 2004, 104 States were parties to the Optional Protocol to the ICCPR.
Substantive provisions of the Optional Protocol:
Optional Protocol to the International Covenant on Civil and Political Rights

Adopted and opened for signature, ratification and accession by
General Assembly resolution 2200A (XXI) of 16 December 1966
Entry into force 23 March 1976
The States Parties to the present Protocol,

Considering that in order further to achieve the purposes of the International
Covenant on Civil and Political Rights (hereinafter referred to as the
Covenant) and the implementation of its provisions it would be appropriate to
enable the Human Rights Committee set up in part IV of the Covenant
(hereinafter referred to as the Committee) to receive and consider, as provided
in the present Protocol, communications from individuals claiming to be
victims of violations of any of the rights set forth in the Covenant.
Have agreed as follows:
Article 1
A State Party to the Covenant that becomes a Party to the present Protocol
recognizes the competence of the Committee to receive and consider
communications from individuals subject to its jurisdiction who claim to be
victims of a violation by that State Party of any of the rights set forth in the
Covenant. The Committee shall receive no communication if it concerns a
State Party to the Covenant, which is not a Party to the present Protocol.
Article 2
Subject to the provisions of article 1, individuals who claim that any of their
rights enumerated in the Covenant have been violated and who have
exhausted all available domestic remedies may submit a written
communication to the Committee for consideration.
Article 3
The Committee shall consider inadmissible any communication under the
present Protocol which is anonymous, or which it considers to be an abuse
of the right of submission of such communications or to be incompatible with
the provisions of the Covenant.

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Article 4
1. Subject to the provisions of article 3, the Committee shall bring any
communications submitted to it under the present Protocol to the attention
of the State Party to the present Protocol alleged to be violating any provision
of the Covenant.
2. Within six months, the receiving State shall submit to the Committee
written explanations or statements clarifying the matter and the remedy, if
any, that may have been taken by that State.
Article 5
1. The Committee shall consider communications received under the present
Protocol in the light of all written information made available to it by the
individual and by the State Party concerned.
2. The Committee shall not consider any communication from an individual
unless it has ascertained that:
(a) The same matter is not being examined under another procedure of
international investigation or settlement;
(b) The individual has exhausted all available domestic remedies. This shall
not be the rule where the application of the remedies is unreasonably
prolonged.
3. The Committee shall hold closed meetings when examining
communications under the present Protocol.
4. The Committee shall forward its views to the State Party concerned and to
the individual.
Article 6
The Committee shall include in its annual report under article 45 of the
Covenant a summary of its activities under the present Protocol.
Article 7
Pending the achievement of the objectives of resolution 1514(XV) adopted by
the General Assembly of the United Nations on 14 December 1960 concerning
the Declaration on the Granting of Independence to Colonial Countries and
Peoples, the provisions of the present Protocol shall in no way limit the right
of petition granted to these peoples by the Charter of the United Nations and
other international conventions and instruments under the United Nations
and its specialized agencies.
Notable features:
 Individual petition is not dependent upon showing any systematic or
widespread abuse of human rights.
o The Committees may hear complaints even of isolated and atypical
violations.
 The treaties do not provide for oral hearings.
 The Human Rights Committee has developed a procedure for requesting that
States the subject of a communication do not take any action that would
undermine the position of the complainant, pending the Committee’s
consideration.
o This is not specifically provided for in the Optional Protocol to the
ICCPR.

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o However, specific provision for such ‘interim measures’ is made in the

Optional Protocol to CEDAW.
 Once the Human Rights Committee has reached its “views” as to whether
there has been a violation of the ICCPR, the practice of the Committee is to
recommend that a State found to be in violation take specified measures to
bring itself into conformity with the ICCPR.
o Such recommendations now often include the provision of
compensation for the victim of the violation.
 There is no mechanism set out in the Optional Protocol for formal follow-up
as to whether recommendations of the Committee have been complied with.
o The Committee has, however, developed the practice of requesting a
report within 90 days of measures taken to comply with the ICCPR.
The Committee notes non-compliance with its views by including a
description of the non-compliance in its annual report to the UN
General Assembly.
Individual Petition Rights - Problems
Access Problems
States with relatively good human rights records have a surprising number of
violations identified by the Committee – despite States with poor human rights
records being parties to the Optional Protocol.
Elizabeth Evatt (former member of the Human Rights Committee), has suggested a
number of reasons:
 Victims of abuse by oppressive States may be reluctant to challenge their
government in the Committee.
 Victims may not see the usefulness of the communications procedure.
 Victims may have no knowledge of the international human rights procedures.
 Victims may lack resources to seek legal advice.
Procedural Problems
The jurisprudence of the Human Rights Committee seems ‘less developed’ than that
of the European Court of Human Rights – the Committee does not go to the same
lengths in its published reasons.
One key reason seems to be the desire for consensus.
Resource Problems
Poor resourcing also contributes to the problem.
 The Human Rights Committee receives approximately 2500 complaints

annually (though many of these are found to be inadmissible).
 Committee Members have suggested that, with the current level of resourcing,
they are able to prepare approximately 30 views per year.
 (Well over a billion people have rights of individual complaint under the
Optional Protocol!)

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Poor resourcing also reduces the Committee’s ability to follow up States found to
have violated the ICCPR.
 According to the Committee, it receives satisfactory responses in
approximately 30% of cases in which follow-up information is provided.
Enforcement Problems
The Human Rights Committee is not a judicial body, so can only express ‘views’.
If a State rejects or ignores the Committee’s views, it is subject to no further legal

sanction.
 (Except perhaps a general ICJ claim, if jurisdiction has been accepted – and
then, the point would need to be argued again.)
This was clear in the case of A v Australia:

 The Committee issued its view that Australia’s detention of a Cambodian
national seeking asylum violated the ICCPR.
 The Australian Government argued that the Committee was wrong in its
interpretation of the ICCPR.
 All the Committee could do in response was to include critical comments in its
report to the General Assembly in 1998 and in its concluding observations on
Australia’s Article 40 report in 2000.
Brevity of Committee Views
Brevity of views seems to be the general feature of the Human Rights Committee’s
jurisprudence.
 For example, the CERD Committee gave very brief reasons when criticising
the Australian Government’s response to the Wik decision.
One proposal to respond to this:

 That the Committee should exercise a discretion regarding whether or not to
hear particular individual complaints.
 Steiner offers this suggestion.
o However, Steiner notes that this could include a commitment to hear
all communications relating to certain matters, such as the right to life.
The Effectiveness of the Treaty Based Mechanisms
Compliance seems extremely limited – eg note the statistic that only 30% of the cases
in which a violation was found have received State responses.
It is possible that the existence of the legal mechanism may encourage compliance
without needing to resort to the actual mechanism.
 ‘Bargaining in the shadow of the law’
However, given the absence of sanctions, it is difficult to see how this can be
significant!

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Nonetheless, cataloguing the violations serves a beneficial symbolic function.
The Ultimate Problem – Lack of Political Support from States
Both dictatorships and democracies can be hostile to international supervision of their

record on human rights.
This seems to reflect an underlying tension between the majoritarian nature of

democracies and the capacity of human rights standards to provide protection to
minorities that lack majority support.
It is difficult to see this tension – or problems of funding, etc – ever completely

disappearing.
Concluding Comments on Charter and Treaty Based Mechanisms to Protect Human

Rights
Treaty-based mechanisms are narrower in focus than the Charter-based mechanisms –

both in
 The substantive rights the subject of consideration and in
 The States subject to scrutiny.
The manner of scrutiny by treaty-based bodies is also more legalistic.
Steiner and Alston draw the following contrasts:

 Compared to treaty-based organs, Charter-based organs generally:
o Focus on a diverse range of issues,
o Insist that every state is an actual or potential respondent,
o Work on the basis of a constantly expanding mandate that is capable of
responding to crises as they emerge,
o Engage, as a last resort, in adversarial action against States,
o Rely more heavily on NGO inputs and public opinion to ensure the
effectiveness of their work,
o Take decisions by often strongly-contested majority voting,
o Pay little attention to normative issues,
o Are very wary about establishing specific procedural frameworks
within which to work.
International Labour Organization
Labour rights as human rights
Human rights protected by international law including labour-related human rights.

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The right to freedom of association is set out in the ICCPR in Article 22:
1. Everyone shall have the right to freedom of association with others,

including the right to form and join trade unions for the protection of his
interests.
2. No restrictions may be placed on the exercise of this right other than those
which are prescribed by law and which are necessary in a democratic society
in the interests of national security or public safety, public order (ordre
public), the protection of public health or morals or the protection of the rights
and freedoms of others. This article shall not prevent the imposition of lawful
restrictions on members of the armed forces and of the police in their exercise
of this right.
3. Nothing in this article shall authorize States Parties to the International

Labour Organization Convention of 1948 concerning Freedom of Association
and Protection of the Right to Organize to take legislative measures which
would prejudice, or to apply the law in such a manner as to prejudice, the
guarantees provided for in that Convention.
Labour rights are treated in more detail in the ICESCR:
Article 6
1. The States Parties to the present Covenant recognize the right to work,
which includes the right of everyone to the opportunity to gain his living by
work which he freely chooses or accepts, and will take appropriate steps to
safeguard this right.
2. The steps to be taken by a State Party to the present Covenant to achieve the
full realization of this right shall include technical and vocational guidance
and training programmes, policies and techniques to achieve steady
economic, social and cultural development and full and productive
employment under conditions safeguarding fundamental political and
economic freedoms to the individual.
Article 7
The States Parties to the present Covenant recognize the right of everyone to
the enjoyment of just and favourable conditions of work which ensure, in
particular:
(a) Remuneration, which provides all workers, as a minimum, with:
(i) Fair wages and equal remuneration for work of equal value
without distinction of any kind, in particular women being guaranteed
conditions of work not inferior to those enjoyed by men, with equal pay
for equal work;

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(ii) A decent living for themselves and their families in accordance

with the provisions of the present Covenant;
(b) Safe and healthy working conditions;
(c) Equal opportunity for everyone to be promoted in his employment to an

appropriate higher level, subject to no considerations other than those of
seniority and competence;
(d) Rest, leisure and reasonable limitation of working hours and periodic
holidays with pay, as well as remuneration for public holidays.
Article 8
1. The States Parties to the present Covenant undertake to ensure:
(a) The right of everyone to form trade unions and join the trade union of
his choice, subject only to the rules of the organization concerned, for the
promotion and protection of his economic and social interests. No restrictions
may be placed on the exercise of this right other than those prescribed by law
and which are necessary in a democratic society in the interests of national
security or public order or for the protection of the rights and freedoms of
others;
(b) The right of trade unions to establish national federations or

confederations and the right of the latter to form or join international trade-
union organizations;
(c) The right of trade unions to function freely subject to no limitations other
than those prescribed by law and which are necessary in a democratic society
in the interests of national security or public order or for the protection of the
rights and freedoms of others;
(d) The right to strike, provided that it is exercised in conformity with the
laws of the particular country.
2. This article shall not prevent the imposition of lawful restrictions on the
exercise of these rights by members of the armed forces or of the police or of
the administration of the State.
3. Nothing in this article shall authorize States Parties to the International

Labour Organization Convention of 1948 concerning Freedom of Association
and Protection of the Right to Organize to take legislative measures which
would prejudice, or apply the law in such a manner as would prejudice, the
guarantees provided for in that Convention.
Note also Article 10(2), which provides that:
The States Parties to the present Covenant recognize that:

…

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2. Special protection should be accorded to mothers during a reasonable

period before and after childbirth. During such period working mothers
should be accorded paid leave or leave with adequate social security benefits.
…
Finally, the ICESCR in Article 18 expressly recognises the role of specialised

agencies in seeking to promote and protect the rights in the Covenant.
Comments on the Effectiveness of ILO

Supportive:
 The ILO is lauded for its detailed standards and its elaborate review
mechanisms.
 Its tripartite structure is said to point the way to possible methods of
incorporating NGOs into the work of international inter-governmental
organisations.
Critical:
 Commentators, however, have noted that the ILO has not really been
successful in encouraging non-labour related NGOs to take an interest in its
work.
In more recent years, governments have attempted to limit the role of the ILO.
 In the early 1990s, the General Assembly took the initiative and sponsored the
negotiation of a convention on the rights of migrant workers.
 This has been interpreted as an attempt by governments to bypass the ILO.
A critical challenge for the ILO:

 To develop new processes for subjecting multinational enterprises to the
disciplines of international labour standards.
 The ILO’s focus, which is essentially on government regulation, needs to
adapt to deal with the situation where States are often unable to enforce labour
standards.
 Tendency has been for multinational enterprises to look for voluntary codes of
conduct under which there is some form of scrutiny of the labour practices of
the corporations. These voluntary codes, however, often do not provide for
scrutiny by the ILO.
Regional inter-governmental institutions and procedures for the promotion and
protection of human rights

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Regional institutions are by far the most effective inter-governmental human rights
bodies. In particular:
 The European Court of Human Rights, and
 The Inter-American Commission and Court of Human Rights.
The two courts can make binding decisions and hear individual complaints under their
respective treaties.
European Institutions Concerned with the Protection of Human Rights
The Council of Europe
The Council of Europe was established in 1949 to promote (per Steiner and Alston):
 Democracy,
 The rule of law,
 Greater unity among the nations of Western Europe,
 An ideological stance against communism.
The European Union
Article 6 of the Treaty provides:

1.. The Union is founded on the principles of liberty, democracy, respect for
human rights and fundamental freedoms, and the rule of law, principles which
are common to the Member States.
2.. The Union shall respect fundamental rights, as guaranteed by the European
Convention for the Protection of Human Rights and Fundamental Freedoms
signed in Rome on 4 November 1950 and as they result from the constitutional
traditions common to the Member States, as general principles of Community
law.
Citizens of EU member States may complain to the European Court of Human Rights
if their rights are violated by the government of an EU member State.
However, the position is not so clear if the violation is by an institution of the EU.
 There was a movement to have the European Community itself become a
party to the ECHR.
 However, the European Court of Justice ruled in 1996 that the existing treaty
arrangements did not permit this to occur.
Therefore, the EU has drafted its own Charter of Fundamental Rights, ‘solemnly
proclaimed’ by the European Parliament, the Council of the European Union and the
European Commission on 7 December 2000.
 This is not a treaty.
 It contains references to civil, political, economic, social and cultural rights.
 It also contains references to rights that do not appear in international
instruments – for example, ‘freedom to conduct a business in accordance with
Community law and national laws and practices’, a ‘right of access to
placement services’, ‘environmental protection’ and ‘consumer protection’.

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The Council of Europe and Human Rights
The ECHR addresses civil and political rights.
It differs from the rights in the ICCPR in the following ways:

 The ECHR contains no right of self determination (Article 1 ICCPR);
 The ECHR contains no minority rights provision (Article 27 ICCPR);
 The limitation clauses in the ECHR consistently require that limitation of
specified rights must be “necessary in a democratic society”;
 The catalogue of non-derogable rights in the ECHR differs slightly.
The Council has negotiated other human rights treaties, though members are not
required to become parties to all these treaties. These treaties include:
 Protocol 1 to the ECHR – dealing with the right to property, the right to
education and electoral rights – 43 parties (as at 9 August 2004);
 Protocol 4 – dealing with the right not to be imprisoned for breach of
contractual obligations, freedom of movement and freedom to choose one’s
residence, the prohibition of the expulsion of nationals and the prohibition of
collective expulsion of non-nationals – 38 Parties;
 Protocol 6 – abolition of the death penalty (with scope for exceptions in time
of war) – 44 parties;
 Protocol 7 – procedural guarantees in relation to expulsion of non-nationals,
criminal appeal rights, the right to compensation in the event of a
miscarriage of justice; no double jeopardy, and equality of rights and
responsibilities as between spouses – 36 parties;
 Protocol 11 – reformed the ECHR system – Commission on Human Rights
dissolved, appellate procedures, Council of Ministers role restricted to
enforcement of judgments of Court – 45 Parties;
 Protocol 12 – expansion of right to be free from discrimination (ECHR
Article 14) – not yet in force;
 Protocol 13 – abolition of death penalty (no exceptions) – 26 parties;
 European Social Charter – deals with economic and social rights (note the
elaborate provisions allowing States to select rights obligations under the
treaty but requiring commitment to respect certain rights and a minimum
number of other rights) – 26 parties;
 Additional Protocol to European Social Charter – extending the economic
and social rights covered by the Social Charter – 12 parties;
 Additional Protocol to the European Social Charter Providing for a System
of Collective Complaints – 11 parties;
 European Social Charter (revised) – a consolidation of the Social Charter and
certain protocol with additional rights – 17 parties;
 European Convention for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment – intrusive monitoring procedures – 45
parties; and

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 Framework Convention on the Protection of National Minorities – confined

to programmatic obligations leaving considerable discretion to parties as to
how to implement – includes reporting obligation – 35 parties.
Reform of ECHR System – Protocol 11 – 1999
The ECHR system came under increasing pressure during the 1990s:
 An increased number of States bound by the treaty;
 An increased number of complaints of violations.
This required reform, to:

 Strengthen the judicial quality of the system, and
 Reduce opportunity for political manipulation.
The European Commission on Human Rights would previously:

 Carry out initial filtering of complaints, and
 Issue non-binding findings of violations of the ECHR.
The European Commission on Human Rights was dissolved in 1999.

 (However, its findings remain an important source of legal analysis of the
ECHR.)
A full-time court replaced the Commission: the European Court of Human Rights.
Details of the Court:

 Each State is entitled to have a nominee on the Court.
 Judges serve for 6-year terms.
 Approximately 20% of judges are women.
Individuals now have an automatic right to petition the Court for relief.
 (Previously, an individual complaint needed to be referred by a State party or
the Commission in order to reach the Court.)
Hearings are adversarial and usually public.
Complainants are required to have legal representation in all but the earliest stages of
litigation, and the Council of Europe operates its own legal aid scheme.
Procedures to encourage “friendly settlement” are maintained under Protocol 11.
Process:
 A three-judge committee now does the initial filtering of complaints.
 A seven-judge chamber usually considers complaints that are not declared
inadmissible.
 However, some exceptional cases go to a Grand Chamber of 17 judges.
 Article 30 of the ECHR allows a Chamber to relinquish jurisdiction to a Grand
Chamber where:
…a case pending before a Chamber raises a serious question affecting
the interpretation of the Convention or the protocols thereto, or where

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the resolution of a question before the Chamber might have a result

inconsistent with a judgment previously delivered by the Court…
 Even where a Chamber makes a decision, leave may be granted to appeal to a

Grand Chamber under Article 43.
o Appeals are only allowed in cases that raise serious questions affecting
the interpretation or application of the ECHR or protocols, or serious
issues of general importance.
Compliance
 Decisions of the European Court of Human Rights are generally complied with.
o States often amend or enact legislation to comply with decisions of the
Court.
o Municipal courts of parties to the ECHR make reference to decisions of
the European Court of Human Rights.
 The main problem has been occasional delay in responding – by enacting
amending legislation and/or paying compensation.
Capacity
 In the first year of the operation of the Protocol 11 reform, 8 396 complaints
were received.
Interstate Complaints
The court can hear interstate complaints under Article 33 of the ECHR.
Interstate complaints often relate to systemic violations that for one reason or another
the respondent State finds it difficult to remedy.
There have only been 13 such complaints.

 These complaints related to seven different situations.
 Contrast this with the number of cases heard by the Court that have been
brought by individuals: in 1999 alone the Court delivered 177 judgments.
The relative infrequency of interstate complaints probably reflects the political

assessment of the costs of accusing another State of human rights violations. It has
been suggested that such costs result in potential interstate cases being settled.
Advisory Opinions
Advisory opinions can be sought from the Court: Article 47.
However, this procedure has never been relied upon.
Individual Petitions
Articles 34 and 35 set out the basic requirements for individual petitions:
Article 34 – Individual applications

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The Court may receive applications from any person, non-governmental

organisation or group of individuals claiming to be the victim of a violation by
one of the High Contracting Parties of the rights set forth in the Convention or
the protocols thereto. The High Contracting Parties undertake not to hinder in
any way the effective exercise of this right.
Article 35 – Admissibility criteria
1 The Court may only deal with the matter after all domestic remedies
have been exhausted, according to the generally recognised rules of
international law, and within a period of six months from the date on
which the final decision was taken.
2 The Court shall not deal with any application submitted under Article
34 that
a is anonymous; or
b is substantially the same as a matter that has already been examined by

the Court or has already been submitted to another procedure of
international investigation or settlement and contains no relevant new
information.
3 The Court shall declare inadmissible any individual application

submitted under Article 34 which it considers incompatible with the
provisions of the Convention or the protocols thereto, manifestly ill-
founded, or an abuse of the right of application.
4 The Court shall reject any application, which it considers inadmissible

under this Article. It may do so at any stage of the proceedings.
European Court of Human Rights – Margin of Appreciation Doctrine
The European Court uses the ‘margin of appreciation’ doctrine when assessing
whether a State has permissibly limited a right contained in the ECHR.
Handyside v UK
 Article 10 of the ECHR provides:
1 Everyone has the right to freedom of expression. This right
shall include freedom to hold opinions and to receive and
impart information and ideas without interference by public
authority and regardless of frontiers. This article shall not
prevent States from requiring the licensing of broadcasting,
television or cinema enterprises.
2 The exercise of these freedoms, since it carries with it duties

and responsibilities, may be subject to such formalities,
conditions, restrictions or penalties as are prescribed by law and
are necessary in a democratic society, in the interests of

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national security, territorial integrity or public safety, for the

prevention of disorder or crime, for the protection of health or
morals, for the protection of the reputation or rights of others,
for preventing the disclosure of information received in
confidence, or for maintaining the authority and impartiality of
the judiciary.
 Handyside argued that the seizure of books under the Obscene Publications
Act (UK) violated Article 10.
 The Court observed:
48. The Court points out that the machinery of protection established
by the Convention is subsidiary to the national systems safeguarding
human rights … . The Convention leaves to each Contracting State,
in the first place, the task of securing the rights and liberties it
enshrines.
:
:
…[I]t is not possible to find in the domestic law of the various
Contracting States a uniform European conception of morals. The
view taken by their respective laws of the requirements of morals
varies from time to time and from place to place, especially in our era
which is characterised by a rapid and far-reaching evolution of
opinions on the subject. By reason of their direct and continuous
contact with the vital forces of their countries, State authorities are in
principle in a better position than the international judge to give an
opinion on the exact content of these requirements as well as on the
“necessity” of a “restriction” … intended to meet them.
:
:
Consequently, Article 10 para. 2 … leaves to the Contracting States a
margin of appreciation. This margin is given both to the domestic
legislator (“prescribed by law”) and to the bodies, judicial amongst
others, that are called upon to interpret and apply the laws in force… .
49. Nevertheless, Article 10 para. 2 … does not give the Contracting

States an unlimited power of appreciation. The Court, which … is
responsible for ensuring the observance of those States’ engagements,
… is empowered to give the final ruling on whether a “restriction” …
is reconcilable with freedom of expression as protected by Article 10
… . The domestic margin of appreciation thus goes hand in hand with
a European supervision. Such supervision concerns both the aim of the
measure challenged and its “necessity”; it covers not only the basic
legislation but also the decision applying it, even one given by an
independent court.
50. It follows from this that it is in no way the Court’s task to take the
place of the competent national courts but rather to review under
Article 10 … the decisions they delivered in the exercise of their power
of appreciation.

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ECHR – Some Concluding Observations
Commentators have attributed the effectiveness of the ECHR system to a number of

factors:
 Until 1990, all parties to the ECHR were functioning democracies committed
to the rule of law.
o That is, the violations considered were generally ‘minor and
unintentional’; so few concessions were required (Steiner and Alston).
 States generally complied with the rulings and national courts were open to the
influence of the European Court.
The authority of the European Court seems strong enough to survive the challenges of
possible non-compliance in the case of systematic violations of rights in States such
as Turkey or Russia.
Compliance problems seem to be reduced by economic incentives for compliance (eg

potential EU membership).
The quality of legal reasoning of the ECHR institutions also appears to have enhanced
their authority and effectiveness. Tolerance of dissenting and separate opinions and
proper resourcing appear to be significant in this regard.
Regional Protection of Human Rights – The Americas
The Organization of American States (“OAS”) was established in May 1948 at a

conference in Bogotá, Colombia.
This conference agreed:

 The Charter of the OAS, and
 The American Declaration on the Rights and Duties of Man.
o The only significant variation from the UDHR is the inclusion in the
American Declaration of 10 Articles setting out duties.
All 35 States in the Americas are parties to the OAS Charter.
There are two main human rights institutions that operate within the OAS system:
 The Inter-American Commission on Human Rights and
 The Inter-American Court of Human Rights.
The Commission and the Court have a complex relationship.
The Inter-American Commission on Human Rights
The Inter-American Commission was established in 1959.

The Commission’s competence to hear individual complaints was formalised in 1965.
It comprises seven “expert” members elected by members of the OAS.
The Commission monitors compliance with two treaties:

 The OAS Charter

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 The American Convention on Human Rights

o This was finalised in 1969, and came into force in 1978.
o This Convention established the Inter-American Court of Human
Rights.
o The American Convention sets out civil and political rights similar to
those found in the ICCPR.
 (A single article of the American Convention (Article 26) refers
to economic and social rights. This is now supplemented by a
complaints procedure in respect of certain economic and social
rights established by a treaty that came into force in 1999.)
o Under the American Convention individuals are entitled to apply to the
Commission alleging violation of rights contained in the Convention.
 There are liberal standing provisions governing applications to
the Commission.
Decisions of the Commission are not binding.
The Inter-American Court of Human Rights
The Inter-American Court is made up of 7 judges.
The Commission maintains an active role in proceeding before the Court.
The Court has both a contentious and advisory jurisdiction.
In its contentious jurisdiction, the Court can hear complaints of violations raised by:
 The Commission and
 Inter-state complaints
Provided that the States concerned have specifically consented to such jurisdiction.
As at March 2000, 24 States were parties to the American Convention, although only
21 States appear to have consented to the Court’s contentious jurisdiction arising out
of individual complaints (ie raised by the Commission) and only nine States appear to
have consented to inter-State complaints.
The US has signed but not ratified the Convention.

Canada is also not a party to the Convention.
Advisory opinions
OAS member States (whether or not parties to the Convention) can seek an advisory
opinion from the Court. OAS organs including the Commission can also seek
advisory opinions.
Gross and Systematic Human Rights Violations in the Americas
The Inter-American system has functioned very differently to the ECHR system –
even though, prior to the Europeans’ 1999 reforms, the systems were reasonably
similar.

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In Europe…
 Prior to 1990, most member States were established democracies, etc.
 Matters before the European Court or European Human Rights Commission
rarely had to address non-cooperative governments or systematic and serious
human rights violations.
In the Americas…
 Prior to 1980, the Inter-American system was required to address violations in
the context of hostile dictatorships, security emergencies, and municipal
judiciaries that were either weak or corrupt.
 The violations themselves were often systematic and serious – for example,
torture, disappearances, executions.
In consequence…
 The Inter-American Commission treated individual complaints as a secondary
mechanism; its primary response to serious systemic problems was to prepare
reports.
o The Commission would seek to visit the relevant State to gather
evidence for its reports.
o These reports would be placed before the political institutions of the
OAS.
 Both the Commission and the Court developed evidentiary rules to assist in
establishing responsibility on the part of non-cooperative States.
o For example, under regulation 42 of the Commission’s regulations, if
the Commission requests information from a government and the
government refuses to cooperate, the Commission is entitled to
presume that the facts of a complaint are true “as long as other
evidence does not lead to a different conclusion”.
 It has been argued that the Inter-American Commission and Court have, as a
result of the seriousness of the problems faced, not needed to develop a
sophisticated jurisprudence.
o For example, there has been no need for a ‘margin of appreciation’
doctrine.
Tensions have arisen between newly democratic regimes in South America and the
Inter-American system.
 Areas in which such tension has arisen have included amnesties for atrocities
committed by members of a former regime and electoral monitoring.
Other Inter-American human rights treaties address:

 The death penalty: Protocol to the American Convention on Human Rights to
Abolish the Death Penalty, which had 8 State parties as at October 2001.
 Disabilities: Inter-American Convention on the Elimination of All Forms of
Discrimination against Persons with Disabilities, which had 8 State parties as
at March 2004.
 Disappearances: Inter-American Convention on Forced Disappearance of
Persons, which had 10 State parties as at February 2002.
 Torture: Inter-American Convention to Prevent and Punish Torture, which had
16 State parties as at February 2000.

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Regional Protection of Human Rights – Africa
The OAU
All African States were previously members of the Organization of African Unity
(“OAU”).
The OAU did not keenly promote human rights (it emphasised territorial integrity and
non-interference).
However, the OAU did adopt the African Charter on Human and People’s Rights in
1981.
 The Charter entered into force in 1986.
 53 African States were parties at March 2000.
The African Charter includes commitments to respect economic and social rights,
including the right to health.
The Commission
The Charter creates a Commission for its promotion, protection and interpretation.
 The Commission comprises 11 ‘expert’ members, elected by OAU member
States.
The Charter imposes obligations on State parties to submit regular reports on

compliance with the Convention.
 Serious problems with the reporting procedures have been identified.
The Commission has the capacity to receive

 Individual complaints and
 Inter-State complaints.
o However, the inter-State procedure has only been used once.
The Commission’s determinations are not binding, and compliance is rare.
The exhaustion of local remedies requirement is not applied strictly and the Charter
has liberal standing requirements. The Commission has developed arrangements with
NGOs.
The Commission suffers from profound resourcing problems.

 In 2000, it had a staff of two jurists.
 It determines one communication for every two State parties per year.
An African human rights court
A protocol has been negotiated which provides for the establishment of an African
human rights court.
There is confusion about the relationship between this court (once it comes into
existence) and the continuing role of the Commission to receive communications.

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It is also unclear what effect, if any, the duty provisions will have on the interpretation
of the substantive rights provisions of the Charter.
Other instruments
There are other international instruments that have been negotiated or proposed in
order improve respect for human rights in Africa.
 For example, the African Charter on the Rights and Welfare of Children,
which was negotiated in 1990 and came into force in 1999.
o This has been described as complementing the Convention on the
Rights of the Child.
o A protocol to the African Charter addressing the rights of women was
negotiated in 2003.
Conclusion: The African Union
It is unclear what the consequences of the replacement of the OAU by the African
Union in 2002 are for the Charter and the African human rights system.
(Note that the Union’s objectives and principles include an explicit commitment to the
promotion and protection of human rights.)
Complaints procedures that address violations of human rights protected under
international law
This topic is about a brief comparative survey of different individual complaints

procedures.
Jurisdictional Requirements
Jurisdiction Ratione Tempore
All individual complaints mechanisms restrict complaints by reference to:

 When the treaties came into force, or
 When the respondent State committed itself to a treaty and the complaints
procedure.
Generally, the complaints procedures do not apply to violations that predate the
respondent State becoming a party to the primary treaty setting out the relevant
human rights.
Some cases suggest that, or an individual complaint to be heard, the complaint must
also relate to a violation that occurred after the treaty establishing the complaints
mechanism came into force.
 The position seems to differ between the First Optional Protocol to the ICCPR
and the European Convention on Human Rights:

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o Individuals could complain to the (old) European Human Rights

Commission of violations of the European Convention that occurred
between when the respondent State became a party to the Convention
and when it accepted jurisdiction to receive individual complaints.
One possible response to the problem (adopted by the Human Rights Committee, the
European bodies and possibly the African Commission): the concept of continuing
violations.
 If a complainant alleges a violation that predates the commencement of the
complaints procedure, but which had continuing effect after the complaints
procedure came into force for the respondent State, the review body will have
jurisdiction.
 Example: Lovelace v Canada
o The Human Rights Committee considered Canadian legislation that
prohibited certain persons from living in a particular area.
o The legislation was held to have continuing effect, even though it was
enacted before Canada became a party to the First Optional Protocol to
the ICCPR.
Jurisdiction Ratione Loci
Note:
 Article 2(1), ICCPR: The obligations of a State party extend to “all individuals
within its territory and subject to its jurisdiction…”.
 Article 1, First Optional Protocol to the ICCPR: recognises the Committee’s
competence to receive communications “from individuals subject to … [the
State party’s] jurisdiction”.
 Article 1, European Convention on Human Rights: State parties “shall secure
to everyone within their jurisdiction the rights and freedoms” of the
Convention.
It is clear, however, that the jurisdiction of international human rights bodies is not
limited to violations alleged within the territory of the respondent State.
 That is, various cases have held States responsible for official acts occurring
outside their territory.
 For example, where the State exercises control over certain foreign territory
through its armed forces.
“Victim” Requirement
There are a number of requirements that prospective applicants must be ‘victims’ of

violations – for example:
 Article 1, First Optional Protocol to the ICCPR (‘victims’).
 Article 34, European Convention on Human Rights (‘victims’).
 The Human Rights Committee will only hear complaints from individual
natural persons.
 (Note, however, that the European Court is entitled to hear complaints from
‘victims’ that are ‘non-governmental organisations’, which includes
corporations.)

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However, the apparent strictness of the ‘victim’ requirements are mitigated by:
 Recognition that persons or entities exposed to reasonably foreseeable risks of
future violations qualify as victims, and
 Allowing complaints to be brought by an entity on behalf of a victim in
circumstances where the victim is unable to bring the complaint directly.
In contrast, neither the Inter-American System nor the African system require that
complainants themselves be ‘victims’ of violations.
Exhaustion of Local Remedies Rule
The European and American conventions expressly refer to the “generally

recognised” rule requiring the exhaustion of local remedies.
The American Convention elaborates – under Article 46(2), there is no requirement to

exhaust local remedies prior to a claim where:
a. the domestic legislation of the state concerned does not afford due process
of law for the protection of the right or rights that have allegedly been
violated;
b. the party alleging violation of his rights has been denied access to the
remedies under domestic law or has been prevented from exhausting them; or
c. there has been unwarranted delay in rendering a final judgment under the
aforementioned remedies.
The various international human rights systems do not require an applicant to exhaust
local remedies where the applicant requires legal aid and is unable to obtain it.
Onus of proof:
 In general, it appears to be for the respondent State to demonstrate the
existence of effective local remedies that have not been exhausted.
 The onus then shifts to the complainant to show that such remedies:
o Have been exhausted, or
o Are not reasonably available, or
o Are not effective, or
o For some other reason need not be exhausted.
Other Procedural Requirements
All of the complaints mechanisms seek to restrict complaints where the complainant
has raised the alleged violation under another international human rights procedure:
 Article 5(2) of the First Optional Protocol to the ICCPR;
 Article 35(2)(b) of the European Convention;
 Article 46(1)(c) of the American Convention; and
 Article 56(7) of the African Charter.
The European Convention provides that the European Court should declare
inadmissible any application that is “manifestly ill founded, or an abuse of the right of
application”: Article 35.

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The African Charter provides that communications must not be “written in

disparaging or insulting language directed against the State concerned and its
institutions or to the Organization of African Unity”.
The Pros and Cons of Court
• Inside the Court – Lubanga Case Study: http://youtu.be/QjD95gmn87c
• John Bolton: http://youtu.be/GuLCRsuzsTo
• Criminal prosecutions in international tribunals are infrequent, slow, and inefficient:
• ICC only 10 cases and 1 conviction in 10 years
• ICC only has limited jurisdiction:
• Only 3(4) crimes
• Only if country of accused has signed or crime was committed in signatory state
(important players did not sign)
• UN‐SC refers case (veto!)
Racial and gender discrimination
The Prohibition of Gender and Racial Discrimination under International Law –

Introduction
We focus on the international legal standards relating to the prohibition of gender and
racial discrimination.
‘Equality’ and ‘non-discrimination’ can be seen as affirmative and negative

statements of the same principle: Theodor Meron, referring to Ramcharan.
International Instruments Addressing Equality and Prohibiting Discrimination
The UN Charter includes various commitments to equality and non-discrimination:

 The Preamble reaffirms “faith in fundamental human rights, in the dignity and
worth of the human person [and] in the equal rights of men and women …”.
 The purposes of the United Nations set out in Article 1 of the Charter include
“promoting and encouraging respect for human rights and for fundamental
freedoms for all without distinction as to race, sex, language, or religion …”.
 Reference to the impermissibility of such distinctions can also be found in
Articles 13(1)(b), 55(c) and 76(c) of the Charter.
The Universal Declaration has similar commitments:

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 The Preamble to the UDHR refers to the “equal and inalienable rights of all
members of the human family” and reaffirms the faith expressed in the Charter
“in the equal rights of men and women”.
 The first sentence of Article 2 of the UDHR provides that:
[e]veryone is entitled to all the rights and freedoms set forth in this
Declaration, without distinction of any kind, such as race, colour, sex,
language, religion, political or other opinion, national or social origin,
property, birth or other status.
 Article 7 of the UDHR provides that:
[a]ll are equal before the law and are entitled without any
discrimination to equal protection of the law. All are entitled to equal
protection against any discrimination in violation of this Declaration
and against any incitement to such discrimination.
 Article 16(1) provides that:
[m]en and women of full age, without any limitation due to race,
nationality or religion, have the right to marry and to found a family.
They are entitled to equal rights as to marriage, during marriage and at
its dissolution.
Specific Treaty Obligations
The ICCPR
The ICCPR addresses equality and non-discrimination in general terms in three

Articles.
Article 2(1):
Each State Party to the present Covenant undertakes to respect and to ensure
to all individuals within its territory and subject to its jurisdiction the rights
recognized in the present Covenant, without distinction of any kind, such as
race, colour, sex, language, religion, political or other opinion, national or
social origin, property, birth or other status.
Article 3:
The States Parties to the present Covenant undertake to ensure the equal right
of men and women to the enjoyment of all civil and political rights set forth in
the present Covenant.
Article 26:
All persons are equal before the law and are entitled without any
discrimination to the equal protection of the law. In this respect, the law shall
prohibit any discrimination and guarantee to all persons equal and effective
protection against discrimination on any ground such as race, colour, sex,
language, religion, political or other opinion, national or social origin,
property, birth or other status.
Article 20(2) of the ICCPR addresses incitement to discrimination and provides that:
[a]ny advocacy of national, racial or religious hatred that constitutes
incitement to discrimination, hostility or violence shall be prohibited by law.

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Other provisions of the ICCPR prohibit discrimination or demand equality in specific

contexts:
 Article 4(1) prohibits discrimination in relation to derogations in times of
public emergency.
 Article 14 requires equality in civil and criminal proceedings.
 Article 23(4) enshrines an obligation on States to
ensure equality of rights and responsibilities of spouses as to marriage,
during marriage and at its dissolution ….
 Article 24(1) prohibits discrimination in measures of protection given to
children.
 Article 25(c) requires “access, on general terms of equality, to public service
…”.
The term ‘discrimination’ is not defined in the ICCPR.

The Human Rights Committee has observed (in General Comment No 18) that
the term ‘discrimination’ as used in the Covenant should be understood to
imply any distinction, exclusion, restriction or preference which is based on
any ground such as race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status, and which
has the purpose or effect of nullifying or impairing the recognition,
enjoyment or exercise by all persons, on an equal footing, of all rights and
freedoms.
The Committee has noted that the prohibition does not require identical treatment in
all cases. The Committee gave the following examples:
 The ICCPR prohibits the imposition of a death sentence on pregnant women:
Article 6(5).
 The ICCPR allows differentiation on the grounds of citizenship in relation to
political rights: Article 25.
The Human Rights Committee has also observed that:

… not every differentiation of treatment will constitute discrimination, if the
criteria for such differentiation are reasonable and objective and if the aim
is to achieve a purpose which is legitimate under the Covenant.
Other instruments
Articles 2(2) and 3 of the ICESCR are similar to the prohibition of discrimination and
the commitment to equality contained in Articles 2(1) and 3 respectively of the
ICCPR.
Other treaty and ‘soft law’ instruments address equality and the prohibition of
discrimination. For example,
 In 1963, the UN General Assembly adopted, by resolution, the Declaration on
the Elimination of All Forms of Racial Discrimination.
 In 1966, this was followed by the International Convention on the
Elimination of All Forms of Racial Discrimination (‘CERD’).
 In 1967, the General Assembly adopted the Declaration on the Elimination
of Discrimination against Women.

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 In 1979, this was followed by the Convention on the Elimination of All

Forms of Discrimination Against Women (‘CEDAW’).
 In 1993, the General Assembly adopted the Declaration on the Elimination
of Violence against Women.
Regional treaties also address equality and non-discrimination – for example:

 Article 14 of The European Convention on Human Rights,
 Articles 1 and 24 of American Convention on Human Rights,
 Articles 2 and 3 of The African Charter on Human and Peoples’ Rights.
There are also regional treaties and ‘soft law’ instruments focussing specifically on,
for example, the rights of women:
 The Inter-American Convention on the Prevention, Punishment, and
Eradication of Violence against Women, 1994;
 The Protocol to the African Charter on Human and Peoples’ Rights on the
Rights of Women in Africa, 2003.
Customary Obligations
There are also customary law obligations in relation to equality.
The South West Africa Cases (Second Phase)
Judge Tanaka famously addressed this issue in his dissenting opinion in the South
West Africa Cases (Second Phase). This has been described by Brownlie and
Goodwin-Gill as “probably the best exposition of the concept of equality in the
existing literature…”.
Facts
 Ethiopia and Liberia complained that South Africa had violated the terms of
the League of Nations Mandate for South West Africa by establishing and
maintaining a system of apartheid in the territory.
 The League had given South Africa a Mandate to administer South West
Africa (now Namibia) after World War One.
 Ethiopia and Liberia, as members of the League, claimed an entitlement to
enforce the terms of the Mandate.
 In 1962, in the first phase of litigation, the ICJ ruled that it had jurisdiction to
hear the cases.
 In 1966, on the casting vote of the President, the Court effectively revisited
issues determined in 1962 and dismissed the case on procedural grounds.
o (The controversy surrounding the 1966 decision and the damage done
to the standing of the Court is generally thought to have prompted the
Court to advance the concept of obligations owed erga omnes in the
Barcelona Traction Case in 1970.)
 Judge Tanaka dissented, and went on to consider the substantive issues raised
by Ethiopia and Liberia.
 He addressed human rights obligations arising from:
o Treaty (the UN Charter),
o Customary law, and
o General principles of law.

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 On customary obligations, Judge Tanaka referred to a number of treaties and

resolutions (both global and regional) and concluded that “the norm of non-
discrimination or non-separation on the basis of race has become a rule of
customary international law…”.1
Judge Tanaka’s dissent
Judge Tanaka considered that human rights were derived from natural law.
 He examined the principle of equality before the law (which he appeared to
equate with non-discrimination).
 He asserted that the principle of equality before the law was “philosophically
related to the concepts of freedom and justice.”
 He observed that:
[t]he freedom of individual persons, being one of the fundamental
ideas of law, is not unlimited and must be restricted by the principle of
equality allotting to each individual a sphere of freedom which is due
to him. In other words the freedom can exist only under the premise
of the equality principle.
In what way is each individual allotted his sphere of freedom by the

principle of equality? What is the content of this principle? The
principle is that what is equal is to be treated equally and what is
different is to be treated differently, namely proportionately to the
factual difference. … To treat different matters equally in a
mechanical way would be as unjust as to treat equal matters
differently.
Judge Tanaka went on to consider when different treatment might be justified. He

asserted that:
a different treatment is permitted when it can be justified by the
criterion of justice. One may replace justice by the concept of
reasonableness generally referred to by the Anglo-American school of
law.
Justice or reasonableness as a criterion for the different treatment

logically excludes arbitrariness. The arbitrariness which is prohibited,
means the purely objective fact and not the subjective condition of
those concerned. Accordingly, the arbitrariness can be asserted
without regard to his motive or purpose.
o (Professor Brownlie has referred to a general proportionality

requirement – “the means employed to establish a different treatment
must be proportionate to the justification for differentiation”.)
 Judge Tanaka expressed scepticism as to whether race or colour would ever be

a valid basis for different treatment because, inter alia, “the scientific and
clear-cut definition of race is not established”.
 However, he considered that factors such as religion or language might be
valid bases for distinction.
1
ICJ Report 1966, 293. Extracts from Judge Tanaka’s dissent are reproduced in Henkin et al, 1031.

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o Judge Tanaka’s scepticism does not appear to have precluded the

subsequent international acceptance of special measures based on race.
Judge Tanaka addressed the onus of proof in relation to whether different treatment
might be justified.
He observed that:
[e]quality being a principle and different treatment an exception, those

who refer to the different treatment must prove its raison d’être and its
reasonableness.
Judge Tanaka considered various aspects of the system of apartheid imposed in South
West Africa.
 He noted that non-Europeans were excluded from certain forms of
employment in certain areas.
o He appeared to treat this as both a violation of a right to ‘freedom of
choice of occupations’ and a violation of the right to equality.
Judge Tanaka went on to make what he referred to as “conclusive and supplementary

remarks” which included the following:
1. The principle of equality before the law requires that what are
equal are to be treated equally and what are different are to be
treated differently. The question arises: what is equal and what is
different.
2. All human beings, notwithstanding the differences in their
appearance and other minor points, are equal in their dignity as
persons. Accordingly, from the point of view of human rights and
fundamental freedoms, they must be treated equally.
3. The principle of equality does not mean absolute equality, but
recognizes relative equality, namely different treatment
proportionate to concrete individual circumstances. Different
treatment must not be given arbitrarily; it requires reasonableness,
or must be in conformity with justice, as in the treatment of
minorities, different treatment of the sexes regarding public
conveniences, etc. In these cases, the differentiation is aimed at the
protection of those concerned, and it is not detrimental and
therefore not against their will.
(The International Court of Justice revisited the question of South Africa’s

administration of Namibia in an advisory sought by the Security Council and given in
1971. The focus of this advisory opinion was on South Africa’s obligations under the
UN Charter.)
Minority Schools in Albania
Facts
 In 1921, Albania made a declaration (on the request of the League of Nations)
that guaranteed (in Article 4) equality before the law for all Albanian nationals
and the enjoyment of the same civil and political rights, without distinction as
to race, language or religion.

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 Paragraph 1 of Article 5 of the Declaration provided:

Albanian nationals who belong to racial, religious or linguistic
minorities will enjoy the same treatment and security in law and in fact
as other Albanian nationals. In particular they shall have an equal right
to maintain, manage and control at their own expense or to establish in
the future, charitable, religions and social institutions, schools and
other educational establishments, with the right to use their own
language and to exercise their religion freely therein.
 The Albanian Constitution was amended in 1933, to provide that:
[t]he instruction and education of Albanian subjects are reserved to the
State and will be given in State schools. Primary education is
compulsory for all Albanian nationals and will be given free of charge.
Private schools of all categories at present in operation will be closed.
Arguments
 The Albanian Government argued:
o Article 5 of the 1921 Declaration imposes an obligation in educational
matters to grant any nationals belonging to racial, religious or
linguistic minorities the same right possessed by other Albanian
nationals.
o Therefore, once Albanians generally ceased to be entitled to establish
non-government schools, Albanian minorities could not claim such
entitlement.
 To hold otherwise would create a privilege in favour of
minorities.
 The Greek Government argued in response:

…the application of the same régime to a majority as to a minority,
whose needs are quite different, would only create an apparent
equality, whereas the Albanian Declaration … was designed to ensure
a genuine and effective equality, not merely a formal equality.
Outcome
 The Permanent Court, by majority, emphasised the difference between

equality in law and equality in fact:
All Albanian nationals enjoy the equality in law stipulated in Article 4

[of the 1921 Declaration]; on the other hand, the equality between
members of the majority and of the minority must, according to the
terms of Article 5, be an equality in law and in fact.
It is perhaps not easy to define the distinction between the notions of

equality in fact and equality in law; nevertheless, it may be said that
the former notion excludes the idea of a merely formal equality …
Equality in law precludes discrimination of any kind; whereas

equality in fact may involve the necessity of different treatment in
order to attain a result which establishes an equilibrium between
different situations.

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It is easy to imagine cases in which equality of treatment of the

majority and of the minority, whose situation and requirements are
different, would result in inequality in fact; treatment of this
description would run counter to the first sentence of paragraph 1 of
Article 5. The equality between members of the majority and of the
minority must be an effective, genuine equality; that is the meaning of
this provision.
 The Court therefore rejected Albania’s argument that the 1933 constitutional
amendment was consistent with Albania’s 1921 Declaration.
Gender Discrimination
Feminist concerns about human rights law
Professors Charlesworth and Chinkin summarise a number of concerns expressed by

feminists scholars regarding the effectiveness of legal rights as a mechanism to
protect women:
Feminist scholars … have argued that while the formulation of equality rights
may be useful as a first step towards the improvement of the position of
women, a continuing focus on the acquisition of rights may not be beneficial:
 women’s experiences and concerns are not easily translated into the
narrow, individualistic, language of rights;
 rights discourse overly simplifies complex power relations and their
promise is constantly thwarted by structural inequalities of power;
 the balancing of ‘competing’ rights by decision-making bodies often
reduces women’s power;
 and particular rights, such as the right to freedom of religion, or to the
protection of the family, can in fact justify the oppression of women.
Feminist scholars have specifically questioned the gendered nature of international

human rights law. Charlesworth and Chinkin argue:
In the major human rights treaties, rights are defined according to what men
fear will happen to them, those harms against which they seek guarantees.
The primacy traditionally given to civil and political rights by Western
international lawyers and philosophers is directed towards protection for men
within their public life – their relationship with government. … This is not to
assert that when women are victims of violations of civil and political rights
they are not accorded the same protection, but that these are not the harms
from which women most need protection.
Developing State representatives also appear to focus on rights of concern to men at

the expense of women’s rights. Charlesworth and Chinkin argue:
… one of the obstacles faced by women in the area of international law is the
consensus at the state level that oppression on the basis of race is considerably
more serious than oppression on the basis of gender.

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The relatively weak language of CEDAW,2 the number of reservations to CEDAW,3

the poor resources allocated to the Committee overseeing compliance with CEDAW 4
all appear to confirm these concerns.
Further, Charlesworth and Chinkin argue that equality “is generally presented as
women being treated in the same way as men, or at least having the same opportunity
to be so treated, with little consideration of whether existing male standards are
appropriate.”5
 That is, the equality standard itself is effectively gendered.
Violations of the Rights of Women – Systemic Issues
Addressing the underlying causes of violence against women has always been
recognised as being fundamentally important. A number of additional issues appear
to be relevant to the pervasiveness of violence against women:
 The power imbalance between men and women
o Including economic dependence and poverty;
 Cultural attitudes regarding the subordination of women,
 Lack of education and awareness of the scale of the problem.
The 1993 Vienna World Conference on Human Rights addressed violence against
women in its Declaration (paragraph 38):6
… the World Conference on Human Rights stresses the importance of
working towards
 the elimination of violence against women in public and private life,
 the elimination of all forms of sexual harassment, exploitation and
trafficking in women,
 the elimination of gender bias in the administration of justice and the
eradication of any conflicts which may arise between the rights of women
 and the harmful effects of certain traditional or customary practices,
cultural prejudices and religious extremism.
…Violations of the human rights of women in situations of armed conflict are
violations of the fundamental principles of international human rights and
humanitarian law. All violations of this kind, including in particular murder,
systematic rape, sexual slavery, and forced pregnancy, require a particularly
effective response.
The UN General Assembly adopted, by resolution, the Declaration on the Elimination

of Violence against Women in 1993.7 The Declaration clearly reflects concerns about
systemic issues contributing to violence against women. The Declaration is set out in
full below:
Resolution 48/104 - Declaration on the Elimination of Violence against

Women
2
See, for example, Joseph et al, 743.
3
See, for example, Steiner and Alston, 441-445; and Henkin et al, 362-369.
4
See, for example, Charlesworth and Chinkin, 221.
5
Charlesworth and Chinkin, 231.
6
Bullet points added for clarity.
7
Resolution 48/104, adopted without vote on 20 December 1993.

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The General Assembly,

:
:
Solemnly proclaims the following Declaration on the Elimination of Violence
against Women and urges that every effort be made so that it becomes
generally known and respected:
Article 1
For the purposes of this Declaration, the term “violence against women”
means any act of gender-based violence that results in, or is likely to result
in, physical, sexual or psychological harm or suffering to women, including
threats of such acts, coercion or arbitrary deprivation of liberty, whether
occurring in public or in private life.
Article 2
Violence against women shall be understood to encompass, but not be

limited to, the following:
(a) Physical, sexual and psychological violence occurring in the family,

including battering, sexual abuse of female children in the household, dowry-
related violence, marital rape, female genital mutilation and other traditional
practices harmful to women, non-spousal violence and violence related to
exploitation;
(b) Physical, sexual and psychological violence occurring within the general
community, including rape, sexual abuse, sexual harassment and intimidation
at work, in educational institutions and elsewhere, trafficking in women and
forced prostitution;
(c) Physical, sexual and psychological violence perpetrated or condoned by

the State, wherever it occurs.
Article 3
Women are entitled to the equal enjoyment and protection of all human
rights and fundamental freedoms in the political, economic, social, cultural,
civil or any other field. These rights include, inter alia:
(a) The right to life;

(b) The right to equality;
(c) The right to liberty and security of person;
(d) The right to equal protection under the law;
(e) The right to be free from all forms of discrimination;
(f) The right to the highest standard attainable of physical and mental health;
(g) The right to just and favourable conditions of work;
(h) The right not to be subjected to torture, or other cruel, inhuman or
degrading treatment or punishment.

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Article 4
States should condemn violence against women and should not invoke any
custom, tradition or religious consideration to avoid their obligations with
respect to its elimination. States should pursue by all appropriate means and
without delay a policy of eliminating violence against women and, to this
end, should:
(a) Consider, where they have not yet done so, ratifying or acceding to the
Convention on the Elimination of All Forms of Discrimination against
Women or withdrawing reservations to that Convention;
(b) Refrain from engaging in violence against women;
(c) Exercise due diligence to prevent, investigate and, in accordance with

national legislation, punish acts of violence against women, whether those
acts are perpetrated by the State or by private persons;
(d) Develop penal, civil, labour and administrative sanctions in domestic

legislation to punish and redress the wrongs caused to women who are
subjected to violence; women who are subjected to violence should be
provided with access to the mechanisms of justice and, as provided for by
national legislation, to just and effective remedies for the harm that they have
suffered; States should also inform women of their rights in seeking redress
through such mechanisms;
(e) Consider the possibility of developing national plans of action to promote

the protection of women against any form of violence, or to include provisions
for that purpose in plans already existing, taking into account, as appropriate,
such cooperation as can be provided by non-governmental organizations,
particularly those concerned with the issue of violence against women;
(f) Develop, in a comprehensive way, preventive approaches and all those

measures of a legal, political, administrative and cultural nature that
promote the protection of women against any form of violence, and ensure
that the re-victimization of women does not occur because of laws insensitive
to gender considerations, enforcement practices or other interventions;
(g) Work to ensure, to the maximum extent feasible in the light of their
available resources and, where needed, within the framework of international
cooperation, that women subjected to violence and, where appropriate, their
children have specialized assistance, such as rehabilitation, assistance in
child care and maintenance, treatment, counselling, and health and social
services, facilities and programmes, as well as support structures, and should
take all other appropriate measures to promote their safety and physical and
psychological rehabilitation;
(h) Include in government budgets adequate resources for their activities

related to the elimination of violence against women;

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(i) Take measures to ensure that law enforcement officers and public officials
responsible for implementing policies to prevent, investigate and punish
violence against women receive training to sensitize them to the needs of
women;
(j) Adopt all appropriate measures, especially in the field of education, to

modify the social and cultural patterns of conduct of men and women and to
eliminate prejudices, customary practices and all other practices based on the
idea of the inferiority or superiority of either of the sexes and on stereotyped
roles for men and women;
(k) Promote research, collect data and compile statistics, especially

concerning domestic violence, relating to the prevalence of different forms of
violence against women and encourage research on the causes, nature,
seriousness and consequences of violence against women and on the
effectiveness of measures implemented to prevent and redress violence against
women; those statistics and findings of the research will be made public;
(l) Adopt measures directed towards the elimination of violence against

women who are especially vulnerable to violence;
(m) Include, in submitting reports as required under relevant human rights

instruments of the United Nations, information pertaining to violence against
women and measures taken to implement the present Declaration;
(n) Encourage the development of appropriate guidelines to assist in the

implementation of the principles set forth in the present Declaration;
(o) Recognize the important role of the women’s movement and non-
governmental organizations world wide in raising awareness and alleviating
the problem of violence against women;
(p) Facilitate and enhance the work of the women’s movement and non-
governmental organizations and cooperate with them at local, national and
regional levels;
(q) Encourage intergovernmental regional organizations of which they are

members to include the elimination of violence against women in their
programmes, as appropriate.
Article 5
The organs and specialized agencies of the United Nations system should,
within their respective fields of competence, contribute to the recognition and
realization of the rights and the principles set forth in the present Declaration
and, to this end, should, inter alia:
(a) Foster international and regional cooperation with a view to defining

regional strategies for combating violence, exchanging experiences and
financing programmes relating to the elimination of violence against women;

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(b) Promote meetings and seminars with the aim of creating and raising
awareness among all persons of the issue of the elimination of violence against
women;
(c) Foster coordination and exchange within the United Nations system
between human rights treaty bodies to address the issue of violence against
women effectively;
(d) Include in analyses prepared by organizations and bodies of the United

Nations system of social trends and problems, such as the periodic reports on
the world social situation, examination of trends in violence against women;
(e) Encourage coordination between organizations and bodies of the United

Nations system to incorporate the issue of violence against women into
ongoing programmes, especially with reference to groups of women
particularly vulnerable to violence;
(f) Promote the formulation of guidelines or manuals relating to violence

against women, taking into account the measures referred to in the present
Declaration;
(g) Consider the issue of the elimination of violence against women, as

appropriate, in fulfilling their mandates with respect to the implementation of
human rights instruments;
(h) Cooperate with non-governmental organizations in addressing the issue

of violence against women.
Article 6
Nothing in the present Declaration shall affect any provision that is more
conducive to the elimination of violence against women that may be contained
in the legislation of a State or in any international convention, treaty or other
instrument in force in a State.
The UN Commission on Human Rights appointed a Special Rapporteur on Violence

against Women in 1994.
Concerns have been raised about the gender implications of structural adjustment
policies adopted by the IMF and the World Bank: Steiner and Alston, Charlesworth
and Chinkin.
It has been argued (eg Joseph et al) that systemic issues contributing to discrimination
are not readily addressed through individual complaints mechanisms.
 The reporting procedures under CEDAW and the ICCPR may be more
effective – State reports are required to include statistical information on
discrimination.
o This information is unlikely to be of the same value in individual
complaints.

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The 1993 Declaration on the Elimination of Violence against Women briefly

addresses the relationship between violence against women and the right to non-
discrimination in the preamble.
The Committee established under CEDAW has addressed the relationship between
non-discrimination and violence against women in more detail in its General
Recommendation Number 19.
Paragraphs 1, 6 and 7 of the Recommendation provide, inter alia, that:
1. Gender-based violence is a form of discrimination that seriously inhibits
women’s ability to enjoy rights and freedoms on a basis of equality with men.
:
6. … The definition of discrimination includes gender-based violence, that is,
violence that is directed against a woman because she is a woman or that
affects women disproportionately. …
:
7. Gender-based violence, which impairs or nullifies the enjoyment by women
of human rights and fundamental freedoms under general international law or
under human rights conventions, is discrimination within the meaning of
article 1 of [CEDAW]. …
Contrast the only human rights treaty that specifically addresses violence again
women, the Inter-American Convention on the Prevention, Punishment and
Eradication of Violence against Women, 1994. Article 6 provides that:
[t]he right of every woman to be free from violence includes, among others:
a. The right of women to be free from all forms of discrimination …
Discrimination Against Women - CEDAW
Discrimination against women is defined in Article 1 of CEDAW:

For the purposes of the present Convention, the term ‘discrimination against
women’ shall mean any distinction, exclusion or restriction made on the
basis of sex which has the effect or purpose of impairing or nullifying the
recognition, enjoyment or exercise by women, irrespective of their marital
status, on a basis of equality of men and women, of human rights and
fundamental freedoms in the political, economic, social, cultural, civil or
any other field.
Steiner and Alston identify “three vital characteristics” of this definition:
 It covers distinctions that have the “purpose or effect” of discriminating

against women.
o A finding that a distinction has a discriminatory effect does not require
showing an intention to impair etc the enjoyment of the rights of
women.
o Professor Meron offers the following commentary on this aspect of the
definition in Article 1 of CEDAW:
…the Convention guards against the use of facially neutral
criteria as a pretext for discrimination, for instance the use of
height and weight requirements which are not related to the

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requirements of the job and which tend to exclude women as a

group.
The ‘effects’ standard avoids the difficulties inherent in
proving specific discriminatory motive.
The prohibition of unintentional discrimination is necessary to
achieve systemic change, because policies undertaken without
discriminatory motive may perpetuate inequalities established
by prior acts of purposeful discrimination.
 The “definition is not limited to discrimination through ‘state action’ or action

by persons acting under colour of law, as are the definitions of many rights
such as the definition of torture under the Convention against Torture.”
(Steiner and Alston)
o This makes clear the application of CEDAW to what is regarded by
many as the “private” sphere.
o The application of CEDAW to non-governmental conduct is made
clear by a number of the treaty’s provisions. Perhaps most significant
in this regard are Articles 2 and 5.
 (See notes.)
o Article 2 has been the subject of a number of reservations.

o Professor Meron has expressed concerns regarding these provisions:
It is not clear whether it was appropriate to extend the field of

application of the Convention to encompass even private,
interpersonal relations (except, of course, when the conduct
which is challenged takes forms customarily regulated
pursuant to the police power). …There is danger, however,
that state regulation of interpersonal conduct may violate the
privacy and associational rights of the individual and conflict
with the principles of freedom of opinion, expression, and
belief. Such regulation may require invasive state action to
determine compliance, including inquiry into political and
religious beliefs. Attempts to regulate discrimination in
interpersonal conduct may invite abuse of the discretion vested
in the State by the broad language of Art. 1.
A more restricted approach might have been preferable,

limiting the definition of discrimination against women to
distinctions on the basis of gender in the fields of activity listed
in Art. 1 and ‘in any other field of public life’….The need to
modify cultural and social patterns of conduct with a view to
eliminating prejudices and stereotyped notions of sex roles,
emphasized in Art. 5 of the Convention, can best be advanced
by education and appropriate governmental incentives, rather
than by excessive encroachment by the State into interpersonal
relations.

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 Professor Meron’s concerns regarding rights to privacy,

association and religion also relate to issues that have been the
subject of feminist critique.
 Cassimatis makes two observations:
 Rights to privacy are not necessarily negative from a
feminist perspective.
o For example, privacy rights have justified
abortion rights in the US: see Karen Engel.
 Merely because there is an apparent conflict between
the rights of women and rights to privacy, family or
religion does not mean that an adjudicator must always
subordinate the rights of women.
o Where a conflict exists, a number of questions
arise:
 Are the competing interests the subject
of recognised human rights under
international law?
 If one of the interests falls outside
the scope of international human
rights standards then the interest
can only be used as a justification
for the limitation on the
enjoyment of a human right if
limitation is permissible and if
the stringent necessity
requirements in limitation clauses
are satisfied.
 Do any of the rights have jus cogens
status and does the conflict involve the
core application of one right and the
peripheral application of another?
 (The protection of the core aspect of a
right can be expected.)
 (etc)
 The definition has a broad scope, evidenced by the words ‘or any other field’.
o As is made apparent by later provisions of CEDAW, discrimination in
relation to the enjoyment of rights which are not themselves human
rights may nonetheless violate the human right to non-discrimination.
o Three different scenarios can be distinguished:
 A treaty may prohibit discrimination in relation to the
enjoyment of human rights set out in the treaty.
 A broader non-discrimination norm in a treaty would prohibit
discrimination in relation to rights in the treaty but would
extend to discrimination in respect of human rights in other
treaties or human rights under general international law.
 An even broader non-discrimination norm would proscribe
discrimination in relation to rights that are not the subject of
human rights standards, such as, for example, the “right” to a
tax refund.

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The scope of protected rights
The Human Rights Committee interprets Article 26 in the broader sense.

 For example, Article 13(b) of CEDAW requires States parties to
…eliminate discrimination against women in … areas of economic and
social life in order to ensure, on a basis of equality of men and women,
the same rights, in particular … [t]he right to bank loans, mortgages
and other forms of financial credit …
Example: Broeks v The Netherlands
 Mrs Broeks was employed as a nurse, but was dismissed in 1979.

 Under Dutch legislation, married men were automatically entitled to
unemployment benefits upon loss of employment.
 Women, however, had to show that they were ‘breadwinners’.
 Mrs Broeks argued that this aspect of the legislation violated Article 26 of the
ICCPR.
 The Dutch Government argued that:
o Article 26 could only be invoked to address discrimination in relation
to civil and political rights, not economic and social rights.
o Alternatively, if Article 26 applied to economic and social rights, there
could only be an obligation to progressively eliminate such
discrimination.
Held
 The Committee rejected the Dutch Government’s arguments.
 It concluded that the Dutch legislation violated Article 26 of the ICCPR.
 The Committee said:
12.4. Although article 26 requires that legislation should prohibit
discrimination, it does not of itself contain any obligation with
respect to the matters that may be provided for by legislation. Thus it
does not, for example, require any State to enact legislation to provide
for social security. However, when such legislation is adopted in the
exercise of a State's sovereign power, then such legislation must
comply with article 26 of the Covenant.
:
12.5. The Committee observes in this connection that what is at issue
is not whether or not social security should be progressively
established in the Netherlands, but whether the legislation providing
for social security violates the prohibition against discrimination
contained in article 26 of the International Covenant on Civil and
Political Rights and the guarantee given therein to all persons
regarding equal and effective protection against discrimination.
:
15. The circumstances in which Mrs. Broeks found herself at the
material time and the application of the then valid Netherlands law
made her a victim of a violation, based on sex, of article 26 of the
International Covenant on Civil and Political Rights, because she was
denied a social security benefit on an equal footing with men.

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Note that CEDAW covers:

 Civil and political rights (Articles 7, 8 and 9) and
 Economic and social rights (Articles 10 to 14).
o Therefore, certain violations of economic and social rights may be the
subject of international complaints – under the CEDAW complaints
procedure.
Discriminatory “Purpose or Effect”
Concerns have been raised regarding the narrowness of the Human Rights
Committee’s approach to Article 26 of the ICCPR.
 Charlesworth and Chinkin argue that “[t]he Committee has been more
concerned to respond to cases of direct (‘disparate treatment’) than indirect
(‘disparate impact’) discrimination.”
Contrasting results
Avellanal v Peru
 Mrs Avellanal was attempting to sue for rent owed by tenants in two
properties owned by her.
 The Peruvian Supreme Court refused her claim – Peruvian law restricted the
entitlement to sue in relation to matrimonial property to her husband.
Held
 The law discriminated on its face, so violated Articles 3, 14(1) and 26 of the
ICCPR.
Vos v The Netherlands

 The complainant was a woman whose social security benefits had been
reduced.
 She had divorced in 1957 and supported herself financially until 1976.
 In 1976, she received a disability benefit.
 In 1979, her former husband died. Under the relevant Dutch legislation, she
was no longer eligible for a disability benefit – she now received the (lesser)
widowhood benefit.
 Vos argued that the Dutch legislation violated Article 26 of the ICCPR,
because married men were not denied the benefit when their wives died.
Held
 By majority, the Committee concluded that there was no violation of Article
26.
 The rule was based on objective and reasonable criteria – “the unfavourable
result complained of by Mrs Vos follows from the application of a uniform
rule to avoid overlapping in the allocation of social security benefits.”
Criticisms
 The two members of the Human Rights Committee who dissented concluded
that:
[a] differentiation with regard to full [disability] benefits among
disabled women on the sole ground of marital status as a widow cannot
be said to be based on reasonable and objective criteria. It therefore
constitutes prohibited discrimination within the meaning of article 26.

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 Bayefsky criticised the result – she said that the policy “bore the hallmarks of
classic stereotyping of women…”.
 Cassimatis considers that it is “difficult to see how a rule that had this effect
could be characterised as being based on objective and reasonable criteria.”
 Charlesworth and Chinkin suggest that the majority appears to come close to
requiring a discriminatory intent.
Temporary Special Measures
CEDAW specifically protects ‘temporary special measures’. Article 4(1) of CEDAW

provides that the:
[a]doption by States Parties of temporary special measures aimed at
accelerating de facto equality between men and women shall not be
considered discrimination as defined in the present Convention, but
shall in no way entail as a consequence the maintenance of unequal or
separate standards; these measures shall be discontinued when the
objectives of equality of opportunity and treatment have been
achieved.
The Human Rights Committee:

 Seems to suggest that the special measures must remain proportionate to the
need to address historical discrimination.
 Has approved of the constitutional reservation for women candidates of a third
of seats in elected local bodies in India.
The CEDAW Committee appears to encourage the use of gender quotas for
membership of public bodies – see General Recommendation No 23.
Racial Discrimination
Customary protection:
 Judge Tanaka in the South West Africa Cases (Second Phase) focussed on the
prohibition of racial discrimination.
 In the Barcelona Traction Case, the International Court of Justice identified
protection from racial discrimination as a principle concerning basic human
rights that gave rise to obligations owed erga omes.
Treaty protection:
 A number of treaties address the prohibition of racial discrimination.
o Perhaps the most important is CERD.
Definition of Racial Discrimination
Article 1(1) of CERD provides that:

[i]n this Convention, the term ‘racial discrimination’ shall mean any
distinction, exclusion, restriction or preference based on race, colour,
descent, or national or ethnic origin which has the purpose or effect of
nullifying or impairing the recognition, enjoyment or exercise, on an equal
footing, of human rights and fundamental freedoms in the political,
economic, social, cultural or any other field of public life.

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o The reference to ‘descent’ is treated as encompassing caste-based

discrimination, which does not have any discernible racial foundation:
see CERD Committee’s General Recommendation No 29 (2002).
Like the definition in CEDAW, the CERD definition applies to distinctions that have
a discriminatory ‘purpose or effect’.
 For example, the CERD Committee identified the discriminatory effect of
Australia’s mandatory sentencing schemes in its concluding observations on
Australia’s periodic reports in 2000:
concern about the minimum mandatory sentencing schemes with
regard to minor property offences enacted in Western Australia, and in
particular in the Northern Territory. The mandatory sentencing
schemes appear to target offences that are committed
disproportionately by indigenous Australians, especially juveniles,
leading to a racially discriminatory impact on their rate of
incarceration. The Committee seriously questions the compatibility of
these laws with the State party’s obligations under the Convention …
The CERD Committee does not consider all distinctions to fall within the definition
of ‘racial discrimination’. In its General Recommendation 14 (1993), the Committee
said of the scope of Article 1(1) of CERD:
2. The Committee observes that a differentiation of treatment will
not constitute discrimination if the criteria for such
differentiation, judged against the objectives and purposes of the
Convention, are legitimate or fall within the scope of article 1,
paragraph 4, of the Convention. In considering the criteria that
may have been employed, the Committee will acknowledge that
particular actions may have varied purposes. In seeking to
determine whether an action has an effect contrary to the
Convention, it will look to see whether that action has an
unjustifiable disparate impact upon a group distinguished by
race, colour, descent, or national or ethnic origin.
Other provisions of CERD
Article 1(1) of CERD must be read in light of the other provisions of CERD.
In particular, note the following:
Article 1
…
2. This Convention shall not apply to distinctions, exclusions, restrictions or
preferences made by a State Party to this Convention between citizens and
non-citizens.
3. Nothing in this Convention may be interpreted as affecting in any way the
legal provisions of States Parties concerning nationality, citizenship or
naturalization, provided that such provisions do not discriminate against
any particular nationality.
…
[Paragraph 4 addressing “special measures” is set out below.]

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Article 2
1. States Parties condemn racial discrimination and undertake to pursue by

all appropriate means and without delay a policy of eliminating racial
discrimination in all its forms and promoting understanding among all
races, and, to this end:
(a) Each State Party undertakes to engage in no act or practice of racial

discrimination against persons, groups of persons or institutions and to
ensure that all public authorities and public institutions, national and
local, shall act in conformity with this obligation;
(b) Each State Party undertakes not to sponsor, defend or support racial
discrimination by any persons or organizations;
(c) Each State Party shall take effective measures to review governmental,
national and local policies, and to amend, rescind or nullify any laws and
regulations which have the effect of creating or perpetuating racial
discrimination wherever it exists;
(d) Each State Party shall prohibit and bring to an end, by all appropriate
means, including legislation as required by circumstances, racial
discrimination by any persons, group or organization;
(e) Each State Party undertakes to encourage, where appropriate,

integrationist multiracial organizations and movements and other means
of eliminating barriers between races, and to discourage anything which
tends to strengthen racial division.
2. States Parties shall, when the circumstances so warrant, take, in the social,
economic, cultural and other fields, special and concrete measures to
ensure the adequate development and protection of certain racial groups
or individuals belonging to them, for the purpose of guaranteeing them
the full and equal enjoyment of human rights and fundamental freedoms.
These measures shall in no case entail as a consequence the
maintenance of unequal or separate rights for different racial groups
after the objectives for which they were taken have been achieved.
…
Article 4
States Parties condemn all propaganda and all organizations which are based
on ideas or theories of superiority of one race or group of persons of one
colour or ethnic origin, or which attempt to justify or promote racial hatred
and discrimination in any form, and undertake to adopt immediate and positive
measures designed to eradicate all incitement to, or acts of, such
discrimination and, to this end, with due regard to the principles embodied in
the Universal Declaration of Human Rights and the rights expressly set forth
in article 5 of this Convention, inter alia:

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(a) Shall declare an offence punishable by law all dissemination of ideas

based on racial superiority or hatred, incitement to racial
discrimination, as well as all acts of violence or incitement to such acts
against any race or group of persons of another colour or ethnic origin, and
also the provision of any assistance to racist activities, including the
financing thereof;
(b) Shall declare illegal and prohibit organizations, and also organized and
all other propaganda activities, which promote and incite racial
discrimination, and shall recognize participation in such organizations or
activities as an offence punishable by law;
(c) Shall not permit public authorities or public institutions, national or local,
to promote or incite racial discrimination.
Article 5
In compliance with the fundamental obligations laid down in article 2 of this

Convention, States Parties undertake to prohibit and to eliminate racial
discrimination in all its forms and to guarantee the right of everyone, without
distinction as to race, colour, or national or ethnic origin, to equality before the
law, notably in the enjoyment of the following rights:
(a) The right to equal treatment before the tribunals and all other organs
administering justice;
(b) The right to security of person and protection by the State against
violence or bodily harm, whether inflicted by government officials or by
any individual group or institution;
(c) Political rights, in particular the right to participate in elections-to vote

and to stand for election-on the basis of universal and equal suffrage, to
take part in the Government as well as in the conduct of public affairs at
any level and to have equal access to public service;
(d) Other civil rights, in particular:
(i) The right to freedom of movement and residence within the border of
the State;
(ii) The right to leave any country, including one's own, and to return to
one’s country;
(iii) The right to nationality;
(iv) The right to marriage and choice of spouse;
(v) The right to own property alone as well as in association with others;
(vi) The right to inherit;
(vii) The right to freedom of thought, conscience and religion;
(viii) The right to freedom of opinion and expression;
(ix) The right to freedom of peaceful assembly and association;

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(e) Economic, social and cultural rights, in particular:
(i) The rights to work, to free choice of employment, to just and

favourable conditions of work, to protection against unemployment, to
equal pay for equal work, to just and favourable remuneration;
(ii) The right to form and join trade unions;
(iii) The right to housing;
(iv) The right to public health, medical care, social security and social
services;
(v) The right to education and training;
(vi) The right to equal participation in cultural activities;
(f) The right of access to any place or service intended for use by the
general public, such as transport, hotels, restaurants, cafés, theatres and
parks.
Discrimination by Non-Governmental Entities
State parties are required to suppress racial discrimination even by non-governmental

entities: Articles 2(1)(b), 2(1)(d), 4 and 5(f) of CERD.
However, note that the definition of ‘racial discrimination’ appears to require

discrimination ‘in a field of public life’: Article 1(1).
 A ‘field of public life’ cannot be limited to governmental action – Articles 2, 4
and 5 preclude that interpretation.
o Article 5(f) gives an example of a non-governmental public field (see
above).
Incitement of Racial Discrimination
Article 4 proscribes incitement to racial discrimination, etc (see above).
This raises difficult questions about balancing freedom of expression and freedom of
association against the right to non-discrimination.
 The CERD Committee addressed this issue in General Recommendation 15
(1993).
 The European Court of Human Rights addressed the issue in Jersild v
Netherlands (1995) 19 EHRR 1.
Australia made the following reservation to Article 4 when it became a party to the
CERD:
The Government of Australia ... declares that Australia is not at present in a
position specifically to treat as offences all the matters covered by article 4 (a)
of the Convention. Acts of the kind there mentioned are punishable only to the
extent provided by the existing criminal law dealing with such matters as the
maintenance of public order, public mischief, assault, riot, criminal libel,
conspiracy and attempts. It is the intention of the Australian Government, at
the first suitable moment, to seek from Parliament legislation specifically
implementing the terms of article 4 (a).

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Promotional Obligations
Article 6 of CERD sets out educational obligations in relation to racial discrimination.
Special Measures
Article 2(2) of CERD requires State parties, ‘when the circumstances so warrant’, to
take
special and concrete measures to ensure the adequate development and
protection of certain racial groups or individuals belonging to them, for the
purpose of guaranteeing them the full and equal enjoyment of human rights
and fundamental freedoms.
Such measures could themselves fall within the definition of ‘racial discrimination’ in
Article 1(1).
 Therefore, CERD includes Article 1(4):
4. Special measures taken for the sole purpose of securing adequate
advancement of certain racial or ethnic groups or individuals requiring such
protection as may be necessary in order to ensure such groups or individuals
equal enjoyment or exercise of human rights and fundamental freedoms shall
not be deemed racial discrimination, provided, however, that such measures
do not, as a consequence, lead to the maintenance of separate rights for
different racial groups and that they shall not be continued after the
objectives for which they were taken have been achieved.
 That is, Article 1(4) incorporates a necessity requirement.

 The affirmative action measures must also be proportionate to the end of
delivering justice to the victims of past discrimination.
o The Human Rights Committee has required this.
Identification
States seeking to implement special measures must identify the groups to benefit from
such measures.
 This creates definitional difficulties. To assist, note:
o The views of Judge Tanaka on racial distinctions in the South West
Africa Case (Second Phase).
o The CERD Committee’s opinion in General Recommendation 8
(1990):
The Committee on the Elimination of Racial Discrimination,
Having considered reports from States parties concerning
information about the ways in which individuals are identified
as being members of a particular racial or ethnic group or
groups,
Is of the opinion that such identification shall, if no
justification exists to the contrary, be based upon self-
identification by the individual concerned.

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Temporariness
The measures must be temporary. This raises concerns about permanent measures to
protect indigenous peoples and minorities.
 Henkin et al argue that permanent measures protecting such groups are
consistent with CERD.
Other concerns
Other concerns have been raised regarding Articles 2(2) and 1(4) of CERD – for
example, see Meron.
Cases involving Australia
Amendments to the Australian Native Title Act
 On 11 August 1998, the CERD Committee sought information from Australia

regarding proposed amendments to the Native Title Act.
 On 18 March 1999, the Committee issued its decision:
6. The Committee, having considered a series of new amendments to
the Native Title Act, as adopted in 1998, expresses concern over the
compatibility of the Native Title Act, as currently amended, with the
State party’s international obligations under the Convention. While
the original Native Title Act recognizes and seeks to protect
indigenous title, provisions that extinguish or impair the exercise of
indigenous title rights and interests pervade the amended Act. While
the original 1993 Native Title Act was delicately balanced between the
rights of indigenous and non-indigenous title holders, the amended
Act appears to create legal certainty for Governments and third
parties at the expense of indigenous title.
7. The Committee notes, in particular, four specific provisions that

discriminate against indigenous title holders under the newly amended
Act. These include the Act’s ‘validation’ provisions; the
‘confirmation of extinguishment’ provisions; the primary production
upgrade provisions; and restrictions concerning the right of
indigenous title holders to negotiate non-indigenous land uses.
 The Australian Government responded to these concerns in Australia’s

periodic reports to the Committee of 20 July 1999.
 The Committee considered these reports and further submissions from the
Government in March 2000.
o The Government argued that the four specific provisions were
“justifiable and proportional in the particular circumstances and were
not inconsistent with the Convention.”
 The Committee indicated in its Concluding Observations in March 2000 that it
considered the Australian Government’s response to have been
‘unsatisfactory’.

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 The Parliamentary Joint Committee issued its report (or reports) on the
consistency of the amended Native Title Act with CERD in June 2000.
o The majority report prepared by the Government members of the
Parliamentary Joint Committee concluded that the amended Native
Title Act was consistent with CERD.
o The report issued by the non-Government members of the
Parliamentary Joint Committee concluded that the amended Act
breached Australia’s obligations under CERD.
 The non-Government members considered that
[u]nder the amended … [Native Title Act], Indigenous
rights and interests are extinguished, or impaired, for
the benefit of non-Indigenous interests, in every case
where there is an inconsistency. This does not meet
Australia’s CERD obligations.
 In this regard the non-Government members of the
Parliamentary Joint Committee quoted the following
observations of Dr Donald Rothwell and Ms Shelley Wright,
two respected international lawyers from Sydney University:
No other group in Australian society is singled out in
this way. No legislative or judicial act preventing a
specific racial or ethnic group from exercising
property rights already exercised under the common
law and by statute can be characterised as anything
other than discriminatory on the basis of race or
ethnic origin, specifically prohibited under the
Convention.
Hagan v Australia
Recall:
 The CERD Committee is entitled to receive individual complaints of
violations.
o This is provided for in Article 14.
 Australia recognise the Committee’s competence in that regard in 1993.
In 2003, the CERD Committee issued its views on a complaint about the “E.S
‘Nigger’ Brown Stand” in Toowoomba.
 The complainant sued in the Federal Court and appealed to the Full Court of
the Federal and the High Court.
 Once Australian proceedings were exhausted, the complainant went to the
CERD Committee.
 The Australian Government denied any violation of Australia’s obligations
under CERD.
o In relation to allegations of violation of Article 4, Australia relied on
its reservation (see above).
o Australia also relied on jurisprudence of the Human Rights Committee
and the European Court of Human Rights.
Held

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 The CERD Committee did not specifically address the legal submissions
raised by Australia.
 The Committee considered that the name of the grandstand could be
considered ‘offensive and insulting’ (words that do not appear in the treaty).
 It recommended Australia ‘take then necessary measures to secure the removal
of the offending term’.
 It was left entirely unclear which provisions of CERD the Committee
considered Australia to have violated.

Lecture Notes - Human Rights Lecture Notes - Human Rights

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Lecture notes - human rights

Legal Protection of International Human Rights (Murdoch University)

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List of human rights:

 Right to shelter – to have a home (UDHR – right to adequate standard of

 Right to seek asylum

 Right to property – right not to be arbitrarily deprived of your property.

 Freedom to practice own religion

 Right to a fair trial and in public

 Freedom from forced labor

 Right to education – development of well-being

 Freedom from discrimination –

 Right to participate in government (controversial)

 Freedom from arbitrary arrest, detention etc

 Right to social security

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Defining human rights

1. Natural Rights and Social Contracts

 A government that attempted to limit these fundamental rights could be resisted.

a) American Declaration of Independence refers to ‘life, liberty and the pursuit

b) The French Declaration of the Rights of Man and of the Citizen:

Thomas Paine (social contract theorist)

 Natural rights belong to man in right of his existence

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 Paine also believed in the importance of a constitution and the separation of

 Finally, Paine advocated provision by government of social support to families,

Attacks upon the Concept of Natural Rights

2. Positivism (Jeremy Bentham)

 When government is deciding on a course of conduct, it ought not to be

3. Human Rights and Justice

Rawls and Dworkin:

 Rawls identifies two ‘principles of justice’:

4. Human Dignity and Human Rights

 Another version of religious/natural law view

5. Inalienability of Human Rights

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 One absolute right – right to existence (natural persons)

Functions of Human Rights

 Defence against government intrusion: freedoms directed primarily against

Obligations to respect: In general, this level of obligation requires the state to

 Objective Function: Permeating the law and its interpretation

 Duty to ProtectActively protect a right

Obligations to protect: This level of obligation requires the state to prevent

 Participationsocial state principal, sharing in certain public goods (equal access)

Obligations to fulfill: This level of obligation requires the state to take

 Entitlements? To construe Human Rights as entitlements to things requiring

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Functional perspective of right to free speech

“Government, leave me alone, do not interfere with my speech”!

Duty to Protect Function:

“Government, do something! Stop this racial (etc) vilification! Protect my personal

How do rights (here: free speech) work perspective

HUMAN RIGHTS IN INTERNATIONAL LAW

In international law, human rights are recognised in three principal ways:

> Customary international law

> Resolutions of the United Nations General Assembly.

UN-System of Human Right Protection

Human Rights Protection Mechanisms under International Law

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 Bodies provided for in the UN Charter, for example:

 Bodies created by Charter bodies, for example:

 ‘Specialised agencies’ – bodies not created by the Charter or Charter bodies,