PA R T 2

INTERNATIONAL HUMAN RIGHTS LAW UNDER THE UNITED NATIONS

L E S SON 2
When you have completed this lesson, you should be able to:
(a) Discuss the role of the UN and its organs in the development and promotion of
human rights.
(b) Identify and outline the key provisions of the three conventions/instruments that form
part of the International Bill of Rights.
(c) Discuss and evaluate the enforcement mechanisms available under these
conventions.
(d) Apply the provisions of these conventions to practical situations.

1. Convention on the Elimination of All Forms of Racial Discrimination (ICERD, 21 December 1965).

2. International Covenant on Civil and Political Rights (ICCPR, 16 December 1966).

3. International Covenant on Economic, Social, and Cultural Rights (ICESCR, 16 December 1966).

As you read this lesson and subsequent lessons, you should identify:
(a) Conventions that are applicable to the case,
(b) Various rights that may have been violated and
(c) Remedies that may be applicable to the case.

INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS AND ITS

OPTIONAL PROTOCOLS

The ICCPR and its optional protocols form part of the International Bill of Rights.
The ICCPR sets out various civil and political rights as well as enforcement
mechanisms of the HRC.
a) The First Optional Protocol to the Covenant gives the HRC competence to
examine individual complaints regarding alleged violations of the Covenant by
state parties to the Protocol.
b) The Second Optional Protocol provides for the abolition of the death penalty
regarding states who have accepted the Protocol.

International Covenant on Civil and Political Rights

Study the text of the ICCPR, specifically the following provisions:
•• Articles 2 and 3, 4, 28–39 and 40–42

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 legislative or other measures as may be necessary to give effect to the
rights recognized in the present Covenant.

5. 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 officiai 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.

Article 3

The States Parties to the present Covenant undertake to ensure the equal right of men
and women to the enjoyment of all civil and political rights set forth in the present
Covenant.

Article 4

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 1 and 2), 11, 15, l6 and l8 may be
made under this provision. 5. Any State Party to the present Covenant availing itself of
the right of derogation shall immediately inform the other States Parties to the present
Covenant, through the intermediary of the Secretary-General of the United Nations, of
the provisions from which it has derogated and of the reasons by which it was actuated.
A further communication shall be made, through the same Intermediary, on the date on
which it terminates such derogation.
What are “human rights”? This term is usually employed in a weak form, as when we
claim the human right to water or clean air. However, the term has legal support.

It is established a set of legal claims to protection and benefits that are anchored in
internationally recognized human rights statements, treaties, and instruments. The most
important are:

1. the United Nations Universal Declaration of Human Rights (1948)

2. the International Covenant on Civil and Political Rights (ICCPR, 1966)
3. the International Covenant on Economic, Social and Cultural Rights (ICESCR,
1966).
Together they form the “International Bill of Rights”, a set of legal obligations on states
and their agents to respect human rights, to protect people in their territories against
human rights violations, and to promote human rights.
 Specific rights in the ICCPR and derogations from rights

The ICCPR provides for a number of civil and political rights, such as the right to life, the
right to liberty, the right not to be subjected to torture, cruelty and inhumane or
degrading treatment, the right to security of the person and the right to freedom from
slavery. According to Article 2(1) of the Covenant, all these rights are afforded to all
individuals without distinction as to race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status. Article 2(2) mandates
state parties to adopt legislative and other measures to give effect to the rights
recognised in the ICCPR.

Article 4 provides for derogations from rights under exceptional circumstances.

Article 4

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 1 and 2), 11, 15, l6 and l8 may be
made under this provision. 5. Any State Party to the present Covenant availing itself of
the right of derogation shall immediately inform the other States Parties to the present
Covenant, through the intermediary of the Secretary-General of the United Nations, of
the provisions from which it has derogated and of the reasons by which it was actuated.
A further communication shall be made, through the same Intermediary, on the date on
which it terminates such derogation.

Enforcement of the ICCPR

NB: Read Articles 28 and 40–42 of the ICCPR.

Article 28 of the ICCPR established the HRC to monitor and advance state parties’
compliance with their obligations arising under the ICCPR. Articles 29–39 provide for,
among other things, the structure of the HRC, and the election and term of office of the
members of the HRC. Articles 40–42 of the ICCPR provide for specific procedures of
the HRC.
The reporting procedure (Article 40 of the ICCPR)

All state parties are obliged to submit regular reports to the HRC on the implementation
of the rights recognised in the Covenant. Initial reports are filed one year after a state
party has ratified the Covenant and thereafter whenever the Committee requests, which
is usually every four years. The Committee examines every report and addresses its
concerns and recommendations to the state party in the form of what is generally known
as “concluding observations”. A concluding observation is generally an assessment of
the implementation of human right treaties by a state. In this case, the relevant human
rights treaty is the ICCPR.

General comments (Article 40 of the ICCPR)

The HRC issues what is known as general comments, which are generally
interpretations of the provisions of the ICCPR. These general comments cover a wide
range of subjects. The HRC has provided general comments on, among other things,
the right to life (Article 6), states of emergency (Article 4) and freedom of movement
(Article 12).

Interstate communications (Articles 41 and 42)

The ICCPR provides for intestate complaints regarding the non-fulfilment of human
rights obligations under the ICCPR within the jurisdiction of other state parties to the
Covenant, provided that both states have made a special declaration. The state
receiving the communication is then obliged to explain or clarify the matter to the state
that sent the communication with reference to domestic procedures and remedies
taken. If the matter is not resolved to the satisfaction of both parties within six months of
the initial communication, either state may then refer the matter to the HRC, which then
has to determine whether available remedies have been exhausted.

First Optional Protocol to the ICCPR: individual complaints process

The First Optional Protocol was established because the negotiating parties could not
come to an agreement on including the issue of individual complaints in the main
convention. Its main purpose is to enable the HRC to receive and consider
communications from individuals claiming to be victims of violations of any of the rights
recognised in the ICCPR. Note that no communication shall be received by the HRC if it
concerns a state party to the Covenant that is not a party to the First Optional Protocol.
Only individuals who claim a violation of any of the rights in the ICCPR and who have
exhausted all available domestic remedies may submit a written communication to the
Committee for consideration.
Second Optional Protocol to the ICCPR: abolishment of the death penalty:

The right to life is the most important right in that all human rights can only be realised if
a human being has life. Article 3 of the UDHR makes provision for the right to life, liberty
and security of the person for all human beings. The ICCPR protects the right to life
under Article 6 and emphasises that the law shall protect this right.

In a further effort to promote and protect the right to life, the Second Optional Protocol to
the International Covenant on Civil and Political Rights, Aiming at the Abolition of the
Death Penalty was adopted and proclaimed by General Assembly Resolution 44/128 of
15 December 1989. The Second Optional Protocol contributes to the enhancement of
human dignity and the progressive development of human rights. To date, 86 state
parties have ratified and 38 have signed the Second Optional Protocol.

INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND

CULTURAL RIGHTS

Rights under the ICESCR:

The ICESCR provides for a number of economic, social and cultural rights, such as the
right to work, social security and social assistance, protection of the family, an adequate
standard of living (food, clothing, housing and improved living conditions) and the
highest attainable standards of physical and mental health.

According to Article 2 (2) of the ICESCR, all these rights are afforded to all individuals
without distinction as to race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status. Article 2(1) mandates state
parties to take steps individually and through international assistance and cooperation
to the maximum of their available resources to achieve progressively the full realisation
of the rights provided for in the ICESCR.

Enforcement of the ICESCR:

The ICESCR did not establish an international/individual complaints system or a body to

oversee or review reports submitted. In terms of Article 16, state parties undertake to
submit reports on their progress in achieving observance of the rights recognised in the
Covenant. These reports are submitted to the UN Secretary General, who must transmit
them to the relevant specialized agencies of ECOSOC.

NB: Read Articles 18–24 of the ICESCR, which deal with the role of ECOSOC.
All state parties must, within two years of accepting the Covenant and thereafter every
five years, submit regular reports to the Committee on how the rights recognised in the
Covenant are being implemented. The Committee examines every report and
addresses its concerns and recommendations to the state party in the form of
“concluding observations”.

The concluding observations contain an evaluation on the progress made by the state
party and recommendations on what still needs to be done. Just like the HRC, the
CESCR makes “general comments” on the rights embodied in the ICESCR. For
instance, the CESCR has provided general comments on, among other things, the right
to the highest attainable standard of health (General Comment No 14), the right to
social security (General Comment No 19) and the right to water (General Comment No
15).

Optional Protocol to the ICESCR:

The Optional Protocol to the International Covenant on Economic, Social and Cultural
Rights, which entered into force on 5 May 2013, gives the Committee competence to
receive and consider communications from individuals who claim that their rights under
the Covenant have been violated and sets out the relevant reporting procedure.