Introduction to the History of HHRR

I - NATIONAL, CULTURAL, RELIGIOUS AND LEGAL ANTECEDENTS OF HUMAN RIGHTS

A) Religious traditions: 6
- HINDUISM : moral behavior, duty (dharma) and good conduct toward others suffering in need.
- JUDAISM: sacredness of the individual endowed with worth and equal value.
- BUDDHISM: Respect for all life and duties of compassion and charity; urged renunciation of differences
of caste and rank in favor of universal brotherhood and equality.
- CONFUCIANISM: "Do not impose on others what you yourself do not desire." Analects, XV, 23. "If there
be righteousness in the heart, there will be beauty in the character, there will be harmony in the home, there
will be order in the nation, there will be peace in the world."
- CHRISTIANITY: "we are all one in Christ." Gal. 3:28.
- ISLAM: Charity is one of the pillars of belief. The Quran speaks to justice, the sanctity of life, freedom,
mercy, compassion and respect for all human beings.
B) Cultural and philosophical roots: 8
- HSUN-TZU: Chinese philosopher, "In order to relieve anxiety and eradicate strife, nothing is as effective
as the institution of corporate life based on a clear recognition of individual rights."- AFRICAN / GREEK
PHILOSOPHY: Natural law - CICERO: natural law and universal justice binds all human society together
and applies to all without distinction. - John LOCKE: Second Treatise of Government (1690): every
individual person in the state of nature possesses certain natural rights prior to the existence of any
organized government. People are born in a state of perfect equality and enjoy all rights equally. -
Jean-Jacques ROUSSEAU: Man is born free with intrinsic worth. - Olympe DE GOUGE: Declaration of the
Rights of Woman and Citizen (France 1791): "woman is born free and remains equal to man in her rights".
- Thomas PAINE: The Rights of Man (1791) - introduced the expression "human rights”.
c) National Laws: 10
- Babylon : Code of Hammurabi - The oldest legal code known today was itself based upon earlier texts that
are now lost. - Laws of the Pharaos: "Make sure that all is done according to the law, that custom is
observed and the right of each man respected." - Persia: Charter of Cyrus
- India: Edicts of Asoka (300 B.C.): Guaranteed freedom of religion and other rights. Law of Manu.
- Spain, Kingdom of Leon (1188). - England: the Magna Carta; Petition of Rights; Habeas Corpus Act.
- Virginia: Declaration of Rights (1776): "all men are by nature equally free and independent, and have
certain inherent rights." - United States: Declaration of Independence (1776) - France:
Declaration of the Rights of Man and Citizen (1789) - United States: Bill of Rights (1789-91)

II – INTERNATIONAL LAW BEFORE THE 20TH CENTURY: ADDRESSING SPECIFIC ISSUES

a) Religious Liberty: Treaty of Westphalia / Congress of Vienna
b) Abolition of Slavery and the Slave Trade: Congress of Vienna – 1814 / 1815 / Book: Evidence on the
subject of the Slave Trade /Cuba and Brazil: last in the Western Hemisphere to abolish slavery.
c) The emergence of International Humanitarian Law: Red Cross - Battle of Solferino
d) Protection of Citizens abroad

III- THE EARLY 20TH CENTURY:

First intergovernmental organizations: International Telegraph Union / International Meteorological
Organization / Ligue des Droits de l’Homme
a) Economic and social rights: capitalism, industrialization and the formation of the ILO
b) The League of Nations: Minorities Treaties
c) Civil and Political Rights for Women: right to vote New Zealand - 1893
IV – GENERALIZING HUMAN RIGHTS IN GLOBAL AND REGIONAL SYSTEMS OF PROTECTION
Four Freedoms : 1. speech and expression. 2. worship God in his own way. 3. freedom from want, economic
understandings which will secure a healthy peacetime life. 4. freedom from fear, world-wide reduction of
armaments so that no nation will be in a position to commit physical aggression against any neighbor.
Philosophical Foundations

Human rights are the distinctive legal, moral and political concept of the last sixty years; The Universal
Declaration of Human Rights became a model for the constitutions; The idea of rights held by all in virtue of
their humanity can be found long before 1948; ‘natural rights’ – Locke, Grotius, Kant; The concept of
human rights has grown in institutional and rhetorical importance during the last two decades; Philosophers
in the past were slow to examine human rights as they are conceived in international law and politics.
If there are human rights, are they a subset of moral or legal rights? The Nature of HR
In addressing the question of the nature of human rights, an intuitive move has been to turn to the notion of
natural rights; Rights that all human beings possess simply in virtue of their humanity and which can be
identified simply by the use of ordinary moral reasoning;
On this naturalistic conception of the nature of human rights, they are:

A) MORAL RIGHTS: “the international law of human rights aims, or should aim, at least in part, to
incorporate certain extra-legal ethical standards.”
B) ALL HUMAN BEINGS POSSESS: Universal Declaration of Human Rights (1948): “all human beings
are born free and equal in dignity and rights.” Human beings have equal moral status;
C) AT ALL TIMES AND IN ALL PLACES: Fundamental human nature has not changed significantly since
the beginning of human existence. For instance, just as we need food and education today, the same applies
to people in Ancient Rome or even to our ancestral cave dwellers.
D) SIMPLY IN VIRTUE OF BEING HUMAN: It is a natural thought that some aspect of human nature is
what gives rise to human rights. Otherwise, why call them human rights?
E) AND THE CORRESPONDING DUTYBEARERS ARE ALL ABLE PEOPLE IN APPROPRIATE
CIRCUMSTANCES: “To speak of a universal right is to speak of a universal duty . . . Indeed, if this
universal duty were not imposed, what sense could be made of the concept of a universal human right?”
1. John Rawls: ‘political’ conception of human rights.“human rights are not based on certain features of
humanity; rather, the distinctive nature of human rights is to be understood in light of their role or function
in modern international political practice” “they restrict the justifying reasons for war and its conduct, and
they specify limits to a regime’s internal autonomy”
2. Joseph Raz: argued that it is not the case that all human beings at all times and places would be justified
in claiming the human rights currently recognized; i.e.: Article 26 (1) of the Universal Declaration of Human
Rights states that: “Everyone has the right to education. “It follows that cave dwellers in the Stone Age had
that right. Does that make sense?”
The difference between the naturalistic conception and the political conception has been overdrawn:
Naturalistic conception - human rights are rights that we have simply in virtue of being human
Political conception - human rights are rights that set limits to a society’s internal autonomy
Naturalistic + Political = human rights are simply those rights which are both grounded simply in our
humanity and entail duties with a distinctive international function.
Applied to free elementary education, we can say that free elementary education is the object of a human
right or is a local specific human right. As such, it makes sense only at a specific time, in a specific location,
and in a specific society. By contrast, the aim of the human right to free elementary education – or the high-
level, basal universal right standing behind it – is to ensure that human beings acquire the knowledge
necessary to be adequately functioning individuals in their circumstances.
3. Singer: the belief that all human beings have equal moral status is really just a form of prejudice
Racists violate the principle of equality by giving greater weight to the interests of members of their own
race when there is a clash between their interests and the one of those of another race. Sexists violate the
principle of equality by favouring the interests of their own sex. Speciesists allow the interests of their own
species to override the greater interests of members of other species. The pattern is identical in each case.
4. James Griffin: The most plausible attributes such as actual sentience and actual agency to have a human
right do not apply to infants are not rightholders.
What grounds or justifies human rights? The Grounds of Human Rights
1. INSTRUMENTAL JUSTIFICATIONS
According to this view, human rights protect certain distinctive features of humanity.
A) The notion of agency:
The main difference between human and non-human animals seems to be that the former have the capacity
to form a conception of a good life and to pursue the conception of the good life they have chosen for
themselves. Human dignity: is having the capacity to choose a plan of life for ourselves and to successfully
pursue it without interference
Problems: Many human beings, most notably children and the severely mentally disabled, simply lack the
capacity to act as autonomous moral agents. If we accept that human rights are grounded exclusively in the
value of agency, we may be led to conclude that neither group can be said to have human rights.
B) The notion of good life:
Human rights are grounded in a plurality of goods that are required to have a good life, where agency is
simply one of these goods. John FINNIS: life, knowledge, play, aesthetic experience, sociability
(friendship), practical reasonableness, and religion. James NICKEL: to have and to lead one’s life, and claim
against severely cruel or degrading, and against severely unfair treatment
Problems: The idea that anything we might require for a good life might be turned into a matter of human
rights, would threaten to challenge this widely shared assumption.
C) The notion of human needs:
A class of needs that all human beings have simply as human beings, and that do not seem to depend on the
adoption of any specific goal or plan of life. Things which are required in order to sustain immediately a
physical, corporeal existence (like food, water, and air), but alsox things that human beings need in order to
have a healthy psychological and social life (like social interaction and a minimum level of recognition).
Capabilities approach: According to NUSSBAUM, capabilities are an individual’s real opportunities to
choose and to act to achieve certain functionings, and functionings are various states and activities that an
individual can undertake. Nussbaum argues that the following ten central human capabilities are particularly
important, as they are “entailed by the idea of a life worthy of human dignity”: life; bodily health; bodily
integrity; senses, imagination and thought; emotions; practical reason; affiliation; other species; play; and
control over one's environment
Problems: Consider for example civil and political rights, such as the right to equality before the law or the
right to fair trial. Non-discrimination, equal status provisions, cannot be captured, because one can
possess a reasonable degree of agency and live a good life with one’s needs met while being discriminated
against or possessing low-caste status. agency, well-being, needs and capability theorists will have to include
non-discrimination as, or as required for, a fundamental aspect.
2. NON-INSTRUMENTAL JUSTIFICATIONS:
KAMM and NAGEL: we hold human rights as a matter of our basic moral status and that our holding these
rights is at least partially independent of whether and how they promote or protect further human values
such as agency, needs, freedoms or interests. [F]undamental human rights [...] are not concerned with
protecting a person’s interests, but with expressing his nature as a being of a certain sort, one whose interests
are worth protecting. They express the worth of the person rather than the worth of what is in the interests of
that person. There are reasons to believe that a plausible justification based on the notion of moral status will
need to be supplemented by an instrumental justification, in order to be capable of plausibly determining the
precise contents of human rights; A pluralist position is necessary; Transcendental approach GEWIRTH:
“one must conceive oneself and others as bearing human rights.”
3. PRACTICE-BASED JUSTIFICATIONS
JOHN RAWLS: We should not ground human rights on such “a theological, philosophical or moral
conception of the human person”; we should rather think of human rights as an element of the “law of
peoples”; a set of principles and norms on which well-ordered peoples from different religious,
philosophical, and moral backgrounds can freely agree as the basis for governing their behavior towards one
another, thereby establishing a mutually respectful condition of peace; human rights’ fulfillment ‘is
sufficient to exclude justified and forceful intervention by other peoples by diplomatic and economic
sanctions, or in grave cases by military force’; a political conception of human rights define their function in
terms of the limits of sovereignty; Responses to violations can take different forms, including economic and
diplomatic sanctions, simply formal censure from other states or international body, armed intervention.
Problems: such a political view seems to rest on the assumption that the international practice of human
rights is sufficiently homogeneous as to warrant only one interpretation of its underlying principles. But this
assumption is questionable. (cases of Libya and Syria)
Overlapping Consensus: the distinctive feature of human rights is precisely the fact that they are normative
standards about which different cultures can be said to agree, despite the fact that they adopt very different
moral and religious views. Instead of focusing on the relationship between the protection of human rights
and sovereignty, this view justifies human rights by appealing to the fact they are, in Rawlsian terminology,
the object of an “overlapping consensus” among holders of different conceptions of the good.
Problems of the “overlapping consensus”: “Either it is understood as a view about the consensus which
exists among all societies or it is understood as the consensus that exists only among those societies that
adopt a reasonable conception of the good.”
Samantha Besson: focus on one specific element of the practice, namely international human rights law.
Buchanan: Many grounds for human rights include the enhancement of the legitimacy of the state and the
provision of a unified legal framework for handling genuinely global problems such as climate change.
Despite the importance of justifications in Human Rights Theory, it is important not to be disappointed by
the indeterminate state of the debate. Dignity and equality are two potential justifications.

Critiques

Be human rights conceived as the rights that every human being has, thus naturally setting limits to the
legitimate action of States, or as principles of good political action which society agrees to adopt, they are
under intense critiques which reveal a gap between: what human rights claim to be or achieve; what are or
do in practice. In reaction to the successive French Declarations of the late eighteenth century:
1- The Realist critique 2- The Utilitarian critique 3- The Marxist critique
In reaction to the International Bill of Rights enacted after the Second World War:
1- The Particularist critique (cultural relativist) 2- The Feminist critique 3- The Post-Colonial critique
1 – THE REALIST CRITIQUE
HR were being declared rather than created, they pre-existed irrespective of social recognition; Bentham:
“From real laws come real rights; but from imaginary laws, from laws of nature, fancied by poets,
rhetoricians, and dealers in moral and intellectual poisons, come imaginary rights, a bastard brood of
monsters, gorgons and chimeras dire.” If we take the rights literally, they mean nothing. Human beings are
obviously not born equal; The realist critique nowadays in IIRR: Human rights are not a moral precept
(utopy), the state does whatever is required to ensure its own survival = Statism. EXAMPLE: Benhebba v.
France 2003 ECHR Quasi-national expelled, following criminal conviction, from the State in which they
had spent most of their life; Five votes to two – non-violation of article 8 (protects private and family life);
Vote of the Judge Costa: Gave two reasons to say the Convention had not been violated: judicial discipline
and consistency with the defendant ́s case law on the expulsion of aliens. This shows attachment to the
judicial system, an apparatus which is directly linked to the State; and identifies the State as a central actor
which must be respected. REALISM – raison d ́ état is more important. Vote of the Judges Cabral Barreto
and Kuris: Against the majority by reference to the fact the applicant was a quasi-national. Realism - either
you are a national or not. Idealism – defies this logic, the human rights idea could be expected to wish to
focus on the human being as such and thus to dispense with the concept of the national altogether.
2 – THE UTILITARIAN CRITIQUE
Bentham, towering figure. Utilitarianism is the ethical philosophy that posits that an action must be judged
morally by reference to the welfare (utility) it produces. The good act is the one that maximizes happiness. It
is a consequentialist philosophy. One healthy person could be killed under utilitarianism for the benefit of a
number of people who depend for their survival on the transplant of various organs.
EXAMPLE: S.A.S V. France 2014 – Ban Of Burka Public Spaces. The complainant, was described as a
"perfect french citizen with a university education ... who speaks of her republic with passion”. Her lawyer
Tony Muman told the ECHR last november: "she's a patriot" adding that she had suffered "absolutely no
pressure" from her family. While she was prepared to uncover her face for identity checks, she insisted on
the right to wear the full-face veil, Muman said. The european judges decided otherwise, declaring that the
preservation of a certain idea of "living together" was the "legitimate aim" of the french authorities.
3 – THE MARXIST CRITIQUE
Karl Marx “On the Jewish Question”; While it recognizes that political emancipation may have been
achieved, it argues that this falls short of human emancipation. The rights granted in the political state newly
created in France supposedly endow man with freedom; but, in fact, alienate him.
The human rights notion serves to maintain the bourgeois society. It is an ideology that masks reality.
EXAMPLE: The empirical data shows that health litigation in Brazil has clearly not benefited the poor. It
has by and large benefited a minority of individuals who are able to access lawyers and courts to force the
state to provide expensive treatment that the public health system should not provide under any plausible
interpretation of the constitutional right to health.
4 – THE PARTICULARIST CRITIQUE
Moral systems are embedded in culture and different cultures produce different moralities;
“How can the proposed Declaration be applicable to all human beings, and not be a statement of rights
conceived only in terms of the values prevalent in the countries of Western Europe and America?”
The particularists hold that no particular culture is superior to another when examining issues of ethics,
morality, law or politics. It is a philosophical notion that all cultural beliefs are equally valid and that truth
itself is relative, depending on the cultural environment. Cultural relativism holds that all religious, ethical,
aesthetic, and political beliefs are completely relative to an individual within a society of a particular culture.
Universalism has a good side – the elaboration of minimal common standards. Bad side: arrogance.
Relativism has a good side – respect for different ways. Bad side: inaction or indifference.
5 – THE FEMINIST CRITIQUE
The components of feminism: a position must make a difference between m. and f. Subordination of f. to m.
Feminism is a way of looking the world, seeing it as organized along gendered lines which benefit men, and
trying to change it so that women are empowered. Different ways of being feminist:
a) Liberal feminists: strand is the assumption that women are equal to men, so women must not be
excluded from the rights enjoyed by men. The principle of sex and gender equality constitutes its great
achievement. “But, why should a woman want to be treated like a man?” Carol Gilligan
b) Cultural feminists: strand human rights law should be either rejected, or at least transformed, in order to
accommodate the female way of thinking and acting (ethic of care).
c) Radical feminists: strand that the problem is not whether women are equal or different to men; the
problem is that men subordinate women. The key issue is women ́s oppression, whereby men reduce
women to their sexuality and use them as sexual objects. According to MACKINNON: “Man fucks women:
subject, verb, object.” Far from being neutral, human rights theory and law are on the whole made by men
for men. They do not adequately address women ́s concerns, such as sexual violence in the home, and rely
on concepts which tend to perpetuate men ́s sexual subordination of women.
d) Post-modern feminists: Affirm that the situation and experiences of a white middle- class woman are
hardly comparable to those of a black poor woman. Defend the concept of intersectionality, embracing
collective justice. EXAMPLE: Case of Savita Halappanavar n Women ́s reproductive rights:
Due to the enduring influence of the Catholic Church in Ireland, the state has continually failed to clarify its
position on abortion in cases where a mother’s life is in danger. Tragically, in October 2012, this lack of
clarity led to the death of Halappanavar when she was refused an abortion by medical staff in a hospital. Her
husband claims that they were told that they would definitely lose the foetus, yet were repeatedly refused the
abortion because doctors could still detect a foetal heartbeat and “this is a Catholic country”
6 – THE POST-COLONIAL CRITIQUE:
They link human rights to imperialism; they observe that the International Bill of Rights was developed
outside any concern for the inequities arising from the colonial situation: “It took the suffering of whites to
force the powers that be into action; by comparison, slavery and colonialism left the world indifferent.”
The rise of human rights in political discourse has not signalled an end to inequality.
Is there a sense in which human rights have been civilizing?
UN Protection

I - THE TREATIES AND THEIR OPTIONAL PROTOCOLS:

Universal declaration of human rights 1948
1. International Convention on the Elimination of All Forms of Racial Discrimination (1965)
2. International Covenant on Economic, Social and Cultural Rights (1966)
3. International Covenant on Civil and Political Rights (1966)
4. Convention on the Elimination of All Forms of Discrimination against Women (1979)
5. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984)
6. Convention on the Rights of the Child (1989)
7. International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (1990)
8. Convention on the Rights of Persons with Disabilities (2006)
9. International Convention for the Protection of All Persons from Enforced Disappearance (2006)
UNIVERSAL DECLARATION OF HUMAN RIGHTS 1948
René Cassin, Charles Malik, Peng Chun Chang and John Humphrey
The range of fundamental rights and freedoms that belonged to all by virtue of their status as human beings.
These efforts resulted in the Universal Declaration of Human Rights, adopted by the General Assembly on
10 December 1948 – Human Rights Day - common standard of achievement for all peoples and all nations.
Article 1: All human beings are born free and equal in dignity and rights.
Articles 3 to 21: classic civil and political rights (including the right to asylum and the right to property).
Articles 22 to 28 : economic, social and cultural rights
1. INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION (1965)
Apartheid regime in South Africa
What is racial discrimination? “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.”
One of the State obligations: to report periodically to the Committee on the Elimination of Racial
Discrimination on the measures they have taken to give effect to the Convention
The Committee on the Elimination of Racial Discrimination, the first treaty body to be established, has
reviewed the application of the International Convention on the Elimination of All Forms of Racial
Discrimination since 1969. It has 18 members.
2. INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS (1966)
- Develops the corresponding rights in the Universal Declaration in considerable detail, specifying the steps
required for their full realization.
- Ex. The right to education: obligation to secure compulsory primary education free of charge and to take
steps towards achieving free secondary and higher education
a. Principle of Progressive realization: State party “undertakes to take steps, [...] to the maximum of its
available resources, with a view to achieving progressively the full realization of the rights recognized”
b. Optional Protocol, of 2008, enables State parties to accept additional procedures. It establishes a
complaint procedure, including individual petitions, inquiries and inter-State complaints.
The Committee on Economic, Social and Cultural Rights was created in 1985 to carry out the functions
of the Economic and Social Council under the International Covenant on Economic, Social and Cultural
Rights. It has 18 members.

3. INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS(1966)

- Elaborates the civil and political rights set out in the Declaration
- It also includes additional rights, such as the rights of detainees - detenuti (art. 10) and the protection of
minorities (art. 27).
Two Optional Protocols supplement the Covenant and allow State parties to accept additional obligations:
1- The first Optional Protocol, of 1966, provides for a right to individual petition;
2- The second Optional Protocol, of 1989, promotes the abolition of the death penalty.
The Human Rights Committee was created in 1976 to review the application of the International Covenant
on Civil and Political Rights. It has 18 members.
4. CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN (1979)
What is discrimination against women? “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” (art. 1).
Article 6 explicitly requires them to suppress all forms of trafficking in women and exploitation of
prostitution; Articles 7 and 8 detail obligations to ensure equal participation of women and men in public
and political life; Articles 9 and 10 expand on equality in relation to nationality and education.
Its Optional Protocol enables State parties to accept individual petitions and inquiry procedures.
The Committee on the Elimination of Discrimination against Women has reviewed the application of the
Convention on the Elimination of All Forms of Discrimination against Women by its State parties since
1981. It has 23 members.

5. CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR

PUNISHMENT (1984)
- No circumstances of any kind, including orders from a superior, can justify an act of torture—the ban is
absolute; - Article 3, on “non-refoulement”: if there are substantial grounds for believing that an individual
will be tortured in a country, that person cannot be extradited, deported or otherwise returned to that country.
Optional Protocol to the Convention against Torture; Subcommittee on Prevention of Torture:
(a) Visits places where people are or may be deprived of their liberty;
(b) Advises and assists State parties establishing national preventive mechanisms, when necessary;
maintains direct contact with these mechanisms in evaluating the needs and the means necessary to improve
safeguards against ill-treatment; and makes recommendations and observations to State parties with a view
to strengthening the capacity and mandate of the national preventive mechanisms;
The Committee against Torture, created in 1987, reviews the application of the Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment. It has 10 members.

6. CONVENTION ON THE RIGHTS OF THE CHILD (1989)

- Children - human beings under 18 years of age;
- particular provisions cover the child’s right to an identity (arts. 7 and 8), separation from parents (art. 9),
family reunification (art. 10), the illicit transfer of children (art. 11), protection from abuse (art. 19) and
adoption (art. 21). Article 22 addresses the particular situation of child refugees.
Optional Protocol on the involvement of children in armed conflict: no person under the age of 18 shall be
subject to compulsory recruitment into regular armed forces;
Optional Protocol on the sale of children, child prostitution and child pornography;
Optional Protocol on a communications procedure: individual petitions;
The Commitee On Right Of Child has, since 1991, reviewed the application of the Convention on the
Rights of the Child, as well as its Optional Protocols relating to the involvement of children in armed
conflict and to the sale of children, child prostitution and child pornography, by their State parties. It has 18
members.

7. INTERNATIONAL CONVENTION ON THE PROTECTION OF THE RIGHTS OF ALL MIGRANT WORKERS AND
MEMBERS OF THEIR FAMILIES (1990)
It applies to the entire migration process, from preparation for migration, departure and transit to the total
period of stay and remunerated activity in the State of employment and the return to the State of origin or of
habitual residence. Most rights are relevant to the receiving State, although the sending State also has
specific obligations.
The Committee on Migrant Workers held its 1rst session in March 2004 and reviews the application of the
International Convention on the Protection of the Rights of All Migrant Workers and Members of their
Families. It has 14 members.
8. CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES (2006)
Views disability as the result of an interaction between an individual’s condition and an inaccessible society.
The barriers confronting persons with disabilities are many—for example, they might be environmental such
as a staircase, or attitudinal such as a belief that persons with disabilities cannot learn. Such barriers can
obstruct the enjoyment of rights. The Convention therefore identifies these barriers as discriminatory and
requires their removal. The Committee on the Rights of Persons With Disabilities established in
November 2008, held its 1rst session in February 2009. It has 18 members.

9. INTERNATIONAL CONVENTION FOR THE PROTECTION OF ALL PERSONS FROM ENFORCED

DISAPPEARANCE (2006)
What is enforced disappearance? “The arrest, detention, abduction or any other form of deprivation of
liberty by agents of the State or by persons or groups of persons acting with the authorization, support or
acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment
of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the
law” (art. 2). The Committee on Enforced Disappearance was created in June 2011 following the entry
into force on 23 December 2010 of the International Convention for the Protection of All Persons from
Enforced Disappearance. It has 10 members.

It is necessary to read all the human rights treaties to which a State has become a party together.
All the treaties based on these common principles are interdependent, interrelated and mutually reinforcing,
so that no right can be fully enjoyed in isolation, but depends on the enjoyment of all the other rights. This
interdependence is one reason why the human rights treaty bodies are crafting a more coordinated approach
to their activities, in particular by encouraging State parties to see implementation of the provisions of all
these treaties as a single objective.

WHAT DO THE HUMAN RIGHTS TREATY BODIES DO?

All treaty bodies, except the subcommittee on Prevention of Torture, are mandate to receive and consider
reports submitted periodically by State parties detailing how they are applying the treaty provisions
nationally. Most treaty bodies may consider individual complaints and inter-State complaints.
CONSIDERATION OF STATE PARTIES’ REPORTS
In order to meet its reporting obligation, each State party must submit a comprehensive initial report within
one or two years of the treaty entering into force for it. It must then continue to report periodically, usually
every four or five years, in accordance with the provisions of the treaty on further measures taken to
implement it: Legal, administrative and judicial measures taken by the State to give effect to the treaty; any
factors or difficulties encountered in implementing the rights; guidelines.
PURPOSES OF REPORTING
(a) Conduct a comprehensive review of the measures it has taken to harmonize domestic law and policy with
the provisions of the international human rights treaties to which it is a party;
(b) Monitor progress made in promoting the enjoyment of the rights set forth in the treaties in the context of
the promotion of human rights in general;
(c) Identify problems and shortcomings in its approach to the implementation of the treaties;
(d) Assess future needs and goals for more effective implementation of the treaties; and
(e) Plan and develop appropriate policies to achieve these goals.
INTER-STATE COMMUNICATIONS
Has never been used; Five human rights treaties allow their State parties to complain to the relevant treaty
body about alleged violations of the treaty by another State party: Torture, Disappearance, Migrants, Racial
discrimination and civil and political rights.
GENERAL COMMENTS
Each of the treaty bodies publishes its interpretation of the provisions of its respective human rights treaty in
the form of “general comments” or “general recommendations”. These cover a wide range of subjects, from
the comprehensive interpretation of substantive provisions, such as the right to life or the right to adequate
food, to general guidance.
The American System

World`s oldest regional organization, created in 1948; 35 members - Cuba is officially a member but was
expelled from participation in 1962. The OAS lifted the suspension in 2009, but Cuba says it will not rejoin.

OAS Charter- Principles Art. 1

To promote Representative Democracy; Economic, Social, and Cultural Development; Eradicate Poverty;
Education; Peace & Equality, Non-Discrimination (race, nationality, creed or sex); Pacific Settlement of
Disputes, Justice, Freedom; Respect for Non-Intervention; Defense of Territorial Integrity, Sovereignty and
Independence; Limit conventional weapons.

Human Rights in the OAS Charter

Article 3 (j): “the American States proclaim the fundamental rights of the individual without distinction as to
race, nationality, creed, or sex.”
Article 17: “each State has the right to develop its cultural, political and economic life” and that in such
development “the State shall respect the rights of the individual and the principles of universal morality.”
No elaboration of these rights in the Charter. No institution to promote observance created by the Charter.

THE AMERICAN DECLARATION OF THE RIGHTS AND DUTIES OF MAN

Adopted 6 months before the Universal Declaration of Human Rights - first international statement of
human rights; The Inter-American Court and the Commission have held that it is now a source of legal
obligation for OAS member states (USA disagrees); Extensive list of human rights: Civil and political &
Economic and social (work, health, education, benefits of culture, fair remuneration, leisure, social security)

Inter-American Commission on Human Rights

Established as a Charter organ in 1970. Charter, Chapter XV, Article 106 (as amended by the Protocol of
Buenos Aires 1967); Headquarters in Washington DC; Main function: to promote the observance and
protection of human rights and to serve as a consultative organ of the OAS in these matters.

AMERICAN CONVENTION ON HUMAN RIGHTS - 1969

- Empowers the Inter-American Commission on Human Rights and the Inter-American Court of Human
Rights as compliance mechanisms
- 23 of 35 OAS member states are parties (not ratified by USA, Belize, Canada, Suriname and denounced
by Trinidad and Tobago)
- Civil and Political Rights (art 3-25): right to life “protected, in general from the moment of
conception”(art.4); humane treatment, no slavery, fair trial, freedom from ex post facto laws,
compensation for miscarriage of justice, privacy, freedom of conscience/religion, thought, expression,
assembly, association, marry, right of child, nationality, property, movement, residence, participation.
- Economic, social and cultural rights (art 26)
Other Inter-American Instruments
Protocol on Economic, Social and Cultural Rights; Protocol to Abolish the Death Penalty; Convention to
Prevent and Punish Torture; Convention on Forced Disappearance of Persons; Convention on the the
Prevention, Punishment and Eradication of Violence Against Women; Convention on the Elimination of All
Forms of Discrimination Against Persons with Disabilities; Inter-American Declaration of Principles on
Freedom of Expression; Principles and Best Practices on the Protection of Persons Deprived of Liberty in
the Americas; Inter-American Democratic Charter (Honduras suspended).
Charter (applies to all OAS states): 1948 OAS Charter ;1948 American Declaration of the Rights and
Duties of Man; 1959 Inter-American Commission on Human Rights
Convention (applies to States Parties):1969/1978 American Convention on Human Rights; Convention
organs; Inter-American Commission on Human Rights and Inter-American Court of Human Rights
American Convention on Human Rights – entered into force in 1978: Preamble
“to consolidate in this hemisphere, within the framework of democratic institutions, a system of personal
liberty and social justice based on respect for the essential rights of man.”
“…essential rights of man are not derived from one’s being a national of a certain state, but are based upon
attributes of the human personality...”
In accordance with UDHR,“ideal of free men enjoying freedom from fear and want can be achieved only if
conditions are created whereby everyone may enjoy his economic, social and cultural rights, as well as his
civil and political rights...”
Right of petition
Individuals (+ any person, group or NGO, victim or third party with or without the victim’s knowledge)
have right of petition - may file complaint against the State upon its ratification of the American Convention;
State must make an express declaration recognizing the competence of the Commission to deal with
complaints from other States; Domestic remedies must have been exhausted or unavailable;
Structure and composition of the Commission:
7 commissioners who are elected by secret ballot of all OAS member states; Four-year terms; Persons of
high moral character and recognized competence in human rights.
Receives, analyzes and investigates individual complaints/petitions: if admissible, Commission investigates.
“Friendly resolution” possible. Commission provides private report with recommendations to State
(Reports and Recommendations address state responsibility for forced disappearances, domestic violence,
third party infringement of indigenous property, arbitrary detention in counter-terrorism, violation of due
process of migrants, environmental damages, etc.) Commission gives State time to comply. If no compliance
the Commission may issue second report (public) and/or refer petition to Inter-American Court of Human
Rights. Commission may request advisory opinions from Inter-American Court regarding questions of
interpretation of ACHR. Inter-State complaints – only 2 so far – reciprocity.
States responsibility and jurisdiction
Violations via direct act or failure to prevent an act by a Non-State actor
Failure to investigate and sanction those responsible
Jurisdiction is not limited to the physical territory of the state, it includes all areas over which it has effective
control.
The Inter-American Court of Human Rights
Sole judicial organ of the OAS; The Convention authorizes the Court to: 1- adjudicate contentious cases; 2-
issue advisory opinions; 3- order to take measures to protect persons who are in grave and imminent danger.
A State is subject to the Court if it has ratified the ACHR and explicitly accepted the Court`s contentious
jurisdiction. (in 2013, 20 States). No applications directly to the Court, only on referral by the
Commission. Structure and composition: 7 judges elected to a six-year term by a vote of the states parties to
the ACHR; Judges are elected by secret ballot by an absolute majority of the states parties to the ACHR; No
two judges may be national of the same State; They can also be from countries that have not accepted the
jurisdiction of the Court; The Court is in San José – Costa Rica

CONTENTIOUS CASES ART. 62

Victims may participate in proceedings. Issues legally binding decisions (including reparations) on state
responsibility
- The Court has been creative in its reparations orders: environmental activist murdered in Honduras –
national campaign to educate people about the work of activists.
- Issues provisional measure orders (threat to life and physical integrity of individuals and communities,
protect prisoners and children in detention centres) and publishes compliance with judgment reports.
- Impunity: Problems with delays in payment of reparation, faulty implementation of orders to investigate,
prosecute and punish the individuals responsible
Case study: The Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Judgment of August 31, 2001,
Inter-Am. Ct. H.R., (Ser. C) No. 79 (2001)
1995: Nicaragua granted logging concession Korean lumber company SOLCARSA on 62,000 hectares of Awas
Tingni indigenous community’s ancestral lands
2000: Awas Tingni Community petitioned, alleging violations of the Convention: (Article 21: Right to
property / Article 25: Right to judicial protection)
2001: The Court found both rights were violated. Upheld collective rights of indigenous peoples to land &
resources. Ruled that the “State must adopt in its domestic law... the legislative, administrative, and any other
measures necessary to create an effective mechanism for delimitation, demarcation, and titling of the property of
indigenous communities, in accordance with their customary law, values, customs and mores...” Ordered to pay
“reparation for immaterial damages, in the course of 12 months, ... US$50,000... in works or services...” Ordered
the State to pay to Awas Tingni US$30,000 expenses & costs. The first binding decision of an international
tribunal upholding collective land & resource rights of indigenous peoples against a State failing to do so.
2002: Court order of 2001 required progress reports from Nicaragua on the demarcation process every 6 months.
No reports filed.
2003: Court issued resolution Sept 2003 requiring Nicaragua to take necessary measures “without delay.”
2003: Awas Tingni sued the government in the Nicaragua Appeals Court for noncompliance.
March 2008: UN HRC (re ICCPR) (pdf) comments in Concluding Observations about continuing delays in
titling. December 2008: titling finally done.
In cases of extreme gravity and urgency, and when necessary to avoid irreparable damage to persons, the
Convention authorizes the Court to adopt such provisional measures as it deems pertinent. Interim measure
Protect petitioners or witnesses (human rights activists, journalists, news organizations), “traitors”.
Provisional measures are binding; Ex: The Court has ordered provisional measures to protect the populations
of prisons and children`s detention centres where overcrowding, inadequate living conditions, abusive
personnel resulted in murder. Orders: confiscate weapons, reduce overcrowding, etc. In 2012, 32 orders.
Art. 64: OAS Member States and OAS Organs may request an advisory opinion regarding the interpretation
of the Convention or other treaties; Authoritative, but non-binding explanation of a human rights issue; 25
advisory opinions so far; Ex. Right to information on Consular Assistance: Mexico asked if an arresting
State (USA) had the obligation to inform that the detainee had the right to Consular Assistance. The Court
recognized it as an individual right of the arrested person. Ex. Advisory Opinion on Undocumented
Migrants: Equality, Non-Discrimination and Equal Protection of the Law are part of one jus cogens
principle; Cite 30 human rights instruments; Derived from oneness of the human family and linked to the
essential dignity of the individual.
CHALLENGES: Time of processing of complaint from submission to the Court is over 8 years; States
acquiesce or acknowledge partial or total international responsibility in 42% cases; Lack of universality;
States paid compensation to victims in 81% of cases; Chronic underfunding;

The African System

Organization of African Unity (OAU Charter) 1963 Objective: to enforce human rights norms recognizing
the goal of bringing end to colonialism and apartheid in Africa.
OAU in need of transformation, so in 2000 it adopted the Constitutive Act of the African Union. Preamble:
To promote and protect Human and People’s Rights, Consolidate Democratic Institutions and Culture;
Promote Democratic Principles and Institutions, Popular Participation and Good Governance; Promote and
Protect Human and People’s Rights in accordance with the African Charter on Human and People’s Rights
and other relevant instruments; Promote Sustainable Development at the Economic, Social and Cultural
Levels as well as the integration of African Economies.

African Union Constitutive Act Principles

Sovereign Equality & Interdependence among Member States of the Union; Respect of Borders Existing on
achievement of independence; Participation of the African Peoples in the Activities of the Union; Establishment of a
Common Defence Policy for the African Continent; Peaceful Resolution of Conflicts among Member States of the
Union through such appropriate means as may be decided upon by the Assembly; Prohibition of the use of force or
threat to use force among Member States of the Union; Non-interference in the Internal Affairs of Another; The Right
of the Union to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances,
namely: war crimes, genocide and crimes against humanity; Peaceful coexistance of states and right to live in peace
and security; The Right of Member States to Request Intervention from the Union in order to restore peace and
security; Promotion of gender equality; Respect for democratic principles, human rights, the rule of law and good
governance ; Respect for the Sanctity of Human Life, Condemnation and Rejection of Impunity and Political
Assassination, Acts of Terrorism and Subversive Activities; Promotion of Social Justice to ensure Balanced Economic
Development; Condemnation and Rejection of Unconstitutional Changes of Governments (Democracy Clause);
Governments which shall come to power through unconstitutional means shall not be allowed to participate in the
activities of the Union.
African Charter on Human Rights (The Banjul Charter)
Has been signed by all 54 member States except Morocco. Goes further than the primary regional human
rights Conventions of Europe and the Americas in recognizing not only civil and political rights, but also
economic, social and cultural rights and not only individual rights but also peoples rights.
Some rights are provided for in less detail, but the African Commission interprets the Charter in line with
established international practice. For instance: the right to a fair trial. The Commission elaborated the
Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003.
Art. 1 States have obligation to give effect to the rights, freedoms and duties in the Charters; Art. 2 Non
discrimination; Art 62 States submit report every 2 years on legislative and other measure taken to give
effect to African Charter (Delays). The African Commission will affirm that:
Collective Rights, Environmental Rights and Economic and Social Rights are essential elements of human
rights in Africa (case SERAC v. Nigeria-right to housing) - States have duty to respect, protect, fulfill and
promote all rights. People rights are more fully developed: Art. 20-24 right to existence and self
determination; to freely dispose of their wealth and natural resources to economic, social and cultural
development; to peace and security; to a satisfactory environment (Katangese People v. Zaire) (Endorois
case v. Kenya) Art 27-29 Assign duties to individuals vis-a-vis the state, other groups, and individuals;
They range from duties towards the family, such as the maintenance of parents in case of need, to duties
towards the State. Article 27 (2): The Rights of the Charter shall be exercised with due regard to the rights of
others, collective security, morality and common interest.

OTHER INSTRUMENTS
African Charter on the Rights and Welfare of the Child (rights and duties of child vis-a-vis family,
community and State), 1990. Article 31. Supervisory Body: African Committee of Experts on the Rights and
Welfare of the Child can receive communications and evaluate States reports. Convention Governing
Specific Aspects of Refugee Problems in Africa 1974 – has a broader definition of refugee.
THE PROTOCOL TO THE AFRICAN CHARTER ON HUMAN AND PEOPLES’ RIGHTS ON THE
RIGHTS OF WOMEN IN AFRICA (MAPUTO PROTOCOL) was adopted in Maputo, Mozambique, on
11 July 2003 and entered into force on 25 November 2005. It was inspired by a recognised need to
compensate for the inadequate protection afforded to women by the African Charter on Human and Peoples’
Rights. While the African Charter guarantees non-discrimination on the basis of sex, equality before the law,
and the elimination of discrimination against women, it does not articulate specific violations of women’s
rights which result from discrimination. 24 provisions, this protocol provides much more protection than the
UN Convention. For instance: provisions on domestic violence, protection of elderly women, HIV and
AIDS. Controversial issues: polygamy. The CEDAW Committee: “polygamy violates the right to equality”.
Women’s Protocol: “monogamy is encouraged as the preferred form of marriage and that the rights of
women in marriage and family, including in polygamous marital relationships, are promoted”.Art 6(c)
No specific supervisory body. African Commission may receive State reports and African Court will be able
to apply Protocol; Art 11 Protection of Women in Armed Conflict; Arts 20 & 21 protect Widow’s Rights

AU CONVENTION ON THE PROTECTION OF INTERNALLY DISPLACED PERSONS 2009

Refrain from, prohibit and prevent arbitrary displacement of populations; Prevent political, social, cultural
and economic exclusion and marginalization, that are likely to cause displacement of populations or persons
by virtue of their social identity, religion or political opinion; Respect and ensure respect for the principles of
humanity and human dignity of internally displaced persons; Respect and ensure respect and protection of
the human rights of internally displaced persons, including humane treatment, non- discrimination, equality
and equal protection of law; Respect and ensure respect for international humanitarian law regarding the
protection of internally displaced persons;
AFRICAN COMMISSION
Article 30 of the Charter provides for the Commission; Located in Banjul, Gambia;11 Commissioners
Public and Private Session; NGO observers included; Lack of resources and translation facilities;
Quasi Judicial Function:
– Inter-State Complaints (only one so far – Congo versus Burundi, Rwanda and Uganda.)
– Individual Complaints (Also Third Parties and NGOs)
Seeks Amicable Resolution and Remedies for Victim; Lack of transparency and timidity; Issues provisional
measures (but may result in withdrawal of communication) Non-binding decisions; 200 decisions so far;
Very few, lack of awareness about the system; May refer the case to the Court.
Consideration of State Reports: every 2 years (very tardy , some states never submitted any)
Special Rapporteurs and Working Groups: the Commission has adopted them to deal with thematic issues –
ex. Arbitrary executions; death penalty; refugees.
On-site visits: promotional and protective missions (in case of massive violations).
Resolutions: the Commission has adopted resolutions on different topics, ex. Fair trial; humanitarian law;
modern slavery. Relation with NGOs: 400 and interact with other bodies.
THE AFRICAN COURT OF HUMAN RIGHTS
In 1994, the OAU adopted a resolution requesting a Court; the Court was established in 1998. First
judgement 2013. 11 judges nominated by State Parties and elected by the Assembly; The Court is in
Tanzania; In the majority of the cases, the Commission will take a case to the African Court if it has found a
violation and established that the State has not complied with its recommendations.
Art. 34 of Protocol establishing Court, State must make declaration to give individuals standing before the
Court. Most cases will be filed with the Commission which is to refer case to the Court.
February 2018: Only 8 countries have made such a declaration (even though 30 have signed the Protocol):
Ghana, Malawi, Mali, Rwanda, Tanzania, Benin, Tunisia and Burkina Faso.
First judgement on the merits in 2013: “If Court finds that there has been a violation of a human or peoples
rights, it shall make appropriate orders to remedy the violation, including compensation or reparation. In
cases of extreme gravity and urgency, and when necessary to avoid irreparable damage to persons, the Court
may adopt provisional measures; The Court may deliver advisory opinions at the request of the AU.
Other organs Pan-African Parliament The Economic, Social and Cultural Council, Peace and Security
Council. The African Peer Review Mechanism: process of self-evaluation by the state that has signed up to
be reviewed and a review by an international review team.
CHALLENGES: Implementation / Underfunding

The European System

The European system is the most advanced, set up within the framework of the Council of Europe.
1949: Council of Europe (12 members) The objectives of the Council of Europe were as follows:
- defend democracy, human rights and the rule of law; - conclude agreements between Member States in
order to harmonize their legal and social practices; - "promote awareness of the European identity based on
shared values, transcending cultural differences" → Beyond differences, there is a common denominator.
1989 (25 members): Fall of the Berlin Wall. The objectives from that moment on were:
- the Council of Europe should be the guardian of human rights for the post-communist democracies in
Europe; - the Council of Europe should help the new countries of Central and Eastern Europe to consolidate
their political, legislative and constitutional reforms; - the Council of Europe should also provide expertise
in the following areas: free elections, environment, local democracy.
The European system is based on the Convention for the Protection of Human Rights and Fundamental
Freedoms entered into force in September 1953, after 10 ratifications. Today, it is ratified by 47 States
(representing more than 800 million people who can benefit from the most effective regional protection)
3 bodies were set up: The European Commission,European Court of Human Rights, Committee of Ministers
1953: the individual could only bring an action before the European Commission of Human Rights, and for
that, the State had to have made a declaration. Only States could refer the matter to the European Court of
Human Rights. The role of the Committee was to supervise the execution of the judgment.
1998: new European Court. Protocol No. 11 to the Convention for the Protection of Human Rights and
Fundamental Freedoms restructures the control mechanism established by the convention. This single,
permanent Court replaces the previous control system. With Protocol No. 11, it will be decided that it is no
longer necessary for States to make a special declaration for individuals to file the complaint. Once the State
has ratified the convention, individual complaints are automatic.
The system will also be simplified: The commission will be abolished and the appeals will be filed directly
to the Court (Protocol No. 14).
1950: The Convention for the Protection of Human Rights and Fundamental Freedoms was aimed at civil
and political rights/All fundamental freedoms. The additional protocols have completed the initial list.
The European Social Charter, adopted in 1961 and monitored by the European Committee of Social
Rights, guarantees economic, social and cultural rights, such as the right to housing, to health, education,
employment, social protection, the movement of people, and non- discrimination. A new version of the
Charter (revised in 1996) has entered into force in 1999.
European Committee of Social Rights, composed of independent experts serving a six-year term
renewable once. The States must submit annual reports on how they have complied with the provisions of
the Charter. The committee reviews these reports and then publishes decisions known as "Conclusions". If a
State ignores the Conclusions on a violation, the Committee of Ministers will ask it to correct the problem,
either by changing a law or a practice (or both).
Collective complaints mechanism An Additional Protocol to the European Social Charter entered into
force in 1998, giving the possibility for workers' groups and NGOs to file collective complaints.
These complaints must include: 1. information about the organization and the persons submitting the
complaint; 2. the State against which the complaint is made; 3. the aspects of the Charter that have allegedly
been violated; 4. the violation as such. // There is a written exchange and then the Committee takes a
decision and transmits it to both parties. The Committee adopts a resolution concerning the case and may
publish recommendations.
Who can file an application with the Court?
1 - Natural persons (800 million people) - Does it matter the nationality? - Does it matter if the person is a
minor? - Does it matter if the person is capable or incapable? (Case ZEHENTNER v. Austria, 16 July 2009)
2 – Legal persons: These are NGOs, associations, civil/commercial societies, churches, parties, politicians,
companies, States, the European Union (as soon as it has joined the Council of Europe), etc. On the other
hand, municipalities, local authorities that carry out official tasks in the name of the State may not file a
petition. States themselves can file applications against another State. Court cannot take a case on its own.
Conditions of admissibility
1. Is it necessary to file your request through a lawyer? 2. The request must not be anonymous. If it is a legal
person, the legal representative must sign. 3. Exhaustion of domestic remedies (art. 35 of the Convention).
What does a domestic remedy mean? These are all the means likely to lead to a satisfactory result. all
categories of judicial, administrative and constitutional remedies. On the other hand, an extraordinary
appeal (can only be made with the approval of the State representative; i.e. it is subject to an authorization
from a public authority) is not to be exhausted within the meaning of the Convention.
Exceptions of the exhaustion of domestic remedies
Domestic remedies do not have to be exhausted if they are not really accessible. (AIREY v. Ireland, 9
October 1979) Domestic remedies must be effective. (SELMOUNI v. France, 28 July 1999.) The existence of
administrative practices that make the exercise of the remedy vain. TANRIKULU v. Turkey, 8 July 1999.

4. 6-month period (Article 35-1 of the Convention) "Normally, the referral to the Court must take place
within 6 months from the date of the last final internal decision". BUT: BAGHLI v. France, 30 November
1999 5. the request must be filed by a "victim” - the direct victim (person who has been abused); - the
indirect victim (this is the person with a very close relationship with the direct victim: can therefore claim
moral prejudice). Generally, the direct victim died → interpretation of the Court. Velikova v. Bulgaria
judgment, 1999 - the potential victim: Art. 34 allows for individuals to have access to the Court if a
domestic law violates their rights by its very essence, if they risk being directly affected by the effects of this
law. DUDGEON v. Ireland, 22 October 1981
6. the request must invoke a right guaranteed by the Convention.The court develops methods of
interpretation that lead it to extend the protection of certain rights guaranteed by the Convention. The Court
creates a protection by ricochet: It is a protection that will allow the Court to apply certain Convention rights
to situations that have not been expressly protected by it. This protection applies to particularly vulnerable
persons (asylum seekers, detainees, etc.). SOERING v. United Kingdom, 7 July 1989. The Court gives the
Convention a horizontal effect: Where the infringement of the protected right is not directly attributable to
the State, but is the act of a third party (private person), the horizontal effect of the Convention allows for
the recognition of the State's responsibility. Case A. v. United Kingdom, 23 September 1998; Case Z. AND
OTHER v. United Kingdom, 10 May 2001.
7. the request must not be abusive What is an abusive request? → This is the request of a person who seeks
to induce the Court in error. BAGHERI AND MALIKÏ v. The Netherlands, 15 May 2007
8. added by Protocol No. 14. Objective: to limit the admissibility of requests: not worth the effort.
The application will be declared inadmissible when the applicant has not suffered any significant damage
unless the respect for human rights requires an examination of the application on the merits GAGLIONE
AND OTHERS v. Italy, 21 November 2010.
Examination of the request
Composition of the Court: 47 judges. Each State Party has the possibility of submitting a list of 3 names to
the Secretariat of the Parliamentary Assembly, which will vote on the set of names proposed respecting the
rule that there must be one name per state. The judges are elected for a non-renewable term of 9 years.
Currently, there is an age limit (70 years). 1994: Judges have the status of civil servants of Europe. The
Court shall elect its President and Vice-President and is assisted by clerks.
What are the main stages in the process?
The Court must first examine whether your application is admissible. If the conditions are not satisfied, your
application will be rejected. If you have made several complaints, the Court may declare one or more of
them admissible and dismiss the others. If your application or one of your complaints is declared
inadmissible, that decision is final and cannot be reversed. If your application or one of your complaints is
declared admissible, the Court will encourage the parties to reach a friendly settlement. (see MADI v.
France, 27 April 2004). If no settlement is reached, the Court will consider the application “on the merits” –
that is, it will determine whether or not there has been a violation of the Convention.
The Court may ask provisional measures:
Art. 39 of the Court's Rules of Procedure provides that the President of the Chamber, at the request of a
party or on its own initiative, may indicate to the parties any provisional measures to be adopted in the
interest of the proper conduct of the procedure. These measures are mandatory: MAMATKULOV v. Turkey,
6 February 2003. GRORI v. Albania judgment, 7 July 2009.
EXAMPLES EFFECTS OF THE DECISIONS OF THE COURT
Austria ended the monopoly applying to television / Belgium amended its laws on homeless people
Czech Republic passed a new bankruptcy law / Denmark extended the right not to belong to a trade union
Finland amended law on child custody and visiting rights France, Spain and the UK passed laws on
telephone tapping / Germany gave celebrities a greater right not to have their private photographs published
Poland introduced an effective compensation system for certain persons whose property had been
expropriated following the Second World War
The Arab System

This system is established under the auspices of the Arab League and the Organization of Islamic
Cooperation (OIC), with a partly overlapping membership of 22 and 57 states respectively. Particularly the
Arab League is low profile with respect to making its efforts at human rights protection public.
1. THE ARAB LEAGUE
Founded in 1945, the Arab League has 22 members, with Syria suspended since 2011. Formal acceptance of
international treaties is high among Arab States. However, when it comes to controversial human rights
issues, for example the abolition of the death penalty or the rights of migrant workers and the obligations of
states to prevent and punish enforced disappearances, only few member states have entered into those
commitments. The same holds true for all international human rights treaties or provisions that enable
individuals to submit individual complaints to the UN treaty bodies or that establish national structures of
monitoring the implementation of a respective treaty.
ARAB CHARTER ON HUMAN RIGHTS
The 2004 Arab Charter on Human Rights is the main Arab League treaty in the field of human rights.
Currently, it is ratified by 14 states. Its 1994 predecessor never entered into force for lack of ratifications.
No derogation possible for a large number of rights, for example fair trial guarantees cannot be lifted in
times of emergency, including the right to challenge detention before a competent court. On the other hand,
the Charter has severe short-comings. While it prohibits torture, it does not rule out cruel, inhuman, or
degrading punishments which are practiced in a small number of Arab League member states. The Charter
limits the death penalty to the most serious crimes, and prohibits the death penalty against children below
the age of 18 – unless national law permits it. Three Arab League states (Saudi Arabia, Sudan and Yemen)
permit and execute the death penalty on minors. Another short-coming relates to freedom of religion and
belief: It can be circumscribed by law, implicitly referring to the right to leave one’s religion which is either
legally or socially impossible for Muslims in most Arab States. Only the rights to property, to an
adequate standard of living, to health and education, and to take part in cultural life are guaranteed
to all persons living on the respective territory. While the Arab Charter recognizes the right to request
asylum (Article 28), there is no state obligation to grant asylum. Where the Charter falls below the
obligations member states have accepted by ratification of international or other regional treaties, like the
African Charter on Human and People’s Rights, the international and regional obligations trump the Arab
Charter. Where national standards offer a higher level of protection than the provisions in the Charter,
national law prevails. What has not been effectively remedied so far, is the Charter’s lack of a protection
mechanism.
CHARTER OF THE RIGHTS OF THE ARAB CHILD
The Charter of the Rights of the Arab Child was issued in 1983, and appears to be currently ratified by seven
states. As evidenced by its title, it does not cover minority children living under the jurisdiction of Arab
states, for example children of Kurdish or Amazigh background.
To guarantee these rights, states are obliged to strengthen the legislative framework; through amending the
relevant laws affecting children, and comprehensive policies and programmes to benefit children’s
development and well-being. All measures should be guided by the best interest of the child. In 2009, the
Permanent Arab Committee on Human Rights discussed updating the Charter, but that appears to have
dropped off the League’s agenda. Unrelated to the Charter, the League has an Arab Childhood Committee,
assisted by its Technical Secretariat for Women, Family and Childhood (Arabic).
OTHER RELEVANT ARAB LEAGUE TREATIES
The 1965 Casablanca Protocol calls upon member states to take the necessary measures to guarantee to
Palestinians full residency rights, freedom of movement within and among Arab countries, and the right to
work on par with citizens. Saudi-Arabia, Morocco and Tunisia have not ratified the Protocol, and in practice,
the rights of Palestinians living in Arab states are largely restricted by national laws. The Arab Convention
on the Suppression of Terrorism, adopted in 1998 and ratified by 16 member states, undermines rights
protection in the region. Among the Convention’s problematic provisions is an overly broad definition of
terrorism. The Convention establishes common procedures for intelligence and judicial cooperation, with no
guarantees for due process or non-refoulement.
ARAB HUMAN RIGHTS COMMITTEE
The Charter established the Arab Human Rights Committee (Arabic) as a treaty body with seven members,
to be elected every four years for a maximum of two terms. At the time of writing, only one of the members
was a woman. Until 2016, the committee has discussed state reports (Arabic) of ten countries, and issued
concluding observations (Arabic), as the international treaty bodies do. Unlike most of the latter, the Arab
Human Rights Committee does not have the authority to receive individual complaints regarding human
rights violations committed by member states. Just as in the international human rights system, the Arab
Human Rights Committee issues Concluding Observations regarding the human rights situation in a member
country. Since the Arab Concluding Observations need to cover all human rights guaranteed in the Arab
Charter, they do not address each right in depth as the specialized international treaty bodies do. This makes
their concluding observations often less precise and detailed than the ones by international treaty bodies.
ARAB COURT OF HUMAN RIGHTS
In 2014, the Ministerial Council of the Arab League adopted the Statute of an Arab Human Rights Court and
opened it for ratification. As of this writing, only Saudi Arabia ratified the statute. The Arab Court shall be
constituted of seven judges and the court shall be based in Bahrain, a decision which was highly criticized
by human rights NGOs due to the country’s record of human rights violations. The statute restricts access to
the court to state parties and to accredited NGOs permitted by the state party to submit complaints on behalf
of individuals. Procedures for the nomination and election of judges are insufficient to guarantee that judges
sit in their individual capacity and not as representatives of their home state, as a 2015 analysis by the
International Commission for Jurists criticizes. The court may issue opinions regarding any legal issue
relating to the Arab Human Rights Charter or to any other Arab convention on human rights, based on the
request of the League of the Arab State’s Assembly or any of the subsidiary organization or authority. In
addition, each judge is entitled to express dissenting opinions from the majority.
PERMANENT ARAB COMMITTEE ON HUMAN RIGHTS
The Permanent Arab Committee on Human Rights (translated as the Arab Human Rights Commission) is the
main political human rights body of the Arab League, established in 1968. Each member state of the Arab
League sends one representative. Giving due consideration to expertise in human rights while nominating
the members is recommended by the Committee’s internal regulations, however this is not mandatory.
All human rights related treaties are referred to the Permanent Committee before they are adopted by the
Council of Ministers of Foreign Affairs. The Committee has an advisory and regulatory role; it can provide
recommendations on human rights related issues, promote the implementation of human rights treaties, and
regulate cooperation between the Arab members in the field of human rights. NGOs and National Human
Rights Institutions may attend its sessions if granted observer status. Observer status requires NGOs to be
registered in their home countries and with the Committee.
NATIONAL HUMAN RIGHTS INSTITUTIONS AND THEIR ARAB NETWORK
Most Arab states have accredited National Human Rights Institutions with a mandate to promote and protect
human rights in their respective countries. They also have the mandate to receive individual complaints,
which they may refer to law enforcement or the executive. Only five Arab National Human Rights
Institutions are accredited by the Global Alliance of National Human Rights Institutions (GANHRI) as in
conformity with the Paris Principles (A-status), that is they act independent from the government, are
granted sufficient financial resources by the government to cover at least their most basic functions and
appointment to the respective institution follows a fair and transparent procedure. All Arab National Human
Rights Institutions are members of regional networks of National Institutions in Asia-Pacific and Africa. In
addition, they have established the Arab Network for National Human Rights Institutions in 2011. In policy
dialogue, development cooperation can refer to commitments Arab states have undertaken under the Arab
Charter, and the respective recommendations by the Committee. In sector initiatives, development
cooperation can foster regional and sub-regional cooperation, for example of Arab National Human Rights
Institutions and the respective networks, while at the same time supporting the linkage with the Arab
League’s human rights mechanisms.
2. ORGANIZATION OF ISLAMIC COOPERATION (OIC)
The OIC is a faith-based intergovernmental organization founded in 1969 as an attempt to strengthen
solidarity among Muslim countries. 57 member states, devised a web of treaties regulating cooperation in
the political, economic, cultural and scientific areas. The OIC is headquartered in Saudi-Arabia.
CAIRO DECLARATION ON HUMAN RIGHTS IN ISLAM
The Cairo Declaration on Human Rights in Islam was issued by the Organization of Islamic Cooperation
(OIC) in 1990 and is its main reference document for human rights. It is a non-binding declaration; and
serves as general guidance for the OIC member states in the field of human rights. It is thus not comparable
to the Universal Declaration on Human Rights, parts of which constitute customary international law. To
close civil society space, governments resort to different means – they either cut off funding from abroad,
close down human rights groups, claim administrative irregularities, or defame, detain and imprison human
rights defenders, in particular journalists or leaders of social movements.
RELEVANCE FOR DEVELOPMENT COOPERATION
The Arab regional system for human rights protection is at an early stage but has come a long way. With the
region in general torn apart by conflict, authoritarianism, and inefficient human rights protection at the
country level, a regional protection system is more important than ever.
The Cairo Declaration makes all rights and freedoms subject to Islamic law, and defines the latter as the only
source for explanation or clarification with respect to the provisions in the declaration. While the declaration
guarantees women’s equal dignity and specific rights and duties, it declares the husband responsible for the
support and welfare of the family. Women enjoy full equality with respect to the right to work. Freedom of
movement is guaranteed, within the realm of Islamic Law, and countries ‘shall be obliged to provide
protection to the asylum-seeker until his safety has been attained, unless asylum is motivated by committing
an act regarded by the Shari’ah as a crime.’
COVENANT ON THE RIGHTS OF THE CHILD IN ISLAM
The OIC Covenant on the Rights of the Child in Islam was adopted in June 2005. It has not entered into
force, for lack of ratifications. The Covenant reflects the OIC efforts towards promoting child protection and
development, with a strong emphasis on children’s right to education, including compulsory free primary
and secondary education as one of its goals. One of the three state obligations under the Covenant is the
abolition of harmful traditional practices. The Covenant appears to mainly aim at guaranteeing that all
children can have an Islamic upbringing, under the supervision of their families and the state.
INDEPENDENT PERMANENT HUMAN RIGHTS COMMISSION.
The Independent Permanent Human Rights Commission (IPHRC) of the OIC was established in June 2011,
with the adoption of its Statute. It consists of 18 persons (six from each Arab, African and Asian member
states), not all of them with human rights expertise, and many hold- ing government office. The IPHRC is
charged with promoting human rights among the member states. It has a consultative role and it presents
recommendations to the OIC Council of Foreign Ministers, carries out studies on human rights issues and
can suggest new conventions. It also promotes cooperation in the field of human rights and exchange of
information among member states through technical cooperation and awareness raising activities. Members
of the IPHRC regularly conduct seminars in the context of international human rights debates, e.g. on
religious freedom/incitement to hatred and traditional values.
RELEVANCE FOR DEVELOPMENT COOPERATION
The OIC is a faith-based international organization and as such does not – and probably will not – have a
binding human rights mechanism. However, the OIC is an influential actor, in the international human rights
system, with several initiatives in the framework of the UN Human Rights Council regarding in particular
‘traditional values’ and freedom of expression/hate speech with respect to religion. It is also an influential
actor on the inner Islamic discourse on human rights, and its voice tends to be louder than the voice of actors
less well resourced. Development cooperation should thus engage with the OIC human rights discourse, for
example take up the organization on their aims with respect to children’s and women’s rights, and at the
same time also support the debate among Muslims about human rights, mainly driven by human rights
defenders and independent NGOs.