HUMAN RIGHTS

LAWS 2219(3)

II. HUMAN RIGHTS AND STATE OBLIGATIONS

2023
II. OBLIGATIONS OF STATES

A. Civil and Political Rights and the ICCPR

B. Economic, Social and Cultural Rights and the ICESCR

C. Obligations of States Parties

D. Domestic application of ESC Rights and Justiciability

2
 A. CIVIL AND POLITICAL RIGHTS
AND
THE ICCPR
International Covenant on Civil and
Political Rights (ICCPR), adopted 16 Dec.
1966, entered into force 23 March 1976;

⚫ Optional Protocol to the International Covenant on Civil

and Political Rights, adopted 16 Dec. 1966, entered into
force 23 March 1976: establishes an individual complaint
mechanism

⚫ Second Optional Protocol to the International Covenant

on Civil and Political Rights, adopted 15 Dec. 1989,
entered into force 11 July 1991: abolition of death penalty
3
EXAMPLES OF CIVIL AND POLITICAL RIGHTS
Right to life
Protection from torture, cruel, inhuman or degrading treatment or
punishment
Protection from slavery and slave-trade and forced or compulsory
labour
Right of person deprived of liberty to be treated with humanity and
with respect for the inherent dignity of the human person
Right to liberty of movement
Right to be equal before the courts and tribunals
Right to a fair and public hearing by a competent, independent and
impartial tribunal established by law
Right to freedom of religion 4
EXAMPLES OF CIVIL AND POLITICAL RIGHTS…
Right to freedom of expression and right to hold opinions
without interference
Prohibition of any advocacy of national, racial or religious
hatred that constitutes incitement to discrimination, hostility
or violence
The right of peaceful assembly
Right to freedom of association with others, including the
right to form and join trade unions
Right to marry and found a family
Right to take part in the conduct of public affairs, to vote and
be elected at genuine periodic elections
Right to be equal before the law and be entitled without
discrimination to equal protection of the law 5
B. ECONOMIC, SOCIAL AND CULTURAL RIGHTS AND
THE ICESCR

International Covenant on Economic,

Social and Cultural Rights (ICESCR),
adopted 16 Dec. 1966, entered into force 3
Jan. 1976;

• Optional Protocol to the International

Covenant on Economic, Social and Cultural
Rights, adopted 10 December 2008, not yet
into force: establishes complaint and inquiry
mechanism

6
EXAMPLES OF ECONOMIC, SOCIAL AND CULTURAL RIGHTS
Right to work
Right to the enjoyment of just and favourable conditions of
work
Right of everyone to form trade unions and join trade unions
of his/her choice
The right to strike, provided that it is exercised in conformity
with the laws of the particular country
The right to social security
The right for the family to as widely as possible be protected
and given assistance, particularly for the establishment of the
family and in respect to its responsibility for the care and
education of dependent children 7
EXAMPLES OF ECONOMIC, SOCIAL AND CULTURAL RIGHTS…

The right to enter into marriage with free consent

Right to an adequate standard of living to everyone and
the family, including adequate food, clothing and
housing, and to the continuous improvement of living
conditions
Right to the enjoyment of the highest attainable standard
of physical and mental health
Right to education
Right to take part in cultural life
8
C. OBLIGATIONS OF STATES PARTIES
⚫ Obligation to respect: States must refrain from interfering
with or curtailing the enjoyment of human rights.
⚫ Obligation to protect: States are required to protect
individuals and groups against human rights abuses.
⚫ Obligation to fulfil: States must take positive action to
facilitate the enjoyment of basic human rights.
Negative obligations: non-interventionist approach
Positive obligations: affirmative approach

9
OBLIGATIONS OF STATES PARTIES…
ICCPR:
Article 2
1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and
subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race,
colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

2. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant
undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the
present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the
present Covenant.

3. Each State Party to the present Covenant undertakes:

(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy,
notwithstanding that the violation has been committed by persons acting in an official capacity;

(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial,
administrative or legislative authorities, or by any other competent authority provided for by the legal system of the
State, and to develop the possibilities of judicial remedy;

(c) To ensure that the competent authorities shall enforce such remedies when granted. 10
OBLIGATIONS UNDER ICCPR (CONTD)
General Comment No. 31 [80]: The Nature of the General Legal Obligation Imposed on
States Parties to the Covenant (Adopted on 29 March 2004, HR Committee, ICCPR):
❑ Erga omnes obligations, hence inter-state complaints mechanism under article 41
❑ Article 26 Vienna Convention on Law of Treaties (VCLT): State parties’ obligations to give
effect to the obligations of the Convention in good faith
❑ All branches and institutions of a State party are bound and by virtue of article 27 VCLT,
internal law cannot be invoked as a justification of non-compliance
❑ A reservation to article 2 of ICCPR would be incompatible with the Covenant’s objects and
purposes
❑ Both positive and negative nature of obligations
❑ Restrictions must be necessary and proportionate
❑ Impairment of rights may be effected by public or private persons
❑ Reparation is fundamental to the obligation to provide effective remedy. Furthermore,
“where appropriate, reparation can involve restitution, rehabilitation and measures of
satisfaction, such as public apologies, public memorials, guarantees of non-repetition and
changes in relevant laws and practices, as well as bringing to justice the perpetrators of
human rights violations”, (para 16).

11
OBLIGATIONS UNDER ICCPR (CONTD)
GENERAL COMMENT NO. 29: STATES OF EMERGENCY (ARTICLE 4), 2001:
DEROGATION OF SOME RIGHTS
1 . In time of public emergency which threatens the life of the nation and the existence of which is officially
proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the
present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not
inconsistent with their other obligations under international law and do not involve discrimination solely on the
ground of race, colour, sex, language, religion or social origin.
2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision.
“Article 4 of the Covenant is of paramount importance for the system of protection for human rights
under the Covenant. On the one hand, it allows for a State party unilaterally to derogate temporarily
from a part of its obligations under the Covenant. On the other hand, article 4 subjects both this very
measure of derogation, as well as its material consequences, to a specific regime of safeguards. The
restoration of a state of normalcy where full respect for the Covenant can again be secured must be the
predominant objective of a State party derogating from the Covenant.” (para. 1)
Exceptional and temporary nature of derogation measures.
Derogations are to be differentiated from limitations/restrictions applicable in normal situations (e.g.
articles 12 and 19).
Derogation measures are, para. 4. “limited to the extent strictly required by the exigencies of the situation.
This requirement relates to the duration, geographical coverage and material scope of the state of
emergency and any measures of derogation resorted to because of the emergency”

12
OBLIGATIONS UNDER ICCPR (CONTD)
Non-derogable rights:
❑ article 6 (right to life),
❑ article 7 (prohibition of torture or cruel, inhuman or degrading punishment, or of medical or
scientific experimentation without consent),
❑ article 8, paragraphs 1 and 2 (prohibition of slavery, slave-trade and servitude),
❑ article 11 (prohibition of imprisonment because of inability to fulfil a contractual obligation),
❑ article 15 (the principle of legality in the field of criminal law, i.e. the requirement of both
criminal liability and punishment being limited to clear and precise provisions in the law that was
in place and applicable at the time the act or omission took place, except in cases where a later law
imposes a lighter penalty),
❑ article 16 (the recognition of everyone as a person before the law), and
❑ article 18 (freedom of thought, conscience and religion)

13
OBLIGATIONS UNDER ICCPR (CONTD)
Nature of non-derogable rights and peremptory norms:
“The enumeration of non-derogable provisions in article 4 is related to, but
not identical with, the question whether certain human rights obligations
bear the nature of peremptory norms of international law. The proclamation
of certain provisions of the Covenant as being of a non‑derogable nature, in
article 4, paragraph 2, is to be seen partly as recognition of the peremptory
nature of some fundamental rights ensured in treaty form in the Covenant
(e.g., articles 6 and 7). However, it is apparent that some other provisions
of the Covenant were included in the list of non-derogable provisions
because it can never become necessary to derogate from these rights during
a state of emergency (e.g., articles 11 and 18). Furthermore, the category of
peremptory norms extends beyond the list of non-derogable provisions as
given in article 4, paragraph 2. States parties may in no circumstances
invoke article 4 of the Covenant as justification for acting in violation of
humanitarian law or peremptory norms of international law”, para. 11

14
OBLIGATIONS OF STATES PARTIES…
ICESCR:
Article 2
Each State Party to the present Covenant undertakes to take steps, individually and
through international assistance and co-operation, especially economic and technical,
to the maximum of its available resources, with a view to achieving progressively the
full realization of the rights recognized in the present Covenant by all appropriate
means, including particularly the adoption of legislative measures.

2. The States Parties to the present Covenant undertake to guarantee that the rights
enunciated in the present Covenant will be exercised without discrimination of
any kind as to race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status.

3. Developing countries, with due regard to human rights and their national
economy, may determine to what extent they would guarantee the economic
rights recognized in the present Covenant to non-nationals.

15
D. DOMESTIC APPLICATION OF ESC RIGHTS AND
JUSTICIABILITY
Committee on Economic, Social and Cultural Rights (1990), The nature of States parties obligations
(Art. 2, par. 1), General Comment 3, especially paragraphs 1, 3, 7, and 10:
@ Para. 10:
i. “[t]he Committee is of the view that a minimum core obligation to ensure the satisfaction of, at
the very least, minimum essential levels of each of the rights is incumbent upon every State party.
Thus, for example, a State party in which any significant number of individuals is deprived of
essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most
basic forms of education is, prima facie, failing to discharge its obligations under the Covenant.”

Committee on Economic, Social and Cultural Rights (1998), Substantive Issues arising in the
Implementation of the International Covenant on Economic, Social and Cultural Rights, General
Comment 9: The domestic application of the Covenant:
- @ Para. 3: 2 principles of International Law regarding domestic application:
i. Article 27 of the Vienna Convention on the Law of Treaties of 1969: “[A] party may not invoke the
provisions of its internal law as justification for its failure to perform a treaty”.
ii. Article 8 of the Universal Declaration of Human Rights: “Everyone has the right to an effective
remedy by the competent national tribunals for acts violating the fundamental rights granted him by
the constitution or by law.”
- Requirement of exhaustion of domestic remedies is said to reinforce the “primacy of national
remedies”.

- @ para. 6: different ways of States’ reactions mentioned

16
DOMESTIC APPLICATION OF ESC RIGHTS AND
JUSTICIABILITY…
- “[J]usticiability […] refers to those matters which are appropriately resolved by the
courts”. Para. 10
- “It is sometimes suggested that matters involving the allocation of resources should be left
to the political authorities rather than the courts. While the respective competences of the
various branches of government must be respected, it is appropriate to acknowledge that
courts are generally already involved in a considerable range of matters which have
important resource implications. The adoption of a rigid classification of economic, social
and cultural rights which puts them, by definition, beyond the reach of the courts would
thus be arbitrary and incompatible with the principle that the two sets of human rights are
indivisible and interdependent. It would also drastically curtail the capacity of the courts to
protect the rights of the most vulnerable and disadvantaged groups in society.” General
Comment 9, Para. 10

17
READING

I. Bantekas and L. Oette, International Human Rights Law and

Practice 2nd Edition, Cambridge University Press, 2016
Concluding observations on the fifth periodic report of Mauritius,
CCPR/C/MUS/CO/5, 2017, Human Rights Committee
Concluding observations of the Committee on Economic, Social
and Cultural Rights (Mauritius), E/C.12/MUS/CO/4, 2010
Guidelines on measures of reparation under the Optional Protocol
to the International Covenant on Civil and Political Rights,
CCPR/C/158, Human Rights Committee, 2016
General comment No. 24 (2017) on State obligations under the
International Covenant on Economic, Social and Cultural Rights in
the context of business activities, 2017
18
FURTHER READING
I. Nifosi-Sutton, The Power of the European Court of
Human Rights to Order Specific Non-Monetary Relief: A
Critical Appraisal from a Right to Health Perspective, 23
Harv. Hum. Rts. J. 51, 2010
K. Young, The Minimum Core of Economic and Social
Rights: A Concept in Search of Content, 33 Yale J. Int'l
L. 113, 2008

19
QUESTIONS
1. What is the ICCPR and why is it important?
2. What is the ICESCR and why is it important?
3. What are derogations under international human rights law?
Are there any other ways of limiting human rights?
4. What are general comments and why are they important?
5. Are obligations of States in International human rights law
similar for all rights?
6. See the following documentary:
Venezuela: The Fall of an oil giant, 2021
https://www.bbc.co.uk/programmes/m000rvrt
What are the human rights which are being violated in this
given situation?
20