CENTRAL UNIVERSITY OF SOUTH BIHAR

SCHOOL OF LAW AND GOVERNANCE

PUBLIC INTERNATIONAL LAW (LAW 351)

ASSIGNMENT ON: IMPLEMENTATION OF HUMAN RIGHTS
AT INTERNATIONAL LEVEL

SUBMITTED TO- Ms. POONAM KUMARI

SUBMITTED BY- SHIVAM KUMAR PANDEY

B.SC. LLB 6TH (SIXTH SEMESTER)
CUSB1513115016
SESSION: 2015-2020

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 CONTENT

Sr TITLE Page
No. No.

1 Acknowledgement 3

2 Abstract 4

3 Preface 5

4 International Human Rights Protection Mechanisms: Organization, and 6

Operations

5 Bodies and Procedures Frequently used by Human Rights Law Advocates 8

6 UN Charter-Based Tribunals and Other Mechanisms 13

7 Implementation of Human Rights at International Level- Leading Cases 15

8 Conclusion 24

9 Bibliography 26

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 ACKNOWLEDGEMENT
Firstly, I would like to express my sincere gratitude to my professor Ms. Poonam Kumari Ma’am
for giving me this assignment and helping me acquire a comprehensive knowledge of Public
International Law.
I would like to thanks my classmates. I benefitted a lot from their discussion.
I would like to thank my university and its administration, library and computer center staff for
providing me with the infrastructure and a conductive environment to complete my project.

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 ABSTRACT
The struggle to preserve, protect and promote human rights is as old as human civilization. The
origin and development of human rights can be traced to the very beginning of life in the society.
In primitive societies man had a number of limitless freedoms, but in organized society these
freedoms have no meaning because the limitless freedom of some people must have resulted in
the miserable suppression of the freedom of another class of people.
This assignment discusses the implementation of human rights in the international arena. A
number of organisations function in the international arena to protect the basic rights of Human
Beings. The human right movement across the done a great deal of good, freeing individuals
from great harm, providing an emancipatory expression and institutional machinery for people
across the globe, raising the standards by which governments judge one another, and by which
they are judged, both by their own people.

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 Introduction
Rights that inhere in a human being by virtue of his birth as a human being are human rights.
Human rights do not depend for their existence on the legal and moral practices of different
communities1. It is not the particular privilege conferred or granted upon a man by the State but
something that due to him or owned by him by reason of his birth. Human Rights are based on
mankind's increasing demand for a civilized life in which the inherent dignity of each human
being is well respected and protected.' These rights are essential for the spiritual, physical and
moral development of the individual. They are associated with the dignity of the individual and it
is the enjoyment of these rights that makes a human being worthy of human dignity. Human
rights are not rights which derive from a particular State: they are rights which belong to a man
simply because he is a man2. So human rights are the natural, inherent and inalienable rights
without which a man cannot exist, and are positive obligations on the part of the State. It is
universal, do not differ with geography, history, culture, economic system or stage of
development, gender, race, class or status and are to be protected by the State.

1
Tim Dunne and Nicholas J. Wheeler., "Introduction: Human Rights and Fifty Years' Crisis", in Tim
Dunne and Nicholas J. Wheeler (Eds.), Human Rights in Global Politics, Press Syndicate of the
University of Cambridge, United Kingdom (1999), p4
2
Maurice & Crantson, Human Rights Today, P.C. Manaktala and Sons Pvt: Ltd.. Bombay (1962). p.16.

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International Human Rights Protection Mechanisms: Organization, and Operations
The major international human rights adjudicative and other enforcement mechanisms have been
discussed below.

United Nations Mechanisms

The UN’s human rights and humanitarian enforcement mechanisms are either UN treaty or UN
Charter based. The difference between treaty- and Charter-based organizations is important on a
very pragmatic level. Charter-based organizations are supported by UN members’ dues; treaty-
based organizations are funded only on a voluntary basis by the states parties to the treaty.
Within the UN enforcement system, there are diverse organs, such as courts/tribunals,
committees, special procedural mechanisms, working groups, rapporteurs, experts, and
representatives. The only true courts/tribunals at present are the following:
 International Court of Justice (“The Hague” or ICJ)
 International Criminal Court (ICC)
 International Criminal Tribunal for the Former Yugoslavia (ICTY)
 International Criminal Tribunal for Rwanda (ICTR)

Tribunals and courts that have been established or proposed under agreements between the UN
and national authorities (so-called hybrid tribunals) include the following:
 Special Court for Sierra Leone
 Crime Panels of the District Court of Dili and Court of Appeals (“East Timor Tribunal”)
 UN Interim Administration Mission in Kosovo (UNMIK) “Regulation 64” Panels in the
Courts of Kosovo
 Extraordinary Chambers in the Court of Cambodia

The ICJ only considers cases between countries and/or intergovernmental organizations (e.g.,
World Health Organization, UNICEF). Individuals or nongovernmental organizations (NGOs)
cannot bring cases to the ICJ. The International Criminal Court, the International Criminal
Tribunals for Yugoslavia and Rwanda, and the other hybrid criminal courts only consider cases
prosecuted by their respective prosecutors. Individuals cannot bring private prosecutions.
However, these criminal tribunals do consider amicus curiae briefs from NGOs and other

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nongovernmental entities. There are other adjudicative bodies with quasi-judicial powers that
have been established by treaty. These are
 Human Rights Committee
 Committee on the Elimination of Racial Discrimination
 Committee Against Torture
 Committee on the Elimination of Discrimination Against Women

Before these bodies, individuals can bring cases against state’s parties to the respective treaties
creating these bodies. However, these quasi-judicial bodies can only “recommend” certain
measures. They cannot “order” state’s parties to comply with their findings. Other UN bodies or
procedures have little or no adjudicative power. However, recently the UN Working Group on
Detention has begun issuing legally reasoned decisions to develop the international law
governing detention.
The opinions issued by these quasi-judicial bodies do provide declaratory relief that is essential
for developing the corpus of international human rights and humanitarian law for the UN
Security Council and other tribunals with stronger remedial powers. Such “soft law” has “hard
law consequences” through other international enforcement mechanisms.

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Bodies and Procedures Frequently used by Human Rights Law Advocates

UN Treaty-Based Tribunals
Although there are numerous human rights and humanitarian declarations, standards, and
treaties, presently only five treaties have established either a court or a quasi-judicial body for
considering cases:
(1) The Treaty of Rome (or ICC Statute) that established the International Criminal Court;
(2) The International Covenant on Civil and Political Rights (ICCPR) with its Optional Protocol
that established the Human Rights Committee;
(3) The Convention against Torture, Cruel, Inhuman or Degrading Treatment or Punishment that
established the Committee against Torture;
(4) The Convention on the Elimination of All Forms of Racial Discrimination that established
the Committee on the Elimination of Racial Discrimination;
(5) Optional Protocol to the Convention on the Elimination of All Forms of Discrimination
against Women established the Committee on the Elimination of Discrimination against Women.
International Criminal Court
In July 1998, the Treaty of Rome (“Statute of the International Criminal Court”) was adopted.
The ICC was established when the Treaty of Rome came into force on July 1, 2002. The ICC has
jurisdiction over the crimes of genocide, crimes against humanity, war crimes, and the crime of
aggression3. The UN conference that established the ICC declined to give the ICC jurisdiction
over crimes of terrorism or illegal drug trafficking.
The UN Security Council or a state party to the Treaty of Rome can refer a case to the ICC
prosecutor for investigation. The prosecutor also can initiate an investigation propio motu. On
the basis of the information gathered by the prosecutor, the ICC’s pre-trial chamber makes a
decision about admissibility. There is also an appeals chamber. In 2004, the ICC prosecutor
began investigating international crimes committed in the Democratic Republic of Congo,
Central African Republic, and Uganda.
Human Rights Committee
The UN Human Rights Committee was established by the ICCPR in 1976. Its major function is
to interpret the ICCPR, which lists many different fundamental rights. Besides examining reports

3
Art. 5(1), Statute of the International Criminal Court, U.N Doc. A/CONF.183/9 (17 July 1998).

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on human rights conditions in particular countries and issuing advisory opinions called “General
Comments,” the Committee also considers “communications” from individuals in closed
meetings under the Optional Protocol to the ICCPR. The eighteen-member committee meets
three times a year in Geneva (twice) and New York (once).
Only complaints (called “communications”) from person(s) (called “authors”) subject to the
jurisdiction of a state that is a party to the Optional Protocol can be considered. Of the
approximately 130 states parties to the ICCPR, over eighty are parties to the Optional Protocol.
If the author’s communication is sent to the state party for comment, the author will have an
opportunity to reply to the state’s comments. The Committee places authors and states parties on
equal footing throughout its proceedings.
There is an initial admissibility stage in which the Committee examines the communication to
determine whether it has jurisdiction. During this admissibility stage, the Committee examines
several issues. As in many international adjudicative systems, the Complainant must both
exhaust domestic remedies, and the complaint cannot be considered if the same situation
involving the same parties is being investigated under another international procedure.
Furthermore, the state must have been a state party at the time of the alleged ICCPR violation.
The Committee usually takes twelve to eighteen months to declare a communication admissible
or inadmissible.
If a communication is found admissible, the Committee then examines the merits of the case.
The examination of the merits of the case may take a year or two, depending on the degree of
cooperation by states parties and the authors of complaints in submitting all the information
needed by the Committee. However, as a matter of practice, oftentimes the Committee examines
both the admissibility and merits of the case contemporaneously because the state party
addresses both admissibility issues and the merits of the case in its initial comments to the
author’s complaint.
Subsequently, the Committee makes legal and factual findings on the communication. These
findings are called “views.” Decisions are usually made by consensus even though members can
demand the taking of a vote. If the state party is found to have violated its legal obligations under
the ICCPR, the Committee makes a “recommendation” to the state party to correct the matter.
Although during the proceedings of the case, parties may not disclose publicly the identity of the
parties, after the session at which the findings are adopted parties can publicly be disclosed. The

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views and recommendations are reproduced in the Committee’s annual report to the General
Assembly.
Interim protection before the Committee adopts its view is provided by the Committee under
Rule 86 of its Regulations. For example, the Committee has advised against a threatened
expulsion, for the suspension of a death sentence, or the need for an urgent medical examination.
Because the Committee has no independent fact-finding functions, it can consider only written
information made available by the parties. There are no oral hearings. Allegations and counter
allegations must be specific and not couched in general terms. In a number of cases dealing with
the right to life, torture, and ill-treatment, as well as arbitrary arrests and disappearances, the
Committee has established that the burden of proof cannot rest alone on the person who is
complaining of the violation of rights and freedoms.
At first, the Human Rights Committee did not receive many communications in part due to the
fact that there had been a tacit understanding with human rights NGOs that they would not
deluge the Committee with communications. However, in the latter part of the 1980s, growing
public awareness of the Human Rights Committee’s work under the Optional Protocol multiplied
the number of communications it received. In all, 728 communications from individuals
involving fifty-two countries have been examined by the Committee as of November 1996. Of
these 728 communications, the Committee ruled on the merits in 239 cases and found 181 cases
in which there were violations of the ICCPR.
The effectiveness of the Committee has been mixed. Several countries have changed their laws
as a result of Committee recommendations. In a number of cases, prisoner sentences have been
commuted and compensation paid to victims of human rights violations. Countries that have
complied with their ICCPR obligations include Canada and several Scandinavian countries.
However, many countries have simply ignored the Committee’s recommendations. Some
countries have even refused to answer initial Committee requests for comments on the author’s
communication. In 1990, the Committee instituted a mechanism whereby it seeks to monitor
more closely whether states parties have given effect to its final decisions on the merits.

Committee on the Elimination of Racial Discrimination

Largely in response to Third World pressure against the South African policy of apartheid, the
UN General Assembly adopted the Declaration on Racial Discrimination in 1963 and the

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Convention on the Elimination of All Forms of Racial Discrimination in 1965. The convention
entered into force in 1969. The implementation provisions of the convention were the first such
provisions included in the text of a UN human rights convention. Unlike, for example, the
ICCPR, the Convention on the Elimination of All Forms of Racial Discrimination incorporates a
right of petition for individuals. The Committee on the Elimination of Racial Discrimination
(CERD) considers communications from individuals and groups within a state’s jurisdiction. If
the author has exhausted all domestic remedies, the convention provides notice of the alleged
violation to the state party concerned, maintaining the confidentiality of the petitioner. The state
is then given a three-month period in which to cure or submit written comments on the
allegations. After reviewing all relevant information made available, CERD makes a finding
about any violations of the convention. If a violation is found, CERD makes a recommendation
to the state party. However, CERD has considered very few communications in all its years even
though over 140 countries are states parties. The preferred UN protection mechanism for
pressing complaints of racial discrimination has been the UN Human Rights Committee.
Committee Against Torture
The Committee Against Torture (CAT) was established under Article 17 of the Convention
Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. The
convention was adopted by the UN General Assembly in 1984 and entered into force in 1987.
Each party to the convention accepts the affirmative responsibility to take effective legislative,
administrative, judicial, and other measures to prevent acts of torture in any territory under its
jurisdiction and to submit reports to the CAT on the measures it has taken to fulfill its
responsibilities.
The Committee examines and issue reports of CAT violations. Furthermore, Article 22 of the
convention creates an individual complaint procedure. On screening out communications that are
anonymous or incompatible with provisions of the convention, the Committee brings admissible
communications to the attention of the state party concerned and considers the communications
in light of all the information made available by the individual and the state party. CAT may then
forward its views to both parties and report its views in its annual report to the UN General
Assembly.
The convention is distinctive among several treaties in providing for the more intrusive Article
20 remedy, whereby one or more of its members may be called on to undertake a confidential

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inquiry and to report urgently to CAT in those cases in which it “receives reliable information
which appears to it to contain well-founded indications that torture is being systematically
practiced in the territory of the State Party.” While CERD has an interstate complaint procedure,
the CAT interstate complaint procedure is dependent on the specific and separable acceptance by
the state of Article 41. Since its establishment, CAT has considered very few cases. The
preferred UN protection mechanism for pressing claims of torture and other cruel, inhuman, or
degrading treatment or punishment has been the UN Human Rights Committee.
Committee to Eliminate Discrimination Against Women
The Convention on the Elimination of All Forms of Discrimination Against Women was adopted
in 1979 and entered into force in 1981. The Optional Protocol to the Convention to Eliminate
Discrimination Against Women was adopted in 1999 and entered into force in 2000. The
Optional Protocol allows individuals to submit complaints either on behalf of themselves or
others to the Committee to Eliminate Discrimination Against Women (CEDAW) for alleged
violations of the Convention. Unlike the convention, the Optional Protocol does not allow
reservations.
As in other international adjudicative mechanisms, the complainant must exhaust domestic
remedies, and the complaint cannot be pending before or have been examined by another
international proceeding. Examination of communications takes place in closed meetings. The
CEDAW makes admissibility and merits decisions on the communication. If a violation is found,
the state party must respond within six months with what measures it has taken to remedy the
situation. As of 2004, only one communication had been examined by the Committee.
Committee on Economic, Social, and Cultural Rights
The Committee on Economic, Social, and Cultural Rights (CESCR), established in1985, is a
body of independent experts responsible for monitoring state party compliance with the
International Covenant on Economic, Social, and Cultural Rights. States parties are required
under the covenant to submit reports to the Committee on their compliance with the covenant,
and the CESCR then examines these reports and issues “concluding observations” addressing its
concerns and recommendations. The CESCR does not consider individual complaints – although
a draft protocol is under consideration. The CESCR meets twice yearly and also issues “General
Comments” elaborating on the protections guaranteed by the Covenant.

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 UN Charter-Based Tribunals and Other Mechanisms

The following tribunals and other mechanisms receive their authority from the UN Charter.

International Court of Justice

The ICJ succeeded the former Permanent International Court of Justice (PCIJ) established by the
League of Nations in 1921. The ICJ probably is the best-known international court because of its
age. However, the PCIJ/ICJ, has not entertained as many cases/advisory opinions as the
European Court of Human Rights, which is considerably younger. It has dealt with a few
cases/advisory opinions addressing human rights–related issues, such as genocide, self-
determination, and nuclear weapons. The ICJ has jurisdiction over contentious cases between
states and intergovernmental organizations. It also issues advisory opinions.

UN High Commissioner for Human Rights

In 1994, the first UN High Commissioner for Human Rights was appointed. The High
Commissioner has the rank of undersecretary-general and is the principal UN official responsible
for promoting human rights worldwide. In this role, the Commissioner supervises the UN Centre
for Human Rights in Geneva and seeks to strengthen UN machinery for human rights
protection4.
The UN Human Rights Commission is the principal charter-based human rights organ. It
establishes policy and organizes activities surrounding the promulgation of human rights
standards. Beginning with the Universal Declaration of Human Rights in the 1940s, the
Commission has directed the drafting of declarations and conventions. It also supervises the
operations of a number of procedures and agencies.

Procedure under ECOSOC Resolution 1503

The 1503 procedure was established by the Economic and Social Council’s Resolution 1503 in
1970. The 1503 procedure was adopted and built on the 1235 procedure and developed as a
mechanism for the investigation of specific instances involving civil and political rights
violations. Communications under 1503 can be submitted by individuals. Although

4
The High Commissioner for Human Rights: An Introduction, U.N. Doc. HR/PUB/HCHR/96/1 (1996).

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communications were generally used by the UN primarily as a means of identifying general
trends, the adoption of the 1503 procedure developed into an individual complaint procedure.
International Labour Organisation
The International Labour Organisation (ILO) succeeded the International Labour Office created
in 1919, which was autonomously associated with the League of Nations. The ILO seeks to
improve labour conditions and the development of independent labour movements. The ILO has
two main organs: the General Conference (composed of representatives from each UN member
state) and the Governing Body (composed of government, employer, and employee
representatives). The Governing Body serves as the executive council and is elected by the
General Conference. The ILO has promulgated the International Labour Code that consists of
over 250 conventions and recommendations. Upon ratification of an ILO convention, the state
party must submit compliance reports to the ILO, and the ILO supervises the state’s compliance.

UN High Commissioner for Refugees

The post of UN High Commissioner for Refugees (UNHCR) was created by the General
Assembly in 1950. The office of UNCHR promotes the protection of refugee rights and
supervises state party compliance with the UN Convention Relating to the Status of Refugees
(1951) and it’s Protocol (1967). The UNHRC also provides humanitarian relief, including food,
medical care, and the supervision of refugee camps. It also seeks to resettle refugees.

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 Implementation of Human Rights at International Level- Leading Cases

Case on Right to life- Vo v. France5

A French Hospital confused the applicant, Miss Vo, with another patient who was to have a coil
removed from her uterus, the hospital mistakenly pierced the applicant’s amniotic sac resulting
in a substantial loss of amniotic fluid. Consequently, her doctor performed an abortion on the
applicant for health reasons. The applicant and her partner filed a criminal complaint alleging
unintentional homicide of her child. However, the French Criminal Court subsequently
dismissed the criminal charge because the French Criminal Code excluded acts causing fatal
injury to a fetus.
Unlike Article 4 of the American Convention on Human Rights, which provides that the right to
life must be protected “in general, from the moment of conception”, Article 2 of the Convention
is silent as to the temporal limitations of the right to life and, in particular, does not define
“everyone” whose “life” is protected by the Convention. The Court has yet to determine the issue
of the “beginning” of “everyone’s right to life” within the meaning of this provision and whether
the unborn child has such a right. The special nature of the instant case raises a new issue. The
Court is faced with a woman who intended to carry her pregnancy to term and whose unborn
child was expected to be viable, at the very least in good health. Her pregnancy had to be
terminated as a result of an error by a doctor and she therefore had to have a therapeutic abortion
on account of negligence by a third party. The issue is consequently whether, apart from cases
where the mother has requested an abortion, harming a foetus should be treated as a criminal
offence in the light of Article 2 of the Convention, with a view to protecting the foetus under that
Article. This requires a preliminary examination of whether it is advisable for the Court to
intervene in the debate as to who is a person and when life begins, in so far as Article 2 provides
that the law must protect “everyone’s right to life”.
As is apparent from the above recapitulation of the case-law, the interpretation of Article 2 in
this connection has been informed by a clear desire to strike a balance, and the Convention
institutions’ position in relation to the legal, medical, philosophical, ethical or religious

5
European Court of Human Rights, 8 July, 2004

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dimensions of defining the human being has taken into account the various approaches to the
matter at national level.

Prevention and Punishment of the crime of Genocide - Croatia v. Serbia6

“On 2 July 1999, Croatia filed an Application against the Federal Republic of Yugoslavia (FRY)
“for violations of the Convention on the Prevention and Punishment of the Crime of Genocide”.
As basis for the Court’s jurisdiction, Croatia invoked Article IX of that Convention.

The Court then turned to the merits of the Parties’ claims. It recalled that, under the terms of the
1948 Convention, the crime of genocide contains two constituent elements.

The first is the physical element, namely the acts perpetrated (which are set out in Article II and
include, in particular, killing members of the group (subpara. (a)) and causing serious bodily or
mental harm to members of the group (subpara. (b))). The second is the mental element, namely
the intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such.

Regarding Croatia’s claim, the Court considered that, in the regions of Eastern Slavonia, Western
Slavonia, Banovina/Banija, Kordun, Lika and Dalmatia, the JNA and Serb forces had committed
acts falling under subparagraphs (a) and (b) of Article II. Taking the view, however, that it had
not been established that the acts reflected a genocidal intent, the Court found that Croatia had
not proved that genocide or other violations of the Convention had been committed. It
accordingly dismissed the claim in its entirety.

Regarding Serbia’s counter-claim, which was found to be admissible, the Court concluded that,
during and after Operation “Storm”, Croatian forces had perpetrated acts falling within
paragraphs (a) and (b) of Article II.

Considering, however, that genocidal intent had not been demonstrated, the Court found that
neither genocide nor other violations of the Convention had been proved. It accordingly rejected
the counter-claim in its entirety.”

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International Court of Justice, 3 February, 2015

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Case on Criminal Proceedings in France

Republic of Congo V. France7

On 9 December 2002, the Republic of the Congo filed in the Registry of the Court an
Application instituting proceedings against France seeking the annulment of the investigation
and prosecution measures taken by the French judicial authorities further to a complaint for
crimes against humanity and torture allegedly committed in the Congo against individuals having
Congolese nationality filed by various human rights associations against the President of the
Republic of the Congo, Denis Sassou Nguesso, the Congolese Minister of the Interior, General
Pierre Oba, and other individuals including General Norbert Dabira, Inspector-General of the
Congolese Armed Forces, and General Blaise Adoua, Commander of the Presidential Guard.

The Congo contends that by "attributing to itself universal jurisdiction in criminal matters and by
arrogating to itself the power to prosecute and try the Minister of the Interior of a foreign State
for crimes allegedly committed by him in connection with the exercise of his powers for the
maintenance of public order in his country", France violated "the principle that a State may not,
in breach of the principle of sovereign equality among all Members of the United Nations ...
exercise its authority on the territory of another State".  The Congo further submits that, in
issuing a warrant instructing police officers to examine the President of the Republic of the
Congo as witness in the case, France violated "the criminal immunity of a foreign Head of State
-- an international customary rule recognized by the jurisprudence of the Court".

In its Application, the Congo indicated that it proposed to found the jurisdiction of the Court,
pursuant to Article 38, paragraph 5, of the Rules of Court, "on the consent of the French
Republic, which will certainly be given".  In accordance with this provision, the Congo’s
Application was transmitted to the French Government and no action was taken in the
proceedings.  By a letter dated 8 April and addressed to the Registry, France stated that it
"consent[ed] to the jurisdiction of the Court to entertain the Application pursuant to Article 38,
paragraph 5".  This consent made it possible to enter the case in the Court’s List and to open the
proceedings.

7
International Court of Justice, 17 June, 2003

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The Congo’s Application was accompanied by a request for the indication of a provisional
measure "seek[ing] an order for the immediate suspension of the proceedings being conducted by
the investigating judge of the Meaux Tribunal de grande instance".  Public hearings were held on
28 and 29 April.  At those hearings, the Congo confirmed its request for the indication of a
provisional measure while France asked the Court to reject that request and not to indicate any
such measure.

The Court begins by recalling that the power to indicate provisional measures has, as its object,
to preserve the respective rights of the parties pending a final decision in the case and that it
presupposes that irreparable prejudice should not be caused to rights which are the subject of
dispute.  It adds that such measures are justified solely if there is urgency.

The Court examines the Congo’s argument according to which the French criminal proceedings
are a cause of irreparable prejudice to the honour and reputation of the highest authorities of the
Congo, and to internal peace in the country, to its international standing and to Franco-Congolese
friendship.  It notes that it has not been informed in what practical respect this has occurred and
finds that no evidence has been placed before it of any serious prejudice or threat of prejudice of
this nature.

The Court goes on to determine whether the criminal proceedings currently pending in France
entail a risk of irreparable prejudice to the right of the Congo to respect by France for the
immunities of President Sassou Nguesso as head of State.  In this regard, the Court takes note of
the statements of French representatives during the hearings according to which "France in no
way denies that President Sassou Nguesso enjoys, as a foreign head of State, ‘immunities from
jurisdiction, both civil and criminal’".  The Court concludes from the foregoing that as regards
President Sassou Nguesso, there is, at the present time, no risk of irreparable prejudice.  It adds
that it is not established either that any such risk exists as regards General Oba, Minister of the
Interior of the Republic of the Congo.

The Court further considers the existence of a risk of irreparable prejudice in relation to the claim
of the Congo that the unilateral assumption by a State of universal jurisdiction in criminal
matters constitutes a violation of a principle of international law.  It rejects this allegation after

18
reaching a number of conclusions.  As regards PresidentSassou Nguesso, the Court stresses that
the request for a written deposition made by the investigating judge on the basis of Article 656 of
the French Code of Criminal Procedure has not been transmitted to the person concerned by the
French Ministry of Foreign Affairs, while this is the only way to take evidence from him.  As
regards General Oba and General Adoua, the Court observes that they have not been the subject
of any procedural measures by the investigating judge.  There is, therefore, no urgent need for
provisional measures.  As for General Dabira, the Court notes that the criminal proceedings
instituted in Meaux have had an impact upon his own legal position, inasmuch as he possesses a
residence in France, and was present in France and heard as a témoin assisté, and in particular
because, having returned to the Congo, he declined to respond to a summons from the
investigating judge, who thereupon issued a mandat d’amener against him.  The Court however
indicates that the practical effect of a provisional measure of the kind requested would be to
enable General Dabira to enter France without fear of any legal consequences but that the Congo
has not demonstrated the likelihood or even the possibility of any irreparable prejudiceto the
rights it claims resulting from the procedural measures taken in relation to General Dabira.  Since
the Court does not see, in the circumstances of the case, any need for measures to be indicated
independently of the requests submitted by the Parties, it rejects the Congo’s request, not without
having recalled that its decision in no way prejudges the question of its jurisdiction to deal with
the merits of the dispute.

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory 8

“(…) (T)he General Assembly decided to request the Court for an advisory opinion on the
following question: “What are the legal consequences arising from the construction of the wall
being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in
and around East Jerusalem, as described in the Report of the Secretary-General, considering the
rules and principles of international law, including the Fourth Geneva Convention of 1949, and
relevant Security Council and General Assembly resolutions ?” The resolution requested the
Court to render its opinion “urgently” (…)

8
International Court of Justice, Advisory Opinion, 9July 2004

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The Court began by finding that the General Assembly, which had requested the advisory
opinion, was authorized to do so under Article 96, paragraph 1, of the Charter (…) Lastly, the
Court rejected the argument that an opinion could not be given in the present case on the ground
that the question posed was not a legal one, or that it was of an abstract or political
nature. Having established its jurisdiction, the Court then considered the propriety of giving the
requested opinion (…) The Court accordingly concluded that there was no compelling reason
precluding it from giving the requested opinion. (On these issues that were considered by the
Court in detail, prior to giving its opinion, see here paras 13 – 66)

Turning to the question of the legality under international law of the construction of the wall by
Israel in the Occupied Palestinian Territory, the Court first determined the rules and principles of
international law relevant to the question posed by the General Assembly. After recalling the
customary principles laid down in Article 2, paragraph 4, of the United Nations Charter and in
General Assembly resolution 2625 (XXV), which prohibit the threat or use of force and
emphasize the illegality of any territorial acquisition by such means, the Court further cited the
principle of self-determination of peoples, as enshrined in the Charter and reaffirmed by
resolution 2625 (XXV).

In relation to international humanitarian law, the Court then referred to the provisions of the
Hague Regulations of 1907, which it found to have become part of customary law, as well as to
the Fourth Geneva Convention of 1949, holding that these were applicable in those Palestinian
territories which, before the armed conflict of 1967, lay to the east of the 1949 Armistice
demarcation line (or “Green Line”) and were occupied by Israel during that conflict. The Court
further established that certain human rights instruments (International Covenant on Civil and
Political Rights, International Covenant on Economic, Social and Cultural Rights, United
Nations Convention on the Rights of the Child) were applicable in the Occupied Palestinian
Territory.

The Court then sought to ascertain whether the construction of the wall had violated the above-
mentioned rules and principles.

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Noting that the route of the wall encompassed some 80 per cent of the settlers living in the
Occupied Palestinian Territory, the Court, citing statements by the Security Council in that
regard in relation to the Fourth Geneva Convention, recalled that those settlements had been
established in breach of international law. After considering certain fears expressed to it that the
route of the wall would prejudge the future frontier between Israel and Palestine, the Court
observed that the construction of the wall and its associated régime created a “fait accompli” on
the ground that could well become permanent, and hence tantamount to a de facto annexation.
Noting further that the route chosen for the wall gave expression in loco to the illegal measures
taken by Israel with regard to Jerusalem and the settlements and entailed further alterations to the
demographic composition of the Occupied Palestinian Territory, the Court concluded that the
construction of the wall, along with measures taken previously, severely impeded the exercise by
the Palestinian people of its right to self-determination and was thus a breach of Israel’s
obligation to respect that right.

The Court then went on to consider the impact of the construction of the wall on the daily life of
the inhabitants of the Occupied Palestinian Territory, finding that the construction of the wall
and its associated régime were contrary to the relevant provisions of the Hague Regulations of
1907 and of the Fourth Geneva Convention and that they impeded the liberty of movement of the
inhabitants of the territory as guaranteed by the International Covenant on Civil and Political
Rights, as well as their exercise of the right to work, to health, to education and to an adequate
standard of living as proclaimed in the International Covenant on Economic, Social and Cultural
Rights and in the Convention on the Rights of the Child.

The Court further found that, coupled with the establishment of settlements, the construction of
the wall and its associated régime were tending to alter the demographic composition of the
Occupied Palestinian Territory, thereby contravening the Fourth Geneva Convention and the
relevant Security Council resolutions.

The Court then considered the qualifying clauses or provisions for derogation contained in
certain humanitarian law and human rights instruments, which might be invoked inter alia where
military exigencies or the needs of national security or public order so required. The Court found
that such clauses were not applicable in the present case, stating that it was not convinced that

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the specific course Israel had chosen for the wall was necessary to attain its security objectives,
and that accordingly the construction of the wall constituted a breach by Israel of certain of its
obligations under humanitarian and human rights law.

Lastly, the Court concluded that Israel could not rely on a right of self-defence or on a state of
necessity in order to preclude the wrongfulness of the construction of the wall, and that such
construction and its associated régime were accordingly contrary to international law.

The Court went on to consider the consequences of these violations, recalling Israel’s obligation
to respect the right of the Palestinian people to self-determination and its obligations under
humanitarian and human rights law. The Court stated that Israel must put an immediate end to
the violation of its international obligations by ceasing the works of construction of the wall and
dismantling those parts of that structure situated within Occupied Palestinian Territory and
repealing or rendering ineffective all legislative and regulatory acts adopted with a view to
construction of the wall and establishment of its associated régime.

The Court further made it clear that Israel must make reparation for all damage suffered by all
natural or legal persons affected by the wall’s construction. As regards the legal consequences
for other States, the Court held that all States were under an obligation not to recognize the
illegal situation resulting from the construction of the wall and not to render aid or assistance in
maintaining the situation created by such construction.

It further stated that it was for all States, while respecting the United Nations Charter and
international law, to see to it that any impediment, resulting from the construction of the wall, to
the exercise by the Palestinian people of its right to self-determination be brought to an end. In
addition, the Court pointed out that all States parties to the Fourth Geneva Convention were
under an obligation, while respecting the Charter and international law, to ensure compliance by
Israel with international humanitarian law as embodied in that Convention.

Finally, in regard to the United Nations, and especially the General Assembly and the Security
Council, the Court indicated that they should consider what further action was required to bring
to an end the illegal situation in question, taking due account of the present Advisory Opinion.

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The Court concluded by observing that the construction of the wall must be placed in a more
general context, noting the obligation on Israel and Palestine to comply with international
humanitarian law, as well as the need for implementation in good faith of all relevant Security
Council resolutions, and drawing the attention of the General Assembly to the need for efforts to
be encouraged with a view to achieving a negotiated solution to the outstanding problems on the
basis of international law and the establishment of a Palestinian State.”

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 Conclusion

There is no question that the international human rights movement has done a great deal of good,
freeing individuals from great harm, providing an emancipatory vocabulary and institutional
machinery for people across the globe, raising the standards by which governments judge one
another, and by which they are judged, both by their own people, and by the elites we refer to
collectively as the “international community.”
But questions that have been raised about international human rights by people, who worry that
the human rights movement might, on balance, and acknowledging its enormous achievement,
be more part of the problem in today’s world than part of the solution.

Human Rights Views the Problem and the Solution Too Narrowly
Human Rights are narrow in many ways. The human rights movement focuses harms done
explicitly by governments to individuals or groups – leaving largely unaddressed and more
legitimate by contrast harms brought about by governments indirectly or by private parties. Even
when addressing private harms, human right focuses attention on public remedies – explicit
rights formalized and implemented by the state. One criticizes the state and seeks public law
remedies, but leaves unattended or enhanced the powers and felt entitlements of private actors.
Human right implicitly legitimates ills and de-legitimates remedies in the domain of private law
and non-state action.

Human Rights Generalizes Too Much

The vocabulary and institutional practice of human rights promotion propagates an unduly
abstract idea about people, politics and society. A one-size-fits-all emancipatory practice under
recognizes and reduces the instance and possibility for particularity and variation. This claim is
not that human rights are too “individualistic.” Rather, the claim is that the “person,” as well as
the “group,” imagined and brought to life by human rights agitation is both abstract and general
in ways that have bad consequences.
Sometimes this claim is framed as a loss of the pre-existing diversity of experience. In this view,
limits on pre-existing potentials and experiences are themselves bad consequences. For others
who make this argument, the loss of a prior, more authentic, humane, diverse real experience is

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not the issue. Even if it turns out that behind modes of expression there is no authentic
experience, this particular vocabulary is less useful in encouraging possibility or hope or
emancipation than others that generalize less or differently.

Human Rights Particularizes Too Much

The specific way human right generalizes is to consolidate people into “identities” on the basis
of which rights can be claimed. There are two issues here: a focus on individuals and a focus,
whether for individuals or groups, on right-holding identity.

Strengthening the state.

Although the human rights vocabulary expresses relentless suspicion of the state, by structuring
emancipation as a relationship between an individual right holder and the state, human rights
places the state at the center of the emancipatory promise. However, one may insist on the
priority or pre-existence of rights, in the end rights are enforced, granted, recognized,
implemented, their violations remedied, by the state. By consolidating human experience into the
exercise of legal entitlements, human rights strengthens the national governmental structure and
equates the structure of the state with the structure of freedom.

Human Rights Promises More than It Can Deliver

The gap between law in the books and law in action, between legal institutions and the rest of
life, hollows promises of emancipation through law. The human rights movement suggests that
“rights” can be responsible for emancipation, rather than people making political decisions. This
demobilizes other actors and other vocabularies, and encourages emancipation through reliance
on enlightened, professional elites with “knowledge” of rights and wrongs, alienating people
from themselves and from the terms of their own governance. These difficulties are more acute
in the international arena where law is ubiquitous and unaccompanied by political dialog.

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 Bibliography

Tim Dunne and Nicholas J. Wheeler., "Introduction: Human Rights and Fifty Years' Crisis", in
Tim Dunne and Nicholas J. Wheeler (Eds.), Human Rights in Global Politics, Press Syndicate of
the University of Cambridge, United Kingdom (1999), p4

Maurice & Crantson, Human Rights Today, P.C. Manaktala and Sons Pvt: Ltd.. Bombay (1962).
p.16

The High Commissioner for Human Rights: An Introduction, U.N. Doc. HR/PUB/HCHR/96/1
(1996).

Francisco Forrest Martin, Stephen J. Schnably., “International Human Rights and Humanitarian
Law: Treaties, Cases And Analysis” Cambridge University Press (2006)

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