International Human

Rights
 Origins
 IL generally governs the conduct and relations between states while human rights law
transcends state boundaries and seeks to protect the rights of all individuals
 International human rights law (IHRL) is new in the sense that before WW2, what states did
with and to their citizens was their own business
 Before WW2, there were also very few treaties addressing core human rights issues
 After WW2, an “internationalization” of human rights took place whereby states began to
accept the idea that human rights were not purely domestic issues but rather the concerns of all
states interested in maintaining world peace
 A wide range of human rights treaties and declarations came in the wake of WW2, most notably
the UN Charter and the Universal Declaration of Human Rights
 Human rights were both “internationalized” and “universalized”
 Theories of Human Rights
 Natural law theorists believe that people are born with certain rights that cannot be taken away by the State;
law and morality are interlinked and a law that is immoral is also invalid
 Other theorists believe that human rights law is grounded in the principles of liberty, equality and human
dignity, which are in turn linked to justice and democracy
 Another source of human rights law is legal positivism, which constitutes the opposite to natural law theory;
for positivists, law is made by humans as a reflection of social norms that are then codified and advanced by
the State, rather than by any inherent concept of right and wrong
 Positivism is essential to considering the foundations of human rights since in modern times the study of
human rights is primarily grounded in positive law such as treaties and other agreements
 At the same time, modern IHRL also draws on natural law traditions in terms of its conception of rights as
being inherent or universal
 Universalism versus Relativism
 This debate is centred on whether human rights exist in an abstract, universal form
or whether they are tied in some way to community and culture
 Critics of universalism believe that it does not reflect all of the various cultures of
the world but is instead a product of the cultural values held by some groups of
people to the exclusion of others
 This belief is called cultural relativism, and it is the idea that human rights law is
not universal in nature because morality and ethics differ between cultures, making
it impossible for human rights to be globally consistent
 The challenge lies in respecting cultural difference and diversity while at the same
time promoting a universal concept of “human dignity”
 Example
 Flora, a woman from State O, inherits a piece of land left to her by her father
through a validly executed will. State O is a party to the major IHR treaties,
which call for a ban on discrimination based on gender. However, inheritance
in State O is also determined by customary law. Community norms prohibit a
woman from inheriting or selling lands within the community, regardless of
whether her father has willed them to her. Flora sues in court to enforce her
ownership rights.
 Under the various theories of human rights law, how might a court address
Flora’s claim to property?
 Final Declaration, UN World Conference
on Human Rights, 1993
 All human rights are universal, indivisible and interdependent….The
international community must treat human rights globally in a fair and equal
manner….While the significance of national and regional particularities and
various historical, cultural and religious backgrounds must be borne in
mind, it is the duty of States, regardless of their political, economic or
cultural systems, to promote and protect all human rights and fundamental
freedoms.
 Human Rights Law in the UN System
 The preamble to the UN Charter declares that the people of the UN “reaffirm faith in fundamental human
rights, in the dignity and worth of the human person, in the equal rights of men and women”
 The two major provisions of the Charter relating to human rights are articles 55 and 56
 Article 55 states: “The United Nations shall promote…higher standards of living, full employment, and
conditions of social progress and development; and…universal respect for, and observance of, human rights
and fundamental freedoms for all without distinction as to race, sex, language or religion…”
 Article 56 states that: “All Members pledge to take joint and separate action….for the achievement of the
purposes set forth in Article 55…
 The emphasis on promoting human rights and pledging to uphold them means that no binding obligations
are imposed on states in this regard
 At the same time, the Charter made it clear that human rights would not be merely a domestic issue and it
empowered various UN bodies to define and codify specific HR norms
 Universal Declaration of Human Rights,
1948
 Not legally binding since it is a declaration of the UNGA rather than a treaty or
customary norm
 At the same time, it occupies a higher place than other declarations since its provisions
includes many norms of customary international law
 Contains both civil and political rights as well as economic, cultural and social rights;
some are of the opinion that the first represent negative rights (in which the State can
meet its obligations simply by not violating them) while the second represent positive
rights (in which the State must take positive actions to meet its obligations)
 In practice, these rights are often closely connected and interrelated
 The International Covenant on Civil and
Political Rights (ICCPR), 1966
 The rights contained in the ICCPR are known as first-generation rights since they were
the earliest human rights to receive recognition
 These include the right of self-determination; equal right of men and women to all civil
and political rights; inherent right to life; the right not to be subjected to torture; the right
not to be enslaved; the right to liberty and security of person; the right to be informed of
any charges against an accused person and to be brought promptly before a judge; the
right to liberty of movement; freedom of thought, conscience and religion; the right to
peaceful assembly; freedom of assembly; the right to marry and found a family; the right
to vote, etc
 To date, the ICCPR has 169 parties
Duties to Implement ICCPR Rights
 Once a State ratifies the ICCPR and becomes a party to it, it must implement the
provisions of the treaty into domestic law (Article 2)
 In case an existing domestic law is in conflict with the Covenant, it must be changed and
brought in line with the relevant ICCPR provision, unless the State has a legally valid
reservation that is not inconsistent with the Covenant’s purpose
 In addition, a State party must “respect” and “ensure” the Covenant’s rights in a manner
that is non-discriminatory
 While the ICCPR does not address its human rights norms to private persons, states may
nevertheless be held accountable for their conduct, including those individuals or
corporations that are not citizens of the state but are operating on its territory
 In order to meet its obligations under article 2, states must also provide an “effective
remedy” to any person whose rights or freedoms have been violated
 This remedy can include relief by “competent judicial, administrative or legislative”
authorities or any other competent authority appointed by the state
 In addition, States are obligated to report to the UN Human Rights Committee (HRC) on
what measures they have taken to implement the treaty provision; the HRC is the treaty
body that monitors state compliance under the ICCPR
 On the question of whether a state can declare this treaty to be non self-executing, the
HRC gives states the liberty to make their own decision in this regard but nevertheless
encourages direct application of the ICCPR into the judicial system in the interests of
“enhanced protection” of human rights
Question
 State Z has signed and ratified the ICCPR
 X and Y, citizens of State Z, wish to marry
 However, they are both of different religions and State Z has a law banning such
marriages
 X claims that his right to marry (article 23) and his ability to enjoy his right to be free
from discrimination under the law (articles 2 and 26) have been violated by State Z
 1) Under article 2 of the ICCPR, what must Z do to address X’s claim?
 2) Would it matter if it were a territory or province within State Z that had such a law on
its books, rather than a national law?
 3) What if State Z had no procedure in place for individuals to challenge provincial laws
such as this one?
 States’ Powers to Set Aside or Limit
ICCPR Rights
 Not all of the rights in the ICCPR are absolute; some are subject to legal limitations such as
freedom of expression; freedom of movement; exclusion of press and public from criminal trials;
and freedom of thought, conscience and religion
 The ICCPR also has a general “derogation” provision; article 4 of the ICCPR allows states to
temporarily set aside their obligations in times of public emergency; such derogation must be
brought to the notice of the UN Secretary General
 In cases of derogation, certain criteria need to be met
 First, the state must officially proclaim a state of emergency
 Second, derogation is limited to “the extent strictly required by the exigencies of the situation”
 Third, it cannot be done in a manner that violates other international legal obligations, such as IHL
 Certain rights are non-derogable under article 4, including the right to life; the right not
to be tortured; the right not to be held in slavery or servitude or to be imprisoned because
of inability to fulfil a contract; the right not to be held guilty of an offence that was not a
crime when it was a committed; the right to be recognized as a person before the law
 States cannot derogate from any rights found in the ICCPR that have obtained the level
of a peremptory norm, regardless of whether it is listed in article 4
 Nor can it avoid its obligations under IHL merely because some right protected under
that law is not expressly listed as non-derogable in article 4
 The HRC has clarified other rights that may not be subject to derogation even though
they are not listed as such in article 4, including the right of all detained person to be
treated with humanity and dignity; the prohibition against unacknowledged detention, etc
 Question
 State V claims that as a result of a recent hurricane that has devastated
communities along the southern part of the state, it is indefinitely
suspending all movement by its citizens within the border of State V, as
well as any attempts by citizens to leave the country
 Article 12 of the ICCPR protects the “right to liberty of movement” and
the freedom of everyone “to leave any country, including his own”
 What are the issues with respect to V’s state of emergency proclamation
under article 4 of the ICCPR?
 Monitoring and Enforcement
 The ICCPR contemplates both implementation and enforcement through domestic legal systems
 The Human Rights Committee (HRC) oversees the implementation and enforcement of these rights by States; it consists
of 18 members, all of whom are considered experts in the area of civil and political rights
 The HRC’s main function is to receive reports from States on measures they have undertaken to implement the ICCPR
and to then submit its comments to the States after detailed study of the reports
 The HRC also relies on other sources of information such as NGOs
 Under article 40, it is mandatory for states to submit a report within the first year of joining and “whenever the
Committee so requests”, which is every five years thereafter
 Moreover, a State can declare recognition of the competence of the HRC to hear complaints from other states received
against it
 There are mixed opinions regarding the enforcement mechanism of the HRC; some consider it weak since its comments
are not binding; others believe that the HRC has the power of interpretation, which means that States must in good faith
abide by them
 Optional Protocols
 In addition to the main text, the ICCPR also has two optional protocols that states may choose to ratify but do not
have to agree to in order to be parties to the ICCPR
 The First Optional Protocol permits individuals to submit human rights communications directly to the HRC
alleging that their rights under the ICCPR have been violated
 The HRC makes a determination on whether the submission is admissible and then brings it to the attention of
the concerned State
 The State then responds with written explanations in terms of allegations and remedies
 In making its decision, the HRC relies solely on written submission; it has no power to summon witnesses or
engage in fact-finding; once it has received the submissions, it forwards its views to the State and the individual
 Over 100 states are parties to this Protocol
 While the HRC’s views are not legally binding in the same manner as judicial decisions, since they articulate
what a State must do in order to comply with the ICCPR, to that extent they can be considered to have binding
effect
 The Second Optional Protocol focuses on the abolition of the death penalty and has currently been ratified by 72
states
 International Covenant on Economic, Social and
Cultural Rights (ICESCR), 1966
 Adopted at the same time as the ICCPR and deals with what are known as second-
generation rights
 The reason the two covenants had to be drawn up separately was because states could not
reach a consensus on the rights contained in the ICESCR
 Despite this separation, the UNGA has proclaimed on more than one occasion that all
human rights and basic freedoms, regardless of being labelled political, civic, economic,
social, etc., are indivisible, interdependent and interrelated
 There are 164 states that are parties to the ICESCR as of 2015
Rights and Freedoms under the ICESCR

 These include the right to work; the right to safe and healthy working conditions and equal
opportunity; the right to form trade unions; the right to strike; the right to social security; the right
to an adequate standard of living; the right to be free from hunger; the right to highest attainable
standard of physical and mental health; the right to education, including compulsory free primary
education
 Many of the rights in the ICESCR are positive rights and, since they require State action, can only
be fully realized over time and by countries that are economically stable
 At the same time, all parties are obliged to take steps to meet certain core obligations, such as the
right to essential foodstuffs and healthcare, as well as basic shelter and education
States’ Duties to Implement ICESCR
 Under Article 2, each party agrees to “take steps, individually and through
international assistance…to the maximum of its available resources,” to
“progressively achieve the full realization of the rights recognized” in the
Covenant
 While full realization can take time, state parties have a duty to move as quickly
and effectively as possible towards that goal
 In terms of what kind of steps need to be taken, the treaty specifically notes the
adoption of appropriate legislation; other measures that could also be appropriate
include administrative, judicial, financial, educational and social measures
 What if the state lacks the resources to take steps to meet its obligations?
 Article 2 requires steps to be taken only to “the maximum of available resources”
 However, states claiming failure to achieve rights due to lack of resources must show
“that every effort has been made to use all resources that are at its disposition in an
effort to satisfy…its minimum obligations”
 These minimum core obligations include ensuring that significant numbers of
individuals are not denied essential foodstuffs; essential primary health care; basic
shelter and housing; and basic forms of education
 Moreover, states have a duty to seek “international assistance and cooperation” in order
to achieve the rights laid down in the treaty
 Monitoring and Enforcement under the
ICESCR
 As with the ICCPR, the ICESCR has its own monitoring body called the
Committee on Economic, Cultural and Social Rights (CESCR)
 The monitoring mechanism is similar to that of the ICCPR but does not provide
for state-against-state or individual-against-state complaints
 States must submit reports to the CESCR showing their progress and compliance
with the treaty but the Committee does not have the power to issue binding
decisions; it only reviews the reports and provides guidelines to states on how
better to fulfil their treaty obligations
 Example
 Assume State P has proposed the following “understanding” with respect to
the ICESCR: that “the articles are goals to be achieved progressively, but do
not require immediate implementation or action upon ratification.”
 “Understandings” are one state’s interpretation of various provisions of a
treaty but they don’t limit the state’s legal obligations under the treaty; if
they do, then they become reservations
 Would State R’s “understanding” be permissible under Article 2 of the
ICESCR?
 Example
 State X, a developing country, makes the following reservation to the ICESCR:
 “The Government of State X reserves the right to postpone the application of article 13(2)
(a) of the Covenant, in so far as it relates to primary education; since, while the
Government of State E fully accepts the principles embodied in the same article and
agrees to take the necessary steps to apply them in their entirety, the problems of
implementation, and particularly the financial implications, are such that full application
of the principles in question cannot be guaranteed at this stage.”
 Article 13(2)(a) states: “Primary education shall be compulsory and available free to all.”
 Can State X’s reservation be considered a valid one?
 Example
 A national of State Q is kidnapped and severely beaten by a member of the secret
police of State R during official interrogation. As a result of the beating, the national
dies. State R has not ratified either the ICCPR or any other relevant treaty relating to
torture. The dead man’s family seeks to file charges in a domestic court in State U
where the member of the secret police who carried out the beatings is residing. State
U’s laws allow for cases to filed in its courts for any crime committed by a state or its
agents in violation of the “law of nations”
 Since the act was committed by an agent of a state that is not a party to any of the
relevant human rights treaties, on what basis might the family argue that State R’s
agent nevertheless violated international law?
Filártiga v. Peña-Irala, 1980
 The Filártiga family, who were Paraguay nationals, claimed that on 29 March 1976, Dr. Filártiga’s
seventeen-year-old son Joelito Filártiga was kidnapped and tortured to death by the Inspector General
of Police in Asuncion at that time, Américo Norberto Peña-Irala (Peña)
 On 6 April 1979, the Filártiga family brought a complaint in the Eastern District of New York against
Peña for wrongfully causing the death of Joelito; also compensatory and punitive damages of 10 million
dollar were sought
 The suit was filed under a previously little-used 1789 federal statute, the Alien Tort Claims Act, which
gives foreign nationals the right to sue for wrongful actions that violate international law
 On 15 May 1979, the District Court dismissed the action for want of subject matter jurisdiction
 The Filártiga family appealed; on 16 October 1979, the case was heard by the Second Circuit Court of
Appeals
 The court determined that deliberate torture perpetuated under color of official authority
violated universally accepted norms of the international law of human rights, regardless of
the nationality of the parties
 Official torture had been prohibited by the law of nations
 The prohibition was clear and unambiguous and admitted no distinction between treatment
of aliens and citizens
 Whenever an alleged torturer was found and served with process by an alien within the
borders of the United States, federal jurisdiction was appropriate
 The court determined that its jurisdiction was appropriate
 The court reversed the decision of the district court, which dismissed appellants' complaint
for want of subject matter jurisdiction
 In respect of perpetrators of torture in general, the Court famously held that ‘for purposes
of civil liability, the torturer has become like the pirate and slave trader before him hostis
humani generis, an enemy of all mankind’
 Customary International Human Rights
Law
 Sometimes, a state that has not ratified a human rights treaty may still be in
violation of the norms articulated in those treaties; this is because those
norms form a part of international customary law
 Customary international law still plays an important role in human rights,
both because a state may not be a party to one of those treaties and because
some of the treaty provisions may have risen to the level of customary law,
which in turn limits a state’s ability to place a reservation on those rights
 UN-Charter Based Human Rights Bodies
 The Office of the High Commissioner for Human Rights
 Oversees the UN’s human rights system
 The top official is the High Commissioner, who acts as a liaison between states and various UN bodies when it comes to fulfilling
IHR obligations
 The Human Rights Council
 A subsidiary body of the UNGA; there are 47 seats in the Council distributed among the UN’s regional groups (13 each for Africa
and Asia, 6 for Eastern Europe, 8 for Latin America and the Caribbean, and 7 for the Western Europe and Others Group);
 Each state must be approved by a majority vote of the General Assembly in a secret ballot; Council membership is limited to two
consecutive 3-year terms; by a two-thirds vote of the UNGA, a Council member may be suspended by the GA for committing
human rights violations
 The Council undertakes a periodic review of the HR record of all member states every four years
 It is authorized to receive communications from individuals regarding HR violations and can make recommendations on what
action needs to be taken; it also oversees special procedures through country and thematic mandates