Human Rights Law

LFH 422E
General Introduction

Lecture 2
 Study
• ME McGuinness Exploring the Limits of
International Human Rights Law Georgia
Journal of International and Comparative Law,
Vol. 34, 2006
• NJ Udombana Life, Dignity, and the Pursuit of
Happiness: Human Rights and Living Standards
in Africa The University of Tasmania Law
Review Vol 128 No 1 2008
 Introduction
• IHRL = a branch of PIL
• Rules and principles that protect and promote
individual and collective human rights
• Operates at the international level
• PIL = set of rules and principles that regulate the
relationships between states per se, between
states and international organisations, and
between international organisations per se
• Some concern the protection and promotion of
human rights and = IHRL
 International Law
• States and international organisations are the
subjects of international law
• They have international legal personality
• Montevideo Convention (1933) – provides the
conventional definition of a state
• An entity qualifies as a state where it has:
 Territory
 Population
 Government
 Independence
 International Law
International organisation =
• organisation made up of states or other
international organisations
• derives its powers from a founding document
drawn up by the party states (UN)
 International Legal Personality
Capacity to:
• Act independently in the international sphere
• Acquire rights and obligations
• Conclude agreements
• Enforce rights and agreements against other
PIL subjects
 Individuals
• The individual is not a full subject of PIL
• Individual is entitled to rights and obligations
under PIL
• Cannot conclude treaties
• Does not participate in in the making of
international law norms
• The function of IHRL is to protect the
individual against the power of the state
 IHRL
• Universal human rights systems operate
between all nations of the world
• Regional human rights systems operate within
a certain region or group of states and to
which membership is limited
 Sovereignty
• Under PIL states are independent and
sovereign
• Entitles to regulate their own affairs without
foreign interference
• IHRL erodes sovereignty
• IHRL is treaty based
• Pacta sunt servanda – good faith
• Supervision of compliance by international
bodies and complaints
Relationship between PIL and Domestic Law

Monism – IL and DL are two aspects of the same

law
• A treaty is automatically incorporated into
domestic law upon ratification – no need for
enabling legislation
Dualism – IL and DL are fundamentally different
• PIL cannot apply directly, must be domesticated
by legislation and incorporated into DL
 IHRL and the UN Charter
UN objective:
• to maintain international peace and security
• Protection and promotion of HR
• Development of IHRL
 IHRL and the UN Charter
• IHRL developed after the UN Charter
• Universal, regional & domestic
• Universal – UDHR, ICCPR, ICESCR, CERD,
CEDAW, CAT, CRC, CMW
• Regional - European system, African system
 Sources of IHRL
The sources of international law sets out the sources in
Article 38(1) Statute of the International Court of Justice.
Article 38 states that the International Court shall apply:
• International conventions, whether general or particular,
establishing rules expressly recognized by the contesting
states
• International custom, as evidence of a general practice
accepted as law
• The general principles of law recognized by civilized nations
• Subject to the provisions of Article 59, judicial decisions
and the teachings of the most highly qualified publicists of
the various nations, as subsidiary means for the
determination of rules of law.
 Sources of IHRL
• IHRL is based on state consent as expressed
through the forms outlined in Article 38(1) ICJ
Statute
• Primary way in which states express their
consent = negotiation and the adoption of
treaties
• An agreement between states is a treaty
 Article 38
• There is no hierarchy of sources
• Treaties are not more important than custom
• Precedent and writings are however
subsidiary means
 Treaty
• IHR treaties do not provide for a reciprocal exchange
of rights and duties between the state parties
• States that accept the terms of the treaty accept
legal constraints upon their treatment of individuals
within their territory and subject to their jurisdiction
• States are bound to treaties to which they have
given formal consent (ratification or accession)
• The UN Charter is the first instrument that provides
guarantees of human rights and fundamental
freedoms in a global treaty
 Treaties or Conventions
• Written agreement between states / international
organizations operating in International Law
• Vienna Convention on the Law of Treaties of 1969 /
Vienna Convention on the Law of Treaties between
States & International Organizations and between
International Organizations of 1986 governs:
† Capacity to enter into treaties
† Procedure for entering into treaties
† Interpretation of treaties
† Termination of treaties
 Custom
• A custom may be referred to as a practice which has
been
– Observed and accepted by states as part of IL
• Art. 38 of the Statute of the ICJ refers custom as
– Evidence of a general practice accepted as law
• Usually customary rules are codified and replaced by
statute
• In IL customary rules are a very important source of
IL
• Unlike in consenting to a treaty, a state’s consent to a
customary rule is inferred from its conduct
 Custom
• May be regarded as the common law of the
international community
• It is the law which is applied when the parties
have not arranged matters in a treaty or when
the treaty provisions are not universally
acceptable
• A customary rule can eventually be embodied
in a treaty and the practice of states under a
treaty can develop into a customary rule
 Definition
• Article 38(1)(b) – Customary law can only
develop when general practice accepted as
law is present
• There Latin equivalents are usus and opinio
iuris sive necessitatis
• There are two main requirements of ascertaining the
existence of a customary rule in IL
– Usus - settled practice and
– Opinio juris sive necessitas - the acceptance of an
obligation to be bound
• Usus or Settled practice may be ascertained from
– Treaties, decisions of national and international
courts, national legislation, diplomatic
correspondence, policy statements, national
advisor’s opinions, draft reports of the IL
Commission, UN Resolutions
• In South Africa, Usus may be found in the SA
Yearbook of IL
 Custom - Settled Practice (Usus)
• Rule to qualify as custom must receive
“general or widespread” acceptance
• Universal acceptance not required
• Persistent objector to a practice while the law
is still developing is not bound by it
• International Court of Justice insisted on
“constant and uniform” usage or widespread
acceptance of a rule as pre-requisite for usus
 Usus
• A number of elements have been identified
which must be considered when deciding
whether or not a general / usage has developed
• Uniformity
• Repetition
• Time
• Number of states
• Actions of states consistent with the rule
 Custom – Opinio Juris
• A settled practice on its own is insufficient to
create a customary rule
• States must also feel a sense of obligation /
that they are bound to the rule
• The general practice must be accepted as law
• Proof of opinio juris is difficult
 Custom – Opinio Juris
• Over and above a settled practice, there must
be a sense of obligation
– i.e. a feeling that a state is bound by a rule
in question
• This is expressed in Art. 38 (1) (b) of the
Statute of the ICJ as
– A general rule that is ‘accepted as law’
 General Principles of Law Recognized by
Civilized Nations
• Courts may turn to common principles found in municipal
systems in so far as they are capable of application to
relations between states where there are no rules or
treaty or customary law applicable
• International courts have invoked the principles of unjust
enrichment, reparation or breach of an undertaking, res
judicata, estoppel, etc
• International judges serve on international tribunals and
are well qualified to draw on general principles
• General principles of law does not have a consensual basis
 General Principles of Law
• General principles of law comprise of
– A reserve store of legal principles upon which
international tribunals may draw in the absence of
applicable rules of treaty or customary law
• These general principles may be found in municipal law in
so far as they are applicable to relations between states
• General principles usually fill the gaps in IL
• Examples of such rules include
– Principles of unjust enrichment, reparation for breach
of an undertaking, the principle of res judicata,
estoppel, nemo judex in re sua etc.
 Judicial Precedent
• International tribunals may rely upon judicial
decisions as a subsidiary means for the
determination of rules of law subject to article 59
of the Statute of the International Court of Justice:
“The decision of the court has no binding force
except between the parties and in respect of that
particular case”
International Law knows no doctrine of stare
decisis
 Judicial Precedent
• In practice there is a tendency for courts to
follow their own decisions or the decisions of
other international tribunals
• The International Court of Justice refers with
caution to its own previous decisions, other
international tribunals do not hesitate in this
regard
 Judicial Precedent
• The reliance of International tribunals upon judicial
precedents is subject to article 59 of the Statute of
the ICJ which state that
– The decision of the Court has no binding force
except between parties and in respect of a
particular case
• The doctrine of stare decisis is not permissible in IL,
however, tribunals do make reference to previous
decisions in deciding cases before them
 Text Writings
• Teachings of highly qualified publicists are
another subsidiary means for the
determination of law
• The writings of jurists provide evidence of
rules of law
• Limited application today
 Soft Law
• There are imprecise standards, generated by declarations
adopted by diplomatic conferences or resolutions of
international organizations that are intended to serve as
guidelines to states in their conduct but which lack the
status of law
• The Helsinki Final Act of the Conference on Security and
Co-operation in Europe of 1975
• Environmental International Law heavily dependent on soft
law
• Passage of time and state practice may convert it into
customary law
 Soft Law
• “Soft law” consists of
– Documents that are not legally binding upon states but nonetheless
have an impact upon international relations and ultimately IL
• Soft law comprise of
– Imprecise standards generated by declarations adopted by diplomatic
conferences
– Resolutions of International Organizations that are intended to serve
as guidelines to states in their conduct
• Soft law lacks the status of law and thus non-binding
• Soft law comes into being as a result of states’ reluctance to
consent to multilateral treaties
 Soft Law
• At some point “soft law” may acquire a status of customary
law after
– A passage of time and
– State practice in its support
• Soft law only serves a useful guide
• Examples of soft laws are
– The Helsinki Final Act of the Conference on Security and
Co-operation in Europe/1975
– The Rio Declaration on the Environmental and
Development/1992
– The New Partnership for Africa’s Development (NEPAD)
 Unilateral Acts of States
• Unilateral acts of states particular in the form
of statements of government officials may
create international obligations
• Statements of this kind do not fall within the
sources listed in article 38(1) of the Statute of
the International Court of Justice
• Nevertheless they do create legal obligations
 Codification
• The uncertainties of International Law prompted the
international community to resort to codification
• Article 13(1) of the UN Charter authorises the
General Assembly to initiate studies and make
recommendations to “encourage the progressive
development of International Law and its
codification”
• General Assembly has established an International
Law Commission in this regard
 Codification
• In codifying existing areas of law, the International
Law Commission has been required progressively to
develop the law by expounding new principles –
progressive development and codification has
become blurred
• The International Law Commission prepares reports
and drat conventions, which may later be submitted
to international conferences for approval – number
of significant multilateral law-making conventions
have come into existence
 Codification
• The International Law Commissions product
also includes draft codes, guidelines,
restatements of the law, draft articles that
may be transformed to treaties and the
reports of the special rapporteurs
 Jus Cogens, Obligations Erga Omnes & a
System of Higher Norms
• International society is a horizontal system premised
on the sovereign equality of states
• IL is a body of rules based on consent characterized by
neutrality
• Therefore all legal norms must be equal in status
• There is however a development of a value system
within the international community which accords a
special status to the prohibition of aggression, the
promotion of human rights and the protection of the
environment
 Jus Cogens, Obligations Erga Omnes & a
System of Higher Norms
• Peremptory norms (Jus Cogens) – no
derogation permitted
• Obligations erga omnes – obligations which a
state owes to the international community as
a whole and in the enforcement of which all
states have an interest
 Jus Cogens
• A peremptory norm of general international
law
• accepted and recognized by the international
community of states as a whole as a norm
• from which no derogation is permitted and
• which can be modified only by a subsequent
norm of general international law having the
same character
 Jus Cogens
• Causing all national legislative, administrative,
or judicial acts authorizing such acts to be
illegitimate
• Subjecting alleged perpetrators to universal
criminal jurisdiction
• Forbidding the exclusion of perpetrators from
extradition under any political offence
exemption
 Jus Cogens, Obligations Erga Omnes & a
System of Higher Norms
• Jus Cogens – origin in the Vienna Convention on the
Law of Treaties (1969):
A treaty will be void where, at the time of its
conclusion, conflicts with a peremptory norm of
general international law (a norm accepted and
recognised by the international community of states
as a whole as a norm from which no derogation is
permitted and which can be modified only by a
subsequent norm of general international law
having the same character
 Jus Cogens, Obligations Erga Omnes & a
System of Higher Norms
• The International Court of Justice have
constantly avoided giving practical application
to the notion of peremptory norms
• Uncertainty over which norms qualify as
peremptory
 Jus Cogens, Obligations Erga Omnes & a
System of Higher Norms
• Obligations erga omnes – response to International Court
of Justice denying legal standing to Ethiopia and Liberia in
1966 to enforce an obligation owed to the international
community (SA government “to promote to the upmost
the material and moral wellbeing and social progress” of
the people of South West Africa (Namibia)
• Later the court attempted to repudiate its finding
indicating that a litigant state would no longer be required
to prove a national interest in the subject matter of its
claim where an obligation of concern to all states
(obligation erga omnes) is involved
 Jus Cogens
• Article 53 of the Vienna Convention on the Law of
Treaties/1969 provide that
– A treaty is void if it conflicts with a peremptory norm of
general IL
– A peremptory norm of general IL is a norm accepted and
recognized as a norm from which no derogation is permitted
– That peremptory norm can be modified only by a
subsequent norm of general IL having the same character
• Examples of jus cogens are
– Prohibition on genocide, racial discrimination, slavery, the
denial of self-determination, and the suppression of certain
human rights
 Obligation Erga Omnes
• The right to self-determination in the context of
decolonization was accepted by the ICJ as
– ‘one of the essential principles of contemporary
international law’ and which enjoys ‘an erga
onmes character’
• The ICJ has also given the following examples of erga
omnes obligations as those which attract criminal
responsibility such as
– Aggression, genocide, slavery and racial
discrimination
 The System of Higher Norms
• There is no agreement as to which norms enjoy a higher
status
• Obviously jus cogens and obligation erga omnes may be
viewed as norms enjoying a higher status
• An examples of a higher norm is
– The prohibition on the aggressive use of force
• Examples of serious contenders are
– The prohibition on genocide, slavery, torture, race
discrimination, the denial of self-determination and
human rights and the destruction of the environment
The Character of Human Rights Obligations
• IHR obligations deal with the obligations of states towards individuals
and not between states
• The treaties are agreements between states but the beneficiaries of
the treaties are third parties namely all individuals within the states
territory
• When a state becomes part of a treaty it is declaratory of the states
obligation and not constitutive of its obligations - human rights pre-
exists their legal recognition and states are bound by them
independent of their consent to be bound by them
• States are expected to secure human rights and have a duty to respect
human rights, to protect individuals from human rights violations and
to fulfil human rights by adopting appropriate laws that implement
their international undertakings
 Margin of Appreciation
• Although states are bound by the same standards, they
also have leeway in assessing what these standards imply
domestically
• Allows a court to take into account that a Convention will
be interpreted in a different way in different member states
• The power of a contracting state in assessing the factual
circumstances, and in applying the provisions envisaged in
international human rights instruments
• Each society is entitled to certain latitude in balancing
individual rights and national interests, as well as in
resolving conflicts that emerge as a result of diverse moral
convictions
 Margin of Appreciation
• The role of discretion is indispensable not only for bridging the gap
between the law and changing realities of dynamic social organisms, 
but also for answering the particular questions of a given case in the
absence of overall enacted or case law
• Judges are entitled to exercise discretion to make fair decisions in a
specific case, without being locked into a formula that might not be
applicable to every scenario. The court is obliged to take into account
the cultural, historic and philosophical differences between states in
fulfilling their treaty obligations
• The margin of appreciation is designed to provide flexibility in resolving
conflicts emerging from diverse social, political, cultural and legal
traditions of contracting states. National authorities are in a better
position than the international judge to assess the concrete
circumstances of a case. The discretion must be exercised in a fair and
impartial manner that does not run counter to the standards set out by
law
 Categories of Human Rights
Economic, Social, Cultural Rights / Civil, Political
Rights
• Economic, Social, Cultural Rights – Right to an
adequate standard of living, education and
work, etc (ICESCR) = progressive realisation
• Civil, Political Rights – Right to life and integrity
of the person, freedom of thought, expression,
association, and assembly, liberty and fair trial,
etc (ICCPR) = immediate obligation
 Categories of Human Rights
• Rights of Individuals / Rights of Collectivities –
UDHR (dignity) v UN Declaration on the Rights
of Persons Belonging to National or Ethnic
Minorities (collectivist)
• One-Dimensional / Composite Rights - peace,
self-determination and development v rights
inherent in the human person
 Core Rights
Major human rights treaties recognize a set of core rights from
which no derogation is permitted. See Article 4(2) of the ICCPR
which list certain rights -
• Right to life
• Prohibition of torture or cruel, inhuman or degrading
treatment or punishment
• Prohibition on slavery
• Prohibition of imprisonment because of inability to filfil a
contractual obligation
• The principle of legality in criminal law – law must be clear,
ascertainable & non-retrospective
• The recognition of everybody as a person before the law
• Freedom of thought, conscience and religion
 Equality And Non-Discrimination

• All humans are equal and deserve to be treated as such

• No two human beings are equal in the sense that they are
not identical
• Who are equals and what constitutes equal treatment -
concept of equality is therefore not a question of logic but
a political choice
• The challenge is to give substance to the abstract notion of
equality by translating it into a concrete legal formulation
that makes clear which forms of unequal treatment are
legitimate because they are based on morally acceptable
criteria and which ones are wrongful
 Equality And Non-Discrimination
• Equality and non-discrimination is the positive and negative
statements of the same principle 
• Equality requires that equals be treated equally
• The prohibition of discrimination precludes differential
treatment on unreasonable grounds
• Equality implies a positive duty to recognize and to take
positive action to achieve real equality and a negative
obligation not to discriminate 
• Non-discrimination correspond to the more limited concept
of formal equality and equality refers to the more positive
approach aimed at substantive equality
 Equality And Non-Discrimination
Formal Equality:
• Equals must be treated equally, likes must be treated alike
• Focus on the process rather than the outcome
• Individuals in a comparable situation are treated equally, regardless of
the result
• The state should not give preference to anyone group, people should be
treated exclusively on individual merits regardless of group membership
• There will always be laws that classify persons into groups that are
treated differently - progressive taxation, juvenile justice system
• These distinctions are legitimate as they are based on morally acceptable
grounds
• Discrimination has a positive connotation to discriminate between right
and wrong
• Two parties could therefore be treated equally well or badly and existing
patterns of disadvantage may be perpetuated
 Equality And Non-Discrimination
Substantive Equality:
• Based on human dignity, distributive justice and equal participation
• There are two main variants being equal opportunity and equality
of results
Equality of opportunity:
• People must be treated equally but must also have equal
opportunities
• Everyone should begin from the same starting point
• Requires the removal of barriers to the advancement of
disadvantaged groups
• It does not aim to achieve equality of outcome, everyone is treated
the same
• It aims to redress past discrimination and individual merit
 Equality And Non-Discrimination
Equality of results:
• Aims to achieve an equal distribution of social
goods such as education, employment,
healthcare and political representation
• The removal of barriers does not represent
and guarantee that disadvantaged groups will
in fact be able to take advantage of available
opportunities
 Equality and Non-Discrimination in IL
International Instruments:
• Universal Declaration of Human Rights Articles 1, 2(1) and 7
• UN Charter Articles 1(3)
• The International Covenant on Civil and Political Rights Articles 2,3 and 26
• The International Covenant on Economic, Social and Cultural Rights Articles
2(20 and 3
• The International Convention on the Elimination of All Forms of Racial
Discrimination
• The International Convention on the Elimination of All Forms of
Discrimination Against Women
• The Convention of the Rights of Persons with Disabilities
• The International Covenant on the Rights of the Child
• The International Convention on the Rights of All Migrant Workers and
Members of their Families
 Equality and Non-Discrimination in IL
Major regional human rights instruments:
• The African Charter on Human and Peoples’ Rights
• The American Convention on Human Rights
• The American Declaration on the Rights and Duties of
Man
• The Arab Charter on Human Rights
• The European Convention for the Protection of Human
Rights and Fundamental Freedom
• The Charter of Fundamental Rights of the European
Union
 Equality and Non-Discrimination in IL
Prohibited Grounds of Distinction
• A persons inherent characteristics such as race and sex are not
acceptable criteria for differential treatment.
• Equality and non-discrimination norms define prohibited grounds of
discrimination in three ways:
 A general guarantee of equality without specifying any particular
prohibited grounds – All persons are equal before the law (ACHR)
 An exhaustive list of prohibited grounds – ICERD / CRPD / CRC / ICESCR
/ CEDAW
 An open-ended list of prohibited grounds – ECHR prohibits
discrimination on any ground such as sex, race, colour, language,
religion . . . or other. Also the UDHR states without distinction of any
kind, such as . . .
Direct and Indirect Discrimination
• International human rights law prohibits:
 Intended and unintended discrimination
 Discriminatory treatment and
discriminatory outcome
 Direct Discrimination

Occurs when a person, on account of one or

more of the prohibited grounds, is treated less
favourably than someone else in comparable
circumstances
 Indirect Discrimination
• Occurs when a practice, rule or requirement that is outwardly neutral
and not based on one of the prohibited grounds of distinction has a
disproportionate impact on particular groups defined by reference to
one of these grounds. There is no difference in treatment but due to
structural biases treating equals equally leads to unequal results.
• DH and others v Czech Republic: a difference in treatment may take
the form of disproportionally prejudicial effects of a general policy or
measure which, though couched in neutral terms, discriminates
against a group. This does not require a discriminatory intent.
Singh Bhinder v Canada
• A Sikh was dismissed from employment as he refused to comply with
a legal requirement to wear safety headgear at work as his religion
required that he wear only a turban. The legislation was found to be
de facto discriminatory, it applied to everyone without distinction but
it disproportionately affects certain persons. Finally no violation here
as safety gear was based on reasonable and objective grounds.
 Discriminatory Intention

• Intended and unintended discrimination are

prohibited as discrimination is defined as
distinction based on one of the listed grounds
which has the purpose or effect of nullifying
rights and fundamental freedoms
• ICERD / CEDAW
 Justified and Unjustified Distinctions

• The first question is therefore whether there

has been a difference in treatment or
outcome
• Next question is whether there is a
justification for the distinction
• The question is whether there are objective
and reasonable criteria for these distinctions
 The Justification Test

• The HR Committee stated that for the purposes of the

ICCPR, not every differentiation of treatment will
constitute discrimination if the criteria for the
differentiation are reasonable and objective and if the
aim is to achieve a purpose which is legitimate under the
Covenant
• The European Court of Human Rights has a test requiring
that any distinction and difference in treatment must:
 Pursue a legitimate aim, and
 Be proportionate
 It therefore requires a legitimate aim and
proportionality
 The Justification Test
• A wide range of factors need to be considered to access
proportionality, including:
 The suitability of the distinction to achieve the aim pursued
 The availability of alternative means, and
 Weather the disadvantage suffered by the affected
individuals or groups is excessive in relation to the aim
• Certain grounds of distinction are generally regarded as
inherently suspect and therefore require strict scrutiny being:
 Race,
 Ethnicity
 Sex, and
 Religion
 Positive Action
• The right to equality and non-discrimination entails state
obligations:
 To respect, which requires states to refrain from any
discriminatory action and to ensure that all its laws and
practices comply with the right to non-discrimination
 To protect imposes a duty on states to prevent
discrimination by non-state actors, which requires that
states introduce comprehensive legislation prohibiting
discrimination in fields such as employment, education,
healthcare, housing and the provision of goods and
services
 To secure equality by taking proactive steps to eliminate
structural patterns of disadvantage and to further social
inclusion
 Positive Action
• This is the duty to take positive action in relation to
legislative, administrative and policy measures
ranging from the restructuring of institutions and
the provision of reasonable accommodation for
individuals in certain circumstances
• Positive action is reflected in affirmative action being
measures aimed at correcting the position of
members of a target group in one or mare aspects of
their social life in order to obtain effective equality
 Positive Action
• Article 1(4) of the ICERD provides for affirmative action provided
that the measures do not lead to the maintenance of separate
rights for different racial groups and that it shall be discontinued
after the objectives for which the measures were taken has been
achieved. Article 1(4) of the CEDAW contains a similar provision
provided that the purpose has a legitimate aim in a proportionate
manner. The measures need to be introduced for the:
 Benefit of genuinely disadvantaged groups
 Be temporary, and
 Cease once the objectives have been achieved
 Not result in the maintenance of separate rights for different
groups
 Current HR Violations
• Unlawful killings
• Torture in detention
• Arbitrary detention
• Destruction of homes
• Increasingly widespread attacks on civilians by
government forces and militias
• Executions
• Recklessly shelling and shooting into residential areas
• Sexual violence
• Cluster munitions
 1

• When it comes to dignity, rights or justice one

doesn’t necessarily have to see them in terms
of different standards, because the US’ history
of human rights is not that blurred
• In fact, its record has been marred by
differences between black and white, rich and
poor, citizen and alien, religious affiliations
and others
 Integrity of the Person
Respect for Human Dignity
• The prohibition on torture and cruel, inhumane
or degrading treatment or punishment and the
right to life have a direct link to the principle of
human dignity
• The African Charter places a prohibition of
torture and ill-treatment – Article 5 – guarantees
respect for the dignity inherent in a human being
• The American Convention on Human Rights –
Article 5 – prohibits torture and ill-treatment
• ICCPR – Article 10
 The Right to be Free from Torture and Ill-
treatment
• The right to be free from torture and ill-treatment is
guaranteed by the:
 ICCPR – Articles 7 & 10
 European Convention on Human Rights – Article 3
 American Convention on HR – Article 5
 African Charter on Human and Peoples Rights –
Article 5
 UNCAT – Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment
• This prohibition is a norm of customary international
law
 Torture
• The prohibition against torture is a rule of jus cogens
• See the US ‘enhanced interrogation techniques’ of ‘high value’
detainees held in the context of the ‘global war on terror’
• The prohibition of ill-treatment does not have the same status
• Ireland v UK
 The facts concerned the treatment of members of the IRA imprisoned
by the UK in Northern Ireland. The European Commission distinguished
between torture and other ill-treatment. Serious physical beatings
were assigned to inhuman treatment and concluded that five special
interrogation techniques amounted to torture:
 Wall-standing and stress positions
 Hooding
 Subjection to noise
 Deprivation of sleep
 Deprivation of food and drink
 The Right to Life

• UDHR – Article 3 – everyone has the right to life.

• ICCPR – Article 6
• ACHR – Article 4
• ACHPR – Article 4
• ECHR – Article 2
The right to life has been considered the supreme human
right and no-one may be arbitrarily deprived of life
The right to life is a customary international law but it is
uncertain whether it is a jus cogens norm
 Adequate Standard of Living

UDHR – Article 25(1): Everyone has the right to a

standard of living adequate for the health and
well being of the person including food,
clothing, housing and medical care and
necessary social services, security for
unemployment, sickness, disability, widowhood,
old age and other lack of livelihood in
circumstances beyond the persons control
 Adequate Standard of Living
• Adequate standard of living therefore includes
food, clothing and housing and the highest
attainable standard of health
• Everyone should be able to enjoy their basic
needs under conditions of dignity
• Nobody should have to revert to degrading
themselves by begging, prostitution, or bonded
labour
• It implies a standard of living above the poverty
line of the society concerned reflecting the cost
of participating in the everyday life of society
 Adequate Standard of Living
The state obligation will depend on:
• The differences in the level of assistance
needed by individuals
• The resources available to the state
• The different components of the state
 Adequate Standard of Living
• Adult individuals have to take care of their
own needs and those of their dependants by
their own efforts and the state must take
measures to facilitate everyone’s enjoyment
of the rights
• The obligation of the state is therefore
subsidiary to the responsibility of the
individual and the state only has an obligation
where the individual cannot manage
personally to secure their own standard of
living of that of their dependants
 Adequate Standard of Living
The elements of the right to an adequate standard of living include
the right to food, housing and health.
•  The Right to Food
• This includes adequate food and water and the means for its
procurement. This right implies:
• The availability of food in a quality and quantity sufficient to
satisfy dietary needs of individuals
• The accessibility of food in a sustainable way
• Water is required for personal and domestic use. Water supply
must be:
• Sufficient and continuous – availability
• Safe – quality
• Within physical reach and affordable for all without
discrimination – accessibility
 Adequate Standard of Living
• The Right to Housing
• An adequate standard of living requires that
everyone has a place to live – physical space
which provides personal and family security,
basic infrastructure, satisfactory privacy,
necessary warmth and protection against heat.
• It requires more than mere shelter, it requires:
 Security
 Peace
 Dignity
 Adequate Standard of Living
The requirements of an adequate standard of housing are:
• Legal security of tenure – protection against forced
eviction, harassment and other threats
• Availability of services, materials, services and
infrastructure – safe drinking water, energy, sanitation and
washing, etc
• Affordability – personal or household financial cost
• Habitability – adequate space and protection
• Accessibility – special needs of disadvantaged groups
• Location – access to employment options, healthcare,
schools and other social services
• Cultural adequacy – construction, building materials, etc
 Adequate Standard of Living
The Right to Health
• This implies the right to the highest attainable standard of physical and mental
health
•  The Committee of Economic, Social and Cultural Rights has specified the following
elements of the right to health:
 Availability – functioning public health and healthcare facilities, goods and
services in sufficient quantities
 Accessibility – health facilities, goods and services must be accessible to
everyone (non-discrimination, physical and economic accessibility and
information accessibility.
 Acceptability - health facilities, goods and services must be respectful of ethics
and culturally appropriate, sensitive to gender and lifecycle requirements and
confidential
 Quality - health facilities, goods and services must be scientifically and
medically appropriate and of good quality (skilled medical personal,
appropriate hospital equipment, scientifically approved drugs, safe water and
adequate sanitation
 UN System
• The HR provisions in the Charter has contributed
to the development of IHR
• The aim of the UN is to promote and protect
respect for HR internationally
• This is reflected in several treaties that have
been adopted within the UN
• Need to distinguish between the UN system for
the protection of HR and the UN treaty-based HR
system
 Groups of People

In practice it has proved necessary to give special protection to the attainment of the adequate
standard of living of some groups of people whom are vulnerable or whom have been neglected.
Women
• Women may have greater difficulties in attaining an adequate standard of living than men
Children
• Children need adequate food, housing, nursing, and care. Parents/others responsible for the
child have the primary responsibility to secure the conditions of living necessary for the
child’s development
• The state must take appropriate measures to assist parents to implement this right – Article
27(3) of the CRC by providing, if necessary, material assistance and support programmes with
regard to nutrition, clothing and housing
Indigenous People
• Conditions must be established to allow indigenous people to have a dignified existence
• Economic and social rights were adopted as standards of achievements to be achieved
through progressive measures at the national and international level
• Article 2 ICESCR envisage a progressive realization of the Covenant rights and acknowledges
the constraints due to limited available resources
• Some obligations with immediate effect. Rights must be exercised without discrimination of
any kind and must take immediate and progressive measures towards the full realization of
the relevant rights by appropriate means including the adoption of legislative measures
 The UN Charter HR System
• Aim to end state impunity
• Individuals are also involved in HR violations
• Institutional mechanisms established under
the UN Charter to deal with state impunity
regarding HR violations and with individual
impunity relevant thereto
UN Organs Dealing with Impunity
Principle organs that protect and promote HR
namely the:
• GA
• SC
• Economic & Social Council
• Trusteeship Council
• ICJ
• Secretariat
 GA
• Assist in the realisation of HR and
fundamental freedoms
• Contributes to standard setting
• Resolutions & declarations and binding
treaties
• UDHR (1948)
 SC
• Mandate to maintain international peace and
security
• Includes HR-related issues
• Binding resolutions to protect and promote
HR
• ICTR, ICTY & SCSL created by resolution
 Economic & Social Council
• ECOSOC created by UN Charter
• May make recommendations to the GA on
matters including HR matters
• Instructed to set up commissions to further
the promotion of HR
• UN Commission on HR
• Commission on the Status of Women
• High Commissioner on HR
 Trustee Council
• Realisation of the right to self-determination
• No territory left under trusteeship = irrelevant
 ICJ
• Mainly a court for states
• Adjudicates international conflicts and
disputes
• Advisory mandate
• This indirectly protects HR
 Secretary General
• Highest servant of the UN
• Instrumental in the adoption of resolutions on
HR by the GA and SC
 UN Specialised Agencies
• UNICEF, UNESCO, HRC
• IMF, World Bank, WTO
• Involved in the protection of HR
 UN Judicial Organs Dealing with Individual
Impunity
• ICC – based on Rome Statute of the ICC
• 1 July 2002
• Competent to deal with four crimes
 Aggression
 Genocide
 War crimes
 Crimes against humanity
 Special Tribunals
• ICTY – prosecute serious violations of IHL
• ICTR – prosecute & punish individuals
responsible for genocide and other violations
of IHL committed in Rwanda
• SCSL – Sierra Leone hybrid international and
national court – prosecute crimes against IL,
IHL and Sierra Leone domestic law