Texts and Materials on International

Human Rights
FOURTH EDITION

Texts and Materials on International Human Rights offers a carefully tailored overview of the subject
that covers sources and theories, institutions and structures, and substantive rights. The fourth
edition is fully updated to include all key developments in the law, in particular issues around
reform in the UN and the topical application of human rights around the world.
This collection of materials offers a comprehensive overview of the institutional structures
relevant to international human rights law, crucial to the understanding of how law works in
this challenging area. Designed to guide students through the fundamental texts for this subject,
the author’s commentary contextualises each extract to explain its relevance, while highlighted
further reading makes links to cutting-edge academic commentary to provide next steps for student
research.
Offering a clear text design that distinguishes between materials and author commentary,
and including reflective questions throughout to aid understanding, this book is ideal for students
seeking to engage with the key issues in the study of international human rights.

Dr Rhona K.M. Smith is Professor of International Human Rights at Newcastle Law School,
Newcastle University.
Texts and Materials
on International
Human Rights
FOURTH EDITION

Rhona K.M. Smith

Fourth edition published 2020
by Routledge
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Title: Texts and materials on international human rights / Rhona Smith.
Identifiers: LCCN 2019041883 (print) | LCCN 2019041884 (ebook) | ISBN 9780367221416
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Subjects: LCSH: Human rights. | Civil rights.
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Outline contents

Preface xv
Table of cases xvii
Table of legislation xxiii
Table of treaties and instruments xxvii

 1 Sources of international human rights 1

 2 Key concepts: universality, interdependence and categories of rights 29
 3 States and treaty obligations 64
 4 Human rights organisations and key institutions: United Nations and international
entities 98
 5 Regional human rights organisations and key institutions 123
 6 Monitoring and enforcing human rights: extra-conventional mechanisms 148
 7 Implementing human rights treaties: committees and courts 190
 8 Extending the duties to protect and respect human rights: non-State actors 239
 9 Children 285
10 Human rights defenders 323
11 Indigenous peoples 347
12 Prisoners, detainees and convicts 395
13 Refugees, stateless persons and internally displaced persons 455
14 Women 503
15 Emerging issues and challenges 553

Index 581
Detailed contents

Preface xv
Table of cases xvii
Table of legislation xxiii
Table of treaties and instruments xxvii

1 Sources of international human rights 1

1.1 Treaties 4
1.1.1 What are treaties? 4
1.1.2 How do States agree to treaties? 5
1.1.3 When do treaties become legally binding? 7
1.1.4 What happens if a treaty is concluded in a foreign language? 8
1.1.5 Subsequent amendments and additions to treaties 9
1.1.6 Principal international human rights treaties 9
1.1.7 The issue of overlapping treaty obligations 10
1.2 Customary international law 12
1.2.1 Altering and rejecting emergent customs 14
1.2.2 Customary guarantees against torture and slavery 14
1.2.3 Case study: extracting custom from the United Nations Convention
on the Rights of the Child 15
1.2.4 Jus cogens 16
1.3 Other international and regional instruments 16
1.3.1 Jurisprudence 18
1.3.2 Case study: corporal punishment of children 18
1.3.2.1 The salient treaty provisions 18
1.3.2.2 The jurisprudence 20
1.3.2.3 Comment 22
1.4 A practical guide to sources 22
1.4.1 Treaties 23
1.4.2 Jurisprudence 25
1.4.2.1 Interpretative and guiding comments 25
1.4.2.2 State and treaty monitoring bodies reports 25
1.4.2.3 Case law 26
1.4.2.4 Virtual library websites 27
1.4.2.5 Reports of NGOs and other bodies 27
1.4.3 Academic commentaries 27
Further reading 28

2 Key concepts: universality, interdependence and categories of rights 29

2.1 Universality 30
2.1.1 Non-discrimination in the application of human rights 34
2.1.2 Minority protection 34
viii | DETAILED CONTENTS

2.1.3 The League of Nations and minority rights 34

2.1.4 A change in emphasis: universal rights 37
2.1.5 A return to minority rights? 37
2.1.6 Developing sectoral and group rights 37
2.2 Cultural sensitivity 40
2.2.1 Celebrating cultural diversity 41
2.2.2 Reconciling traditional culture with human rights 43
2.2.2.1 Female genital mutilation 43
2.2.3 The role of regional organisations 44
2.2.3.1 Europe 45
2.2.3.2 State’s margin of appreciation 45
2.2.3.3 Africa 48
2.2.3.4 Americas 51
2.2.4 Reservations and declarations: a practical solution? 52
2.2.4.1 Case study: CEDAW and claimed conflicts with Islam 52
2.3 Positive obligations on States to conform to human rights 53
2.4 Indivisibility and interdependence, or a hierarchy of rights? 59
2.4.1 A Cold War product? – two categories of rights 60
2.5 Interdependence and Indivisibility 60
2.5.1 The right to clean water and adequate sanitation 61
2.5.2 The right to life 61
2.5.3 A family of rights 62
2.6 Evolving and developing rights 62
Further reading 63

3 States and treaty obligations 64

3.1 ‘Universal human rights’ and ratification 66
3.1.1 The unusual position of the Convention on the Rights of the Child 68
3.2 Limitations on State compliance: reservations, declarations, derogations and
denunciations 69
3.3 Reservations 70
3.3.1 Nature and scope of reservations 70
3.3.2 The ICJ’s approach to developing reservations 71
3.3.3 The effect of reservations 72
3.3.4 The International Covenant on Civil and Political Rights and reservations 76
3.3.5 Case study: the Convention on the Elimination of All Forms of
Discrimination against Women and Reservations 77
3.3.6 Reservations and objections thereto – case study on Djibouti and the
Convention on the Rights of the Child 80
3.3.7 United Nations’ pressure to remove reservations 81
3.3.8 Comment on reservations and human rights treaties 81
3.4 Declarations 82
3.4.1 Declarations as reservations 82
3.4.2 Case study on reservations/declarations 82
3.5 Derogations 84
3.5.1 A typical derogation clause – the ICCPR 84
3.5.2 The approach of the Human Rights Committee 85
3.5.3 Regional examples of derogation clauses 86
3.5.4 Case study: United Kingdom 87
3.5.5 Non-derogable provisions 89
3.5.6 The approach of the European Court of Human Rights 90
 DETAILED CONTENTS | ix

3.6 Denunciations 92
3.6.1 Terminating treaty obligations 93
3.6.2 Denunciation and United Nations human rights treaties 94
3.6.3 Regional human rights instruments and denunciations 95
3.6.4 Individual petitions and denunciations 95
3.6.5 Case study of denunciation: International Covenant on Civil and
Political Rights, first optional protocol 95
Further reading 96

4 Human rights organisations and key institutions: United Nations and

international entities 98
4.1 International organisations 99
4.2 The United Nations 99
4.2.1 Purpose of the United Nations 99
4.2.2 Structure of the United Nations 101
4.2.3 General Assembly 101
4.2.4 Economic and Social Council 103
4.2.4.1 ECOSOC’s functional commissions 104
4.2.4.2 Commission on the Status of Women (CSW) 105
4.2.4.3 Sustainable development 106
4.2.4.4 Reform of the Economic and Social Council? 107
4.2.5 Human Rights Council 107
4.2.5.1 Creating the new Council 108
4.2.5.2 Membership of the Council 109
4.2.5.3 Powers of the Council 110
4.2.5.4 Human Rights Council Advisory Committee 111
4.3 International courts 113
4.3.1 International Court of Justice 114
4.3.2 International Criminal Court 117
4.4 The International Labour Organisation 119
Further reading 122

5 Regional human rights organisations and key institutions 123

5.1 Regional organisations 124
5.2 Europe 125
5.2.1 Council of Europe 126
5.2.1.1 Committee of Ministers 127
5.2.1.2 European Commissioner on Human Rights 128
5.2.1.3 European Committee of Social Rights 129
5.2.2 Organisation of Security and Cooperation in Europe 131
5.2.2.1 Office for Democratic Institutions and Human Rights 136
5.2.2.2 Representative on Freedom of the Media 136
5.2.2.3 High Commissioner on National Minorities 137
5.2.2.4 Field activities 139
5.2.3 European Union 139
5.2.3.1 European Union Fundamental Rights Agency 140
5.3 The Americas 142
5.3.1 Organisation of American States 142
5.3.1.1 Inter-American Commission on Human Rights 143
5.4 Africa 144
5.4.1 African Union 144
x | DETAILED CONTENTS

5.5 Others 144

5.5.1 Commonwealth of Independent States 144
5.5.2 League of Arab States 144
5.5.3 Asia 144
Further reading 146

6 Monitoring and enforcing human rights: extra-conventional mechanisms 148

6.1 Human Rights Council 150
6.1.1 Universal periodic review 150
6.1.2 Complaint procedure 155
6.1.3 Special sessions 159
6.1.4 Special procedures: thematic and country rapporteurs 161
6.2 The United Nations Educational, Scientific and Cultural Organisation
(UNESCO) 165
6.3 United Nations Security Council: responsibility to protect, and sanctions 170
6.4 International criminal courts, tribunals and processes 175
6.4.1 Ad hoc international criminal tribunals 175
6.4.2 Mixed courts and tribunals 176
6.4.2.1 Sierra Leone Special Court 177
6.4.2.2 East Timor special panels 180
6.4.2.3 Others 180
6.4.3 International criminal court 181
6.4.3.1 Comment 183
6.4.4 Case study: first International Criminal Court warrants and trial 183
6.4.5 Truth-finding 184
6.5 Organisation of American States Inter-American Commission on Human Rights 184
Further reading 187

7 Implementing human rights treaties: committees and courts 190

7.1 United Nations treaty monitoring bodies: conventional mechanisms 191
7.1.1 Creation of committees 192
7.1.1.1 Exception: Committee on Economic, Social and Cultural Rights 195
7.1.2 Administrative, secretarial and research support 196
7.1.2.1 Exception: Committee on the Elimination of Discrimination
against Women 197
7.1.3 Powers of committees 197
7.1.4 Initial and periodic reports by States to treaty monitoring bodies 197
7.1.4.1 Comment on reports 200
7.1.4.2 Non-submission of reports/incomplete reports 201
7.1.4.3 Exception: early warning measures and urgent action
procedures 203
7.1.5 Inter-State complaints 204
7.1.6 Individual communications 207
7.1.6.1 Comment 207
7.1.6.2 Admissibility criteria and communications process 208
7.1.6.3 Remedies available to the individual 212
7.1.7 Independent enquiries by committees 213
7.1.8 General comments 214
7.1.9 On-site visits 217
7.2 Regional systems: creating judicial mechanisms 220
7.2.1 European Court of Human Rights 220
7.2.2 European Committee for the Prevention of Torture and
the European Committee of Social Rights 222
 DETAILED CONTENTS | xi

7.2.3 Inter-American Court and Commission of Human Rights 223

7.2.4 African Commission and Court of Human and Peoples’ Rights 226
7.2.5 Association of South East Asian Nations (ASEAN) 228
7.2.6 Arab Court of Human Rights? 230
7.3 Remedies for individuals 230
Further reading 237

8 Extending the duties to protect and respect human rights: non-State actors 239
8.1 Human rights education and training 240
8.2 Non-governmental organisations 243
8.2.1 What are NGOs? 244
8.2.1.1 List of principal international human rights NGOs 244
8.2.1.2 Case study: anti-slavery 244
8.2.2 How do NGOs contribute to human rights? 245
8.2.2.1 Generating awareness of human rights 248
8.2.2.2 Contributing to international standard-setting 248
8.2.2.3 Contributing towards work of treaty monitoring bodies 249
8.2.2.4 Case study: CERD 249
8.2.2.5 Universal periodic review before the UN Human Rights
Council 249
8.2.2.6 Prompting the implementation of human rights 250
8.3 Business and multinational corporations 251
8.3.1 Guiding principles on business and human rights 251
8.4 Educators, lawyers and individuals 277
8.4.1 Education 279
Further reading 283

9 Children 285
9.1 Children as humans 286
9.1.1 Why separate rights? 288
9.1.2 Secondary violations of rights 293
9.2 Tabulating children’s rights 294
9.3 The United Nations Convention on the Rights of the Child 298
9.3.1 What is the applicable definition of a child? 299
9.4 Governing principles 300
9.4.1 ‘The best interests of the child’ 301
9.4.2 ‘Participation’ of the child in decisions affecting him or her 302
9.4.3 Provision of a safe environment and basic needs 305
9.4.3.1 Family rights 307
9.4.3.2 Child abduction 310
9.4.4 Protecting the child from harm 311
9.4.4.1 Child labour 317
9.5 Regional instruments 320
9.5.1 African Charter on the Rights and Welfare of the Child 321
Further reading 321

10 Human rights defenders 323

10.1 Who are human rights defenders? 324
10.2 What do human rights defenders do? 325
10.2.1 Case Study: Business and Human Rights 328
10.2.2 Risks and Dangers 328
xii | DETAILED CONTENTS

10.3 Rights of human rights defenders 330

10.4 Duties of human rights defenders 334
10.5 International Protection Framework 335
10.5.1 Special Rapporteur on the situation of human rights defenders 335
10.5.2 Treaty Bodies 339
10.6 Regional framework 342
10.6.1 Europe 342
10.6.2 Latin America and the Caribbean 343
10.6.3 Africa 345
Further reading 346

11 Indigenous peoples 347

11.1 Towards recognition of indigenous rights 348
11.1.1 ILO successes in evincing indigenous rights 350
11.2 Invoking minority rights 351
11.2.1 Language rights 358
11.2.2 Religious rights 360
11.2.3 Other 362
11.2.4 International decade of the world’s indigenous people,
towards legal rights 362
11.2.5 Regional initiatives 366
11.3 The scope of ‘indigenous people’ 367
11.4 Rights claimed by indigenous people 369
11.5 The right to self-determination 369
11.5.1 Towards autonomy for indigenous peoples 371
11.5.2 Models for autonomy 372
11.5.2.1 Australia 372
11.5.2.2 Canada 373
11.5.3 Recognising cultural autonomy and rights 376
11.6 Land rights 376
11.6.1 Conflicting land rights: pre-existing and new 381
11.6.2 Case study: New Zealand, Maori peoples and the Treaty of Waitangi 381
11.6.3 Establishing native title 383
11.6.4 Land, natural resources and development 388
11.6.5 Restitution or compensation 389
11.7 Cultural rights 391
11.7.1 Cultural genocide? 392
Further reading 392

12 Prisoners, detainees and convicts 395

12.1 Equality before the law 396
12.1.1 Recognition as a person before the law 396
12.1.2 Non-discrimination/equality before the law 397
12.1.3 Case study: women 397
12.2 Arrest 398
12.2.1 Recording detainees 400
12.3 Enforced/involuntary disappearances 401
12.3.1 The international prohibition 401
12.3.2 Duty to investigate disappearances 402
12.3.2.1 Extraordinary rendition 406
12.3.3 The Americas 409
 DETAILED CONTENTS | xiii

12.3.4 Case study 410

12.3.5 Other examples 413
12.4 Detention pending trial 414
12.4.1 Terrorism and derogations 417
12.4.1.1 United States of America detainees in Guantanamo
Bay, Cuba/Bagram, Afghanistan/Kandahar, Afghanistan/
Charleston, USA 417
12.4.1.2 Case study: United Kingdom 418
12.5 Torture and the use of force 419
12.5.1 At arrest 420
12.5.2 Effective investigation of allegations of torture 421
12.5.3 Deaths in custody – Australia and aboriginal deaths in custody 422
12.6 Fair trial 423
12.6.1 Access to a court 426
12.6.2 Independent and fair judiciary 429
12.6.2.1 Judicial appointments 433
12.6.2.2 Termination of judicial appointment 433
12.6.3 Trial in absentia 433
12.7 Detention after conviction 434
12.7.1 Prisoners right to vote 440
12.7.1.1 Case study: prisoner voting in the UK 441
12.8 Juveniles in detention and court 443
12.8.1 Case study: ‘child killers’ 446
12.9 Capital punishment 448
12.9.1 Case study: ‘death row’ 451
12.9.2 Moves towards abolition of the death penalty 452
Further reading 454

13 Refugees, stateless persons and internally displaced persons 455

13.1 Who is a refugee? 458
13.1.1 Definition of refugee 458
13.2 Procedures for determining refugee status 463
13.2.1 Children 466
13.2.2 Procedural safeguards 467
13.3 Termination of refugee status 469
13.4 Regional instruments and criteria for determining refugee status
and addressing refugee rights 476
13.4.1 The Americas 476
13.4.2 Africa 478
13.4.3 Europe 480
13.4.4 Other regions 480
13.4.4.1 The Middle East and Asia 480
13.5 Rights of refugees 481
13.5.1 Refugees as aliens 483
13.5.2 Equality of treatment and the need for subsistence 484
13.5.3 Increasing vulnerability – conflict situations 486
13.6 Granting asylum to refugees and others 489
13.7 Internally displaced persons 491
13.8 High Commissioner for Refugees 491
13.9 Stateless persons 493
Further reading 502
xiv | DETAILED CONTENTS

14 Women 503
14.1 Leading the way: the International Labour Organisation 504
14.2 Equality 506
14.2.1 Non-discrimination 507
14.2.2 Equality in law – litigating the right 508
14.2.2.1 Human Rights Committee – Communications 510
14.2.2.2 European Court of Justice – preliminary rulings 512
14.2.3 Towards equality of rights between men and women 514
14.2.4 Affirmative action/positive discrimination 515
14.2.4.1 European Court of Justice – case law 516
14.2.5 Case study: women and political participation 519
14.3 Tabulating women’s rights 521
14.3.1 Monitoring progress towards the Beijing goals and UN women 522
14.3.2 A positive obligation on States? 524
14.4 Protection from persecution: trafficking, exploitation 524
14.5 Violence against women 530
14.5.1 Committee on elimination of discrimination against
women – communications 534
14.5.2 Regional provision in the Americas 537
14.5.3 The European agenda 540
14.5.4 Investigating the problem – recent UN developments 541
14.5.4.1 World Health Organisation report 543
14.6 Family rights: marriage and children 544
14.6.1 The right to enter freely into marriage 544
14.6.1.1 The right to marry 545
14.6.1.2 Minimum age for marriage 546
14.6.1.3 Consent to marriage 546
14.6.2 A correlative right to divorce and remarry? 547
14.6.3 Reproductive rights 547
14.6.3.1 Children and women – rights intertwined? 547
14.6.3.2 A right to abortion? 548
14.7 Regional instruments and approaches to women’s rights 549
14.7.1 Africa 549
Further reading 551

15 Emerging issues and challenges 553

15.1 Human rights and the sustainable development goals 554
15.1.1 The UN Millennium Development Goals 554
15.1.2 Towards the UN Sustainable Development Goals 556
15.1.3 The Sustainable Development Goals – SDGs 560
15.1.4 Human rights and the SDGs 562
15.2 Resource mobilisation, human rights and the SDGs 565
15.2.1 The ‘obligation to take steps’ and ‘progressive realisation’ 566
15.2.2 What does this mean for States? 567
15.2.2.1 What are ‘resources’? 568
15.2.2.3 The obligation to devote maximum available resources 569
15.2.2.4 The non-retrogression obligation 569
15.3 Human rights and climate change 572
15.3.1 Linking human rights and climate change 572
15.3.2 Responding to human rights and climate change 573
Further reading 579

Index 581
Preface

This fourth edition is completely updated but retains the same basic structure as the previous edi-
tions. The book tries to provide a practical introduction to international human rights, relying on
many sources freely available online, as well as providing indicative further reading from materials
found in many academic libraries as well as online. The areas chosen for more detailed study in
the second half of the book are meant to be indicative of the reality of the human rights system,
not exhaustive. Each poses challenges with some of their rights and freedoms regularly denied and
infringed. States remain the primary obligees, the duty bearers, under international (and regional)
human rights law but rights holders also have a role to play, claiming their rights and contributing
towards an environment based on tolerance, understanding of others and respect for everyone,
everywhere.
With respect to the preparation of this edition, specific thanks are due. First, given the short
time afforded to me to prepare the electronic manuscript, thank you to Dr Sean Molloy who ably
and quickly managed a swathe of updates helping me immensely. Any residual errors remain mine.
Second, thank you to those at Routledge who managed to navigate the UN and other approval
systems for the materials extracted in these covers. Third, thank you to all the reviewers and other
people who have taken the time to share their views on previous editions. This includes those I
have had the privilege of teaching or training over the years.
This book is intended to contribute towards human rights education and capacity building.
No book on human rights can cover everything so it is hoped this text offers a foundation of
knowledge of human rights and key primary sources which can be developed independently as the
years go by. It is therefore dedicated to everyone who studies, who is interested in learning about,
and who works with human rights.
To the extent possible, I have tried to ensure the materials are accurate as of 4 June 2019.
Table of cases

A Arias Leiva v Colombia, Human Rights

A and Others v United Kingdom Application Committee communication No. 2537/2015
3455/05, Judgment of the Grand Chamber UN Doc. CCPR/C/123/D/2537/2015
19 February 2009 . . . 88 . . . 415
A v Australia Communication No 560/1993, Artico v Italy Application 6694/74, Series A
UN Doc CCPR/C/59/D/560/1993, No 37 (1981) 3 EHRR 1; Series A, No. 47
HRC . . . 487 [1980] ECHR 4 . . . 428
A v United Kingdom Application 25599/94 A-T v Hungary Communication No 2/2003,
(1999) 27 EHRR 611; [1998] ECHR 85; UN Doc CEDAW/C/32/D/2/2003,
(1998) Vol. 1998-VI, No. 90 . . . 20, 22, 58, CEDAW . . . 509, 534
223 Ato del Avellanal v Peru Communication
Abdulaziz, Cabales & Balkandali v United No202/1986, UN Docs CCPR/
Kingdom Applications 9214/80; 9473/81; C/34/D/202/1986; Supp No 40 A/44/40,
9474/81, Series A No 94 (1985) 7 EHRR HRC . . . 397, 398, 510
471; [1985] ECHR 7 . . . 53, 512 Attorney-General v DeKeyser’s Royal Hotel Ltd
Advisory Opinion on the Legality of the Threat [1920] AC 508, HL . . . 387
or Use of Nuclear Weapons [1996] ICJ Reps Attorney-General for New South Wales v
257 . . . 16 Brown (1847) 1 Legge 312 . . . 381
Advisory Opinion on Western Sahara, Aumeeruddy-Cziffra & Ors v Mauritius
International Court of Justice Reps 1975, Communication No 35/1978, UN Doc
39 . . . 371 CCPR/C/12/D/35/1978, HRC . . . 511
Airey v Ireland Application 6289/73, Series A, Australian Conservation Foundation (ACF) Inc
No 32 (1979) 2 EHRR 305; [1979] ECHR 3 v Commonwealth (1980) 146 CLR 493; 28
. . . 428 ALR 257 . . . 386
Aksoy v Turkey Application 21987/93 (1997)
23 EHHR 533; [1996] ECHR 68 . . . 88, B
90 Bahamonde v Equatorial Guinea
Al-Saadoon and Mufdhi v the United Kingdom Communication No 468/1991, UN Doc
((dec.), no. 61498/08, §§ 86–89, 30 June CCPR/C/49/D/468/1991, HRC . . . 431
2009) . . . 57 Bakhtiyari v Australia Communication
Al-Skeini and Others v the United Kingdom No 1069/2002, UN Doc CCPR/
Application no. 55721/077 July 2011 (Grand C/79/D/1069/2002, HRC . . . 461
Chamber) . . . 55 Barcelona Traction Light & Power Co case see
Aliev v Ukraine Communication No 781/1997, Belgium v Spain
UN Doc CCPR/C/78/D/781/1997, HRC Barrios Altos Case, see Chumbipuma Aguirre &
. . . 428 Ors v Peru Ser C
Angela González Carreño v Spain, Belgian Linguistics v Belgium (No 2)
Communication 47/20, UN Doc. CEDAW/ Applications 1474/62; 1691/62; 1769/63;
C/58/D/47/2012 (2014) . . . 212, 232, 536 1994/63; 2126/64; 1677/62, Series A No
xviii | TABLE OF CASES

6 (1968) 1 EHRR 252; [1968] ECHR 3; Chumbipuma Aguirre & Ors v Peru Ser C, No
[1967] ECHR 1 . . . 47 75, Inter-AmCHR (2001) (‘Barrios Altos
Belgium v Spain [1970] ICJ Reps 32 (Barcelona case’) . . . 226
Traction Light & Power Co case) . . . 16 City of Montreal v Montreal Harbour Com’rs
B-J v Germany Communication No 1/2003 [1926] AC 299; (1926) 1 DLR 840; 47 Que
. . . 509 KB 163 . . . 387
Borisenco v Hungary Communication Colombian Constitutional Court, T- 974/10
No 852/1999, UN Doc CCPR/ (2010) or T-841 (2011) . . . 60
C/76/D/852/1999, HRC . . . 400, 428 Commission v France C-312/86 [1988] ECR
Brannigan & McBride v United Kingdom 6315; (1989) 1 CMLR 408 . . . 517
Applications 14553/89; 14554/89, Series Cyprus v Turkey Application 25781/94 (1997)
A No 258-B (1993) 17 EHRR 539; [1993] 23 EHRR 244; [2001] ECHR 331 . . . 413
ECHR 21 . . . 87, 88, 91, 418
British Columbia O. 25, r.5 (M.R. 285) . . . 388 D
Broeks v Netherlands Communication D v United Kingdom Application 30240/96
No 172/1984, UN Doc CCPR/ (1997) 24 EHRR 423; [1997] ECHR 25
C/29/D/172/1984, HRC . . . 397, 398, 512 . . . 46, 55
Brogan & Ors v United Kingdom Applications Dahlab v Switzerland Application 42393/98
11209/84; 11234/84; 11266/84, Series A [2001] ECHR . . . 46
No 145-B (1988) 11 EHRR 117; [1988] Dann & Dann v United States of America
ECHR 24 . . . 87, 91, 418 (2002) Case 11.140, Report No 75/02,
Brown v Rentokil C-394/96 [1998] ECR Inter-AmCtHR (2002) . . . 143, 187
I-4185; ICR 790; IRLR 445 . . . 513 De Wilde, Ooms & Versyp (‘vagrancy’) v
Burgos v Uruguay Communication Belgium (merits) Applications 2832/66;
No 52/1979, UN Doc CCPR/ 2835/66; 2899/66, Series A No 12 (1971) 1
C/13/D/52/1979, HRC . . . 232, 233 EHRR 373; [1970] ECHR 2; [1971] ECHR
Burmah Oil Co (Burmah Trading) Ltd v Lord 1; [1972] ECHR 1 . . . 47
Advocate [1965] AC 75; (1965) 2 All ER Dekker v Stichting Vormingscentrum voor Jong
248; 1964 SC (HL) . . . . . . 387 Volwassenen (VJV-Centrum) Plus C-177/88
[1990] ECR I-3941; [1992] ICR 325, 329
C . . . 513
C (a minor) v Director of Public Prosecutions Delcourt judgment of 17 January 1970, Series A
(DPP) [1996] AC 1; 2 All ER 43; [1995] no. 12, pp. 14–15] . . . 427
Crim LR 801, HL . . . 446 Diergaardt v Namibia Communication
Calder v Attorney-General of British Columbia No 760/1997, UN Doc CCPR/
[1973] 34 DLR (3d) 145; SCR 313; 4 WWR C/69/D/760/1996, HRC . . . 358
1 . . . 384, 387 Doe & Ors v Unocal Corp 963 F Supp 880
Campbell and Cosans v United Kingdom App (CD Cal 1997); dismissed 110 F Supp 2d
No 7511/76, A/48, [1982] ECHR 1; (1982) 1294 (CD Cal 2000); remanded 395 F 3d
4 EHRR 293 . . . 223 932 (9th Cir Cal 2002); 2002 WL 31063976
Canadian Foundation for Children,Youth and (9th Cir. (Cal.)), September 18 2002; vacated,
the Law v Canada [2004] 1 SCR 76 . . . 21 rehearing, en banc, granted 395 F 3d 978
Case concerning East Timor, see Portugal v (9th Cir 2003); affirmed 248 F 3d 915 (9th
Australia Cir Cal 2001) . . . 258
Chameli Singh & Others v State of Uttar Douglas Thomas v United States Case 12.240,
Pradesh (1996) 2 SCC 549 . . . 60 Report No 100/03, Inter-AmCtHR (2003)
Cherokee Nation v State of Georgia 30 US (5 . . . 187
Pet) 1; 8 L Ed 25 (1831) . . . 387
 TABLE OF CASES | xix

E Handyside v United Kingdom Application

Engel & Ors v Netherlands Applications 5493/72 (1979–80) 1 EHRR 737; [1976]
5100/71; 5101/71; 5102/71, Series A No 22 ECHR 5 . . . 46
[1976] ECHR 3 & 4 . . . 47 Hirst (No. 2) v United Kingdom 6 October
2005 (Grand Chamber) . . . 441
F HLR v France Application 24573/94 (1997) 26
F v Switzerland Application 11329/85, Series EHRR 29; [1997] ECHR 23 . . . 20
A No 128 (1987) 10 EHRR 411; [1987]
ECHR 32 . . . 547 I
Filartiga v Pena-Irala 630 F 2d 876 (2nd Cir Idewu Inasa v Oshodi (1934) AC 99 . . . 386
1980) . . . 258 Ireland v United Kingdom Application 5310/71,
Francis Coralie Mullin v The Administrator, Series A No 25 (1978) 2 EHRR 25; [1978]
Union Territory of Delhi and Others AIR ECHR 1 . . . 87, 88, 91
1981 SC 746, (1981) 2 SCR 516 . . . 60
J
G JI v Finland communication 103/2016 . . . 536
Georgia v Russian Federation (Case Concerning John Doe & Ors v Unocal Corp, see Doe & Ors
Application of the International Convention v Unocal Corp
on the Elimination of All Forms of Racial Johnson v McIntosh 21 US (8 Wheat) 543; 5 L Ed
Discrimination) 15 October General List 681 (1823); 1823 US LEXIS 293 . . . 385
No. 140 . . . 115, 116 Johnston v Chief Constable of the Royal Ulster
Gerhardy v Brown (1985) 59 Australian Law Constabulary C-222/84 [1986] ECR 1651;
Reports 311 . . . 372 [1987] QB 129; [1986] 3 WLR 1038; [1987]
Golder v United Kingdom Application 4451/70, ICR 83; (1986) 3 All ER 135 . . . 517
Series A No 18 (1975) 1 EHRR 524; [1975] Johnston v Ireland Application 9697/82, Series A
ECHR 1 . . . 47, 426 No 112 (1986) 9 EHRR 203; [1986] ECHR
González Carreño v Spain, see Angela González 17 . . . 547
Carreño v Spain Joint Tribal Council of the Passamaquoddy Tribe
Goodwin and I v United Kingdom Application v Morton 528 Fed 2d 370 (1st Cir 1975)
28957/95 (2002) 35 EHHR; [2002] ECHR . . . 387
588 . . . 544 Joslin v New Zealand, Communication
Guedson v France Communication No 902/1999, UN Doc. CCPR/ C/75/D/902
219/1986: France, 23/08/90, UN Doc . . . 544
CCPR/C/39/D/219/1986, HRC . . . 84,
360 K
Guerin v The Queen (1984) 13 DLR (4th) 321 Kalanke v Freie Hansestadt Bremen C-450/93
. . . 386 [1995] ECR I-3051; [1996] ICR 314 . . . 516
Karker v France Communication No 833/1998,
H UN Doc CCPR/C/70/D/833/1998, HRC
Habermann-Beltermann v Arbeiterwohlfahrt . . . 475
Bezirksverband C-421/92 [1994] ECR KH v Denmark, Human Rights Committee
I-1657; IRLR 364 communication No. 2423/2014, 7 September
Hamdan v Rumsfeld 548 US 557 (2006) US 2018 . . . 471
Supreme Court 29 June 2006 . . . 92, 513 Kiobel v Royal Dutch Petroleum Company
Hamlet of Baker Lake v Minister of Indian (569 U.S. (2013); (133 S. Ct. 1659 (2013);
Affairs and Northern Development [1980] 1 621 F.3d 111 (2d Cir. 2010)) . . . 259, 260
FC 518; 5 WWR 193; 107 DLR (3d) 513
. . . 391
xx | TABLE OF CASES

Kitok v Sweden Communication No 197/1985, Minister of Health and Others v Treatment

UN Doc CCPR/C/33/D/197/1985, HRC Action Campaign and Others, (No 1), [2002]
. . . 356, 368 ZACC 16 . . . 60
Morales de Sierra v Guatemala Case 11.625, Report
No 4/01, Inter-AmCtHR (2001) . . . 511, 544
L Mutombo v Switzerland Communication No
Lawless v Ireland (No 3) Application 332/57, 13/1993, UN Docs CAT/C/12/D/13/1993;
Series A No 3 (1961) 1 EHRR 15; [1961] A/49/44 at 45 (1994), CAT . . . 55
ECHR 2 . . . 88, 91, 427
Loayza-Tamayo v Peru Ser C, No 33, Inter-
N
AmCHR (1997) . . . 226
N v United Kingdom Application 26565/05, Grand
Lovelace v Canada Communication No
Chamber Judgment of 27 May 2008 . . . 55
24/1977 (1) and (2), UN Docs CCPR/
Neumeister v Austria Application 1936/63,
C/13/D/24/1977; Supp No 40 A/36/40
Series A No 8 (1968) 1 EHRR 191; [1968]
(1981), HRC . . . 352, 357
ECHR 2 . . . 48
Lubicon Lake Band (Ominayak) v Canada
New South Wales v Commonwealth (1975) 135
Communication No 167/1984, UN Doc
Commonwealth Law Reports 337 . . . 381
CCPR/C/38/D/167/1984, HRC . . . 354,
Newcastle Breweries Ltd v The King (1920) 1
356, 357, 388
KB 854 . . . 387
Nortier v Netherlands Application 13924/88,
M Series A No 267 (1993) 17 EHRR 273;
Maalem v Uzbekistan, Human Rights [1993] ECHR 34 . . . 447
Committee communication No. 2371/2014,
4 September 2018 . . . 473 O
Mabo & Ors v State of Queensland (No 2) Ominayak v Canada, see Lubicon Lake Band v
(1991-1992) 175 CLR 1; 107 ALR 1 Canada
. . . 383, 387, 391 Onus & Anor v Alcoa of Australia Ltd (1981)
Maclaine Watson & Co Ltd v Department of 149 CLR 27 . . . 386
Trade & Industry (1989) 3 All ER 523;
(1990) 2 AC 418, HL . . . P
Madoui (Zohra) v Algeria UN Doc. CCPR/ Palestine v Israel . . . 206
C/94/D/1495/2006 . . . 406 Paton v United Kingdom Application 8416/78,
Mahuika v New Zealand Communication [1981] 3 EHRR 408 . . . 548
No 547/1993, UN Doc CCPR/ Portugal v Australia [1995] ICJ Reps 102 (‘Case
C/70/D/547/1993, HRC . . . 356, 357 concerning East Timor’) . . . 16
Manitoba Language Rights Reference [1985] Pratt & Morgan v Jamaica Communication Nos
1 SCR 721 . . . 374 210/1986; 225/1987, UN Doc CCPR/
Mary and Carrie Dann v United States, see Dann C/35/D/210/1986, HRC . . . 451
& Dann v United States of America Presbyterian Church of Sudan v Talisman Energy
Matznetter v Austria Application 2178/64, (582 F.3d 244 (2d Cir. 2009) . . . 259
Series A No 10 (1969) 1 EHRR 198; [1969]
ECHR 1 . . . 48 Q
Mbenge v Republic of Congo Communication Qatar v Saudi Arabia . . . 206
No 16/1977, UN Doc CCPR/ Qatar v United Arab Emirates (Application
C/18/D/16/1977 (1983), HRC . . . 433 Of The International Convention On
McCann and Others v United Kingdom [1995] The Elimination Of All Forms Of Racial
ECHR 31, Series A, No 324, Application Discrimination - pending) . . . 116, 206
No 18984/91 (1995) . . . 237 Quebec Secession Reference [1998] 2 SCR 217
Mehmet Hasan Altan v Turkey . . . 88 . . . 374
 TABLE OF CASES | xxi

R Stogmuller v Austria Application 1602/62, Series

R (Bancoult) v Secretary of State for Foreign and A No 9 (1969) 1 EHRR 155; [1969] ECHR 2
Commonwealth Affairs [2008] UKHL 61 . . . 48
. . . 378 Stubbings & Ors v United Kingdom Applications
R v Secretary of State for Education and 22083/93; 22095/93 (1996) 23 EHRR 213;
Employment & Ors, ex p Williamson [2005] [1996] ECHR 44 . . . 20
UKHL 15 . . . 21
R v Symonds (1847) NZPCC 387, SC . . . 385, T
391 T & V v United Kingdom Applications
Ringeisen v Austria (merits) Application 24724/94; 24888/94 Series A No 9 (1999)
2614/65, Series A No 13 (1971) 1 EHRR 30 EHRR 121; [1999] ECHR 170–1
455; [1971] ECHR 2 . . . 48 . . . 315, 446
Roberto Moreno Ramos v United States Case Tanistry, Case of (1608) Davis 28; 80 ER 516;
12.430, Report No 1/05, Inter-AmCtHR 4th ed Dublin (1762) . . . 385
(2005) . . . 187 Tee-Hit-Ton Indians v United States 348 US 272;
75 S Ct 313; 99 L Ed 314 (1955) . . . 387
S Ternovsky v Hungary Application 67545/09
[2010] ECHR 208 . . . 549
S v Daniels (1991) 2 SA Criminal Law Reports
Tijani (Amodu) . . . 385
403 . . . 18
Tyrer v United Kingdom Application 5856/72,
S v Staggie (1990) 1 SA Criminal Law Reports
Series A No 26 (1978) 2 EHRR 1; [1978]
669 . . . 18
ECHR 2 . . . 18, 223
S v Williams et al (1995) 3 SA 362
(Constitutional Court) . . . 21
S.A.S. v France, Application 42835/11 [2014]
U
ECHR 695 . . . 45 United States v Santa Fe Pacific Railroad Co 314
Sahin Alpay v Turkey (Application 44774/98) US 339 (1941) . . . 387
[2004] ECtHR/Grand Chamber [2005]
. . . 37, 46, 88 V
St Catherine’s Milling & Lumber Co v R (1887) Velásquez Rodríguez & Ors v Honduras Ser C,
13 SCR 577; 4 Cart BNA 127; affirmed No 4, Inter-AmCtHR (1988); Ser C, No 7,
(1888) 14 AC 46, PC . . . 385, 386 Inter-AmCtHR (1990) . . . 59, 233, 409, 410
Sarei v Rio Tinto (221 F. Supp. 2d 1116 (C.D. Vo v France (2004) (Application 53924/00)
Cal. 2002); 671 F. 3d 736 (9th Cir. 2011)) . . . 548
. . . 259 Vos v Netherlands Communication No 218/1986,
Selmouni v France Application 25803/94 (1999) UN Docs CCPR/ C/35/D/218/1986; Supp
29 EHRR 403; [1999] ECHR 66 . . . 235 No 40 A/44/40, HRC . . . 512
Sharma (Yasoda ) v Nepal UN Doc. CCPR/
C/94/D/1469/2006 . . . 406 W
Singh Bhinder v Canada, Communication Webb v EMO Air Cargo C-32/93 [1994] ECR
208/1986 UN Doc CCPR/ I-3567; ICR 770; IRLR 482 . . . 512
C/37/D/208/1986 . . . 361 Wemhoff v Germany Application 2122/64,
Soering v United Kingdom Application Series A No 7 (1968) 1 EHRR 55; [1968]
14038/88 (1989) II EHRR 439; [1989] ECHR 2 . . . 48, 427
ECHR 14 . . . 53-5, 451 Wiwa v Royal Dutch Shell Petroleum Company
Southern Rhodesia, In re [1919] AC 211, PC (226 F.3d 88 (2d Cir. 2000), at 96) . . . 259
. . . 384 World Organisation against Torture v Greece,
Stanford v Kentucky 492 US 361 (1989) . . . 448 Complaint 17/2003, 7 December 2004 . . . 223
xxii | TABLE OF CASES

X Y
X v Netherlands Communication No 36/1995, Yogogombaye v Republic of Senegal App.
UN Doc C/16/D (1995), CAT . . . 55 No. 001/2008, Judgment (Afr. Ct. Hum. &
X & Y v Netherlands Series A No 91 (1985) 8 Peoples’ Rts. Dec. 15, 2009) . . . 228
EHRR 235 . . . 20 Yrusta v Argentina, Committee on Enforced
Disappearances Communication No. 1/2013
UN Doc. CED/C/10/D/1/2013 (2016)
. . . 405
Table of legislation

Australia Colombia
Aboriginal Land Rights (Northern Territory) Constitution
Act 1976 . . . 373 Art 235 . . . 416
s 21(1) . . . 373 Criminal Code
s 21(3) . . . 373 Art 32(10)(1) . . . 416
Migration Act
s 417 . . . 462
Migration Amendment Act 1992 . . . 468 Croatia
Modern Slavery Act 2018 . . . 262
Native Title Act 1993 . . . 387 Republic Constitution, 6 July 2010 . . . 490
Pitjantjatjara Land Rights Act 1981 . . . 372 Art 33 . . . 490
Queensland Coast Islands Act 1879 . . . 383
Race Discrimination Act . . . 372
European Union
Bosnia and Herzegovina Charter of Fundamental Rights of the European
Union 2000 . . . 34, 139, 140, 142, 302,
Federation Constitution 18 March 1994 . . . 490 483
Art 2 . . . 490 Art 19 . . . 483
Art 21 . . . 12
Art 21(1) . . . 34
Cambodia Art 24 . . . 302
Council of Europe Charter on Education for
Cambodian Criminal Code Democratic Citizenship and Human
Art 437 bis . . . 250 Rights Education (2010) . . . 240
Council of Europe Committee of Ministers
Resolution 99/50 (1999) . . . 128
Canada Art 1-Art 3 . . . 128
Art 4-Art 8 . . . 129
Canadian Charter of Rights and Freedoms . . Art 3 . . . 128
. 21 Directive 76/207/EEC (the Equal Treatment
s 7 . . . 21 Directive) . . . 517
s 12 . . . 21 Art 1(1) . . . 517
s 15 . . . 21 Art 2(1) . . . 517
Constitution Act 1982 (‘Constitution of Art 2(3) . . . 513
Canada’) . . . 374 Art 2(4) . . . 517-9
Criminal Code Directive 89/391/EEC (the Health and Safety
s 43 . . . 21 Framework Directive)
Indian Act . . . 352, 353 Art 16(1) . . . 513
xxiv | TABLE OF LEGISLATION

Directive 92/85/EEC (the Health and Safety of Art 13 . . . 142

Pregnant Workers Directive) Regulation 343/2003 on asylum applications
Art 10 . . . 513 2003 . . . 464-6
EU Charter of Fundamental Rights, 2009 Ch III . . . 464
. . . 440 Art 2 . . . 465
Art 4 . . . 480 Art 3 . . . 464
Art 40 . . . 440 Art 3(1) . . . 465
EU Regulation No. 604/2013/EU of the Art 4 . . . 465
European Parliament and of the Council Art 20 . . . 465
of 26 June 2013 (Dublin Regulation)
. . . 480
Ch II-Ch III . . . 480 France
Art 3 . . . 480
European Charter for Regional and Minority Constitution of the French Republic 1958
Languages (Council of Europe) 1992 . . . 83
. . . 37, 304, 362 Art 2 . . . 83, 84
European Social Charter 1961 . . . 45, 129, 222 Declaration of the Rights of Man and the
European Social Charter (Revised) 1996 . . . 25, Citizen 1789 . . . 60
45, 129, 131, 222, 223 Art 7 . . . 397
Art 17 . . . 19, 223 Law no. 2010–1192 . . . 45
Art 25 . . . 129
Art 26-Art 29 . . . 130
Art 27(2) . . . 130 Guatamala
Art 21 . . . 131
Protocol providing for a System on Collective Civil Code . . . 511
Complaints 1998 . . . 130
Art 1 . . . 130
Art 1(b) . . . 131 Kosovo
Art 2-Art 3 . . . 131
Art 2 . . . 131 Kosovo Constitution
Art 10 . . . 131 Art 162 . . . 181
Art 13 . . . 131 Law on Specialist Chambers and Specialist
European Union Guidelines on Human Rights Prosecutor’s Office . . . 181
Defenders 2004 . . . 325, 342
European Union Guidelines on Human Rights
Defenders 2008 . . . 327 Honduras
Regulation 168/2007 establishing European
Union Agency for Fundamental Rights Law of the National Institute of Social Security
. . . 140 for Teachers
Art 2-Art 4 . . . 140 Art 69 . . . 234
Art 4(1)(d) . . . 141
Art 6 . . . 141
Art 6(2) . . . 140 Mauritius
Art 8-Art 10 . . . 142
Art 10(1) . . . 142 1977 Laws . . . 511, 512
Art 12 . . . 142 Constitution
Art 12(6)(a) . . . 142 s 16 . . . 512
 TABLE OF LEGISLATION | xxv

Montenegro South Africa

Constitution, 25 October 2007 . . . 491 Constitution of the Republic of South Africa
Art 44 . . . 491 (Bill of Rights) 1996 . . . 32, 321
s 8(2) . . . 32
s 28(2) . . . 302
Namibia s 36 . . . 32
s 36(1) . . . 32
Rehoboth Self-Government Act No 56 of 1976
. . . 359
Turkey
Netherlands Criminal Code
Art 135(a) . . . 92
Civil Code Art 243 . . . 92
Art 84-Art 85 . . . 398
Unemployment Benefits Act (WWV)
s 13(1)(1) . . . 398 United Kingdom
Anti-terrorism, Crime and Security Act 2001
New Zealand Armed Forces Act 2006 . . . 441
Asylum and Immigration (Treatment of
Treaty of Waitangi 1840 . . . 357, 376, 381, 389 Claimants, etc.) Act 2004
Art 1-Art 3 . . . 382, 383 s 4 . . . 262
Treaty of Waitangi Act 1975 . . . 383 Children and Young Persons Act 1933
s 6 . . . 383 s 50 . . . 446
Treaty of Waitangi (Fisheries Claims) Settlement Children and Young Persons Act 1963
Act 1992 . . . 357, 358 s 16(1) . . . 446
Court of Session Act 1988
s 45 . . . 261
Peru Crime and Disorder Act 1998
s 34 . . . 446
Civil Code Criminal Justice and Licensing (Scotland) Act
Art 168 . . . 510 2010 (asp13)
Constitution . . . 510 s 47 . . . 262
Criminal Justice (Scotland) Act 2003 (asp7)
s 22 . . . 262
Sierra Leone Employment Protection (Consolidation) Act
1978 . . . 513
Criminal Procedure Act 1965 . . . 178
Human Rights Act 1998 . . . 279, 321
Malicious Damage Act, 1861 . . . 179
s 4 . . . 441
s 2 . . . 179
Human Rights Act 1998 (Designated
s 5 . . . 179
Derogation) Order 2001 SI 2001/3644
s 6 . . . 179
. . . 88
Prevention of Cruelty to Children Act, 1926
Human Trafficking and Exploitation (Criminal
(Cap. 31) . . . 179
Justice and Support for Victims) Act
s 6 . . . 179
(Northern Ireland) 2015 (c.2 (N.I.)) . . .
s 7 . . . 179
262, 529
s 12 . . . 179
s 1 . . . 261
xxvi | TABLE OF LEGISLATION

s 2 . . . 261 Representation of the People Act 1983 . . . 441,

s 4 . . . 261 443
Human Trafficking and Exploitation (Scotland) s 3 . . . 441
Act 2015 . . . 529 Representation of the People Act 2000 . . . 443
Limited Partnerships Act 1907 . . . 261 Terrorism Act 2005 . . . 89
M1Prison Act 1952 . . . 441
Modern Slavery Act 2015 . . . 260, 262, 529
Pt 6 . . . 260 United States of America
s 1 . . . 261
s 2 . . . 261 Alaska Native Settlement Claim Act 1971
s 4 . . . 261 . . . 389
s 14 . . . 262 s 1601 . . . 389
s 16 . . . 262 s 1602 . . . 390
s 54(2) . . . 260 s 1604 . . . 391
s 54(2)(b) . . . 260 s 1605 . . . 390
Partnership Act 1890 . . . 261 s 1606 . . . 391
Police and Criminal Evidence Act (PACE) 1984 s 1608 . . . 390
. . . 419 s 1610 . . . 390
s 5(7)(b) . . . 419 s 1615 . . . 390
s 5(8) . . . 419 s 1619 . . . 391
Police and Criminal Evidence (Northern s 7421-s 7438 . . . 389
Ireland) Order 1989 (S.I. 1989/1341 Alien Tort (Claims) Act 1789 . . . 258
(N.I. 12) . . . 419 s 1350 . . . 258
Political Parties, Elections and Referendums Act Bill of Rights . . . 60
2000 . . . 443 Declaration of Independence 1776 . . . 60
Prevention of Terrorism (Temporary Provisions) Public Law 89-136 . . . 390
Act 1974 . . . 418 Public Works and Economic Development Act
Art 7 . . . 418 of 1965, as amended [42 U.S.C. 3121
Art 1 . . . 418 et seq.] . . . 390
Art 3 . . . 418
Prevention of Terrorism Act 2005 . . . 418, 419
s 5 . . . 419 Venezuela
Prisons (Scotland) Act 1952 . . . 441
Prison Act (Northern Ireland) 1953 . . . 441 Republic Constitution January 16, 1961 . . . 491
Art 116 . . . 491
Table of treaties and instruments

A
African Charter on Human and People’s Rights 1981
(AfCHPR) (Banjul Charter) . . . . . . . . . . . . . . . . . . 5, 9-12, 32, 48-51, 86, 89, 125, 184, 191,
226-8, 244, 290, 321, 345, 388, 391, 509
Art 2-Art 5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 430
Art 8-Art 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 50
Art 13-Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Art 16-Art 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Art 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Art 19-Art 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Art 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50, 381
Art 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Art 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Art 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 310
Ch II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Art 27-Art 29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Art 30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226
Art 45 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226
Art 45(1)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 214
Art 46 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 214, 227
Art 47 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 227
Art 55-Art 57 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Art 58 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228
Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Protocol on establishing an African Court of Human Rights 1998. . . . . . . . . . . . . . . . . . . . 9, 433
Protocol on the Rights of Women in Africa 2000. . . . . . . . . . . . . . . . . . . . . . . . . 509, 545-9, 551
Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 549
Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 550
Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 545
Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 547
Art 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 550
Art 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 550
Art 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 548
Art 14(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 548, 549
Art 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 551
Art 22-Art 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 551
African Charter on Human and People’s Rights 2005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 345, 549
Art 55 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 345
Art 56 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 345
xxviii | TABLE OF TREATIES AND INSTRUMENTS

African Charter on the Rights and Welfare of the Child 1990 . . . . . . . . . . . . 289, 300, 305, 306, 308,
311, 313, 316, 317, 321
Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 300, 306
Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 301, 302, 321
Art 4(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 321
Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 317
Art 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Art 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 306
Art 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 301, 311
Art 21(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 316
Art 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 311
Art 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 311
Art 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 316
Art 31 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 305, 321
Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 289
American Convention on Human Rights, see Inter-American Convention on
Human Rights
American Convention on Territorial Asylum, see Inter-American Convention
on Territorial Asylum
American Convention on the Forced Disappearances of Persons, see Inter-American
Convention on the Forced Disappearances of Persons
American Convention on the Prevention, Punishment and Eradication of Violence
Against Women, see Inter-American Convention on the Prevention,
Punishment and Eradication of Violence Against Women
American Declaration on the Rights and Duties of Man, see Inter-American
Declaration on the Rights and Duties of Man
Arab Charter on Human Rights 2004 . . . . . . . . . . . . . . . . . . . . . . . .11, 32, 144, 147, 228, 238, 449
Art 6-Art 7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 449
Arab Convention on refugees, October 2017 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 480, 481
Arab Convention on Regulating Status of Refugees in the Arab Countries
(League of Arab States (LAS)) 1994 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 480
Ashgabat Declaration (Turkmenistan) 2012. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 481
Association of South East Asian Nations (ASEAN) Charter 2007. . . . . . . . . . . . . . . . . . 144, 146, 228
Ch V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229
Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145
Art 1(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145
Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145
Art 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
Association of South East Asian Nations (ASEAN) Declaration on
Human Rights 2012. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .145, 146, 229
Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229

B
Bangkok Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 481
Banjul Charter, see African Charter on Human and People’s Rights 1981
Beijing Declaration, Fourth World Conference on Women. . . . . . . . . . . . . . . . . . . . . . 521, 522, 542
Platform for Action. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 522, 525, 542, 549
paras 129 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 541
Beijing rules, see United Nations Standard Minimum Rules for the Administration
of Juvenile Justice
 TABLE OF TREATIES AND INSTRUMENTS | xxix

C
Cairo Declaration on Human Rights in Islam. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Caracas Convention, see Inter-American Convention on Territorial Asylum
Cartagena Declaration on Refugees, Colloquium on the International Protection
of Refugees in Central America, Mexico and Panama 1984 . . . . . . . . . . . . . . . . . . . . . . . 478
Charter of Paris for a New Europe 1990 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135
Charter of the Organization of African Unity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 345
Charter of the Organization of American States (OAS) 1948. . . . . . . . . . . . . . . . . . . . . 185, 186, 409
Ch X . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225
Ch XV. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185
Art 106 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185
Art 145 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185
Buenos Aires Protocol amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186, 225
Chicago Convention. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 408
Art 3(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 408
Art 54 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 408
Committee on Economic, Social and Cultural Rights General Comment 14 (2000). . . . . . . . . . . . . .
Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 231
Committee on Human Rights, General Comment 23 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . 351
Committee on the Rights of the Child in General Comment 11 (2009)
(UN Doc. CRC/C/GC/11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 351
Commonwealth of Independent States Convention on Human Rights and
Fundamental Freedoms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Convention against Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment (UN) 1984 . . . . . . . . . . . . 10, 31, 55, 103, 192, 200, 207, 220, 231
Art 2(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
Art 2(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54, 471
Art 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 231
Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Art 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204
Art 20(1)-(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204
Art 20(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204
Art 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204
Art 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207, 328
Art 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204
Optional Protocol . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217-19, 422
Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217
Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217, 218
Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218
Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218, 219
Art 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218
Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218, 219
Art 14-Art 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219
Art 14(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219
Convention against Transnational Organized Crime, see United Nations Convention
against Transnational Organized Crime
Convention for the Protection of All Persons from Enforced
Disappearances 2006. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40, 103, 192, 200, 207, 236, 402,
406, 413, 414, 422, 439
xxx | TABLE OF TREATIES AND INSTRUMENTS

Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 402, 405

Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 402, 403, 405, 413
Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .402, 403, 414
Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 402
Art 4(5)(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 405
Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 402, 414
Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 403
Art 12(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 403, 405
Art 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 403, 405
Art 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 405
Art 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 405
Art 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 404
Art 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 405
Art 24(1)-(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 405
Art 31 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207, 405
Art 31(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 405
Convention for the Suppression of the Traffic in Persons and of the Exploitation
of the Prostitution of Others 1949. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 525
Art 1-Art 4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 525
Convention on Action against Trafficking (CAT) (Council of Europe) 2005 . . . . . . . . . . . . . . . . 528
Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 564
Art 6-Art 7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 528
Convention on Consent to Marry, Minimum Age for Marriage and Registration
for Marriages 1962 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 545
Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 546
Art 1(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 547
Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 546
Convention on Organisation of African Unity Governing the Specific Aspects
of the Refugee Problems in Africa (OAU Convention) 1969 . . . . . . . . . . . . . . . 40, 227, 476,
478, 479, 481
Art X(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 478
Art 1(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 479
Art 1(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 478, 479
Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 479
Convention on Preventing and Combating Violence against Women and Domestic
Violence, see Council of Europe Convention on Preventing and Combating
Violence against Women and Domestic Violence
Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW-United Nations) 1979 . . . . . . . . . . . . . . . . 10, 17, 31, 38, 52-5, 68, 69, 77-82, 103,
192, 197, 200, 206, 207, 213, 236, 296, 504, 507-9,
516, 520, 521, 530, 531, 533, 536, 544, 545, 552, 555
Art 1-Art 5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79, 564
Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54, 78, 508, 530
Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .78, 79, 545
Art 2(a)-(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 535, 536
Art 2(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 564
Art 2(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 508, 531, 535, 536
Art 2(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 508, 531
 TABLE OF TREATIES AND INSTRUMENTS | xxxi

Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54, 55, 79

Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79, 516
Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79, 531, 532, 535
Art 5(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 535, 536, 545
Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 525, 531
Art 7-Art 8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 520
Art 9(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81, 82
Art 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44, 564
Art 10(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 531
Art 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 532, 564
Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44, 532
Art 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 564
Art 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 532
Art 14(2)(g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 564
Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Art 15(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 564
Art 15(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81, 82
Art 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 532, 535, 536, 545
Art 16(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 564
Art 16(1)(c), (d), (g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81, 82
Art 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213
Art 29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206
Art 29(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206
Art 30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Declaration (Reservation) by Jordan. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Declaration (Reservation) by Saudi Arabia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
General Recommendation No 19, 1992 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 530, 535
General Recommendation No 21, 1994 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 535, 544, 545
Optional Protocol 1999. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77, 207, 213, 508, 509, 536
Art 7(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 536
Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213, 214, 509
Art 8.4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 214
Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213, 214
Art 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 214
Art 10(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 214
Art 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Reservation by Egypt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Convention on the Elimination of All Forms of Racial
Discrimination (CERD) 1965. . . . . . . . . . . . . . . . . . . . . . . 10, 17, 38, 68, 94, 103, 115, 192,
200, 202, 204-7, 230, 236, 249
Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230, 231
Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201, 202, 249
Art 9(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201, 249
Art 9(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202
Art 10(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205
Art 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204, 206
Art 11(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205
Art 11(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206
xxxii | TABLE OF TREATIES AND INSTRUMENTS

Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205
Art 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206
Art 13(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206
Art 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207
Art 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
CERD General Recommendation 26 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230
Convention on the Elimination of All Forms of Racial Discrimination (CERD)
Decision /C/64/Dec. 1, 1 May 2004 (1) 64 (Guyana) . . . . . . . . . . . . . . . . . . . . . . . . . . . 249
Convention on the Elimination of All Forms of Racial Discrimination (CERD)
Rules of Procedure 1989 (UN Doc. CERD/C/35/Rev. 3) . . . . . . . . . . . . . . . . . . . . . . . 201
rr 63-65 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201
rr 66-68 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202
r 66(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202
r 68(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202
Convention on the Political Rights of Women 1952. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 519
Art I-Art III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 519
Art IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Convention on the Prevention and Punishment of the Crime of Genocide
(Genocide Convention) 1948 . . . . . . . . . . . . . . . . 71, 72, 74, 75, 77, 115, 182, 207, 392, 448
Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Reservations 1951. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71, 72, 74
Convention on the Prohibition of the Use, Stockpiling, Production and
Transfer of Anti-Personnel Mines and on Their Destruction 1997. . . . . . . . . . . . . . . . . . . 244
Convention on the Protection of the Rights of All Migrant Workers
and Members of their Families 1990 . . . . . . . . . . . . . . . . . . . . . . . 10, 39, 192, 200, 207, 208,
216, 217, 236, 486
Art 74 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204
Art 77 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208
Art 77(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208, 209
Art 77(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208
Art 77(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208
Convention on the Reduction of Statelessness 1961 . . . . . . . . . . . . . . . . . . . . . . . . . . . 498, 500, 501
Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 498
Art 1(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 498, 501
Art 1(1)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 498
Art 1(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 498, 500
Art 1(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 499, 501
Art 1(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 499
Art 2-Art 4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 499
Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 501
Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 501
Art 4(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 499
Art 4(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 499
Art 5-Art 8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 500
Art 7(4)-(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 500
Art 8(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 500, 501
Art 8(2)-(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 501
Art 9-Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 501
 TABLE OF TREATIES AND INSTRUMENTS | xxxiii

Convention on the Rights of Persons with Disabilities (CRPD) . . . . . . . . . . . . . . 69, 192, 198, 199,
236, 248, 298, 313, 566
Art 2(b)-(h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200
Art 4(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 566
Art 4(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 198
Art 8-Art 9. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199
Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 564
Art 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 564
Art 28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 564
Art 32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 564
Art 35 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 198
Art 36 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199
Art 36(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199
Optional Protocol . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207, 313
Convention on the Rights of the Child, see United Nations Convention
on the Rights of the Child
Convention on the Suppression and Punishment of the Crime of Apartheid
1973 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Convention relating to the Status of Stateless Persons 1954 . . . . . . . . . . . . . . . . . . . . . . . . 494-7, 502
Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 494
Art 2-Art 7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 495
Art 7(2)-(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 495
Art 8-Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 496
Art 26-Art 28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 497
Art 31 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 497
Art 32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 498
Council of Europe Convention on Preventing and Combating Violence
against Women and Domestic Violence 2011. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 540, 541
Art 13-Art 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 540
Art 14(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 540
Art 15-Art 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 541
Art 15(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 541
Art 16(1)-(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 541
Art 34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 541

D
Decision 1 (78), 4 March 2011, Prevention of Racial Discrimination, Early
Warning and Urgent Action Procedure (Côte d’Ivoire) . . . . . . . . . . . . . . . . . . . . . . . . . . 203
Declaration, see United Nations General Assembly Resolutions
Document on the Copenhagen Meeting of the Conference on Human
Dimension of the CSCE 1990
paras 1–5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133
Dublin Regulation, see EU Regulation No. 604/2013/EU

E
Economic and Social Council Decision 1978/10 (ECOSOC) . . . . . . . . . . . . . . . . . . . . . . . . . . . 195
Economic and Social Council Decision 1981/158 (ECOSOC) . . . . . . . . . . . . . . . . . . . . . . . . . . 195
Economic and Social Council
Resolution 1946/11(II) of 21 June. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .105, 106, 197
xxxiv | TABLE OF TREATIES AND INSTRUMENTS

Resolution 1946/E/20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197

Resolution 1948(IV) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
Resolution 1957/663, C (XXIV) of 31 July 1957 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 436, 438-40
Resolution 1959/728, F (XXVIII). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
Resolution 1967/1253, (XLII). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156
Resolution 1968/1296, (XLIV) of 23 May . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106, 248
Resolution 1970/1503, (XLVIII) of 27 May . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156
Resolution 1977/2076, (LXII) of 13 May 1977 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 436, 438-40
Resolution 1979/43 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196
Resolution 1982/33 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195
Resolution 1984/50, 25 May 1984 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 449-51, 453
Resolution 1985/17, 28 May. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195
Resolution 1987/22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105, 106
Resolution 1989/65 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 449
Resolution 1990/15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 530
Resolution 1996/6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
Resolution 1996/31 E/1996/96 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109, 113, 151, 245
Pt I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246
Pt VII. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247
Resolution 1997/30 of 21 July 1997, Recommended Guidelines for
Action on Children in the Criminal Justice System. . . . . . . . . . . . . . . . . . . . . . . . . . . . 445
Resolution 2000/2000/3 of 19 June . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156
European Convention for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment 1987 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10, 222, 407
Art 1-Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 222
Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 235
Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 235
European Convention for the Protection of Human Rights and Fundamental
Freedoms (ECHR) 1950 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10, 12, 21, 31, 45-7, 51,
53, 56, 57, 86, 87, 95, 124, 126, 127,
134, 140, 144, 146, 184, 191, 207, 208, 221, 222,
235-8, 322, 342, 407, 426, 427, 441-3, 451, 502
Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56-9, 128, 222, 407
Art 2-Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 56, 61, 86, 87, 237, 548
Art 2(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 448
Art 2(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Art 3 . . . . . . . . . . . . . . . . . . . . . . . . 11, 18, 20-2, 53-5, 59, 86, 87, 223, 235, 407, 408, 427, 502
Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Art 4(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
Art 4(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11, 87, 399, 407, 418, 419, 442
Art 5(1)(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 399
Art 5(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47, 48
Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 235, 423, 426, 430, 545
Art 6(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47, 426, 427, 430
Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 86
Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 512
Art 8(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47, 548
 TABLE OF TREATIES AND INSTRUMENTS | xxxv

Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 46
Art 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11, 46-8
Art 10(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47, 48
Art 11-Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Art 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11, 509, 512
Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86-8
Art 15(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Art 15(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Art 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47, 221
Art 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Art 30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221
Art 32-Art 34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221
Art 41 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213, 222, 235
Art 42-Art 44 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221
Art 44(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221
Art 46 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
Art 46(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221
Art 47 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128, 221, 222
Art 50 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Art 59 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
Art 59(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
Art 66 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 427
Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .54, 124, 426
Protocol 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12, 213, 221, 222
Art 1(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 440, 442, 443
Protocol 4
Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 435
Protocol 6 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 452
Art 1-Art 4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 452
Protocol 11. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .213, 221, 222
Protocol 14. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140, 213, 221, 222
European Convention on Extradition 1957
Art 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
European Convention on Legal Separation and Divorce
Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 546
European Convention on Recognition and Enforcement of Decisions Concerning
Custody of Children and on the Restoration of Custody of Children 1980 . . . . . . . . . . . . 311
Art 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
European Convention on the Exercise of Children’s Rights 1996 . . . . . . . . . . . . . . . . . . . . . . . . 320
Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F
Final Act of the Helsinki Conference on Security and Cooperation in
Europe () 1975 (Helsinki Declaration; Helsinki Accords) . . . . . . . . . . . . . . . . . . . . . 132, 133
Ch VII-Ch VIII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132
Final Recommendations of the Helsinki Consultations 1973
para 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
xxxvi | TABLE OF TREATIES AND INSTRUMENTS

Framework Convention for the Protection of National Minorities (Council

of Europe) 1995 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37, 304, 362, 366
Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 366

G
Geneva Convention relative to the Protection of Civilian Persons in
Time of War 1949 (Fourth Geneva Convention) . . . . . . . . . . . . . 92, 313, 465, 486, 488, 491
Pt II, s IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 488
Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178
Art 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 487
Art 30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 487, 488
Art 35 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 486
Art 36-Art 40 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 487
Art 39 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 488
Art 40 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 487
Art 41-Art 45 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 488
Art 41 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 487
Art 42-Art 43 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 488
Art 46 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 489
Geneva Convention relative to the Treatment of Prisoners of War 1949
(Third Geneva Convention) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92, 278
Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178
Geneva Conventions on the Laws of War 1949. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 92, 278, 313
Geneva Declaration on the Rights of the Child 1924 . . . . . . . . . . . . . . . . . . . . . . 286, 288, 289, 491

H
Hague Convention on Protection of Children and Cooperation in Respect of
Intercountry Adoption 1993 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 310
Hague Convention on the Civil Aspects of International Child Abduction 1980 . . . . . . . . . 310, 311
Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 311
Art 2-Art 4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 311
Hague Recommendations Regarding the Education Rights of National Minorities
1996 (OSCE). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37, 304
Hague Regulations
Art 42 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Human Rights Council Resolution (2005) 2005/60, 20 April 2005 human rights
and the environment as part of sustainable development . . . . . . . . . . . . . . . . . . . . . . . . . . 576
Human Rights Council Resolution (2007) 5/1 Institution-building of the United
Nations Human Rights Council . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112, 150, 156
para 3(f), (h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
para 109 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159
annexe . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150, 152, 153, 156, 157
para I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
para I.A, B.1, 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
para I.D.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152
para II.A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161
para IV.A, B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156
para IV.C . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157
para IV.E . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159
 TABLE OF TREATIES AND INSTRUMENTS | xxxvii

para 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153
para 32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153
para 36 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154
Commission Resolution (1997) 1991/42 15 April . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163, 164
Human Rights Council Resolution (2007) 5/2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162
Human Rights Council Resolution (2007) 6/17 Establishment of funds for the
universal periodic review mechanism. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153
Human Rights Council Resolution (2007) 6/27 of 14 December 2007 on adequate
housing as a component of the right to an adequate standard of living. . . . . . . . . . . . . . . . 576
para 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 576
Human Rights Council Resolution (2007) 6/36 human rights and the environment
as part of sustainable development . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 351
Human Rights Council Resolution (2007) 35/34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 418
Human Rights Council Resolution (2008) 7/8 Mandate of the Special Rapporteur
on the situation of human rights defenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 336
Human Rights Council Resolution (2008) 7/23 28 March, Human Rights and
Climate Change. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 575
Human Rights Council Resolution (2008) 8/7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 251
Human Rights Council Resolution (2009) 9/12 September 2009 . . . . . . . . . . . . . . . . . . . . . . . . 154
Human Rights Council Resolution (2009) 10/4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 576
Human Rights Council Resolution (2009) 13/22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 339
Human Rights Council Resolution (2011) 16/1 29 April. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160
Human Rights Council Resolution (2011) 16/2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
para 5(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 557
Human Rights Council Resolution (2011) 17/1 August 2011. . . . . . . . . . . . . . . . . . . . . . . . . . . 161
Human Rights Council Resolution (2011) 17/4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254
Human Rights Council Resolution (2011) 17/31/A/HRC . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243
Human Rights Council Resolution (2011) 18/22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 576
Human Rights Council Resolution (2012) 22/47 ensuring a safe and
conducive environment for defenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 338
Human Rights Council Resolution (2013) 22/6 Protecting Human
Rights Defenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .292, 337, 338
Human Rights Council Resolution (2014) 21/11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243
Human Rights Council Resolution (2014) 26/22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254
Human Rights Council Resolution (2014) 26/27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 576, 577
Human Rights Council Resolution (2015) 29/15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 577
Human Rights Council Resolution (2016) 25/1 October 2016. . . . . . . . . . . . . . . . . . . . . . . . . . 161
Human Rights Council Resolution (2016) 32/10 30 June 2016 . . . . . . . . . . . . . . . . . . . . . . . . . 269
Human Rights Council Resolution (2016) 33/30 30 September 2016. . . . . . . . . . . . . . . . . . . . . 164
Human Rights Council Resolution (2017) 35/7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254
Human Rights Council Resolution (2018) 39/3A/HRC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243
Human Rights Council Resolution (2019) 34/16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 292

I
Inter-American Commission on Human Rights Resolution 9 July 2004 . . . . . . . . . . . . . . . 345, 478
Inter-American Convention on Human Rights (AmCHR) 1969 . . . . . . . . . . . . . 10, 12, 31, 54, 86,
142, 143, 185, 187, 191, 208,
224-6, 233, 234, 296, 306, 410, 411, 478
Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 509
xxxviii | TABLE OF TREATIES AND INSTRUMENTS

Art 1(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 344, 411, 412

Art 3-Art 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11, 86, 396
Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11, 51, 86, 306, 344, 396, 412
Art 4(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .52, 412, 549
Art 4(2)-(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 449
Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 86, 344, 412
Art 5(1)-(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 412
Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 86
Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11, 344, 412
Art 7(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 435
Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11, 344, 430
Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 86
Art 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 86
Art 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Art 15-Art 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Art 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 86
Art 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
Art 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .86, 296, 344
Art 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
Art 21-Art 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Art 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 86
Art 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 509
Art 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 344
Art 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
Art 34-Art 51 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185
Art 35 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185
Art 41 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185
Art 42 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186
Art 44-Art 51 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186
Art 44 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224
Art 45 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224
Art 46-Art 47 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225
Art 48 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224, 48
Art 50 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224
Art 57 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224, 225
Art 61 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223
Art 62 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223, 225
Art 63 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213, 223, 225
Art 63(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233
Art 63(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225
Art 64 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225
Art 67 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225, 226
Art 68 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226
Protocol in the area of economic, social and cultural rights 1988
(San Salvador Protocol). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Protocol to abolish the death penalty 1990 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 452
Art 1-Art 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 452
 TABLE OF TREATIES AND INSTRUMENTS | xxxix

Inter-American Convention on Territorial Asylum 1954 (the Caracas Convention) . . . . . . . . . .476-8

Art I-Art II. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 476
Art III-Art X . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 477
Art XI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 478
Inter-American Convention on the Forced Disappearances of
Persons 1994 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40, 409, 410, 411
Art I-Art III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 409
Art I. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 344
Art I(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 344
Art VII-Art VIII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 410
Art X-Art XI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 410
Inter-American Convention on the Prevention, Punishment and Eradication
of Violence Against Women 1994 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40, 537
Ch IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 538
Art 1-Art 4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 537
Art 5-Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 538
Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 538, 539
Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 539
Inter-American Declaration on the Rights and Duties of Man . . . . . . . . . . . . . . . . . . . . . . 143, 187
Art I-Art III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187
Art IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187
Art XVIII. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187
Art XXV-Art XXVI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187
International Bill of Human Rights (combined description of 3 Instruments). . . . . . . . . .94, 132, 263
International Covenant on Civil and Political Rights (ICCPR)
1966 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 11, 12, 21, 22, 31, 32, 54, 67, 69, 70, 72-7,
81, 84-6, 89-91, 94-6, 103, 107, 134, 191-4,
200, 207, 209, 210, 231, 289, 296, 313, 330-2,
335, 339, 341, 349, 352-4, 359-61, 363, 398,
400, 410, 423, 434, 435, 440, 454, 468, 472,
510-12, 544, 567, 575, 578
Pt III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 354, 422
Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210, 354-7, 370
Art 2-Art 4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 511
Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11, 81, 96, 341, 353-5, 417, 440, 472, 509, 567
Art 2(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76, 81, 352, 472, 512, 567
Art 2(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 565
Art 2(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76, 232, 339-41, 567
Art 2(3)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 341, 417, 463, 567
Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 81, 210, 352-4, 509-12, 567
Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85, 90
Art 4(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85, 89, 90
Art 4(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Art 5(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
Art 5(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Art 5(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91, 92
Art 5(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 361
Art 5(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
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Art 6-Art 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 354

Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 85, 96, 339, 355, 422, 471, 472
Art 6(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 448
Art 6(4)-(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 448
Art 7 . . . . . . . . . . . . . . . . . . . . .11, 21, 22, 31, 85, 232, 339, 340, 341, 355, 415, 451, 461, 471-3
Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 355
Art 8(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Art 8(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 83, 462, 463
Art 9(1)-(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 415
Art 9(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 232, 340, 341, 461-3, 467, 468
Art 9(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 400
Art 9(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 232
Art 9(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 462, 463, 467-9
Art 9(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 231, 468
Art 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 399
Art 10(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 416
Art 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 85
Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 90, 353, 354, 435, 458
Art 12(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 353
Art 12(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 353, 476
Art 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 476
Art 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 73, 340, 423, 434, 450, 473, 510
Art 14(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211, 341, 355, 415, 429-31, 510, 511
Art 14(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 340, 341, 415
Art 14(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 341, 434
Art 14(3)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 434
Art 14(3)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 341, 416, 434
Art 14(3)(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 416, 451
Art 14(3)(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 232, 341, 428, 434
Art 14(3)(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 434
Art 14(3)(g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 232, 341
Art 14(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 416, 417, 451
Art 14(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 231, 416
Art 14(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 416
Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85, 358, 416, 424
Art 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Art 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 353-5, 359, 462, 474, 475, 511, 512
Art 17(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 415, 463, 474, 511, 512
Art 17(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 296
Art 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 85, 296, 360, 361
Art 18(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 361
Art 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 331, 340, 578
Art 19(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 232, 416
Art 19(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211, 232, 331, 341
Art 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11, 90, 331
Art 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 331
Art 22(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 232
Art 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 81, 289, 353, 354, 462, 473, 474, 511
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Art 23(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .352, 355, 462, 463, 474, 475

Art 23(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 352
Art 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11, 289, 296, 354, 463, 473, 474
Art 24(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 463, 474, 475
Art 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 417, 440, 511
Art 25(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Art 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 211, 352-5, 360, 361, 398, 416, 509, 511, 512, 567
Art 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12, 82-4, 351-9, 392
Art 28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192, 193
Art 29-Art 33 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193
Art 29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194
Art 30(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193
Art 33 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194
Art 34-Art 39 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194
Art 34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193
Art 40 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85, 90, 96
Art 41-Art 43 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204
Art 41 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66, 70, 72, 73, 76
Art 41(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
Art 43 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Art 45 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210
Declaration (Reservation) by France . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76, 83
First Optional Protocol 1966 . . . . . . . . . . . . . . . . . . . . . . . . . . 70, 72, 76, 94-6, 135, 207, 209-11,
341, 354, 358, 359, 435, 472
Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209, 210, 354
Art 2(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211
Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210, 211, 341
Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210, 211, 355
Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210
Art 4(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 510
Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210
Art 5(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 467
Art 5(2)(a), (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211
Art 5(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . 232, 339, 341, 354, 358, 360, 361, 417, 472, 474, 511
Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210
Art 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210
Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95, 210
Reservation By Guyana. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76, 96
Preamble
Second Optional Protocol 1990. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70, 72, 94, 452-4, 461
Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 452
Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 452
International Covenant on Economic, Social and Cultural Rights
(ICESCR) 1966. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7, 9, 12, 31, 32, 67, 69, 94,
103, 134, 191, 195, 196, 200, 209, 256,
257, 280, 289, 335, 349, 363, 565-70, 575
Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 566
Art 2(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 257, 565-9
Art 2(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 569
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Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 567

Art 6-Art 9. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 567
Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 564
Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 564
Art 7(a)(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 567
Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 567
Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 564
Art 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11, 289, 564
Art 10(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 567
Art 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12, 564, 564
Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Art 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 564
Art 13(2)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 567
Art 13(3)-(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 567
Art 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 257
Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Art 15(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 567
Art 21-Art 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196
Art 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Optional Protocol . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207, 569
International Labour Organization (ILO) Constitution 1919 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
Art 2-Art 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
Art 4(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
Art 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120, 318
Art 24-Art 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
International Labour Organization (ILO) Convention No 3 on Maternity
Protection 1919 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 505
Art 3-Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 505
Art 3(a)-(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 505
International Labour Organization (ILO) Convention No 4 on Night Work
of Women 1919 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 505
International Labour Organization (ILO) Convention No 5 on Minimum
Age (Industry) 1919 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 317
International Labour Organization (ILO) Convention No 6 on Night Work
of Young Persons (Industry) 1919 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 317
International Labour Organization (ILO) Convention No 29 on Forced
Labour 1930 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 264
Art 1-Art 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 264
Art 10-Art 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 264
Art 31 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 264
International Labour Organization (ILO) Convention No 35 on Forced Labour
1930 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 348
International Labour Organization (ILO) Convention No 50 on the Recruiting
of Indigenous Workers 1936 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 348
Art 2(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 348
International Labour Organization (ILO) Convention No 64 on Contracts of
Employment (Indigenous Workers) 1939. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 348
 TABLE OF TREATIES AND INSTRUMENTS | xliii

International Labour Organization (ILO) Convention No 65 on Penal Sanctions

(Indigenous Workers) 1939. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 348
International Labour Organization (ILO) Convention No 87 on Freedom of
Association 1948 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 265
Art 2-Art 5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265
International Labour Organization (ILO) Convention No 98 on the Right to
Organize and Collective Bargaining 1949 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
International Labour Organization (ILO) Convention No 100 on Equal
Remuneration 1951. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
International Labour Organization (ILO) Convention No 103 on Maternity
Protection (revised) 1952 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 505
Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 505, 506
Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 506
International Labour Organization (ILO) Convention No 105 on the Abolition
of Forced Labour 1957 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
International Labour Organization (ILO) Convention No 107 Concerning the
Protection and Integration of Indigenous and other Tribal and Semi-tribal
Populations in Independent Countries 1957 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 349-51, 368
Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 367, 368
Art 1(1), (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 368
Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 348
recommendation No, 104 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 351
International Labour Organization (ILO) Convention No 111 on Discrimination
(Employment and Occupation) 1958. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
International Labour Organization (ILO) Convention No 138 on Minimum
Age 1973. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 265, 317, 318
Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265, 317
Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265, 318
Art 2(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265, 318
Art 2(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265, 318
Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 318
Art 3(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 318
Art 4-Art 8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265, 318
International Labour Organization (ILO) Convention No 169 concerning
Indigenous and Tribal Peoples in Independent Countries 1989 . . . . . . . . . . . . . 349, 350, 365,
367, 368, 379
Pt II-Pt VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 368
Pt I-Pt II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 379
Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 367
Art 13-Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 379
Art 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 379
Art 16-Art 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 380
Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 348, 350
International Labour Organization (ILO) Convention No 182 on the Worst
Forms of Child Labour 1999. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 316, 317-9
Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 318
Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 319
Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 319
Art 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
xliv | TABLE OF TREATIES AND INSTRUMENTS

International Labour Organization (ILO) Declaration on Fundamental Principles

and Rights at Work 1998 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 263

J
Johannesburg Declaration on Sustainable Development and Plan of Implementation
of the World Summit on Sustainable Development 2002 . . . . . . . . . . . . . . . . . . . . . 574, 576

K
Kampala Plan of Action (KAPA) For the Protection of Human Rights Defenders 2009 . . . . . . . . 345
Khartoum Declaration on Africa’s Refugee Crisis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 478
Kigali Declaration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 345
Kyoto Protocol, see United Nations Framework Convention on Climate Change

L
London Charter of the International Military Tribunal
Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 493
Lund Recommendations on the Effective Participation of National Minorities
in Public Life (OSCE)1999. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

M
Male Declaration on the Human Dimension of Global Climate Change (Small Island
Developing States (SIDS)) November 2007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 573, 574
Millennium Declaration, see United Nations General Assembly Resolution
Declaration of General Assembly (Millennium Declaration)
Montevideo Treaty on International Criminal Law 1889 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 476

O
OAU Convention, see Convention on Organisation of African Unity Governing
the Specific Aspects of the Refugee Problems in Africa
Organization of American States (OAS) Convention on Territorial Asylum 1954,
see Inter-American Convention on Territorial Asylum
Organisation of American States (OAS) General Assembly Resolution AG/RES.
1948 (XXXIII-O/03). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 317
Organisation of American States (OAS) General Assembly Resolution No 447
(9th Session) 1979 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186
Organisation of American States (OAS) General Assembly Resolutions
Concerning Human Rights Defenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 343
AG/Res. 1671 (XXIX-O/99) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 343
AG/Res. 1711 (XXX-O/00) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 343
AG/Res. 1818 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 343
AG/Res. 1842 (XXXII-O/02) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 343
AG/Res. 1920 (XXXIII-O/03). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 343
AG/Res. 2036 (XXXIV-O/04) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 343
AG/Res. 2067 (XXXVO-O/05) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 343
AG/Res. 2177 (XXXVI-O/06). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 343
AG/Res. 2280 (XXXVII-O/07) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 343
AG/Res. 2412 (XXXVIII-O/08) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 343
Oslo Principles on Global Obligations to Reduce Climate Change 2015 . . . . . . . . . . . . . . . . . . . 577
Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 577
 TABLE OF TREATIES AND INSTRUMENTS | xlv

Oslo Recommendations on the Linguistic Rights of National Minorities

(OSCE) 1998. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37, 304

P
Permanent Council Decision No. 193, paras 2 and 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
Protection of African Human Rights Defenders Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . 345

R
Recommendation (1985) No. R (85) 4 on violence within the Family adopted
by the Committee of Ministers on 26 March 1985. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223
Recommendation (1990) No. R (90) 2 on social measures concerning violence
within the family adopted by the Committee of Ministers on
15 January 1990 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223
Recommendation (1993) No. R (93) 2 on the medico-social aspects of child
abuse adopted by the Committee of Ministers on 22 March 1993 . . . . . . . . . . . . . . . . . . . 223
Recommendation (2000) No. R (24) of the Committee of Ministers on the
Development of European Studies for Democratic Citizenship . . . . . . . . . . . . . . . . . . . . . 282
Recommendation (2004) 1666 ‘Europe-wide ban on corporal punishment of
children’ adopted by the Parliamentary Assembly on 24 June 2004 . . . . . . . . . . . . . . . . . . 223
Refugee Convention 1933 28 October . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 458
Refugee Convention 193810 February . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 458
Protocol 14 September 1939 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 458
Resolution, see United Nations Security Council Resolution
Rio Declaration on Environment and Development and Agenda1992 . . . . . . . . . . . . . . . . . 574, 576
Rome Statute, see Statute of the International Criminal Court

S
Slavery Act 2015. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253, 254
Slavery Convention 1926
Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Statute of the Council of Europe 1949. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126
Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126
Art 13-Art 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
Art 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
Art 40 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
Statute of the Inter-American Commission on Human Rights 1979 . . . . . . . . . . . . . . . . . . . . . . 186
Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186
Art 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186, 187
Art 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187
Statute of the International Court of Justice 1945 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 431
Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
Art 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 431
Art 15-Art 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 432
Art 34(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
Art 36 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
Art 36(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
Art 38 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 115
Art 38(1)(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 427
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Art 59 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
Art 65 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
Statute of the International Criminal Court 1998 (Statute of Rome) . . . . . . . . . . . . . 15, 180-2, 184,
316, 425, 430
Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117, 182
Art 6-Art 8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182
Art 7(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
Art 8(2)(e)(vii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 316
Art 11. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182
Art 13-Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182
Art 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118, 182
Art 19(2)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
Art 20(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 424
Art 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
Art 22(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 425
Art 23-Art 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 425
Art 25(3)-Art 33 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183
Art 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182
Art 40 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 425, 430
Art 40(2)-(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 430
Art 41 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 430
Art 42 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 425, 430
Art 55 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 425
Art 63(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 426
Art 66 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 426
Art 77 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
Art 112 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
Art 115 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
Art 121 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
Art 123 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
Statute of the International Criminal Tribunal for Rwanda
Art 26-Art 28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
annexe . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
Statute of the International Tribunal (on a tribunal for Yugoslavia) . . . . . . . . . . . . . . . . . . . . . . . 176
Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176
Art 29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176
Statute of the Permanent Court of International Justice
Art 36 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
Statute of the Special Court for Sierra Leone 2000
Art 1-Art 5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178
Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179
Protocol II (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178, 179
Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178, 179
Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179
Art 12-Art 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177
Stockholm Agreement, December 2018 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170
Stockholm Declaration, see United Nations Conference on the Human Environment 1972
 TABLE OF TREATIES AND INSTRUMENTS | xlvii

T
Tokyo Rules, see United Nations Standard Minimum Rules for Non-custodial Measures
Treaty Establishing the European Union (consolidated) 1992
Art 234 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 513, 517
Treaty of Lausanne 1923
Art 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Art 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Art 37-Art 44 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Art 42-45 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Treaty of Lisbon 2007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139
Treaty of Versailles 1919 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 263, 317
Treaty on African Union. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184
Treaty on European Union 1992
Art 6(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
Art 226 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
Art 230 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
Art 250 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
Art 300 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
Treaty on the Functioning of the European Union 2007. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139
Art 157 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 509

U
UNDRIP, see United Nations General Assembly Resolution (2007) 61/295, 13 September 2007,
Declaration on the Rights of Indigenous Peoples
United Nations Charter 1945 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 17, 32, 39, 50, 52, 99-101,
104, 107, 113, 114, 132, 145, 150,
151, 157, 166, 167, 170, 171, 217, 227,
243, 245, 257, 288, 289, 324, 335, 345,
362, 363, 369-71, 456, 489, 507, 521,
522, 562, 563, 574, 575
Ch VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170
Ch VII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101, 102, 170, 172, 174, 182, 184
Ch IX-Ch X . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .99, 100, 369
Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 369
Art 2(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101, 170
Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
Art 9-Art 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
Art 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Art 13(1)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Art 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
Art 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
Art 55 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 257
Art 56 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100, 241
Art 61-Art 62 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Art 61 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
Art 62 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
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Art 64 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
Art 73-Art 85 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
Art 92-Art 93 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
United Nations Conference on the Human Environment 1972 (Stockholm
Declaration). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 574
United Nations Convention against Transnational Organized Crime 2000 . . . . . . . . . . . . . . . . .526-9
Protocol against the smuggling of migrants by land, sea and air 2000 . . . . . . . . . . . . . . . . . . . . 528
Art 3(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 528
Protocol to prevent, suppress and punish trafficking in persons especially
women and children 2000. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .526, 527, 529
Art 3-Art 4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 526
Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 526, 527
Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 527
Art 7-Art 8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 527
Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 526
United Nations Convention on the Rights of the Child (CRC)
1989 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 10, 12, 15, 17, 21, 22, 38, 49, 65,
67-9, 80-2, 103, 192, 200, 207, 209, 216, 217,
236, 242, 279, 280, 285-9, 298-302, 304-11, 313,
315, 316, 319-22, 444, 445, 448, 466, 494, 521, 566
Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 299, 300
Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 299, 300, 564
Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 300, 301, 445, 447
Art 3(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 309
Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .209, 301, 566
Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21, 296, 305
Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 300, 306, 447
Art 6(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 447, 448
Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11, 306, 564
Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 307, 494
Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 307, 310, 473
Art 9(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .307, 308, 473
Art 9(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 296
Art 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11, 307, 310
Art 10(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209
Art 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 310
Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 300, 302, 303, 305
Art 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11, 303, 304
Art 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11, 303, 304
Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 303
Art 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Art 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 303, 304
Art 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 303, 308, 310
Art 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 20, 59, 223, 312, 564
Art 19(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Art 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43, 309
Art 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 309
Art 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11, 313, 466
Art 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 313
 TABLE OF TREATIES AND INSTRUMENTS | xlix

Art 23(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 314

Art 23(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 314, 564
Art 23(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 564
Art 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 307
Art 24(2)(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 564
Art 24(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 564
Art 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 312
Art 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11, 312, 564
Art 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12, 312, 564
Art 28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 279, 281, 564
Art 28(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 564
Art 29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 280, 303, 304, 564
Art 29(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 281
Art 30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12, 314, 351
Art 31 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 319
Art 32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 319
Art 33-Art 36 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 320
Art 33 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 314
Art 34-Art 36 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 564
Art 37 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 20, 59, 37, 312, 445
Art 37(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 564
Art 38 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 314
Art 38(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 300
Art 39 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 316
Art 40 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 15, 315, 444, 445
Art 42 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242
Art 44(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 308
Art 170 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 303
Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 288
Protocol 1 on the involvement of children in armed conflicts (2000) . . . . . . . 9, 283, 309, 316, 564
Protocol 2 on the sale of children, child prostitution and child
pornography (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 309, 317, 321
Protocol 3 on opt-out as petition signatories. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 207, 209, 309
Art 10(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Reservation By Republic of Djibouti. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
United Nations Convention relating to the Status of Refugees 1951 . . . . . . . . 313, 456, 458-60, 463,
469-71, 476, 478, 481,
483-5, 489, 492, 495
Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 458-60, 463, 469, 470
Art 1(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 458
Art 1(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 460
Art 1A(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 460
Art 1B(1)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 460
Art 1B(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 460
Art 1C(1)-(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 469
Art 2-Art 34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 460
Art 12-Art 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 483
Art 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 484
Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 469
l | TABLE OF TREATIES AND INSTRUMENTS

Art 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 469
Art 17-Art 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 484
Art 20-Art 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 485
Art 26-Art 28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 486
Art 28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Art 28(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 486
Art 29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Art 31-Art 34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 470
Art 33 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 489
Protocol 1967 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 458, 460, 478, 481, 489
Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 460
United Nations Declaration on Human Rights Education and Training. . . . . . . . . . . . . . . . . . . . 240
United Nations Doc. A/RES/S-27/2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 293
United Nations Framework Convention on Climate Change (UNFCCC). . . . . . . . . . . . . 574, 575-7
Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 575
Kyoto Protocol . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 244, 574
United Nations General Assembly Resolution (1946) 96 (1) of 11th December . . . . . . . . . . . . . . . 74
United Nations General Assembly Resolution (1948) 217 (III) D, Universal
Declaration of Human Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103, 241
United Nations General Assembly Resolution (1949) 319A (IV) Establishing
Office of High Commissioner for Refugees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 491
United Nations General Assembly Resolution (1950) 428 (V) Statute of
Refugee Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 491, 492
para 6A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 492
United Nations General Assembly Resolution (1954) 896 (IX) 4 December,
On Reducing Statelessness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 498
United Nations General Assembly Resolution (1959) 1386 (XIV)
Declaration on the Rights of the Child . . . . . . . . . . . . . . . . . . . . 17, 103, 288, 289, 294, 296
Principle 1-Principle 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 295
Principle 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 296
Principle 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 296
Principle 8-Principle 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 296
United Nations General Assembly Resolution (1960) 1514 (XV) Declaration
on the Granting of Independence to Colonial Countries and Peoples . . . . . . . . . .17, 102, 369
United Nations General Assembly Resolution (1960) 1542 (XV) recognition
of East Timor as a self-governing territory. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180
United Nations General Assembly Resolution (1963) 1904 (XVIII) Declaration
on the Elimination of All Forms of Racial Discrimination . . . . . . . . . . . . . . . . . . . . . 17, 103
United Nations General Assembly Resolution (1967) 2263 (XXII) Declaration
on the Elimination of Discrimination against Women . . . . . . . . . . . . . . . . . . . . . . . . 17, 103
United Nations General Assembly Resolution (1967) 2312 (XXII) Declaration
on Territorial Asylum. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 489
Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 489, 490
Art 1(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 490
Art 2-Art 4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 490
United Nations General Assembly Resolution (1975) 3452 (XXX), Declaration
on the Protection of All Persons from Being Subjected to Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment . . . . . . . . . . . . . . . . . . . . 103
 TABLE OF TREATIES AND INSTRUMENTS | li

United Nations General Assembly Resolution (1976) 31/169 Proclaiming the

International Year of the Child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 297
United Nations General Assembly Resolution (1979) 34/169 Code of Conduct
for Law Enforcement Officials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 278
Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 278
Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 278
United Nations General Assembly Resolution (1981) 36/55, Declaration on the
Elimination of All Forms of Intolerance and of Discrimination Based
on Religion or Belief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 102
United Nations General Assembly Resolution (1985) 40/32, Endorsement
Basic Principles on the Independence of the Judiciary . . . . . . . . . . . . . . . . . . . . . . . 432, 433
United Nations General Assembly Resolution (1985) 40/144, Declaration on
the Human Rights of Individuals Who Are Not Nationals of the
Country in Which They Live . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .40, 102, 481
Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 481
Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 482
Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 481
Art 5(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 482
Art 6-Art 8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 482
Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 483
United Nations General Assembly Resolution (1985) 40/146, Independence
of the Judiciary/ Discipline, Suspension and Removal . . . . . . . . . . . . . . . . . . . . . . . 432, 433
United Nations General Assembly Resolution (1986) 41/128, Declaration
on the Right to Development. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 102, 521, 562, 575
United Nations General Assembly Resolution (1988) 43/115 on the
Establishment of an Independent Expert to Review the Treaty
Monitoring Bodies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
United Nations General Assembly Resolution (1988) 43/173, Principles for
the Protection of All Persons Under Any Form of Detention or Imprisonment . . . . . . . . . 102
United Nations General Assembly Resolution (1989) 44/25, Rights of the Child . . . . . . . . . . . . 102
United Nations General Assembly Resolution (1989) 44/128, abolition of the
death penalty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 452
United Nations General Assembly Resolution (1990) 45/111, Basic Principles
for the Treatment of Prisoners. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
United Nations General Assembly Resolution (1990) 45/113, United Nations
Rules for the Protection of Juveniles Deprived of Their Liberty . . . . . . . . . . . . . . . . . . . . 102
United Nations General Assembly Resolution (1990) 45/121, Basic Principles
for the Treatment of Prisoners. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 435
United Nations General Assembly Resolution (1991) 1991/18 . . . . . . . . . . . . . . . . . . . . . . . . . . 532
United Nations General Assembly Resolution (1991) 46/91, United Nations
Principles for Older Persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
United Nations General Assembly Resolution (1992) 47/133 Declaration on
the Protection of Persons from Enforced Disappearances . . . . . . . . . . . . . . . . . . . . . 103, 401
Art 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 401
Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 401
United Nations General Assembly Resolution (1992) 47/135, Declaration on
the Rights of Persons Belonging to National or Ethnic, Religious and
Linguistic Minorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18, 37, 40, 102
lii | TABLE OF TREATIES AND INSTRUMENTS

United Nations General Assembly Resolution (1993) 48/104, 20 December

1993, Declaration on the Elimination of Violence against Women . . . . . . . . . . . . . 521, 532-4
Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 532, 534
Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 533, 534
Art 2(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 534
Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 533
United Nations General Assembly Resolution (1993) 48/134 . . . . . . . . . . . . . . . . . . . . . . . . . . . 153
annexe . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153
United Nations General Assembly Resolution (1993) 48/141 of 20 December 1993 . . . . . . . . . . 111
United Nations General Assembly Resolution (1993) 48/162 of 20 December 1993 . . . . . . . . . . 105
United Nations General Assembly Resolution (1993) 49/184 . . . . . . . . . . . . . . . . . . . . . . . . . . . 242
United Nations General Assembly Resolution (1995) 50/203 . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
United Nations General Assembly Resolution (1997) 52/135 options in the
prosecution of Khmer Rouge members (Cambodia) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180
United Nations General Assembly Resolution (1999) 53/144 Declaration on
the Rights and Responsibility of Individuals, Groups and Organs of
Society to Promote and Protect Universally Recognised Human
Rights and Fundamental Freedoms (Human Rights Defenders) . . . . . . . . . 17, 102, 278, 324,
332, 333, 335-7, 344
Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 332, 336
Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 334, 336
Art 5-Art 8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 332
Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 333
Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .333, 334, 336
Art 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 333, 337
Art 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 334
Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 335
Art 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 278
Art 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 278
United Nations General Assembly Resolution (1999) 1272 Transitional
Administration in East Timor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180
United Nations General Assembly Resolution (2000) 55/2, (Millennium
Declaration). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30, 65, 554, 557-60, 562
Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
United Nations General Assembly Resolution (2000) 55/89 4 December,
Investigation and Documentation of Torture and Other Cruel Inhuman
or Degrading Treatment or Punishment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 421
United Nations General Assembly Resolution (2000) E/CN.4/RES/2000/61
creating the post of Special Representative for Human Rights Defenders. . . . . . . . . . . . 336
United Nations General Assembly Resolution (2001) S-26/2, Declaration of
Commitment on HIV/AIDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
United Nations General Assembly Resolution (2003) 58/185 . . . . . . . . . . . . . . . . . . . . . . . . . 542
United Nations General Assembly Resolution (2004) 59/174, 20/12/04 . . . . . . . . . . . . . . . . . 362
United Nations General Assembly Resolution (2006) 60/251 . . . . . . . . . . . . . . . 108-10, 150, 151
para 2-para 5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
para 5(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
para 7-para 9. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
para 10-para 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
 TABLE OF TREATIES AND INSTRUMENTS | liii

United Nations General Assembly Resolution (2007) 61/295, 13 September

2007, Declaration on the Rights of Indigenous Peoples (UNDRIP) . . . . . . . . 40, 360, 362-5,
366, 370, 371, 377,
381, 387, 388, 392, 393
Art 3-Art 5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 370
Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 372
Art 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 381
Art 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 381
Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 360
Art 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 564
Art 25-Art 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 377
Art 28-Art 30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 377
Art 33 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 372
Art 39 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 564
Art 46 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 370, 371
United Nations General Assembly Resolution (2007) 62/149, 18 December
2007, Moratorium on the use of the death penalty. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 453
United Nations General Assembly Resolution (2008) 7/8-7/884 renewal of
mandate on special procedure for the situation of human rights defenders
by appointing a Special Rapporteur. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 336
United Nations General Assembly Resolution (2008) 63/155 on the intensification
of efforts to eliminate all forms of violence against women . . . . . . . . . . . . . . . . . . . . . . . . 542
United Nations General Assembly Resolution (2008) 63/156 on trafficking women
and girls. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 543
United Nations General Assembly Resolution (2010) 64/289, 21 July 2010
System-wide coherence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 522
United Nations General Assembly Resolution (2010) 65/198, 21 December 2010 . . . . . . . . . . . . 365
para 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 365
United Nations General Assembly Resolution (2011) 65/265, Suspension of
Lybian membership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174
United Nations General Assembly Resolution (2011) 65/281, providing an
overview of the fulfilment by each State of its human rights obligations
and commitments over a 41/2 year cycle universal periodic review . . . . . . . . . . . . . . 108, 150,
153, 162
para 5(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
annexe . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153
para 9-para 10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153
United Nations General Assembly Resolution (2011) 66/137, Declaration on
Human Rights Education and Training . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .242, 243, 282
Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243
United Nations General Assembly Resolution (2012) 21/2 20 September 2012,
Human right to Safe Drinking Water and Sanitation, . . . . . . . . . . . . . . . . . . . . . . . . . . . . 557
United Nations General Assembly Resolution (2012) 67/1766 . . . . . . . . . . . . . . . . . . . . . . . . . . 450
United Nations General Assembly Resolution (2013) 67/290 . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
United Nations General Assembly Resolution (2014) 69/186 . . . . . . . . . . . . . . . . . . . . . . . . . . . 450
United Nations General Assembly Resolution (2015) 70/1, 2030 Agenda for
Sustainable Development . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .560, 562, 563
Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 560
United Nations General Assembly Resolution (2015) 70/148 . . . . . . . . . . . . . . . . . . . . . . . . . . . 418
liv | TABLE OF TREATIES AND INSTRUMENTS

United Nations General Assembly Resolution (2016) 71/1 19 September 2016,

New York Declaration for Refugees and Migrants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 480
United Nations General Assembly Resolution (2017) 71/177 . . . . . . . . . . . . . . . . . . . . . . . . . . . 292
para 13-para15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 292
United Nations General Assembly Resolution (2018) 72/305 on the Review of the
implementation of General Assembly resolution 68/1 on the strengthening
of the Economic and Social Council . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
United Nations General Assembly Resolution (2018) 73/155, 17 December . . . . . . . . . . . . . . . . 292
United Nations Security Council Resolution (1946) 4 on the Spanish question
demonstrating the relationship between internal politics and international
peace and security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
United Nations Security Council Resolution (1985) 569 on South Africa,
condemning a number of human rights infringements . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
United Nations Security Council Resolution (1990) 660 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172
para 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172, 173
United Nations Security Council Resolution (1990) 661, of 6 August. . . . . . . . . . . . . . . . . 172, 174
paras 3(a), (b), 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174
United Nations Security Council Resolution (1991) 687 of 3 April 1991,
further action on resolution (1990) 661 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174
United Nations Security Council Resolution (1993) 827 on a tribunal for Yugoslavia . . . . . . . . . 176
United Nations Security Council Resolution (1994) 955 on the establishment of
an international tribunal for Rwanda. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
United Nations Security Council Resolution (1995) 986 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174
United Nations Security Council Resolution (1999) 1264, to restore peace and
order in East Timor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180
United Nations Security Council Resolution (2001) 1368 on threats to
international peace and security caused by terrorist acts . . . . . . . . . . . . . . . . . . . . . . . . . . 171
United Nations Security Council Resolution (2003) 1483 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
United Nations Security Council Resolution (2003) 1511 . . . . . . . . . . . . . . . . . . . . . . . . . . . 56, 58
United Nations Security Council Resolution (2006) 1718 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173
United Nations Security Council Resolution (2009) 1874 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173
United Nations Security Council Resolution (2011) 1970 on Libya, to protect
civilians and civilian populated areas under threat of attack in the Libyan
Arab Jamahiriya . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
para 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172
para 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171, 172
para 7-para 8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172
para 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171, 172
para 10-para 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172
United Nations Security Council Resolution (2011) 1973 on Libya, which
authorised the use of force to protect the civilian population . . . . . . . . . . . . . . . . . . 170, 171
United Nations Security Council Resolution (2012) 2042 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161
United Nations Security Council Resolution (2018) 2451 on Yemen, following
up the Stockholm Agreement of December 2018 and authorizing a
monitoring team to further implementation thereof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170
United Nations Security Council Resolution (2019) 2462 on preventing and
combating the financing of terrorism. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
United Nations Standard Minimum Rules for the Administration of Juvenile
Justice (Beijing rules) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 444
 TABLE OF TREATIES AND INSTRUMENTS | lv

United Nations Standard Minimum Rules for Non-custodial Measures

(Tokyo Rules) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 445
Universal Declaration of Human Rights (UDHR) 1948 . . . . . . . . . . . . . . . . . . .11, 16, 17, 28, 30-2,
34, 38, 39, 44, 49, 52, 60, 65, 94, 108,
122, 124, 132, 151, 154, 165, 167, 229, 237,
238, 240, 241, 278, 280, 288, 289, 316, 330,
331, 349, 369, 426, 427, 435, 454, 458, 489,
494, 507, 515, 521, 555, 562, 574, 575, 578, 579
Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Art 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 34
Art 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 564
Art 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Art 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11, 15, 31, 564
Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 564
Art 7-Art 8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 564
Art 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Art 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 564
Art 11-Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Art 13-Art 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11, 458, 500
Art 14(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 493
Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 494
Art 16-Art 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Art 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 165, 330, 331, 564, 578
Art 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11, 330, 331
Art 21-Art 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 564
Art 23-Art 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Art 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 564
Art 25(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 294
Art 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 165, 279, 564
Art 26(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 280
Art 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 165
Art 28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 330, 331, 564
Art 29(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 277
Universal Declaration on Cultural Diversity (UNESCO Constitution) 2001 . . . . . . . . . . . . . . 41, 42
Decision 104 EX/3.3, 1978. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .166-9
para 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169
rules of procedure
r 29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168
r 28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168
Art 1-Art 4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Art 1.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166
Art 1.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166
Preamble . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

V
Vienna Declaration adopted by the World Conference on Human Rights
in 1993 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40, 41, 65, 81, 154, 229, 281, 286, 363, 575
para 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
para 33 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 280
lvi | TABLE OF TREATIES AND INSTRUMENTS

para 62 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 402
Programme of action. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 363, 575
Art 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 286
Vienna Convention on Consuler Relations 1963
Art 36 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 451
Vienna Convention on the Law of Treaties 1969 . . . . . . . . . . . . . . . . . . . . . 4, 5, 9, 16, 28, 70-2, 75,
77, 82, 93, 94, 97, 552
Art 2(1)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Art 2(1)(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Art 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Art 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Art 11-Art 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Art 12(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Art 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Art 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Art 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70, 72
Art 20-Art 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Art 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Art 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Art 26-Art 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Art 29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Art 31 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Art 31(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 427
Art 31(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 426
Art 31(3)(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 427
Art 32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 427
Art 33 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Art 33(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Art 43 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Art 53 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Art 54 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Art 56 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Art 56(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93

W
World Declaration on Higher Education for the Twenty-First Century
(UNESCO) 1998. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 281
Art 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 281
World Declaration on the Survival, Protection and Development of Children . . . . . . . . . . . 286, 297
Chapter 1

Sources of international human rights

Chapter contents

1.1 Treaties 4
1.2 Customary international law 12
1.3 Other international and regional instruments 16
1.4 A practical guide to sources 22
2 | SOURCES OF INTERNATIONAL HUMAN RIGHTS

This chapter introduces the subject matter of the book. It also provides useful information on how
to research human rights, using the wealth of materials available online (and free). Human rights
is something of relevance to everyone (and forever): thus it is important that your personal knowl-
edge can readily be updated without the need to reference textbooks. This chapter will thus cover:

• What are human rights?

• Where are human rights found (i.e. sources)?
• Key principles informing international human rights.
• Practical guide to sources of human rights.
• How to research human rights (particularly primary sources).

To many, human rights have their origins in the mists of time. Undoubtedly, human rights are
bound up in philosophical thought and religious tenets. The very idea of governance involves
some elements of delineation of rights and obligations on the part of the governors and the gov-
erned. A degree of reciprocity underpins this: loyalty of the people in return for protection from
external harm. Such early history retains echoes today, and such a concept of the rule of law is
entwined with many elements of human rights.
Respect for the right to life finds expression in almost all religious texts and faiths. Religions
such as Buddhism demand a high level of respect for the life of all creatures (even to the extent of
advocating vegetarianism), while some religions permit the taking of life for food (e.g. Islam), and
prescribe clearly the methods for killing animals. Those beliefs in earlier times which evinced ritual
sacrifice included specific instructions to precede the taking of life. Similar examples from other
religious tenets can easily be found. Most faiths include a guide to the rules for the operation of
civil society; whether in the Koran, the Bible, the Torah or other texts, the similarities are clear.
Respect for elements of human dignity, family life and rules concerning combat have early origins.
Indeed many religious texts also contain rules on justice.
As for philosophy, some elements of human rights are bound up in the evolution of the rule
of law; other elements find early expression in the revolution of political theory in the eighteenth
century, primarily in Europe. However, earlier philosophical writings exhibit concepts now iden-
tifiable as human rights: Confucius and Tao are two examples from Asia.
As Tomuschat notes, ‘International protection of human rights is a chapter of legal history
that has begun at a relatively late stage in the history of humankind’ (Tomuschat, C., Human
Rights between Idealism and Realism, 2003, Oxford: OUP, p 7). As a reflection of this, for the
purposes of these materials, the principal sources of human rights are taken in the modern
context and are drawn from the principal human rights instruments. Human rights are thus
viewed herein as creatures of international law, norms created according to international law and
traditions. It is thus appropriate to first outline the mechanisms for creating such norms under
international law. Legal force ascribes to international human rights through treaties and cus-
tomary international law. Today international legal instruments form the basis of human rights
in the new world order. This does not diminish the importance of developing an understanding
of philosophical and theoretical traditions. Rather, the approach of this text is practical, with
the emphasis on legal norms.
The following diagram illustrates the main sources of international human rights. Note that
they all overlap to a certain (not necessarily quantifiable) extent. For the purpose of this chapter,
international laws are addressed under treaties and States’ custom. Practice is considered under cus-
tomary international law, and national tradition is omitted from detailed discussion, as obviously
it varies from State to State. The most significant impact it has concerns national legal theory, and
whether a State adheres to, for example, a liberal or socialist theory of rights.
 SOURCES OF INTERNATIONAL HUMAN RIGHTS | 3

Glossary of terms
Convention: Binding agreement between States; used synonymously with TREATY
and COVENANT. Conventions are stronger than DECLARATIONS in that they
are legally binding for signatory States, and governments can be held for violating
them. The United Nations GENERAL ASSEMBLY creates international norms
and standards when it adopts conventions; MEMBER STATES can then ratify the
UN Conventions, signifying acceptance of their obligations.
Customary international law: Law that becomes binding on States although it is
not written, but rather adhered to consistently out of custom; when enough States
have begun to behave as if something is the obligatory law, it indeed becomes law;
one of the main SOURCES OF INTERNATIONAL LAW.
General principles of law: Principles that appear nearly universally in State’s
domestic law and, thus, over time become binding on all States; one of the main
SOURCES OF INTERNATIONAL LAW.
Human Rights: The rights people are entitled to simply for being human, irrespec-
tive of their citizenship, nationality, race, ethnicity, language, sex, sexuality or
disabilities; human rights become enforceable as they become codified as treaties,
or as they become recognised as customary international law.
Jus cogens : Those norms of law which are effectively entrenched in the international
regime and are non-negotiable.
Treaty: Formal agreement between States that defines and modifies their mutual duties
and obligations; used synonymously with convention, charter, covenant. When national
governments ratify treaties, they become part of their domestic legal obligations.

• Accession: Acceptance of a treaty by a State that did not participate in its

negotiation or drafting.
• Adoption: Process by which a State agrees to international law; with regard
to treaties, adoption usually refers to the initial diplomatic stage at which a
4 | SOURCES OF INTERNATIONAL HUMAN RIGHTS

treaty is accepted. In order to become effective, after adoption a TREATY

usually must be RATIFIED by the legislature.
• Entered into Force: The day on which a treaty becomes effective; the point
at which enough parties have signed on to an agreement to make it effective.
• Ratification: Process by which a legislature confirms a government’s action
in signing a treaty; formal procedure by which a State becomes bound to a
TREATY.

1.1 Treaties
Treaties are those binding instruments adopted by States which enshrine the fundamental rights
and freedoms to which the State ascribes, and to which its nationals are entitled. These instru-
ments take many forms, and a plethora have emerged on a number of diverse topics over the last
50 years. Treaties are legally binding on the States which sign and ratify them. The 1969 Vienna
Convention on the Law of Treaties is a key international agreement which governs the creation,
operation and legal effect of most treaties in effect today. It includes the major rules and regulations
concerning treaties and, although not all States have ratified it, many elements represent common
State practice, and thus it will be used as indicative of the law of treaties throughout.

1.1.1 What are treaties?

VIENNA CONVENTION ON THE LAW OF TREATIES 1969, Article 2(1)(a)

‘[T]reaty’ means an international agreement concluded between States in written form and
governed by international law, whether embodied in a single instrument or in two or more
related instruments and whatever its particular designation.

Treaties are formal sources of international law, and very common in international human rights
law. Simply put, treaties are contracts concluded under international law and thus they are legally
binding on States which have agreed to them. As indicated by the Vienna Convention, terminol-
ogy varies – treaties, conventions, covenants, protocols, charters and statutes are the most common
terms – but irrespective of what the instrument is called, certain common features can be identi-
fied. Primarily, most are written (although oral treaties can exist, no relevant examples pertain to
international human rights) and thus the content of the rights and freedoms can easily be identi-
fied. Treaties can be bilateral (between two parties) or multilateral (between many States), although
international human rights treaties are usually multilateral instruments open to any State to sign up
to at any time. This is in accordance with the goal of achieving universal human rights.
Treaties are commonly drafted by representatives of States, the ‘umbrella’ organisation (United
Nations, African Union, Council of Europe, etc.) and even representatives of non-governmental
organisations and thus the beneficiaries of the treaty are the peoples of the world/region. Often
an international conference will be convened to allow a wide number of States to debate the pro-
posed terms of the treaty and decide which clauses are and are not acceptable. Some conferences
convened to allow debates on treaties are used to launch or conclude proclaimed international
decades or years. The Convention on the Rights of the Child is a prime example; it was adopted
at the end of the International Decade on the Rights of the Child. The International Decade on
the World’s Indigenous Peoples, in contrast, did not succeed in producing an agreed text on the
rights of indigenous peoples (see Chapter 11), although one of the first acts of the Human Rights
Council in June 2006 partially ameliorated the position: a draft convention was adopted, albeit
subsequently rejected by General Assembly.
 SOURCES OF INTERNATIONAL HUMAN RIGHTS | 5

Treaties may be given a formal name (or title) but are frequently referred to by the city in
which the text was agreed by the drafting States. Common examples are the Banjul Charter on
Human and Peoples’ Rights of the African Union, the San Salvador Protocol to the American
Convention on Human Rights and the Geneva Conventions on the Laws of War. Note that sev-
eral treaties on different subjects may be concluded in the one city, thus designating treaties solely
on the basis of the city (even with the date) is not necessarily definitive. The full title of a treaty
may be required for identification purposes.

1.1.2 How do States agree to treaties?

All States possess the capacity to conclude treaties (Vienna Convention on the Law of Treaties
Article 6). Membership in the United Nations is not necessarily required, but recognition by other
States as a State is. There is normally a two-part process to be followed by States wishing to be
bound by the terms of treaties: signature and ratification. States joining a treaty after it has entered
into force usually accede to it (whether a State accedes or ratifies can also depend on the nature
of the State and its approach to treaty law). These terms are explained in the Vienna Convention.

VIENNA CONVENTION ON THE LAW OF TREATIES 1969

Article 11

The consent of a State to be bound by a treaty may be expressed by signature, exchange of

instruments constituting a treaty, ratification, acceptance, approval or accession, or by any
other means if so agreed.

Article 12

1 The consent of a State to be bound by a treaty is expressed by the signature of its

representative when:
(a) the treaty provides that signature shall have that effect;
(b) it is otherwise established that the negotiating States were agreed that signature
should have that effect; or
(c) the intention of the State to give that effect to the signature appears from the full
powers of its representative or was expressed during the negotiation.

2 For the purposes of paragraph 1:

(a) the initialing of a text constitutes a signature of the treaty when it is established
that the negotiating States so agreed;
(b) the signature ad referendum of a treaty by a representative, if confirmed by his
State, constitutes a full signature of the treaty.

Article 14

1 The consent of a State to be bound by a treaty is expressed by ratification when:

(a) the treaty provides for such consent to be expressed by means of ratification;
(b) it is otherwise established that the negotiating States were agreed that ratification
should be required;
(c) the representative of the State has signed the treaty subject to ratification; or
(d) the intention of the State to sign the treaty subject to ratification appears from the
full powers of its representative or was expressed during the negotiation.

2 The consent of a State to be bound by a treaty is expressed by acceptance or approval

under conditions similar to those which apply to ratification.
6 | SOURCES OF INTERNATIONAL HUMAN RIGHTS

Article 15

The consent of a State to be bound by a treaty is expressed by accession when:

(a) the treaty provides that such consent may be expressed by that State by means of accession;
(b) it is otherwise established that the negotiating States were agreed that such consent may
be expressed by that State by means of accession; or
(c) all the parties have subsequently agreed that such consent may be expressed by that
State by means of accession.

Once a State has indicated its intention to be bound by a treaty, such as at a major international
conference launching the treaty, the State representatives will usually be required to return to their
respective States and seek national approval and ratification for the terms of the treaty.
Treaties are generally signed by an authorised State official (see Vienna Convention Article 7
for who has powers to conclude treaties on behalf of States) to indicate political will to accede to
its terms. At this time, the treaty is politically and morally binding on the State. Such a signature is
then ratified after the relevant national procedures are followed. National law, particularly the con-
stitutional provisions, determine whether a referendum is required or what steps are necessary to
obtain parliamentary or governmental approval of a treaty. Only once an instrument is ratified will
it become legally binding on States and thus enforceable. Some treaties do not require ratification,
becoming binding solely on signature. In order that the list of States who are bound by an instru-
ment is contemporary, it is normal for States to submit ratification documents to a central body
(often the United Nations Secretary-General) for dissemination to other States who are already
bound by the instrument. The following is an example of a signature and ratification clause.

CONVENTION ON THE POLITICAL RIGHTS OF WOMEN 1952, Article IV

1 This Convention shall be open for signature on behalf of any Member of the United Nations
and also on behalf of any other State to which an invitation has been addressed by the
General Assembly.
2 This Convention shall be ratified and the instruments of ratification shall be deposited
with the Secretary-General of the United Nations.

Question
In terms of national constitutional law, why are signature and ratification treated separately and why may both
be required before a State is bound?
 SOURCES OF INTERNATIONAL HUMAN RIGHTS | 7

When ratifying an instrument, a State may also elect to indicate whether it wishes to avoid
legal liability for certain clauses. This is called a reservation. Reservations and declarations can
have a significant effect on the legal impact of an instrument and are discussed in more detail in
Chapter 3.

1.1.3 When do treaties become legally binding?

In terms of international law, treaties become legally binding when they enter into force. In other
words, they become applicable and enforceable law on that date. Note that treaties only apply
to those States which have agreed to be bound by the provisions of the treaty in question. States
cannot be forced to comply with a treaty which has not entered into force or which has not been
ratified by them. Obviously, political pressure can be, and is, exerted to secure compliance with
certain human rights, for example through trade and aid agreements. However, this is distinct from
the legal enforcement of treaties.

VIENNA CONVENTION ON THE LAW OF TREATIES 1969, Article 24

(1) A treaty enters into force in such a manner and upon such a date as it may provide or as
the negotiating States may agree.
(2) Failing any such provision or agreement, a treaty enters into force as soon as consent to
be bound by the treaty has been established for all the negotiating States.
(3) When the consent of a State to be bound by a treaty is established on a date after the
treaty has come into force, the treaty enters into force for that State on that date, unless
the treaty provides otherwise.

Usually a clause near the end of the treaty will specify when the treaty becomes legally binding on
contracting parties, that is, when it enters into force. This clause in the International Convenant
on Economic, Social and Cultural Rights is an example.

INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS 1966,

Article 27

1 The present Convenant shall enter into force three months after the date of the deposit
with the Secretary-General of the United Nations of the thirty-fifth instrument of
ratification or instrument of accession.
2 For each State ratifying the present Covenant or acceding to it after the deposit of the
thirty-fifth instrument of ratification or instrument of accession, the present Covenant
shall enter into force three months after the date of deposit of its own instrument of
ratification or instrument of accession.

Note
Given the growth in the international community in recent years (the United Nations now
has 193 Member States, having been created by 51 States in 1945), the issue of new States is
important. Many of the older international human rights treaties have experienced a dramatic
expansion in the numbers of Contracting States. This has in itself produced many problems
with respect to implementing the treaties, as is discussed in Chapter 3. Many treaties enter into
force with a small number of States then experience an increase in membership as the years, or
even decades, go by. The International Covenant on Economic, Social and Cultural Rights, for
example, took around ten years to achieve the necessary number of ratifications to enter into
force. It was opened for signature in 1966, yet only achieved the necessary ratifications to enter
into force in 1976.
8 | SOURCES OF INTERNATIONAL HUMAN RIGHTS

Question
What reasons are there for such a delay between opening for signature and entry into force? Can delays ever
be a positive or essential element in creating a binding web of obligations for the protection of human rights?

States which sign up to a treaty can be referred to as High Contracting Parties, States Party, Parties,
Signatories or even Member States. The terminology of choice depends on the instrument and the
host organisation. It is important to ascertain whether a particular State is bound by a particular
instrument. The internet is a valuable resource in this respect. For example, a list of States which
are party to the major United Nations human rights treaties is located at www.ohchr.org.

Question
Which major human rights treaties concluded under the auspices of the United Nations has the United States
of America ratified?

Once a treaty has entered into force, all contracting parties are required to act in accordance with
its binding terms and to discharge any obligations in good faith. This is known as the doctrine of
pacta sund servanda (see Vienna Convention on the Law of Treaties Article 26). Unless otherwise
agreed or specified, treaties are binding throughout the territory of the contracting State (Vienna
Convention on the Law of Treaties Article 29). For human rights treaties, this means that all indi-
viduals under the jurisdiction of the State can benefit from the terms of the instrument. Further-
more, States may not invoke principles of their national (internal) law as justification for failing
to comply with treaty obligations (Vienna Convention on the Law of Treaties Article 27). This is
again relevant in the context of human rights, as the rights of individuals are frequently prescribed
by national constitutions and it is clear that such national instruments may not supersede the terms
of a binding international human rights instrument.

1.1.4 What happens if a treaty is concluded in a

foreign language?
Treaties are often concluded in one or more authentic language(s), that is, the language(s) in which
the treaty text is confirmed as being legally binding. For most international human rights instru-
ments, the official languages of the organisation which has organised the drafting of the treaty will
be deemed authentic. Consider the following examples.

UN CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST

WOMEN 1979, Article 30

The present Convention, the Arabic, Chinese, English, French, Russian and Spanish texts
of which are equally authentic, shall be deposited with the Secretary-General of the United
Nations.

INTERNATIONAL LABOUR ORGANISATION CONVENTION NO 182 ON THE WORST

FORMS OF CHILD LABOUR 1999, Article 16

The English and French versions of the text of this Convention are equally authoritative.

ORGANISATION OF AFRICAN UNITY CONVENTION GOVERNING THE SPECIFIC

ASPECTS OF THE REFUGEE PROBLEMS IN AFRICA 1969, Article X(2)

The original instrument, done if possible in African languages, and in English and French, all
texts being equally authentic, shall be deposited with the Administrative Secretary-General of
the Organisation of African Unity.
 SOURCES OF INTERNATIONAL HUMAN RIGHTS | 9

COUNCIL OF EUROPE’S EUROPEAN CONVENTION FOR THE PROTECTION OF

HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS

1950 Concluding clause

Done at Rome this 4th day of November 1950, in English and French, both texts being equally
authentic, in a single copy which shall remain deposited in the archives of the Council of Europe.

Question
What problems can having multiple authentic versions of a treaty cause in terms of enforcement?

The Vienna Convention gives guidance on reconciling conflicting authentic texts:

VIENNA CONVENTION ON THE LAW OF TREATIES 1969, Article 33

1 When a treaty has been authenticated in two or more languages, the text is equally
authoritative in each language, unless the treaty provides or the parties agree that, in
case of divergence, a particular text shall prevail.
2 A version of the treaty in a language other than one of those in which the text was
authenticated shall be considered an authentic text only if the treaty so provides or the
parties so agree.
3 The terms of the treaty are presumed to have the same meaning in each authentic text.
4 Except where a particular text prevails in accordance with paragraph 1, when a comparison
of the authentic texts discloses a difference of meaning which the application of articles
31 and 32 does not remove, the meaning which best reconciles the texts, having regard to
the object and purpose of the treaty, shall be adopted.

1.1.5 Subsequent amendments and additions to treaties

Treaties may subsequently be amended, often by a device called a protocol. Protocols are simply
international instruments added on to a treaty. They are usually optional, so a State may be party to
the main treaty but avoid obligations under any associated protocols. In the field of human rights,
protocols frequently provide additional rights and freedoms. Examples include the two protocols
of 2000 to the United Nations Convention on the Rights of the Child on the involvement of
children in armed conflicts and on the sale of children, child prostitution and child pornogra-
phy. Other protocols may provide an optional enforcement mechanism. For political reasons, the
enforcement mechanism may have been omitted from the main treaty. The third optional protocol
to the UN Convention on the Rights of the Child is one such example. It enshrines a system of
individual petitions which many States have elected not to sign up to. Within the African regional
system, the protocol on establishing an African Court on Human Rights was added to the Afri-
can Charter on Human and Peoples’ Rights several years after the original treaty. This happened
because the system and political will had developed to the extent that it was feasible to establish a
human rights court (although note this protocol has been superseded).

1.1.6 Principal international human rights treaties

The following list contains the most common international human rights instruments, the ‘core
texts’ of the United Nations. The full text of each instrument can be obtained from the website of
the Office of the UN High Commissioner for Human Rights (www.ohchr.org):

The International Covenant on Civil and Political Rights 1966.

The International Covenant on Economic, Social and Cultural Rights 1966.
10 | SOURCES OF INTERNATIONAL HUMAN RIGHTS

The International Convention on the Elimination of all Forms of Racial Discrimination 1965.
The Convention on the Elimination of Discrimination against Women 1979.
The Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Pun-
ishment 1984.
The UN Convention on the Rights of the Child 1989.
The Convention on the Rights of Migrant Workers and Their Families 1990.
The Convention on the Rights of Persons with Disabilities 2006.
The International Convention on the Protection of All Persons from Enforced Disappear-
ances 2006.

These are the nine core United Nations treaties, though many other important instruments are
adopted under the auspices of the United Nations and its main organs, institutions and associated
organisations which pertain to human rights. The International Labour Organisation, for example,
has adopted more than 100 treaties on workers’ rights. From those, the governing body has identi-
fied eight conventions as ‘fundamental to the rights of human beings at work, irrespective of levels
of developments of . . . States’. There are two conventions in each of four principal categories:

Forced labour
Convention No. 29 on forced labour 1930
Convention No. 105 on the abolition of forced labour 1957
Child labour
Convention No. 138 on minimum age 1973
Convention No. 182 on worst forms of child labour 1999
Freedom of association
Convention No. 87 on freedom of association and protection of the right to organise 1948
Convention No. 98 on the right to organise and collective bargaining 1949
Equality
Convention No. 111 on discrimination (employment and occupation) 1958
Convention No. 100 on equal remuneration 1951

These are discussed in more detail in Chapter 8.

Regional organisations have also contributed towards the development of international
human rights, creating tabulations of fundamental rights and enforcement mechanisms for ensur-
ing their protection. The primary treaty is as follows; each system has several other relevant treaties.

Council of Europe
European Convention for the Protection of Human Rights and Fundamental Freedoms 1950
Organisation of American States
American Convention on Human Rights 1969
African Union
African Charter on Human and Peoples’ Rights 1981

Regional organisations and the protection of human rights under regional law are discussed more
in Chapter 5.

1.1.7 The issue of overlapping treaty obligations

Often the rights contained within the various human rights instruments overlap. The prohibition
on torture is thus found in the UN and European treaties on torture; the European, American,
 SOURCES OF INTERNATIONAL HUMAN RIGHTS | 11

African, Arab and CIS conventions on human rights; the International Covenant on Civil and Politi-
cal Rights; and the instruments on discrimination against women, race discrimination, children and
migrant workers, to give a few examples. The following list illustrates the overlap in the main inter-
national and regional human rights instruments. The table reflects which rights from the Universal
Declaration on Human Rights (which is used here as the core standard list of rights and freedoms)
appear in which subsequent international and regional instruments. The two international covenants
(which provide a binding tabulation of the Universal Declaration on Human Rights) and the Con-
vention on the Rights of the Child (which has attracted almost universal ratification) represent the
international system; the three major regional systems are deployed as examples of regional instru-
ments. Note that the table provides only an approximation of the overlap in rights and freedoms.

Right freedom (UDHR) ICCPR ICESCR CRC ECHR AmCHR AfCHPR

Art 2 Non- Arts 2, 3 Art 2, 3 Art 2 Art 14 Art 2

discrimination
Art 3 Life and liberty Arts 6, 9, 10 Art 6 Arts 2, 5 Arts 4, 7 Art 4
Art 4 Slavery Art 8 Art 4 Art 6 Art 5
Art 5 Torture Art 7 Art 37 Art 3 Art 5 Art 5
Art 7 Equal before Arts 14, 26 Art 40 Art 6 Arts 3, 24 Art 3
the law
Art 8 Effective national Art 13 Art 25 Art 7
remedy
Art 9 Arbitrary arrest Art 11 Art 40 Art 5
and detention
Art 10 Fair trial Art 14 Art 40 Art 6 Art 8 Art 7
Art 11 Presumption Art 14 Art 40 Arts 6, 7 Arts 8, 9 Art 7
of innocence
non-retrospective
Art 12 Private and Art 17 Arts 9, 10, 16 Art 8 Art 11
family life
Art 13 Freedom of Art 12 Art 10
movement
Art 14 Asylum Art 22 Art 22 Art 12
Art 15 Nationality Art 24 Art 7
Art 16 Marriage and Art 23 Art 10 Art 12 Art 17 Art 18
family
Art 17 Property Prot 1 Art 21 Art 14
Art 18 Thought, Art 18 Art 14 Art 9 Art 12 Art 8
conscience and
religion
Art 19 Opinion and Art 19 Art 13 Art 10 Art 13 Art 9
expression
Art 20 Assembly and Arts 21, 22 Art 8 Art 15 Art 11 Arts 15, 16 Arts 10, 11
association
Art 21 Political Art 25 Art 12, if it affects Art 23 Art 13
participation them
Art 22 Social security Art 9 Art 26
ESCR
Art 23 Work Arts 6, 7 Art 32 exploit Art 15
Art 24 Rest and leisure Art 7 Art 31
12 | SOURCES OF INTERNATIONAL HUMAN RIGHTS

Art 25 Adequate Arts 11, 12 Arts 24, 27 Art 16

standard of living,
health, food, etc.
Art 26 Education Arts 13, 14 Arts 28, 29 Prot 1 Art 17
Art 27 Cultural life Art 27 Art 15 Art 30 Art 17
Art 28 Social and Art 23
international order

KEY
ICCPR: International Convenant Civil Political Rights
ICESCR: International Covenant on Economic, Social and Cultural Rights
CRC: United Nations Convention on the Rights of the Child
ECHR: European Convention on Human Rights
AmCHR: American Convention on Human Rights
AfCHPR: African Charter on Human and Peoples’ Rights

The regional instruments in Africa and the Americas contain additional rights that are not
expressly mentioned in the Universal Declaration. These are therefore excluded from the table.
Evidently, many rights are replicated in several instruments. Non-discrimination clauses are vir-
tually uniform, although recent treaties contain more expansive grounds of discrimination. The
Charter of Fundamental Rights of the European Union 2000 Article 21 has one of the most
comprehensive non-discrimination clauses.

Questions
What advantages may there be in the same right appearing in several instruments?
Look at the ratification history of various States (available online) – why will some States ratify one instrument
but not another which has the same or lesser rights?

1.2 Customary international law

Not all international human rights are located in written treaties. Some rights may be found in
customary international law. This has some advantages, as not all States have signed up to and
ratified the principal international human rights instruments, yet they still remain bound by some
of the provisions of human rights. Similarly, elements of customary international law predate the
emergence of treaties enshrining generic norms of human rights. (See also Alston, P., ‘The Sources
of Human Rights Law: Custom, Jus Cogens, General Principles’ (1992) Australian Yearbook of
International Law 82.)

Smith, R., ‘Customary International Law’ in Smith and van den Anker (eds),
The Essentials of Human Rights, pp 79–80

Customary international law is binding on States and may have the force of law. In accordance
with the Statute of the International Court of Justice, the laws which the Court applies to
resolve disputes includes international custom, as evidence of a general practice accepted as
law and the general principles of law recognised by civilised nations (Article 38). Customary
international law differs from Treaties in that customary international law may not be written
down. States do not ‘sign up’ to customary international law or ratify it in the conventional way.
Rather, customary international law refers to a practice which States follow because they feel
legally obligated to do so. Customary international law was a very early form of international
 SOURCES OF INTERNATIONAL HUMAN RIGHTS | 13

law. To a large extent, particularly in human rights, it has been superseded by treaties –
prescribed formal legal obligations in written form.
There are two criteria which must be met for customary international law:

(1) Actual behaviour/practice of States. The International Court of Justice demands that for
behaviour to constitute customary international law, it must be ‘constant and uniform’.
Consistency is a key requirement – States must act in conformity with the rule. Not all
States must act in the specified manner; particular emphasis is given to those States
who are particularly affected by the law in question. For international human rights, it
would be necessary that almost all States act in conformity with the measure. There is
no prescribed length of time during which States should engage in the behaviour. As with
so many norms of law, much depends on the circumstances of the law in question. With
international human rights, the practice will usually have evolved over a long period of
time. State practice can be evidenced in a number of different ways. Recourse can be
had to actual practice, diplomatic statements, national law, treaties agreed to etc. With
international human rights, treaties and national law are probably the easiest elements
of State practice/behaviour to identify. National constitutions and legal systems can
be surveyed to gather evidence of consistency. The number of States acquiescing to
international and regional human rights instruments is another obvious indicator.
(2) Legal reason for such behaviour. There is a need for opinio juris to be demonstrated when
establishing customary international law. In other words, it is necessary to demonstrate
that States are acting in a consistent practice because they feel they are under a legal
obligation to do so. The International Court of Justice has noted that it is essential that
States feel they are acting in conformity with what amounts to a legal obligation. Mere
social usage does not suffice, the obligatory quality of the practice must be demonstrated.
Of course it is difficult to prove the reasons for the actions of any given State. Politics,
economics and diplomacy may all influence State practice. With international human
rights, the problem is compounded as human rights by nature involve the actions of a
State towards its nationals and other residents. It is necessary to indicate that the State
feels subservient to international law in its actions. In other words, the State does not
have the option to treat its nationals in a different manner. This has broad repercussions
for the notion of national/parliamentary supremacy as it requires a State to acknowledge
that it does not exist in a vacuum but rather its actions, even within its own territory, are
shaped by international obligations.

Both actual State practice and a legal obligation to comply with the ‘law’ must be demonstrated
before a rule of customary international law can be found. In the event of an international
dispute, it is the State arguing the existence of a rule of customary international law which
must demonstrate the criteria are met and thus the other State should have acted in conformity
with it.

Question
National laws can be used as evidence of opinio juris.Written constitutions are anobvious example. South
Africa is notable for its new human rights based constitution, while in other States, human rights may not be
tabulated in a written constitution.What other national law sources could thus be used as evidence of intent?

The voting practices of States in regional and international fora may be indicative of a given State’s
approach to particular issues. While it is clear that politics and diplomacy have an impact, voting
may provide evidence of State practice and even opinio juris.
In this respect, soft law (discussed further under Section 1.3 of this chapter) is also of rel-
evance. Declarations, trade agreement terms etc. can all provide evidence of State practice. They
can also reflect accepted norms.
14 | SOURCES OF INTERNATIONAL HUMAN RIGHTS

1.2.1 Altering and rejecting emergent customs

Custom can and does change over time and, just as with treaties, States can elect not to be bound
by the norm. However, for custom, a State must be more overt than passive in negating the rule in
question. A passive State may find itself bound by rules of custom through inactivity.

Smith, R., ‘Customary International Law’ in Smith and van den Anker (eds),
The Essentials of Human Rights, p 80

. . . any State refuting a customary rule must do so from the inception of the practice in question.
If a State only becomes part of the international community after the rule of customary
international law has been established, then that State is bound by the rule whether it likes it
or not. Given the international community has increased almost fourfold in the last fifty years,
the importance of pre-existing binding customary international law cannot be overlooked.

Note that for most States, this means that they are bound by customary provisions on international
human rights. Few, if any, States have negated customary provisions. Indeed, it appears that for the
international community, ever more rights, freedoms and associated principles are entering into
the realm of customary international law.
Given the vagaries of establishing customary international law, the most common alteration
to custom occurs not through changed State usage but through codification of the customary
practice in a treaty.

1.2.2 Customary guarantees against torture and slavery

The prohibitions on slavery and on torture are two obvious examples of human rights provisions
which transcend the fundamental treaties and now can be regarded as customary international
law. Consequently, States are bound to refrain from engaging in slavery or torture, irrespective of
whether or not they have ratified any international human rights instruments.

SLAVERY CONVENTION 1926, Article 2

The High Contracting Parties undertake, each in respect of the territories placed under its
sovereignty, jurisdiction, protection, suzerainty or tutelage, so far as they have not already
taken the necessary steps:

(a) To prevent and suppress the slave trade.

(b) To bring about, progressively and as soon as possible, the complete abolition of slavery in
all its forms.

As the prohibition on slavery has roots traceable some 200 years back, few States have had the
opportunity (and none have availed themselves of it) to steadfastly indicate an intention not to be
bound by this norm. The United Nations itself is predicated on respect for the dignity and worth
of the human person (Preamble, Charter of the United Nations 1945), a respect which clearly
presupposes the abolition of slavery.
More recent condemnations of slavery and the slave trade, such as those issued at the World
Conference against Racism and Racial Discrimination, Xenophobia and Related Intolerance
2001, add further universal support for the customary nature of the prohibition. Subsequent
review conferences further focused attention on these issues. The number and identity of treaties
which the State in question has ratified is irrelevant, as the State is bound purely because the pro-
hibition on slavery is so well established that States feel legally bound by it and act in accordance
with it. How then, do these principles apply to the prohibition on torture?
 SOURCES OF INTERNATIONAL HUMAN RIGHTS | 15

UNIVERSAL DECLARATION OF HUMAN RIGHTS, Article 5

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

For torture (as opposed to degrading or cruel treatment), the same is arguably true. Most States
have ratified at least one article prohibiting torture (as noted previously, the prohibition appears in
many treaties). Difficulties, however, remain, due to problems of definition. Only the most abhor-
rent treatments may fall within the (customary) prohibition on torture. It would be more difficult
to extend the remit of custom to other infringing treatment which falls short of torture, due to a
lack of consensus on definition. There are also challenges with psychological torture.
International and universal revulsion over practices of genocide make it another candidate
for customary law, indeed jus cogens. Indeed, the international community roundly condemned
genocide and pledged to take steps to prevent further occurrences not least on anniversaries of
the Rwandan Genocide of 1994. Genocide now gives rise to individual liability not only under
the universal jurisdiction doctrine (whereby any State may prosecute an individual responsible for
genocide irrespective of where the acts in point occurred) but also in terms of the Rome Statute
of the International Criminal Court (see Chapter 6).

1.2.3 Case study: extracting custom from the United Nations

Convention on the Rights of the Child
The United Nations Convention on the Rights of the Child has been ratified by all UN Mem-
ber States of the United Nations except one. The United States of America has failed to ratify
it, although it has noted in universal periodic reviews before the UN Human Rights Council
that it was reconsidering its position. Leaving aside for the moment the question of why States
will ratify an expansive list of children’s rights and yet avoid ratifying much shorter lists of basic
human rights, the mere fact that most of the world has accepted rights of the child produces
the potential for customary law. However, it is not possible to infer that all the articles of the
Convention form customary international law. Not all States comply with all the norms and
some are, in essence, more aspirational than others, as the concluding observations of the Com-
mittee on the Rights of the Child demonstrate. Nevertheless, several principles underpin the
UN Convention, including the best interest of the child, a concept central to decision-making
processes.

UN CONVENTION ON THE RIGHTS OF THE CHILD 1989, Article 3(1)

In all actions concerning children whether undertaken by public or private social welfare
institutions, courts of law, administrative authorities or legislative bodies, the best interests of
the child shall be a primary consideration.

Reinforcing provisions appear throughout the Convention. It is alluded to in Article 40 on juve-

nile offenders, and Article 18 acknowledges the best interests of the child as the ‘basic concern’
of parents and legal guardians. Arguably, the ‘best interests of the child’ principle now transcends
the treaty and is rightly considered part of customary international law. This is the view of some
prominent international commentators.

Question
While rendering the best interests of the child part of customary international law may have little impact in the
USA, which has been resilient to diplomatic efforts in favour of securing ratification, an emergent customary
norm may have significant impact in the national laws of many contracting States. Why?
16 | SOURCES OF INTERNATIONAL HUMAN RIGHTS

While some treaties can crystalise into customary international law, other treaties may from the
outset reflect norms of customary law. Such treaties codify the custom. They do not override it,
other than in respect of the States which sign up to the instrument.

1.2.4 Jus cogens

Related to customary international law is the concept of jus cogens: those norms of law which are
effectively entrenched in the international regime and are non-negotiable.

VIENNA CONVENTION ON THE LAW OF TREATIES 1969, Article 53

Treaties conflicting with a peremptory norm of general international law (jus cogens)

A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general
international law. For the purposes of the present Convention, a peremptory norm of general
international law is a norm 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.

Such peremptory norms, or jus cogens, are binding on all States irrespective of their treaty obli-
gations and irrespective of their evidenced State practice. No State can legally act against these
principles. In terms of international human rights, the prohibitions on slavery and genocide, the
prohibition on racial discrimination and the right of all peoples to self-determination (in the sense
of decolonisation) are obvious examples.
In jus cogens, one effectively finds the immutable public policy provisions, or entrenched con-
cepts of the international community. Some elements of international human rights law apply erga
omnes – that is, all States are bound by the provision. See for example Barcelona Traction Light and
Power Company case (Belgium v Spain) [1970] ICJ Reps 32, para 33 re genocide, protection from
slavery and racial discrimination; see also Case Concerning East Timor (Portugal v Australia) [1995]
ICJ Reps 102.
Further examples can be drawn from judgments of the International Court of Justice
with respect to international humanitarian and criminal law. See, for example, the Advisory
Opinion on the Legality of the Threat or Use of Nuclear Weapons [1996] ICJ Reps 257 referring to
fundamentals of international humanitarian law as ‘intransgressible principles of international
customary law’.

1.3 Other international and regional instruments

In addition to legally binding law enshrined in treaties or reflecting customary practice, interna-
tional law also has a large body of material known as ‘soft law’. Soft law includes an array of dif-
ferent measures which can considerably influence and shape State practice. In essence, they can be
regarded as statements of intent on the part of States. Moreover, they can be important indicators
of State practice, thereby contributing towards the evolution of customary law.
Key instruments include declarations of international and regional organisations. These can
prove to be of extreme importance. The Universal Declaration of Human Rights is a declaration
of the General Assembly of the United Nations. As such, it is not strictly legally enforceable,
although obviously it is of strong moral force and represents the agreed viewpoint of the interna-
tional community. Moreover, as is mentioned previously, some elements of the Universal Declara-
tion are now so widely accepted as to be deemed customary international law.
Consider the impact of decolonisation. It swept the world in the era of the adoption of the
following declaration.
 SOURCES OF INTERNATIONAL HUMAN RIGHTS | 17

GENERAL ASSEMBLY RESOLUTION 1514 (XV) DECLARATION ON THE GRANTING OF

INDEPENDENCE TO COLONIAL COUNTRIES AND PEOPLES 1960

1 The subjection of peoples to alien subjugation, domination and exploitation constitutes a

denial of fundamental human rights, is contrary to the Charter of the United Nations and
is an impediment to the promotion of world peace and co-operation.
2 All peoples have the right to self-determination; by virtue of that right they freely determine
their political status and freely pursue their economic, social and cultural development.
3 Inadequacy of political, economic, social or educational preparedness should never serve
as a pretext for delaying independence.
4 All armed action or repressive measures of all kinds directed against dependent peoples
shall cease in order to enable them to exercise peacefully and freely their right to complete
independence, and the integrity of their national territory shall be respected.
5 Immediate steps shall be taken, in Trust and Non-Self-Governing Territories or all other
territories which have not yet attained independence, to transfer all powers to the peoples
of those territories, without any conditions or reservations, in accordance with their freely
expressed will and desire, without any distinction as to race, creed or colour, in order to
enable them to enjoy complete independence and freedom.
6 Any attempt aimed at the partial or total disruption of the national unity and the territorial
integrity of a country is incompatible with the purposes and principles of the Charter of
the United Nations.
7 All States shall observe faithfully and strictly the provisions of the Charter of the United
Nations, the Universal Declaration of Human Rights and the present Declaration on the
basis of equality, non-interference in the internal affairs of all States, and respect for the
sovereign rights of all peoples and their territorial integrity.

As is discussed in Chapter 8, the General Assembly’s Declaration on the Rights and Responsibil-
ity of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognised
Human Rights and Fundamental Freedoms (GA Resn 53/144 (1999)) has also had considerable
impact on human rights. This instrument seeks to lay some responsibility for human rights at the
door of individuals and other non-State entities.
From the perspective of the international human rights lawyer, many declarations of the Gen-
eral Assembly are also indicative of consensual political will among States, and many are important
precursors to more legally enforceable international human rights. Frequently, major declarations
are followed by international treaties.

Children’s rights
Declaration on the Rights of the Child 1959
United Nations Convention on the Rights of the Child 1989

Racial discrimination
Declaration on the Elimination of All Forms of Racial Discrimination 1963
International Convention on the Elimination of All Forms of Racial Discrimination 1965

Discrimination against women

Declaration on the Elimination of Discrimination against Women 1967
Convention on the Elimination of All Forms of Discrimination against Women 1979

Question
Compare and contrast the rights in the declaration and the subsequent convention – some of the texts are
reproduced in part below (see, for example, Chapter 2, Sections 2.16 and 2.2.2.1 and Chapter 14 Protecting
and promoting the rights of women); are there many differences?
18 | SOURCES OF INTERNATIONAL HUMAN RIGHTS

Other declarations are evidence of international concern although their content is yet to be con-
solidated in international treaties.

Declaration on the Elimination of All Forms of Intolerance and of Discrimination based on

Religion or Belief 1981
Declaration on the Right to Development 1986
Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Lin-
guistic Minorities 1992

Question
Why might international consensus on the terms of a binding treaty on these issues be difficult to achieve?

1.3.1 Jurisprudence
Considerable jurisprudence has emerged over the last half century, elaborating on a wide range of
international human rights provisions. Some of this jurisprudence emanates from the international
and regional treaty monitoring bodies, other elements from national courts. A major feature of
international human rights law is the use of jurisprudence from other jurisdictions to shape judg-
ments. Advocates and judges frequently employ cases from other regional and national systems to
help extrapolate principles of law and determine the scope and nature of particular human rights.
Accordingly, it is not possible to definitively state which laws will be applied to a particular case.
First, international and regional systems do not operate within a system of binding precedents and
thus decide cases based on the facts before them along with contemporary opinions and practices.
Second, as human rights are constantly evolving, tribunals and courts may have recourse to the
dicta of bodies in other organisations and States in order to ascertain current thought on a par-
ticular issue. Reference to other sources may be covert or overt, depending on the body involved.
There is thus a degree of consistency in the jurisprudence. Similarly, it is important to bear in mind
that restricting study to a single treaty will not afford the reader a complete understanding of the
subject. Human rights are indivisible, interdependent and universal, thus justifying treating the
various instruments as elements of an organic whole.

1.3.2 Case study: corporal punishment of children

The issue of corporal punishment of children has evoked considerable discussion around the world
in recent years. Much of the jurisprudence is based on the prohibition on torture and other cruel,
inhuman and degrading treatment or punishment, a provision common to most instruments and
subject to more detailed tabulation in the UN and European conventions on torture.

1.3.2.1 The salient treaty provisions

Most instruments contain a prohibition on torture and cruel, inhuman and degrading treatment or
punishment – these provisions are also used to assess whether corporal punishment is acceptable.
For example, the European Court of Human Rights considered that judicial corporal punish-
ment was contrary to Article 3 of the European Convention on Human Rights (see e.g. Tyrer v
United Kingdom, Series A, vol. 26, European Court of Human Rights). Note also that corporal
punishment of convicted prisoners had been condemned in South Africa (S v Staggie (1990) 1 SA
Criminal Law Reports 669 and S v Daniels (1991) 2 SA Criminal Law Reports 403).

UN CONVENTION ON THE RIGHTS OF THE CHILD 1989, Article 19

1 States Parties shall take all appropriate legislative, administrative, social and educational
measures to protect the child from all forms of physical or mental violence, injury or abuse,
 SOURCES OF INTERNATIONAL HUMAN RIGHTS | 19

neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while

in the care of parent(s), legal guardian(s) or any other person who has the care of the child.
2 Such protective measures should, as appropriate, include effective procedures for the
establishment of social programmes to provide necessary support for the child and for
those who have the care of the child, as well as for other forms of prevention and for
identification, reporting, referral, investigation, treatment and follow-up of instances of
child maltreatment described heretofore, and, as appropriate, for judicial involvement.

This raises issues concerning non-judicial corporal punishment, for example, corporal punishment
of children in schools or in the home. A General Comment of the UN Committee on the Rights
of the Child makes clear its view that no forms of corporal punishment are acceptable:

UN Committee on the Rights of the Child General Comment 8 (2006) UN Doc. CRC/C/GC/8

2. The Convention on the Rights of the Child and other international human rights instruments
recognize the right of the child to respect for the child’s human dignity and physical integrity
and equal protection under the law. The Committee is issuing this general comment to
highlight the obligation of all States parties to move quickly to prohibit and eliminate all
corporal punishment and all other cruel or degrading forms of punishment of children and
to outline the legislative and other awareness-raising and educational measures that States
must take.

General Comment 13 (2011) on the right of the child to freedom from all forms of violence is also
relevant in this context. The Committee on the Rights of the Child is unequivocal in condemn-
ing corporal punishment. It frequently urges States to reconsider their policies and practices in
the field, removing judicial corporal punishment, corporal punishment in State schools and then
commencing the process of re-education to support the eradication of corporal punishment as a
general practice. The issue has also been raised frequently by (primarily European) States during
universal periodic review.
Consider also the European Social Charter.

EUROPEAN SOCIAL CHARTER (REVISED) 1996, Article 17

The right of children and young persons to social, legal and economic protection

With a view to ensuring the effective exercise of the right of children and young persons to grow
up in an environment which encourages the full development of their personality and of their
physical and mental capacities, the Parties undertake, either directly or in co-operation with
public and private organisations, to take all appropriate and necessary measures designed:

1 . . .
(b) to protect children and young persons against negligence, violence or exploitation;
2 to provide to children and young persons a free primary and secondary education as well
as to encourage regular attendance at schools.

The European Committee of Social Rights supervises the implementation of the European Social
Charter and has expounded its view of Article 17:

COUNCIL OF EUROPE EUROPEAN COMMITTEE OF SOCIAL RIGHTS,

CONCLUSIONS XV-2, VOL. 1 (2001)

Article 17 requires a prohibition in legislation against any form of violence against children,
whether at school, in other institutions, in their home or elsewhere.
20 | SOURCES OF INTERNATIONAL HUMAN RIGHTS

In spite of the foregoing, the issue remains contentious. Many parents claim religious support
for physically chastising their children. Others dislike the idea of the law regulating what goes
on within the home. For such reasons, there have been few attempts to criminalise all corporal
punishment within the home. However, defences against assaulting children (e.g. claiming it was
corporal punishment and thus acceptable) are being eroded in many countries and even being
removed from criminal codes and laws.

1.3.2.2 The jurisprudence

The following cases demonstrate how national and regional law has approached the issue of cor-
poral punishment. These cases also illustrate how jurisprudence can evolve – international human
rights are constantly advancing to provide an ever greater standard of care for individuals.

European Court of Human Rights

A v United Kingdom (1998) Vol. 1998-VI, No. 90

The stepfather of A (a nine-year-old boy) was charged with assault. The boy had sustained
severe bruising and markings (which lasted several days) from beatings with a cane. At trial
in England, the jury accepted the stepfather’s defence of reasonable chastisement. As a result,
the stepfather was acquitted and freed. Representatives of the boy raised a case before the
European Court of Human Rights claiming that the United Kingdom Government had allowed the
boy’s right to freedom from inhuman and degrading treatment or punishment to be infringed. In
essence, the argument which prevailed was that the State owed a positive obligation to protect
the right of the child. This could only be discharged through the application of criminal law.

21. The Court recalls that the applicant, who was then nine years old, was found by the
consultant paediatrician who examined him to have been beaten with a garden cane which
had been applied with considerable force on more than one occasion (see paragraph 9 above).
The Court considers that treatment of this kind reaches the level of severity prohibited by
Article 3.

22. It remains to be determined whether the State should be held responsible, under Article 3,
for the beating of the applicant by his stepfather.
The Court considers that the obligation on the High Contracting Parties under Article 1 of
the Convention to secure to everyone within their jurisdiction the rights and freedoms defined
in the Convention, taken together with Article 3, requires States to take measures designed
to ensure that individuals within their jurisdiction are not subjected to torture or inhuman
or degrading treatment or punishment, including such ill treatment administered by private
individuals (see, mutatis mutandis, the H.L.R. v. France judgment of 29 April 1997, Reports 1997-
III, p. 758, § 40). Children and other vulnerable individuals, in particular, are entitled to State
protection, in the form of effective deterrence, against such serious breaches of personal
integrity (see, mutatis mutandis, the X and Y v. the Netherlands judgment of 26 March 1985,
Series A no. 91, pp. 11–13, §§ 21–27; the Stubbings and Others v. The United Kingdom judgment
of 22 October 1996, Reports 1996-IV, p. 1505, §§ 62–64; and also the United Nations Convention
on the Rights of the Child, Articles 19 and 37).

23. The Court recalls that under English law it is a defence to a charge of assault on a child
that the treatment in question amounted to ‘reasonable chastisement’ (see paragraph 14
above). The burden of proof is on the prosecution to establish beyond reasonable doubt that
the assault went beyond the limits of lawful punishment. In the present case, despite the
fact that the applicant had been subjected to treatment of sufficient severity to fall within the
scope of Article 3, the jury acquitted his stepfather, who had administered the treatment (see
paragraphs 10–11 above).
 SOURCES OF INTERNATIONAL HUMAN RIGHTS | 21

24. In the Court’s view, the law did not provide adequate protection to the applicant against
treatment or punishment contrary to Article 3. Indeed, the Government have accepted that this
law currently fails to provide adequate protection to children and should be amended.
In the circumstances of the present case, the failure to provide adequate protection
constitutes a violation of Article 3 of the Convention.

(Note that this notion of a positive obligation to protect rights will be considered in Chapter 2. It
is also of relevance when discussing violence against women in the home, Chapter 14.)
Perhaps unsurprisingly, a ban on physical chastisement of children was not deemed an inter-
ference with the rights to family life, which are protected under the European Convention for the
Protection of Human Rights and Fundamental Freedoms.
Similar issues have been raised and the approach of the European Court and United Nations
Committee on the Rights of the Child is discussed in the South African Constitutional Court
(S v Williams et al. (1995) 3 SA 362 (Constitutional Court)) and the English House of Lords (R v
Secretary of State for Education and Employment and Others ex p Williamson [2005] UKHL 15).
Note the approach of the Canadian Supreme Court.

Canadian Foundation for Children, Youth and the Law v Canada [2004] I SCR 76

The Supreme Court of Canada was asked to consider the constitutionality of s 43 of the Criminal
Code which provides ‘Every schoolteacher, parent or person standing in the place of a parent
is justified in using force by way of correction toward a pupil or child, as the case may be, who
is under his care, if the force does not exceed what is reasonable under the circumstances’.
The Canadian Foundation for Children, Youth and the Law contended that this provision was
contrary to three provisions of the Canadian Charter of Rights and Freedoms: s 7 as the
exception doesn’t further the interests of the child, s 12 as it condones cruel and unusual
punishment or treatment and s 15 by denying children the protection against assault to which
adults are entitled. The Court dismissed the appeal although Justices Deschamps and Arbour
(who since has served as UN High Commissioner for Human Rights) dissented, deeming the
provision contrary to human rights.

32. Canada is a party to the United Nations Convention on the Rights of the Child. Article 5 of the
Convention requires State parties to

‘respect the responsibilities, rights and duties of parents or .  .  . other persons

legally responsible for the child, to provide, in a manner consistent with the evolving
capacities of the child, appropriate direction and guidance in the exercise by the child
of the rights recognized in the present Convention.’

Article 19(1) requires the State party to

‘protect the child from all forms of physical or mental violence, injury or abuse, neglect
or negligent treatment, maltreatment or exploitation, including sexual abuse, while in
the care of parent(s), legal guardian(s) or any other person who has the care of the child.’

Finally, Article 37 (a) requires State parties to ensure that ‘[n]o child shall be subjected to
torture or other cruel, inhuman or degrading treatment or punishment’. This language is also
found in the International Covenant on Civil and Political Rights, Can. T.S. 1976 No.47, to which
Canada is a party. Article 7 of the Covenant states that ‘[n]o one shall be subjected to torture
or to cruel, inhuman or degrading treatment or punishment.’ The preamble to the International
Covenant on Civil and Political Rights makes it clear that its provisions apply to ‘all members of
the human family’. From these international obligations, it follows that what is ‘reasonable
under the circumstances’ will seek to avoid harm to the child and will never include cruel,
inhuman or degrading treatment.
22 | SOURCES OF INTERNATIONAL HUMAN RIGHTS

33. Neither the Convention on the Rights of the Child nor the International Covenant on Civil and
Political Rights explicitly require State parties to ban all corporal punishment of children. In
the process of monitoring compliance with the International Covenant on Civil and Political
Rights, however, the Human Rights Committee of the United Nations has expressed the view
that corporal punishment of children in schools engages Article 7’s prohibition of degrading
treatment or punishment: see for example. Report of the Human Rights Committee, vol. 1, UN
GAOR, Fiftieth Session, Supp. No. 40 (A/50/40) (1995), at paras. 426 and 434; Report of the
Human Rights Committee, vol. 1, UN GAOR, Fifty-fourth Session, Supp. No. 40 (A/54/40) (1999),
at para. 358; Report of the Human Rights Committee, vol. 1, UN GAOR, Fifty-fifth Session, Supp.
No. 40 (A/55/40) (2000), at paras. 306 and 429. The Committee has not expressed a similar
opinion regarding parental use of mild corporal punishment.

34. Section 43’s ambit is further defined by the direction to consider the circumstances under
which corrective force is used. National and international precedents have set out factors to
be considered. Article 3 of the European Convention on Human Rights, 213 U.N.T.S. 221, forbids
inhuman and degrading treatment. The European Court of Human Rights, in determining
whether parental treatment of a child was severe enough to fall within the scope of Article 3,
held that assessment must take account of ‘all the circumstances of the case, such as the
nature and context of the treatment, its duration, its physical and mental effects and, in some
instances, the sex, age and State of health of the victim’: Eur Court H.R., A. v United Kingdom,
judgment of 23 September 1998, Reports of Judgments and Decisions 1998-VI, p. 2699. These
factors properly focus on the prospective effect of the corrective force upon the child, as
required by s 43.

Note however, that a limitation on corporal punishment, in the form of prohibiting it in schools
and other forms of organised day care, has been upheld even where no similar ban is imposed on
parents.

1.3.2.3 Comment
Although in no international or regional instrument is the corporal punishment of children explic-
itly proscribed, it is clear that the issue is being monitored and States are being encouraged to
dramatically limit the use of the defence of reasonable chastisement, if not abolish it altogether.
The cross-referencing of the various bodies is also apparent. Momentum is undoubtedly building
in support of the abolition of corporal punishment of children. This also indicates the evolving
nature of human rights – after all, it took many years last century before legislation evolved to
prevent physical violence and punishment intra-spouses.

1.4 A practical guide to sources

For the student of international human rights law, there are three main sources to which one will
most likely have recourse: treaties, jurisprudence and academic commentaries. In this section, each
will be considered in turn, evaluating the importance of each and guiding the reader to appropriate
(and accessible) locations.
No course and no book can ever provide the student/reader with adequate information on
all human rights and freedoms. Like other areas of law and international relations, human rights
is a vast subject which is still evolving. In the twenty-first century, almost all primary material
relating to international human rights is available on the internet, generally free on open access
sites. This text and materials book seeks to utilise this valuable and expansive resource to dem-
onstrate the wealth of material available online and help the reader develop his or her capacity to
research international human rights. Learning to navigate around the online sources will enable
one to research the primary international material on the human rights situation of any country
 SOURCES OF INTERNATIONAL HUMAN RIGHTS | 23

in the world. However, given the topicality of human rights, inevitably there is a lot of informa-
tion online which is polemical and, in some instances, biased. This kind of material has its use but
is best viewed in the context of the political, economic and moral attitude of the author of the
source. In this text, preference will be given to material generated by the international organisa-
tions. Undoubtedly, this can also be biased, not least as many of the reports on States are based
on the State’s own self-analysis of its human rights situation. Nevertheless, these documents are a
valuable source of information on human rights, and their integrity is constantly being heightened
through the work of the UN bodies. Politics and law are always co-dependent when dealing with
human rights.

Books on researching international human rights and

on the wealth of areas covered by international human
rights
Rhona Smith and Lee McConnell (eds), Research Methods in Human Rights (Rout-
ledge 2018)
Bård A. Andreassen, Hans-Otto Sano and Siobhán McInerney-Lankford (eds),
Research Methods in Human Rights (Edward Elgar 2017)
Thomas Cushman (ed.), Handbook of Human Rights (Routlegde 2012)
Conor Gearty and Costas Douzinas (eds), The Cambridge Companion to Human Rights
Law (Cambridge University Press 2012)
Anna Grear and Louis J. Kotzé (eds), Research Handbook on Human Rights and the
Environment (Edward Elgar Publishing 2015)
Sarah Joseph and Adam McBeth (eds), Research Handbook on International Human
Rights Law (Edward Elgar Publishing 2010)
Robert Kolb and Gloria Gaggioli (eds), Research Handbook on Human Rights and
Humanitarian Law (Edward Elgar Publishing 2013)
Anja Mihr and Mark Gibney (eds), The SAGE Handbook of Human Rights (SAGE
Publishing 2014)
Scott Sheeran and Nigel Rodley (eds), Routledge Handbook of International Human
Rights Law (Routledge 2013)
Dinah Selton (ed.), The Oxford Handbook of International Human Rights Law (Oxford
University Press 2013)

There is literally no end to the range of material available on international human rights law.
The standard universal search engines undoubtedly produce relevant material. However, often the
initial results are extensive and a more sophisticated approach to informational retrieval is desirable.
Recognising whether a source is official or not is key to understanding the weight which can be
attributed to that source. The following guide focuses on official sources from the United Nations
and from key academic and practitioner orientated sites which replicate UN information.

1.4.1 Treaties
Just as with public international law itself, treaties are the primary source of international human
rights law. There are hundreds of instruments, all legally binding, which contribute towards the
creation of law in the area. The full text of selections of the main international and regional
instruments can be found on the internet. Each organisation publishes its primary texts on its
24 | SOURCES OF INTERNATIONAL HUMAN RIGHTS

own website. The following are the principal portal websites for the named organisations. Clearly
marked links go to the main documents and instruments associated with each organisation:

United Nations: www.un.org

United Nations Office of the High Commissioner for Human Rights: www.ohchr.org
International Labour Organization: www.ilo.org
Council of Europe: www.coe.int
Organization for Security and Co-operation in Europe: www.osce.org
European Union: europa.eu
Organization of American States: www.oas.org
African Union: www.au.int
League of Arab States: www.lasportal.org

It is useful for students to familiarise themselves with the portal sites of the main organisations
which they will be studying. Create a list or bookmark the individual homepages to create your
own bespoke online library of source materials.
Each host organisation holds the authentic texts of its treaties in its archives and each con-
tracting State holds in its archives copies of the treaties to which it is party. This means that it is
sometimes possible to trace the text of a treaty through the archives (physical or electronic) of a
State. Obviously the principal limitation is that States may only hold the texts of the treaties to
which they are party. The advantage is that some States place all such texts online, and in local
languages, thereby facilitating access.
In addition, there are a number of compilations of documents which have been published as
edited volumes. These contain a selection of treaties, selected and sometimes edited down by the
editors. The following are examples:

Brownlie, I and Goodwin-Gill, G (eds), Brownlie’s Documents on Human Rights, 6th edn, 2010,
Oxford: OUP.
Ghandhi, P, Blackstone’s International Human Rights Documents, 8th edn, 2012, Oxford: OUP.
Smith, R, Core Documents on European and Internaonal Human Rights, 4th edn, 2019, Basingstoke:
Palgrave Macmillan.

Irrespective of the source used, with treaties, there are several important questions which must be
considered when researching treaties as a source of human rights:

(1) What rights and obligations does it contain? This information is easily ascertainable
from the text of the treaty. Further elaboration may be available in an explanatory memoran-
dum published alongside the treaty which contains the rationale behind the adoption of the
instrument and an explanation of the intended effect of its provisions.
(2) Is it in force? Most treaties require a minimum number of States to ratify/accede before the
instrument enters into force. The principal websites usually indicate whether or not a particu-
lar treaty is in force, failing which, it is possible to ascertain the relevant criteria (usually found
in the General Provisions near the end of a treaty) and then determine the exact number of
Contracting States. The treaty will enter into force the stated number of days/months follow-
ing receipt of the required number of ratifications/instruments of accession.
(3) Who has ratified it? Lists of high contracting parties are available from the websites of the
principal organisations. Check the date of ratification as there may be a delay between ratifi-
cation and entry into force of the treaty for a given State. The period of any such delay will
be specified in the treaty. See also the visual representation of ratifications, for example RWI
Theme Maps: OHCHR indicators.ohchr.org
 SOURCES OF INTERNATIONAL HUMAN RIGHTS | 25

(4) What impact has it had on national law? This is particularly important if a State is
required under national law to adopt specific legal measures implementing a treaty. Regard
must be had to the constitution of the State, national laws and decisions of national courts.
Such information is obviously country-specific.

1.4.2 Jurisprudence
Alongside the primary texts, recourse will be had to the evolving jurisprudence, in its widest con-
text, which supports the treaties. This jurisprudence may be classified as interpretative and guiding
comments, reports from States and treaty monitoring bodies, case law and reports from NGOs
and other interested parties. As with treaties, most of this information can now be found online.
This greatly facilitates research, as it is sometimes difficult to find the originals in the archives of
individual States. The material relevant to each State is normally located in the archives of the
Foreign Affairs Ministry (in the UK, the Foreign and Commonwealth Office: www.gov.uk/fco).

1.4.2.1 Interpretative and guiding comments

In order to better understand the scope and nature of the various instruments, it is necessary to
examine what the drafters intended and what the monitoring bodies consider important. The
travaux préparatoires of the treaty can provide evidence of the drafters’ intention but may not always
be easily accessible. They are often kept in the archives of the regional or international organisation
under whose auspices the instrument was drafted (or the drafting conference was convened). Many
such archives are now being transferred into web-friendly formats and are thus available online.
Others require visits to specialised libraries and/or the relevant archives.
Explanatory memoranda may accompany the treaty which, although not legally binding,
may also prove informative. Bodies such as the Council of Europe regularly publish an explana-
tory memorandum to accompany new treaties. These are usually available online. United Nations
Treaty Monitoring Bodies issue statements on the scope and nature of the obligations incumbent
on States. These General Comments are discussed further in Chapter 6.

1.4.2.2 State and treaty monitoring bodies reports

All nine major United Nations international human rights treaties have treaty monitoring bodies
to oversee their operation. Compliance by States is monitored primarily through a system of regu-
lar self-evaluative reports (see Chapter 6). Regional treaties, such as the European Social Charter,
are also implemented through reports from States to a regional committee. Reading State reports
and the observations of the salient committee thereon indicates the extent to which a State is
complying with the treaty and the views of the committee as to examples of good practice, issues
requiring further attention, areas of concern, etc. Moreover, as the extract on the CRCs General
Comment 8 demonstrates (see Section 1.3.2.1) treaty bodies can also clarify and sometimes extend
the scope of rights and freedoms. They may also provide an explanation of the practical nature of
the rights.

Question
Look up concluding observations of the Committee on Economic Social and Cultural Rights – many of the
rights and freedoms in the associated treaty are to be achieved ‘progressively’. Follow through some State reports
and observations– is progressive realisation of rights in fact being achieved?

In locating the observations of the treaty monitoring bodies, reference should be had to the web-
sites of the body in question. The website of the Office of the High Commissioner for Human
Rights, for example, provides full copies of most State reports and concluding observations. These
26 | SOURCES OF INTERNATIONAL HUMAN RIGHTS

can be searched by country, by treaty, or by symbol (UN Document number); the latter is useful
for searching the Treaty Bodies Database.
The following is an example of the information available online. The reports are available
in various languages: in the United Nations, E – English, F – French, S – Spanish, R – Russian
(Cyrillic), C – Chinese (Mandarin), A – Arabic.

State Date of State List of Reply Delegate Concluding observations Reply from State
meeting report issues comments of committee (if applicable)

Session E/F/R E E E/F/R/S E/F

Note that not every Committee examines all aspects of the treaty and the State’s compliance
therewith at each session. Further, note that recourse to the views concerning other States can be
useful in researching issues as they may be indicative of the view of the Committee and the direc-
tion in which the right is evolving.

1.4.2.3 Case law

Although there are not as many cases on international human rights as national law, the African,
American and European courts and commissions on human rights have made valuable contribu-
tions to the breadth and depth of understanding of human rights. Their cases and comments
evidence the nature and scope of human rights and may sometimes be transferable. The extracts
on corporal punishment (see Section 1.3.2) provide an example. Similarly, the opinions of the
United Nations treaty monitoring bodies on individual communications enrich our understand-
ing of the rights and obligations in the various treaties as well as reinforcing the indivisibility and
universality of human rights. The following websites provide access to the case law and individual
communications:

Tbinternet.ohchr.org now: United Nations treaty bodies search

www2.ohchr.org/english/bodies/hrc/index.htm: United Nations Human Rights Committee
www2.ohchr.org/english/bodies/cerd/index.htm: Committee on the Elimination of Racial
Discrimination
www2.ohchr.org/english/bodies/cat/index.htm: Committee against Torture
www2.ohchr.org/english/bodies/cedaw/index.htm: Committee on the Elimination of Dis-
crimination against Women
www.echr.coe.int: website of the European Court of Human Rights; the HUDOC search
engine allows for searches on articles, parties or topics
www.achpr.org: website of the African Commission on Human and Peoples’ Rights, with a
section on decisions
www.corteidh.or.cr: website of the Inter-American Court of Human Rights, with access to
its case law

Consulting these sources will provide an excellent overview of the contemporary nature of any
given treaty or, indeed, of any particular right or freedom.
A few websites consolidate the primary materials, providing ready access to the texts of the
instruments, the reports of States and monitoring bodies and case law. These can be an excellent
resource as they are effectively virtual libraries with the added benefit of clear categorisation of the
materials and/or search engines.
 SOURCES OF INTERNATIONAL HUMAN RIGHTS | 27

1.4.2.4 Virtual library websites

Although the Office of the High Commissioner for Human Rights and the principal regional
bodies have a comprehensive range of materials available online, additional external sites may also
prove useful.

The SIM document centre of the University of Utrecht. Searches can be made for individual
treaty articles and jurisprudence thereon as well as for the texts of the relevant materials. A
schematic system classifies all the material and facilitates navigation.
The University of Minnesota virtual human rights library. This also provides links to selected
jurisprudence of the regional bodies: http://hrlibrary.umn.edu/
Professor Ann Bayefsky established this site with access to the main UN materials. There is also
a useful search facility which enables the user to identify all materials (treaty articles, moni-
toring bodies’ reports and jurisprudence) which impact on a particular subject or theme.
Searches can also be made for materials related to individual countries: www.bayefsky.com

1.4.2.5 Reports of NGOs and other bodies

In addition, NGO sites frequently contain the relevant treaty texts and extracts from relevant
State reports. The quality of NGO sites can vary and, of course, some may specifically select
material in order to provide a polemical view on a topic. However, as recourse can easily be had
to the primary materials through the official organisation sites, the relevance of NGO sites can
easily be ascertained. Without doubt, they have great value in concentrating all the materials
on a given topic, often providing practical and theoretical analysis thereof. It is impossible to
list all the NGOs which have useful websites as there are so many; thus only a few examples
are given.

United Nations NGO Network: www.ngos.net

Amnesty International: www.amnesty.org
Human Rights Watch: www.hrw.org
Save the Children: www.savethechildren.org
Anti-slavery International: www.antislavery.org
Survival International: www.survival-international.org
Right to Education: www.right-to-education.org
Corporal punishment: www.childrenareunbeatable.org.uk
Global Campaign for Free Expression: https://www.article19.org/

In addition, many other bodies publish material of use in ascertaining the content and scope of
the main human rights.

1.4.3 Academic commentaries

Finally, academic commentaries can elaborate on the rights and freedoms which comprise inter-
national human rights law. It is not feasible to list all the relevant texts here. Many books address
sections of human rights law or the impact of human rights provisions within particular States or
sections of the community. Other books focus on a single right or freedom. Different theoretical
considerations are also published. A perusal of any good bookshop, library catalogue, or the online
catalogues of major law and international relations publishers provides a wealth of information.
Suggestions for further reading will be provided at the end of each chapter in this text. As far as
possible, the texts mentioned will be those available in most law libraries and/or online.
28 | SOURCES OF INTERNATIONAL HUMAN RIGHTS

Further reading
For information on treaties and customary international law, recourse should be had to public
international law texts.
Crawford, J., Brownlie’s Principles of International Law, 8th edn, 2012, Oxford: OUP.
Dixon, M., McCorquodale, R., and Williams, S., Cases and Materials on International Law, 5th edn,
2011, Oxford: OUP.
Evans, M. (ed.) International Law, 3rd edn, 2010, Oxford: OUP.
Harris, D., Cases and Materials on International Law, 7th edn, 2010, London: Sweet and Maxwell.
Shaw, M., International Law, 6th edn, 2008, Cambridge: CUP.
Sinclair, I., The Vienna Convention on the Law of Treaties, 1984, Manchester: MUP.
Tams, C., Enforcing Obligations Erga Omnes in International Law, 2005, Cambridge: CUP.

For general texts on international human rights, the following may prove to be of use:
Addo, M.K., The Legal Nature of International Human Rights, 2010, Martinus Nijhoff.
Alfredsson, G., and Eide, A. (eds), The Universal Declaration of Human Rights – A Common Standard
of Achievement, 1999, The Hague: Martinus Nijhoff.
Alston, P., and Goodman, R., International Human Rights: The Successor to International Human
Rights in Context, 2013, Oxford: OUP.
Alston, P., and Goodman, R., International Human Rights, 2012, Oxford: OUP.
Bantekas, I., and Oette, L., International Human Rights: Law and Practice, 2nd edn, 2016, Cambridge:
CUP.
Bossuyt, M., International Human Rights Protection, 2016, Cambridge: Intersentia.
Buergenthat, T., Shelton, D., and Stewart, D., International Human Rights in a Nutshell, 4th edn,
2009, St Paul, MN: West Group.
De Schutter, O., International Human Rights Law, 2nd edn, 2014, Cambridge: CUP.
Donnelly, J., and Whelan, D.J., International Human Rights: Dilemmas in World Politics, 5th edn,
2017, Oxon: Westview Press.
Freeman, M., Human Rights: An Interdisciplinary Approach, 2nd edn, 2011, Cambridge: Polity Press.
Krause, C., and Scheinin, M. (eds), International Protection of Human Rights: A Textbook, 2nd edn,
2012, Åbo Akademi University Institute for Human Rights.
Moeckli, D., Shah, S., and Sivakumaran, S. (eds), International Human Rights Law, 2nd edn, 2014,
Oxford: OUP.
Nowak, M., Januszewski, K., and Hofstätter, T. (eds), All Human Rights for All: Vienna Manual on
Human Rights, 2012, Cambridge: Intersentia.
Rehman, J., International Human Rights Law, a Practical Approach, 2nd edn, 2009, Harlow: Pearson
Education.
Shelton, D., Advanced Introduction to International Human Rights Law, 2014, Cheltenham: Edward
Elgar Publishing.
Smith, R., Textbook on International Human Rights, 9th edn (in press), Oxford: OUP.
Smith, R., and van den Anker, C. (eds), The Essentials of Human Rights, 2005, London: Hodder
Arnold.
Steiner, H., Alston, P., and Goodman, R., International Human Rights in Context – Law, Politics, Mor-
als, 3rd edn, 2007, Oxford: OUP.
Tomuschat, C., Human Rights – between Idealism and Realism, 2003, Oxford: OUP.
Chapter 2

Key concepts: universality, interdependence

and categories of rights

Chapter contents

2.1 Universality 30
2.2 Cultural sensitivity 40
2.3 Positive obligations on States to
conform to human rights 53
2.4 Indivisibility and interdependence,
or a hierarchy of rights? 59
2.5 Interdependence and indivisibility 60
2.6 Evolving and developing rights 62
30 | UNIVERSALITY, INTERDEPENDENCE AND CATEGORIES OF RIGHTS

This chapter focuses on key characteristics of modern international human rights, addressing the
following questions:

• What does ‘universal’ mean in the context of international human rights?

• Can all cultures and traditions have the same international human rights?
• Do regional and international systems share the same vision of universal rights?
• What does the positive obligation embedded in human rights entail for States?
• What does it mean that universal rights are indivisible and interdependent?

There are clearly many recognised examples of international human rights and fundamental free-
doms. These are derived from many different sources, as Chapter 1 indicated. As with so many
legal systems, there are certain principles which undermine those rights and govern their opera-
tion. For human rights, most importantly, they are deemed to be universal and inalienable. Thus
absolutely everyone is entitled to human rights and fundamental freedoms.

2.1 Universality
UNIVERSAL DECLARATION OF HUMAN RIGHTS 1948, Article 1

All human beings are born free and equal in dignity and rights. They are endowed with reason
and conscience and should act towards one another in a spirit of brotherhood.

The text of the Universal Declaration is an unequivocal endorsement of the universality of the rights
contained therein. Similar statements appear in subsequent instruments which couch the beneficiaries
of rights in terms such as ‘everyone’ and ‘all persons’. Nevertheless, an issue which has long plagued
academics and practitioners alike is whether human rights are truly universal. Obviously, the idea of
human rights as externally verified and intrinsically applicable to all human beings suggests that rights
are universal. However, only 56 States were members of the United Nations party to the creation of
the Universal Declaration. Membership of the United Nations has since more than trebled to some 193
States today. Africa and Asia (in a pre-decolonisation era) were particularly under-represented in strict
geographical terms. Despite this, there is evidence of universal acceptance of universal rights. When
the two international covenants were adopted, the membership of the United Nations had more than
doubled, while in comparison to the Universal Declaration, an additional 133 States (Switzerland and
Timor L’est (East Timor) joined in 2002, Montenegro in 2006, South Sudan in 2011) were party to
the UN Millennium Declaration, which emphasised universal respect for the Universal Declaration.

GENERAL ASSEMBLY MILLENNIUM DECLARATION 2000, RESOLUTION A/RES/55/2

V. Human rights, democracy and good governance

24. We will spare no effort to promote democracy and strengthen the rule of law, as well as
respect for all internationally recognized human rights and fundamental freedoms, including
the right to development.
25. We resolve therefore:

• To respect fully and uphold the Universal Declaration of Human Rights.

• To strive for the full protection and promotion in all our countries of civil, political,
economic, social and cultural rights for all.
• To strengthen the capacity of all our countries to implement the principles and practices
of democracy and respect for human rights, including minority rights.
 UNIVERSALITY, INTERDEPENDENCE AND CATEGORIES OF RIGHTS | 31

• To combat all forms of violence against women and to implement the Convention on the
Elimination of All Forms of Discrimination against Women.
• To take measures to ensure respect for and protection of the human rights of migrants,
migrant workers and their families, to eliminate the increasing acts of racism and
xenophobia in many societies and to promote greater harmony and tolerance in all societies.
• To work collectively for more inclusive political processes, allowing genuine participation
by all citizens in all our countries.
• To ensure the freedom of the media to perform their essential role and the right of the
public to have access to information.

Perhaps more significantly, every Member State of the United Nations is party to additional
enforceable human rights treaties which, almost without exception, pay homage to the influenc-
ing role of the Universal Declaration. Consider the following preambular statements:

INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS 1966

Recognising that, in accordance with the Universal Declaration of Human Rights, the ideal of
free human beings enjoying civil and political freedom and freedom from fear and want can be
achieved only if conditions are created whereby everyone may enjoy his civil and political rights,
as well as his economic, social and cultural rights.

INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS 1966

Recognising that, in accordance with the Universal Declaration of Human Rights, the ideal of
free human beings enjoying civil and political freedom and freedom from fear and want can be
achieved only if conditions are created whereby everyone may enjoy his economic, social and
cultural rights, as well as his civil and political rights.

Perhaps this is to be expected in the twin covenants which, after all, were drafted specifically
to give legal effect to the terms of the Universal Declaration on Human Rights. Similar senti-
ments are also to be found expressed in other instruments, regional instruments and even in some
national constitutions.

CONVENTION AGAINST TORTURE AND OTHER CRUEL INHUMAN OR DEGRADING

TREATMENT OR PUNISHMENT 1984

. . . Having regard to article 5 of the Universal Declaration of Human Rights and article 7 of the
International Covenant on Civil and Political Rights, both of which provide that no one shall be
subject to torture or to cruel, inhuman or degrading treatment or punishment.

EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL

FREEDOMS 1950

Considering the Universal Declaration of Human Rights proclaimed by the General Assembly of
the United Nations on 10th December 1948. . . .

AMERICAN CONVENTION ON HUMAN RIGHTS 1969

. . . Reiterating that, in accordance with the Universal Declaration of Human Rights, the ideal of
free men enjoying freedom from fear and want can be achieved only if conditions are created
whereby everyone may enjoy his economic, social and cultural rights, as well as his civil and
political rights.
32 | UNIVERSALITY, INTERDEPENDENCE AND CATEGORIES OF RIGHTS

AFRICAN CHARTER ON HUMAN AND PEOPLES’ RIGHTS 1981

Reaffirming the pledge they made . . . to co-ordinate and intensify their cooperation and efforts
to achieve a better life for the peoples of Africa and to promote international co-operation,
having regard to the Charter of the United Nations and the Universal Declaration of Human
Rights.

ARAB CHARTER ON HUMAN RIGHTS 2004

Reaffirming the principles of the Charter of the United Nations, the Universal Declaration of
Human Rights, and the provisions of the International Covenants on Civil and Political Rights
and Economic, Social and Cultural Rights, and having regard to the Cairo Declaration on
Human Rights in Islam.

Today it would appear that, for whatever reason, universal acknowledgement of the importance
of the Universal Declaration of Human Rights is a reality. This remains true despite sometimes
vigorous disputes over the factual content of the Declaration and the legal enforceability of its
provisions.
Indeed, many newly independent States incorporate swathes of the Universal Declaration in
their constitutions:

CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA 1996

Rights

7. (1) This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the
rights of all people in our country and affirms the democratic values of human
dignity, equality and freedom.
(2) The State must respect, protect, promote and fulfil the rights in the Bill of Rights.
(3) The rights in the Bill of Rights are subject to the limitations contained or referred to
in section 36, or elsewhere in the Bill.

Application

8. (1) The Bill of Rights applies to all law, and binds the legislature, the executive, the
judiciary and all organs of State.
(2) A provision of the Bill of Rights binds a natural or a juristic person if, and to the extent
that, it is applicable, taking into account the nature of the right and the nature of any
duty imposed by the right.
(3) When applying a provision of the Bill of Rights to a natural or juristic person in terms
of subsection (2), a court
a in order to give effect to a right in the Bill, must apply, or if necessary develop, the
common law to the extent that legislation does not give effect to that right; and
b may develop rules of the common law to limit the right, provided that the
limitation is in accordance with section 36(1).

(4) A juristic person is entitled to the rights in the Bill of Rights to the extent required by
the nature of the rights and the nature of that juristic person.

The subsequent sections address the following rights, enforcement and protection guarantees:

9. Equality
10. Human Dignity
 UNIVERSALITY, INTERDEPENDENCE AND CATEGORIES OF RIGHTS | 33

11. Life
12. Freedom and Security of the Person
13. Slavery, Servitude and Forced Labour
14. Privacy
15. Freedom of Religion, Belief and Opinion
16. Freedom of Expression
17. Assembly, Demonstration, Picket and Petition
18. Freedom of Association
19. Political Rights
20. Citizenship
21. Freedom of Movement and Residence
22. Freedom of Trade, Occupation and Profession
23. Labour Relations
24. Environment
25. Property
26. Housing
27. Health Care, Food, Water and Social Security
28. Children
29. Education
30. Language and Culture
31. Cultural, Religious and Linguistic Communities
32. Access to Information
33. Just Administrative Action
34. Access to Courts
35. Arrested, Detained and Accused Persons

Such incorporation of human rights arguably negates the exclusion of these States from the initial
drafting process of international human rights. Of course, it can equally be argued that this reflects
the desire of newly independent States to be recognised as actors on the international stage and to
be deemed worthy of international trade, aid and co-operation. Compliance with international
human rights standards is frequently a prerequisite to major international trade and aid agreements.
No State wishes to be regarded as infringing human rights in the current political and diplo-
matic climate, thus all States, at least overtly (albeit superficially), adhere to the notion of universal
rights.
However, the concept of universality is not without problems, as a report of the former
Secretary-General notes.

Kofi Annan, ‘In Larger Freedom: Towards Development, Security and Human Rights for All’,
UN Doc. A/59/2005

136. Support for the rule of law must be strengthened by universal participation in multilateral
conventions. At present, many States remain outside the multilateral convention framework,
in some cases preventing important conventions from entering into force. . . . I urge leaders
especially to ratify and implement all treaties relating to the protection of civilians.

Authors such as Oona Hathaway have used empirical evidence to examine issues surrounding
treaty ratification to determine the viability of universalism. See, for example, ‘Do Human Rights
Treaties Make a Difference?’ (2002) 111 Yale Law Journal 1935; ‘Why Do Nations Join Human
Rights Treaties?’ (2007) 51 Journal of Conflict Resolution 588; and ‘The Cost of Commitment’
(2003) 55 Stanford Law Journal 1821.
34 | UNIVERSALITY, INTERDEPENDENCE AND CATEGORIES OF RIGHTS

2.1.1 Non-discrimination in the application of human rights

No one is excluded from the ambit of human rights instruments. Human rights extend equally
to children and adults, prisoners, terrorists, all racial groupings, men and women, educated and
non-educated, etc. Some rights are, however, restricted in the sense that not everyone can exercise
them. Rights to marry, for example, do not apply to (young) children. As this is uniform, there is
no discrimination. The non-discrimination clauses common to most instruments make the prin-
ciple of non-discrimination abundantly clear.

UNIVERSAL DECLARATION OF HUMAN RIGHTS 1948, Article 2

Everyone is entitled to all rights and freedoms set forth in this Declaration, 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.
Furthermore, no distinction shall be made on the basis of the political, jurisdictional
or international status of the country or territory to which a person belongs, whether it be
independent, trust, non-self-governing or under any other limitation of sovereignty.

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION 2000, Article 21 (1)

Any discrimination based on any ground such as sex, race, colour, ethnic or social origin,
genetic features, language, religion or belief, political or any other opinion, membership of a
national minority, property, birth, disability, age or sexual orientation shall be prohibited.

Question
What reasons are there for the expansion of grounds between1948 (the Universal Declaration) and 2000 (the
European Charter)?

2.1.2 Minority protection

Clearly everyone is entitled to enjoy the basic human rights and fundamental freedoms enshrined in
the various instruments. Traditionally, international law was the exclusive preserve of States. Human
rights violations were only actioned by States when there was an international dimension. For exam-
ple, if State R has a majority population of religion L and its neighbour, State S, has a minority
population of religion L, then State R may elect to act in defence of the minority religion L group in
State S. Many wars have been prompted by such a situation. More recently, the minority guarantee
system that was operated by the League of Nations (the predecessor of the United Nations) demon-
strates this principle. One of the consequential results of the new world order is that the obligations of
States have extended – it is no longer accepted that States have exclusive competence over individuals
within their jurisdiction. There is an increasing emphasis on international supervision of interna-
tional human rights. Obviously, this is the main focus of the current text. However, further refining
of the concept of international human rights by international and regional bodies has resulted in an
extension of the obligations undertaken by States. Today, States must not only ensure that they act in
conformity with their international obligations but also ensure that there are legal provisions which
ensure that others (States, individuals) also act in conformity with these obligations.
Initial instruments impinging on human rights sought to provide protection for identified
vulnerable groups. Thus, the peace treaties concluding the First World War included ‘minority
guarantee clauses’.

2.1.3 The League of Nations and minority rights

Minority guarantee clauses were monitored by a special unit of the League of Nations. The fol-
lowing extract illustrates the provisions which such guarantees contained.
 UNIVERSALITY, INTERDEPENDENCE AND CATEGORIES OF RIGHTS | 35

TREATY OF LAUSANNE 1923

Article 37

Turkey undertakes that the stipulations contained in Articles 38 to 44 shall be recognized as

fundamental laws, and that no law, no regulation, nor official action shall conflict or interfere
with these stipulations, nor shall any law, regulation, nor official action prevail over them.

Article 38

The Turkish Government undertakes to assure full and complete protection of life and liberty
to all inhabitants of Turkey without distinction of birth, nationality, language, race or religion.
All inhabitants of Turkey shall be entitled to free exercise, whether in public or private,
of any creed, religion or belief, the observance of which shall not be incompatible with public
order and good morals.
Non-Moslem minorities will enjoy full freedom of movement and of emigration. Subject
to the measures applied, on the whole or on part of the territory, to all Turkish nationals, and
which may be taken by the Turkish Government for national defence, or for the maintenance
of public order.

Article 39

Turkish nationals belonging to non-Moslem minorities will enjoy the same civil political rights
as Moslems.
All the inhabitants of Turkey, without distinction of religion, shall be equal before the law.
Differences of religion, creed or confession shall not prejudice any Turkish national in
matters relating to the enjoyment of civil or political rights, as, for instance, admission to public
employments, functions and honours, or the exercise of professions and industries.
No restrictions shall be imposed on the free use by any Turkish national of any language
in private intercourse, in commerce, religion, in the press, or in publications of any kind or at
public meetings.
Notwithstanding the existence of the official language, adequate facilities shall be given to
Turkish nationals of non-Turkish speech for the oral of their own language before the Courts.

Article 40

Turkish nationals belonging to non-Moslem minorities shall enjoy the same treatment and
security in law and in fact as other Turkish nationals. In particular, they shall have an equal
right to establish, manage and control at their own expense, any charitable, religious and social
institutions, any schools and other establishments for instruction and education, with the right
to use their own language and to exercise their own religion freely therein.

Article 41

As regards public instruction, the Turkish Government will grant in those towns and districts,
where a considerable proportion of non-Moslem nationals are resident, adequate facilities for
ensuring that in the primary schools the instruction shall be given to the children of such
Turkish nationals through the medium of their own language. This provision will not prevent
the Turkish Government from making the teaching of the Turkish language obligatory in the
said schools.
In towns and districts where there is a considerable proportion of Turkish nationals
belonging to non-Moslem minorities, these minorities shall be assured an equitable share in
the enjoyment and application of the sums which may be provided out of public funds under the
State, municipal or other budgets for educational, religious, or charitable purposes.
The sums in question shall be paid to the qualified representatives of the establishments
and institutions concerned.
36 | UNIVERSALITY, INTERDEPENDENCE AND CATEGORIES OF RIGHTS

Article 42

The Turkish Government undertakes to take, as regards non-Moslem minorities, in so far as

concerns their family law or personal status, measures permitting the settlement of these
questions in accordance with the customs of those minorities.
These measures will be elaborated by special Commissions composed of representatives
of the Turkish Government and of representatives of each of the minorities concerned in equal
number. In case of divergence, the Turkish Government and the Council of the League of
Nations will appoint in agreement an umpire chosen from amongst European lawyers.
The Turkish Government undertakes to grant full protection to the churches, synagogues,
cemeteries, and other religious establishments of the above-mentioned minorities. All facilities
and authorization will be granted to the pious foundations, and to the religious and charitable
institutions of the said minorities at present existing in Turkey, and the Turkish Government will
not refuse, for the formation of new religious and charitable institutions, any of the necessary
facilities which are granted to other private institutions of that nature.

Article 43

Turkish nationals belonging to non-Moslem minorities shall not be compelled to perform any
act which constitutes a violation of their faith or religious observances, and shall not be placed
under any disability by reason of their refusal to attend Courts of Law or to perform any legal
business on their weekly day of rest.
This provision, however, shall not exempt such Turkish nationals from such obligations as
shall be imposed upon all other Turkish nationals for the preservation of public order.

Article 44

Turkey agrees that, in so far as the preceding Articles of this Section affect non-Moslem
nationals of Turkey, these provisions constitute obligations of international concern and shall
be placed under the guarantee of the League of Nations. They shall not be modified without
the assent of the majority of the Council of the League of Nations. The British Empire,
France, Italy and Japan hereby agree not to withhold their assent to any modification in
these Articles which is in due form assented to by a majority of the Council of the League
of Nations.
Turkey agrees that any Member of the Council of the League of Nations shall have the
right to bring to the attention of the Council any infraction or danger of infraction of any of these
obligations, and that the Council thereupon take such action and give such directions as it may
deem proper and effective in the circumstances.
Turkey further agrees that any difference of opinion as to questions of law or of fact arising
out of these Articles between the Turkish Government and any one of the other Signatory
Powers or any other Power, a member of the Council of the League of Nations, shall be held
to be a dispute of an international character under Article 14 of the Government of the League
of Nations. The Turkish Government hereby consents that any such dispute shall, if the other
party thereto demands, be referred to the Permanent Court of International Justice. The
decision of the Permanent Court shall be final and shall have the same force and effect as an
award under Article 19 of the Covenant.

Article 45

The rights conferred by the provisions of the present Section on the non-Moslem minorities of
Turkey will be similarly conferred by Greece on the Moslem minority in her territory.

The use of minority guarantee clauses allowed the protective targeting of groups likely to be sub-
jected to discrimination.
 UNIVERSALITY, INTERDEPENDENCE AND CATEGORIES OF RIGHTS | 37

Question
To what extent were the clauses successfully implemented? Consider cases such as Minority School in Albania
and the exchange of Greek and Turkish populations.

It is interesting to note that in the twenty-first century, complaints of discrimination against Turkey
have concerned Muslim people: Sahin v Turkey (Application 44774/98), a case dismissed by the Grand
Chamber of the European Court of Human Rights in November 2005, arose through the imposition
of secularity in Turkey and a ban on Muslim women wearing head coverings in universities!
The fate of minorities was mixed under the League of Nations. Ultimately, however, the
League of Nations proved impotent in the face of systematic challenges to its authority and the
Second World War broke out in Europe and spread further.

2.1.4 A change in emphasis: universal rights

The United Nations, since inception, elected to focus on universal human rights founded on
respect for innate human dignity. Focusing on universal rights, as designated in the Universal
Declaration of Human Rights, minority rights were effectively deemed outmoded. As Professor
Ian Brownlie noted, the ‘assumption lying behind the classical formulation of standards of human
rights . . . has been that group rights would be taken care of automatically as the result of the
protection of the rights of individuals’ (Brownlie, ‘The Rights of Peoples in Modern International
Law’ in Crawford (ed.), The Rights of Peoples, 1988, Oxford: Clarendon Press, 1 at 2). The new
international regime thus sought to obviate the need for minority guarantees by guaranteeing the
same rights and freedoms to all, irrespective of status. This concept of universalism is considered in
Section 2.1. Under the modern system, everyone is entitled of right to human rights.

Question
What are the political and legal problems with securing international universal norms of human rights?

2.1.5 A return to minority rights?

The theory and reality did not, however, meet. Today, there is evidence of a return to minority
protection, with many instruments creating regimes of protection for distinctive minority groups.
The following list contains European instruments aimed at protecting specific minority groups:

European Charter for Regional or Minority Languages 1992 (Council of Europe)

Framework Convention for the Protection of National Minorities 1995 (Council of Europe)
Hague Recommendations Regarding the Education Rights of National Minorities 1996
(OSCE)
Lund Recommendations on the Effective Participation of National Minorities in Public Life
1999 (OSCE)
Oslo Recommendations on the Linguistic Rights of National Minorities 1998 (OSCE)

Question
These instruments are primarily European, which reflects international practice. The United Nations has but a
Declarationon the rights of minorities. What reasons are there for Europe being the focal point of contemporary
minority protection guarantees?

2.1.6 Developing sectoral and group rights

Other sectoral approaches to human rights have characterised the work of the international commu-
nity in recent years. The reason is simple: universal rights have not been as effective as anticipated.
38 | UNIVERSALITY, INTERDEPENDENCE AND CATEGORIES OF RIGHTS

The sectoral approach can reinforce existing universal rights or even highlight the plight of par-
ticular groups. However, it is arguable that their existence does not detract from the universality of
rights. As is apparent from reading the texts, there are few innovative additions to the pre-existing
tabulations of rights. The principal exception is possibly the UN Convention on the Rights of
the Child, which enshrines the most comprehensive tabulation of rights and arguably extends the
scope of the pre-existing instruments. Despite this, the Convention on the Rights of the Child has
achieved the highest number of ratifications of any major international human rights instrument.
The preambles indicate the rationale behind their adoption.

INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL

DISCRIMINATION 1965

Considering that the Universal Declaration of Human Rights proclaims that all human beings
are born free and equal in dignity and rights and that everyone is entitled to all the rights and
freedoms set out therein, without distinction of any kind, in particular as to race, colour or
national origin,
Considering that all human beings are equal before the law and are entitled to equal
protection of the law against any discrimination and against any incitement to discrimination,
. . .
Alarmed by manifestations of racial discrimination still in evidence in some areas of the
world and by governmental policies based on racial superiority or hatred, such as policies of
apartheid, segregation or separation,
Resolved to adopt all necessary measures for speedily eliminating racial discrimination in
all its forms and manifestations, and to prevent and combat racist doctrines and practices in
order to promote understanding between races and to build an international community free
from all forms of racial segregation and racial discrimination.

CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION

AGAINST WOMEN 1979

Concerned that in situations of poverty women have the least access to food, health, education,
training and opportunities for employment and other needs,
Convinced that the establishment of the new international economic order based on equity
and justice will contribute significantly towards the promotion of equality between men and
women, . . .
Convinced that the full and complete development of a country, the welfare of the world
and the cause of peace require the maximum participation of women on equal terms with men
in all fields,
Bearing in mind the great contribution of women to the welfare of the family and to the
development of society, so far not fully recognized, the social significance of maternity and the
role of both parents in the family and in the upbringing of children, and aware that the role
of women in procreation should not be a basis for discrimination but that the upbringing of
children requires a sharing of responsibility between men and women and society as a whole,
Aware that a change in the traditional role of men as well as the role of women in society
and in the family is needed to achieve full equality between men and women.

UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD 1989

Recalling that, in the Universal Declaration of Human Rights, the United Nations has proclaimed
that childhood is entitled to special care and assistance,
Convinced that the family, as the fundamental group of society and the natural environment
for the growth and well-being of all its members and particularly children, should be afforded
 UNIVERSALITY, INTERDEPENDENCE AND CATEGORIES OF RIGHTS | 39

the necessary protection and assistance so that it can fully assume its responsibilities within
the community,
Recognizing that the child, for the full and harmonious development of his or her
personality, should grow up in a family environment, in an atmosphere of happiness, love and
understanding,
Considering that the child should be fully prepared to live an individual life in society, and
brought up in the spirit of the ideals proclaimed in the Charter of the United Nations, and in
particular in the spirit of peace, dignity, tolerance, freedom, equality and solidarity, . . .
Bearing in mind that, as indicated in the Declaration of the Rights of the Child, ‘the child,
by reason of his physical and mental immaturity, needs special safeguards and care, including
appropriate legal protection, before as well as after birth’.

INTERNATIONAL CONVENTION ON THE PROTECTION OF THE RIGHTS OF ALL MIGRANT

WORKERS AND MEMBERS OF THEIR FAMILIES 1990

Recognizing the importance of the work done in connection with migrant workers and
members of their families in various organs of the United Nations, in particular in the
Commission on Human Rights and the Commission for Social Development, and in the Food
and Agriculture Organization of the United Nations, the United Nations Educational, Scientific
and Cultural Organization and the World Health Organization, as well as in other international
organizations,
Recognizing also the progress made by certain States on a regional or bilateral basis
towards the protection of the rights of migrant workers and members of their families, as well
as the importance and usefulness of bilateral and multilateral agreements in this field,
Realizing the importance and extent of the migration phenomenon, which involves millions
of people and affects a large number of States in the international community,
Aware of the impact of the flows of migrant workers on States and people concerned,
and desiring to establish norms which may contribute to the harmonization of the attitudes of
States through the acceptance of basic principles concerning the treatment of migrant workers
and members of their families,
Considering the situation of vulnerability in which migrant workers and members of their
families frequently find themselves owing, among other things, to their absence from their
State of origin and to the difficulties they may encounter arising from their presence in the
State of employment,
Convinced that the rights of migrant workers and members of their families have not been
sufficiently recognized everywhere and therefore require appropriate international protection,
Taking into account the fact that migration is often the cause of serious problems for
the members of the families of migrant workers as well as for the workers themselves, in
particular because of the scattering of the family,
Bearing in mind that the human problems involved in migration are even more serious
in the case of irregular migration and convinced therefore that appropriate action should be
encouraged in order to prevent and eliminate clandestine movements and trafficking in migrant
workers, while at the same time assuring the protection of their fundamental human rights,
Considering that workers who are non-documented or in an irregular situation are
frequently employed under less favourable conditions of work than other workers and that
certain employers find this an inducement to seek such labour in order to reap the benefits of
unfair competition,
Considering also that recourse to the employment of migrant workers who are in an
irregular situation will be discouraged if the fundamental human rights of all migrant workers
are more widely recognized and, moreover, that granting certain additional rights to migrant
workers and members of their families in a regular situation will encourage all migrants and
40 | UNIVERSALITY, INTERDEPENDENCE AND CATEGORIES OF RIGHTS

employers to respect and comply with the laws and procedures established by the States
concerned.

Question
Are the foregoing categories representative of vulnerable groups? Are such instruments compatible with a concept
of universal rights?

In addition, occasional instruments have focused on specific rights or freedoms. The most obvi-
ous example is torture. Torture is deemed so abhorrent as to justify its own instrument under
the auspices of the United Nations, the Council of Europe and the Organisation of American
States.
Different regions have identified other areas of particular concern and adopted specific instru-
ments protecting groups which are minorities or otherwise deemed especially vulnerable. For exam-
ple, the Organisation of African Unity (predecessor to the African Union) adopted a convention
governing the specific aspects of refugee problems in Africa in 1969. The African Union has also
passed treaties aimed at protecting children’s rights and women’s rights (the latter has yet to enter into
force). Meanwhile, in the Americas, a convention on forced disappearance of persons and another on
the prevention, punishment and eradication of violence against women have been adopted.

Question
To what extent do the regional additions reflect political and historical events within the region? Are such
instruments thus reactive?

In addition, a number of declarations under the auspices of the United Nations, while not legally
binding, provide further evidence of the moves towards sectoralising international human rights.
Hence, there is a Declaration on the Rights of Persons belonging to National or Ethnic, Religious
and Linguistic Minorities, a Declaration on the Rights of Indigenous Peoples (see Chapter 11) and
a Declaration on the Human Rights of Individuals who are not Nationals of the country in which
they live. In addition, international attention remains focused on the rights of those with AIDS
and HIV, in light of the present pandemic and the significant impact it is having on demographics
in large swathes of the globe, and attention has more recently refocused on the rights of persons
with leprosy through the appointment of a UN Special Rapporteur on the issue.
These developments are accompanied by some controversy. Some commentators argue that
multiple treaties on specific issues, groups or rights/freedoms, many with overlapping treaty obli-
gations, dilute the impact of the general treaties.

2.2 Cultural sensitivity

One of the main challenges to the universality of contemporary human rights lies with cultural
pluralism. Can anything but a very broad generalisation of rights ever be truly and equally appli-
cable to all peoples, cultures, religions and languages? Obviously, in different countries, different
rights will be prioritised by the State and by its residents. The unassailable expectation, however,
is that all peoples are entitled to the same rights and freedoms irrespective of national origin and
status. Note the view of the international community, as expressed in the Vienna Declaration
adopted by the World Conference on Human Rights in 1993. This was the most significant global
discussion of human rights to date with unprecedented numbers of States and non-governmental
organisations meeting together to prioritise human rights protection, assess progress to date and
agree to a plan of action for securing the goal of universal respect and promotion of human rights
and fundamental freedoms.
 UNIVERSALITY, INTERDEPENDENCE AND CATEGORIES OF RIGHTS | 41

Glossary of terms
Human Rights Principles: These are some of the basic principles relevant to all human
rights. The 1993 Vienna Declaration and Programme of Action adopted by the World
Conference on Human Rights states ‘All human rights are universal, indivisible and
interdependent and interrelated’ (para 5).
Inalienable: Human rights are universal and cannot be opted out, denied or taken
away under any circumstances.
Indivisible: There is no hierarchy of rights and freedoms; civil, cultural, economic,
political and social rights are equally important.
Interdependent: Human rights and freedoms reinforce each other, so for one
human right to be realised, other rights may require to be guaranteed; similarly
the rights and freedoms of one person may depend on those of another (e.g. an
infant’s rights can be dependent on the mother’s).
Interrelated: Human rights and fundamental freedoms are inexorably linked,
denial of one human right often has an impact on the exercise of other human
rights.
Universal: Every human being everywhere is entitled to human rights regardless of
individual or group characteristics, including sex, race, religion, national or social
origin, property, birth or any other factor.

VIENNA DECLARATION AND PROGRAMME OF ACTION 1993, Para 5

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 and cultural systems, to promote and protect all human rights and
fundamental freedoms.

It appears therefore, that the universal system is considered to embody the fundamental rights
and freedoms which should apply to all irrespective of their different ‘particularities’. As many
commentators note, there is an unfortunate reality/rhetoric deficit in this respect. A pervasive
view remains that the tabulated universal rights are drawn from a Western European Christian-
influenced school of thought, which reached its zenith in the post-Enlightenment era. Argu-
ments are often encountered that less-developed States or States with a history of colonisation
should be held to account to a lower standard of rights than developed States. This challenges
elements of the notion of universality, suggesting that entitlement to human rights is dependent
on where you live. Other arguments suggest some or all human rights are incompatible with
specific religions. Again, this undermined the concept of universal human rights enjoyed by all
without discrimination.

2.2.1 Celebrating cultural diversity

However, the current global climate is conducive to celebrating cultural diversity. Indeed, plurality
of language, religion and culture is a sine qua non of globalisation and modern politics. The fol-
lowing extracts are preambular paragraphs and articles from the Universal Declaration on Cultural
Diversity.
42 | UNIVERSALITY, INTERDEPENDENCE AND CATEGORIES OF RIGHTS

UNIVERSAL DECLARATION ON CULTURAL DIVERSITY ADOPTED BY THE GENERAL

CONFERENCE OF THE UNITED NATIONS EDUCATIONAL, SCIENTIFIC AND CULTURAL
ORGANIZATION AT ITS THIRTY-FIRST SESSION ON 2 NOVEMBER 2001

Recalling that the Preamble to the Constitution of UNESCO affirms ‘that the wide diffusion of
culture, and the education of humanity for justice and liberty and peace are indispensable to
the dignity of man and constitute a sacred duty which all the nations must fulfil in a spirit of
mutual assistance and concern’,
Reaffirming that culture should be regarded as the set of distinctive spiritual, material,
intellectual and emotional features of society or a social group, and that it encompasses, in
addition to art and literature, lifestyles, ways of living together, value systems, traditions and
beliefs,
Noting that culture is at the heart of contemporary debates about identity, social cohesion,
and the development of a knowledge-based economy,
Affirming that respect for the diversity of cultures, tolerance, dialogue and cooperation, in
a climate of mutual trust and understanding are among the best guarantees of international
peace and security,
Aspiring to greater solidarity on the basis of recognition of cultural diversity, of awareness
of the unity of humankind, and of the development of intercultural exchanges,
Considering that the process of globalization, facilitated by the rapid development of new
information and communication technologies, though representing a challenge for cultural
diversity, creates the conditions for renewed dialogue among cultures and civilizations.

Article 1 – Cultural diversity: the common heritage of humanity

Culture takes diverse forms across time and space. This diversity is embodied in the uniqueness
and plurality of the identities of the groups and societies making up humankind. As a source
of exchange, innovation and creativity, cultural diversity is as necessary for humankind as
biodiversity is for nature. In this sense, it is the common heritage of humanity and should be
recognized and affirmed for the benefit of present and future generations.

Article 2 – From cultural diversity to cultural pluralism

In our increasingly diverse societies, it is essential to ensure harmonious interaction among

people and groups with plural, varied and dynamic cultural identities as well as their willingness
to live together. Policies for the inclusion and participation of all citizens are guarantees of
social cohesion, the vitality of civil society and peace. Thus defined, cultural pluralism gives
policy expression to the reality of cultural diversity. Indissociable from a democratic framework,
cultural pluralism is conducive to cultural exchange and to the flourishing of creative capacities
that sustain public life.

Article 3 – Cultural diversity as a factor in development

Cultural diversity widens the range of options open to everyone; it is one of the roots of
development, understood not simply in terms of economic growth, but also as a means to
achieve a more satisfactory intellectual, emotional, moral and spiritual existence.

Cultural diversity and human rights

Article 4 – Human rights as guarantees of cultural diversity

The defence of cultural diversity is an ethical imperative, inseparable from respect for human
dignity. It implies a commitment to human rights and fundamental freedoms, in particular the
rights of persons belonging to minorities and those of indigenous peoples. No one may invoke
cultural diversity to infringe upon human rights guaranteed by international law, nor to limit
their scope.
 UNIVERSALITY, INTERDEPENDENCE AND CATEGORIES OF RIGHTS | 43

2.2.2 Reconciling traditional culture with human rights

United Nations Office of the High Commissioner for Human Rights,
Women’s Rights Are Human Rights 28, UN Doc. HR/PUB/14/2 (2014)

The universality of human rights and their validity in a given local context have often been
contested through relativist discourses that brand them as foreign ideas incompatible with
local culture. However, the Special Rapporteur in the field of cultural rights has warned against
discourses that disregard the fact that culture is not static and changes over time. .  .  . The
Special Rapporteur on violence against women, in her report on intersections between culture
and violence against women, argues that it is possible to negotiate human rights with culture,
challenging discriminatory and oppressive aspects of culture while retaining its positive aspects.

Some treaties exhibit evidence of cultural sensitivity. The Convention on the Rights of the Child,
for example, includes a provision on child care which includes reference to different cultural
practices.

UN CONVENTION ON THE RIGHTS OF THE CHILD 1989, Article 20

1 A child temporarily or permanently deprived of his or her family environment, or in whose

own best interests cannot be allowed to remain in that environment, shall be entitled to
special protection and assistance provided by the State.
2 States Parties shall in accordance with their national laws ensure alternative care for
such a child.
3 Such care could include, inter alia, foster placement, kafalah of Islamic law, adoption or
if necessary placement in suitable institutions for the care of children. When considering
solutions, due regard shall be paid to the desirability of continuity in a child’s upbringing
and to the child’s ethnic, religious, cultural and linguistic background.

Such provisions demonstrate recognition of cultural diversity and, as such, are to be commended.
However, on the other hand, that particular provision may be attributed to difficulties in transla-
tion and communication, resulting in a provision which takes into account the various traditions
of child care.
However, some cultural practices are effectively proscribed. No cultural argument is accepted
as justification for female circumcision or female genital mutilation.

2.2.2.1 Female genital mutilation

Female circumcision is widely practised in areas of Africa and elsewhere. The practice has no
identified health benefits but appears rather to be undertaken in accordance with cultural tradition.
Some young women agree to be circumcised, arguably due to peer pressure and the need to secure
a husband; others have little choice. The international community has repeatedly condemned the
practice and called for its eradication.

COMMITTEE ON THE ELIMINATION OF DISCRIMINATION AGAINST WOMEN,

General Recommendation 14 (1990)

Recommends that States parties:

(a) Take appropriate and effective measures with a view to eradicating the practice of female
circumcision. Such measures could include:
(i) The collection and dissemination by universities, medical or nursing associations,
national women’s organizations or other bodies of basic data about such traditional
practices;
44 | UNIVERSALITY, INTERDEPENDENCE AND CATEGORIES OF RIGHTS

(ii) The support of women’s organizations at the national and local levels working for
the elimination of female circumcision and other practices harmful to women;
(iii) The encouragement of politicians, professionals, religious and community leaders
at all levels, including the media and the arts, to co-operate in influencing attitudes
towards the eradication of female circumcision;
(iv) The introduction of appropriate educational and training programmes and
seminars based on research findings about the problems arising from female
circumcision;

(b) Include in their national health policies appropriate strategies aimed at eradicating female
circumcision in public health care. Such strategies could include the special responsibility
of health personnel, including traditional birth attendants, to explain the harmful effects
of female circumcision;
(c) Invite assistance, information and advice from the appropriate organizations of the
United Nations system to support and assist efforts being deployed to eliminate harmful
traditional practices;
(d) Include in their reports to the Committee under articles 10 and 12 of the Convention on the
Elimination of All Forms of Discrimination against Women information about measures
taken to eliminate female circumcision.

Consider also the Fact Sheet (20180) of the World Health Organisation (www.who.int/news-
room/fact-sheets/detail/female-genital-mutilation). This explains the classification of female gen-
ital mutilation, the risks and harm and the work being undertaken by that organisation to eradicate
female genital mutilation (FGM), including working towards the education of those condoning
the practice. The eradication of FGM practices is an interorganisational project also involving
UNICEF. Challenging the culture of the countries and peoples concerned is a major objective
and the most important step towards stamping out the practice. Once a cultural shift is achieved,
legal measures will be more successful in perpetuating its abolition. Should the culture not be
changed, proscription will result merely in the practice going ‘underground’, with potentially
devastating consequences for the health of women. UNICEF estimate more than two hundred
million women and girls in at least 30 countries have undergone FGM (https://data.unicef.org/
topic/child-protection/female-genital-mutilation).

Question
To what extent can the international community effectively proscribe a cultural practice while maintaining
respect for cultural diversity? Is female circumcision a special case? What reasons may be advanced to justify
its proscription?

2.2.3 The role of regional organisations

There is a clear role for regional and sectoral organisations in creating human rights instruments
that are more tailored towards cultural requirements. Although there are exceptions, generally
speaking, most regions of the world exhibit some heterogeneity and some common historical or
cultural traits. Part of the rationale behind the creation of regional systems of human rights was
to capitalise on this and establish systems which were more enforceable. Politics and diplomacy
obviously had an impact on this too. Several regions have adopted instruments, some containing
generic rights, others deemed to be adapted for the region concerned.

Question
Look at the regional instruments and the Universal Declaration. Are any of the rights in the Universal Decla-
ration not applicable to people in a particular country region? Do regional instruments omit them?
 UNIVERSALITY, INTERDEPENDENCE AND CATEGORIES OF RIGHTS | 45

2.2.3.1 Europe
The European system, although boasting a comparatively sophisticated enforcement machinery,
contains one of the most basic catalogues of rights in its flagship instrument: the European Con-
vention on Human Rights and Fundamental Freedoms 1950. The rights and freedoms in the
Convention relate to the following:

Article 2 – the right to life

Article 3 – prohibition on torture and other inhuman or degrading treatment or punishment
Article 4 – prohibition on slavery and forced labour
Article 5 – the right to liberty and security of person
Article 6 – the right to a fair trial
Article 7 – prohibition on retrospective penal legislation
Article 8 – the right to private and family life, home and correspondence
Article 9 – freedom of thought, conscience and religion
Article 10 – freedom of expression and opinion
Article 11 – freedom of assembly and association
Article 12 – right to marry and found a family

Question
Can the limited scope of the European Convention be justified in cultural terms? What reasons are there for
this?

Admittedly, the European Convention has since been supplemented by a range of additional
protocols, many of which add further rights and freedoms. Furthermore, the range of subjects
covered by European human rights has been augmented by the European Social Charter of
1961, its protocols and the revised 1996 version, as well as by the minority instruments men-
tioned previously and a convention on human rights and fundamental freedoms in the sphere of
biomedicine, cloning and transplantations. These latter instruments are the only human rights
instruments to specifically address such contemporary matters. While many of the developments
in science and technology are focused in Europe, it is by no means the sole geographical centre
of innovation.

Question
What reasons may there be for the Council of Europe being the first major organisation to adopt a treaty on
bioscience technology?

2.2.3.2 State’s margin of appreciation

Within the European system, the European Court of Human Rights has developed the concept
of the margin of appreciation which facilitates national determination of certain ‘cultural’ issues
such as moral standards. This concept has evolved through the jurisprudence of the Court. For
instance, the Court relies on the ‘margin of appreciation’ of States in dealing with the extent of
democratically appropriate interferences with rights, such as the right to private and family life and
the right to freedom of religion.

S.A.S. v France, Application 42835/11 [2014] ECHR 695

French Law no. 2010–1192 made it unlawful for any person to conceal their face in public
places. The applicant, a French national, is a devout Muslim who often chooses (in accordance
with her personal convictions) to wear a burqa and niqab, covering both her body and face.

129. The national authorities have direct democratic legitimation and are, as the Court
has held on many occasions, in principle better placed than an international court to
46 | UNIVERSALITY, INTERDEPENDENCE AND CATEGORIES OF RIGHTS

evaluate local needs and conditions. In matters of general policy, on which opinions
within a democratic society may reasonably differ widely, the role of the domestic policy-
maker should be given special weight. . . . This is the case, in particular, where questions
concerning the relationship between State and religions are at stake. .  .  . As regards
Article 9 of the Convention [i.e. freedom of conscience and religion], the State should thus,
in principle, be afforded a wide margin of appreciation in deciding whether and to what
extent a limitation of the right to manifest one’s religion or beliefs is ‘necessary’. That
being said, in delimiting the extent of the margin of appreciation in a given case, the Court
must also have regard to what is at stake therein. .  .  . It may also, if appropriate, have
regard to any consensus and common values emerging from the practices of the States
parties to the Convention.

The ban was upheld. The reasoning can be compared to Dahlab v Switzerland Application
42393/98 [2001] ECHR and Sahin v Turkey Application 44774/98, [2004] ECHR/ Grand Chamber
[2005].
The ‘margin of appreciation’ is best illustrated by its classic exposition in Handyside v
United Kingdom (below). This case concerned primarily Article 10 of the European Convention.

EUROPEAN CONVENTION ON HUMAN RIGHTS 1950, Article 10

1 Everyone has the right to freedom of expression. This right shall include freedom to hold
opinions and to receive and impart information and ideas without interference by public
authority and regardless of frontiers. This Article shall not prevent States from requiring
the licensing of broadcasting, television or cinema enterprises.
2 The exercise of these freedoms, since it carries with it duties and responsibilities, may be
subject to such formalities, conditions, restrictions or penalties as are prescribed by law
and are necessary in a democratic society, in the interests of national security, territorial
integrity or public safety, for the prevention of disorder or crime, for the protection of
health or morals, for the protection of the reputation or rights of others, for preventing
the disclosure of information received in confidence, or for maintaining the authority and
impartiality of the judiciary.

Freedom of expression is a qualified right under the European Convention. In other words, it is
not absolute. In certain situations, States may curtail the right or even remove it completely. The
important aspects to note are that the limitation must be:

(1) Prescribed by law.

(2) Necessary in a democratic society.
(3) In furtherance of a legitimate aim.

It is for the Court, as final arbiter, to determine whether or not any given limitation on a right is
permissible. In determining this, the Court may accord States a margin of appreciation – in effect,
permit the State a degree of discretion.

Handyside v United Kingdom (1979–80) 1 EHRR 737

Handyside published The Little Red Schoolbook, a book intended for young people. The book
was first published in Denmark in 1969 and was subsequently available or published in
Austria, Belgium, Finland, France, the Federal Republic of Germany, Greece, Iceland, Italy,
Luxembourg, the Netherlands, Norway, Sweden and Switzerland and beyond. The applicant
was the publisher of the book and prosecuted under the Obscene Publications legislation in
England. The State argued that the book was contrary to the relevant law as it satisfied the
corrupt and depraved test, not least given that it was being aimed at children.
 UNIVERSALITY, INTERDEPENDENCE AND CATEGORIES OF RIGHTS | 47

48. The Court points out that the machinery of protection established by the Convention is
subsidiary to the national systems safeguarding human rights (judgment of 23 July 1968 on
the merits of the ‘Belgian Linguistic case, Series A no. 6, p. 35, para. 10). The Convention leaves
to each Contracting State, in the first place, the task of securing the rights and liberties it
enshrines. The institutions created by it make their own contribution to this task but they
become involved only through contentious proceedings and once all domestic remedies have
been exhausted (Article 26) (art. 26).
These observations apply, notably, to Article 10 para. 2. In particular, it is not possible to
find in the domestic law of the various Contracting States a uniform European conception of
morals. The view taken by their respective laws of the requirements of morals varies from time
to time and from place to place, especially in our era which is characterised by a rapid and far-
reaching evolution of opinions on the subject. By reason of their direct and continuous contact
with the vital forces of their countries, State authorities are in principle in a better position than
the international judge to give an opinion on the exact content of these requirements as well as
on the ‘necessity’ of a ‘restriction’ or ‘penalty’ intended to meet them. The Court notes at this
juncture that, whilst the adjective ‘necessary’, within the meaning of Article 10 para. 2, is not
synonymous with ‘indispensable’ (cf., in Articles 2 para. 2 and 6 para. 1, the words ‘absolutely
necessary’ and ‘strictly necessary’ and, in Article 15 para. 1, the phrase ‘to the extent strictly
required by the exigencies of the situation’), neither has it the flexibility of such expressions as
‘admissible’, ‘ordinary’ (cf. Article 4 para. 3), ‘useful’ (cf. the French text of the first paragraph
of Article 1 of Protocol No. 1), ‘reasonable’ (cf. Articles 5 para. 3 and 6 para. 1) or ‘desirable’.
Nevertheless, it is for the national authorities to make the initial assessment of the reality of
the pressing social need implied by the notion of ‘necessity’ in this context.
Consequently, Article 10 para. 2 leaves to the Contracting States a margin of appreciation.
This margin is given both to the domestic legislator (‘prescribed by law’) and to the bodies,
judicial amongst others, that are called upon to interpret and apply the laws in force (Engel and
others, judgment of 8 June 1976, Series A no. 22, pp. 41–42, para. 100; cf., for Article 8 para. 2,
De Wilde, Ooms and Versyp, judgment of 18 June 1971, Series A no. 12, pp. 45–46, para. 93, and
the Golder judgment of 21 February 1975, Series A no. 18, pp. 21–22, para. 45).

49. Nevertheless, Article 10 para. 2 does not give the Contracting States an unlimited power
of appreciation. The Court, which, with the Commission, is responsible for ensuring the
observance of those States’ engagements (Article 19), is empowered to give the final ruling
on whether a ‘restriction’ or ‘penalty’ is reconcilable with freedom of expression as protected
by Article 10. The domestic margin of appreciation thus goes hand in hand with a European
supervision. Such supervision concerns both the aim of the measure challenged and its
‘necessity’; it covers not only the basic legislation but also the decision applying it, even one
given by an independent court. In this respect, the Court refers to Article 50 of the Convention
(‘decision or . . . measure taken by a legal authority or any other authority’) as well as to its
own case law (Engel and others, judgment of 8 June 1976, Series A no. 22, pp. 41–42, para. 100).
The Court’s supervisory functions oblige it to pay the utmost attention to the principles
characterising a ‘democratic society’. Freedom of expression constitutes one of the essential
foundations of such a society, one of the basic conditions for its progress and for the development
of every man. Subject to paragraph 2 of Article 10, it is applicable not only to ‘information’ or
‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference,
but also to those that offend, shock or disturb the State or any sector of the population. Such
are the demands of that pluralism, tolerance and broadmindedness without which there is
no ‘democratic society’. This means, amongst other things, that every ‘formality’, ‘condition’,
‘restriction’ or ‘penalty’ imposed in this sphere must be proportionate to the legitimate aim
pursued. From another standpoint, whoever exercises his freedom of expression undertakes
‘duties and responsibilities’ the scope of which depends on his situation and the technical
means he uses. The Court cannot overlook such a person’s ‘duties’ and ‘responsibilities’
48 | UNIVERSALITY, INTERDEPENDENCE AND CATEGORIES OF RIGHTS

when it enquires, as in this case, whether ‘restrictions’ or ‘penalties’ were conducive to the
‘protection of morals’ which made them ‘necessary’ in a ‘democratic society’.

50. It follows from this that it is in no way the Court’s task to take the place of the competent
national courts but rather to review under Article 10 the decisions they delivered in the exercise
of their power of appreciation.
However, the Court’s supervision would generally prove illusory if it did no more than
examine these decisions in isolation; it must view them in the light of the case as a whole,
including the publication in question and the arguments and evidence adduced by the applicant
in the domestic legal system and then at the international level. The Court must decide, on the
basis of the different data available to it, whether the reasons given by the national authorities
to justify the actual measures of ‘interference’ they take are relevant and sufficient under
Article 10 para. 2 (cf., for Article 5 para. 3), the Wemhoff judgment of 27 June 1968, Series A
no. 7, pp. 24–25, para. 12, the Neumeister judgment of 27 June 1968, Series A no. 8, p. 37, para.
5, the Stogmuller judgment of 10 November 1969, Series A no. 9, p. 39, para. 3, the Matznetter
judgment of 10 November 1969, Series A no. 10, p. 31, para. 3, and the Ringeisen judgment of
16 July 1971, Series A no. 13, p. 42, para. 104).

52 . . .
Basically the book contained purely factual information that was generally correct and
often useful, as the Quarter Sessions recognised. However, it also included, above all in the
section on sex and in the passage headed ‘Be yourself’ in the chapter on pupils (paragraph
32 above), sentences or paragraphs that young people at a critical stage of their development
could have interpreted as an encouragement to indulge in precocious activities harmful
for them, or even to commit certain criminal offences. In these circumstances, despite the
variety and the constant evolution in the United Kingdom of views on ethics and education,
the competent English judges were entitled, in the exercise of their discretion, to think at the
relevant time that the Schoolbook would have pernicious effects on the morals of many of the
children and adolescents who would read it.

The Court concluded that there was no breach of the European provisions on freedom of
expression, the State being entitled to exercise discretion as to what constituted the moral
standard within the State.

Recourse to the concluding observations of the treaty monitoring bodies of the United
Nations reveals similar approaches to certain international human rights. Particularly in respect
to economic, social and cultural ‘progressive’ rights, the committees appear to strive to advance
the rights from periodic report to periodic report. Cultural (and indeed economic and political)
reasons restricting the fulfilment of the full range of treaty obligations are taken into consideration.

Question
Enforcing human rights is essentially a matter for States. The international and regional systems can but moni-
tor and supervise national efforts. Is the margin of appreciation device simply a consequence of this? Does it
reflect appropriate discretion to be accorded to States or is it indicative of a weakening of the concept of universal
rights?

2.2.3.3 Africa
From the outset, the African Union (or to be precise at the time, the Organisation of African
Unity) strove to encapsulate a uniquely African approach to human rights in its signature treaty,
the African Charter on Human and Peoples’ Rights.
 UNIVERSALITY, INTERDEPENDENCE AND CATEGORIES OF RIGHTS | 49

AFRICAN CHARTER ON HUMAN AND PEOPLES’ RIGHTS 1981 PREAMBLE

. . . Taking into consideration the virtues of their historical tradition and the values of African
civilization which should inspire and characterise their reflection on the concept of human and
peoples’ rights.

Certainly the African Charter is innovative in that it strives towards including peoples’ rights. Some
of the rights are unusual and reflect particular problems endemic in Africa and particular injustices
which require redress. For example, the emphasis on decolonisation and slavery. However, most of
the basic human rights in the African Charter reflect clearly the terms of the Universal Declaration
on Human Rights and the international covenants. Of particular note, the African Charter is one
of the only treaties to integrate the full range of rights covered in the Universal Declaration: civil,
cultural, economic, political and social. The international UN Convention on the Rights of the
Child comes closest to matching the range of rights enshrined in the African Charter.

Question
What reasons are there to justify the advanced range of human rights contained in the African Charter as
compared to the other principal regional (and indeed international) instruments?

Consider the scope of the peoples’ rights in the African Charter:

AFRICAN CHARTER ON HUMAN AND PEOPLES’ RIGHTS 1981

Article 19

All peoples shall be equal; they shall enjoy the same respect and shall have the same rights.
Nothing shall justify the domination of a people by another.

Article 20

1 All peoples shall have the right to existence. They shall have the unquestionable and
inalienable right to self-determination. They shall freely determine their political status
and shall pursue their economic and social development according to the policy they have
freely chosen.
2 Colonized or oppressed peoples shall have the right to free themselves from the bonds of
domination by resorting to any means recognized by the international community.
3 All peoples shall have the right to the assistance of the States parties to the present
Charter in their liberation struggle against foreign domination, be it political, economic or
cultural.

Article 21

1 All peoples shall freely dispose of their wealth and natural resources. This right shall be
exercised in the exclusive interest of the people. In no case shall a people be deprived of it.
2 In case of spoliation the dispossessed people shall have the right to the lawful recovery of
its property as well as to an adequate compensation.
3 The free disposal of wealth and natural resources shall be exercised without prejudice to
the obligation of promoting international economic cooperation based on mutual respect,
equitable exchange and the principles of international law.
4 States parties to the present Charter shall individually and collectively exercise the right
to free disposal of their wealth and natural resources with a view to strengthening African
unity and solidarity.
5 States parties to the present Charter shall undertake to eliminate all forms of foreign
economic exploitation particularly that practiced by international monopolies so as to enable
their peoples to fully benefit from the advantages derived from their national resources.
50 | UNIVERSALITY, INTERDEPENDENCE AND CATEGORIES OF RIGHTS

Article 22

1 All peoples shall have the right to their economic, social and cultural development with
due regard to their freedom and identity and in the equal enjoyment of the common
heritage of mankind.
2 States shall have the duty, individually or collectively, to ensure the exercise of the right to
development.

Article 23

1 All peoples shall have the right to national and international peace and security. The
principles of solidarity and friendly relations implicitly affirmed by the Charter of the
United Nations and reaffirmed by that of the Organization of African Unity shall govern
relations between States.
2 For the purpose of strengthening peace, solidarity and friendly relations, States parties
to the present Charter shall ensure that: (a) any individual enjoying the right of asylum
under section 12 of the present Charter shall not engage in subversive activities against
his country of origin or any other State party to the present Charter; (b) their territories
shall not be used as bases for subversive or terrorist activities against the people of any
other State party to the present Charter.

Question
Is the concept of peoples’ rights indicative of African cultural values? Do they reflect southern African States’
Ubuntu philosophy? What reasons are there for these rights?

The African Charter is also the most prominent instrument which makes reference to duties.

AFRICAN CHARTER ON HUMAN AND PEOPLES’ RIGHTS

Chapter II – Duties

Article 27

1 Every individual shall have duties towards his family and society, the State and other
legally recognized communities and the international community.
2 The rights and freedoms of each individual shall be exercised with due regard to the rights
of others, collective security, morality and common interest.

Article 28

Every individual shall have the duty to respect and consider his fellow beings without discrimination,
and to maintain relations aimed at promoting, safeguarding and reinforcing mutual respect and
tolerance.

Article 29

The individual shall also have the duty:

1 To preserve the harmonious development of the family and to work for the cohesion and
respect of the family; to respect his parents at all times, to maintain them in case of need;
2 To serve his national community by placing his physical and intellectual abilities at its
service;
3 Not to compromise the security of the State whose national or resident he is;
4 To preserve and strengthen social and national solidarity, particularly when the latter is
threatened;
5 To preserve and strengthen the national independence and the territorial integrity of his
country and to contribute to its defence in accordance with the law;
 UNIVERSALITY, INTERDEPENDENCE AND CATEGORIES OF RIGHTS | 51

6 To work to the best of his abilities and competence, and to pay taxes imposed by law in the
interest of the society;
7 To preserve and strengthen positive African cultural values in his relations with other
members of the society, in the spirit of tolerance, dialogue and consultation and, in
general, to contribute to the promotion of the moral well being of society;
8 To contribute to the best of his abilities, at all times and at all levels, to the promotion and
achievement of African unity.

Question
Duties, in the African Charter are more extensive than the cursory reference in Article 29 of the Universal
Declaration. To what extent does the tabulation of duties specifically reflect African values? This is a claim
often made.

2.2.3.4 Americas
The rights in the American system are essentially civil and political but expand considerably those
encapsulated in the European Convention. The rights are as follows:

Article 3 – right to juridical personality

Article 4 – right to life
Article 5 – right to humane treatment
Article 6 – freedom from slavery
Article 7 – right to liberty
Article 8 – right to a fair trial
Article 9 – freedom from ex post facto laws
Article 10 – right to compensation
Article 11 – right to privacy
Article 12 – freedom of conscience and religion
Article 13 – freedom of thought and expression
Article 14 – right to reply
Article 15 – right to assembly
Article 16 – freedom of association
Article 17 – family rights
Article 18 – right to a name
Article 19 – right of the child
Article 20 – right to nationality
Article 21 – right to property
Article 22 – freedom of movement and residence
Article 23 – right to participate in government
Article 24 – equality before the law
Article 25 – right to judicial protection

Question
To what extent does this tabulation of rights reflect the views of the American States of human rights? Does
it adequately respond to historical and political issues characterising the region (at the time of the adoption and
indeed now)?

Note the application of Article 4 of the American Convention on Human Rights.

AMERICAN CONVENTION ON HUMAN RIGHTS 1969, Article 4

1 Every person has the right to have his life respected. This right shall be protected by law and,
in general, from the moment of conception. No one shall be arbitrarily deprived of his life.
52 | UNIVERSALITY, INTERDEPENDENCE AND CATEGORIES OF RIGHTS

2 In countries that have not abolished the death penalty, it may be imposed only for the most
serious crimes and pursuant to a final judgment rendered by a competent court and in
accordance with a law establishing such punishment, enacted prior to the commission of
the crime. The application of such punishment shall not be extended to crimes to which it
does not presently apply.
3 The death penalty shall not be reestablished in States that have abolished it.
4 In no case shall capital punishment be inflicted for political offenses or related common
crimes.
5 Capital punishment shall not be imposed upon persons who, at the time the crime was
committed, were under 18 years of age or over 70 years of age; nor shall it be applied to
pregnant women.
6 Every person condemned to death shall have the right to apply for amnesty, pardon, or
commutation of sentence, which may be granted in all cases. Capital punishment shall
not be imposed while such a petition is pending decision by the competent authority.

Question
Consider Article 4(1) of the American Convention on Human Rights. In what way does it differ from other
instruments articulating the right to life and what cultural reasons may there be for this?

2.2.4 Reservations and declarations: a practical solution?

Reservations and declarations are discussed in Chapter 3. For the present purposes it is enough to
note that they are of importance in permitting States wide practical discretion on applying rights
and freedoms, ostensibly to take account of cultural issues.

2.2.4.1 Case study: CEDAW and claimed conflicts with Islam

The Convention on the Elimination of All Forms of Discrimination against Women 1979
(CEDAW) seeks in essence to ensure the equal enjoyment of all civil, cultural, economic, political
and social rights by men and women. This reflects the importance placed on gender equality in the
Charter of the United Nations and the Universal Declaration of Human Rights.

PREAMBLE, CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION

AGAINST WOMEN 1979

Recalling that discrimination against women violates the principles of equality of rights and
respect for human dignity, is an obstacle to the participation of women, on equal terms with
men, in the political, social, economic and cultural life of their countries, hampers the growth
of the prosperity of society and the family and makes more difficult the full development of the
potentialities of women in the service of their countries and of humanity.

The perceived international importance of advocating gender equality prompted many States to
sign and ratify this instrument, irrespective of the potential practical difficulties which realising
its terms would encounter. Expansive reservations were treated as an essential tool, permitting
ratification while retaining national laws which undermine the effectiveness of the Convention.
Some Islamic States and States with Islam as the official religion have particular concerns over
provisions of CEDAW and how to guarantee it within their jurisdiction. Such concerns do
not necessarily deter States from ratifying the treaty, but the reservations submitted have been
challenged.
Saudi Arabia, for example, is frequently reported as pursuing and endorsing many practices
prejudicial to women and contrary to gender equality. Nevertheless, the Kingdom of Saudi Arabia
 UNIVERSALITY, INTERDEPENDENCE AND CATEGORIES OF RIGHTS | 53

duly ratified the Convention on the Elimination of All Forms of Discrimination against Women
in 2000, adding a declaration in the following terms:
I. In case of contradiction between any term of the Convention and the norms of Islamic law, the
Kingdom is not under obligation to observe the contradictory terms of the Convention.

This has been objected to by a number of States. Similar reservations/declarations have been
lodged by other States (reservations and their effect are discussed in Chapter 3).

Question
Is the submission of such reservations an appropriate pay-off for the inclusion of these States in the international
regime and their participation in the public international monitoring systems?

2.3 Positive obligations on States to conform to

human rights
A further characteristic of international human rights law is that the obligations imposed on States
are not necessarily negative, requiring a passive response. Such an approach characterised liberty-
based systems – the State should not limit the freedoms of its population unless there are good
reasons for such interference. With rights-based systems, individuals acquire positive rights which
are enforceable against their State. The State may thus be required to actively ensure that the rights
for which they proclaim respect are actively enforceable in the State.
A major development has been the extension of the territorial application of international
human rights law. This phenomenon is based on the obligations of States, and so can be distin-
guished from international criminal law, which is grounded in universal jurisdiction. States are
under a positive obligation to ensure that the rights and freedoms they accept under the relevant
human rights treaties are extended to all within their jurisdiction. This can mean that States must
have regard to the consequences of any decisions they take. In respect of extradition and deporta-
tion, the positive obligation can give rise to far-reaching consequences.
Once again, the European Court’s jurisprudence illustrates the point.

Soering v UK (1989) 11 EHRR 439

Soering, a German national, was detained in the United Kingdom pursuant to an extradition
request from the United States of America for murder. Soering and his American girlfriend had
allegedly admitted the murders of her parents in Virginia, United States of America. The girlfriend
was extradited and convicted, sentenced to serve 90 years in prison. Germany also requested the
extradition of Soering (to Germany). The following element of the judgment concerns whether
extradition from the United Kingdom to a country likely to impose a capital sentence would
violate the United Kingdom’s obligations under the European Convention on Human Rights to
respect freedom from torture and other inhuman or degrading treatment or punishment. Such
a violation would arise through the so-called ‘death row phenomena’ – a prolonged period of
waiting for execution, with numerous appeals and raised hopes and expectations.

85. .  .  . in so far as a measure of extradition has consequences adversely affecting the

enjoyment of a Convention right, it may, assuming that the consequences are not too
remote, attract the obligations of a Contracting State under the relevant Convention
guarantee (see, mutatis mutandis, the Abdulaziz, Cabales and Balkandali judgment of
25 May 1985, Series A no. 94, pp.  31–32, §§ 59–60 – in relation to rights in the field of
immigration). What is at issue in the present case is whether Article 3 can be applicable
when the adverse consequences of extradition are, or may be, suffered outside the
jurisdiction of the extraditing State as a result of treatment or punishment administered in
the receiving State.
54 | UNIVERSALITY, INTERDEPENDENCE AND CATEGORIES OF RIGHTS

86. Article 1 of the Convention, which provides that ‘the High Contracting Parties shall secure
to everyone within their jurisdiction the rights and freedoms defined in Section 1’, sets a limit,
notably territorial, on the reach of the Convention. In particular, the engagement undertaken
by a Contracting State is confined to ‘securing’ (‘reconnaître’ in the French text) the listed
rights and freedoms to persons within its own ‘jurisdiction’. Further, the Convention does not
govern the actions of States not Parties to it, nor does it purport to be a means of requiring the
Contracting States to impose Convention standards on other States. Article 1 cannot be read
as justifying a general principle to the effect that, notwithstanding its extradition obligations, a
Contracting State may not surrender an individual unless satisfied that the conditions awaiting
him in the country of destination are in full accord with each of the safeguards of the Convention.
Indeed, as the United Kingdom Government stressed, the beneficial purpose of extradition in
preventing fugitive offenders from evading justice cannot be ignored in determining the scope
of application of the Convention and of Article 3 in particular. In the instant case it is common
ground that the United Kingdom has no power over the practices and arrangements of the
Virginia authorities which are the subject of the applicant’s complaints. It is also true that
in other international instruments cited by the United Kingdom Government – for example
the 1951 United Nations Convention relating to the Status of Refugees (Article 33), the 1957
European Convention on Extradition (Article 11) and the 1984 United Nations Convention against
Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (Article 3) – the
problems of removing a person to another jurisdiction where unwanted consequences may
follow are addressed expressly and specifically. These considerations cannot, however,
absolve the Contracting Parties from responsibility under Article 3 for all and any foreseeable
consequences of extradition suffered outside their jurisdiction.

88. Article 3 (art. 3) makes no provision for exceptions and no derogation from it is permissible
under Article 15 (art. 15) in time of war or other national emergency. This absolute prohibition of
torture and of inhuman or degrading treatment or punishment under the terms of the Convention
shows that Article 3 (art. 3) enshrines one of the fundamental values of the democratic societies
making up the Council of Europe. It is also to be found in similar terms in other international
instruments such as the 1966 International Covenant on Civil and Political Rights and the
1969 American Convention on Human Rights and is generally recognised as an internationally
accepted standard. The question remains whether the extradition of a fugitive to another State
where he would be subjected or be likely to be subjected to torture or to inhuman or degrading
treatment or punishment would itself engage the responsibility of a Contracting State under
Article 3. That the abhorrence of torture has such implications is recognised in Article 3 of the
United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment, which provides that ‘no State Party shall . . . extradite a person where there
are substantial grounds for believing that he would be in danger of being subjected to torture’.
The fact that a specialised treaty should spell out in detail a specific obligation attaching to the
prohibition of torture does not mean that an essentially similar obligation is not already inherent
in the general terms of Article 3 of the European Convention. It would hardly be compatible with
the underlying values of the Convention, that ‘common heritage of political traditions, ideals,
freedom and the rule of law’ to which the Preamble refers, were a Contracting State knowingly
to surrender a fugitive to another State where there were substantial grounds for believing
that he would be in danger of being subjected to torture, however heinous the crime allegedly
committed. Extradition in such circumstances, while not explicitly referred to in the brief and
general wording of Article 3, would plainly be contrary to the spirit and intendment of the Article,
and in the Court’s view this inherent obligation not to extradite also extends to cases in which the
fugitive would be faced in the receiving State by a real risk of exposure to inhuman or degrading
treatment or punishment proscribed by that Article (art. 3).

91. In sum, the decision by a Contracting State to extradite a fugitive may give rise to an issue
under Article 3, and hence engage the responsibility of that State under the Convention, where
 UNIVERSALITY, INTERDEPENDENCE AND CATEGORIES OF RIGHTS | 55

substantial grounds have been shown for believing that the person concerned, if extradited,
faces a real risk of being subjected to torture or to inhuman or degrading treatment or
punishment in the requesting country. The establishment of such responsibility inevitably
involves an assessment of conditions in the requesting country against the standards of Article 3
of the Convention. Nonetheless, there is no question of adjudicating on or establishing the
responsibility of the receiving country, whether under general international law, under the
Convention or otherwise. In so far as any liability under the Convention is or may be incurred,
it is liability incurred by the extraditing Contracting State by reason of its having taken action
which has as a direct consequence the exposure of an individual to proscribed ill-treatment.

The Court unanimously found that, in the event of the Secretary of State’s decision to extradite
the applicant to the United States of America being implemented, there would be a violation of
Article 3 of the Convention.

Note that the European Court of Human Rights would obviously have had no jurisdiction over
the USA had Soering been extradited. The actual violation of the Convention would thus have
occurred in a non-Member State. Indeed, no international body would have jurisdiction over the
US in this situation. However, the possibility of the UK infringing the treaty through foreseeable
third-State actions has been corroborated by subsequent jurisprudence. D v United Kingdom
Application 30240/96 (1997) concerned the deportation of a convicted (in the UK) drug offender
who had been released from prison but was diagnosed with HIV/AIDS. The European Court held
there would be a violation of Article 3 of the European Convention if he was deported back to St
Kitts and Nevis due to the lack of medical care for AIDS patients there.
The principle espoused in Soering v United Kingdom has thus been refined in the case of D v
United Kingdom. There is a limit however, as the European Court confined D to its exceptional
circumstances – see the case of N v United Kingdom (Application 26565/05, Grand Chamber
Judgment of 27 May 2008). Today, States must be acutely aware of the foreseeable consequence
of any actions they may take. Clearly the legal responsibility of States for human rights can extend
beyond the geographical limit of the State, presupposing that the State is directly involved in the
process of subjecting an individual to the potential violation.

Question
Do you agree with the reasoning of the European Court in these cases? To what extent does the dicta of the
Court alter the accepted limits of State responsibility in international law? Does the logical implication of D v
United Kingdom extend the notion of responsibility for human rights too far or does it merely reflect the
universality of human rights? Does N v United Kingdom address adequately the ‘floodgate’ fears of many
governments?

Note also the opinion of the United Nations’ Committee Against Torture in Mutombo v Swit-
zerland, UN Doc. CAT/C/12/D/13/1993. Compare this with X v the Netherlands, UN Doc.
CAT/C/16/D/36/1995.
Subsequent case law has elaborated on extraterritorial application of human rights when an
act of a State produced effect in another State. This has particularly significance when considering
acts of armed forces:

Al-Skeini and Others v the United Kingdom Application no. 55721/077 July 2011
(Grand Chamber – judgment, parenthesis excluded)

This case concerned the deaths of six close relatives of the applicants in Al-Basrah, Southern
Iraq, in 2003, while the United Kingdom was an occupying power: three of the victims were
shot dead or shot and fatally wounded by British soldiers; one was shot and fatally wounded
during an exchange of fire between a British patrol and unknown gunmen; one was beaten
56 | UNIVERSALITY, INTERDEPENDENCE AND CATEGORIES OF RIGHTS

by British soldiers and then forced into a river, where he drowned; and one died at a British
military base, with 93 injuries identified on his body. The principal issue in this case was
whether the European Convention on Human Rights applied in respect of the killing of Iraqi
civilians in Iraq by British soldiers between May and November 2003. The Court had to decide
whether the applicants’ relatives fell within the jurisdiction of the United Kingdom within the
meaning of Article 1 (obligation to respect human rights) of the Convention. The Court referred
in particular to its previous case law in which it held that a State is normally required to apply
the Convention only within its own territory.

95. The applicants contended that their relatives were within the jurisdiction of the United Kingdom
under Article 1 of the Convention at the moment of death and that, except in relation to the sixth
applicant, the United Kingdom had not complied with its investigative duty under Article 2.

96. The government accepted that the sixth applicant’s son had been within United Kingdom
jurisdiction but denied that the United Kingdom had jurisdiction over any of the other deceased.
They contended that, since the second and third applicants’ relatives had been killed after the
adoption of United Nations Security Council Resolution 1511 (see paragraph 16 above), the
acts which led to their deaths were attributable to the United Nations and not to the United
Kingdom. In addition, the government contended that the fifth applicant’s case should be
declared inadmissible for non-exhaustion of domestic remedies and that the fifth and sixth
applicants no longer had victim status.

(a) The territorial principle

131. A State’s jurisdictional competence under Article 1 is primarily territorial. Jurisdiction

is presumed to be exercised normally throughout the State’s territory. Conversely, acts of the
Contracting States performed, or producing effects, outside their territories can constitute an
exercise of jurisdiction within the meaning of Article 1 only in exceptional cases.

132. To date, the Court in its case law has recognised a number of exceptional circumstances
capable of giving rise to the exercise of jurisdiction by a Contracting State outside its own
territorial boundaries. In each case, the question whether exceptional circumstances exist
which require and justify a finding by the Court that the State was exercising jurisdiction
extraterritorially must be determined with reference to the particular facts.

(b) State agent authority and control

133. The Court has recognised in its case law that, as an exception to the principle of territoriality,
a Contracting State’s jurisdiction under Article 1 may extend to acts of its authorities which
produce effects outside its own territory. The statement of principle, as it appears in Drozd
and Janousek and the other cases just cited, is very broad: the Court states merely that the
Contracting Party’s responsibility ‘can be involved’ in these circumstances. It is necessary to
examine the Court’s case law to identify the defining principles.

134. Firstly, it is clear that the acts of diplomatic and consular agents, who are present on
foreign territory in accordance with provisions of international law, may amount to an exercise
of jurisdiction when these agents exert authority and control over others.

135. Secondly, the Court has recognised the exercise of extraterritorial jurisdiction by a
Contracting State when, through the consent, invitation or acquiescence of the government
of that territory, it exercises all or some of the public powers normally to be exercised by that
government. Thus, where, in accordance with custom, treaty or other agreement, authorities of
the Contracting State carry out executive or judicial functions on the territory of another State,
the Contracting State may be responsible for breaches of the Convention thereby incurred, as
long as the acts in question are attributable to it rather than to the territorial State.
 UNIVERSALITY, INTERDEPENDENCE AND CATEGORIES OF RIGHTS | 57

136. In addition, the Court’s case law demonstrates that, in certain circumstances, the use of
force by a State’s agents operating outside its territory may bring the individual thereby brought
under the control of the State’s authorities into the State’s Article 1 jurisdiction. This principle
has been applied where an individual is taken into the custody of State agents abroad. . . . In
Al-Saadoon and Mufdhi v the United Kingdom ((dec.), no. 61498/08, §§ 86–89, 30 June 2009),
the Court held that two Iraqi nationals detained in British-controlled military prisons in Iraq
fell within the jurisdiction of the United Kingdom, since the United Kingdom exercised total and
exclusive control over the prisons and the individuals detained in them. . . . What is decisive in
such cases is the exercise of physical power and control over the person in question.

137. It is clear that, whenever the State, through its agents, exercises control and authority
over an individual, and thus jurisdiction, the State is under an obligation under Article 1 to
secure to that individual the rights and freedoms under Section I of the Convention that are
relevant to the situation of that individual.

(c) Effective control over an area

138. Another exception to the principle that jurisdiction under Article 1 is limited to a State’s
own territory occurs when, as a consequence of lawful or unlawful military action, a Contracting
State exercises effective control of an area outside that national territory. The obligation to
secure, in such an area, the rights and freedoms set out in the Convention, derives from the fact
of such control, whether it be exercised directly, through the Contracting State’s own armed
forces, or through a subordinate local administration. Where the fact of such domination over
the territory is established, it is not necessary to determine whether the Contracting State
exercises detailed control over the policies and actions of the subordinate local administration.
The fact that the local administration survives as a result of the Contracting State’s military
and other support entails that State’s responsibility for its policies and actions. The controlling
State has the responsibility under Article 1 to secure, within the area under its control, the
entire range of substantive rights set out in the Convention and those additional protocols
which it has ratified. It will be liable for any violations of those rights.
. . .

(d) The legal space (‘espace juridique’) of the Convention

. . .
142. The Court has emphasised that, where the territory of one Convention State is occupied
by the armed forces of another, the occupying State should in principle be held accountable
under the Convention for breaches of human rights within the occupied territory, because to
hold otherwise would be to deprive the population of that territory of the rights and freedoms
hitherto enjoyed and would result in a ‘vacuum’ of protection within the ‘legal space of the
Convention’. However, the importance of establishing the occupying State’s jurisdiction in such
cases does not imply, a contrario, that jurisdiction under Article 1 of the Convention can never
exist outside the territory covered by the Council of Europe member States.

(ii) Application of these principles to the facts of the case

143. In determining whether the United Kingdom had jurisdiction over any of the applicants’
relatives when they died, the Court takes as its starting point that, on 20 March 2003, the United
Kingdom together with the United States of America and their coalition partners, through their
armed forces, entered Iraq with the aim of displacing the Ba’ath regime then in power. This aim
was achieved by 1 May 2003, when major combat operations were declared to be complete and
the United States of America and the United Kingdom became Occupying Powers within the
meaning of Article 42 of the Hague Regulations.
58 | UNIVERSALITY, INTERDEPENDENCE AND CATEGORIES OF RIGHTS

. . .
147. During this period, the United Kingdom had command of the military division Multinational
Division (South-East), which included the province of Al-Basra, where the applicants’ relatives
died. From 1 May 2003 onwards the British forces in Al-Basra took responsibility for maintaining
security and supporting the civil administration. Among the United Kingdom’s security tasks
were patrols, arrests, anti-terrorist operations, policing of civil demonstrations, protection of
essential utilities and infrastructure and protecting police stations.

148. In July 2003 the Governing Council of Iraq was established. The CPA remained in power,
although it was required to consult with the Governing Council. In Resolution 1511, adopted on
16 October 2003, the United Nations Security Council underscored the temporary nature of the
exercise by the CPA of the authorities and responsibilities set out in Resolution 1483. It also
authorised ‘a Multinational Force under unified command to take all necessary measures to
contribute to the maintenance of security and stability in Iraq’.

(iii) Conclusion as regards jurisdiction

149. It can be seen, therefore, that following the removal from power of the Ba’ath regime and
until the accession of the interim Iraqi government, the United Kingdom (together with the
United States of America) assumed in Iraq the exercise of some of the public powers normally
to be exercised by a sovereign government. In particular, the United Kingdom assumed authority
and responsibility for the maintenance of security in south-east Iraq. In these exceptional
circumstances, the Court considers that the United Kingdom, through its soldiers engaged in
security operations in Basra during the period in question, exercised authority and control over
individuals killed in the course of such security operations, so as to establish a jurisdictional link
between the deceased and the United Kingdom for the purposes of Article 1 of the Convention.

150. Against this background, the Court recalls that the deaths at issue in the present case
occurred during the relevant period: the fifth applicant’s son died on 8 May 2003; the first and
fourth applicants’ brothers died in August 2003; the sixth applicant’s son died in September
2003; and the spouses of the second and third applicants died in November 2003. It is not
disputed that the deaths of the first, second, fourth, fifth and sixth applicants’ relatives were
caused by the acts of British soldiers during the course of or contiguous to security operations
carried out by British forces in various parts of Basra City. It follows that in all these cases
there was a jurisdictional link for the purposes of Article 1 of the Convention between the
United Kingdom and the deceased. The third applicant’s wife was killed during an exchange
of fire between a patrol of British soldiers and unidentified gunmen and it is not known which
side fired the fatal bullet. The Court considers that since the death occurred in the course of
a United Kingdom security operation, when British soldiers carried out a patrol in the vicinity
of the applicant’s home and joined in the fatal exchange of fire, there was a jurisdictional link
between the United Kingdom and this deceased also.

Responsibility of States for international human rights also impacts on the use made by States of
their criminal law. States must ensure that individuals within their territory are punished for violat-
ing norms of human rights. Examples of this can be drawn from existing case law.
The first case illustrates the argument supporting this impact of human rights:

A v United Kingdom (1998) Vol. 1998-VI, No. 90 (parentheses references omitted)

The facts of this case are discussed above, in Chapter 1. A child was beaten by his stepfather.
At trial, the stepfather was acquitted following submission of the defence that the punishment
of the child was ‘reasonable chastisement’ and thus permissible.
 UNIVERSALITY, INTERDEPENDENCE AND CATEGORIES OF RIGHTS | 59

22. It remains to be determined whether the State should be held responsible, under Article 3,
for the beating of the applicant by his stepfather.
The court considers that the obligation on the High Contracting Parties under Article
1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms
defined in the Convention, taken together with Article 3, requires States to take measures
designed to ensure that individuals within their jurisdiction are not subjected to torture or
inhuman or degrading treatment or punishment, including such ill-treatment administered
by private individuals. Children and other vulnerable individuals, in particular, are entitled to
State protection, in the form of effective deterrence, against such serious breaches of personal
integrity (see also the United Nations Convention on the Rights of the Child, Articles 19 and 37).

23. The Court recalls that under English law it is a defence to a charge of assault on a child that
the treatment in question amounted to ‘reasonable chastisement’. The burden of proof is on
the prosecution to establish beyond reasonable doubt that the assault went beyond the limits of
lawful punishment. In the present case, despite the fact that the applicant had been subjected
to treatment of sufficient severity to fall within the scope of Article 3, the jury acquitted his
stepfather, who had administered the treatment.

24. In the Court’s view, the law did not provide adequate protection to the applicant against
treatment or punishment contrary to Article 3. Indeed, the Government have accepted that this
law currently fails to provide adequate protection to children and should be amended.
In the circumstances of the present case, the failure to provide adequate protection
constitutes a violation of Article 3 of the Convention.

Such developments are not confined to Europe, as the Velásquez Rodríguez decision of the Inter-
American Court of Human Rights (discussed in Section 12.3.4) illustrates.

2.4 Indivisibility and interdependence, or a hierarchy

of rights?
The major international instruments clearly prescribe a wide range of human rights. Assuming
they are all universally applicable, are they all equally applicable, or is there an overt or covert hier-
archy? Are some rights more important than others? Perhaps most obviously, the right to life has
to be accorded some degree of paramountcy, even if only as a matter of practicality. Quite clearly
life is a precursor to enjoyment of any human rights, albeit some discussion remains as to the point
at which life begins: birth or conception? Thereafter, the importance ascribed to rights is a matter
of individual preference. People suffering in the aftermath of a catastrophic natural emergency will
most likely prioritise clean water and food over the right to vote in democratic elections. Political
prisoners may value freedom of expression over liberty, press freedom and individual private rights.
Can such conflicting views be reconciled with universality of rights?

VIENNA DECLARATION AND PROGRAMME OF ACTION 1993, para 5

All human rights are universal, indivisible and interdependent and interrelated. The
international community must treat human rights globally in a fair and equal manner, on the
same footing, and with the same emphasis.

The most significant categorisation of rights is that between civil and political rights and eco-
nomic, social and cultural rights. A third major category of rights has emerged too – group rights
(or collective rights). The distinction between civil and political rights and economic, social and
cultural rights arguably has historical and political origins.
60 | UNIVERSALITY, INTERDEPENDENCE AND CATEGORIES OF RIGHTS

2.4.1 A Cold War product? – two categories of rights

The welfare socialist State as a concept is predicated on the idea that the State owes assistance to
categories of people in great need. Social and economic rights require positive action on the part
of the State, while arguably some civil and political rights may be met by passivity on the part of
the State, i.e. a failure to interfere with the individual exercise of the right. However, it is a myth
that all social and economic rights require financial outlay on the part of the State and all civil and
political rights do not. Social and economic rights can often be tangible (food, education, adequate
living, safe work, housing and so on) whilst civil and political rights can be less tangible (expres-
sion, individual religious beliefs) albeit often realised in a more tangible way (e.g. worshipping,
meeting, speaking).
Theories such as communism and Marxism emphasised prioritised elements of economic and
social rights. The State ensured the population had their basic needs. Of course, such rights came
at a cost and many people living in such countries were arguably denied civil and political rights
such as freedom of expression and democratic rights.
In contrast, the other side of the proverbial ‘Iron Curtain’ emphasised civil and political rights,
the concepts which underpinned their ideals of democratic societies. Many of these rights may also
be traced back to the Reformation and Enlightenment period in Europe. The French Declaration
on the Rights of Man, the American Declaration of Independence and its amendments (the Bill of
Rights) focus on individual freedoms of liberty, speech and equality. Such rights remain primarily
civil and political in essence.
When the United Nations was preparing the legal tabulation of the Universal Declaration of
Human Rights, the onset of the Cold War arguably forced the division of the Universal Declara-
tion. Divisions were not purely on ideological grounds, but also on enforceability of rights and the
extent to which respecting, promoting and protecting rights could be achieved. Two international
covenants emerged: one on economic, social and cultural rights, the other on civil and political
rights. Even today, there remains a slight difference in the numbers of States Parties to each.

2.5 Interdependence and Indivisibility

A further factor to consider is the overlap between rights thus the interdependence of all rights:
failure to secure the right to adequate health care (a social/economic right) may result in a threat
to life, the right to life being a primary civil and political right. 

Protection of socioeconomic rights by constitutional

courts
Supreme Court of India, Chameli Singh & Others v State of Uttar Pradesh, 1996; SC,
Francis Coralie Mullin v Union Territory of Delhi and Others, 1981.
The Supreme Court of India has affirmed that ‘(the) right to life guaranteed in any
civilised society implies the right to food, water, decent environment, education,
medical care and shelter’.
South Africa Constitutional Court, Minister of Health and Others v Treatment Action
Campaign and Others, (No 1), [2002] ZACC 16.
The South African Constitutional Court has held that the right to life is inseparable
from the right to access health care and other economic, social and cultural rights.
Colombian Constitutional Court, T- 974/10 (2010) or T-841 (2011).
The Colombian Constitutional Court linked the protection of the right to health to
the right to life in a series of decisions which have led to important systemic changes
to the health care system in order to meet the needs of internally displaced persons.
 UNIVERSALITY, INTERDEPENDENCE AND CATEGORIES OF RIGHTS | 61

Many more examples can be found: right to education and right to vote and political par-
ticipation; right to adequate rest periods for workers and freedom from degrading and even life-
threatening treatment.

2.5.1 The right to clean water and adequate sanitation

The following figure illustrates the interdependence of rights, focusing on the right to clean water
and adequate sanitation.
Access to clean water and sanitation clearly has a bearing on a number of other rights and
freedoms. A stand-alone right to clean water and adequate sanitation would not, of course, be suf-
ficient to ensure that all elements of the right to education or the right to health are satisfied. On
the other hand, fully implementing the right to health would require the supply of clean water
and adequate sanitation.

2.5.2 The right to life

Life, and thus the right to life, is clearly a fundamental prerequisite to the exercise of many of the
other rights and freedoms. However, this does not mean that the right to life is totally sacrosanct.
That would place unrealistic burdens on the State – to preserve all life! Rather, each instrument
notes the instances in which life may be forfeited.

EUROPEAN CONVENTION ON HUMAN RIGHTS 1950, Article 2

1 Everyone’s right to life shall be protected by law. No one shall be deprived of his life
intentionally save in the execution of a sentence of a court following his conviction of a
crime for which this penalty is provided by law.
2 Deprivation of life shall not be regarded as inflicted in contravention of this article when it
results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.
62 | UNIVERSALITY, INTERDEPENDENCE AND CATEGORIES OF RIGHTS

Not all rights are necessarily equal at all times, despite the concept of universalism outlined previ-
ously. Moreover, individual situations will affect which rights are prioritised at any given time.
This will usually be a subjective decision. Someone under house arrest for a prolonged period of
time on account of political activities may well prioritise civil and political rights. Indeed, such
a person may be willing to die for freedom of expression and political freedoms. In contrast, a
child caught up in HIV/AIDS with a terminally ill parent and three younger siblings to support
is unlikely to be as interested in political participation, freedom of expression and equality before
the law. These rights are all factors and may be important to the child. However, his or her focus
is more likely to be on the rights needed for immediate survival.

Question
Consider the plight of those involved in recent natural disasters: earthquakes, avalanches, volcanic eruptions,
droughts, floods, hurricanes, typhoons, cyclones, tropical storms. Tragically, the list could continue. Which rights
would be a priority for those caught up in the trauma and why?

2.5.3 A family of rights

Having addressed the issue of a ‘hierarchy’ of rights, now consider the extent to which the follow-
ing three rights and freedoms overlap. Is it possible to have full political participation without at
least some freedom of expression? Can education and freedom of expression be mutually exclu-
sive? Does an education (of whatever kind) assist with participation in the political process and the
exercise of associated democratic rights?
Rather than consider human rights in diverse categories, it is perhaps best to consider them
as an organic whole, a family of rights, each category performing an important function; each
contributing towards vibrant richness of rights and freedoms.

2.6 Evolving and developing rights

Finally, the rights enshrined in the various international and regional instruments are not static.
Rather than remain frozen in time, the rights constantly evolve, responding to international events,
reacting to social advancements and political change. The role of the courts and committees in
achieving this change was discussed in Chapter 1; see also Chapter 7.
 UNIVERSALITY, INTERDEPENDENCE AND CATEGORIES OF RIGHTS | 63

In conclusion, it appears true to say that international human rights are universal, indivisible,
interdependent and inalienable.

Further reading
Arnold, R. (ed.), The Universalism of Human Rights, 2012, New York/London: Springer.
Baehr, P., Universality in Practice, 1999, New York: St. Martin’s Press.
Benvenisti, E., ‘Margin of Appreciation, Consensus and Universal Standards’ (1999) 31 International
Law and Politics 843.
Brems, E., ‘Legal Pluralism As a Human Right and/or As a Human Rights Violation’ in G. Corradi,
E. Brems and M. Goodale (eds), Human Rights Encounter Legal Pluralism, Oñati International
Series in Law and Society, 2017, Oxford/Portland: Hart Publishing.
Donnelly, J., Universal Human Rights: In Theory and Practice, 2013, Ithaca: Cornell University Press.
Evans, T., ‘Universal Human Rights: as Much Round and Round as Ever Onward?’ (2003) 7.4 Inter-
national Journal of Human Rights 155.
Goodale, M., Surrendering to Utopia: An Anthropology of Human Rights, 2009, Palo Alto: Stanford
University Press.
Hutchinson, M., ‘The Margin of Appreciation Doctrine in the European Court of Human Rights’
(1999) 48 International and Comparative Law Quarterly 638.
Letsas, G., ‘Two Concepts of the Margin of Appreciation’ (2006) 26 Oxford Journal of Legal Studies 705.
McGoldrick, D., ‘Multiculturalism and Its Discontents’ (2005) 5.1 Human Rights Law Review 27.
Quane, H., ‘Legal Pluralism and International Human Rights Law: Inherently Incompatible, Mutu-
ally Reinforcing or Something in Between?’ (Winter 2013) 33.4 Oxford Journal of Legal Studies
675–702.
Tomuschat, C., Human Rights: Between Idealism and Realism, 2014, Oxford: OUP.
Whelan, D.J., Indivisible Human Rights: A History, 2011, Philadelphia: University of Pennsylvania
Press.
Chapter 3

States and treaty obligations 

Chapter contents

3.1 ‘Universal human rights’ and ratification 66

3.2 Limitations on State compliance: reservations,
declarations, derogations and denunciations 69
3.3 Reservations 70
3.4 Declarations 82
3.5 Derogations 84
3.6 Denunciations 92
 
 STATES AND TREATY OBLIGATIONS | 65

To achieve universal acceptance of all human rights, obviously States must accept fully the exis-
tence of all human rights. Generally, the law concerning State acceptance of human rights is public
international law. This chapter examines the relevant aspects of public international law as it relates
to States and treaty obligations.

• How do States accept treaty obligations?

• Is a State always bound by the entire treaty?
• How does a State opt out of treaty obligations?
• Can a State opt out of fundamental human rights given they are universal?
• Can a State opt out of complying with human rights during a national emergency (a natural
disaster or an armed conflict, for example)?

The Millennium Declaration adopted by the General Assembly of the United Nations in 2000
emphasised the need for respect for the Universal Declaration of Human Rights (UN Doc.
A/55/L.2, para 25), and for heads of State and government to spare no effort promoting democ-
racy and strengthening the rule of law, respecting all internationally recognised human rights
and fundamental freedoms (para 24). For any system of international human rights to work, it is
essential that as large a number of States as possible participate, embracing the rights and obliga-
tions enshrined in the salient instruments. In other words, their participation should be absolute.

VIENNA DECLARATION AND PROGRAMME OF ACTION WORLD CONFERENCE ON

HUMAN RIGHTS, VIENNA, 14–25 JUNE 1993, UN Doc. A/CONF.157/23

26. The World Conference on Human Rights welcomes the progress made in the codification of
human rights instruments, which is a dynamic and evolving process, and urges the universal
ratification of human rights treaties. All States are encouraged to accede to these international
instruments; all States are encouraged to avoid, as far as possible, the resort to reservations.

By definition, international human rights are adopted in the understanding they will achieve
international and, indeed, universal acceptance. To date, the instrument coming closest is the Con-
vention on the Rights of the Child, with ratification by all but one Member State of the UN (the
USA). This chapter will encapsulate material relating to the obligations incumbent on States and
the methods by which States may limit them. The next chapters will focus more on the systems of
monitoring and enforcing human rights. 

Glossary of terms
Derogation: A derogation is a measure adopted by a State party to partially suspend
the application of one or more provisions of a treaty. Some human rights treaties
allow State parties, in a public emergency which threatens the life of the nation,
to derogate but this is usually only from certain provisions and to the extent
strictly required by the situation. States are generally obliged to inform other
State parties of such derogations, the reason for derogating and the anticipated
timeframe of the derogation.
Declaration: A State may choose, or be required, to make a declaration concerning
a treaty to which it has become a party. There are several types of declarations:
• Interpretative declarations: A State may make a declaration about its under-
standing of a particular provision in a treaty. Declarations differ from reserva-
tions as they do not purport to exclude or modify the legal effects of a treaty.
66 | STATES AND TREATY OBLIGATIONS 

• Optional and mandatory declarations: Treaties may provide for States to

make optional and/or mandatory declarations. These declarations are legally
binding on the declarants. To select an example in a human rights treaty:
Article 41 of the International Covenant on Civil and Political Rights offers
States an optional declaration that they accept the Human Rights Commit-
tee’s competence to consider inter-State complaints.
Reservation: A reservation is a statement, however phrased or named, made by a
State by which it purports to exclude or alter the legal effect of certain provisions
of a treaty in their application to that State. Of potential benefit, a reservation may
enable a State to participate in a multilateral treaty in which it would otherwise be
unable or unwilling to do so. States can make reservations to a treaty when they
sign, ratify, accept, approve or accede to it.

3.1 ‘Universal human rights’ and ratification

An essential part of the new world order created through the United Nations is the concept of
universal rights. Materials relating to the debate between universality and cultural pluralism have
already been discussed in Chapter 2. In contrast, this section examines the practical problems
encountered by the international community in trying to ensure the universal application of rights.
Problems arise through the myriad of ways a State can legitimately limit its obligations under any
given instrument. It is inevitable that universality was the goal of the United Nations: a truly
global organisation derives continued legitimacy from international endorsement. However, even
without the problems caused by cultural relativism, the goal of universality encounters hurdles due
to the lack of State ratifications.
Compare and contrast the following views of universal ratification. These are perhaps two of
the classic views which informed the reform processes around the turn of the century.

A critical viewpoint
Professor Anne F. Bayefsky, York University, Canada. Committee on International Human
Rights Law and Practice Report on the UN Human Rights Treaties: Facing the
Implementation Crisis, International Law Association

Helsinki Conference (1996)

The implementation crisis facing the principle UN human rights legal standards is now of
dangerous proportions. For a great many States ratification has become an end in itself, a
means to easy accolades for empty gestures. The problem has arisen in part because of a
deliberate emphasis on ratification.
The primary goal of the UN community has been to achieve universal ratification of the
human rights treaties. The underlying belief is that once universal ratification is realized, the
implementation techniques can be strengthened. Once committed to participation, States will
find it difficult to pull out and will find themselves ensnared in an ever-expanding network of
international supervision and accountability.
In the meantime, ratification by human rights adversaries is purchased at a price, namely,
diminished obligations, lax supervision, and few adverse consequences from non-compliance.
The cost of membership has been deliberately minimized. One significant example of this
phenomenon is the acceptance into the treaty regime of States that ratify only with broad
reservations. These reservations purport to limit the obligations assumed. For example, many
 STATES AND TREATY OBLIGATIONS  | 67

Islamic and Asian States only ratify the treaties with the caveat that any obligation sustained
must first be compatible with Islamic law or a similar broad reservation.
Such reservations are inconsistent with international law which requires reservations to
conform to the object and purpose of the treaty, and in the case of human rights treaties means
identifying and applying overriding, universal standards. Nevertheless, few States are prepared
to challenge other States on the legitimacy of their reservations, and some important States
like the United States and the United Kingdom currently are resisting attempts by the treaty
bodies themselves to challenge reservations.

Question
Are Bayefsky’s criticisms realistic and justified or unduly pessimistic?

Bayefsky’s criticisms should be borne in mind when progressing through this chapter, not least as
you re-evaluate whether or not they are justified.
A programme of practical solutions in the push towards universal ratification was suggested by
Professor Philip Alston, the United Nations appointed independent expert who prepared a series
of reports on rendering the United Nations process more efficient.

United Nations support of universalism

Professor Philip Alston, UN Independent Expert. Final report on enhancing the long-term
effectiveness of the United Nations human rights treaty system, UN Doc. E/CN.4/1997/74

23. The emphasis upon promoting universal ratification is an essential one in order to
strengthen and consolidate the universalist foundations of the United Nations human rights
regime. Despite the fears of some critics, the quest for universal ratification need not have any
negative consequences for the treaty regime as a whole. One such critic, Professor Bayefsky,
has argued that the ‘implementation crisis’ which she perceives to exist is due in part to ‘a
deliberate emphasis on ratification’ which for many States, has ‘become an end in itself, a
means to easy accolades for empty gestures’. In her view, ratification is often ‘purchased at
a price, namely, diminished obligations, lax supervision, and few adverse consequences from
non-compliance’. But such an analysis would seem to confuse two processes which should
remain, and for the most part have remained, separate. It is difficult to accept the proposition
that the treaty bodies have been lax in their supervision in order to entice more States to accept
the obligations in question. Indeed, the experience of the Convention on the Rights of the Child
would seem clearly incompatible with such an analysis. The Committee on the Rights of the
Child has, to date, been one of the most demanding and conscientious of the treaty bodies,
but this has in no way impeded the dramatic movement towards the achievement of near-
universal ratification of the Convention. In the view of the independent expert more, rather
than less, should be done to explore ways in which to overcome the legitimate, as opposed to
the inappropriate, concerns of certain identifiable groups of countries that have so far been
reluctant to ratify.
24. Perhaps the most obvious such group consists of those States with a population of
1 million or less. Twenty-nine such States have not ratified either of the two International
Covenants on Human Rights. As of 1996, 21 of those were estimated to have a Gross National
Product per capita of below US$ 5,000 per annum, and with 11 of them being below the $2,000
per annum level.
. . .
25. This in turn raises the question of whether the international community should be
providing resources to facilitate the ratification of treaties by such States and to assist them
in meeting the subsequent reporting burden, at least initially. Curiously, it has yet to be
acknowledged that such activities, which are essential to laying the foundations for a stable
68 | STATES AND TREATY OBLIGATIONS 

and peaceful world in which human rights are respected, should be funded adequately within
the United Nations framework. It almost seems to be thought that efforts to promote the
acceptance of human rights norms would somehow be tainted if progress were purchased at a
price, in terms of the necessary technical assistance. In contrast, the principle was recognized
long ago in the environmental area in which many of the arrangements made in relation to
key treaties provide for financial and other forms of assistance to help States to undertake the
necessary monitoring, to prepare reports and to implement some of the measures required in
order to ensure compliance with treaty obligations.

To this end, Alston made a number of recommendations, including:

(1) examining the role of international agencies in encouraging ratifications;

(2) adopting systematic approach to overcoming identified obstacles to ratification;
(3) employing specific funding to support preparation of initial State reports;
(4) identifying appropriate ways of streamlining the reporting burden particularly for those States
which have already ratified the Convention on the Rights of the Child and/or the Con-
vention on the Elimination of All Forms of Racial Discrimination/Discrimination against
Women (the most commonly ratified instruments by States within this category) thereby
encouraging the State to ratify more extensively.

Question
To what extent could such an approach prove successful? What are the advantages and disadvantages of this pro-
posed approach? Should such an approach adequately address the problems identified by Alston and Bayefsky?

3.1.1 The unusual position of the Convention on the Rights

of the Child
Following Alston’s analysis, the paradox inherent in the ratification levels of the UN Convention
on the Rights of the Child is remarkable. The Committee on the Rights of the Child is very pro-
gressive in its approach to the Convention. Accordingly, States are already being held to account
for virtually all the rights in the International Covenants and other principal instruments. A perusal
of State reports indicates that many States do not have specific enforceable national instruments
on children’s rights – the rights enshrined in the Convention must then be supported by the same
laws and regulations that protect the rights of adults. While few question the need for protection of
children, it appears that most States already afford the same rights to adults and children, with little
discrimination. Why then do they not exalt their positive universalist approach by ratifying the
other instruments? Should the law fully support the range of children’s rights in the Convention?
Few, if any, changes in national law would be required for implementing the two international
covenants and, indeed, the other major instruments.
This issue is addressed by Philip Alston in his seminal report.

Philip Alston, final report, UN Doc. E/CN.4/1997/74, 27 March, paras 19–21

19. There are some important lessons to be learned from the successes achieved in relation
to the [.] conventions which have attracted so many new ratifications in recent years. The
first concerns the importance of political will, whether expressed through the holding of
international conferences which place appropriate emphasis upon the convention in question or
through consistent efforts by international organizations. In contrast, the lead-up to international
conferences focusing on social development (Copenhagen) and human settlements (Istanbul)
saw no attention at all to efforts to promote ratification of the relevant human rights treaties.
The second lesson concerns the importance of mobilizing domestic constituencies (in this
 STATES AND TREATY OBLIGATIONS  | 69

case, women’s and children’s non-governmental organizations) in support of the goals and
mechanisms reflected in the treaty, thus making it easier for Governments to undertake
ratification.
20. The third lesson, and in the case of the Convention on the Rights of the Child the most
important, concerns the provision of assistance and advice by an international agency, which in
this instance was the United Nations Children’s Fund. Such agencies can, whenever requested,
assist Governments and the principal social partners in various ways, including: by explaining
the significance of the treaty as a whole and of its specific provisions; by promoting an
awareness of the treaty which facilitates domestic consultations and discussions; by shedding
light upon the requirements of the treaty in the event of ratification; by providing assistance to
enable any necessary pre-ratification measures to be identified and implemented; by assisting
in relation to the preparation of reports, both indirectly through the agency’s own situation
analyses, and directly through the provision of expert assistance where appropriate; and by
reassuring developing countries in particular that ratification should bring with it enhanced
access to at least some of the expert or financial resources needed to implement key provisions
of the treaty.
21. In this respect the success of the effort to promote ratification of the Convention on
the Rights of the Child indicates that there is no (or at least no longer) deep-rooted resistance
to the principle of participation in human rights supervisory arrangements. Given the relative
comprehensiveness of the Convention, along with the integral links between respect for
children’s rights and those of the rest of the community, it might be thought that the reasons
which had previously led various States not to ratify all six of the core human rights treaties are
no longer compelling and that there will be a new openness to increased participation in the
overall treaty regime. Indeed, there is something odd about a situation in which all States but
four have become parties to such a far-reaching Convention while almost one State in every
three has not become a party to either of the two International Covenants.

Question
What reasons are there for reticent States to ratify the Convention on the Rights of the Child yet not even sign
other instruments? What lessons can be learnt from the success of this instrument?

The Convention on the Rights of the Child is not alone in attracting multiple State ratifications,
though certainly it is a unique beacon of hope for those advocating universal ratification of all major
instruments. Notable advances in ratification have followed some other major conferences. The
Fourth World Conference on Women (Beijing 1995) attracted significant public attention as the
largest ever gathering of government and NGO representatives. It prompted anew a global com-
mitment to the advancement of women through empowerment and provided a focus for increas-
ing ratification of the UN Convention on the Elimination of All Forms of Discrimination against
Women and the erosion of reservations thereto. The Convention on the Protection of Peoples with
Disabilities, one of the newest core UN treaties, entered into force rapidly. Nevertheless the goal of
universal ratification of all core treaties yet remains some way off.

3.2 Limitations on State compliance: reservations,

declarations, derogations and denunciations
Ratification is not the sole problem encountered by proponents of a universal human rights regime.
A State which ratifies any or all of the major instruments may still avoid the necessity of giving
effect to the provisions of the instrument concerned. There are a number of ways that a State
which has signed up to a human rights instrument can limit the range of obligations it assumes:
reservations, declarations, derogations and denunciations. Each of these will be considered in turn.
70 | STATES AND TREATY OBLIGATIONS 

3.3 Reservations
A reservation is the means by which a State can be party to a treaty while excluding or modify-
ing one or more provisions. The Vienna Convention on the Law of Treaties attempted to codify
customary international law on the matter, though in some aspects represented progressive devel-
opment of the pre-existing customary law.

3.3.1 Nature and scope of reservations

VIENNA CONVENTION ON THE LAW OF TREATIES 1969

Article 2(1)(d)

For the purpose of the present Convention, ‘reservation’ means a unilateral statement, however
phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding
to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of
the treaty in their application to that State.

Article 19

Formulation of reservations

A State may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a
reservation unless:

(a) the reservation is prohibited by the treaty;

(b) the treaty provides that only specified reservations, which do not include the reservation
in question, may be made; or
(c) in cases not falling under sub-paragraphs (a) and (b), the reservation is incompatible with
the object and purpose of the treaty.

Not all reservations are termed such and thus the definition of a reservation is of crucial impor-
tance. As is seen in the following extract from a General Comment of the Human Rights Com-
mittee, it is the substance, not the title, of the measure which is determinative. The approach
outlined by the Human Rights Committee probably pervades other international instruments and
thus is of general relevance.

Human Rights Committee, General Comment 24 (1994)

Issues relating to reservations made upon ratification or accession to the Covenant or the Optional
Protocols thereto, or in relation to declarations under article 41 of the Covenant

3. It is not always easy to distinguish a reservation from a declaration as to a State’s

understanding of the interpretation of a provision, or from a statement of policy. Regard will
be had to the intention of the State, rather than the form of the instrument. If a statement,
irrespective of its name or title, purports to exclude or modify the legal effect of a treaty in
its application to the State, it constitutes a reservation. Conversely, if a so-called reservation
merely offers a State’s understanding of a provision but does not exclude or modify that
provision in its application to that State, it is, in reality, not a reservation.

Traditionally, a reservation to a bilateral treaty would result in renegotiation to achieve consensus

between parties. On the other hand, States ratifying or acceding to a multilateral treaty (most
international human rights instruments) could only enter a reservation if said reservation was
 STATES AND TREATY OBLIGATIONS  | 71

accepted by all other contracting parties. Should one or more States object to the reservation,
then the State seeking to join the Convention would have to withdraw its reservation or leave
the Convention. Clearly, in a system of international multilateral human rights instruments,
such an approach could prove problematic, significantly limiting the number of States brought
within the ambit of the international human rights system. Universalism would become impos-
sibly idealistic. The need for a balance between universal participation in human rights instru-
ments and the political expediency of reservations was addressed by the International Court of
Justice (ICJ).

3.3.2 The ICJ’s approach to developing reservations

Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide,
Advisory Opinion of 28 May 1951 (1951 ICJ 15)

The General Assembly of the United Nations referred questions to the International Court of
Justice for an advisory opinion (G.A. resolution of 16 November 1950). The Court was asked
whether a State ratifying or acceding to the Convention with a reservation can be regarded
as being a party to the Convention, if the reservation is objected to by one or more of the
parties to the Convention though not by all. Additional questions related to the effect of such a
reservation inter partes.
It may, however, be asked whether the General Assembly of the United Nations, in
approving the Genocide Convention, had in mind the practice according to which the Secretary-
General, in exercising his functions as a depositary, did not regard a reservation as definitively
accepted until it had been established that none of the other contracting States objected to it.
If this were the case, it might be argued that the implied intention of the contracting parties
was to make the effectiveness of any reservation to the Genocide Convention conditional on the
assent of all the parties.
The Court does not consider that this view corresponds to reality. It must be pointed
out, first of all, that the existence of an administrative practice does not in itself constitute a
decisive factor in ascertaining what views the contracting States to the Genocide Convention
may have had concerning the rights and duties resulting therefrom. It must also be pointed out
that there existed among the American States members both of the United Nations and of the
Organization of American States, a different practice which goes so far as to permit a reserving
State to become a party irrespective of the nature of the reservations or of the objections raised
by other contracting States. The preparatory work of the Convention contains nothing to justify
the statement that the contracting States implicitly had any definite practice in mind. Nor is
there any such indication in the subsequent attitude of the contracting States: neither the
reservations made by certain States nor the position adopted by other States towards those
reservations permit the conclusion that assent to one or the other of these practices had been
given. Finally, it is not without interest to note, in view of the preference generally said to attach
to an established practice, that the debate on reservations to multilateral treaties which took
place in the Sixth Committee at the fifth session of the General Assembly reveals a profound
divergence of views, some delegations being attached to the idea of the absolute integrity of the
Convention, others favouring a more flexible practice which would bring about the participation
of as many States as possible.

The Court concluded by seven votes to five that a State entering a reservation to the Genocide
Convention which is objected to by one or more, though not all, parties to the Convention may
be regarded as a party to the Convention as long as the reservation is compatible with the object
and purpose of that Convention.
72 | STATES AND TREATY OBLIGATIONS 

Comment
As far as the International Court is concerned, the special nature of the Genocide Convention
rendered it an exceptional circumstance. In order to further universal ratification of this major
humanitarian instrument, it was acceptable that States could enter reservations yet become a party.
For those States objecting to the reservation, there would be no inter partes agreement, though each
would independently remain party to the Convention.

3.3.3 The effect of reservations

VIENNA CONVENTION ON THE LAW OF TREATIES 1969

Article 21

Legal effects of reservations and of objections to reservations

1 A reservation established with regard to another party in accordance with articles 19, 20
and 23:

(a) modifies for the reserving State in its relations with that other party the provisions
of the treaty to which the reservation relates to the extent of the reservation; and
(b) modifies those provisions to the same extent for that other party in its relations
with the reserving State.

2 The reservation does not modify the provisions of the treaty for the other parties to the
treaty inter se.
3 When a State objecting to a reservation has not opposed the entry into force of the treaty
between itself and the reserving State, the provisions to which the reservation relates do
not apply as between the two States to the extent of the reservation.

It is clear that a valid reservation removes the provision concerned from the legal obligations of a
State. A State is neither bound by the reserved provision, nor, in the interest of reciprocity, can it hold
another State to account for infringing said provision. Clearly, the use of reservations can seriously
undermine universality. The various international human rights monitoring bodies have had cause
to discuss issues arising from the use of reservations. As the following extract demonstrates, problems
arise not only through the existence of reservations but also through their creation, use and effect.

The Human Rights Committee’s view

Human Rights Committee, General Comment 24 (1994)

Issues relating to reservations made upon ratification or accession to the Covenant or the Optional
Protocols thereto, or in relation to declarations under article 41 of the Covenant

4. The possibility of entering reservations may encourage States which consider that they have
difficulties in guaranteeing all the rights in the Covenant none the less to accept the generality
of obligations in that instrument. Reservations may serve a useful function to enable States to
adapt specific elements in their laws to the inherent rights of each person as articulated in the
Covenant. However, it is desirable in principle that States accept the full range of obligations,
because the human rights norms are the legal expression of the essential rights that every
person is entitled to as a human being.
. . .
7. In an instrument which articulates very many civil and political rights, each of the many
articles, and indeed their interplay, secures the objectives of the Covenant. The object and
purpose of the Covenant is to create legally binding standards for human rights by defining
 STATES AND TREATY OBLIGATIONS  | 73

certain civil and political rights and placing them in a framework of obligations which are legally
binding for those States which ratify; and to provide an efficacious supervisory machinery for
the obligations undertaken.

The Committee proceeded to expand on this with more detailed examples of reservations and
their view thereon. The Committee was obviously focused on existing reservations and proposed
reservations to the International Covenant on Civil and Political Rights.
The Committee identified certain reservations which would not be compatible with the
Covenant:

Human Rights Committee, General Comment 24 (1994)

Issues relating to reservations made upon ratification or accession to the Covenant or the Optional
Protocols thereto, or in relation to declarations under article 41 of the Covenant

8. Reservations that offend peremptory norms would not be compatible with the object
and purpose of the Covenant. Although treaties that are mere exchanges of obligations
between States allow them to reserve inter se application of rules of general international
law, it is otherwise in human rights treaties, which are for the benefit of persons within their
jurisdiction. Accordingly, provisions in the Covenant that represent customary international law
(and a fortiori when they have the character of peremptory norms) may not be the subject of
reservations. Accordingly, a State may not reserve the right to engage in slavery, to torture, to
subject persons to cruel, inhuman or degrading treatment or punishment, to arbitrarily deprive
persons of their lives, to arbitrarily arrest and detain persons, to deny freedom of thought,
conscience and religion, to presume a person guilty unless he proves his innocence, to execute
pregnant women or children, to permit the advocacy of national, racial or religious hatred,
to deny to persons of marriageable age the right to marry, or to deny to minorities the right
to enjoy their own culture, profess their own religion, or use their own language. And while
reservations to particular clauses of article 14 may be acceptable, a general reservation to the
right to a fair trial would not be.
. . .
12. The intention of the Covenant is that the rights contained therein should be ensured to
all those under a State party’s jurisdiction. . . . Domestic laws may need to be altered properly to
reflect the requirements of the Covenant; and mechanisms at the domestic level will be needed
to allow the Covenant rights to be enforceable at the local level. Reservations often reveal a
tendency of States not to want to change a particular law. And sometimes that tendency is
elevated to a general policy. Of particular concern are widely formulated reservations which
essentially render ineffective all Covenant rights which would require any change in national
law to ensure compliance with Covenant obligations. No real international rights or obligations
have thus been accepted. And when there is an absence of provisions to ensure that Covenant
rights may be sued on in domestic courts, and, further, a failure to allow individual complaints
to be brought to the Committee under the first Optional Protocol, all the essential elements of
the Covenant guarantees have been removed.
. . .
19. . . . Reservations may [.] not be general, but must refer to a particular provision of the
Covenant and indicate in precise terms its scope in relation thereto. When considering the
compatibility of possible reservations with the object and purpose of the Covenant, States should
also take into consideration the overall effect of a group of reservations, as well as the effect
of each reservation on the integrity of the Covenant, which remains an essential consideration.
States should not enter so many reservations that they are in effect accepting a limited number
of human rights obligations, and not the Covenant as such. So that reservations do not lead
to a perpetual non-attainment of international human rights standards, reservations should
74 | STATES AND TREATY OBLIGATIONS 

not systematically reduce the obligations undertaken only to those presently existing in less
demanding standards of domestic law. Nor should interpretative declarations or reservations
seek to remove an autonomous meaning to Convenant obligations, by pronouncing them to
be identical, or to be accepted only in so far as they are identical, with existing provisions of
domestic law. States should not seek through reservations or interpretative declarations to
determine that the meaning of a provision of the Covenant is the same as that given by an organ
of any other international treaty body.

Question
Why would States wish to ratify an instrument yet avoid full responsibility through reservations? Does the
need for reservations, as outlined in the HRC General Comment, on balance override the problems caused, in
other words are reservations a necessary evil in any international system? (Consider again the aforementioned
criticisms levied by Bayefsky.)

Reservations are a creature of international law. While they are undoubtedly widely used, ques-
tions arise over whether they are appropriate in a system of allegedly universal rights.

Reservations and human rights

Can reservations be made to international human rights treaties? This has been the subject of some
debate and a major advisory opinion from the International Court of Justice. A test has evolved
concerning the nature of any reservation and its purported compatibility with the object and pur-
pose of the instrument concerned.

Reservations to the Convention on the Prevention and Punishment of the Crime of

Genocide, Advisory Opinion of 28 May 1951 (1951 ICJ 15)

The solution of these problems must be found in the special characteristics of the Genocide
Convention. The origins and character of that Convention, the objects pursued by the General
Assembly and the contracting parties, the relations which exist between the provisions of the
Convention, inter se, and between those provisions and these objects, furnish elements of
interpretation of the will of the General Assembly and the parties. The origins of the Convention
show that it was the intention of the United Nations to condemn and punish genocide as ‘a crime
under international law’ involving a denial of the right of existence of entire human groups, a
denial which shocks the conscience of mankind and results in great losses to humanity, and
which is contrary to moral law and to the spirit and aims of the United Nations (Resolution 96
(1) of the General Assembly, December 11th 1946). The first consequence arising from this
conception is that the principles underlying the Convention are principles which are recognized
by civilized nations as binding on States, even without any conventional obligation. A second
consequence is the universal character both of the condemnation of genocide and of the
cooperation required ‘in order to liberate mankind from such an odious scourge’ (Preamble
to the Convention). The Genocide Convention was therefore intended by the General Assembly
and by the contracting parties to be definitely universal in scope. It was in fact approved on
December 9th, 1948, by a resolution which was unanimously adopted by fifty-six States.
The objects of such a convention must also be considered. The Convention was manifestly
adopted for a purely humanitarian and civilizing purpose. It is indeed difficult to imagine a
convention that might have this dual character to a greater degree, since its object on the one
hand is to safeguard the very existence of certain human groups and on the other to confirm
and endorse the most elementary principles of morality. In such a convention the contracting
States do not have any interests of their own; they merely have, one and all, a common
interest, namely, the accomplishment of those high purposes which are the raison d’être
of the convention. Consequently, in a convention of this type one cannot speak of individual
advantages or disadvantages to States, or of the maintenance of a perfect contractual balance
 STATES AND TREATY OBLIGATIONS  | 75

between rights and duties. The high ideals which inspired the Convention provide, by virtue of
the common will of the parties, the foundation and measure of all its provisions.
The foregoing considerations, when applied to the question of reservations, and more
particularly to the effects of objections to reservations, lead to the following conclusions.
The object and purpose of the Genocide Convention imply that it was the intention of the
General Assembly and of the States which adopted it that as many States as possible should
participate. The complete exclusion from the Convention of one or more States would not only
restrict the scope of its application, but would detract from the authority of the moral and
humanitarian principles which are its basis. It is inconceivable that the contracting parties
readily contemplated that an objection to a minor reservation should produce such a result.
But even less could the contracting parties have intended to sacrifice the very object of the
Convention in favour of a vain desire to secure as many participants as possible. The object
and purpose of the Convention thus limit both the freedom of making reservations and that
of objecting to them. It follows that it is the compatibility of a reservation with the object
and purpose of the Convention that must furnish the criterion for the attitude of a State in
making the reservation on accession as well as for the appraisal by a State in objecting to the
reservation. Such is the rule of conduct which must guide every State in the appraisal which
it must make, individually and from its own standpoint, of the admissibility of any reservation.
Any other view would lead either to the acceptance of reservations which frustrate
the purposes which the General Assembly and the contracting parties had in mind, or to
recognition that the parties to the Convention have the power of excluding from it the author of
a reservation, even a minor one, which may be quite compatible with those purposes.

However, this opinion was not unanimous, with several judges annexing dissenting opinions
thereto. Consider the opinion of Judges Guerrero, McNair, Read and Hsu Mo as to whether
distinctions between reservations are possible and indeed desirable.
It is clear that the ‘classification’ advocated by the majority of the court did not attract unani-
mous support.

Question
Do you think the same circumstances should pervade other basic international human rights treaties, thereby lim-
iting the right to reservations? To what extent are other instruments derived from customary international law?

In accordance with the Vienna Convention, some instruments explicitly preclude the possibility
of reservations. More commonly, however, only reservations incompatible with the object and
purpose of the instrument are prohibited. This reflects the opinion of the International Court
of Justice on the Genocide Convention and also the opinion of the Human Rights Committee,
which has elaborated on this in respect of the International Covenant on Civil and Political Rights.

Question
Should the Genocide Convention be treated as a unique case or should the same approach pervade the other
multilateral instruments?

Looking specifically at human rights treaties, there is an argument that they are a special varia-
tion of treaties.

Tanya Monforte, Broad Strokes and Bright Lines: A Reconsideration of Shari’a Based
Reservations, (2017) 35.1 Columbia Journal of Gender and Law 9.

The question has been posed whether human rights law is ‘regular’ international law, with the
contractual characteristics of the Vienna Convention, or whether human rights treaties have
a special character which invokes a different kind of norm to protect something like a global
76 | STATES AND TREATY OBLIGATIONS 

community’s interests. Within the law of treaties, it is clear that reservations are permitted
unless explicitly specified or they are otherwise not compatible with the object and purpose of
the treaty. However, the reservations made to human rights treaties, as a category, have been
challenged on the basis that they form an obstacle to the complete implementation of a human
rights system. They have been put into question in various ways, claiming that they challenge
the makeup and integrity of the human rights system.

3.3.4 The International Covenant on Civil and Political

Rights and reservations
Human Rights Committee, General Comment 24 (1994)

Issues relating to reservations made upon ratification or accession to the Covenant or the Optional
Protocols thereto, in relation to declarations under article 41 of the Covenant

14. The Committee considers that reservations relating to the required procedures under the
first Optional Protocol would not be compatible with its object and purpose. The Committee
must control its own procedures as specified by the Optional Protocol and its rules of procedure.
Reservations have, however, purported to limit the competence of the Committee to acts and
events occurring after entry into force for the State concerned of the first Optional Protocol. In
the view of the Committee this is not a reservation but, most usually, a statement consistent
with its normal competence ratione temporis. At the same time, the Committee has insisted
upon its competence, even in the face of such statements or observations, when events or acts
occurring before the date of entry into force of the first Optional Protocol have continued to
have an effect on the rights of a victim subsequent to that date. Reservations have been entered
which effectively add an additional ground of inadmissibility under article 5, paragraph 2, by
precluding examination of a communication when the same matter has already been examined
by another comparable procedure. In so far as the most basic obligation has been to secure
independent third party review of the human rights of individuals, the Committee has, where
the legal right and the subject-matter are identical under the Covenant and under another
international instrument, viewed such a reservation as not violating the object and purpose of
the first Optional Protocol.
15. The primary purpose of the Second Optional Protocol is to extend the scope of the
substantive obligations undertaken under the Covenant, as they relate to the right to life, by
prohibiting execution and abolishing the death penalty. It has its own provision concerning
reservations, which is determinative of what is permitted. Article 2, paragraph 1, provides that
only one category of reservation is permitted, namely one that reserves the right to apply the
death penalty in time of war pursuant to a conviction for a most serious crime of a military
nature committed during wartime. Two procedural obligations are incumbent upon States
parties wishing to avail themselves of such a reservation. Article 2, paragraph I, obliges
such a State to inform the Secretary-General, at the time of ratification or accession, of the
relevant provisions of its national legislation during warfare. This is clearly directed towards
the objectives of specificity and transparency and in the view of the Committee a purported
reservation unaccompanied by such information is without legal effect. Article 2, paragraph 3,
requires a State making such a reservation to notify the Secretary-General of the beginning or
ending of a state of war applicable to its territory. In the view of the Committee, no State may
seek to avail itself of its reservation (that is, have execution in time of war regarded as lawful)
unless it has complied with the procedural requirement of article 2, paragraph 3.
. . .
20. States should institute procedures to ensure that each and every proposed reservation
is compatible with the object and purpose of the Covenant. It is desirable for a State entering a
reservation to indicate in precise terms the domestic legislation or practices which it believes
 STATES AND TREATY OBLIGATIONS  | 77

to be incompatible with the Covenant obligation reserved; and to explain the time period it
requires to render its own laws and practices compatible with the Covenant, or why it is unable
to render its own laws and practices compatible with the Covenant. States should also ensure
that the necessity for maintaining reservations is periodically reviewed, taking into account
any observations and recommendations made by the Committee during examination of their
reports. Reservations should be withdrawn at the earliest possible moment. Reports to the
Committee should contain information on what action has been taken to review, reconsider or
withdraw reservations.

Not all instruments permit reservations. As noted in the Genocide Convention case, it is desirable
that the drafters stipulate whether reservations are permitted or not to clarify the matter. Article
17 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination
against Women, for example, stipulates that no reservations are permitted to it.

Question
What reasons are there for the fact that reservations to the Optional Protocol to CEDAW are excluded and
why might it be that similar clauses not inserted into other instruments?

One line of analysis supports severability, enabling the treaty to continue in force even when there
is a disputed purported reservation.

Kasey L. McCall-Smith, ‘Severing Reservations’ 63.3 International & Comparative

Law Quarterly (July 2014) 599–634 [611]

C. Severability

According to the severability approach, if an impermissible reservation is formulated then the

author State will be bound by the treaty without the benefit of the reservation. It is an approach
that addresses the legal consequence of an impermissible reservation. The concept of a
State being bound ‘without the benefit’ of an invalid reservations is a natural extension of the
permissibility doctrine, given that States authoring invalid reservations generally act as if the
concept of permissibility did not exist, which they are able to do because of the failure of States
opposing invalid reservations setting out the consequences of their doing so. Severability is
not in direct opposition to opposability; it has instead grown out of the reality that parties to
multilateral treaties are less inclined to insist on the ‘super-maximum’ effect that the classic
opposability doctrine mandates if observed in the strictest sense, that the State authoring the
invalid reservation would fail to become party to the treaty. The severability principle cannot
be found in the Vienna Convention nor is it currently supported in customary international law.
Rather, it has been developed through court and treaty body jurisprudence related to human
rights treaties, particularly in the late 1980s and early 1990s, and a review of objections made
to reservations to the core UN human rights treaties shows that severability has gained slow,
but steady acceptance. The obvious advantage of this approach is that the State remains bound
by the treaty

This is helpful when considering treaties with broad ranges of reservations, treaties such as the
Convention on the Elimination of All Forms of Discrimination against Women.

3.3.5 Case study: the Convention on the Elimination of All Forms of

Discrimination against Women and Reservations
The Beijing World Conference on Women noted with concern the impact of reservations on the
enjoyment of human rights by women.
78 | STATES AND TREATY OBLIGATIONS 

BEIJING FOURTH WORLD CONFERENCE ON WOMEN PLATFORM FOR ACTION

218. In order to protect the human rights of women, it is necessary to avoid, as far as possible,
resorting to reservations and to ensure that no reservation is incompatible with the object and
purpose of the Convention or is otherwise incompatible with international treaty law. Unless
the human rights of women, as defined by international human rights instruments, are fully
recognized and effectively protected, applied, implemented and enforced in national law as well
as in national practice in family, civil, penal, labour and commercial codes and administrative
rules and regulations, they will exist in name only.
219. In those countries that have not yet become parties to the Convention on the
Elimination of All Forms of Discrimination against Women and other international human
rights instruments, or where reservations that are incompatible with the object or purpose
of the Convention have been entered, or where national laws have not yet been revised to
implement international norms and standards, women’s de jure equality is not yet secured.
Women’s full enjoyment of equal rights is undermined by the discrepancies between some
national legislation and international law and international instruments on human rights.
Overly complex administrative procedures, lack of awareness within the judicial process
and inadequate monitoring of the violation of the human rights of all women, coupled with
the under representation of women in justice systems, insufficient information on existing
rights and persistent attitudes and practices perpetuate women’s de facto inequality. De facto
inequality is also perpetuated by the lack of enforcement of, inter alia, family, civil, penal, labour
and commercial laws or codes, or administrative rules and regulations intended to ensure
women’s full enjoyment of human rights and fundamental freedoms.

Note the following fundamental provisions of the Convention on the Elimination of All Forms of
Discrimination against Women.

CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN

Article 1

For the purposes of the present Convention, the term ‘discrimination against women’ shall
mean any distinction, exclusion or restriction made on the basis of sex which has the effect
or purpose of impairing or nullifying the recognition, enjoyment or exercise by women,
irrespective of their marital status, on a basis of equality of men and women, of human rights
and fundamental freedoms in the political, economic, social, cultural, civil or any other field.

Article 2

States Parties condemn discrimination against women in all its forms, agree to pursue by all
appropriate means and without delay a policy of eliminating discrimination against women
and, to this end, undertake:

(a) To embody the principle of the equality of men and women in their national constitutions
or other appropriate legislation if not yet incorporated therein and to ensure, through law
and other appropriate means, the practical realization of this principle;
(b) To adopt appropriate legislative and other measures, including sanctions where appropriate,
prohibiting all discrimination against women;
(c) To establish legal protection of the rights of women on an equal basis with men and to
ensure through competent national tribunals and other public institutions the effective
protection of women against any act of discrimination;
(d) To refrain from engaging in any act or practice of discrimination against women and to
ensure that public authorities and institutions shall act in conformity with this obligation;
 STATES AND TREATY OBLIGATIONS  | 79

(e) To take all appropriate measures to eliminate discrimination against women by any
person, organization or enterprise;
(f) To take all appropriate measures, including legislation, to modify or abolish existing laws,
regulations, customs and practices which constitute discrimination against women;
(g) To repeal all national penal provisions which constitute discrimination against women.

Article 3

States Parties shall take in all fields, in particular in the political, social, economic and cultural
fields, all appropriate measures, including legislation, to ensure the full development and
advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of
human rights and fundamental freedoms on a basis of equality with men.

Article 4

1 Adoption by States Parties of temporary special measures aimed at accelerating de facto

equality between men and women shall not be considered discrimination as defined in
the present Convention, but shall in no way entail as a consequence the maintenance of
unequal or separate standards; these measures shall be discontinued when the objectives
of equality of opportunity and treatment have been achieved.
2 Adoption by States Parties of special measures, including those measures contained in the
present Convention, aimed at protecting maternity shall not be considered discriminatory.

Article 5

States Parties shall take all appropriate measures:

(a) To modify the social and cultural patterns of conduct of men and women, with a view
to achieving the elimination of prejudices and customary and all other practices which
are based on the idea of the inferiority or the superiority of either of the sexes or on
stereotyped roles for men and women;
(b) To ensure that family education includes a proper understanding of maternity as a social
function and the recognition of the common responsibility of men and women in the
upbringing and development of their children, it being understood that the interest of the
children is the primordial consideration in all cases.

Question
Look at Articles 1–5 of the Convention on the Elimination of All Forms of Discrimination against Women
(preceding). A number of States have entered reservations to yet become/remain State parties. Consider to what
extent a reservation to these articles goes to the merits of the convention itself.

For an example of a reservation to such provisions, look at this extract from Egypt’s reservation.

Convention on the Elimination of All Forms of Discrimination against Women

Reservation made by Egypt

General reservation on Article 2

The Arab Republic of Egypt is willing to comply with the content of this article, provided that
such compliance does not run counter to the Islamic Shari’a.

Question
Is this compatible with the object and purpose of Article 2?
80 | STATES AND TREATY OBLIGATIONS 

Note the views of Christine Chinkin when commenting on the many general reservations entered
in respect of the first articles of the Convention with reference to Shari’a law:

‘Reservations and Objections to the Convention on the Elimination of All Forms of

Discrimination against Women’ in Chinkin et al., Human Rights as General Norms and a
State’s Right to Opt Out, 1997, London: BCIL, pp 64–84 at 66

Many criticisms can be made of these reservations: their indeterminacy, imprecision and open-
endedness are contrary to the certainty required for the acceptance of a clear legal obligation.
These reservations have not been accompanied by explanations of their intended legal or
practical scope, which itself is subject to doubt in that there are disagreements among Islamic
scholars as to the requirements of Shari’a law.

Question
Does the element of uncertainty over the precise scope and application of Shari’a law demonstrate a failure to
comply with the object and purpose test?

3.3.6 Reservations and objections thereto – case study on Djibouti

and the Convention on the Rights of the Child
A number of States have made reservations to the Convention on the Rights of the Child. The follow-
ing example indicates a reservation which other States consider detrimental to the object and purpose
of the Convention. The reservation made by Djibouti concerns Articles 1–54 of the Convention.

Reservation made by Djibouti

[T]he Government of the Republic of Djibouti] shall not consider itself bound by any provisions
or articles that are incompatible with its religion and its traditional values.

Four objections were lodged in the following terms:

Objection lodged by Ireland

The Government of Ireland consider that such reservations, which seek to limit the responsibilities
of the reserving State under the Convention, by invoking general principles of national law, may
create doubts as to the commitment of those States to the object and purpose of the Convention.
This objection shall not constitute an obstacle to the entry into force of the Convention
between Ireland and the aforementioned States.

Objection lodged by Norway

A reservation by which a State party limits its responsibilities under the Convention by invoking
general principles of national law may create doubts about the commitments of the reserving
State to the object and purpose of the Convention and, moreover, contribute to undermining
the basis of international treaty law. It is in the common interest of States that treaties to which
they have chosen to become parties also are respected, as to object and purpose, by all parties.
The Government of Norway, therefore, objects to this reservation.
This objection shall not constitute an obstacle to the entry into force of the Convention
between Norway and the Republic of Djibouti.

The Netherlands and Portugal lodged similarly framed objections.

Concern was also expressed by the UN Committee on the Rights of the Child when review-
ing Djibouti’s second periodic report (see UN Doc. CRC/C/DJI/CO/2 (2008) at paras 8 and 9).
In December 2009, Djibouti communicated its decision to withdraw this reservation.
 STATES AND TREATY OBLIGATIONS  | 81

Question
Does the reservation undermine the object and purpose of the Convention and thus are the objections justified?

3.3.7 United Nations’ pressure to remove reservations

Removal of reservations is a key point highlighted by the UN treaty monitoring bodies when
examining State periodic reports. As just noted, Djibouti elected to withdraw its reservation
to the Convention on the Rights of the Child. In furtherance of the Vienna Declaration and
Programme of Action and in pursuance of the universality of rights, the treaty monitoring bod-
ies carefully examine all reservations in periodic reports, questioning the continuation thereof,
prompting the State to carefully examine the necessity for the reservation. Obviously, such an
approach fits comfortably with the progressive nature of economic social and cultural rights.
However, given the number of reservations entered in respect of other instruments, it is a grave
matter for concern.
The following are some examples, there are many others in treaty body and UPR reports:

Kuwait, Human Rights Committee, CCPR/C/KWT/CO/2 (2011)

7. The Committee regrets that the State party continues to maintain its interpretative
declaration on article 2, paragraph 1 and article 3 of the Covenant, which the Committee has
already found in its previous concluding observations to be incompatible with the object and
purpose of the Covenant (CCPR/CO/69/KWT, para. 4), as well as its interpretive declaration to
article 23, and its reservations to article 25(b) of the Covenant. (art. 2)
The State party should formally withdraw its interpretative declaration on article 2,
paragraph 1 and article 3, and should consider withdrawing its interpretative declaration on
article 23 and its reservation to article 25(b) of the Covenant.

In May 2016, the government indicated a partial withdrawal of the reservation to Article 25(b).

Jordan, CEDAW, CEDAW/C/JOR/CO/5 (2012) Reservations

9. While commending the State party for withdrawing its reservation to article 15, paragraph 4, of
the Convention and while aware of the information provided during the dialogue on its intention to
introduce a permanent Passport Act, the Committee reiterates its concern about the State party’s
reluctance to lift the remaining reservations to articles 9, paragraph 2, and 16, paragraph 1 (c),
(d) and (g). The Committee is not convinced of the political and cultural constraints preventing the
lifting of the above-mentioned reservations as argued by the State party.

3.3.8 Comment on reservations and human rights treaties

The Convention on the Elimination of All Forms of Discrimination against Women is among
the most heavily reserved instruments in international human rights. Many commentators con-
sider that the effectiveness of this instrument is so undermined as to render it little more than
declaratory in stature. The push towards ratification following the Beijing Conference and Plat-
form for Action is one of the reasons for the increase in Contracting States. The problem occurs
when the new (and indeed existing) ratifications are so numerous and prevalent. The reality is
that many States have very few obligations under the Convention. Consulting the website of the
OHCHR gives an indication of the range of reservations entered by States to this instrument.
From a practical point of view, reservations are usually notified to the Secretary-General of the
United Nations (or treaty depository). In the absence of a relevant reservation clause, States may
be deemed to accept any reservation unless they explicitly lodge an objection.
In summation, the current system of reservations has resulted in a flexible system by which
States may, to an extent and subject to the aforementioned tests, limit their obligations under
international human rights instruments.
82 | STATES AND TREATY OBLIGATIONS 

3.4 Declarations
Declarations differ from reservations primarily in that they have more limited legal effect on the
application of the instrument in the jurisdiction of the States concerned. A declaration which pur-
ports to add, limit or modify the terms of a convention will be treated as a reservation (hence the
Vienna Convention defines a reservation with reference to its purpose ‘however named or phrased’).
Common declarations may relate to ratification not indicating legal recognition of a named State
Party – this is used most commonly for reiterations of non-recognition of Israel and Taiwan. A purely
political matter, the impact on the instrument is negligible. However, other declarations have greater
consequences, for example declaring that the instrument will not be applied in a manner incom-
patible with national law or that the meaning of a particular article will be as specified. These will
frequently be treated as reservations, in accordance with the Vienna Convention and customary law.
Note also paragraph 3 of the Human Rights Committee, General Comment 24 (see above).
The important element to note is the intention of the State and the purpose of the declaration,
not the actual title.

3.4.1 Declarations as reservations

Consider the following two ‘declarations’.

Declaration by Jordan upon ratification of the Convention on the Elimination of All Forms of
Discrimination against Women

Jordan does not consider itself bound by the following provisions:

1 Article 9, paragraph 2;
2 Article 15, paragraph 4 (a wife’s residence is with her husband);
3 Article 16, paragraph (1) (c), relating to the rights arising upon the dissolution of marriage
with regard to maintenance and compensation;
4 Article 16, paragraph (1) (d) and (g).

Declaration by the People’s Republic of China in respect of the UN Convention on the

Rights of the Child

The Government of the People’s Republic of China, on behalf of the Hong Kong Special
Administrative Region, interprets the Convention as applicable only following a live birth.

Question
Are the foregoing reservations or declarations in nature? Are they compatible with the object and purpose of
the Treaty at issue?

3.4.2 Case study on reservations/declarations

To demonstrate the effect of reservations/declarations, consider the following situation arising from
a reservation/declaration entered by France in respect of Article 27 of the International Covenant on
Civil and Political Rights. Article 27 of the Covenant enshrines the so-called minorities provision.

Treaty provision
INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS 1966, Article 27

In those States in which ethnic, religious or linguistic minorities exist, persons belonging to
such minorities shall not be denied the right, in community with the other members of their
 STATES AND TREATY OBLIGATIONS  | 83

group, to enjoy their own culture, to profess and practice their own religion, or to use their own
language.

Human Rights Committee view thereon

According to the Human Rights Committee, it appears that the rights enshrined in this article are
of fundamental importance and thus the right of a State to derogate or use reservations to avoid
responsibility is limited. Authority for this can be drawn from the terms of its General Comment
on the subject of reservations.

Human Rights Committee, General Comment No. 24 (1994) at para 10

10. While there is no hierarchy of importance of rights under the Covenant, the operation of
certain rights may not be suspended, even in times of national emergency. This underlines the
great importance of non-derogable rights. But not all rights of profound importance, such as
articles 9 and 27 of the Covenant, have in fact been made non-derogable. . . . While there is
no automatic correlation between reservations to non-derogable provisions, and reservations
which offend against the object and purpose of the Covenant, a State has a heavy onus to justify
such a reservation.

French declaration and reservation

However, in spite of this, it appears that States can and have entered qualifications to the article.

International Covenant on Civil and Political Rights, Declaration and Reservation

made by France

(8) In the light of article 2 of the Constitution of the French Republic, the French Government
declares that article 27 is not applicable so far as the Republic is concerned.

The relevant provisions of the French constitution are as follows:

THE 1958 CONSTITUTION OF THE FRENCH REPUBLIC AND ITS AMENDMENTS

(Note that this English translation was prepared under the joint responsibility of the Press,
Information and Communication Directorate of the Ministry of Foreign Affairs and the European
Affairs Department of the National Assembly. The French original is the sole authentic text.)

Article 2

The language of the Republic shall be French.

The national emblem shall be the blue, white and red tricolour flag. The national anthem shall
be La Marseillaise.

The motto of the Republic shall be ‘Liberty, Equality, Fraternity’.

Its principle shall be: government of the people, by the people and for the people. National
sovereignty shall belong to the people, who shall exercise it through their representatives and
by means of referendum.

No section of the people nor any individual may arrogate to itself, or to himself, the exercise
thereof.

Suffrage may be direct or indirect as provided by the Constitution. It shall always be universal,
equal and secret.

All French citizens of either sex who have reached their majority and are in possession of their
civil and political rights may vote as provided by statute.
84 | STATES AND TREATY OBLIGATIONS 

The effect of the reservation/declaration emerges when examining relevant jurisprudence.

Case arising therefrom

Guedson v France, Communication No. 219/1986: France, 23/08/90, CCPR/C/39/D/219/1986

The author of the communication, a Breton whose mother tongue is Breton, appeared before
the Tribunal Correctionnel of Rennes on charges of having damaged public property by defacing
road signs in French. He never admitted his participation in the offences he was charged with.
On the day of the hearing, he requested that his witnesses and himself gave testimony in
Breton, which was the language used daily by most of them and in which they could most easily
express themselves for the purposes of his defence. The request was refused by the court, as
was an appeal on that ground. The French court was of the opinion that Guedson was capable of
defending himself without interpretation before the trial court. Guedson claimed infringement
of a number of rights under the International Covenant on Civil and Political Rights, most
pertinently here, article 27.

5.6 Finally, with respect to the alleged violation of article 27, the State party recalls that upon
ratification of the Covenant, the French Government entered [the aforequoted reservation].
Thus, the State party argues that ‘the idea of membership of an “ethnic, religious or linguistic
minority” which the applicant invokes is irrelevant in the case in point, and cannot be held
against the French Government which does not recognize the existence of “minorities” in
the Republic, defined, in article 2 of the Constitution as “indivisible, secular, democratic and
social”’.

The minority language issue raised by Guedson could not be examined by the Committee due to
the invocation of France’s reservation. This graphically demonstrates the potential problems associ-
ated with reservations. Obviously, individuals (or States) wishing to bring complaints should clarify
the status of any given article in advance to ensure the claim is admissible.

Question
There are a number of similar examples – balance the necessity for such reservations (in terms of public interna-
tional law) with the potential for their misuse by States. Are reservations an ‘evil necessity’ of the universal system?

3.5 Derogations
It is inevitable that rights and freedoms cannot be couched in absolute terms. A degree of flex-
ibility may always be a political expediency. Most notably in times of civil strife and extreme
situations, a State may wish to limit rights and freedoms. For example, requisitioning of property,
detention of ‘enemies’, monitoring of communications, limiting of rights to demonstrate and
free speech. Such extreme circumstances are taken into account by the various international and
regional instruments through rights of derogation. Generally, derogations are only permitted in
specified situations – usually those threatening the State. States must notify a central body, and by
consequence, the States Party, as to the extent and duration of the derogation. Derogations should
only be to the extent strictly required by the exigencies of the situation and only for the time the
emergency situation remains. Indeterminate derogations are not viewed favourably. Perceived ter-
rorist threats, extreme famine, major geographical catastrophes and armed conflict are all potential
reasons for derogating from convention obligations.

3.5.1 A typical derogation clause – the ICCPR

The International Covenant on Civil and Political Rights contains the following derogation clause:
 STATES AND TREATY OBLIGATIONS  | 85

INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS 1966, 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, 16 and 18 may be made
under this provision.
3 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.

3.5.2 The approach of the Human Rights Committee

The Human Rights Committee expanded upon the nature of circumstances, justifying the invoca-
tion of Article 4 in a General Comment. General Comment 29 replaces General Comment 5 in
this regard. General Comments 13 and 20 also contain relevant material. It is clear that the use of
derogation clauses should be restricted to extreme situations.

Human Rights Committee, General Comment 29 (2001)

1 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. In this general comment, replacing
its General Comment No 5, adopted at the thirteenth session (1981), the Committee seeks
to assist States parties to meet the requirements of article 4.
2 Measures derogating from the provisions of the Covenant must be of an exceptional and
temporary nature. Before a State moves to invoke article 4, two fundamental conditions
must be met: the situation must amount to a public emergency which threatens the life
of the nation, and the State party must have officially proclaimed a State of emergency.
The latter requirement is essential for the maintenance of the principles of legality and
rule of law at times when they are most needed. When proclaiming a State of emergency
with consequences that could entail derogation from any provision of the Covenant,
States must act within their constitutional and other provisions of law that govern such
proclamation and the exercise of emergency powers; it is the task of the Committee to
monitor the laws in question with respect to whether they enable and secure compliance
with article 4. In order that the Committee can perform its task, States parties to the
Covenant should include in their reports submitted under article 40 sufficient and precise
information about their law and practice in the field of emergency powers. . . .
4 A fundamental requirement for any measures derogating from the Covenant, as set forth
in article 4, paragraph 1, is that such measures are 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
86 | STATES AND TREATY OBLIGATIONS 

resorted to because of the emergency. Derogation from some Covenant obligations in

emergency situations is clearly distinct from restrictions or limitations allowed even in
normal times under several provisions of the Covenant. Nevertheless, the obligation to
limit any derogations to those strictly required by the exigencies of the situation reflects
the principle of proportionality which is common to derogation and limitation powers.
Moreover, the mere fact that a permissible derogation from a specific provision may, of
itself, be justified by the exigencies of the situation does not obviate the requirement that
specific measures taken pursuant to the derogation must also be shown to be required
by the exigencies of the situation. In practice, this will ensure that no provision of the
Covenant, however validly derogated from will be entirely inapplicable to the behaviour of
a State party. When considering States parties’ reports the Committee has expressed its
concern over insufficient attention being paid to the principle of proportionality.

3.5.3 Regional examples of derogation clauses

Derogation clauses also appear in regional instruments, although, most conspicuously, there is no
such clause in the African Charter on Human and Peoples’ Rights.

EUROPEAN CONVENTION ON HUMAN RIGHTS 1950, Article 15

1 In time of war or other public emergency threatening the life of the nation any High
Contracting Party may take measures derogating from its obligations under this Convention
to the extent strictly required by the exigencies of the situation, provided that such measures
are not inconsistent with its other obligations under international law.
2 No derogation from Article 2, except in respect of deaths resulting from lawful acts of war,
or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision.
3 Any High Contracting Party availing itself of this right of derogation shall keep the
Secretary-General of the Council of Europe fully informed of the measures which it has
taken and the reasons therefor. It shall also inform the Secretary-General of the Council of
Europe when such measures have ceased to operate and the provisions of the Convention
are again being fully executed.

INTER-AMERICAN CONVENTION ON HUMAN RIGHTS 1969, Article 27

1 In time of war, public danger, or other emergency that threatens the independence or
security of a State Party, it may take measures derogating from its obligations under
the present Convention to the extent and for the period of time strictly required by the
exigencies of the situation, provided that such measures are not inconsistent with its
other obligations under international law and do not involve discrimination on the ground
of race, color, sex, language, religion, or social origin.
2 The foregoing provision does not authorize any suspension of the following articles:
Article 3 (Right to Juridical Personality), Article 4 (Right to Life), Article 5 (Right to
Humane Treatment), Article 6 (Freedom from Slavery), Article 9 (Freedom from Ex Post
Facto Laws), Article 12 (Freedom of Conscience and Religion), Article 17 (Rights of the
Family), Article 18 (Right to a Name), Article 19 (Rights of the Child), Article 20 (Right
to Nationality), and Article 23 (Right to Participate in Government), or of the judicial
guarantees essential for the protection of such rights.
3 Any State Party availing itself of the right of suspension shall immediately inform the
other States Parties, through the Secretary-General of the Organization of American
States, of the provisions the application of which it has suspended, the reasons that gave
rise to the suspension, and the date set for the termination of such suspension.
 STATES AND TREATY OBLIGATIONS  | 87

Although derogations are meant to be of limited duration, there are a number of examples of
derogations remaining in force for many years.

3.5.4 Case study: United Kingdom

Consider the position of the United Kingdom, which entered a derogation to the European
Convention on Human Rights in respect of the emergency situation in Northern Ireland. The
derogation was maintained for many years and its withdrawal in 1984 prompted the case of Brogan
and Others v United Kingdom (1988) Series A, No 145-B, 11 EHRR 117 in which the European
Court found infringements of Article 5 of the Convention. The UK reinstated its derogation, the
legitimacy of which was upheld in Brannigpn and McBride v United Kingdom (1993) Series A, No
258-B, 17 EHRR 539.

Brannigan and McBride v United Kingdom (1993) Series A, No 258-B, 17 EHRR 539

The applicants were arrested in Northern Ireland and detained for prolonged periods of time
in accordance with the relevant anti-terrorist legislation. Brannigan was detained for six
days, fourteen and a half hours, interrogated on 43 occasions and denied access to books,
newspapers and writing materials as well as radio and television.
McBride was detained for four days, six hours and 25 minutes, interrogated on 22
occasions and subjected to the same regime as Brannigan. The European Court was asked to
comment on the invocation by the United Kingdom of an Article 15 derogation to justify non-
compliance with Article 5 of the European Convention – protection of liberty and guarantees
for detainees.

41. The applicants argued that it would be inconsistent with Article 15 para 2 (art. 15–2) if, in
derogating from safeguards recognised as essential for the protection of non-derogable rights
such as Articles 2 and 3 (art. 2, art. 3), the national authorities were to be afforded a wide
margin of appreciation. This was especially so where the emergency was of a quasi-permanent
nature such as that existing in Northern Ireland. To do so would also be inconsistent with
the Brogan and Others judgment where the Court had regarded judicial control as one of the
fundamental principles of a democratic society and had already – they claimed – extended to
the Government a margin of appreciation by taking into account in paragraph 58 (p.  32) the
context of terrorism in Northern Ireland (loc. cit.).

42. In their written submissions, Amnesty International maintained that strict scrutiny was
required by the Court when examining derogation from fundamental procedural guarantees
which were essential for the protection of detainees at all times, but particularly in times of
emergency. Liberty, Interights and the Committee on the Administration of Justice (‘Liberty and
Others’) submitted for their part that, if States are to be allowed a margin of appreciation at all,
it should be narrower the more permanent the emergency becomes.

43. The Court recalls that it falls to each Contracting State, with its responsibility for ‘the life
of [its] nation’, to determine whether that life is threatened by a ‘public emergency’ and, if so,
how far it is necessary to go in attempting to overcome the emergency. By reason of their direct
and continuous contact with the pressing needs of the moment, the national authorities are in
principle in a better position than the international judge to decide both on the presence of such
an emergency and on the nature and scope of derogations necessary to avert it. Accordingly,
in this matter a wide margin of appreciation should be left to the national authorities (see the
Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, pp. 78–79, para. 207).
Nevertheless, Contracting Parties do not enjoy an unlimited power of appreciation. It is for the
Court to rule on whether inter alia the States have gone beyond the ‘extent strictly required by
the exigencies’ of the crisis. The domestic margin of appreciation is thus accompanied by a
European supervision (ibid.).
88 | STATES AND TREATY OBLIGATIONS 

Criteria for assessing the legitimacy of derogations

at the European Court of Human Rights
In determining whether a State has gone beyond what is strictly required, the Court will
give appropriate weight to factors such as the nature of the rights affected by the deroga-
tion, the circumstances leading to, and the duration of, the emergency situation (Bran-
nigan & McBride v United Kingdom, § 43; A & Others v the United Kingdom [GC], § 173).
This involves the Court considering matters such as:

• Whether ordinary laws would have been sufficient to meet the danger caused by the
public emergency (Lawless v Ireland (No 3), § 36; Ireland v United Kingdom, § 212)
• Whether the measures are a genuine response to an emergency situation (Brannigan &
McBride v United Kingdom, § 51)
• Whether the measures were used for the purpose for which they were granted (Lawless v
Ireland (No 3), § 38)
• Whether the derogation is limited in scope and the reasons advanced in support of it
(Brannigan & McBride v United Kingdom, § 66)
• Whether the need for the derogation was kept under review (ibid., § 54)
• Any attenuation in the measures imposed (Ireland v United Kingdom, § 220)
• Whether the measures were subject to safeguards (ibid., §§ 216–219; Lawless v Ireland
(No 3), § 37; Brannigan & McBride v United Kingdom, §§ 61–65; Aksoy v Turkey, §§
79–84)
• The importance of the right at stake, and the broader purpose of judicial control over
interferences with that right (Aksoy v Turkey, § 76)
• Whether judicial control of the measures was practicable (ibid., § 78; Brannigan &
McBride v United Kingdom, § 59)
• The proportionality of the measures and whether they involved any unjustifiable dis-
crimination (A & Others v United Kingdom [GC], § 190)
• Whether the measure was ‘lawful’ and had been effected ‘in accordance with a pro-
cedure prescribed by law’ (Mehmet Hasan Altan v Turkey, §§ 140 & 213; Şahin Alpay v
Turkey, §§ 119 & 183)
• The views of any national courts which have considered the question (Mehmet Hasan
Altan v Turkey, §§ 93 & 140; Şahin Alpay v Turkey, §§ 77 & 119). If the highest domes-
tic court in a Contracting State has reached the conclusion that the measures were not
strictly required, the Court will be justified in reaching a contrary conclusion only
if satisfied that the national court had misinterpreted or misapplied Article 15 or the
Court’s jurisprudence under that Article, or reached a conclusion which was manifestly
unreasonable (A & Others v United Kingdom [GC], § 174). 

Following the ceasefire in Northern Ireland, the derogation was again withdrawn. This would
indicate compliance with Article 15, as the perceived emergency situation had ceased to be a threat
to the State. However, following the terrorist attacks on the United States of America in 2001, the
United Kingdom elected to enter a new, and arguably broader, derogation.

STATUTORY INSTRUMENT 2001 NO. 3644, THE HUMAN RIGHTS ACT 1998
(Designated Derogation) Order 2001, Sched

There exists a terrorist threat to the United Kingdom from persons suspected of involvement in
international terrorism. In particular, there are foreign nationals present in the United Kingdom
 STATES AND TREATY OBLIGATIONS  | 89

who are suspected of being concerned in the commission, preparation or instigation of acts of
international terrorism, of being members of organisations or groups which are so concerned
or of having links with members of such organisations or groups, and who are a threat to the
national security of the United Kingdom.
. . .
Note that pursuant to the entry into force of the Terrorism Act 2005, which changes the detention
provisions in English law, this derogation has been withdrawn.

Question
On the basis of your understanding of the current international terrorist threat, can the United Kingdom, or
indeed any other country, be entitled to enter derogations to appropriate instruments?

3.5.5 Non-derogable provisions

As is apparent from the foregoing clauses, derogation is not an absolute right. Rather it is of prac-
tical necessity in extreme situations. States cannot absolve themselves from responsibility under
many articles of each instrument, irrespective of the circumstances. For example, no instrument
permits derogations from provisions on slavery or torture. Other instruments, including the Afri-
can Charter, as noted previously, prohibit any derogation.

CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING

TREATMENT OR PUNISHMENT 1984, Articles 2(2) and 2(3)

2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal

political instability or any other public emergency, may be invoked as a justification of torture.
3. An order from a superior officer or a public authority may not be invoked as a justification
of torture.

Questions
Why is torture always excluded from the ambit of derogation clauses? What other rights and freedoms are
always beyond the reach of derogation clauses, and why?
Provision for derogation is predominantly a characteristic of instruments tabulating civil and political
rights rather than those on non-discrimination or on economic and social rights. What are the reasons for this?

The classification of some rights as non-derogable is taken by many commentators to imply a

hierarchy of rights and freedoms, through implying that some rights and freedoms are more fun-
damental than others. Clearly, this can present challenges to the universality and indivisibility of
human rights. However, it can be argued that derogations are essential to allow States the flexibility
to deal appropriately with emergency situations, in order to expedite a return to ‘normality’ and
full respect for all rights and freedoms.

Question
Can derogations be more easily reconciled with universal ratification than reservations?

Despite the prevalence of derogation clauses in human rights treaties, there is growing evidence of
the restrictive approach taken to restrictions on recognised rights by the international community.
Thus, it appears that a State’s right to derogate is not unfettered. Consider the view of the Human
Rights Committee in General Comment 29. This refers to the derogation clause in the Interna-
tional Covenant on Civil and Political Rights which is excerpted above.

Human Rights Committee, General Comment 29 (2001)

3. Not every disturbance or catastrophe qualifies as a public emergency which threatens

the life of the nation, as required by article 4, paragraph 1. During armed conflict, whether
90 | STATES AND TREATY OBLIGATIONS 

international or non-international, rules of international humanitarian law become applicable

and help, in addition to the provisions in article 4 and article 5, paragraph 1, of the Covenant,
to prevent the abuse of a State’s emergency powers. The Covenant requires that even during
an armed conflict measures derogating from the Covenant are allowed only if and to the
extent that the situation constitutes a threat to the life of the nation. If States parties consider
invoking article 4 in other situations than an armed conflict, they should carefully consider the
justification and why such a measure is necessary and legitimate in the circumstances. On a
number of occasions the Committee has expressed its concern over States parties that appear
to have derogated from rights protected by the Covenant, or whose domestic law appears to
allow such derogation in situations not covered by article 4.
. . .
5. The issues of when rights can be derogated from, and to what extent, cannot be separated
from the provision in article 4, paragraph 1, of the Covenant according to which any measures
derogating from a State party’s obligations under the Covenant must be limited ‘to the extent
strictly required by the exigencies of the situation’. This condition requires that States parties
provide careful justification not only for their decision to proclaim a state of emergency but also
for any specific measures based on such a proclamation. If States purport to invoke the right to
derogate from the Covenant during, for instance, a natural catastrophe, a mass demonstration
including instances of violence, or a major industrial accident, they must be able to justify not
only that such a situation constitutes a threat to the life of the nation, but also that all their
measures derogating from the Covenant are strictly required by the exigencies of the situation.
In the opinion of the Committee, the possibility of restricting certain Covenant rights under the
terms of, for instance, freedom of movement (article 12) or freedom of assembly (article 21) is
generally sufficient during such situations and no derogation from the provisions in question
would be justified by the exigencies of the situation.
6. The fact that some of the provisions of the Covenant have been listed in article 4 (paragraph
2), as not being subject to derogation does not mean that other articles in the Covenant may be
subjected to derogations at will, even where a threat to the life of the nation exists. The legal
obligation to narrow down all derogations to those strictly required by the exigencies of the situation
establishes both for States parties and for the Committee a duty to conduct a careful analysis
under each article of the Covenant based on an objective assessment of the actual situation.
10. Although it is not the function of the Human Rights Committee to review the conduct of
a State party under other treaties, in exercising its functions under the Covenant the Committee
has the competence to take a State party’s other international obligations into account when it
considers whether the Covenant allows the State party to derogate from specific provisions of
the Covenant. Therefore, when invoking article 4, paragraph 1, or when reporting under article
40 on the legal framework related to emergencies, States parties should present information
on their other international obligations relevant for the protection of the rights in question, in
particular those obligations that are applicable in times of emergency. In this respect, States
parties should duly take into account the developments within international law as to human
rights standards applicable in emergency situations.

3.5.6 The approach of the European Court of Human Rights

At a regional level, derogations entered by the United Kingdom have been discussed previously.
However, it is also instructive to consider the dicta of the European Court of Human Rights as
regards other derogations.

Aksoy v Turkey, Application 21987/93, 18/12/1996

Aksoy was suspected of being involved in the PKK and had been detained by Turkish security
forces. He alleged ill-treatment during detention and received medical treatment upon his
 STATES AND TREATY OBLIGATIONS  | 91

eventual release from captivity. Following alleged threats over his application to the European
Commission on Human Rights regarding his detention and ill-treatment, he was shot and
killed in south-east Turkey. The applicant’s relatives continued the application on his behalf
but many of the facts were disputed by the Turkish Government. Moreover, the Government
maintained that the security situation justified the detention.

68. The Court recalls that it falls to each Contracting State, with its responsibility for ‘the
life of [its] nation’, to determine whether that life is threatened by a ‘public emergency’ and,
if so, how far it is necessary to go in attempting to overcome the emergency. By reason of
their direct and continuous contact with the pressing needs of the moment, the national
authorities are in principle better placed than the international judge to decide both on the
presence of such an emergency and on the nature and scope of the derogations necessary
to avert it. Accordingly, in this matter a wide margin of appreciation should be left to the
national authorities. Nonetheless, Contracting Parties do not enjoy an unlimited discretion.
It is for the Court to rule whether, inter alia, the States have gone beyond the ‘extent strictly
required by the exigencies’ of the crisis. The domestic margin of appreciation is thus
accompanied by a European supervision. In exercising this supervision, the Court must
give appropriate weight to such relevant factors as the nature of the rights affected by the
derogation and the circumstances leading to, and the duration of, the emergency situation
(see the Brannigan and McBride v. the United Kingdom judgment of 26 May 1993, Series A
no. 258-B, pp. 49–50, para. 43). 2. Existence of a public emergency threatening the life of
the nation . . .

70. The Court considers, in the light of all the material before it, that the particular extent and
impact of PKK terrorist activity in south-east Turkey has undoubtedly created, in the region
concerned, a ‘public emergency threatening the life of the nation’ (see, mutatis mutandis, the
Lawless v. Ireland judgment of 1 July 1961, Series A no. 3, p. 56, para. 28, the above-mentioned
Ireland v. the United Kingdom judgment, p. 78, para. 205, and the above-mentioned Brannigan
and McBride judgment, p. 50, para. 47). . . .

76. The Court would stress the importance of Article 5 (art. 5) in the Convention system: it
enshrines a fundamental human right, namely the protection of the individual against arbitrary
interference by the State with his or her right to liberty. Judicial control of interferences by the
executive with the individual’s right to liberty is an essential feature of the guarantee embodied
in Article 5 para. 3 (art. 5–3), which is intended to minimise the risk of arbitrariness and to
ensure the rule of law (see the abovementioned Brogan and Others judgment, p. 32, para. 58).
Furthermore, prompt judicial intervention may lead to the detection and prevention of serious
ill-treatment, which, as stated above (paragraph 62), is prohibited by the Convention in absolute
and non-derogable terms.

77. In the Brannigan and McBride judgment (cited at paragraph 68 above), the Court held that
the United Kingdom Government had not exceeded their margin of appreciation by derogating
from their obligations under Article 5 of the Convention (art. 5) to the extent that individuals
suspected of terrorist offences were allowed to be held for up to seven days without judicial
control. In the instant case, the applicant was detained for at least fourteen days without being
brought before a judge or other officer. The Government have sought to justify this measure by
reference to the particular demands of police investigations in a geographically vast area faced
with a terrorist organisation receiving outside support. . . .

78. Although the Court is of the view – which it has expressed on several occasions in the past
(see, for example, the above-mentioned Brogan and Others judgment) – that the investigation
of terrorist offences undoubtedly presents the authorities with special problems, it cannot
accept that it is necessary to hold a suspect for fourteen days without judicial intervention.
This period is exceptionally long, and left the applicant vulnerable not only to arbitrary
92 | STATES AND TREATY OBLIGATIONS 

interference with his right to liberty but also to torture (see paragraph 64 above). Moreover,
the Government have not adduced any detailed reasons before the Court as to why the fight
against terrorism in southeast Turkey rendered judicial intervention impracticable . . .?

79. The Government emphasised that both the derogation and the national legal system
provided sufficient safeguards to protect human rights. Thus, the derogation itself was limited
to the strict minimum required for the fight against terrorism; the permissible length of
detention was prescribed by law and the consent of a public prosecutor was necessary if the
police wished to remand a suspect in custody beyond these periods. Torture was prohibited by
Article 243 of the Criminal Code (see paragraph 24 above) and Article 135 (a) stipulated that
any statement made in consequence of the administration of torture or any other form of ill-
treatment would have no evidential weight. . . .

83. .  .  . the Court considers that in this case insufficient safeguards were available to the
applicant, who was detained over a long period of time. In particular, the denial of access to a
lawyer, doctor, relative or friend and the absence of any realistic possibility of being brought
before a court to test the legality of the detention meant that he was left completely at the
mercy of those holding him.

84. The Court has taken account of the unquestionably serious problem of terrorism in
southeast Turkey and the difficulties faced by the State in taking effective measures against
it. However, it is not persuaded that the exigencies of the situation necessitated the holding
of the applicant on suspicion of involvement in terrorist offences for fourteen days or more in
incommunicado detention without access to a judge or other judicial officer. . . .

87. In conclusion, the Court finds that there has been a violation of Article 5 para. 3 of the
Convention (art. 5–3).

Ultimately, humanitarian law is human rights for extreme situations, a body of law from which
no derogation is possible prescribing the parameters within which hostilities are conducted.
Its relevance is recognised by the Human Rights Committee in its General Comment 29 on
Derogations.

Question
Humanitarian law may apply in extreme situations but consider the status of detainees in Camp X-Ray at
Guantanamo Bay, Cuba. US officials have consistently maintained that the detainees are not prisoners of
war in terms of the Geneva Conventions. Rather they are ‘unlawful combatants’ and thus fall outwith the
Geneva regime. However, the State and Defense departments have reiterated that the detainees are treated in
accordance with Geneva principles. On 29 June 2006 in Hamdan v Rumsfeld 548 US 557 (2006), the
US Supreme Court ruled against military tribunals for the detainees, prompting further debate on the status
of the detainees. The US had not ratified the major international human rights instruments. Should States be
able to sidestep humanitarian law by terminological changes? In what ways can the international community
regulate such actions?

3.6 Denunciations
As with contracts in national law, there are rules and regulations governing the circumstances in
which treaties are frustrated, terminated and revoked. Joining many human rights treaties is a one
way process – once ratified, a State cannot simply remove itself from the ambit of the provisions,
thereby thwarting progress towards universal ratification! Others permit unilateral denunciation.
Some conventions terminate at a specified time following securement of their objectives: the
 STATES AND TREATY OBLIGATIONS  | 93

operation of the 1973 International Convention on the Suppression and Punishment of the Crime
of Apartheid, for example, has now been suspended. The general position for denunciation is
covered by the Vienna Convention on the Law of Treaties.

3.6.1 Terminating treaty obligations

VIENNA CONVENTION ON THE LAW OF TREATIES 1969

Article 43

Obligations imposed by international law independently of a treaty

The invalidity, termination or denunciation of a treaty, the withdrawal of a party from it, or the
suspension of its operation, as a result of the application of the present Convention or of the
provisions of the treaty, shall not in any way impair the duty of any State to fulfil any obligation
embodied in the treaty to which it would be subject under international law independently of
the treaty.

Article 54

Termination of or withdrawal from a treaty under its provisions or by consent of the parties

The termination of a treaty or the withdrawal of a party may take place:

(a) in conformity with the provisions of the treaty; or

(b) at any time by consent of all the parties after consultation with the other contracting States.

Article 56

Denunciation of or withdrawal from a treaty containing no provision regarding termination,

denunciation or withdrawal

1 A treaty which contains no provision regarding its termination and which does not provide
for denunciation or withdrawal is not subject to denunciation or withdrawal unless:

(a) it is established that the parties intended to admit the possibility of denunciation or
withdrawal; or
(b) a right of denunciation or withdrawal may be implied by the nature of the treaty.

2 A party shall give not less than twelve months’ notice of its intention to denounce or
withdraw from a treaty under paragraph 1.

With respect to international human rights instruments, clearly a number of factors are relevant.
First, the instrument must be examined for any clause permitting denunciation. Not all instru-
ments contain such an article. Failure to find a relevant article clearly prompts recourse to the
travaux préparatoires to elucidate the intention of the drafters and initial parties. If a right to denun-
ciation can be found, or inferred, then consent of all other States Parties is required. This can be a
time-consuming and problematic business in contemporary multilateral instruments – agreement
of more than 100 States will frequently be required. It should be noted that even should a State be
successful in denouncing a particular instrument, it remains bound by customary international law.
Given that some aspects of international human rights instruments codify customary international
law, the actual effect of such denunciation may simply be to remove the State from the reporting
mechanism. States may still be subject to investigation under a new procedure before the Human
Rights Council (see Chapter 6).
94 | STATES AND TREATY OBLIGATIONS 

3.6.2 Denunciation and United Nations human rights treaties

Some instruments explicitly provide for denunciation – e.g. Article 21 of Convention on the
Elimination of All Forms of Racial Discrimination – others do not, and so customary law and the
Vienna Convention apply. Given the importance attached to human rights instruments and
the goal of universal ratification, allowing denunciation when not explicitly provided for in the
treaty could be viewed as a backward step. When Korea attempted to withdraw from the ICCPR
in 1997, the Human Rights Committee issued a General Comment on the matter.

General Comment 26 (1997): Issues Relating to the Continuity of Obligations to the

International Covenant on Civil and Political Rights, A/53/40 vol. 1 (1998) 102

1 The International Covenant on Civil and Political Rights does not contain any provision
regarding its termination and does not provide for denunciation or withdrawal. Consequently,
the possibility of termination, denunciation or withdrawal must be considered in
the light of applicable rules of customary international law which are reflected in the
Vienna Convention on the Law of Treaties. On this basis, the Covenant is not subject to
denunciation or withdrawal unless it is established that the parties intended to admit the
possibility of denunciation or withdrawal or a right to do so is implied from the nature of
the treaty.
2 That the parties to the Covenant did not admit the possibility of denunciation and that it
was not a mere oversight on their part to omit reference to denunciation is demonstrated
by the fact that article 41 (2) of the Covenant does permit a State party to withdraw its
acceptance of the competence of the Committee to examine inter-State communications
by filing an appropriate notice to that effect while there is no such provision for
denunciation of or withdrawal from the Covenant itself. Moreover, the Optional Protocol to
the Covenant, negotiated and adopted contemporaneously with it, permits States parties
to denounce it. Additionally, by way of comparison, the International Convention on the
Elimination of All Forms of Racial Discrimination, which was adopted one year prior to the
Covenant, expressly permits denunciation. It can therefore be concluded that the drafters
of the Covenant deliberately intended to exclude the possibility of denunciation. The same
conclusion applies to the Second Optional Protocol in the drafting of which a denunciation
clause was deliberately omitted.
3 Furthermore, it is clear that the Covenant is not the type of treaty which, by its nature,
implies a right of denunciation. Together with the simultaneously prepared and adopted
International Covenant on Economic, Social and Cultural Rights, the Covenant codifies in
treaty form the universal human rights enshrined in the Universal Declaration of Human
Rights, the three instruments together often being referred to as the ‘International Bill
of Human Rights’. As such, the Covenant does not have a temporary character typical
of treaties where a right of denunciation is deemed to be admitted, notwithstanding the
absence of a specific provision to that effect.
4 The rights enshrined in the Covenant belong to the people living in the territory of the
State party. The Human Rights Committee has consistently taken the view, as evidenced
by its long-standing practice, that once the people are accorded the protection of the
rights under the Covenant, such protection devolves with territory and continues to
belong to them, notwithstanding change in government of the State party, including
dismemberment in more than one State or State succession or any subsequent action of
the State party designed to divest them of the rights guaranteed by the Covenant.
5 The Committee is therefore firmly of the view that international law does not permit
a State which has ratified or acceded or succeeded to the Covenant to denounce it or
withdraw from it.
 STATES AND TREATY OBLIGATIONS  | 95

Question
While this approach clearly aims at advancing international human rights, is it advisable? Can it be reconciled
with the more flexible approach towards reservations and derogations?

3.6.3 Regional human rights instruments and denunciations

The regional instruments too can be the subject of denunciations, where so specified. For example,
Greece denounced the European Convention in 1969, following a coup d’état. It later withdrew
from the Council of Europe, rejoining at a later date and re-acceding to the Convention in 1974.
Clearly, a State can only be bound by an instrument if it so consents. Denunciations therefore are
an essential aspect of the international human rights system, though obviously it is regrettable if
denunciations occur, not least for the negative effect on universality. In any event, denunciations
are not particularly common in international human rights, a fact attributable in part to the lack
of sanctions attributable to non-compliance.

3.6.4 Individual petitions and denunciations

Under international human rights law, some treaties permit individual communications to the
associated treaty monitoring body for consideration. These systems are usually optional (see Chap-
ter 7). Of the regional systems, the European Convention on Human Rights rendered individual
complaints to the Court compulsory after its reform in the 1990s.
Of growing concern to the international community have been denunciations of the provi-
sions on the right of individual petitions. The realisation of International Human Rights is tradi-
tionally the preserve of States, international and regional bodies primarily producing observations
on periodic reports voluntarily submitted by States. However, in many instruments, inter-State
complaints and individual communications are optional processes. Accordingly, States can elect
whether to submit themselves to these processes and in doing so renounce the potential for com-
plaints against them. Such action, while counter-productive to the protection and promotion of
human rights, is legitimate. The most notable example is the States subject to many individual
petitions who have sought to withdraw from the optional protocol to the ICCPR. These States
are drawn primarily from the Caribbean region.

3.6.5 Case study of denunciation: International Covenant on Civil and

Political Rights, first optional protocol
The denunciation clause

INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS,

OPTIONAL PROTOCOL 1966, Article 12

1 Any State Party may denounce the present Protocol at any time by written notification
addressed to the Secretary-General of the United Nations. Denunciation shall take effect
three months after the date of receipt of the notification by the Secretary-General.
2 Denunciation shall be without prejudice to the continued application of the provisions of
the present Protocol to any communication submitted under article 2 before the effective
date of denunciation.

Three States indicated their intention to denounce the Optional Protocol: Jamaica, Guyana,
and Trinidad and Tobago. Jamaica had 177 individual communications lodged against it (the
96 | STATES AND TREATY OBLIGATIONS 

highest number against any State Party), Trinidad and Tobago 48, and Guyana 11. Only Jamaica
proceeded with denouncement (as of 23 January 1998); the others re-acceded with reservations.
However, following numerous objections to its reservations, Trinidad and Tobago denounced the
protocol for a second time (as of 27 June 2000). Individual communications under consideration
before the effective dates of denunciation are dealt with in accordance with the optional protocol
provisions.

Guyana’s denunciation
Guyana proceeded to denounce, then re-accede on the same day (5 April 1999), the re-accession
being accompanied by the following reservation:
[.  .  .] Guyana re-accedes to the Optional Protocol to the International Covenant on Civil and
Political Rights with a Reservation to article 6 thereof with the result that the Human Rights
Committee shall not be competent to receive and consider communications from any person
who is under sentence of death for the offences of murder and treason in respect of any matter
relating to his prosecution, detention, trial, conviction, sentence or execution of the death
sentence and any matter connected therewith.
Accepting the principle that States cannot generally use the Optional Protocol as a vehicle
to enter reservations to the International Covenant on Civil and Political Rights itself, the
Government of Guyana stresses that its Reservation to the Optional Protocol in no way detracts
from its obligations and engagements under the Covenant, including its undertaking to respect
and ensure to all individuals within the territory of Guyana and subject to its jurisdiction the
rights recognised in the Covenant (in so far as not already reserved against) as set out in article
2 thereof, as well as its undertaking to report to the Human Rights Committee under the
monitoring mechanism established by article 40 thereof.

International response – the Netherlands

The response of States to this move was critical. Consider the following statements:

2 The Government of the Kingdom of the Netherlands is of the view that this reservation,
which seeks to limit the obligations of the reserving State towards individuals under
sentence of death, raises doubts as to the object and purpose of the Optional Protocol.
3 The Government of the Netherlands considers that the purpose of the Optional Protocol
[to the International Covenant on Civil and Political Rights] is to strengthen the position of
the individual under the Covenant. Denying the benefits of the Optional Protocol in relation
to the Covenant to a group of individuals under the most severe sentence is fundamentally
in conflict with the object and purpose of the Optional Protocol.
4 The Government of the Kingdom of the Netherlands therefore objects to the aforementioned
reservation made by the Government of Guyana to the Optional Protocol to the International
Covenant on Civil and Political Rights.

Question
Do you agree with the criticism levied by the Netherlands? To what extent does the Guyanan approach con-
form to international law and to what extent does it corroborate Bayefsky’s critical view of the international
system?

Further reading
Chinkin, C. et al., Human Rights as General Norms and a State’s right to opt out, 1997, London: BIICL.
Hathaway, O., ‘Why Do Countries Commit to Human Rights Treaties?’ (2007) 51.4 Journal of Conflict
Resolution.
 STATES AND TREATY OBLIGATIONS  | 97

Heifer, L., ‘Exiting Treaties’ (2005) 91 Virginia Law Review 1579.

Higgins, R., Problems and Process: International Law and How We Use It, 1995, Oxford: Clarendon.
Hill, D.W., ‘Avoiding Obligation: Reservations to Human Rights Treaties’ (2016) 60.6 Journal of Con-
flict Resolution 1129–1158.
Lijnzaad, L., Reservations to UN Human Rights Treaties, Ratify and Ruin? 1995, The Hague: Martinus
Nijhoff.
McCall-Smith, K., ‘Reservations and the Determinative Function of the Human Rights Treaty Bod-
ies’ (2011) 54.1 Journal Yearbook of International Law 521.
McCall-Smith, K., ‘Severing Reservations’ (July 2014) 63.3 International & Comparative Law Quar-
terly 599–634 [611].
Neumayer, E., ‘Qualified Ratification: Explaining Reservations to International Human Rights Trea-
ties’ (2007) 36.1 Journal of Legal Studies 397.
Ziemele, I. (ed.), Reservations to Human Rights Treaties and the Vienna Convention Regime: Conflict,
Harmony or Reconciliation, 2004, Leiden: Brill.
Ziemele, I., and Liede, L., ‘Reservations to Human Rights Treaties: From Draft Guideline 3.1.12 to
Guideline 3.1.5.6’ (2013) 24.4 The European Journal of International Law 1135.

Websites
www.ngos.net: United Nations NGO Network
www.amnesty.org: Amnesty International
www.hrw.org: Human Rights Watch
www.savethechildren.org: Save the Children
www.antislavery.org: Slavery International
www.survival-international.org: Survival International
www.right-to-education.org: Right to Education
www.childrenareunbeatable.org.uk: Corporal punishment
www.article19.org: Global Campaign for Free Expression
indicators.ohchr.org: provides overview of current status of ratification of international human
rights treaties through a comprehensive data visualisation and mapping portal
https://treaties.un.org: contains information concerning the declarations/reservations made to
treaties deposited with the Secretary-General (available in English)
Chapter 4

Human rights organisations and

key institutions: United Nations and
international entities

Chapter contents

4.1 International organisations 99

4.2 The United Nations 99
4.3 International courts 113
4.4 The International Labour Organisation 119
 HUMAN RIGHTS ORGANISATIONS AND KEY INSTITUTIONS | 99

This chapter focuses on the key organisations and institutions which draft and monitor mod-
ern international human rights law. It outlines the institutional framework of those entitles with
responsibility for human rights and their organisational capacity for monitoring human rights:

• The key United Nations institutions, including the General Assembly and the Economic and
Social Council.
• The international courts whose work impinges on human rights – the International Court of
Justice and the International Criminal Court.
• The Human Rights Council, a newer UN body which assumes the principal mandate for
overseeing human rights.
• The International Labour Organisation.

Human rights do not exist in a vacuum. Inevitably, they are formulated by individuals and States
and they are implemented by States themselves. However, a number of national, regional and
international bodies exercise responsibility for overseeing the monitoring of human rights and
ensuring that States comply with the obligations. This chapter focuses on the principal interna-
tional systems. Chapter 5 focuses on the regional systems. Chapter 6 examines the main mecha-
nisms for enforcing and monitoring rights, while Chapter 7 focuses on treaty monitoring bodies – i.e.
those courts and committees set up by a human rights treaty to monitor compliance by States with
that particular treaty. This chapter is concerned with the key international organisations and insti-
tutions which operate regimes of human rights protection. This chapter thus presents the major
international organisations establishing and maintaining a human rights system.

4.1 International organisations

International human rights are, by definition, global in character. They apply to all individuals
and transcend national law and regulation. As such they were developed under the auspices of the
international community, although they apply nationally. To assist in this, a number of interna-
tional organisations created norms of human rights and structures for monitoring their realisation.
Predominant among them is the United Nations.

4.2 The United Nations

The United Nations is the primary international organisation enjoying responsibility for inter-
national human rights protection. However, human rights protection was not the driving force
behind its creation in 1945.

4.2.1 Purpose of the United Nations

The preamble indicates the rationale underpinning the organisation, while Article 1 explains its
agreed purposes.

UNITED NATIONS CHARTER 1945

Preamble

WE THE PEOPLES OF THE UNITED NATIONS DETERMINED

to save succeeding generations from the scourge of war, which twice In our lifetime has
brought untold sorrow to mankind, and
100 | HUMAN RIGHTS ORGANISATIONS AND KEY INSTITUTIONS

to reaffirm faith in fundamental human rights, in the dignity and worth of the human
person, in the equal rights of men and women and of nations large and small, and
to establish conditions under which justice and respect for the obligations arising from
treaties and other sources of international law can be maintained, and
to promote social progress and better standards of life in larger freedom,

Article 1

Purposes of the United Nations

The Purposes of the United Nations are:

1 To maintain international peace and security, and to that end: to take effective collective
measures for the prevention and removal of threats to the peace, and for the suppression
of acts of aggression or other breaches of the peace, and to bring about by peaceful
means, and in conformity with the principles of justice and international law, adjustment
or settlement of international disputes or situations which might lead to a breach of the
peace;
2 To develop friendly relations among nations based on respect for the principle of equal
rights and self-determination of peoples, and to take other appropriate measures to
strengthen universal peace;
3 To achieve international co-operation in solving international problems of an economic,
social, cultural, or humanitarian character, and in promoting and encouraging respect
for human rights and for fundamental freedoms for all without distinction as to race, sex,
language, or religion; and
4 To be a centre for harmonizing the actions of nations in the attainment of these common
ends.

As is apparent, the maintenance of international peace and security is the primary function of the
United Nations. However, in furtherance thereof, respect for human rights is identified of being
of importance. Grounded in the work of the League of Nations, the then international community
was of the opinion that securing respect for equal rights would inevitably lead to a more peaceful
world. The emphasis on economic cooperation resonated with post–war contemporary politics –
large swathes of the European population were displaced, and its economy was in disarray.

Steiner, H., Alston, P. & Goodman, R. (eds), International Human Rights in Context – Law Politics
Morals, 3rd edn, 2008, Oxford: OUP, at p 135

The Charter’s references to human rights are scattered, terse, even cryptic. The term ‘human
rights’ appears infrequently, although in vital contexts. .  .  . Several striking characteristics
of these provisions [which mention human rights] emerge. Many have a promotional or
programmatic character, for they refer principally to the purposes or goals of the UN or to
the competencies of different UN organs: ‘encouraging respect for human rights’, ‘assisting in
the realization of human rights’, ‘promote . . . universal respect for, and observance of, human
rights’. Not even a provision such as Article 56, which refers to obligations of the Member
States rather than of the UN, contains the language of obligation.

Steiner et al. note that only the right to equal protection is mentioned directly in the Charter; no
other human right is accorded such status. Obviously the Universal Declaration had not yet been
drafted at that point although there had been some high level discussions on the foundations of
what would become modern international human rights. Perhaps an explanation for this can be
extracted from the text of the principles governing the United Nations and its members:
 HUMAN RIGHTS ORGANISATIONS AND KEY INSTITUTIONS | 101

UNITED NATIONS CHARTER 1945, Article 2, Principle 7

Nothing contained in the present Charter shall authorize the United Nations to intervene in
matters which are essentially within the domestic jurisdiction of any State or shall require the
Members to submit such matters to settlement under the present Charter; but this principle
shall not prejudice the application of enforcement measures under Chapter VII.

While this would appear to preclude international human rights, which must be respected, pro-
moted and protected within national laws and policies, it must be remembered that international
human rights are of concern to the international community, as the dignity and worth of each
person is recognised by the international community and transcends national law. The individual
is no longer deemed the property of the State or to be treated as such, something that was perhaps
rather a novel concept in 1945.

4.2.2 Structure of the United Nations

In accordance with the Charter of the United Nations, Article 7, the principal organs of the
Organisation are a General Assembly, a Security Council, an Economic and Social Council, a
Trusteeship Council, an International Court of Justice and a secretariat. Of these, the Trusteeship
Council is obsolete, with the successful transition to independence of the non-self-governing
territories (see Articles 73–85, UN Charter). Not all the remaining organs significantly impact
on international human rights. Moreover, the original framework has been supplemented by
a range of ancillary and auxiliary bodies, many of whom have direct responsibilities for inter-
national human rights. What must be borne in mind is that most of these bodies derive their
powers from the Member States, that is, they only enjoy such powers as the States agree to give
them, either explicitly through a specific treaty, or implicitly through a declaration and evolving
practice.
Although human rights permeate through many operational areas within the United Nations,
the following diagram focuses on those institutions most involved with international human rights.
In effect, this is a human rights driven structure of the United Nations. For more information of
the structure and organs of the United Nations itself, recourse should be had to the website of the
United Nations (www.un.org) and/or to any of the principal textbooks on public international
law. The following text is limited to the main organs and institutions having responsibility for/
impacting on international human rights and their reporting structure.

4.2.3 General Assembly

The General Assembly is the principal forum for the congregation of the United Nations Member
States. It consists of all the members of the United Nations (UN Charter Article 9), each member
having one vote (Article 18). In accordance with the Charter, the General Assembly meets annu-
ally (Article 20), though it can meet in extraordinary special sessions as and when required. The
General Assembly has wide-ranging powers.

UN CHARTER 1945

Article 10

The General Assembly may discuss any questions or any matters within the scope of the
present Charter or relating to the powers and functions of any organs provided for in the present
Charter, and, except as provided in Article 12, may make recommendations to the Members of
the United Nations or to the Security Council or to both on any such questions or matters.
102 | HUMAN RIGHTS ORGANISATIONS AND KEY INSTITUTIONS

Article 13

1 The General Assembly shall initiate studies and make recommendations for the purpose
of:
a promoting international co-operation in the political field and encouraging the
progressive development of international law and its codification;
b promoting international co-operation in the economic, social, cultural, educational,
and health fields, and assisting in the realization of human rights and fundamental
freedoms for all without distinction as to race, sex, language, or religion.

2 The further responsibilities, functions and powers of the General Assembly with respect
to matters mentioned in paragraph 1 (b) above are set forth in Chapters IX and X.

Examples of the impact of the General Assembly on Human Rights

The General Assembly has adopted many resolutions which impact significantly on the work of
the United Nations in human rights. Indeed, much of the responsibility for human rights ulti-
mately relates back to or is initiated by the General Assembly. All human rights bodies ultimately
report to the General Assembly. Even the Security Council must submit annual reports to the
Assembly. Whatever the practical (particularly time) limitations, the central focus in the Charter on
the General Assembly substantiates the emphasis on the States having responsibility for the opera-
tion of the organisation, rather than any individual body.
As far as the generation of ‘soft’ law, several resolutions of the General Assembly have had
significant impact. Some have been declaratory of international law, others have initiated studies
which have had dramatic impact on human rights.

Resolution 1514 (XV) (1960) on the Granting of Independence to Colonial Countries

and Peoples.
Resolution 36/55 (1981), Declaration on the Elimination of All Forms of Intolerance and
of Discrimination Based on Religion or Belief.
Resolution 40/144 (1985), Declaration on the Human Rights of Individuals Who Are not
Nationals of the Country in Which They Live.
Resolution 41/128 (1986), Declaration on the Right to Development.
Resolution 43/115 (1988) on the Establishment of an Independent Expert to Review the
Treaty Monitoring Bodies.
Resolution 43/173 (1988), Principles for the Protection of All Persons Under Any Form
of Detention or Imprisonment.
Resolution 45/111 (1990), Basic Principles for the Treatment of Prisoners.
Resolution 45/113 (1990), United Nations Rules for the Protection of Juveniles Deprived
of Their Liberty.
Resolution 46/91 (1991), United Nations Principles for Older Persons.
Resolution 47/135 (1992), Declaration on the Rights of Persons Belonging to National or
Ethnic, Religious and Linguistic Minorities.
Resolution 48/104 (1993), Declaration on the Elimination of Violence against Women.
Resolution 53/144 (1999), Declaration on Human Rights Defenders.
Resolution S-26/2 (2001), Declaration of Commitment on HIV/AIDS.

As the preceding list indicates, General Assembly resolutions can, and do, address a wide range of
issues of relevance to human rights. Many elements of freedom of liberty and right to a fair trial
are governed by General Assembly guidelines. The importance of these guidelines are that they
apply to all States. While some codify existing international practice, others contain rules which
 HUMAN RIGHTS ORGANISATIONS AND KEY INSTITUTIONS | 103

are agreed by the Member States and thus form new and emergent rules of international practice.
General Assembly declarations and principles can be, and are, referred to in national courts when
determining the scope and nature of particular human rights provisions.
In addition, most of the major United Nations treaties on human rights were preceded by a
declaration of the General Assembly. The following are the main examples.

Resolution 217(III) (1948), Universal Declaration of Human Rights

– International Covenants on Civil and Political Rights and on Economic,
Social and Cultural Rights 1966.
Resolution 1386 (XIV) (1959), Declaration on the Rights of the Child
– UN Convention on the Rights of the Child 1989.
Resolution 1904 (XVIII) (1963), Declaration on the Elimination of All Forms of Racial
Discrimination
– International Convention on the Elimination of All Forms of Racial Discrimi-
nation 1965.
Resolution 2263 (XXII) (1967), Declaration on the Elimination of Discrimination against
Women
– Convention on the Elimination of All Forms of Discrimination against
Women 1979.
Resolution 3452 (XXX) (1975), Declaration on the Protection of All Persons from Being
Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
– Convention against Torture and Other Cruel, Inhuman or Degrading Treat-
ment or Punishment 1984.
Resolution 47/133 (1992) Declaration on the Protection of Persons from Enforced
Disappearances
– Convention for the Protection of All Persons from Enforced Disappearances
2006.

While the main international treaties stem from General Assembly Declarations, there is often
a considerable time lapse between declaration and treaty: some 18 years between the Universal
Declaration and the International Covenants, 30 years for the rights of the child, and yet only two
years for racial discrimination.

Question
Although several declarations adopted in resolutions have resulted in treaties, many have not. What reasons
may there be for the wealth of human rights declarations and principles adopted by the General Assembly?
Why are such instruments not adopted by the international community in a legally binding form?

As the principal body representing all Member States, the General Assembly can comment on the
work of other bodies. Thus it notably criticised the Security Council in A/66/L.57 (2012) when
the Security Council, due to the threat of the veto (from permanent Member States), was unable
to pass a resolution applying strong measures against the Syrian Arab Republic.

4.2.4 Economic and Social Council

Article 61 of the Charter of the United Nations provides that the Economic and Social Council
(ECOSOC) shall comprise 54 members of the United Nations (this represents the culmination of
a series of increases from the original 18 agreed in 1945), each serving three-year terms of office.
A wide mandate is extended to the Council, thereby facilitating its evolution into a key player in
contemporary international human rights law.
104 | HUMAN RIGHTS ORGANISATIONS AND KEY INSTITUTIONS

CHARTER OF THE UNITED NATIONS 1945

Article 62

1 The Economic and Social Council may make or initiate studies and reports with respect to
international economic, social, cultural, educational, health, and related matters and may
make recommendations with respect to any such matters to the General Assembly to the
Members of the United Nations, and to the specialized agencies concerned.
2 It may make recommendations for the purpose of promoting respect for, and observance
of, human rights and fundamental freedoms for all.
3 It may prepare draft conventions for submission to the General Assembly, with respect to
matters falling within its competence.
4 It may call, in accordance with the rules prescribed by the United Nations, international
conferences on matters falling within its competence.

Article 64

1 The Economic and Social Council may take appropriate steps to obtain regular reports
from the specialized agencies. It may make arrangements with the Members of the United
Nations and with the specialized agencies to obtain reports on the steps taken to give
effect to its own recommendations and to recommendations on matters falling within its
competence made by the General Assembly.
2 It may communicate its observations on these reports to the General Assembly.

ECOSOC receives all the reports of the main international human rights bodies, including the
UN treaty monitoring bodies (see Chapter 7). Moreover, it coordinates various UN programmes
which aim at improving human rights standards. The United Nations Development Programme
is a prime example.

4.2.4.1 ECOSOC’s functional commissions

Delegation is pivotal to the completion of the work of ECOSOC and it has created a number
of commissions and specialist committees and appointed various expert bodies to assist it in the
discharge of its broad range of functions. At present, ECOSOC has nine functional commissions,
many of which impact on human rights.

Functional Commissions of ECOSOC (2012)

Statistical Commission
Commission on Population and Development
Commission for Social Development
Commission on the Status of Women
Commission on Narcotic Drugs
Commission on Crime Prevention and Criminal Justice
Commission on Science and Technology for Development
Commission on Sustainable Development
United Nations Forum on Forests

All the Commissions are subject to the same rules of procedures.

Question
What are the obvious practical and political limitations on the powers and functioning of the ECOSOC?

The Commission on the Status of Women has the most prominent role in advancing human
rights. Before 2006, there was also a Commission on Human Rights – this ceased operation with
its workload now assumed by the Human Rights Council.
 HUMAN RIGHTS ORGANISATIONS AND KEY INSTITUTIONS | 105

4.2.4.2 Commission on the Status of Women (CSW)

ECOSOC Resolution 11 (II) (1946) established the Commission on the Status of Women. Mem-
bership has increased to 45, with a clear balance in favour of women members! Unlike most of
the international human rights machinery, the Commission on the Status of Women had its own
secretariat, partially provided by the Division for the Advancement of Women (DAW). The func-
tions of the Commission are governed by the powers granted to it in the enabling resolution (Eco-
nomic and Social Council Resolution 11(II) of 21 June 1946). This was expanded in Resolution
1987/22. Note as of 2008 the Committee on Elimination of Discrimination Against Women (see
Chapter 7) moved from the Commission in New York to Geneva, thus all the UN treaty monitor-
ing bodies are located in one city. One session each year is still held in New York.
The most significant body of work before the Commission at present is the ongoing review of
progress towards the goals agreed in Beijing by the Fourth World Conference on Women in 1995
as the twenty-fifth anniversary approaches.

ECOSOC RESOLUTION 1996/6

FRAMEWORK FOR THE FUNCTIONING OF THE COMMISSION

Recalling that the General Assembly, in resolution 50/203, decided that the Assembly, the
Economic and Social Council and the Commission on the Status of Women, in accordance with
their respective mandates and in accordance with Assembly resolution 48/162 of 20 December
1993 and other relevant resolutions, should constitute a three-tiered inter-governmental
mechanism that would play the primary role in the overall policy-making and follow-up, and
in coordinating the implementation and monitoring of the Platform for Action, reaffirming the
need for a coordinated follow-up to and implementation of the results of major international
conferences in the economic, social and related fields, convinced that the follow-up to the Fourth
World Conference on Women should be undertaken on the basis of an integrated approach to the
advancement of women within the framework of a coordinated follow-up to and implementation
of the results of major international conferences in the economic, social and related fields, as
well as the overall responsibilities of the General Assembly and the Economic and Social Council,

1 Decides that the Commission on the Status of Women shall have a catalytic role in
mainstreaming a gender perspective in policies and programmes;
2 Decides that the inter-agency committee on the follow-up to the Fourth World Conference
on Women, established by the Administrative Committee on Coordination, shall inform
the Commission and the Economic and Social Council of the progress of its work, for
the purpose of system-wide coordination, and that a gender perspective shall also be
fully integrated in the work of all thematic task forces established by the Administrative
Committee on Coordination;
3 Decides that the Platform for Action should be implemented through the work of all the
bodies and organizations of the United Nations system during the period 1995–2000, and
notes that the institutions of the United Nations especially devoted to the advancement of
women, including the International Research and Training Institute for the Advancement
of Women and the United Nations Development Fund for Women, are in the process
of reviewing their programmes of work in the light of the Platform for Action and its
implementation;
4 Decides, in view of the traditional importance of non-governmental organizations in the
advancement of women, that such organizations should be encouraged to participate in
the work of the Commission and in the monitoring and implementation process related
to the Conference to the maximum extent possible, and requests the Secretary-General
to make appropriate arrangements to ensure full utilization of existing channels of
communication with non-governmental organizations in order to facilitate broad-based
participation and dissemination of information;
106 | HUMAN RIGHTS ORGANISATIONS AND KEY INSTITUTIONS

5 Decides, in recognition of the valuable contribution of non-governmental organizations

to the Fourth World Conference on Women, that the Council and its Committee on Non-
Governmental Organizations will review the applications of those non-governmental
organizations under Council resolution 1296 (XLIV) of 23 May 1968 as expeditiously
as possible, and also decides that, prior to the forty-first session of the Commission
on the Status of Women, the Council will take a decision on the participation of the
non-governmental organizations that were accredited to the Conference and that
have applied for consultative status, in Conference follow-up and in the work of the
Commission on the Status of Women, without prejudice to the work of the Open-ended
Working Group on the Review of Arrangements for Consultation with Non-Governmental
Organizations;
6 Requests the Secretary-General urgently to draw the attention of non-governmental
organizations accredited to the Fourth World Conference on Women to the provisions of
the present resolution and to the process established under Council resolution 1296 (XLIV).

II

TERMS OF REFERENCE

1 Confirms the existing mandate of the Commission on the Status of Women as set out in
Council resolutions 11 (II), 48 (IV) and 1987/22, bearing in mind that the Platform for Action
builds upon the Nairobi Forward-looking Strategies for the Advancement of Women;
2 Decides that the Commission shall:

(a) Assist the Economic and Social Council in monitoring, reviewing and appraising
progress achieved and problems encountered in the implementation of the Beijing
Declaration and Platform for Action at all levels, and shall advise the Council
thereon;
(b) Continue to ensure support for mainstreaming a gender perspective in United
Nations activities and develop further its catalytic role in this regard in other areas;
(c) Identify issues where United Nations system-wide coordination needs to be improved
in order to assist the Council in its coordination function;
(d) Identify emerging issues, trends and new approaches to issues affecting the situation
of women or equality between women and men that require urgent consideration,
and make substantive recommendations thereon;
(e) Maintain and enhance public awareness and support for the implementation of the
Platform for Action.

Question
Much of the work of ECOSOC’s functional commissions is based on compilation of reports, investigations and
discussions. To what extent do such activities contribute towards the promotion and protection of human rights?

4.2.4.3 Sustainable development

At present, much of the work of ECOSOC is centred around its leadership on Agenda 2030 and
the UN Sustainable Development Goals. ECOSOC has the main responsibility for following
up on the major international conferences linked to the three pillars of sustainable development
(economic, environmental and social) whilst supporting the implementation of the sustainable
development goals (see also Section 15.1).
ECOSOC hosts the High Level Political Forum annually in New York. This was established
by General Assembly resolution 67/290 but sits under ECOSOC.
 HUMAN RIGHTS ORGANISATIONS AND KEY INSTITUTIONS | 107

4.2.4.4 Reform of the Economic and Social Council?

Proposals for strengthening the role of ECOSOC were tabled before the General Assembly. While
noting the work of the Council, a former Secretary-General had considered five areas which
require consideration: integrating, reviewing and implementing the development agenda; review-
ing trends in international development cooperation; addressing economic and social challenges;
monitoring and addressing economic and social dimensions of conflicts; and asserting its leadership
in driving a global development agenda (Kofi Annan, ‘In Larger Freedom: Towards Development,
Security and Human Rights for All’, UN Doc. A/59/2005 paras 175–179).

Kofi Annan, ‘In Larger Freedom: Towards Development, Security and Human Rights for All’,
UN Doc. A/59/2005

171. The Charter of the United Nations gives the Economic and Social Council a range of
important functions that involve coordination, policy review and policy dialogue. Most of these
seem more critical than ever in this age of globalization, in which a comprehensive United
Nations development agenda has emerged from the summits and conferences of the 1990s.
More than ever, the United Nations needs to be able to develop and implement policies in this
area in a coherent manner. The functions of the Council are generally thought to be uniquely
relevant to these challenges, but it has not as yet done justice to them.

In July 2018, the General Assembly concluded its review with recommendations for strengthening
ECOSOC:

General Assembly Resolution 72/305 on the Review of the implementation of General Assembly
resolution 68/1 on the strengthening of the Economic and Social Council, Annex

1 In accordance with the relevant provisions of the Charter of the United Nations, the
Economic and Social Council should continue to strengthen its leadership and policy
guidance role, and its role as the central mechanism for coordination of the activities of
the United Nations development system and its specialized agencies and supervision of
its subsidiary bodies while integrating their analysis throughout its segments. It should
also address new and emerging issues in the economic, social, environmental and
related fields and provide overall support for the integration of the three dimensions of
sustainable development. It should promote a coordinated follow-up to the 2030 Agenda
for Sustainable Development and the outcomes of other major United Nations conferences
and summits in the economic, social, environmental and related fields.
2 The working modalities of the Economic and Social Council should be guided by the
principles of inclusiveness, transparency and flexibility based on the deliberative function
of its meetings. It should be a platform for discussion and the exchange of national
experiences. The Council should aim at creating synergy and coherence as well as avoiding
duplication and overlap in its work to ensure efficiency and effectiveness. It should also
ensure an adequate division of labour among its subsidiary bodies and harmonization and
coordination of their agendas and work programmes, while ensuring that the principles,
critical aspects and implementation gaps of the 2030 Agenda are addressed.
3 The Economic and Social Council should improve its outcomes and the outcomes of its
subsidiary bodies, making them more relevant, coherent and solution-oriented to address
implementation challenges and ensuring their follow-up so as to strengthen the impact of
the work of the Council.

4.2.5 Human Rights Council

Not to be confused with the Human Rights Committee, a body established to monitor the Inter-
national Covenant on Civil and Political Rights (see Chapter 7), the Human Rights Council is
108 | HUMAN RIGHTS ORGANISATIONS AND KEY INSTITUTIONS

the newest human rights body in the United Nations system. It was created in 2006 to replace
the Commission on Human Rights. The Commission was a functional Commission of the Eco-
nomic and Social Council, established in 1947. It was originally tasked with drafting the Uni-
versal Declaration on Human Rights. This it did, under the leadership of Eleanor Roosevelt,
within its first year of operation. Perhaps this will remain the most significant achievement of
the Commission. Plans for reforming the United Nations human rights machinery focused on the
Commission. In December 2004, the then Secretary-General presented to the General Assembly
of the United Nations the report of the High-Level Panel on Threats, Challenges and Changes.
Although only nine of some 300 pages in the report address human rights, the comments of the
panel thereon attracted considerable interest. The Secretary-General then issued his own report on
United Nations reform, ‘In Larger Freedom: Towards Development, Security and Human Rights
for All’. This report proposed replacing the Commission with a smaller standing Human Rights
Council which could be accorded status as a principal organ of the United Nations or could be a
subsidiary of the United Nations General Assembly. Note the criticisms levied at the Commission.

Kofi Annan, ‘In Larger Freedom: Towards Development, Security and

Human Rights for All’, UN Doc. A/59/2005

181. The Commission on Human Rights has given the international community a universal
human rights framework, comprising the Universal Declaration on Human Rights, the two
International Covenants and other core human rights treaties. During its annual session, the
Commission draws public attention to human rights issues and debates, provides a forum for
the development of United Nations human rights policy and establishes a unique system of
independent and expert special procedures to observe and analyse human rights compliance
by theme and by country. The Commission’s close engagement with hundreds of civil society
organizations provides an opportunity for working with civil society that does not exist elsewhere.
182. Yet the Commission’s capacity to perform its tasks has been increasingly undermined
by its declining credibility and professionalism. In particular, States have sought membership
of the Commission not to strengthen human rights but to protect themselves against criticism
or to criticize others. As a result, a credibility deficit has developed, which casts a shadow on
the reputation of the United Nations system as a whole.

The Commission on Human Rights met in March 2006 and considered the report of the Secretary-
General and the High-Level Panel. This was its final meeting.

Question
The Commission was the original body for enforcing, monitoring and developing international human rights.
Much of its work has perhaps now been subsumed by the treaty monitoring bodies (see Chapter 7) established
with specific competency for each of the main international human rights treaties. Consider the benefits in retain-
ing an independent (of the human rights treaties) council and how such a resource could best be maximised.

4.2.5.1 Creating the new Council

In accordance with General Assembly Resolution 60/251 (2006), the peoples of the United
Nations decided to establish the Human Rights Council in Geneva to replace the Commission
on Human Rights (at para 1). When creating the Human Rights Council in March 2006, the
United Nations General Assembly decided that the Council shall review its work and functioning
five years after it has come into existence (see HRC Resolution 16/21: Review of the work and
functioning of the Human Rights Council (2011) and GA Resolution 65/281: Review of the
Human Rights Council (2011)). The Council will be reviewed again in due course to determine
whether it should be elevated to a full organ of the United Nations. Even as a subsidiary body, the
Council enjoys a higher status than the Commission. This reinforces the importance of human
rights within the United Nations today.
 HUMAN RIGHTS ORGANISATIONS AND KEY INSTITUTIONS | 109

The Council is tasked to meet throughout the year, a change from the annual meetings of
the former Commission. It operates under the normal rules of procedure for committees of the
General Assembly and can draw on the skills and knowledge of a wide range of bodies, including
NGOs, in accordance with the pre-existing arrangements observed by the Commission under
ECOSOC Resolution 1996/31 (1996) (GA Resolution 60/251 at paras 10–11).

GENERAL ASSEMBLY RESOLUTION 60/251 (2006) para 12

12. . . . the methods of work of the Council shall be transparent, fair and impartial and shall
enable genuine dialogue, be results-oriented, allow for subsequent follow-up discussions to
recommendations and their implementation and also allow for substantive interaction with
special procedures and mechanisms;

4.2.5.2 Membership of the Council

Detailed procedures were provided in the enabling resolution:

GENERAL ASSEMBLY RESOLUTION 60/251 (2006) paras 7–9

7. . . . the Council shall consist of forty-seven Member States, which shall be elected directly
and individually by secret ballot by the majority of the members of the General Assembly;
the membership shall be based on equitable geographical distribution, and seats shall be
distributed as follows among regional groups: Group of African States, thirteen; Group of
Asian States, thirteen; Group of Eastern European States, six; Group of Latin American and
Caribbean States, eight; and Group of Western European and other States, seven; the members
of the Council shall serve for a period of three years and shall not be eligible for immediate
re-election after two consecutive terms;
8. . . . the membership in the Council shall be open to all States Members of the United
Nations; when electing members of the Council, Member States shall take into account the
contribution of candidates to the promotion and protection of human rights and their voluntary
pledges and commitments made thereto; the General Assembly, by a two-thirds majority of
the members present and voting, may suspend the rights of membership in the Council of a
member of the Council that commits gross and systematic violations of human rights;
9. . . . members elected to the Council shall uphold the highest standards in the promotion
and protection of human rights, shall fully cooperate with the Council and be reviewed under
the universal periodic review mechanism during their term of membership.

Forty-seven members represent only a small reduction on the membership of the former
Commission – 53. It is debatable whether such a reduction has rendered the Council less unwieldy
than its predecessor as regards decision-making. Note particularly the power of the General Assem-
bly to suspend the membership of States committing gross and serious violations of human rights.
Obviously no State has a perfect human rights record. However, there is a clear underlying inten-
tion in the resolution to make States in the Council accountable for their human rights record.
As of 1 January 2019, 114 UN Member States have sat on the Human Rights Council:
Afghanistan, Albania, Algeria, Angola, Argentina, Australia, Austria, Azerbaijan, Bahamas, Bah-
rain, Bangladesh, Belgium, Benin, Bolivia, Bosnia and Herzegovina, Botswana, Brazil, Bulgaria,
Burkina Faso, Burundi, Cameroon, Canada, Chile, China, Congo, Costa Rica, Côte d’Ivoire,
Croatia, Cuba, Czech Republic, Democratic Republic of the Congo, Denmark, Djibouti, Ecua-
dor, Egypt, El Salvador, Eritrea, Estonia, Ethiopia, Fiji, Finland, France, Gabon, Georgia, Germany,
Ghana, Guatemala, Hungary, Iceland, India, Indonesia, Iraq, Ireland, Italy, Japan, Jordan, Kazakh-
stan, Kenya, Kuwait, Kyrgyzstan, Latvia, Libya, Madagascar, Malaysia, Maldives, Mali, Mauritania,
Mauritius, Mexico, Mongolia, Montenegro, Morocco, Namibia, Nepal, Netherlands, Nicaragua,
110 | HUMAN RIGHTS ORGANISATIONS AND KEY INSTITUTIONS

Nigeria, Norway, Pakistan, Panama, Paraguay, Peru, Philippines, Poland, Portugal, Qatar, Repub-
lic of Korea, Republic of Moldova, Republic of North Macedonia, Romania, Russian Federation,
Rwanda, Saudi Arabia, Senegal, Sierra Leone, Slovakia, Slovenia, South Africa, Somalia, Spain,
Sri Lanka, Switzerland, Thailand, Togo, Tunisia, Uganda, Ukraine, United Arab Emirates, United
Kingdom of Great Britain and Northern Ireland, United States of America, Uruguay, Venezuela,
Viet Nam, Zambia.
Many applicant countries submit pledges on their human rights agenda in advance of the
elections. The current membership can be ascertained online. The issue of membership continues
to be controversial, not least with respect to different regional practices – for example, Africa nor-
mally nominates the exact number of candidate countries for seats available; Europe, in contrast,
requires an election to select from the nominated States.
The United States of America demitted office early in June 2018, with a statement from the
Permanent Ambassador to the United Nations and the Secretary of State claiming that

the Human Rights Council has become an exercise in shameless hypocrisy – with many of the
world’s worst human rights abuses going ignored, and some of the world’s most serious offend-
ers sitting on the council itself. The only thing worse than a council that does almost nothing to
protect human rights is a council that covers for human rights abuses and is therefore an obstacle
to progress and an impediment to change. The Human Rights Council enables abuses by absolv-
ing wrongdoers through silence and falsely condemning those who have committed no offense.

This USA view had been intimated the previous year so it was no great surprise when it stepped
down. Iceland filled the vacant seat.

Question
Do all the States which have served on the Council satisfy the criteria in Resolution 60/251?

4.2.5.3 Powers of the Council

Resolution 60/251 specifies the powers of the new body.

GENERAL ASSEMBLY RESOLUTION 60/251 (2006) paras 2–5

2. . . . the Council shall be responsible for promoting universal respect for the protection of all
human rights and fundamental freedoms for all, without distinction of any kind and in a fair
and equal manner;
3. .  .  . the Council should address situations of violations of human rights, including
gross and systematic violations, and make recommendations thereon. It should also promote
the effective coordination and the mainstreaming of human rights within the United Nations
system;
4. . . . the work of the Council shall be guided by the principles of universality, impartiality,
objectivity and non-selectivity, constructive international dialogue and cooperation, with a view
to enhancing the promotion and protection of all human rights, civil, political, economic, social
and cultural rights, including the right to development;
5. . . . the Council shall, inter alia:

(a) Promote human rights education and learning as well as advisory services, technical
assistance and capacity-building, to be provided in consultation with and with the consent
of Member States concerned;
(b) Serve as a forum for dialogue on thematic issues on all human rights;
(c) Make recommendations to the General Assembly for the further development of
international law in the field of human rights;
 HUMAN RIGHTS ORGANISATIONS AND KEY INSTITUTIONS | 111

(d) Promote the full implementation of human rights obligations undertaken by States and
follow-up to the goals and commitments related to the promotion and protection of
human rights emanating from United Nations conferences and summits;
(e) Undertake a universal periodic review, based on objective and reliable information, of the
fulfilment by each State of its human rights obligation and commitments in a manner
which ensures universality of coverage and equal treatment with respect to all States; the
review shall be a cooperative mechanism, based on an interactive dialogue, with the full
involvement of the country concerned and with consideration given to its capacity-building
needs; such a mechanism shall complement and not duplicate the work of treaty bodies;
the Council shall develop the modalities and necessary time allocation for the universal
periodic review mechanism within one year after the holding of its first session;
(f) Contribute, through dialogue and cooperation, towards the prevention of human rights
violations and respond promptly to human rights emergencies;
(g) Assume the role and responsibilities of the Commission on Human Rights relating to the
work of the Office of the United Nations High Commissioner for Human Rights, as decided
by the General Assembly in its resolution 48/141 of 20 December 1993;
(h) Work in close cooperation in the field of human rights with Governments, regional
organizations, national human rights institutions and civil society;
(i) Make recommendations with regard to the promotion and protection of human rights;
(j) Submit an annual report to the General Assembly.

Ultimately the Council has been established as the focal point for human rights endeavours in the
United Nations. It should help Member States meet their human rights obligations.

4.2.5.4 Human Rights Council Advisory Committee

The origins of this perhaps date to 1946 when a Sub-Commission on the Prevention of Discrimi-
nation and the Protection of Minorities was created under the Commission on Human Rights
and ECOSOC.
Originally a partial successor to the problem of minority rights, the Sub-Commission under-
went a name change in 1999, to the Sub-Commission on the Protection and Promotion of
Human Rights. While this perhaps better reflected the breadth of its advisory role, it simultane-
ously removed the last vestige of specific minority rights mechanisms from the United Nations.
The Sub-Commission comprised 26 independent experts and was able to undertake stud-
ies and make recommendations on any aspect of discrimination and perform any other function
entrusted to it by, laterally, the Human Rights Council or the Economic and Social Council.
The Sub-Commission has now been disbanded. Its work is partially subsumed by the new
Human Rights Council Advisory Committee, 18 independent experts acting as a ‘think tank’ for
the Council, providing detailed advice. However, unlike the Sub-Commission, this new body has
little autonomous power, and authority remains firmly with the Member States as represented in
the Human Rights Council.
112 | HUMAN RIGHTS ORGANISATIONS AND KEY INSTITUTIONS

HUMAN RIGHTS COUNCIL RESOLUTION 5/1. INSTITUTION-BUILDING OF THE UNITED

NATIONS HUMAN RIGHTS COUNCIL ANNEXE

III. HUMAN RIGHTS COUNCIL ADVISORY COMMITTEE

65. The Human Rights Council Advisory Committee (hereinafter ‘the Advisory Committee’),
composed of 18 experts serving in their personal capacity, will function as a think tank for the
Council and work at its direction. The establishment of this subsidiary body and its functioning
will be executed according to the guidelines stipulated below.

A. Nomination

66. All Member States of the United Nations may propose or endorse candidates from their
own region. When selecting their candidates, States should consult their national human
rights institutions and civil society organizations and, in this regard, include the names of those
supporting their candidates.
67. The aim is to ensure that the best possible expertise is made available to the Council.
For this purpose, technical and objective requirements for the submission of candidatures will
be established and approved by the Council at its sixth session (first session of the second
cycle). These should include:

(a) Recognized competence and experience in the field of human rights:

(b) High moral standing;
(c) Independence and impartiality.

68. Individuals holding decision-making positions in Government or in any other organization

or entity which might give rise to a conflict of interest with the responsibilities inherent in the
mandate shall be excluded. Elected members of the Committee will act in their personal capacity.
69. The principle of non-accumulation of human rights functions at the same time shall
be respected.

B. Election

70. The Council shall elect the members of the Advisory Committee, in secret ballot, from the list
of candidates whose names have been presented in accordance with the agreed requirements.
71. The list of candidates shall be closed two months prior to the election date. The
Secretariat will make available the list of candidates and relevant information to Member
States and to the public at least one month prior to their election.
72. Due consideration should be given to gender balance and appropriate representation
of different civilizations and legal systems.
73. The geographic distribution will be as follows: African States: 5
Asian States: 5
Eastern European States: 2
Latin American and Caribbean States: 3
Western European and other States: 3
74. The members of the Advisory Committee shall serve for a period of three years. They
shall be eligible for re-election once. In the first term, one third of the experts will serve for one
year and another third for two years. The staggering of terms of membership will be defined
by the drawing of lots.

C. Functions

75. The function of the Advisory Committee is to provide expertise to the Council in the manner
and form requested by the Council, focusing mainly on studies and research-based advice.
 HUMAN RIGHTS ORGANISATIONS AND KEY INSTITUTIONS | 113

Further, such expertise shall be rendered only upon the latter’s request, in compliance with its
resolutions and under its guidance.
76. The Advisory Committee should be implementation-oriented and the scope of its
advice should be limited to thematic issues pertaining to the mandate of the Council; namely
promotion and protection of all human rights.
77. The Advisory Committee shall not adopt resolutions or decisions. The Advisory
Committee may propose within the scope of the work set out by the Council, for the latter’s
consideration and approval, suggestions for further enhancing its procedural efficiency, as well
as further research proposals within the scope of the work set out by the Council.
78. The Council shall issue specific guidelines for the Advisory Committee when it requests
a substantive contribution from the latter and shall review all or any portion of those guidelines
if it deems necessary in the future.

D. Methods of work

79. The Advisory Committee shall convene up to two sessions for a maximum of 10 working
days per year. Additional sessions may be scheduled on an ad hoc basis with prior approval of
the Council.
80. The Council may request the Advisory Committee to undertake certain tasks that could
be performed collectively, through a smaller team or individually. The Advisory Committee will
report on such efforts to the Council.
81. Members of the Advisory Committee are encouraged to communicate between
sessions, individually or in teams. However, the Advisory Committee shall not establish
subsidiary bodies unless the Council authorizes it to do so.
82. In the performance of its mandate, the Advisory Committee is urged to establish
interaction with States, national human rights institutions, non-governmental organizations
and other civil society entities in accordance with the modalities of the Council.
83. Member States and observers, including States that are not members of the Council,
the specialized agencies, other inter-governmental organizations and national human rights
institutions, as well as non-governmental organizations shall be entitled to participate in
the work of the Advisory Committee based on arrangements, including Economic and Social
Council resolution 1996/31 and practices observed by the Commission on Human Rights and
the Council, while ensuring the most effective contribution of these entities.

Question
Look up the biographies of some of the members of the Advisory Committee (available online from https://
www.ohchr.org/EN/HRBodies/HRC/AdvisoryCommittee/Pages/Members.aspx). To what extent
is there an appropriate breadth of expertise available for the Council to draw upon? In your opinion, would the
Committee members be able to work independently rather than in an advisory capacity should they have been
afforded that option? Is the body of expertise available in the Committee able to be maximised by the Council?

4.3 International courts

There are two ‘international’ courts, neither of which actually has cause to consider international
human rights on a regular basis. The International Court of Justice is part of the United Nations
and is established in accordance with the Charter of the United Nations itself. The other court,
the International Criminal Court, is independent of the United Nations machinery, yet accepted
by many Member States, and is a peculiar hybrid body. Although operating within the ambit of
international law, it serves solely to prosecute individuals for violations of selected, very serious
elements of international humanitarian and criminal law.
114 | HUMAN RIGHTS ORGANISATIONS AND KEY INSTITUTIONS

4.3.1 International Court of Justice

The International Court of Justice was established by Article 92 of the UN Charter as the principal
judicial organ of the United Nations. It sits in the Hague, the Netherlands, and succeeds the Perma-
nent Court of International Justice. In some texts, it is referred to as the World Court. All Member
States of the United Nations are ipso facto parties to the Statute of the International Court of Justice,
which is annexed to the UN Charter (Article 93). This Statute contains all relevant information on
the creation, membership, competencies and procedure of the Court. The Court comprises 15 judges,
no two of whom can be nationals of the same State. Judges serve for terms of nine years, though the
system of appointments is staggered to ensure continuity, with a third of the judges retiring every three
years. Judges may be re-elected in accordance with the procedure laid down in the Statute.

STATUTE OF THE INTERNATIONAL COURT OF JUSTICE 1945, Article 2

The Court shall be composed of a body of independent judges, elected regardless of their
nationality from among persons of high moral character, who possess the qualifications
required in their respective countries for appointment to the highest judicial offices, or are
juris consults of recognized competence in international law.

Only States may be parties in cases before the Court (Article 34(1), Statute of the International
Court of Justice), thus seemingly precluding consideration of international human rights law.
However, the International Court enjoys consensual jurisdiction whereby States may accept its
jurisdiction either in respect of all or any specific cases (Article 36).

STATUTE OF THE INTERNATIONAL COURT OF JUSTICE 1945, Article 36(2)

1 The jurisdiction of the Court comprises all cases which the parties refer to it and all
matters specially provided for in the Charter of the United Nations or in treaties and
conventions in force.
2 The States parties to the present Statute may at any time declare that they recognize
as compulsory ipso facto and without special agreement, in relation to any other State
accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning:

a the interpretation of a treaty;

b any question of international law;
c the existence of any fact which, if established, would constitute a breach of an
international obligation;
d the nature or extent of the reparation to be made for the breach of an international
obligation.

3 The declarations referred to above may be made unconditionally or on condition of

reciprocity on the part of several or certain States, or for a certain time.
4 Such declarations shall be deposited with the Secretary-General of the United Nations,
who shall transmit copies thereof to the parties to the Statute and to the Registrar of the
Court.
5 Declarations made under Article 36 of the Statute of the Permanent Court of International
Justice and which are still in force shall be deemed, as between the parties to the present
Statute, to be acceptances of the compulsory jurisdiction of the International Court of
Justice for the period which they still have to run and in accordance with their terms.
6 In the event of a dispute as to whether the Court has jurisdiction, the matter shall be
settled by the decision of the Court.
 HUMAN RIGHTS ORGANISATIONS AND KEY INSTITUTIONS | 115

Question
States are reluctant to bring complaints before the International Court of Justice. Considering examples of
disputes which have been brought, what reasons are there for national recalcitrance to use the Court for human
rights issues?

As final arbiter of the treaty law, there is clear potential for cases which concern international
human rights agreements to enter the docket of the court. However, the Court has been accorded
little opportunity to examine human rights. Nevertheless, some decisions and opinions of the
Court have impacted on international human rights law.
While the Court can and does adjudicate on inter-State complaints, it also has jurisdiction to
give advisory opinions on any legal questions at the request of any authorised body (Article 65,
Statute of the International Court of Justice). Opinions have ranged over a number of areas from
the legal personality of the United Nations, to the status of nuclear weapons and whether they
constitute a threat to humanity.
A range of laws may be applied by the International Court to assist it in determining a case.
Obviously, it is not open to the Court to determine that a matter is non-juridical on account of
no relevant law being available.

STATUTE OF THE INTERNATIONAL COURT OF JUSTICE 1945, Article 38

1 The Court, whose function is to decide in accordance with international law such disputes
as are submitted to it, shall apply:

a international conventions, whether general or particular, establishing rules

expressly recognized by the contesting States;
b international custom, as evidence of a general practice accepted as law;
c the general principles of law recognized by civilized nations;
d 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.

2 This provision shall not prejudice the power of the Court to decide a case ex aequo et bono,
if the parties agree thereto.

A number of cases have actual or tangential impact on aspects of human rights. Given the serious-
ness of instituting international proceedings in this venue, the relevant cases concern primarily the
most serious aspects of international human rights, usually crimes against humanity and genocide.
Some cases have general impact on the nature and substance of international human rights; oth-
ers, such as the one currently following due judicial process on the application of the Genocide
Convention in the Balkans, concern the actual application of human rights treaties.
In 2008, the first case concerning a core human rights treaty was lodged with the ICJ: Case
Concerning Application of the International Convention of the Elimination of All Forms of Racial Discrimi-
nation (Georgia v Russian Federation) General List No 140.
This contentious dispute between Georgia and the Russian Federation follows a failure to
achieve resolution in terms of the International Convention on the Elimination of Racial Dis-
crimination. Georgia instituted proceedings against the Russian Federation in August 2008, claim-
ing violation of the Convention.
On 15 October 2008, provisional measures were ordered by the International Court of
Justice.
116 | HUMAN RIGHTS ORGANISATIONS AND KEY INSTITUTIONS

Case Concerning Application of the International Convention on the Elimination of All Forms of
Racial Discrimination (Georgia v Russian Federation) 15 October, General List No. 140 p 41
para 149, www.icj-cij.org/docket/files/140/14803.pdf

THE COURT, reminding the Parties of their duty to comply with their obligations under the International
Convention on the Elimination of All Forms of Racial Discrimination,
Indicates the following provisional measures:

A. By eight votes to seven,

Both Parties, within South Ossetia and Abkhazia and adjacent areas in Georgia, shall

(1) refrain from any act of racial discrimination against persons, groups of persons or
institutions;
(2) abstain from sponsoring, defending or supporting racial discrimination by any persons or
organizations,
(3) do all in their power, whenever and wherever possible, to ensure, without distinction as to
national or ethnic origin,

(i) security of persons;

(ii) the right of persons to freedom of movement and residence within the border of the
State;
(iii) the protection of the property of displaced persons and of refugees;

(4) do all in their power to ensure that public authorities and public institutions under their
control or influence do not engage in acts of racial discrimination against persons, groups
of persons or institutions;

B. By eight votes to seven,

Both Parties shall facilitate, and refrain from placing any impediment to, humanitarian
assistance in support of the rights to which the local population are entitled under the
International Convention on the Elimination of All Forms of Racial Discrimination;

C. By eight votes to seven,

Each Party shall refrain from any action which might prejudice the rights of the other Party in
respect of whatever judgment the Court may render in the case, or which might aggravate or
extend the dispute before the Court or make it more difficult to resolve;

D. By eight votes to seven,

Each Party shall inform the Court as to its compliance with the above provisional measures;
This case was subsequently dismissed – the Court found that the parties had not followed the
mandatory preliminary processes required in terms of the Convention on the Elimination of all
forms of Racial Discrimination. Thus, effectively on a ‘technicality’ the first contentious case on
a human rights treaty fell.
The case ultimately failed through the parties not having followed the procedure articulated
in the treaty.
Another case on the same treaty is currently on the court’s docket – Application Of The
International Convention On The Elimination Of All Forms Of Racial Discrimination (Qatar v.
United Arab Emirates)

Question
Is an international court an appropriate venue for discussing human rights violations? Is it likely to be restricted
to cases with an international dimension? Does this support or detract from the concept of universality?
 HUMAN RIGHTS ORGANISATIONS AND KEY INSTITUTIONS | 117

4.3.2 International Criminal Court

The International Criminal Court is a somewhat hybrid body in that it is not part of the United
Nations organisational structure, but was created at the behest of the international community
and enjoys support from a wide variety of Member States of the United Nations. In terms of the
preamble to its constituent document, the Rome Statute of the International Criminal Court
1998, the States Parties were ‘determined . . . for the sake of present and future generations, to
establish an independent permanent International Criminal Court established in relationship with
the United Nations system, with jurisdiction over the most serious crimes of concern to the inter-
national community as a whole’. An Assembly of States Parties oversees the functioning of the
Court (Article 112) and its operation. The Court is co-financed by assessed contributions from
States Parties and funds from the United Nations (Article 115).

STATUTE OF THE INTERNATIONAL CRIMINAL COURT 1998, Article 1

An International Criminal Court (‘the Court’) is hereby established. It shall be a permanent

institution and shall have the power to exercise its jurisdiction over persons for the most serious
crimes of international concern, as referred to in this Statute, and shall be complementary to
national criminal jurisdictions. The jurisdiction and functioning of the Court shall be governed
by the provisions of this Statute.

Like the International Court of Justice, the International Criminal Court is situated in the Hague,
although it retains the power to sit elsewhere, thus conceivably it could go ‘on circuit’ to locations
with a density of alleged perpetrators. Unlike the Court of Justice, the International Criminal
Court comprises a Presidency, an Appeals Division, a Trial Division and a Pre-trial Division, the
Office of Prosecutor and the Registry. A total of 18 judges were appointed initially, though this
number may be increased if deemed necessary. Judges are subject to staggered election systems,
with elections every three years, and they generally cannot be re-elected.

STATUTE OF THE INTERNATIONAL CRIMINAL COURT 1998, Article 5

Crimes within the jurisdiction of the Court

1 The jurisdiction of the Court shall be limited to the most serious crimes of concern to the
international community as a whole. The Court has jurisdiction in accordance with this
Statute with respect to the following crimes:

(a) The crime of genocide;

(b) Crimes against humanity;
(c) War crimes;
(d) The crime of aggression.

2 The Court shall exercise jurisdiction over the crime of aggression once a provision is
adopted in accordance with articles 121 and 123 defining the crime and setting out the
conditions under which the Court shall exercise jurisdiction with respect to this crime.
Such a provision shall be consistent with the relevant provisions of the Charter of the
United Nations.

Given the nature of the jurisdictional competence of the International Criminal Court, a separate
independent Office of Prosecutor is necessary to instigate investigations, authorise detention and
extradition/surrender and bring relevant cases to trial. In this respect, the International Criminal
Court shares some similarities with the national criminal law systems of many States.
118 | HUMAN RIGHTS ORGANISATIONS AND KEY INSTITUTIONS

Question
What problems may be anticipated in securing the necessary evidence to institute proceedings and to bring an
alleged perpetrator to trial?

A wide range of legal materials may be employed in determining cases brought before the Inter-
national Criminal Court. Of particular note, in the current context, all proceedings must be in
accordance with norms of international human rights.

STATUTE OF THE INTERNATIONAL CRIMINAL COURT 1998, Article 21

1 The Court shall apply:

Applicable law

(a) In the first place, this Statute, Elements of Crimes and its Rules of Procedure and
Evidence;
(b) In the second place, where appropriate, applicable treaties and the principles and
rules of international law, including the established principles of the international
law of armed conflict;
(c) Failing that, general principles of law derived by the Court from national laws of
legal systems of the world including, as appropriate, the national laws of States
that would normally exercise jurisdiction over the crime, provided that those
principles are not inconsistent with this Statute and with international law and
internationally recognized norms and standards.

2 The Court may apply principles and rules of law as interpreted in its previous decisions.
3 The application and interpretation of law pursuant to this article must be consistent
with internationally recognized human rights, and be without any adverse distinction
founded on grounds such as gender as defined in article 7, paragraph 3, age, race, colour,
language, religion or belief, political or other opinion, national, ethnic or social origin,
wealth, birth or other status.

The Statute of the Court makes detailed provision for the collection of evidence, the rights of the
accused, the conduct of all stages of the case, the applicable law, the appeal process and even sanc-
tions. Those found guilty can be sentenced to imprisonment and will be imprisoned in whichever
State the Court decides (from a list of nominees). On completion of sentence, the convictee will
be returned to his/her home State or a State which agrees to accept him or her. Convictees may
also be subject to fines and forfeiture measures (Article 77). The Statute itself makes clear the
procedures to be followed at every stage of proceedings. Relevant international human rights stan-
dards prevail at all times. Cognisance is also given to various sets of principles and standards gov-
erning criminal trials and detention, as declared by the General Assembly of the United Nations.
The International Criminal Court has concurrent jurisdiction with national courts. States
may elect to prosecute alleged perpetrators under national law, rather than facilitate an interna-
tional investigation.

STATUTE OF THE INTERNATIONAL CRIMINAL COURT 1998, Article 19(2)(b)

2 Challenges to the admissibility of a case on the grounds referred to in article 17 or

challenges to the jurisdiction of the Court may be made by: . . .

(b) A State which has jurisdiction over a case, on the ground that it is investigating or
prosecuting the case or has investigated or prosecuted.
 HUMAN RIGHTS ORGANISATIONS AND KEY INSTITUTIONS | 119

Question
Why may States prove reluctant to permit international investigations, preferring to use national criminal law?
Consider recent examples of apparent crimes which fall within the Statute – which States could prosecute?

The first case, against Thomas Lubanga Dyilo, finally commenced in January 2009 with an initial
judgment in 2012, confirmed on appeal in 2014. His convictions for war crimes of enlisting and
conscripting of children under the age of 15 years and using them to participate actively in hos-
tilities supported 14 years’ imprisonment (currently being served in DR Congo) and reparations,
including collective reparations of ten million USD. Plans for symbolic reparations for the victims
are in process and will be approved through the ICC and draw on the Trust Fund. Ahmad Al Faqi
Al Mahdi was found guilty in 2016, confirmed in appeal in 2018 of the war crime of intention-
ally directing attacks against historic monuments and buildings dedicated to religion in Timbuktu,
Mali. The Court will only try people in person. A number of warrants are outstanding, including
for Omar Hassan Ahmad Al Bashir, President of Sudan from 1989 until ousted in April 2019. His
alleged crimes include war crimes, crimes against humanity and genocide. This case is notable
for being brought against a then serving head of State. The jurisprudence of the Court is already
contributing to international criminal and humanitarian law. Much also can be learned from the
practice of the Office of Prosecutor and the Court as to the practical exercise of the highest stan-
dards of international rights on a fair trial, detention and the rights of the accused.

4.4 The International Labour Organisation

The International Labour Organisation was established in 1919 after the conclusion of the First
World War. Indeed, its constitution is annexed to the Treaty of Versailles. Its original remit was to
address issues of social justice, leaving political and military issues to the League of Nations. The
two organisations were initially viewed as being complementary.

INTERNATIONAL LABOUR ORGANISATION CONSTITUTION 1919, PREAMBLE

Whereas universal and lasting peace can be established only if it is based upon social justice;
And whereas conditions of labour exist involving such injustice hardship and privation to
large numbers of people as to produce unrest so great that the peace and harmony of the world
are imperilled; and an improvement of those conditions is urgently required; as, for example,
by the regulation of the hours of work including the establishment of a maximum working day
and week, the regulation of the labour supply, the prevention of unemployment, the provision
of an adequate living wage, the protection of the worker against sickness, disease and injury
arising out of his employment, the protection of children, young persons and women, provision
for old age and injury, protection of the interests of workers when employed in countries other
than their own, recognition of the principle of equal remuneration for work of equal value,
recognition of the principle of freedom of association, the organization of vocational and
technical education and other measures;
Whereas also the failure of any nation to adopt humane conditions of labour is an obstacle
in the way of other nations which desire to improve the conditions in their own countries;

The International Labour Organisation (ILO) remained, despite the collapse of the League of
Nations. Today it is officially a specialised agency of the United Nations. In furtherance of its
remit, the ILO has adopted a range of conventions and recommendations aimed at standard-setting
international labour law and policy. Its success in setting an agenda for labour standards over the
last century has been remarkable, yet its work is often overlooked in favour of core UN treaties.
120 | HUMAN RIGHTS ORGANISATIONS AND KEY INSTITUTIONS

Swepston, L., ‘The ILO’s System of Human Rights Protection’ in J. Symonides (ed.),
Human Rights: International Protection, Monitoring, Enforcement,
2003, Aldershot: Ashgate/UNESCO, pp 91–109

The ILO was founded before the term ‘human rights’ became current in the international world.
Neither the ILO Constitution nor the other fundamental documents of the Organization use the
term, and the constitution speaks instead of ‘social justice’ as the basis for the ILO’s work. . . .
The concept of ‘social justice’ is wider [than ‘human rights’ as used by the United Nations]. . . .
In addition the ILO’s instruments do not suppose that important human relations exist only
between the State and individuals.

Question
What impact does standard-setting of labour relations have for States? What obligations can be imposed
on States by the international labour codes evinced by the ILO? What effect do such instruments have on
individuals?

CONSTITUTION OF THE INTERNATIONAL LABOUR ORGANISATION 1919, Articles 22, 24, 26

Article 22

Each of the Members agrees to make an annual report to the International Labour Office on the
measures which it has taken to give effect to the provisions of Conventions to which it is a party.
These reports shall be made in such form and shall contain such particulars as the Governing
Body may request.

Article 24

In the event of any representation being made to the International Labour Office by an industrial
association of employers or of workers that any of the Members has failed to secure in any
respect the effective observance within its jurisdiction of any Convention to which it is a party,
the Governing Body may communicate this representation to the government against which
it is made, and may invite that government to make such statement on the subject as it may
think fit.

Article 26

1 Any of the Members shall have the right to file a complaint with the International Labour
Office if it is not satisfied that any other Member is securing the effective observance of
any Convention which both have ratified in accordance with the foregoing articles.
2 The Governing Body may, if it thinks fit, before referring such a complaint to a Commission
of Inquiry, as hereinafter provided for, communicate with the government in question in
the manner described in article 24.
3 If the Governing Body does not think it necessary to communicate the complaint to the
government in question, or if, when it has made such communication, no statement in
reply has been received within a reasonable time which the Governing Body considers to
be satisfactory, the Governing Body may appoint a Commission of Inquiry to consider the
complaint and to report thereon.
4 The Governing Body may adopt the same procedure either of its own motion or on receipt
of a complaint from a delegate to the Conference.
5 When any matter arising out of article 25 or 26 is being considered by the Governing Body,
the government in question shall if not already represented thereon, be entitled to send a
representative to take part in the proceedings of the Governing Body while the matter is
under consideration. Adequate notice of the date on which the matter will be considered
shall be given to the government in question.
 HUMAN RIGHTS ORGANISATIONS AND KEY INSTITUTIONS | 121

One notable feature of the ILO is the composition of its key organs. All have three elements: State
governments, employers’ representatives, employee representatives. States have either one-third
or one-half the voting power in the institution (the exact division depends on the organ). This
means that the ILO is unique in that workers and employers are involved at all levels. It took more
than half a century for the benefits of extending participation in standard-setting to be recognised
by the wider international community – see preceding re the Commission on Human Rights of
the United Nations and Chapter 8 for the role of non-governmental organisations in advancing
international human rights.
In accordance with Article 2 of the Constitution, there are three main organs:

(1) a General Conference of representatives of the Members;

(2) a Governing Body composed as described in Article 7; and
(3) an International Labour Office controlled by the Governing Body.

Note the composition arrangements in the following extracts.

CONSTITUTION OF THE ILO 1919, Article 3

1 The meetings of the General Conference of representatives of the Members shall

be held from time to time as occasion may require, and at least once in every year.
It shall be composed of four representatives of each of the Members, of whom two
shall be Government delegates and the two others shall be delegates representing
respectively the employers and the workpeople of each of the Members.

In terms of Article 4(1), each delegate has one vote; thus States have half the voting power.

ILO CONSTITUTION 1919 (THE GOVERNING BODY), Article 7

1 The Governing Body shall consist of fifty-six persons

• Twenty-eight representing governments,

• Fourteen representing the employers, and
• Fourteen representing the workers.

2 Of the twenty-eight persons representing governments, ten shall be appointed by the

Members of chief industrial importance, and eighteen shall be appointed by the Members
selected for that purpose by the Government delegates to the Conference, excluding the
delegates of the ten Members mentioned above.
3 The Governing Body shall as occasion requires determine which are the Members of
the Organization of chief industrial importance and shall make rules to ensure that all
questions relating to the selection of the Members of chief industrial importance are
considered by an impartial committee before being decided by the Governing Body. Any
appeal made by a Member from the declaration of the Governing Body as to which are the
Members of chief industrial importance shall be decided by the Conference, but an appeal
to the Conference shall not suspend the application of the declaration until such time as
the Conference decides the appeal.
4 The persons representing the employers and the persons representing the workers shall
be elected respectively by the Employers’ delegates and the Workers’ delegates to the
Conference.
5 The period of office of the Governing Body shall be three years. If for any reason the
Governing Body elections do not take place on the expiry of this period, the Governing
Body shall remain in office until such elections are held. . . .
122 | HUMAN RIGHTS ORGANISATIONS AND KEY INSTITUTIONS

7 The Governing Body shall, from time to time, elect from its number a chairman and two
vice-chairmen, of whom one shall be a person representing a government, one a person
representing the employers, and one a person representing the workers.

Question
Evaluate the merits of the innovative work of the ILO, not least in light of the fact it achieves little external
publicity and is often discounted in preference to the principal United Nations human rights mechanisms.
Account for the low profile of the ILO.

Note that another specialised agency of the United Nations, UNESCO, is considered in Chapter
6 as the organisation has established a mechanism for individual complaints.

Further reading
Abebe, A.M., ‘The Role and Future of the Human Rights Council’ in S. Sheeran and N. Rodley (eds),
Routledge Handbook of International Human Rights Law, 2013, London: Routledge.
Alfredsson, G., et al., International Human Rights Monitoring Mechanisms, Essays in Honour of Jakob
Th. Moller, 2nd edn, 2009, The Hague: Brill.
Freedman, R., and Houghton, R., ‘Two Steps Forward, One Step Back: Politicisation of the Human
Rights Council’ (2017) 17 Human Rights Law Review 753.
Kothari, M., ‘From Commission to the Council: Evolution of UN Charter Bodies’ in D. Shelton (ed.),
The Oxford Handbook of International Human Rights Law, 2013, Oxford: OUP.
Mertus, J., The United Nations and Human Rights: A Guide for a New Era, 2009, 2nd edn, Abingdon:
Routledge.
Nowak, M., Introduction to the International Human Rights Regime, 2003, Leiden: Brill/Martinus
Nijhoff (RWI Human Rights Library vol. 14).
Shelton, D., Remedies in International Human Rights Law, 2nd edn, 2005, Oxford: OUP.
Smith, R.K.M., ‘The United Nations Human Rights System’ in M.A. Baderin and M. Ssenyonjo (eds),
International Human Rights Law: Six Decades after the UDHR and Beyond, 2010, Surrey: Ashgate.
Swepston, L., ‘The International Labour Organization’s System of Human Rights Protection’ in J.
Symonides (ed.), Human Rights: International Protection, Monitoring, Enforcement, 2003, Alder-
shot/Burlington, VT: Ashgate/UNESCO, pp. 91–109.
Symonides, J. (ed), Human Rights: International Protection, Monitoring, Enforcement, 2003, Alder-
shot/Burlington, VT: Ashgate/UNESCO.
Tomasevski, K., ‘Sanctions and Human Rights’ in J. Symonides (ed.), Human Rights: International Pro-
tection, Monitoring, Enforcement, 2003, Aldershot/Burlington, VT: Ashgate/UNESCO, pp. 303–323.
Viegas e Silva, M., ‘The United Nations Human Rights Council: Six Years On’ (2013) 10.18 Sur Inter-
national Journal on Human Rights 97.

Websites
www.un.org: United Nations
www.ohchr.org: Office of the High Commissioner for Human Rights
www.icj-cij.org: International Court of Justice
www.icc-cpi.int: International Criminal Court
Chapter 5

Regional human rights organisations and

key institutions 

Chapter contents

5.1 Regional organisations 124

5.2 Europe 125
5.3 The Americas 142
5.4 Africa 144
5.5 Others 144
 
124 | REGIONAL HUMAN RIGHTS ORGANISATIONS AND KEY INSTITUTIONS 

This chapter focuses on the key organisations and institutions which draft and monitor mod-
ern international human rights law. It outlines the institutional framework of those entities with
responsibility for human rights and their organisational capacity for monitoring human rights.
The key regional groupings and organisations which have elected to enact human rights trea-
ties and are active in monitoring human rights compliance are

• Europe, which has the Council of Europe, the European Union and the Organisation for
Security and Cooperation in Europe.
• Africa and the African Union.
• The Americas, with the Organisation of American States.

Human rights do not exist in a vacuum. Inevitably, they are formulated by individuals and States
and they are implemented by States themselves. However, a number of national, regional and inter-
national bodies exercise responsibility for overseeing the monitoring of human rights and ensuring
that States comply with the obligations. The previous chapter focused on the principal international
systems. This chapter will examine the regional systems. Chapter 6 considers the main institutional/
organisational mechanisms for enforcing and monitoring rights, while Chapter 7 focuses on treaty
monitoring bodies – i.e. those courts and committees set up by a human rights treaty to monitor
compliance by States with that particular treaty. This chapter is concerned with the key regional
organisations and institutions which operate regimes of human rights protection. It thus presents the
major regional organisations establishing and maintaining a human rights system.

5.1 Regional organisations

The evolution of regional organisations with responsibility for monitoring human rights compli-
ance is a comparatively new phenomenon, even by the youthful standards of international human
rights law.
The first regional system to develop was in Europe. Its landmark international human rights
instrument, the European Convention on Human Rights 1950, professed a basis in the Universal
Declaration of Human Rights.

EUROPEAN CONVENTION ON HUMAN RIGHTS 1950, Preamble

Considering the Universal Declaration of Human Rights proclaimed by the General Assembly
of the United Nations on 10th December 1948;
Considering that this Declaration aims at securing the universal and effective recognition
and observance of the Rights therein declared;
Considering that the aim of the Council of Europe is the achievement of greater unity
between its members and that one of the methods by which that aim is to be pursued is the
maintenance and further realisation of human rights and fundamental freedoms;
Reaffirming their profound belief in those fundamental freedoms which are the foundation
of justice and peace in the world and are best maintained on the one hand by an effective
political democracy and on the other by a common understanding and observance of the
human rights upon which they depend;
Being resolved, as the governments of European countries which are like-minded and
have a common heritage of political traditions, ideals, freedom and the rule of law, to take
the first steps for the collective enforcement of certain of the rights stated in the Universal
Declaration,

Indeed, almost all subsequent regional human rights instruments, irrespective of their origin, make
similar statements. While this would seem to indicate solidarity among international and regional
 REGIONAL HUMAN RIGHTS ORGANISATIONS AND KEY INSTITUTIONS  | 125

bodies pursuing the goal of protection of international human rights instruments, initially the
concept of regional human rights attracted considerable criticism as it was deemed to be in com-
petition with the embryonic international system.

Question
Is there any merit in the early concerns of the United Nations? Have these concerns proven justified?

Inevitably, as the European and American systems developed and achieved considerable measur-
able successes, the United Nations’ stance perceptibly altered.
Indeed, the United Nations has been proactive in advocating regional international human
rights systems. Success was found in Africa, with the creation of the Organisation of African Unity
and its Charter on Human and Peoples’ Rights. Calls continue to be made for the development of
a regional system in Asia. At present, southeast Asia has a regional grouping which promotes alli-
ances and collaboration in the region with some cognisance of human rights. Note the comments
of Kofi Annan with respect to regional organisations and their relationship to the United Nations.

Kofi Annan, ‘In Larger Freedom, Towards Development, Security

and Human Rights for All’, UN Doc. A/59/2005

213. A considerable number of regional and subregional organizations are now active around
the world, making important contributions to the stability and prosperity of their members,
as well as of the broader international system. The United Nations and regional organizations
should play complementary roles in facing the challenges to international peace and security.
In this connection, donor countries should pay particular attention to the need for a 10-year
plan for capacity-building with the African Union. To improve coordination between the United
Nations and regional organizations, within the framework of the Charter of the United Nations,
I intend to introduce memoranda of understanding between the United Nations and individual
organizations, governing the sharing of information, expertise and resources, as appropriate in
each case. For regional organizations that have a conflict prevention or peacekeeping capacity,
these memoranda of understanding could place those capacities within the framework of the
United Nations Standby Arrangements System.
214. I also intend to invite regional organizations to participate in meetings of United Nations
system coordinating bodies, when issues in which they have a particular interest are discussed.

Three major regional systems operate today, each with an established machinery for monitoring
State compliance with regionally agreed tabulations of international human rights and fundamen-
tal freedoms: Europe, the Americas and Africa. Today, the regional systems are an integral part of
the global effort to secure the protection and promotion of international human rights and funda-
mental freedoms. International opinion now appears to support frequent expansion in the number
of bodies and organisations imbued with responsibility for protecting and enforcing human rights.
The Global Compact extends responsibility to multinational corporations (see Chapter 12).

5.2 Europe
Europe experienced two world wars within 30 years in the last century. The political climate was
conducive to the development of a regime aimed at protecting citizens. Much of the minority pro-
tection regime of the League of Nations was aimed at protecting groups in Europe, mainly in the
newly delineated States which came into existence following the conclusion of the First World War.
After the Second World War, the leaders in Europe looked at developing various regional organisa-
tions with different functions. A Congress of Europe was convened in 1948 and resulted in various
new organisations being established in Europe – the relevant developments are discussed next.
126 | REGIONAL HUMAN RIGHTS ORGANISATIONS AND KEY INSTITUTIONS 

5.2.1 Council of Europe

The Council of Europe is one of the premier organisations with an established system for not only
monitoring international human rights but also ensuring the implementation of human rights.
Human rights have long been at the forefront of the organisation.

STATUTE OF THE COUNCIL OF EUROPE 1949: AIMS, Article 1

a The aim of the Council of Europe is to achieve a greater unity between its members for the
purpose of safeguarding and realising the ideals and principles which are their common
heritage and facilitating their economic and social progress.
b This aim shall be pursued through the organs of the Council by discussion of questions
of common concern and by agreements and common action in economic, social, cultural,
scientific, legal and administrative matters and in the maintenance and further realisation
of human rights and fundamental freedoms.
c Participation in the Council of Europe shall not affect the collaboration of its members in
the work of the United Nations and of other international organisations or unions to which
they are parties.

Note that protection of human rights is a fundamental requirement made by the Council of all
Member States. Those States wishing to join must evidence their compliance with the rule of law
and respect for human rights. Given that the Statute was adopted in May 1949, such a statement was
fairly radical and, arguably, goes further than the comparable requirement of the United Nations.

STATUTE OF THE COUNCIL OF EUROPE 1949, Article 3

Every member of the Council of Europe must accept the principles of the rule of law and of the
enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms,
and collaborate sincerely and effectively in the realisation of the aim of the Council as specified
in Chapter 1.

The following bodies are most involved with human rights: Committee of Ministers, which has
responsibility for the implementation of the judgments of the European Court; the European Com-
missioner on Human Rights; and, established by the European Convention on Human Rights, the
European Court of Human Rights and its Grand Chamber (see Chapter 7, Section 7.2).
The European Court of Human Rights, as it is established in terms of the European Conven-
tion on Human Rights, is discussed in more detail in Chapter 7. The Court is thus treated as a con-
ventional mechanism, being established in terms of, and limited in its powers by, the relevant treaty.
 REGIONAL HUMAN RIGHTS ORGANISATIONS AND KEY INSTITUTIONS  | 127

5.2.1.1 Committee of Ministers

STATUTE OF THE COUNCIL OF EUROPE 1949

Article 13

The Committee of Ministers is the organ which acts on behalf of the Council of Europe in
accordance with Articles 15 and 16.

Article 14

Each member shall be entitled to one representative on the Committee of Ministers, and each
representative shall be entitled to one vote. Representatives on the Committee shall be the
Ministers for Foreign Affairs. When a Minister for Foreign Affairs is unable to be present or in
other circumstances where it may be desirable, an alternate may be nominated to act for him,
who shall, whenever possible, be a member of his government.

Article 15

a On the recommendation of the Consultative Assembly or on its own initiative, the

Committee of Ministers shall consider the action required to further the aim of the Council
of Europe, including the conclusion of conventions or agreements and the adoption by
governments of a common policy with regard to particular matters. Its conclusions shall
be communicated to members by the Secretary-General.
b In appropriate cases, the conclusions of the Committee may take the form of
recommendations to the governments of members, and the Committee may request the
governments of members to inform it of the action taken by them with regard to such
recommendations . . .

Article 17

The Committee of Ministers may set up advisory and technical committees or commissions for
such specific purposes as it may deem desirable. . . .

Article 21

a Unless the Committee decides otherwise, meetings of the Committee of Ministers shall
be held:

i in private, and
ii at the seat of the Council.

b The Committee shall determine what information shall be published regarding the
conclusions and discussions of a meeting held in private.
c The Committee shall meet before and during the beginning of every session of the
Consultative Assembly and at such other times as it may decide.

In terms of human rights, the Committee of Ministers has primary responsibility for ensuring that
the States comply with the judgments of the European Court of Human Rights.

EUROPEAN CONVENTION ON HUMAN RIGHTS 1950, Article 46

1 The High Contracting Parties undertake to abide by the final judgment of the Court in any
case to which they are parties.
2 The final judgment of the Court shall be transmitted to the Committee of Ministers, which
shall supervise its execution.

Moreover, the Committee has the right to ask the Court for an advisory opinion on any legal
question concerning the Convention.
128 | REGIONAL HUMAN RIGHTS ORGANISATIONS AND KEY INSTITUTIONS 

EUROPEAN CONVENTION ON HUMAN RIGHTS 1950, Article 47

1 The Court may, at the request of the Committee of Ministers, give advisory opinions on
legal questions concerning the interpretation of the Convention and the protocols thereto.
2 Such opinions shall not deal with any question relating to the content or scope of the
rights or freedoms defined in Section 1 of the Convention and the protocols thereto, or
with any other question which the Court or the Committee of Ministers might have to
consider in consequence of any such proceedings as could be instituted in accordance
with the Convention.

5.2.1.2 European Commissioner on Human Rights

Note the mandate of the European Commissioner, as specified by the initiating resolution of the
committee of Ministers.

COUNCIL OF EUROPE COMMITTEE OF MINISTERS RESOLUTION 99/50 (1999)

Article 1

1 The Commissioner shall be a non-judicial institution to promote education in, awareness

of and respect for human rights, as embodied in the human rights instruments of the
Council of Europe.
2 The Commissioner shall respect the competence of, and perform functions other than
those fulfilled by, the supervisory bodies set up under the European Convention of
Human Rights or under other human rights instruments of the Council of Europe. The
Commissioner shall not take up individual complaints.

Article 2

The Commissioner shall function independently and impartially.

Article 3

The Commissioner shall:

a. promote education in and awareness of human rights in the member States;
b. contribute to the promotion of the effective observance and full enjoyment of human
rights in the member States;
c. provide advice and information on the protection of human rights and prevention of
human rights violations. When dealing with the public, the Commissioner shall, wherever
possible, make use of and co-operate with human rights structures in the member States.
Where such structures do not exist, the Commissioner will encourage their establishment;
d. facilitate the activities of national ombudsmen or similar institutions in the field of human
rights;
e. identify possible shortcomings in the law and practice of member States concerning the
compliance with human rights as embodied in the instruments of the Council of Europe,
promote the effective implementation of these standards by member States and assist
them, with their agreement, in their efforts to remedy such shortcomings;
f. address, whenever the Commissioner deems it appropriate, a report concerning a
specific matter to the Committee of Ministers or to the Parliamentary Assembly and the
Committee of Ministers;
g. respond, in the manner the Commissioner deems appropriate, to requests made by the
Committee of Ministers or the Parliamentary Assembly, in the context of their task of
ensuring compliance with the human rights standards of the Council of Europe;
h. submit an annual report to the Committee of Ministers and the Parliamentary Assembly;
i. co-operate with other international institutions for the promotion and protection of human
rights while avoiding unnecessary duplication of activities.
 REGIONAL HUMAN RIGHTS ORGANISATIONS AND KEY INSTITUTIONS  | 129

Article 4

The Commissioner shall take into account views expressed by the Committee of Ministers
and the Parliamentary Assembly of the Council of Europe concerning the Commissioner’s
activities.

Article 5

1 The Commissioner may act on any information relevant to the Commissioner’s functions.
This will notably include information addressed to the Commissioner by governments,
national parliaments, national ombudsmen or similar institutions in the field of human
rights, individuals and organisations.
2 The gathering of information relevant to the Commissioner’s functions shall not give rise
to any general reporting system for member States.

Article 6

1 Member States shall facilitate the independent and effective performance by the
Commissioner of his or her functions. In particular, they shall facilitate the Commissioner’s
contacts, including travel, in the context of the mission of the Commissioner and provide
in good time information requested by the Commissioner.
2 The Commissioner shall be entitled, during the exercise of his or her functions, to the
privileges and immunities provided for in Article 40 of the Statute of the Council of Europe
and in the agreements made thereunder.

Article 7

The Commissioner may directly contact governments of member States of the Council of
Europe.

Article 8

1 The Commissioner may issue recommendations, opinions and reports.

2 The Committee of Ministers may authorise the publication of any recommendation,
opinion or report addressed to it.

On 24 January 2018, Dunja Mijatović was elected by the Parliamentary Assembly of the
Council of Europe to serve as the Council’s Commissioner on Human Rights for a non-renewable
term of six years. She took up her new post on 1 April 2018.

5.2.1.3 European Committee of Social Rights

Mention must also be made of the European Committee of Social Rights which oversees the
implementation of the European Social Charter by a system of reports. The following extract
details the bodies involved in reviewing State reports. Note that the text of the Charter has been
subject to additional protocols and was completely revised and reopened for signature in 1996. The
Social Charter embodies many rights and freedoms excluded from the European Convention in
1950, including education, employment, child welfare, etc.

EUROPEAN SOCIAL CHARTER 1961

Article 25 – Committee of Experts

1 The Committee of Experts shall consist of not more than seven members appointed by the
Committee of Ministers from a list of independent experts of the highest integrity and of
recognised competence in international social questions, nominated by the Contracting
Parties.
130 | REGIONAL HUMAN RIGHTS ORGANISATIONS AND KEY INSTITUTIONS 

2 The members of the committee shall be appointed for a period of six years. They may be
reappointed. However, of the members first appointed, the terms of office of two members
shall expire at the end of four years.
3 The members whose terms of office are to expire at the end of the initial period of four
years shall be chosen by lot by the Committee of Ministers immediately after the first
appointment has been made.
4 A member of the Committee of Experts appointed to replace a member whose term of
office has not expired shall hold office for the remainder of his predecessor’s term.

Article 26 – Participation of the International Labour Organisation

The International Labour Organisation shall be invited to nominate a representative to

participate in a consultative capacity in the deliberations of the Committee of Experts.

Article 27 – Sub-committee of the Governmental Social Committee

1 The reports of the Contracting Parties and the conclusions of the Committee of Experts
shall be submitted for examination to a sub-committee of the Governmental Social
Committee of the Council of Europe.
2 The sub-committee shall be composed of one representative of each of the Contracting
Parties. It shall invite no more than two international organisations of employers and no
more than two international trade union organisations as it may designate to be represented
as observers in a consultative capacity at its meetings. Moreover, it may consult no
more than two representatives of international non-governmental organisations having
consultative status with the Council of Europe, in respect of questions with which the
organisations are particularly qualified to deal, such as social welfare, and the economic
and social protection of the family.
3 The sub-committee shall present to the Committee of Ministers a report containing its
conclusions and append the report of the Committee of Experts.

Article 28 – Consultative Assembly

The Secretary-General of the Council of Europe shall transmit to the Consultative Assembly
the conclusions of the Committee of Experts. The Consultative Assembly shall communicate
its views on these conclusions to the Committee of Ministers.

Article 29 – Committee of Ministers

By a majority of two-thirds of the members entitled to sit on the Committee, the Committee
of Ministers may, on the basis of the report of the sub-committee, and after consultation with
the Consultative Assembly, make to each Contracting Party any necessary recommendations.

An additional protocol on collective complaints was adopted in 1995. Provision is made in the
revised Social Charter for its continuance, pursuant to States’ approval.

ADDITIONAL PROTOCOL TO THE EUROPEAN SOCIAL CHARTER PROVIDING

FOR A SYSTEM ON COLLECTIVE COMPLAINTS 1998

Article 1

The Contracting Parties to this Protocol recognise the right of the following organisations to
submit complaints alleging unsatisfactory application of the Charter:

a international organisations of employers and trade unions referred to in paragraph 2 of

Article 27 of the Charter;
b other international non-governmental organisations which have consultative status with
the Council of Europe and have been put on a list established for this purpose by the
Governmental Committee;
 REGIONAL HUMAN RIGHTS ORGANISATIONS AND KEY INSTITUTIONS  | 131

c representative national organisations of employers and trade unions within the jurisdiction
of the Contracting Party against which they have lodged a complaint.

Article 2

1 Any Contracting State may also, when it expresses its consent to be bound by this Protocol,
in accordance with the provisions of Article 13, or at any moment thereafter, declare that it
recognises the right of any other representative national non-governmental organisation
within its jurisdiction which has particular competence in the matters governed by the
Charter, to lodge complaints against it.
2 Such declarations may be made for a specific period.
3 The declarations shall be deposited with the Secretary-General of the Council of Europe
who shall transmit copies thereof to the Contracting Parties and publish them.

Article 3

The international non-governmental organisations and the national non-governmental organisations

referred to in Article 1.b and Article 2 respectively may submit complaints in accordance with the
procedure prescribed by the aforesaid provisions only in respect of those matters regarding which
they have been recognised as having particular competence. . . .

Article 10

The Contracting Party concerned shall provide information on the measures it has taken to give
effect to the Committee of Ministers’ recommendation, in the next report which it submits to
the Secretary-General under Article 21 of the Charter.

5.2.2 Organisation of Security and Cooperation in Europe

The Organisation of Security and Cooperation in Europe was established as a permanent dip-
lomatic conference (CSCE) to maintain peace and stability in Europe at a time the region was
fractured ideologically with the Soviet/Communist bloc in the Eastern areas. It was one of the
major political achievements of the Cold War era. Not only did States from both sides of the Iron
Curtain sit down together to discuss common aims, but human rights was high on the agenda
from the outset. Admittedly, many areas of crucial importance reflecting a partial détente were also
included – prior notification of military manoeuvres, for example. With some 56 Member States,
it is one of the most geographically widespread of Europe’s regional systems, though note that
Canada and the USA (key members of NATO) are also members.

Final Recommendations of the Helsinki Consultations 1973, para 19

The reaffirmation, with such clarifications and additions as may be deemed desirable, and the
precise statement, in conformity with the purposes and principles of the United Nations, of the
following principles of primary significance guiding the mutual relations of the participating
States, are deemed to be of particular importance:

• sovereign equality, respect for the rights inherent in sovereignty;

• refraining from the threat or use of force;
• inviolability of frontiers;
• territorial integrity of States;
• peaceful settlement of disputes;
• non-intervention in internal affairs;
• respect for human rights and fundamental freedoms, including the freedom of thought,
conscience, religion or belief;
• equal rights and self-determination of peoples;
132 | REGIONAL HUMAN RIGHTS ORGANISATIONS AND KEY INSTITUTIONS 

• co-operation among States;

• fulfilment in good faith of obligations under international law.

The importance of respect for human rights has always informed the work of the OSCE. Its work
on human rights in the early years was primarily rhetorical but clearly influenced by the UN
Charter and the International Bill of Rights. The following extract elaborates on the importance
of respect for human rights.

FINAL ACT OF THE HELSINKI CONFERENCE ON SECURITY AND COOPERATION

IN EUROPE 1975

VII. Respect for human rights and fundamental freedoms, including the freedom of thought,
conscience, religion or belief

The participating States will respect human rights and fundamental freedoms, including the
freedom of thought, conscience, religion or belief, for all without distinction as to race, sex,
language or religion.
They will promote and encourage the effective exercise of civil, political, economic, social,
cultural and other rights and freedoms all of which derive from the inherent dignity of the
human person and are essential for his free and full development.
Within this framework the participating States will recognize and respect the freedom of
the individual to profess and practice, alone or in community with others, religion or belief act-
ing in accordance with the dictates of his own conscience.
The participating States on whose territory national minorities exist will respect the right
of persons belonging to such minorities to equality before the law, will afford them the full
opportunity for the actual enjoyment of human rights and fundamental freedoms and will, in
this manner, protect their legitimate interests in this sphere.
The participating States recognize the universal significance of human rights and fundamental
freedoms, respect for which is an essential factor for the peace, justice and well-being necessary
to ensure the development of friendly relations and co-operation among themselves as among
all States.
They will constantly respect these rights and freedoms in their mutual relations and will
endeavour jointly and separately, including in co-operation with the United Nations, to promote
universal and effective respect for them.
They confirm the right of the individual to know and act upon his rights and duties in this field.
In the field of human rights and fundamental freedoms, the participating States will act in
conformity with the purposes and principles of the Charter of the United Nations and with the
Universal Declaration of Human Rights. They will also fulfil their obligations as set forth in the
international declarations and agreements in this field, including inter alia the International
Covenants on Human Rights, by which they may be bound.

VIII. Equal rights and self-determination of peoples

The participating States will respect the equal rights of peoples and their right to selfdetermination,
acting at all times in conformity with the purposes and principles of the Charter of the United
Nations and with the relevant norms of international law, including those relating to territorial
integrity of States.
By virtue of the principle of equal rights and self-determination of peoples, all peoples
always have the right, in full freedom, to determine, when and as they wish, their internal
and external political status, without external interference, and to pursue as they wish their
political, economic, social and cultural development.
The participating States reaffirm the universal significance of respect for and effective
exercise of equal rights and self-determination of peoples for the development of friendly
 REGIONAL HUMAN RIGHTS ORGANISATIONS AND KEY INSTITUTIONS  | 133

relations among themselves as among all States; they also recall the importance of the
elimination of any form of violation of this principle.

As a result of this Final Act, many eastern and central European countries established a form of
‘Helsinki Committee’ which, in each State, called for observance of the Helsinki principles, not
least human rights.

Nowak, M., Introduction to the International Human Rights Regime, 2003,

Leiden: Brill/Martinus Nijhoff, p 215

They [Helsinki Committees] called for observance of the CSCE obligations with regards to
human rights and soon became the nucleus of a civil society that ultimately triggered the ‘velvet
revolutions’ of 1989. The CSCE was a catalyst in the historic process.

Many of the CSCE meetings were primarily dialogue and not necessarily constructive dialogue
given the political tensions between the two principal ‘blocs’, and the all-too-frequent posturing
for confrontations (e.g. Soviet invasion of Afghanistan; Iran/Iraq wars; ‘arms’ race).
Further elaboration of the ‘human dimension’, however, appears in the text of the Copen-
hagen meeting a decade later. Note the emphasis on human rights. The ‘Human Dimension’ was
first established in 1989 by the Vienna Concluding Document, but it is the Copenhagen Docu-
ment which is the paramount source thereof.

Question
Is the year 1990 instructive in explaining why such a reinforcement of human rights was possible? (Think of
the contemporaneous European history.)

DOCUMENT ON THE COPENHAGEN MEETING OF THE CONFERENCE ON

HUMAN DIMENSION OF THE CSCE 1990, paras 1–5

(1) The participating States express their conviction that the protection and promotion of
human rights and fundamental freedoms is one of the basic purposes of government, and
reaffirm that the recognition of these rights and freedoms constitutes the foundation of
freedom, justice and peace.
(2) They are determined to support and advance those principles of justice which form the
basis of the rule of law. They consider that the rule of law does not mean merely a formal
legality which assures regularity and consistency in the achievement and enforcement of
democratic order, but justice based on the recognition and full acceptance of the supreme
value of the human personality and guaranteed by institutions providing a framework for
its fullest expression.
(3) They reaffirm that democracy is an inherent element of the rule of law. They recognize the
importance of pluralism with regard to political organizations.
(4) They confirm that they will respect each other’s right freely to choose and develop, in
accordance with international human rights standards, their political, social, economic
and cultural systems. In exercising this right, they will ensure that their laws, regulations,
practices and policies conform with their obligations under international law and are
brought into harmony with the provisions of the Declaration on Principles and other CSCE
commitments.
(5) They solemnly declare that among those elements of justice which are essential to the
full expression of the inherent dignity and of the equal and inalienable rights of all human
beings are the following:

(5.1) – free elections that will be held at reasonable intervals by secret ballot or by equiva-
lent free voting procedure, under conditions which ensure in practice the free ex-
pression of the opinion of the electors in the choice of their representatives;
134 | REGIONAL HUMAN RIGHTS ORGANISATIONS AND KEY INSTITUTIONS 

(5.2) – a form of government that is representative in character, in which the executive is

accountable to the elected legislature or the electorate;
(5.3) – the duty of the government and public authorities to comply with the constitution
and to act in a manner consistent with law;
(5.4) – a clear separation between the State and political parties; in particular, political
parties will not be merged with the State;
(5.5) – the activity of the government and the administration as well as that of the judiciary
will be exercised in accordance with the system established by law. Respect for that
system must be ensured;
(5.6) – military forces and the police will be under the control of, and accountable to, the
civil authorities;
(5.7) – human rights and fundamental freedoms will be guaranteed by law and in accor-
dance with their obligations under international law;
(5.8) – legislation, adopted at the end of a public procedure, and regulations will be pub-
lished, that being the condition for their applicability. Those texts will be accessible
to everyone;
(5.9) – all persons are equal before the law and are entitled without any discrimination to
the equal protection of the law. In this respect, the law will prohibit any discrimina-
tion and guarantee to all persons equal and effective protection against discrimina-
tion on any ground;
(5.10) – everyone will have an effective means of redress against administrative decisions,
so as to guarantee respect for fundamental rights and ensure legal integrity;
(5.11) – administrative decisions against a person must be fully justifiable and must as a
rule indicate the usual remedies available;
(5.12) – the independence of judges and the impartial operation of the public judicial ser-
vice will be ensured;
(5.13) – the independence of legal practitioners will be recognized and protected, in par-
ticular as regards conditions for recruitment and practice;
(5.14) – the rules relating to criminal procedure will contain a clear definition of powers in
relation to prosecution and the measures preceding and accompanying prosecution;
(5.15) – any person arrested or detained on a criminal charge will have the right, so that
the lawfulness of his arrest or detention can be decided, to be brought promptly be-
fore a judge or other officer authorized by law to exercise this function;
(5.16) – in the determination of any criminal charge against him, or of his rights and ob-
ligations in a suit at law, everyone will be entitled to a fair and public hearing by a
competent, independent and impartial tribunal established by law;
(5.17) – any person prosecuted will have the right to defend himself in person or through
prompt legal assistance of his own choosing or, if he does not have sufficient means
to pay for legal assistance, to be given it free when the interests of justice so require;
(5.18) – no one will be charged with, tried for or convicted of any criminal offence unless
the offence is provided for by a law which defines the elements of the offence with
clarity and precision;
(5.19) – everyone will be presumed innocent until proved guilty according to law;
(5.20) – considering the important contribution of international instruments in the field of
human rights to the rule of law at a national level, the participating States reaffirm
that they will consider acceding to the International Covenant on Civil and Politi-
cal Rights, the International Covenant on Economic, Social and Cultural Rights and
other relevant international instruments, if they have not yet done so;
(5.21) – in order to supplement domestic remedies and better to ensure that the partici-
pating States respect the international obligations they have undertaken, the participat-
ing States will consider acceding to a regional or global international convention
concerning the protection of human rights, such as the European Convention on
 REGIONAL HUMAN RIGHTS ORGANISATIONS AND KEY INSTITUTIONS  | 135

Human Rights or the Optional Protocol to the International Covenant on Civil and
Political Rights, which provide for procedures of individual recourse to international
bodies.

In 1990, the heads of State of the Member States effectively declared the Cold War over. They
proclaimed a ‘new era of democracy, peace and unity’ with an emphasis on the rule of law and
human rights. The following extract is from that historic document:

CHARTER OF PARIS FOR A NEW EUROPE 1990

Human Rights, Democracy and Rule of Law

We undertake to build, consolidate and strengthen democracy as the only system of government
of our nations. In this endeavour, we will abide by the following:
Human rights and fundamental freedoms are the birthright of all human beings, are
inalienable and are guaranteed by law. Their protection and promotion is the first responsibility
of government.
Respect for them is an essential safeguard against an over-mighty State. Their observance
and full exercise are the foundation of freedom, justice and peace.
Democratic government is based on the will of the people, expressed regularly through
free and fair elections. Democracy has as its foundation respect for the human person and the
rule of law. Democracy is the best safeguard of freedom of expression, tolerance of all groups
of society, and equality of opportunity for each person.
Democracy, with its representative and pluralist character, entails accountability to the
electorate, the obligation of public authorities to comply with the law and justice administered
impartially. No one will be above the law.
We affirm that, without discrimination,

every individual has the right to freedom of thought, conscience and religion or belief,
freedom of expression,
freedom of association and peaceful assembly, freedom of movement; no one will be:
subject to arbitrary arrest or detention,
subject to torture or other cruel, inhuman or degrading treatment or punishment;
everyone also has the right:
to know and act upon his rights,
to participate in free and fair elections,
to fair and public trial if charged with an offence.
to own property alone or in association and to exercise individual enterprise, to enjoy his
economic, social and cultural rights.

We affirm that the ethnic, cultural, linguistic and religious identity of national minorities
will be protected and that persons belonging to national minorities have the right freely to
express, preserve and develop that identity without any discrimination and in full equality
before the law.
We will ensure that everyone will enjoy recourse to effective remedies, national or
international, against any violation of his rights.
Full respect for these precepts is the bedrock on which we will seek to construct the new
Europe.
Our States will co-operate and support each other with the aim of making democratic
gains irreversible.

The Human Dimension of the OSCE, despite some concerns as to how it differs from the Council
of Europe (outlined earlier), has burgeoned into an active system for promoting human rights and
136 | REGIONAL HUMAN RIGHTS ORGANISATIONS AND KEY INSTITUTIONS 

advancing democracy and minority rights in Europe. The following diagram schematically repre-
sents the main bodies involved with human rights.

5.2.2.1 Office for Democratic Institutions and Human Rights

The Office for Democratic Institutions and Human Rights is a specialised institution of the OSCE
dealing with various issues of concern to human rights. It oversees the democratisation of States,
assisting in electoral reform and monitoring electoral processes. It assists States in developing
appropriate mechanisms for implementing human rights and anti-terrorism obligations and all
elements of the human dimension of the OSCE (see Section 5.2.2). Concerning specific groups
of concern to the OSCE, the Office also acts as the main focal point of integrationist activities for
the Sinti and Roma peoples.

5.2.2.2 Representative on Freedom of the Media

Elements of human rights are also addressed by the Representative on Freedom of the Media.

PERMANENT COUNCIL DECISION NO. 193, paras 2 and 3

2. Based on OSCE principles and commitments, the OSCE Representative on Freedom of

the Media will observe relevant media developments in all participating States and will, on
this basis, and in close co-ordination with the Chairman-in-Office, advocate and promote full
compliance with OSCE principles and commitments regarding freedom of expression and free
media. In this respect he or she will assume an early-warning function. He or she will address
serious problems caused by, inter alia, obstruction of media activities and unfavourable working
conditions for journalists. He or she will closely co-operate with the participating States, the
Permanent Council, the Office for Democratic Institutions and Human Rights (ODIHR), the High
Commissioner on National Minorities and, where appropriate, other OSCE bodies, as well as
with national and international media associations.
3. The OSCE Representative on Freedom of the Media will concentrate, as outlined in
this paragraph, on rapid response to serious non-compliance with OSCE principles and
commitments by participating States in respect of freedom of expression and free media. In
the case of an allegation of serious non-compliance therewith, the OSCE Representative on
Freedom of the Media will seek direct contacts, in an appropriate manner, with the participating
 REGIONAL HUMAN RIGHTS ORGANISATIONS AND KEY INSTITUTIONS  | 137

State and with other parties concerned, assess the facts, assist the participating State, and
contribute to the resolution of the issue. He or she will keep the Chairman-in-Office informed
about his or her activities and report to the Permanent Council on their results, and on his or
her observations and recommendations.

Some of the successes of the Representative to date have been in Turkey, Belarus, Georgia,
Kazakhstan and Romania. The focus is on promoting freedom of expression and thus preventing/
limiting unnecessary persecutions of journalists and serious defamation actions (resulting in penal
detention).

5.2.2.3 High Commissioner on National Minorities

The High Commissioner’s role is to provide early warning and take appropriate early action to
diffuse national tensions and assist preventing the escalating of tension. His mandate is drawn from
the Helsinki Document of 1992. Extracts follow.

CSCE HELSINKI DOCUMENT 1992, The Challenges of Change

CSCE HIGH COMMISSIONER ON NATIONAL MINORITIES

(1) The participating States decide to establish a High Commissioner on National Minorities.

Mandate
(2) The High Commissioner will act under the aegis of the CSO and will thus be an instrument
of conflict prevention at the earliest possible stage.
(3) The High Commissioner will provide ‘early warning’ and, as appropriate, ‘early action’ at
the earliest possible stage in regard to tensions involving national minority issues which
have not yet developed beyond an early warning stage, but, in the judgement of the High
Commissioner, have the potential to develop into a conflict within the CSCE area, affecting
peace, stability or relations between participating States, requiring the attention of and
action by the Council or the CSO.
(4) Within the mandate, based on CSCE principles and commitments, the High Commissioner will
work in confidence and will act independently of all parties directly involved in the tensions.
(5a) The High Commissioner will consider national minority issues occurring in the State of
which the High Commissioner is a national or a resident, or involving a national minority to
which the High Commissioner belongs, only if all parties directly involved agree, including
the State concerned.
(5b) The High Commissioner will not consider national minority issues in situations involving
organized acts of terrorism.
(5c) Nor will the High Commissioner consider violations of CSCE commitments with regard to
an individual person belonging to a national minority.
(6) In considering a situation, the High Commissioner will take fully into account the
availability of democratic means and international instruments to respond to it, and their
utilization by the parties involved.
(7) When a particular national minority issue has been brought to the attention of the CSO,
the involvement of the High Commissioner will require a request and a specific mandate
from the CSO.

Profile, appointment, support

(8) The High Commissioner will be an eminent international personality with longstanding
relevant experience from whom an impartial performance of the function may be expected.
(9) The High Commissioner will be appointed by the Council by consensus upon the
recommendation of the CSO for a period of three years, which may be extended for one
further term of three years only.
138 | REGIONAL HUMAN RIGHTS ORGANISATIONS AND KEY INSTITUTIONS 

(10) The High Commissioner will draw upon the facilities of the ODIHR in Warsaw, and in
particular upon the information relevant to all aspects of national minority questions
available at the ODIHR.
(11) The High Commissioner will:

Early warning
(11a) collect and receive information regarding national minority issues from sources
described below (see Supplement paragraphs (23) – (25));
(11b) assess at the earliest possible stage the role of the parties directly concerned, the nature
of the tensions and recent developments therein and, where possible, the potential
consequences for peace and stability within the CSCE area;
(11c) to this end, be able to pay a visit, in accordance with paragraph (17) and Supplement
paragraphs (27) – (30), to any participating State and communicate in person, subject
to the provisions of paragraph (25), with parties directly concerned to obtain first-hand
information about the situation of national minorities.
(12) The High Commissioner may during a visit to a participating State, while obtaining
firsthand information from all parties directly involved, discuss the questions with the
parties, and where appropriate promote dialogue, confidence and co-operation between
them.

Provision of early warning

(13) If, on the basis of exchanges of communications and contacts with relevant parties, the
High Commissioner concludes that there is a prima facie risk of potential conflict (as set
out in paragraph (3)) he/she may issue an early warning, which will be communicated
promptly by the Chairman-in-Office to the CSO.
(14) The Chairman-in-Office will include this early warning in the agenda for the next meeting
of the CSO. If a State believes that such an early warning merits prompt consultation, it
may initiate the procedure set out in Annex 2 of the Summary of Conclusions of the Berlin
Meeting of the Council (‘Emergency Mechanism’).
(15) The High Commissioner will explain to the CSO the reasons for issuing the early warning.

Early action
(16) The High Commissioner may recommend that he/she be authorized to enter into further
contact and closer consultations with the parties concerned with a view to possible solutions,
according to a mandate to be decided by the CSO. The CSO may decide accordingly.

Accountability
(17) The High Commissioner will consult the Chairman-in-Office prior to a departure for a
participating State to address a tension involving national minorities. The Chairman-in-
Office will consult, in confidence, the participating State(s) concerned and may consult
more widely.
(18) After a visit to a participating State, the High Commissioner will provide strictly
confidential reports to the Chairman-in-Office on the findings and progress of the High
Commissioner’s involvement in a particular question.
(19) After termination of the involvement of the High Commissioner in a particular issue,
the High Commissioner will report to the Chairman-in-Office on the findings, results
and conclusions. Within a period of one month, the Chairman-in-Office will consult, in
confidence, on the findings, results and conclusions the participating State(s) concerned
and may consult more widely. Thereafter the report, together with possible comments,
will be transmitted to the CSO.

The HCNM has mediated regularly on minority issues in specific States. It has also undertaken
cross-OSCE studies on Sinti/Roma peoples, a minority issue of great concern in many countries.
 REGIONAL HUMAN RIGHTS ORGANISATIONS AND KEY INSTITUTIONS  | 139

Question
How effective is the system likely to be? What are its advantages?

5.2.2.4 Field activities

The OSCE undertakes a wide variety of field activities in furtherance of its key objectives. It runs
many field offices throughout eastern and central Europe. Its largest operations were established in
the former Yugoslavia as the region’s established government lost control, new States emerged and
the need to promote observance of the rule of law and basic human rights was only too apparent.

5.2.3 European Union

While the initial objective of the European Union was to rebuild the decimated economies of
the region (European Coal and Steel Community, European Economic Community, European
Atomic Energy Community), as the communities developed, ever more areas encroached upon
their competencies. Today, the new European Union enjoys a wide range of responsibilities and
competencies. Alongside this has developed recognition of the importance of human rights.
Indeed the European Union now has agreed a Charter of Fundamental Rights which reaffirms
the organisation’s commitment to universal human rights.
The European Union has five main institutions, four of which (see diagram) are involved with
elements of human rights (the Court of Auditors is omitted). Decision-making in the European
Union is undertaken by the Council, Commission and Parliament. The Court has the power to
consider actions against all three institutions in certain circumstances. The Court also has compe-
tency to hear certain actions brought by the Commission against States failing to correctly imple-
ment Community law and can hear certain individual actions (usually staff cases). In addition, the
Court has an advisory jurisdiction (preliminary rulings) and can assist national courts in interpret-
ing and applying Community law. For further information the composition of the aforementioned
bodies and certain elements of procedures, regard should be had to the consolidated version of the
Treaty on the Functioning of the European Union, which incorporates the changes effected by
the Treaty of Lisbon. This consolidated version was published in 2010. Partially as a consequence
of economic events, there continues to be debate on a number of issues relevant to the future of
the Union.
140 | REGIONAL HUMAN RIGHTS ORGANISATIONS AND KEY INSTITUTIONS 

With a primarily economic remit, most of the ‘human rights’ impact of the Union is in the
area of discrimination, particularly in employment. However, the Union has contributed consider-
ably to the concept of sex discrimination, discrimination on national origin and associated rights.
In this respect, there may occasionally be an overlap (reinforcement) of the work of the Interna-
tional Labour Organisation.
Note Protocol 14’s alteration to Article 59 of European Convention on Human Rights.

ARTICLE 59 (2) EUROPEAN CONVENTION ON HUMAN RIGHTS AS AMENDED BY PROTOCOL 14

2 The European Union may accede to this Convention.

This clarifies a long-running academic debate on whether or not accession is possible.

Negotiations on the process and procedures are ongoing.
Irrespective of the status of the Council of Europe’s European Convention under
the jurisdiction of the European Court of Justice and the European Union, considerable
advancements have been made towards securing human rights within the Union. The
Fundamental Charter on Rights was adopted at the Nice Summit and now forms part of the
overall constitution of the European Union. With a proclaimed goal of guiding the institutions of
the Union, the impact of the Charter will nevertheless be felt.

5.2.3.1 European Union Fundamental Rights Agency

Council Regulation 168/2007 established the European Union Agency for Fundamental Rights.
To avoid unnecessary duplication of work, the Agency works closely with the Council of Europe
and other bodies and organisations.

EC COUNCIL REGULATION 168/2007

Article 2

Objective
The objective of the Agency shall be to provide the relevant institutions, bodies, offices and
agencies of the Community and its Member States when implementing Community law with
assistance and expertise relating to fundamental rights in order to support them when they
take measures or formulate courses of action within their respective spheres of competence to
fully respect fundamental rights.

Article 3

Scope
1 The Agency shall carry out its tasks for the purpose of meeting the objective set in Article 2
within the competencies of the Community as laid down in the Treaty establishing the
European Community.
2 The Agency shall refer in carrying out its tasks to fundamental rights as defined in Article
6(2) of the Treaty on European Union.
3 The Agency shall deal with fundamental-rights issues in the European Union and in its
Member States when implementing Community law.

Article 4

Tasks
1 To meet the objective set in Article 2 and within its competences laid down in Article 3, the
Agency shall:

(a) collect, record, analyse and disseminate relevant, objective, reliable and
comparable information and data, including results from research and monitoring
 REGIONAL HUMAN RIGHTS ORGANISATIONS AND KEY INSTITUTIONS  | 141

communicated to it by Member States, Union institutions as well as bodies, offices

and agencies of the Community and the Union, research centres, national bodies,
non-governmental organisations, third countries and international organisations
and in particular by the competent bodies of the Council of Europe;
(b) develop methods and standards to improve the comparability, objectivity and
reliability of data at European level, in cooperation with the Commission and the
Member States;
(c) carry out, cooperate with or encourage scientific research and surveys, preparatory
studies and feasibility studies, including, where appropriate and compatible with
its priorities and its annual work programme, at the request of the European
Parliament, the Council or the Commission;
(d) formulate and publish conclusions and opinions on specific thematic topics, for
the Union institutions and the Member States when implementing Community law,
either on its own initiative or at the request of the European Parliament, the Council
or the Commission;
(e) publish an annual report on fundamental-rights issues covered by the areas of the
Agency’s activity, also highlighting examples of good practice;
(f) publish thematic reports based on its analysis, research and surveys;
(g) publish an annual report on its activities; and
(h) develop a communication strategy and promote dialogue with civil society, in
order to raise public awareness of fundamental rights and actively disseminate
information about its work.

2 The conclusions, opinions and reports referred to in paragraph 1 may concern proposals
from the Commission under Article 250 of the Treaty or positions taken by the institutions
in the course of legislative procedures only where a request by the respective institution
has been made in accordance with paragraph 1(d). They shall not deal with the legality
of acts within the meaning of Article 230 of the Treaty or with the question of whether a
Member State has failed to fulfil an obligation under the Treaty within the meaning of
Article 226 of the Treaty.

CHAPTER 2

WORKING METHODS AND COOPERATION

Article 6

Working methods
1 In order to ensure the provision of objective, reliable and comparable information, the Agency
shall, drawing on the expertise of a variety of organisations and bodies in each Member State
and taking account of the need to involve national authorities in the collection of data:

(a) set up and coordinate information networks and use existing networks;
(b) organise meetings of external experts; and
(c) whenever necessary, set up ad hoc working parties.

2 In pursuing its activities, the Agency shall, in order to achieve complementarity and guarantee
the best possible use of resources, take account, where appropriate, of information collected
and of activities undertaken, in particular by:

(a) Union institutions and bodies, offices and agencies of the Community and the
Union, and bodies, offices and agencies of the Member States;
(b) the Council of Europe, by referring to the findings and activities of the Council
of Europe’s monitoring and control mechanisms and of the Council of Europe
Commissioner for Human Rights; and
142 | REGIONAL HUMAN RIGHTS ORGANISATIONS AND KEY INSTITUTIONS 

(c) the Organisation for Security and Cooperation in Europe (OSCE), the United Nations
and other international organisations.

3 The Agency may enter into contractual relations, in particular subcontracting arrangements,
with other organisations, in order to accomplish any tasks which it may entrust to them.
The Agency may also award grants to promote appropriate cooperation and joint ventures,
in particular to national and international organisations as referred to in Articles 8 and 9.

Article 9

Cooperation with the Council of Europe

In order to avoid duplication and in order to ensure complementarity and added value, the
Agency shall coordinate its activities with those of the Council of Europe, particularly with
regard to its Annual Work Programme pursuant to Article 12(6)(a) and cooperation with civil
society in accordance with Article 10. To that end, the Community shall, in accordance with the
procedure provided for in Article 300 of the Treaty, enter into an agreement with the Council of
Europe for the purpose of establishing close cooperation between the latter and the Agency.
This agreement shall include the appointment of an independent person by the Council of
Europe, to sit on the Agency’s Management Board and on its Executive Board, in accordance
with Articles 12 and 13.

Article 10

Cooperation with civil society; Fundamental Rights Platform

1 The Agency shall closely cooperate with non-governmental organisations and with
institutions of civil society, active in the field of fundamental rights including the
combating of racism and xenophobia at national, European or international level. To that
end, the Agency shall establish a cooperation network (Fundamental Rights Platform),
composed of non-governmental organisations dealing with human rights, trade unions
and employer’s organisations, relevant social and professional organisations, churches,
religious, philosophical and non-confessional organisations, universities and other
qualified experts of European and international bodies and organisations.
2 The Fundamental Rights Platform shall constitute a mechanism for the exchange of
information and pooling of knowledge. It shall ensure close cooperation between the
Agency and relevant stakeholders.
3 The Fundamental Rights Platform shall be open to all interested and qualified
stakeholders in accordance with paragraph 1. The Agency may address the members
of the Fundamental Rights Platform in accordance with specific needs related to areas
identified as a priority for the Agency’s work.

The Agency is based on the European Monitoring Centre on Racism and Xenophobia. As the
preceding extract explains, the primary task of the new body is to advise the Community and its
Member States on fundamental rights. The rights are those contained in the EU Charter of Fun-
damental Rights. Although the Agency can provide advice and support, it has no power to receive
or consider individual complaints or monitor compliance of Member States with the Charter.

5.3 The Americas

5.3.1 Organisation of American States
Much of the human rights work of the Organisation of American States is undertaken by insti-
tutions established to oversee the Inter-American Convention on Human Rights. These are
 REGIONAL HUMAN RIGHTS ORGANISATIONS AND KEY INSTITUTIONS  | 143

discussed in Chapter 7. However, other bodies have roles which impact, at times significantly, on
human rights. Most notable is the Inter-American Commission on Human Rights.

5.3.1.1 Inter-American Commission on Human Rights

The Inter-American Commission operates independently of the American Convention on
Human Rights. However the Commission also has responsibilities under the Convention. This
gives rise to dual jurisdiction, almost overlapping, albeit complementary, functions. However, it
also extends the protection of human rights beyond those States which have accepted the Ameri-
can Convention and, indeed, the distinct category within that of those States which have accepted
the compulsory jurisdiction of the Court. The potential for individual petitions through to the
Court, as a treaty-based mechanism, is discussed in Chapter 7.
The United States of America has not accepted the jurisdiction of the Inter-American Court
to hear complaints of violations of human rights. However, as the country is a member of the
Organisation, the Commission has jurisdiction to investigate abuses of human rights, albeit pri-
marily in accordance with the general American Declaration on the Rights and Duties of Man.
See, for example, Mary and Carrie Dann v United States of America, Report No 75/02 (2002)
whereby the petitioners claimed that various rights under the American Declaration on the Rights
and Duties of Man had been infringed.

The preceding diagram outlines the procedure for bringing a complaint before the Inter-
American Commission (see also Chapter 7).
144 | REGIONAL HUMAN RIGHTS ORGANISATIONS AND KEY INSTITUTIONS 

5.4 Africa
5.4.1 African Union
The African Union was launched by the 2002 Durban Summit of the then Organisation of Afri-
can Unity. Interim arrangements remain in place at present to assist in the transition from Organ-
isation to Union.
The African Union now comprises various organs: the Assembly, the Executive Council,
the Pan-African Parliament, the African Court of Justice, the Commission, the Permanent Rep-
resentatives Committee, the Specialised Technical Committee, the Economic Social and Cultural
Council, the Peace and Security Council, and various financial institutions. Most of these institu-
tions are in the early stages of operation at present. Their impact on human rights remains to be
seen.

5.5 Others
No other region has achieved comprehensive human rights guarantees and enforcement/monitor-
ing mechanisms. However there are a number of initiatives of note.

5.5.1 Commonwealth of Independent States

The Commonwealth of Independent States did not wait long before adopting a Convention
on Human Rights and Fundamental Freedoms. The Convention envisaged a court to monitor
compliance. However, as some commentators note, a major goal of the system was to assist with
the democratisation of Member States and to help (some of) them establish sufficient democratic
credibility for membership applications to the Council of Europe. With that goal achieved, the
CIS appears to have no further direct involvement, as a regional organisation, in the promotion
and protection of human rights.

Question
Note the terms of the Commonwealth of Independent States’ Convention on Human Rights – to what extent
do the rights and freedoms vary from those enshrined in the European Convention on Human Rights to which
members of the Commonwealth of Independent States are now party?

5.5.2 League of Arab States

Although the Arab League has succeeded in drafting a regional instrument on international human
rights, achieving support for the instrument and any enforcement or monitoring machinery has
been more problematic. At present, the public face Arab system is undergoing reform.
Within the Arab League system, many issues of cultural relativism of rights and freedoms
could be addressed more prominently. As is discussed elsewhere in this text, many States which
adhere to Islamic teaching and laws enter a number of reservations to international human rights
treaties containing, inter alia, family rights and equal rights for women in marriage. Creating a
specific Arab-based system has clear potential.
The revised Arab Charter on Human Rights was adopted in 2004, entering into force in
2008. Implementation is by reports considered by a charter body. There is no system of individual
or inter-State complaints.

5.5.3 Asia
The Association of Southeast Asian Nations (ASEAN) has agreed the terms of the ASEAN Char-
ter, to mark the fortieth anniversary of the Association’s founding. The Charter was adopted
 REGIONAL HUMAN RIGHTS ORGANISATIONS AND KEY INSTITUTIONS  | 145

in November 2007, entering into force in December 2008. Ten States are party to it: Brunei
Darussalam; the Kingdom of Cambodia; the Republic of Indonesia; the Lao People’s Democratic
Republic; Malaysia; the Union of Myanmar; the Republic of the Philippines; the Republic of
Singapore; the Kingdom of Thailand and the Socialist Republic of Viet Nam.
As a regional body, ASEAN seeks to foster links for trade and ‘political, security, economic
and socio-cultural cooperation’ (Article 1(2)). Human rights is not the principal focus of the
organisation. Nevertheless, human rights provisions are included in the Charter and a subsequent
ASEAN Human Rights Declaration was adopted in 2012. The ASEAN system places strong
emphasis on non-interference in States and partly in furtherance thereof rarely comments on
human rights issues in member States.

THE ASEAN CHARTER 2007

CHAPTER 1

ARTICLE 2

PRINCIPLES

1 In pursuit of the Purposes stated in Article 1, ASEAN and its Member States reaffirm
and adhere to the fundamental principles contained in the declarations, agreements,
conventions, concords, treaties and other instruments of ASEAN.
2 ASEAN and its Member States shall act in accordance with the following Principles:

(a) respect for the independence, sovereignty, equality, territorial integrity and national
identity of all ASEAN Member States;
(b) shared commitment and collective responsibility in enhancing regional peace,
security and prosperity;
(c) renunciation of aggression and of the threat or use of force or other actions in any
manner inconsistent with international law;
(d) reliance on peaceful settlement of disputes;
(e) non-interference in the internal affairs of ASEAN Member States;
(f) respect for the right of every Member State to lead its national existence free from
external interference, subversion and coercion;
(g) enhanced consultations on matters seriously affecting the common interest of
ASEAN;
(h) adherence to the rule of law, good governance, the principles of democracy and
constitutional government;
(i) respect for fundamental freedoms, the promotion and protection of human rights,
and the promotion of social justice;
(j) upholding the United Nations Charter and international law, including inter-
national humanitarian law, subscribed to by ASEAN Member States;
(k) abstention from participation in any policy or activity, including the use of its
territory, pursued by any ASEAN Member State or non-ASEAN State or any non-
State actor, which threatens the sovereignty, territorial integrity or political and
economic stability of ASEAN Member States;
(L) respect for the different cultures, languages and religions of the peoples of ASEAN,
while emphasising their common values in the spirit of unity in diversity;
(m) the centrality of ASEAN in external political, economic, social and cultural
relations while remaining actively engaged, outward-looking, inclusive and non-
discriminatory; and
(n) adherence to multilateral trade rules and ASEAN’s rules-based regimes for
effective implementation of economic commitments and progressive reduction
146 | REGIONAL HUMAN RIGHTS ORGANISATIONS AND KEY INSTITUTIONS 

towards elimination of all barriers to regional economic integration, in a market-

driven economy.

Note the emphasis on territorial and political integrity. Note also the emphasis on promoting and
celebrating cultural diversity. Given the identity of the States involved, there is obviously con-
siderable diversity of languages, alphabets, religions and cultures. This raises some issues over the
theoretical arguments that regional bodies are, generally, relatively homogeneous.

Question
Is a regional body which reinforces non-interference in national affairs likely to garner the necessary political
will to take action on human rights issues?

ASEAN established a Human Rights Body although it has no monitoring or enforcement pow-
ers, given the emphasis in the Charter on non-interference in internal State affairs. Rather it acts
as a catalyst for discussions on common human rights grounds, coordinating regional responses
and sharing experiences of, for example, UN Human Rights Council universal periodic review.

THE ASEAN CHARTER 2007

ARTICLE 14

ASEAN HUMAN RIGHTS BODY

1 In conformity with the purposes and principles of the ASEAN Charter relating to the
promotion and protection of human rights and fundamental freedoms, ASEAN shall
establish an ASEAN human rights body.
2 This ASEAN human rights body shall operate in accordance with the terms of reference to
be determined by the ASEAN Foreign Ministers Meeting.

Further reading

Badawi-el-Sheikh, I., ‘The African Commission on Human and Peoples’ Rights: Prospects and
Problems’ (1989) 7.3 Netherlands Quarterly of Human Rights 272.
Baderin, M.A., International Human Rights and Islamic Law, 2003, Oxford: OUP.
Barreto, J.M. (ed.), Human Rights from a Third World Perspective: Critique, History and International
Law, 2013, Newcastle Upon Tyne: Cambridge Scholars Publishing.
Baxi, U., The Future of Human Rights, 2nd edn, 2008, Oxford: OUP.
Benedek, W., ‘The African Charter and Commission on Human and Peoples’ Rights; How to Make
it More Effective’ 11 Netherlands Quarterly of Human Rights 25.
Buergenthal, T., Norris, R., and Shelton, D., Protecting Human Rights in the Americas, 4th edn, 1995,
Arlington: Engel.
Bui, H., ‘The ASEAN Human Rights System: A Critical Analysis’ (2016) 11 Asian Journal of Compara-
tive Law 111–140.
Chirwa, D.M., and Chenwi, L. (eds), The Protection of Economic, Social and Cultural Rights in Africa:
International, Regional and National Perspectives, 2016, Cambridge: CUP.
Harris, D., and Livingstone, S., The Inter-American System of Human Rights, 1998, Oxford: OUP.
Kufor, K., The African Human Rights System: Origin and Evolution, 2010, Basingstoke: Palgrave
Macmillan.
Rainey, B., Wicks, E., and Ovey, C., Jacobs, White and Ovey: The European Convention on Human
Rights, 2017, 7th edn, Oxford: OUP.
Renshaw, C.S., ‘The ASEAN Human Rights Declaration 2012’ (September 2103) 13.3 Human Rights
Law Review 557–579.
 REGIONAL HUMAN RIGHTS ORGANISATIONS AND KEY INSTITUTIONS  | 147

Rishmawi, H., ‘The Arab Charter on Human Rights and the League of Arab States: An Update’
(2010) 10.1 Human Rights Law Review 169.
Thompson, C., ‘Self-Inflicted Harm: The ASEAN Declaration of Human Rights’, Global Policy Journal
(21 December 2012).
Viljoen, F., International Human Rights Law in Africa, 2012, 2nd edn, Oxford: OUP.
Wetzel, J. (ed.), The EU as a ‘Global Player’ in Human Rights, 2011, Abingdon: Routledge.

Websites
www.coe.int: Council of Europe
europa.eu: European Union
fra.europa.eu: Agency for Fundamental Rights
www.osce.org: Organization for Security and Cooperation in Europe
www.osce.org/odihr: OSCE Office for Democratic Institutions and Human Rights
www.osce.org/fom: OSCE Representative on Freedom of the Media
www.osce.org/hcnm: OSCE High Commissioner on National Minorities
www.oas.org: Organisation of American States
www.cidh.org: Inter-American Commission on Human Rights
www.au.int: African Union
www.lasportal.org: League of Arab States
www.asean.org: Association of Southeast Asian Nations
Chapter 6

Monitoring and enforcing human rights:

extra-conventional mechanisms

Chapter contents

6.1 Human Rights Council 150

6.2 The United Nations Educational, Scientific
and Cultural Organisation (UNESCO) 165
6.3 United Nations Security Council:
responsibility to protect, and sanctions 170
6.4 International criminal courts, tribunals and
processes 175
6.5 Organisation of American States Inter-American
Commission on Human Rights 184
 MONITORING AND ENFORCING HUMAN RIGHTS | 149

For most readers, the importance of human rights is as the mechanism by which one’s rights may
be enforced. Although ideally each State should ensure all the human rights to everyone within
their jurisdiction, this is not always the reality. This chapter will identify the key international and
regional mechanisms deployed by the organisations mentioned in the previous chapters to effect
human rights. The focus is on investigative mechanisms and independent fact-finding systems, as
well as those systems through which organisations oversee all human rights (rather than those in
a specific treaty).

• The Human Rights Council.

• Universal periodic review of all States.
• Special mechanisms to investigate human rights by theme or country through the
deployment of an independent expert.
• UNESCO and its system of individual complaint over infringements of human rights in the
sphere of its work.
• The potential impact of sanctions ordered by the Security Council to coerce a State into
complying with human rights (or other international laws).
• Reconciliation through truth-finding missions and international court and tribunal pro-
cesses held after a series of flagrant violations of human rights and part of the mechanism for
rebuilding the State.
• Organisation of American States’ general jurisdiction. The general jurisdiction of the OAS is
one of the few mechanisms under which individual complaints against the United States of
America can be examined.

While Chapters 4 and 5 were concerned with outlining the actual organisations and institutions
promoting human rights, this chapter focuses on the main mechanisms by which those human
rights are monitored. Chapter 7 then looks at those mechanisms established by treaty to oversee
a particular treaty. Creating tabulations of international human rights law remains a significant
achievement of both regional and international systems. However, the success of such treaties and
other instruments can best be gauged by the extent to which States modify their behaviour and
conform to the standards set. In other words, the extent to which individuals enjoy respect for
their fundamental rights and freedoms in an environment which promotes and protects inter-
national human rights. As noted previously, there are two principal systems for implementing
international human rights norms: the procedures available generally under the international and
regional bodies, and the procedures which are only available as a result of ratification of one or
more of the major international or regional human rights instruments. This chapter will focus
on the former.
What are these general systems for monitoring human rights? The Human Rights Council
and UNESCO both have systems for reviewing complaints against States, irrespective of their
international human rights obligations. Naturally, the Security Council of the United Nations,
with its primary obligation to maintain peace and order, may also take action when peace is
threatened by flagrant violations of human rights. These powers of the Security Council tran-
scend the international human rights instruments and can be applied to all Member States of the
United Nations. Moving to regional arrangements, some regional systems, particularly in the
Americas, have investigative systems for violations of human rights, irrespective of ratification of
the principal regional conventions. Finally, this chapter takes a brief look at international criminal
law, in terms of which perpetrators of designated war crimes and crimes against humanity – all
grave violations of human rights – can be held to account. Individual accountability is a key
factor.
150 | MONITORING AND ENFORCING HUMAN RIGHTS

Charter-based human rights mechanisms of the UN

Charter-based bodies are established under the UN Charter.
They consist of the Human Rights Council and its monitoring mechanisms:

• The Human Rights Council is an intergovernmental body composed of States in

charge of promoting and protecting human rights.
• Universal Periodic Review (UPR) is a peer review mechanism by States that involves
an assessment of the human rights situation of all UN Member States.
• The Special Procedures are individuals appointed by the Human Rights Council. They
are independent experts mandated to report and advise on human rights from a specific
thematic or country-specific perspective.

Other UN bodies have their own systems established under their constitutive instruments:

• UNESCO with a complaints mechanism

• The International Labour Organisation with its unique tripartite system

6.1 Human Rights Council

The Human Rights Council was created in 2006 assuming most of the competencies of the
former Commission on Human Rights. Chapter 4 discussed the composition and primary
functions of the Council. This section elaborates on those functions, explaining the mecha-
nisms by which the Council monitors and enforces international human rights standards. These
include universal periodic review, the special procedures, individual complaints and special
sessions.

6.1.1 Universal periodic review

General Assembly Resolution 60/251 at 5(e) provided for a system of universal periodic review.
This mechanism seeks to provide an overview of the fulfilment by each State of its human rights
obligations and commitments over a four-and-a-half-year cycle. The mechanism complements the
work of the treaty monitoring bodies and is stipulated as not being ‘overly burdensome’ to those
involved (Human Rights Council Resolution 5/1 at 3(f) and (h)). Universal periodic review is
the only mechanism of monitoring to which all UN Member States are routinely subjected. The
first cycle concluded in late 2011, by which time the Council and General Assembly had decided
to continue with a second cycle which commenced in May/June 2012 and will run to October/
November 2016 (GA Res 65/281 (2011)).
The Human Rights Council itself elaborated on the modalities of review in its institution-
building resolution:

HUMAN RIGHTS COUNCIL RESOLUTION 5/1 (18 June 2007) Institution-building of the United
Nations Human Rights Council, Annexe

UNITED NATIONS HUMAN RIGHTS COUNCIL: INSTITUTION-BUILDING

I. UNIVERSAL PERIODIC REVIEW MECHANISM

1 The basis of the review is:

 MONITORING AND ENFORCING HUMAN RIGHTS | 151

A. Basis of the review

(a) The Charter of the United Nations;

(b) The Universal Declaration of Human Rights;
(c) Human rights instruments to which a State is party;
(d) Voluntary pledges and commitments made by States, including those undertaken
when presenting their candidatures for election to the Human Rights Council
(hereinafter ‘the Council’).

2 In addition to the above and given the complementary and mutually interrelated nature of
international human rights law and international humanitarian law, the review shall take
into account applicable international humanitarian law.

B. Principles and objectives

1. Principles

3 The universal periodic review should:

(a) Promote the universality, interdependence, indivisibility and interrelatedness of all

human rights;
(b) Be a cooperative mechanism based on objective and reliable information and on
interactive dialogue;
(c) Ensure universal coverage and equal treatment of all States;
(d) Be an intergovernmental process, United Nations Member-driven and action-
oriented;
(e) Fully involve the country under review;
(f ) Complement and not duplicate other human rights mechanisms, thus representing
an added value;
(g) Be conducted in an objective, transparent, non-selective, constructive, non-
confrontational and non-politicized manner;
(h) Not be overly burdensome to the concerned State or to the agenda of the Council;
(i) Not be overly long; it should be realistic and not absorb a disproportionate amount of
time, human and financial resources;
(j) Not diminish the Council’s capacity to respond to urgent human rights situations;
(k) Fully integrate a gender perspective;
(l) Without prejudice to the obligations contained in the elements provided for in the
basis of review, take into account the level of development and specificities of
countries;
(m) Ensure the participation of all relevant stakeholders, including non-governmental
organizations and national human rights institutions, in accordance with General
Assembly resolution 60/251 of 15 March 2006 and Economic and Social Council
resolution 1996/31 of 25 July 1996, as well as any decisions that the Council may
take in this regard.

4 The objectives of the review are:

2. Objectives

(a) The improvement of the human rights situation on the ground;

(b) The fulfilment of the State’s human rights obligations and commitments and
assessment of positive developments and challenges faced by the State;
(c) The enhancement of the State’s capacity and of technical assistance, in consultation
with, and with the consent of, the State concerned;
152 | MONITORING AND ENFORCING HUMAN RIGHTS

(d) The sharing of best practice among States and other stakeholders;
(e) Support for cooperation in the promotion and protection of human rights;
(f ) The encouragement of full cooperation and engagement with the Council, other
human rights bodies and the Office of the United Nations High Commissioner for
Human Rights.

It is evident that the review is intended to be relatively comprehensive and systematic. However,
in reality, there are political and diplomatic pressures which cannot be obviated, as, after all, this is
a peer review process, thus primarily inter-State. Allehone Mulugeta Abebe noted after the first
periodic review process that there were ‘ominous signs that the problem of regional block voting
which had seriously afflicted the former Commission, remain[ed] a formidable challenge to the
Council’s decision making process’ (‘Of Shaming and Bargaining: African States and the Universal
Periodic Review of the United Nations Human Rights Council’, 9.1 Human Rights Law Review
(2009) 1 at p. 1). Concerns over the politicisation of the process have also been raised within the
working groups which undertake the interactive dialogue: see, for example, PR China: Algeria
‘regretted the politicization of the human rights situation in China during the review’ (Report of
the Working Group on the Universal Periodic Review – China, UN. Doc. A/HRC/11/25, para 33).

Question
The preceding example is of China with Abebe’s comments relating to African States during the first review.
Look at other examples of working group reports; to what extent is there evidence of politicisation?

In order to undertake the review, three sets of documentation are required in advance.

HUMAN RIGHTS COUNCIL RESOLUTION 5/1 (18 June 2007) Institution-building of the United
Nations Human Rights Council, Annexe

UNITED NATIONS HUMAN RIGHTS COUNCIL: INSTITUTION-BUILDING

l. UNIVERSAL PERIODIC REVIEW MECHANISM

D. Process and modalities of the review

1. Documentation

15. The documents on which the review would be based are:

(a) Information prepared by the State concerned, which can take the form of a national report,
on the basis of general guidelines to be adopted by the Council at its sixth session (first
session of the second cycle), and any other information considered relevant by the State
concerned, which could be presented either orally or in writing, provided that the written
presentation summarizing the information will not exceed 20 pages, to guarantee equal
treatment to all States and not to overburden the mechanism. States are encouraged to
prepare the information through a broad consultation process at the national level with all
relevant stakeholders;
(b) Additionally a compilation prepared by the Office of the High Commissioner for Human
Rights of the information contained in the reports of treaty bodies, special procedures,
including observations and comments by the State concerned, and other relevant official
United Nations documents, which shall not exceed 10 pages;
(c) Additional, credible and reliable information provided by other relevant stakeholders to
the universal periodic review which should also be taken into consideration by the Council
in the review. The Office of the High Commissioner for Human Rights will prepare a
summary of such information which shall not exceed 10 pages.
 MONITORING AND ENFORCING HUMAN RIGHTS | 153

There is one qualification to this, applicable for the second and subsequent cycles of review.

GENERAL ASSEMBLY RESOLUTION 65/281 (20 July 2011)

Review of the Human Rights Council, Annexe, para 9

The summary of the information provided by other relevant stakeholders should contain, where
appropriate, a separate section for contributions by the national human rights institution of
the State under review that is accredited in full compliance with the principles relating to the
status of national institutions for the promotion and protection of human rights (‘the Paris
Principles’), contained in the annex to General Assembly resolution 48/134 of 20 December
1993. Information provided by other accredited national human rights institutions will be
reflected accordingly, as well as information provided by other stakeholders.

The General Assembly adopted broadly the same modalities for the second review as were adopted
by the Human Rights Council for the first cycle of review (see General Assembly resolution
65/281, 20 July 2011, Annexe paras 10 et seq.). A troika of States drawn from across regional
groups in the Human Rights Council lead the review of each State. A working group is convened,
in accordance with the published schedule (see www.ohchr.org/EN/HRBodies/UPR/Pages/
UPRMain.aspx for link to current calendar). The substantive review is undertaken by way of an
interactive dialogue, in effect peer review. Any UN Member State or observer State may comment
on, or question, the review documentation and general human rights situation in the State under
review. The State under review is given an opportunity to introduce their report then, following
the dialogue, to respond during the working group session. Each working group report goes to a
subsequent Human Rights Council session for adoption. During the discussion before the plenary
Council, the State, the National Human Rights Institution (if one exists) and other stakeholders
can comment. Note this is one of the few occasions that civil society organisations formally input
into a monitoring and review process in the UN.

GENERAL ASSEMBLY RESOLUTION 65/281 (20 July 2011)

Review of the Human Rights Council, Annexe,

D. Outcome of the review

15. The recommendations contained in the outcome of the review should preferably be
clustered thematically with the full involvement and consent of the State under review and the
States that made the recommendations.
16. The State under review should clearly communicate to the Council, in a written format,
preferably prior to the Council plenary meeting, its positions on all received recommendations,
in accordance with the provisions of paragraphs 27 and 32 of the annex to Council resolution 5/1.

E. Follow-up to the review

17. While the outcome of the review, as a cooperative mechanism, should be implemented
primarily by the State concerned, States are encouraged to conduct broad consultations with
all relevant stakeholders in this regard.
18. States are encouraged to provide the Council, on a voluntary basis, with a midterm
update on follow-up to accepted recommendations.
19. The voluntary fund for financial and technical assistance, established by the Council
in its resolution 6/17, should be strengthened and operationalized in order to provide a source
of financial and technical assistance to help countries, in particular least developed countries
and small island developing States, to implement the recommendations emanating from their
review. A board of trustees should be established in accordance with the rules of the United
Nations
154 | MONITORING AND ENFORCING HUMAN RIGHTS

20. States may request the United Nations representation at the national or regional level
to assist them in the implementation of follow-up to their review, bearing in mind the provisions
of paragraph 36 of the annex to Council resolution 5/1. The Office of the United Nations High
Commissioner for Human Rights may act as a clearing house for such assistance.
21. Financial and technical assistance for the implementation of the review should support
national needs and priorities, as may be reflected in national implementation plans.
Inevitably the real proof of the success or otherwise of the review is only evident with hindsight.
Subsequent cycles focus on responses made to the recommendations accepted in the previous
review as well as improvements in the general human rights situation pertaining in the State. On
observation at this stage, there is evidence that a number of States have taken steps towards ratifica-
tion of core UN human rights treaties in response to recommendations accepted during review.
Whilst obviously ratification does not equate to full respect, it is an important first step (see Chap-
ter 3 on universal human rights). Similarly a number of States have extended open invitations to
the UN Special Procedures (mechanism considered later).

Question
Read the working group reports for two cycles of one country; is there evidence of follow-up and/or evidence
that the earlier cycle has had positive results?

Vagaries in practice make it difficult to compare the self-reflective aspects of the process. Neverthe-
less there is evidence of some changes occurring, particularly in furtherance of the UN voluntary
goals agreed by States:

HUMAN RIGHTS COUNCIL RESOLUTION 9/12 (September 2009)

Human Rights voluntary goals

(a) Universal ratification of the core international human rights instruments and dedication
of all efforts towards the universalization of the international human rights obligations of
States;
(b) Strengthening of the legal, institutional and policy framework at the national level in order
to ensure the promotion and protection of all human rights;
(c) Establishment of human rights national institutions guided by the Paris Principles and
the Vienna Declaration and Programme of Action with appropriate funding to fulfil their
mandates;
(d) Elaboration of national human rights programmes and plans of action to strengthen the
capacity of States to promote and protect human rights;
(e) Definition and implementation of national programmes of action that promote the
realization of the rights and goals set forth in the Universal Declaration of Human Rights
to, inter alia, eliminate discrimination of any kind, such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth or other status,
and all forms of violence against, inter alia, women, children, indigenous populations,
migrants and persons with disabilities;
(f) Adoption and implementation of programmes of human rights education, such as the
World Programme for Human Rights Education, in all learning institutions, including
capacity-building programmes for law enforcement professionals, in order to advance a
culture of respect for human rights;
(g) Increasing cooperation with all mechanisms of the United Nations human rights system,
including special procedures and treaty bodies;
(h) Strengthening of mechanisms to facilitate international cooperation in the field of human
rights by, inter alia, identifying areas to which international cooperation might be offered
and received, in accordance with national priorities;
 MONITORING AND ENFORCING HUMAN RIGHTS | 155

(i) Creation of favourable conditions at the national, regional and international levels
to ensure the full and effective enjoyment of all human rights, including the right to
development;
(j) Strengthening the capacity to fight hunger and poverty through, inter alia, the continuation
of efforts aimed at identifying additional forms of international cooperation in this regard.

6.1.2 Complaint procedure

In 1947, the Commission, predecessor of the Human Rights Council, opined that it had no power
to take action in regard to any human rights complaints. This was agreed as true by the Economic
and Social Council. Considerable progress has been made since then.

ECONOMIC AND SOCIAL COUNCIL RESOLUTION 728 F (XXVIII) 1959

The Economic and Social Council,

Having considered chapter V of the report of the Commission on Human Rights on its first
session, concerning communications, and chapter IX of the report of the Commission on its
fifteenth session,

1 Approves the statement that the Commission on Human Rights recognizes that it has no
power to take any action in regard to any complaints concerning human rights.

In 1959, the Economic and Social Council approved a Commission statement that it had no power
to take any action in regard to complaints concerning human rights (Resolution 728 F (XXVIII)).
It then requested the Secretary-General to assume responsibility for disseminating communica-
tions concerning violations of human rights and fundamental freedoms.

ECONOMIC AND SOCIAL COUNCIL RESOLUTION 728 F (XXVIII) 1959, Communications

concerning human rights

The Economic and Social Council, . . .

2 Requests the Secretary-General:

(a) To compile and distribute to members of the Commission on Human Rights before
each session a non-confidential list containing a brief indication of the substance of
each communication, however addressed, which deals with the principles involved
in the promotion of universal respect for, and observance of, human rights and to
divulge the identity of the authors of such communications unless they indicate that
they wish their names to remain confidential;
. . .

(d) To inform the writers of all communications concerning human rights, however
addressed, that their communications will be handled in accordance with this
resolution, indicating that the Commission has no power to take any action in regard
to any complaint concerning human rights;
(e) To furnish each Member State concerned with a copy of any communication
concerning human rights which refers explicitly to that State or to territories under
its jurisdiction, without divulging the identity of the author, . . .

Since 1967 the (former) Commission had certain powers, indeed responsibilities, to investigate
serious violations of human rights. However, the procedure is not akin to a judicial investigation.
Rather, it was a facility for achieving an overview of a deteriorating and serious human rights
situation in a particular State.
156 | MONITORING AND ENFORCING HUMAN RIGHTS

It would appear that the initial emphasis was on empowering the Commission to monitor
the human rights situation in South Africa, Southern Rhodesia (now Zimbabwe) and South West
Africa (now Namibia), three territories giving rise to increasing concern in the 1960s. Commis-
sion powers in terms of Economic and Social Council Resolution 1253 (XLII) 1967 were viewed
as complementary to those of the treaty monitoring bodies and indeed, the other organs of the
United Nations organisation: the General Assembly or, more likely, the Security Council.
In many ways, this system was part of the tools by which the Commission discharged its pri-
mary functions in terms of its mandate. It was complemented by the general complaints system for
consistent patterns of gross and reliably attested human rights violations established by ECOSOC
Resolution 1503 (XLVIII).
The system was refined and partially reformed in 2000 by ECOSOC Resolution 2000/3
(2000). Around 85 States were considered under this process, in other words, almost half the mem-
bers of the United Nations itself. Permanent members of the Security Council such as the United
Kingdom and the United States of America have also been considered.
The Human Rights Council itself instituted a new complaint procedure to replace the pro-
cedure operational before the Commission on Human Rights. Inevitably this process draws heav-
ily on its predecessor as the enabling resolution of the Human Rights Council (Resolution 5/1)
makes clear:

HUMAN RIGHTS COUNCIL RESOLUTION 5/1. INSTITUTION-BUILDING OF THE UNITED

NATIONS HUMAN RIGHTS COUNCIL ANNEXE

IV. COMPLAINT PROCEDURE

A. Objective and scope

85. A complaint procedure is being established to address consistent patterns of gross and
reliably attested violations of all human rights and all fundamental freedoms occurring in any
part of the world and under any circumstances.
86. Economic and Social Council resolution 1503 (XLVIII) of 27 May 1970 as revised by
resolution 2000/3 of 19 June 2000 served as a working basis and was improved where necessary,
so as to ensure that the complaint procedure is impartial, objective, efficient, victims-oriented
and conducted in a timely manner. The procedure will retain its confidential nature, with a view
to enhancing cooperation with the State concerned.

The process remains one by which individuals and groups can lodge complaints before the inter-
national mechanisms alleging serious violations of human rights. The admissibility criteria reflect
the generic criteria deployed by various international bodies. Note, however, the importance
placed on the role of national human rights institutions:

HUMAN RIGHTS COUNCIL RESOLUTION 5/1. INSTITUTION-BUILDING OF THE UNITED

NATIONS HUMAN RIGHTS COUNCIL ANNEXE

IV. COMPLAINT PROCEDURE

B. Admissibility criteria for communications

87. A communication related to a violation of human rights and fundamental freedoms, for the
purpose of this procedure, shall be admissible, provided that:

(a) It is not manifestly politically motivated and its object is consistent with the Charter of
the United Nations, the Universal Declaration of Human Rights and other applicable
instruments in the field of human rights law;
 MONITORING AND ENFORCING HUMAN RIGHTS | 157

(b) It gives a factual description of the alleged violations, including the rights which are
alleged to be violated;
(c) Its language is not abusive. However, such a communication may be considered if it meets
the other criteria for admissibility after deletion of the abusive language;
(d) It is submitted by a person or a group of persons claiming to be the victims of violations of
human rights and fundamental freedoms, or by any person or group of persons, including
non-governmental organizations, acting in good faith in accordance with the principles
of human rights, not resorting to politically motivated stands contrary to the provisions
of the Charter of the United Nations and claiming to have direct and reliable knowledge
of the violations concerned. Nonetheless, reliably attested communications shall not be
inadmissible solely because the knowledge of the individual authors is second-hand,
provided that they are accompanied by clear evidence;
(e) It is not exclusively based on reports disseminated by mass media;
(f) It does not refer to a case that appears to reveal a consistent pattern of gross and reliably
attested violations of human rights already being dealt with by a special procedure, a
treaty body or other United Nations or similar regional complaints procedure in the field
of human rights;
(g) Domestic remedies have been exhausted, unless it appears that such remedies would be
ineffective or unreasonably prolonged.

88. National human rights institutions, established and operating under the Principles
Relating to the Status of National Institutions (the Paris Principles), in particular in regard
to quasi-judicial competence, may serve as effective means of addressing individual human
rights violations.

Question
What problems may be encountered when trying to meet these criteria? Remember the process addresses gross
and systematic violations of human rights.

The process for considering complaints is similar to that operated previously under the auspices of
the Commission. Crucially, it remains confidential.

HUMAN RIGHTS COUNCIL RESOLUTION 5/1. INSTITUTION-BUILDING OF THE UNITED

NATIONS HUMAN RIGHTS COUNCIL ANNEXE

IV. COMPLAINT PROCEDURE

C. Working groups

89. Two distinct working groups shall be established with the mandate to examine the
communications and to bring to the attention of the Council consistent patterns of gross and
reliably attested violations of human rights and fundamental freedoms.
90. Both working groups shall, to the greatest possible extent, work on the basis of
consensus. In the absence of consensus, decisions shall be taken by simple majority of the
votes. They may establish their own rules of procedure.

1. Working Group on Communications: composition, mandate and powers

91. The Human Rights Council Advisory Committee shall appoint five of its members, one from
each Regional Group, with due consideration to gender balance, to constitute the Working
Group on Communications.
. . .
158 | MONITORING AND ENFORCING HUMAN RIGHTS

94. The Chairperson of the Working Group on Communications is requested, together with
the secretariat, to undertake an initial screening of communications received, based on the
admissibility criteria, before transmitting them to the States concerned. Manifestly ill-founded
or anonymous communications shall be screened out by the Chairperson and shall therefore
not be transmitted to the State concerned. In a perspective of accountability and transparency,
the Chairperson of the Working Group on Communications shall provide all its members with a
list of all communications rejected after initial screening. This list should indicate the grounds
of all decisions resulting in the rejection of a communication. All other communications, which
have not been screened out, shall be transmitted to the State concerned, so as to obtain the
views of the latter on the allegations of violations.
95. The members of the Working Group on Communications shall decide on the admissibility
of a communication and assess the merits of the allegations of violations, including whether
the communication alone or in combination with other communications appear to reveal a
consistent pattern of gross and reliably attested violations of human rights and fundamental
freedoms. The Working Group on Communications shall provide the Working Group on
Situations with a file containing all admissible communications as well as recommendations
thereon. When the Working Group on Communications requires further consideration or
additional information, it may keep a case under review until its next session and request such
information from the State concerned. The Working Group on Communications may decide to
dismiss a case. All decisions of the Working Group on Communications shall be based on a
rigorous application of the admissibility criteria and duly justified.

2. Working Group on Situations: composition, mandate and powers

96. Each Regional Group shall appoint a representative of a member State of the Council, with
due consideration to gender balance, to serve on the Working Group on Situations. Members
shall be appointed for one year. Their mandate may be renewed once, if the State concerned is
a member of the Council.
. . .
98. The Working Group on Situations is requested, on the basis of the information and
recommendations provided by the Working Group on Communications, to present the Council
with a report on consistent patterns of gross and reliably attested violations of human rights
and fundamental freedoms and to make recommendations to the Council on the course
of action to take, normally in the form of a draft resolution or decision with respect to the
situations referred to it. When the Working Group on Situations requires further consideration
or additional information, its members may keep a case under review until its next session. The
Working Group on Situations may also decide to dismiss a case.
99. All decisions of the Working Group on Situations shall be duly justified and indicate
why the consideration of a situation has been discontinued or action recommended thereon.
Decisions to discontinue should be taken by consensus; if that is not possible, by simple
majority of the votes.

Both working groups are required to meet biannually and States are required to cooperate with
the procedure and provide appropriate and timely replies. A two-year period is specified (para
105) for the maximum period between transmission of the complaint and consideration thereof
by the Council. The Council is also obligated to consider the complaints and patterns of gross and
reliably attested violations of human rights and fundamental freedoms on an annual basis. Despite
the fact the Human Rights Council is a Member State body, the individual victims are involved
in the process.
 MONITORING AND ENFORCING HUMAN RIGHTS | 159

HUMAN RIGHTS COUNCIL RESOLUTION 5/1. INSTITUTION-BUILDING OF THE UNITED

NATIONS HUMAN RIGHTS COUNCIL ANNEXE

IV. COMPLAINT PROCEDURE

E. Involvement of the complainant and of the State concerned

106. The complaint procedure shall ensure that both the author of a communication and the
State concerned are informed of the proceedings at the following key stages:
(a) When a communication is deemed inadmissible by the Working Group on Communications
or when it is taken up for consideration by the Working Group on Situations; or when a
communication is kept pending by one of the Working Groups or by the Council;
(b) At the final outcome.

107. In addition, the complainant shall be informed when his/her communication is

registered by the complaint procedure.
108. Should the complainant request that his/her identity be kept confidential, it will not
be transmitted to the State concerned.

As the procedure is confidential, there is obviously little information available to date on the States
which have been considered and the decisions reached. The outcomes of the process include keep-
ing the situation under review, appointing an independent expert to monitor the situation and
report back to the Council and recommending capacity building opportunities be offered to the
State. Interestingly, the Council can also elect to discontinue its confidential review and revert to
public consideration of the general matter (para 109 of the same resolution).

Question
Does a confidential process, such as that just outlined, have any merits? Evaluate the benefits and disadvan-
tages of such a mechanism for advancing international human rights. To what extent does such a confidential
process complement universal periodic review, a very public evaluation of the human rights situation in each
State?

6.1.3 Special sessions

In addition to this formal mechanism, the Human Rights Council has held several Special Ses-
sions, during which specific situations giving rise to grave concern are discussed. These sessions
may emerge from the complaints mechanism previously outlined or may be selected from general
awareness of problems, one third of the membership of the Council must agree to any Special
Session. The possibility of scheduling Special Sessions has been embraced by the UN Human
Rights Council. Special sessions have been held on issues of concern in specific places including
the Occupied Palestinian Territory, East Jerusalem and Gaza, the Syrian Arab Republic, Sri Lanka,
Burundi and Myanmar; topics have included world food and the 2009 economic and financial cri-
sis. Most special sessions are on specific deteriorating human rights situations or specific countries
and events of concern.

Question
Look up the other topics of special sessions of the Human Rights Council – is it true to say that the topics
reveal a marked political bias? This is claimed by some States.

Resolutions can emerge from these special sessions and further monitoring and investigatory
action can be taken. Fact-finding remains the most powerful tool available to the Council – its
public position and its composition (of States) adds weight to the views reported and considered
160 | MONITORING AND ENFORCING HUMAN RIGHTS

in the sessions. Many of the special sessions attract considerable media coverage (arguably so in
comparison to other UN bodies such as the General Assembly and the Security Council).

Case study: Syrian Arab Republic 2011−2016

The deterioration of the internal security situation in the Syrian Arab Republic gave the Human
Rights Council cause for concern. The first special session on the country was convened in April
2011.

HUMAN RIGHTS COUNCIL RESOLUTION S-16/1 (29 April 2011)

The current human rights situation in the Syrian Arab Republic in the context of
recent events

1 Unequivocally condemns the use of lethal violence against peaceful protesters by the Syrian
authorities and the hindrance of access to medical treatment, urges the Government of
the Syrian Arab Republic to immediately put an end to all human rights violations, protect
its population and respect fully all human rights and fundamental freedoms, including
freedom of expression and freedom of assembly, and also urges the authorities to
allow access to the Internet and telecommunications networks and to lift censorship on
reporting, including by allowing appropriate access by foreign journalists:
2 Calls upon the Government of the Syrian Arab Republic to release immediately all prisoners
of conscience and arbitrarily detained persons, including those who were detained before
the recent events, as well as to cease immediately any intimidation, persecution and
arbitrary arrests of individuals, including lawyers, human rights defenders and journalists:
3 Urges the Syrian authorities to refrain from any reprisals against people who have taken
part in peaceful demonstrations and to allow the provision of urgent assistance to those
in need, including by guaranteeing appropriate access to human rights and humanitarian
organizations:
4 Stresses the need for the Syrian authorities to launch a credible and impartial investigation,
in accordance with international standards, and to prosecute those responsible for attacks
on peaceful protesters in the Syrian Arab Republic, including by forces under Government
control:
5 Urges the Syrian authorities to enlarge the scope of political participation aimed at
ensuring civil liberties and enhancing social justice:
6 Encourages relevant thematic special procedures mandate holders, within their respective
mandates, to pay particular attention to the human rights situation in the Syrian Arab
Republic, and urges the Syrian authorities to cooperate with these thematic mandate
holders, including by allowing country visits:
7 Requests the Office of the United Nations High Commissioner for Human Rights to
dispatch urgently a mission to the Syrian Arab Republic to investigate all alleged violations
of international human rights law and to establish the facts and circumstances of such
violations and of the crimes perpetrated, with a view to avoiding impunity and ensuring
full accountability, and to provide a preliminary report and oral update on the situation of
human rights in the Syrian Arab Republic to the Human Rights Council at its seventeenth
session, and to submit a follow-up report to the Council at its eighteenth session, and also
requests the High Commissioner to organize an interactive dialogue on the situation of
human rights in the Syrian Arab Republic during the eighteenth session of the Council:
8 Calls upon the Government of the Syrian Arab Republic to cooperate fully with and grant
access to personnel from the mission dispatched by the Office of the High Commissioner:
9 Requests the Secretary-General and the High Commissioner to provide all the administrative,
technical and logistical assistance required to enable the mission to fulfil its mandate;
 MONITORING AND ENFORCING HUMAN RIGHTS | 161

An Independent International Commission of Inquiry was established by resolution S-17/1 in

August 2011 and a Special Rapporteur (see Section 6.4.2.3) appointed; the latter will only take up
post when the work of the Commission has concluded. This was followed up in subsequent special
sessions. These addressed specific violations of human rights and re-emphasised the need for the
Syrian authorities to allow access to the territory for all relevant UN mechanisms and urged Syria
to comply with Kofi Annan’s six-point plan (Security Council resolution 2042 (2012)). A more
recent special session was in October 2016, with the Council adopting resolution S-25/1 on the
deteriorating situation of human rights in the Syrian Arab Republic, and the recent situation in
Aleppo.

6.1.4 Special procedures: thematic and country rapporteurs

The Human Rights Council operates a system of special procedures, principally a system of man-
dates in furtherance of monitoring either specific human rights (thematic rapporteurs) or specific
countries or areas (country rapporteurs). Thematic mandates can be held by an individual rap-
porteur or by five individuals (one from each regional grouping) sitting as a Working Group. Over
time and under the former Commission, the role of rapporteurs evolved to further the promotion
of international standards of human rights.
Each mandate, as authorised by the Human Rights Council, governs the individual’s (or
group’s) role and responsibility. Moreover, in keeping with the concept of special rapporteurs
performing specific targeted functions, country mandates are considered for renewal annually and
thematic mandates every three years.

HUMAN RIGHTS COUNCIL RESOLUTION 5/1. INSTITUTION-BUILDING OF THE UNITED

NATIONS HUMAN RIGHTS COUNCIL ANNEXE

II. SPECIAL PROCEDURES

A. Selection and appointment of mandate-holders

39. The following general criteria will be of paramount importance while nominating, selecting
and appointing mandate-holders:

(a) expertise;
(b) experience in the field of the mandate;
(c) independence;
(d) impartiality;
(e) personal integrity; and
(f) objectivity.

40. Due consideration should be given to gender balance and equitable geographic
representation, as well as to an appropriate representation of different legal systems.
. . .
42. The following entities may nominate candidates as special procedures mandate-holders:

(a) Governments;
(b) Regional Groups operating within the United Nations human rights system;
(c) international organizations or their offices (e.g. the Office of the High Commissioner for
Human Rights);
(d) non-governmental organizations;
(e) other human rights bodies;
(f) individual nominations.
162 | MONITORING AND ENFORCING HUMAN RIGHTS

43. . . . Upcoming vacancies of mandates shall be publicized.

44. The principle of non-accumulation of human rights functions at a time shall be
respected.
45. A mandate-holder’s tenure in a given function, whether a thematic or country mandate,
will be no longer than six years.

In addition to this, the General Assembly resolution 65/281 on the review of the Human Rights
Council provides that national human rights institutions may also nominate candidates. There
is undoubtedly a change in the diversity of special procedure mandate holders with a notable
improvement in gender balance and geographical balance – 45 per cent were female in 2018 with
the Asia-Pacific and Eastern European groups statistically the least represented (Annual Report
annex A/HRC/40/38/Add. 1). However it remains far from truly representative.
Rapporteurs are drawn from the ranks of international academics, legal and poly experts,
activists, judges, diplomats and others with recognised competence and interest in the subject con-
cerned. Funding can be problematic, as the United Nations has sparse resources.
As noted previously (under universal periodic review), a number of States have extended
standing invitations to special procedures following universal periodic review.

Question
To what extent are the existing mandates ‘guided by the principles of universality, impartiality, objectivity and
non-selectivity, constructive international dialogue and cooperation, with a view to enhancing the promotion
and protection of all human rights, civil, political, economic, social and cultural rights, including the right to
development’?

For country mandates, three criteria are imposed by resolution 5/1:

• There is a pending mandate of the Council to be accomplished; or

• There is a pending mandate of the General Assembly to be accomplished; or
• The nature of the mandate is for advisory services and technical assistance.

Of surprise to some commentators, the Human Rights Council has created a number of new
country mandates. In June 2012, mandates for Belarus and Eritrea were added to the existing list
of Cambodia, Central African Republic, the Democratic People’s Republic of Korea, Haiti, the
Islamic Republic of Iran, Myanmar (Burma), Palestinian Territories occupied since 1967, Somalia,
Sudan and the Syrian Arab Republic.
The thematic mandates, all of which were established or renewed (following the Council’s
review), include arbitrary detention, enforced and involuntary disappearances, education, food,
freedom of expression, health, human rights defenders, indigenous peoples, migrants, minority
issues and trafficking in persons. Newer mandates include privacy and the rights of persons with
leprosy. Resolution 5/2 of the Human Rights Council contains a Code of Conduct for mandate
holders. This was followed in June 2008 by the adoption of a Manual of the UN Special
Procedures. These documents have been considered at length in the literature. Issues of concern
include the degree of control which the Council can directly or indirectly exercise over the man-
date holders.
There are a number of special procedures mechanisms currently in operation. Most are the-
matic with a transnational dimension, but others are concerned exclusively with one State. Man-
dates are generally for a fixed period of time though can be renewed. Inevitably, a rapporteur’s
impact partially depends on their personal dedication and lasting enthusiasm (sometimes in the
face of adversity) as well as finance (see Joanna Naples-Mitchell ‘Perspectives of UN Special Rap-
porteurs on Their Role: Inherent Tensions and Unique Contributions to Human Rights’ (2011)
15.2 The International Journal of Human Rights 232).
 MONITORING AND ENFORCING HUMAN RIGHTS | 163

Question
Consider aspects of one or more rapporteurs (available at www.ohchr.org). How effective are rapporteurs/working
groups in redressing violations of human rights? Does the publicity element work or serve a valuable purpose?

Some mandates consider individual complaints on the rights or country under mandate. The
extent to which mandate holders intervene in such instances is partially dependent on the per-
sonal approach of the mandate holder, not being the primary function of the mandate. The main
exception is the Working Groups (see the example of the Working Group on Arbitrary Detention
in Section 6.1.4).
The Office of the High Commissioner for Human Rights provides further information on
this aspect of the work of the mandate holders, noting that in 2018, 655 communications were
sent to governments in 121 countries and 75 non-State actors. There was a response rate of 43 per
cent, though it should be noted that this does not indicate that nothing happened in the other 57
per cent of instances (Annual Report annex A/HRC/40/38/Add. 1).

Communications with Special Procedure mandate

www.ohchr.org/EN/HRBodies/SP/Pages/Communications.aspx

For cases relating to individuals the following minimum information must be provided in order
to enable special procedures to assess the information:

• Identification of the alleged victim(s);

• Identification of the alleged perpetrators of the violation (if known);
• Identification of the person(s) or organization(s) submitting the communication (this
information will be kept confidential);
• Date and place of incident;
• A detailed description of the circumstances of the incident in which the alleged violation
occurred.

Other details pertaining to the specific alleged violation may be required by the relevant thematic
mandates (e.g. past and present places of detention of the victim; any medical certificate issued
to the victim; identification of witnesses to the alleged violation; any measures undertaken to
seek redress locally, etc.).
For communications relating to legislation, a copy of the text of the (draft) law translated
into English, French or Spanish should be submitted and information why the legal provisions
contained in it are allegedly incompatible with international human rights standards.
Communications that contain abusive language or that are obviously politically motivated
are not considered. Communications should describe the facts of the incident and the relevant
details referred to above clearly and concisely. Communications should not be based solely on
media reports.

Of particular note is the fact that rapporteurs do not require exhaustion of domestic remedies,
as the procedure is not quasi-judicial. The interventions are more informal, with the rapporteur
making enquiries (general or specific) of the State concerned.

Case study: Working Group on Arbitrary Detention

The Working Group on Arbitrary Detention is a long-standing mandate, having been in operation
for some 20 years (it was established by Commission Resolution 1991/42). Arbitrary detention
is a matter of grave concern given the impact of liberty of person, the opportunities for torture,
inhuman and degrading treatment and the potential of people disappearing. Accordingly, the UN
has supplemented human rights treaty provisions on detention with a range of UN guidelines on
164 | MONITORING AND ENFORCING HUMAN RIGHTS

arrest, detention and prisons. These guidelines, some arguably soft law, establish good practices for
arrest and detention. They also elaborate on conditions for appropriate detention, including the
relevant paperwork. See for example, the links to instruments under Human Rights in the Admin-
istration of Justice, available at www2.ohchr.org/english/law/index.htm#struments.
More than some other mandates, the work of the Working Group clearly impacts on discrete
individuals who are detained arbitrarily, in flagrant violation of the duties of States under inter-
national human rights law. It is not therefore surprising that the Working Group on Arbitrary
Detention has competence to receive individual complaints and investigate them, as its mandate
makes clear:

Commission on Human Rights Resolution 1991/42, 15 April 1997, UN Doc. E/CN.4/1997/50

2. Invites the Working Group, in discharging its mandate, to continue:

(a) To investigate cases of detention imposed arbitrarily or otherwise inconsistently with the
relevant international standards set forth in the Universal Declaration of Human Rights as
in the relevant international legal instruments accepted by the States concerned;
(b) To seek and receive information from Governments and intergovernmental organisations, and
receive information from the individuals concerned, their families or their representatives;
(c) to present a comprehensive report to the Commission at its following session.

Following the methods of the Working Group on Enforced Disappearances, the Working Group
undertakes investigations and can receive individual communications from individuals or their
representatives as well as by governments, intergovernmental and non-governmental organisations.
The mandate has been regularly extended by the Commission and now by the Human Rights
Council. Moreover, the Human Rights Council regularly urges States to cooperate with the
Working Group and strive to ensure high standards of detention and compliance with all applicable
human rights.

Human Rights Council Resolution 33/30, 30 September 2016

Arbitrary Detention

3. Requests the States concerned to take account of the views of the Working Group and, where
necessary, to take appropriate steps to remedy the situation of persons arbitrarily deprived of
their liberty and to inform the Working Group of the steps they have taken;
5. Encourages all States:

(a) To give due consideration to the opinions and appeals of the Working Group;
(b) To take appropriate measures to ensure that their legislation, regulations and practices
remain in conformity with relevant international standards and the applicable international
legal instruments;
(c) To respect and promote the right of anyone arrested or detained on a criminal charge to
be brought promptly before a judge or other officer authorized by law to exercise judicial
power, and to be entitled to trial within a reasonable time or release;
(d) To respect and promote the right of anyone deprived of his or her liberty by arrest or
detention to bring proceedings before court, in order that the court may decide without
delay on the lawfulness of his or her detention and order his or her release if the detention
is not lawful, in accordance with their international obligations;
(e) To ensure that the right referred to in subparagraph (d) above is equally respected in
cases of administrative detention, including administrative detentions in relation to public
security legislation;
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(f) To ensure that anyone who is arrested or detained on a criminal charge has adequate time
and facilities for the preparation of his or her defence, including the opportunity to engage
and communicate with the counsel of his or her choice;
(g) To ensure that the conditions of pretrial detention do not undermine the fairness of the
trial;
(h) To provide guarantees with respect to any form of detention against unlawful or arbitrary
deprivations of liberty.

September 2019 saw the adoption of a new resolution confirming the mandate of the group and
reiterating the importance of the work of the group. The opinions of the Working Group are
published after each of its sessions, and are reported to the Human Rights Council. High profile
opinions in recent years include Julian Assange, whose arrest, detention then confinement in the
Ecuadorean Embassy in London, UK, was deemed arbitrary (Opinion 54/2015, 2015, note he
left the Embassy in 2019, and was arrested and imprisoned) and Kem Sokha, the leader of the
former CNRP opposition party in Cambodia who was arrested in September 2017 on allegations
of treason, and his party subsequently dissolved by order of the Supreme Court (opinion 9/2018
of 2018). To mark its twentieth anniversary, the Working Group launched a database containing
all its opinions. This is searchable and a new resource for those working in the field (https://www.
ohchr.org/EN/Issues/Detention/Pages/OpinionsadoptedbytheWGAD.aspx).
Special procedures also undertake visits to States. These are only undertaken with the explicit
consent of the State concerned. Most States issue standing invitations indicating a general willing-
ness to receive special procedure mandate holders on official visits. The majority of States with
country mandates, however, do not. This is particularly the case when the mandate is not technical
assistance in nature. According to the 2018 annual facts and figures report on special procedures
(published March 2019, Annual Report annex A/HRC/40/38/Add. 1), in 2018, special proce-
dures undertook 89 visits to some 59 States and territories.

Question
Increasingly, mandate holders undertake joint visits and work together on reports.To what extent will a joint
communication have greater weight than a communication from a single mandate holder? Having reviewed the
list of mandates, can you identify situations in which mandate holders may work together on issues of current
concern? Is this potential overlap positive or negative?

6.2 The United Nations Educational, Scientific and Cultural

Organisation (UNESCO)
The United Nations Educational, Scientific and Cultural Organisation also operates a non-
contentious individual communications procedure for violations of education, culture and science
rights.
Given that the process operates under the auspices of UNESCO, it naturally applies to a lim-
ited range of rights, essentially those falling within the competence of UNESCO. In terms of the
Universal Declaration of Human Rights, these rights include the right to information – including
freedom of opinion and expression, right to education, the right to participate freely in cultural life
and the right to share in scientific advancement (Articles 19, 26 and 27 of the Universal Declara-
tion of Human Rights). UNESCO notes that these rights may imply the exercise of other rights,
such as freedom of thought, conscience and religion, the right to receive and impart information
and ideas through any media and regardless of frontiers, moral rights resulting from scientific, liter-
ary or artistic production and freedom of assembly and association for activities related to educa-
tion, science and culture.
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The process was established by a decision adopted by the Executive Board of UNESCO in
furtherance of the duties incumbent upon the organisation in terms of its constitutive document.
The text of the decision follows.

DECISION 104 EX/3.3, 1978

Study of the procedures which should be followed in the examination of cases and questions
which might be submitted to UNESCO concerning the exercise of human rights in the
spheres of its competence, in order to make its action more effective: Report of the Working
Party of the Executive Board

The Executive Board,

1. Mindful that the competence and role of UNESCO in the field of human rights derive
primarily from Article 1.1 of the Constitution of UNESCO, which states: ‘The purpose of the
Organization is to contribute to peace and security by promoting collaboration among the
nations through education, science and culture in order to further universal respect for
justice, for the rule of law and for the human rights and fundamental freedoms which are
affirmed for the peoples of the world, without distinction of race, sex, language or religion,
by the Charter of the United Nations’, and from the Charter of the United Nations, . . .
6. Mindful of Article 1.3 of the Constitution of UNESCO, which states: ‘With a view to
preserving the independence, integrity and fruitful diversity of the cultures and educational
systems of the States members of the Organization, the Organization is prohibited from
intervening in matters which are essentially within their domestic jurisdiction’,
7. Considering that, in matters concerning human rights within its fields of competence,
UNESCO, basing its efforts on moral considerations and its specific competence, should
act in a spirit of international co-operation, conciliation and mutual understanding, and
recalling that UNESCO should not play the role of an international judicial body,
8. Recognizing the important role of the Director-General, in:

(a) seeking continually to strengthen the action of UNESCO in the promotion of human
rights, both through the settlement of cases and the elimination of massive,
systematic or flagrant violations of human rights and fundamental freedoms, and
(b) initiating consultations, in conditions of mutual respect, confidence and confidentiality,
to help reach solutions to particular problems concerning human rights,

9. Invites the Director-General to pursue this role;

10. Considering that, in the exercise of its competence in the field of human rights,
UNESCO is called upon to examine:

(a) cases concerning violations of human rights which are individual and specific,
(b) questions of massive, systematic or flagrant violations of human rights which result
either from a policy contrary to human rights applied de jure or de facto by a State or
from an accumulation of individual cases forming a consistent pattern,

11. Considering the terms of reference of the Committee on Conventions and

Recommendations in Education,
12. Taking into account the tasks already entrusted to the Committee concerning
human rights matters within the Organization’s fields of competence,
13. Decides that the Committee will henceforth be designated ‘the Committee on
Conventions and Recommendations’;
14. Decides that the Committee will continue to carry out its functions with respect
to conventions and recommendations and will consider communications received by the
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Organization concerning cases and questions of violations of human rights within UNESCO’s
fields of competence in accordance with the following conditions and procedures.

The admissibility criteria are also specified in the decision. In many respects they reflect the cri-
teria commonly applied to applications to other international and human rights regional bodies.
Of particular interest is the fact that the process is not limited solely to individuals/groups and the
time limit criterion, which are perhaps more flexible than other instruments. Admissibility is not
a contentious issue; rather the lack of knowledge of the system and therefore a lack of applications
reflects the comparatively ‘low’ impact of this procedure.

DECISION 104 Ex/3.3 Continued

Conditions:

(a) Communications shall be deemed admissible if they meet the following conditions:
(i) the communication must not be anonymous;
(ii) the communication must originate from a person or a group of persons who, it can
be reasonably presumed, are victims of an alleged violation of any of the human
rights referred to in paragraph (iii) below. It may also originate from any person,
group of persons or organization having reliable knowledge of those violations;
(iii) the communication must concern violations of human rights falling within UNESCO’s
competence in the fields of education, science, culture and information and must not
be motivated exclusively by other considerations;
(iv) the communication must be compatible with the principles of the Organization,
the Charter of the United Nations, the Universal Declaration of Human Rights, the
international covenants on human rights and other international instruments in the
field of human rights;
(v) the communication must not be manifestly ill-founded and must appear to contain
relevant evidence;
(vi) the communication must be neither offensive nor an abuse of the right to submit
communications. However, such a communication may be considered if it meets
all other criteria or admissibility, after the exclusion of the offensive or abusive
parts;
(vii) the communication must not be based exclusively on information disseminated
through the mass media;
(viii) the communication must be submitted within a reasonable time-limit following the
facts which constitute its subject-matter or within a reasonable time-limit after the
facts have become known;
(ix) the communication must indicate whether an attempt has been made to exhaust
available domestic remedies with regard to the facts which constitute the subject-
matter of the communication and the result of such an attempt, if any;
(x) communications relating to matters already settled by the States concerned in
accordance with the human rights principles set forth in the Universal Declaration
of Human Rights and the international covenants on human rights shall not be
considered;

Decision 104 Ex/3.3 finally details the procedures to be followed by the Director-General and
Committee in considering communications. Note that this provides an element of transparency
of process, despite the confidentiality of the procedure. Those submitting complaints are at least
aware of the stages their complaint will encounter before any result occurs.
168 | MONITORING AND ENFORCING HUMAN RIGHTS

DECISION 104 Ex/3.3 Continued

Procedures:
14.(b) The Director-General shall:

(i) acknowledge receipt of communication and inform the authors thereof of the above-
mentioned conditions governing admissibility;
(ii) ascertain that the author of the communication has no objection to his communication,
after having been communicated to the government concerned, being brought to the
notice of the Committee and to his name being divulged;
(iii) upon receipt of an affirmative answer from the author of the communication,
transmit the communication to the government concerned, informing it that the
communication will be brought to the notice of the Committee, together with any
reply the government may wish to make;
(iv) transmit the communication to the Committee, together with the reply, if any, of the
government concerned and additional relevant information from the author, taking
into account the need to proceed without undue delay;

(c) the Committee shall examine in private session the communications transmitted to it by
the Director-General;
(d) the Committee shall decide on the admissibility of communications in accordance with
the above-mentioned conditions;
(e) representatives of the governments concerned may attend meetings of the Committee
in order to provide additional information or to answer questions from members of the
Committee on either admissibility or the merits of the communication;
(f) the Committee may avail itself of the relevant information at the disposal of the
Director-General;
(g) in consideration of a communication, the Committee may, in exceptional circumstances,
request the Executive Board to authorize it under Rule 29 of the Rules of Procedure to take
appropriate action;
(h) the Committee may keep a communication submitted to it on its agenda while seeking
additional information it may consider necessary for the disposition of the matter;
(i) the Director-General shall notify the author of the communication and the government
concerned of the Committee’s decision on the admissibility of the communication;
 MONITORING AND ENFORCING HUMAN RIGHTS | 169

(j) the Committee shall dismiss any communication which, having been found admissible,
does not, upon examination of the merits, appear to warrant further action. The author of
the communication and the government concerned shall be notified accordingly;
(k) communications which warrant further consideration shall be acted upon by the
Committee with a view to helping to bring about a friendly solution designed to advance
the promotion of the human rights falling within UNESCO’s fields of competence;
15 Decides further that the Committee shall submit confidential reports to the Executive
Board at each session on the carrying out of its mandate under the present decision.
These reports shall contain appropriate information arising from its examination of the
communications which the Committee considers it useful to bring to the notice of the
Executive Board. The reports shall also contain recommendations which the Committee
may wish to make either generally or regarding the disposition of a communication under
consideration;
16 Decides to consider confidential reports of the Committee in private session and to take
further action as necessary in accordance with Rule 28 of the Rules of Procedure;
17 Decides also that communications transmitted to it by the Committee which testify to the
existence of a question shall be dealt with in accordance with paragraph 18 below;
18 Considers that questions of massive, systematic or flagrant violations of human rights
and fundamental freedoms – including, for example, those perpetrated as a result of
policies of aggression, interference in the internal affairs of States, occupation of foreign
territory and implementation of a policy of colonialism, genocide, apartheid, racialism, or
national and social oppression – falling within UNESCO’s fields of competence should be
considered by the Executive Board and the General Conference in public meetings.

Question
Compare this approach to that of the United Nations Human Rights Council (outlined earlier). Are there any
advantages in the UNESCO system over and above that of the Council?

Note the emphasis on securing a friendly solution. This appears to be the primary purpose of the
procedure and obviously reinforces the statement at the beginning of the Decision, that the pro-
cess is not intended to be judicial in nature. The UNESCO procedure is, in general, confidential
although as the decision notes, massive, systematic or flagrant violations of human rights are to
be considered in public meetings. While arguably creating a system which is attractive to States,
this also demonstrates respect for the State’s powers and responsibilities. Establishing a confidential
dialogue with a State should permit a full exploration of the facts and any contentious issues.

Question
Is the UNESCO system unduly limited? Are there any lessons to be learned for the other international
systems?

The UNESCO system has been reasonably successful: according to statistics published by
UNESCO, the majority of communications considered by the Committee on Conventions and
Recommendations were settled. Given the confidential nature of the procedure, it is difficult to
obtain more specific information thereon. However, UNESCO record a wide variety of results
secured through the procedure including on freedom of movement, employment, publications
and changes of laws.
The Committee on Conventions and Recommendations, which receives and considers indi-
vidual and group communications, has a renewable mandate to examine considerations under the
procedure outlined earlier and to consider various matters relating to the human rights instruments
adopted by UNESCO. The current Committee has 30 members and a chairperson.
170 | MONITORING AND ENFORCING HUMAN RIGHTS

6.3 United Nations Security Council: responsibility to

protect, and sanctions
The Security Council, primary organ of the United Nations, has an array of powers to ensure
States comply with international law. While these powers can be extended to include international
human rights, the most significant hurdle to be overcome with respect to international human
rights law lies in a premise underpinning the Charter of the United Nations itself.

CHARTER OF THE UNITED NATIONS, Article 2(7)

Nothing contained in the present Charter shall authorise the United Nations to intervene in
matters which are essentially within the domestic jurisdiction of any State or shall require the
Members to submit such matters to settlement under the present Charter; but this principle
shall not prejudice the application of enforcement measures under Chapter VII.

Perhaps the most startling example of the Security Council, indeed the entire United Nations
system failing to address a major abuse of international human rights because it was deemed to be
an internal affair of the State, is the genocide in Rwanda in 1994.

United Nations Secretary-General’s address on the tenth anniversary of the genocide in Rwanda,
April 2004, available from https://www.un.org/sg/en/content/sg/statement/2004-04-07/
message-secretary-general-ceremony-commemorating-10th-anniversary

The genocide in Rwanda should never have happened. But it did. Neither the UN Secretariat,
nor the Security Council, nor Member States in general, nor the international media, paid
enough attention to the gathering signs of disaster. Eight hundred thousand men, women
and children were abandoned to the most brutal of deaths, as neighbour killed neighbour
and sanctuaries such as churches and hospitals were turned into slaughterhouses. The
international community failed Rwanda, and that must leave us always with a sense of bitter
regret and abiding sorrow.

Given that the very nature of international human rights monitoring requires interference in areas
within the normal internal competence of the State, the situation in Rwanda is perhaps all the
more tragic. Obviously there are a number of reasons contributing towards the neglect evidenced
by the international community in this extreme situation. It can be contrasted with the situation
a year or so earlier in the then Yugoslavia. International intervention was forthcoming through
NATO and allied troops.

Question
What reasons are there for the difference in treatment experienced by Rwanda and Yugoslavia?

More significantly, the Security Council enjoys a range of powers in terms of the Charter to inter-
vene in matters threatening international peace or security, including violations of international
human rights. The powers are primarily peaceful (Chapter VI) but extend to authorisation of the
use of force (Chapter VII). One characteristic of contemporary international human rights is the
increased willingness of the Security Council, indeed the United Nations, to intervene in quasiin-
ternal matters. There are a number of examples; what follows is but a sample:
Resolution 2451 (2018) on Yemen, following up the Stockholm Agreement of December 2018
and authorizing a monitoring team to further implementation thereof.
Resolution 1973 (2011) on Libya, which authorised the use of force to protect the civilian
population.
 MONITORING AND ENFORCING HUMAN RIGHTS | 171

Resolution 1368 (2001) on threats to international peace and security caused by terrorist acts,
see also Resolution 2462 (2019) on preventing and combating the financing of terrorism.
Resolution 569 (1985) on South Africa, condemning a number of human rights infringements.
Resolution 4 (1946) on the Spanish question demonstrating the relationship between internal
politics and international peace and security.

Question
Ascertain the veracity of the allegation that politics and not respect for human dignity dictate the actions of the
Security Council. Especially have regard to the potential for veto by the permanent members of the Security Council
(i.e. France, People’s Republic of China, Russian Federation, United Kingdom and United States of America).

In accordance with the provisions of the United Nations Charter, the Security Council has pri-
mary responsibility for peace and security matters. Accordingly, it may act when violations of
human rights constitute a threat to international peace and security. There is growing support for
(though equally marked scepticism of) the concept of responsibility to protect (R2P) in interna-
tional law. Under that doctrine, States are obligated to be proactive, even intervening, when seri-
ous violations of human rights and humanitarian law occur.

Office of the Special Adviser on the Prevention of Genocide, ‘The Responsibility to Protect’
(https://www.un.org/en/genocideprevention/)

Prevention requires apportioning responsibility to and promoting collaboration between

concerned States and the international community. The duty to prevent and halt genocide and
mass atrocities lies first and foremost with the State, but the international community has a
role that cannot be blocked by the invocation of sovereignty. Sovereignty no longer exclusively
protects States from foreign interference; it is a charge of responsibility where States are
accountable for the welfare of their people.

The extent to which the doctrine extends is debatable. Is it simply genocide, or can serious and
systematic abuse of other human rights constitute grounds for intervention? Proponents of this
doctrine note the resolution on Libya as a prime example of R2P in action. Extracts of the relevant
resolution follow:

SECURITY COUNCIL RESOLUTION 1973 (2011)

Protection of civilians

4. Authorizes Member States that have notified the Secretary-General, acting nationally or
through regional organizations or arrangements, and acting in cooperation with the Secretary-
General, to take all necessary measures, notwithstanding paragraph 9 of resolution 1970
(2011), to protect civilians and civilian populated areas under threat of attack in the Libyan Arab
Jamahiriya, including Benghazi, while excluding a foreign occupation force of any form on any
part of Libyan territory, and requests the Member States concerned to inform the Secretary-
General immediately of the measures they take pursuant to the authorization conferred by this
paragraph which shall be immediately reported to the Security Council;
. . .

No Fly Zone

6. Decides to establish a ban on all flights in the airspace of the Libyan Arab Jamahiriya in order
to help protect civilians;
7. Decides further that the ban imposed by paragraph 6 shall not apply to flights whose
sole purpose is humanitarian, such as delivering or facilitating the delivery of assistance,
including medical supplies, food, humanitarian workers and related assistance, or evacuating
172 | MONITORING AND ENFORCING HUMAN RIGHTS

foreign nationals from the Libyan Arab Jamahiriya, nor shall it apply to flights authorised by
paragraphs 4 or 8, nor other flights which are deemed necessary by States acting under the
authorisation conferred in paragraph 8 to be for the benefit of the Libyan people, and that these
flights shall be coordinated with any mechanism established under paragraph 8;
8. Authorizes Member States that have notified the Secretary-General and the Secretary-
General of the League of Arab States, acting nationally or through regional organizations or
arrangements, to take all necessary measures to enforce compliance with the ban on flights
imposed by paragraph 6 above, as necessary, and requests the States concerned in cooperation
with the League of Arab States to coordinate closely with the Secretary-General on the
measures they are taking to implement this ban, including by establishing an appropriate
mechanism for implementing the provisions of paragraphs 6 and 7 above,
9. Calls upon all Member States, acting nationally or through regional organizations or
arrangements, to provide assistance, including any necessary overflight approvals, for the
purposes of implementing paragraphs 4, 6, 7 and 8 above;
. . .

Enforcement of the arms embargo

13. Decides that paragraph 11 of resolution 1970 (2011) shall be replaced by the following
paragraph: ‘Calls upon all Member States, in particular States of the region, acting nationally
or through regional organisations or arrangements, in order to ensure strict implementation
of the arms embargo established by paragraphs 9 and 10 of resolution 1970 (2011), to inspect
in their territory, including seaports and airports, and on the high seas, vessels and aircraft
bound to or from the Libyan Arab Jamahiriya, if the State concerned has information that
provides reasonable grounds to believe that the cargo contains items the supply, sale, transfer
or export of which is prohibited by paragraphs 9 or 10 of resolution 1970 (2011) as modified by
this resolution, including the provision of armed mercenary personnel, calls upon all flag States
of such vessels and aircraft to cooperate with such inspections and authorises Member States
to use all measures commensurate to the specific circumstances to carry out such inspections’;
. . .
16. Deplores the continuing flows of mercenaries into the Libyan Arab Jamahiriya and calls
upon all Member States to comply strictly with their obligations under paragraph 9 of resolution
1970 (2011) to prevent the provision of armed mercenary personnel to the Libyan Arab Jamahiriya;

Among the powers available to the Security Council in fulfilment of its mandate are the use of
force (as a last resort) and a variety of mechanisms for ensuring the peaceful resolution of disputes.
The resolution on Libya is a good example of the use of force being authorised in restrictive
circumstances to ensure the protection of the fundamental rights of civilians. Note, however,
the impasse in 2012 with respect to action on Syria – see Chapter 4 for the General Assembly’s
response to this – and on Yemen more recently.

Question
To what extent does a resolution such as that on Libya unnecessarily threaten the sovereignty of the subject
country? Is the infringement of sovereignty justified by the idea of protecting civilians?

One peaceful option open to the Security Council is the imposition of sanctions on a State. The
most substantive raft of sanctions ever imposed were those against Iraq in 1991.

SECURITY COUNCIL RESOLUTION 661 (1990)

Acting under Chapter VII of the Charter,

1 Determines that Iraq so far has failed to comply with paragraph 2 of resolution 660 (1990)
and has usurped the authority of the legitimate Government of Kuwait;
 MONITORING AND ENFORCING HUMAN RIGHTS | 173

2 Decides, as a consequence, to take the following measures to secure compliance of Iraq

with paragraph 2 of resolution 660 (1990) and to restore the authority of the legitimate
Government of Kuwait;
3 Decides that all States shall prevent:

(a) The import into their territories of all commodities and products originating in Iraq
or Kuwait exported therefrom after the date of the present resolution;
(b) Any activities by their nationals or in their territories which would promote or
are calculated to promote the export or trans-shipment of any commodities or
products from Iraq or Kuwait; and any dealings by their nationals or their flag
vessels or in their territories in any commodities or products originating in Iraq or
Kuwait and exported therefrom after the date of the present resolution, including in
particular any transfer of funds to Iraq or Kuwait for the purposes of such activities
or dealings;
(c) The sale or supply by their nationals or from their territories or using their flag
vessels of any commodities or products, including weapons or any other military
equipment, whether or not originating in their territories but not including supplies
intended strictly for medical purposes, and, in humanitarian circumstances,
foodstuffs, to any person or body in Iraq or Kuwait or to any person or body for the
purposes of any business carried on in or operated from Iraq of Kuwait, and any
activities by their nationals or in their territories which promote or are calculated to
promote such sale or supply of such commodities or products;

4 Decides that all States shall not make available to the Government of Iraq, or to any
commercial, industrial or public utility undertaking in Iraq or Kuwait, any funds or any
other financial or economic resources and shall prevent their nationals and any persons
within their territories from removing from their territories or otherwise making
available to that Government or to any such undertaking any such funds or resources
and from remitting any other funds to persons or bodies within Iraq or Kuwait, except
payments exclusively for strictly medical or humanitarian purposes and, in humanitarian
circumstances, foodstuffs;
5 Calls upon all States, including States non-members of the United Nations, to act strictly
in accordance with the provisions of the present resolution notwithstanding any contract
entered into or licence granted before the date of the present resolution;
6 Decides to establish, in accordance with rule 28 of the provisional rules of procedure,
a Committee of the Security Council consisting of all the members of the Council, to
undertake the following tasks and to report on its work to the Council with its observations
and recommendations:

(a) To examine the reports on the progress of the implementation of the present
resolution which will be submitted by the Secretary-General;
(b) To seek from all States further information regarding the action taken by them
concerning the effective implementation of the provisions laid down in the present
resolution;

7 Calls upon all States to co-operate fully with the Committee in the fulfilment of its tasks,
including supplying such information as may be sought by the Committee in pursuance of
the present resolution.

Perhaps it could have been anticipated, but the impact of these sanctions was most dramatic on
Iraqi civilians. Consequently, the United Nations implemented its now somewhat discredited
oil-for-food programme. Investigations are ongoing into the programme and its effect. There is
little doubt that the United Nations will be more reticent over the issue of sanctions in the future.
Note the provisions of Security Council Resolution 1718 (2006) and 1874 (2009) following
174 | MONITORING AND ENFORCING HUMAN RIGHTS

the Democratic People’s Republic of Korea’s nuclear tests in October 2006 and June 2009 and
the sanctions imposed on Iran since 2006 for its failure to halt its uranium enrichment pro-
gramme. Humanitarian actions are clearly protected. The following resolution heralded the easing
of sanctions against Iraq for humanitarian reasons ensuring protection of civilians against sanctions
thereafter.

SECURITY COUNCIL RESOLUTION 986 (1995)

The Security Council

Recalling its previous relevant resolutions,
Concerned by the serious nutritional and health situation of the Iraqi population, and by
the risk of a further deterioration in this situation,
Convinced of the need as a temporary measure to provide for the humanitarian needs
of the Iraqi people until the fulfilment by Iraq of the relevant Security Council resolutions,
including notably resolution 687 (1991) of 3 April 1991, allows the Council to take further
action with regard to the prohibitions referred to in resolution 661 (1990) of 6 August 1990, in
accordance with the provisions of those resolutions,
Convinced also of the need for equitable distribution of humanitarian relief to all segments
of the Iraqi population throughout the country,
Reaffirming the commitment of all Member States to the sovereignty and territorial
integrity of Iraq,
Acting under Chapter VII of the Charter of the United Nations,

1 Authorizes States, notwithstanding the provisions of paragraphs 3 (a), 3 (b) and 4 of

resolution 661 (1990) and subsequent relevant resolutions, to permit the import of
petroleum and petroleum products originating in Iraq, including financial and other
essential transactions directly relating thereto, sufficient to produce a sum not exceeding
a total of one billion United States dollars every 90 days for the purposes set out in this
resolution and subject to the following conditions:

(a) Approval by the Committee established by resolution 661 (1990), in order to ensure
the transparency of each transaction and its conformity with the other provisions of
this resolution, after submission of an application by the State concerned, endorsed
by the Government of Iraq, for each proposed purchase of Iraqi petroleum and
petroleum products, including details of the purchase price at fair market value, the
export route, the opening of a letter of credit payable to the escrow account to be
established by the Secretary-General for the purposes of this resolution, and of any
other directly related financial or other essential transaction;
(b) Payment of the full amount of each purchase of Iraqi petroleum and petroleum
products directly by the purchaser in the State concerned into the escrow account to
be established by the Secretary-General for the purposes of this resolution;

As with all international organisations, the ultimate sanction is expulsion from the organisation.
Those who do not comply with the membership criteria can be asked to leave. Note for example,
the provisions of the Human Rights Council on membership – those States with poor human
rights records can be suspended. This occurred for the first time on 1 March 2011 when the Gen-
eral Assembly resolved to suspend Libya from membership of the UN Human Rights Council –
GA Resolution 65/265 (2011). Libya’s membership was subsequently reinstated.

Question
Why are the United Nations, and indeed regional organisations, reluctant to use the ‘ultimate sanction’ of
expulsion against a State which does not comply with the norms of international and regional law?
 MONITORING AND ENFORCING HUMAN RIGHTS | 175

6.4 International criminal courts, tribunals and processes

While technically not international human rights, but rather international criminal law, interna-
tional criminal law has, as it evolved, made clear that individuals may be prosecuted for very seri-
ous infringements of international human rights.
International criminal law builds on the work of the Nuremberg and Tokyo tribunals estab-
lished after the Second World War and, more recently, the work of the two International Criminal
Tribunals (for Rwanda and the former Yugoslavia).

6.4.1 Ad hoc international criminal tribunals

Ad hoc international criminal tribunals were established under the auspices of the United Nations
to oversee the prosecution of those involved in the atrocities in Rwanda and the former Yugoslavia.
Both these bodies were established by the Security Council and operate as international bodies.

SC RESOLUTION 955 (1994) on the establishment of an international tribunal for Rwanda

1 Decides hereby, having received the request of the Government of Rwanda (S/1994/1115),
to establish an international tribunal for the sole purpose of prosecuting persons
responsible for genocide and other serious violations of international humanitarian law
committed in the territory of Rwanda and Rwandan citizens responsible for genocide and
other such violations committed in the territory of neighbouring States, between 1 January
1994 and 31 December 1994 and to this end to adopt the Statute of the International
Criminal Tribunal for Rwanda annexed hereto;
2 Decides that all States shall cooperate fully with the International Tribunal and its organs
in accordance with the present resolution and the Statute of the International Tribunal
and that consequently all States shall take any measures necessary under their domestic
law to implement the provisions of the present resolution and the Statute, including the
obligation of States to comply with requests for assistance or orders issued by a Trial
Chamber under Article 28 of the Statute, and requests States to keep the Secretary-
General informed of such measures;
3 Considers that the Government of Rwanda should be notified prior to the taking of
decisions under articles 26 and 27 of the Statute;
4 Urges States and intergovernmental and non-governmental organizations to contribute
funds, equipment and services to the International Tribunal, including the offer of expert
personnel;
5 Requests the Secretary-General to implement this resolution urgently and in particular to
make practical arrangements for the effective functioning of the International Tribunal,
including recommendations to the Council as to possible locations for the seat of the
International Tribunal at the earliest time and to report periodically to the Council;
6 Decides that the seat of the International Tribunal shall be determined by the Council
having regard to considerations of justice and fairness as well as administrative efficiency,
including access to witnesses, and economy, and subject to the conclusion of appropriate
arrangements between the United Nations and the State of the seat, acceptable to the
Council, having regard to the fact that the International Tribunal may meet away from its
seat when it considers it necessary for the efficient exercise of its functions; and decides
that an office will be established and proceedings will be conducted in Rwanda, where
feasible and appropriate, subject to the conclusion of similar appropriate arrangements;
7 Decides to consider increasing the number of judges and Trial Chambers of the
International Tribunal if it becomes necessary.
176 | MONITORING AND ENFORCING HUMAN RIGHTS

RESOLUTION 827 (1993) on a tribunal for Yugoslavia

2 Decides hereby to establish an international tribunal for the sole purpose of prosecuting
persons responsible for serious violations of international humanitarian law committed in
the territory of the former Yugoslavia between 1 January 1991 and a date to be determined
by the Security Council upon the restoration of peace and to this end to adopt the Statute
of the International Tribunal annexed to the above-mentioned report;
3 Requests the Secretary-General to submit to the judges of the International Tribunal,
upon their election, any suggestions received from States for the rules of procedure and
evidence called for in Article 15 of the Statute of the International Tribunal;
4 Decides that all States shall cooperate fully with the International Tribunal and its organs
in accordance with the present resolution and the Statute of the International Tribunal
and that consequently all States shall take any measures necessary under their domestic
law to implement the provisions of the present resolution and the Statute, including the
obligation of States to comply with requests for assistance or orders issued by a Trial
Chamber under Article 29 of the Statute;
5 Urges States and intergovernmental and non-governmental organizations to contribute
funds, equipment and services to the International Tribunal, including the offer of expert
personnel;
6 Decides that the determination of the seat of the International Tribunal is subject to the
conclusion of appropriate arrangements between the United Nations and the Netherlands
acceptable to the Council, and that the International Tribunal may sit elsewhere when it
considers it necessary for the efficient exercise of its functions;
7 Decides also that the work of the International Tribunal shall be carried out without
prejudice to the right of the victims to seek, through appropriate means, compensation
for damages incurred as a result of violations of international humanitarian law;
8 Requests the Secretary-General to implement urgently the present resolution and in
particular to make practical arrangements for the effective functioning of the International
Tribunal at the earliest time and to report periodically to the Council;
9 Decides to remain actively seized of the matter.

At present the work of these courts has been wound up with the International Criminal Tribunal
for Rwanda closing on 31 December 2015 and the International Criminal Tribunal for the former
Yugoslavia closing on 31 December 2017. In anticipation of this, in 2010, the Security Council
established the International Residual Mechanism for Criminal tribunals was established by the
Security Council. It has been a stand-alone institution since January 2018. Amongst its tasks are
tracking and prosecuting remaining fugitives, appeals and retrials from the tribunals as necessary,
supervising the enforcement of sentences from the ICTY and ICTR, protecting the thousands of
victims and witnesses involved in the previous trials and the management of the archives of the
ICTR and ICTY.

6.4.2 Mixed courts and tribunals

Mixed courts are primarily established under domestic law with the purpose of examining atroci-
ties committed within the State. They usually apply national and elements of international crimi-
nal law. While not necessarily part of the international system, they merit brief consideration
as their increasing number was perhaps a factor contributing towards the development of the
permanent International Criminal Court. Indeed, the substantial cost of funding ad hoc tribunals
was of concern to the United Nations, and as such procedures became viewed as a necessary
part of post-conflict nation-building/re-building, the potential for increased costs was dramatic.
To many commentators, the mixed courts were thus a cost-saving initiative. Note however, that
 MONITORING AND ENFORCING HUMAN RIGHTS | 177

the jurisdiction of the International Criminal Court is concurrent with national courts, thus the
potential for further mixed courts and tribunals remains.

6.4.2.1 Sierra Leone Special Court

The Sierra Leone Special Court was part of the normal Sierra Leonean judicial system. It was
established on the basis of a treaty concluded between Sierra Leone and the United Nations. Its
most high profile conviction is that of Charles Taylor, former president of Liberia, who was sen-
tenced to 50 years’ imprisonment for aiding and abetting rebels in neighbouring Sierra Leone. His
trial concluded in 2012. Charles Taylor was the first head of State to be convicted of war crimes
since the post–Second World War military tribunals. The case is also notable as Charles Taylor was
not personally charged with being active in Sierra Leonean territory. Rather he was convicted in
his role as head of State for atrocities committed in Sierra Leone, including rape and murder. Civil
war raged in Sierra Leone for many years with only short respites in the immediate aftermath of
sporadic peace agreements. Taylor was held responsible for the impact of his actions.

Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone,
UN Doc. S/2000/915 (2000)

25. It is generally accepted that the decade-long civil war in Sierra Leone dates back to 1991,
when on 23 March of that year forces of the Revolutionary United Front (RUF) entered Sierra
Leone from Liberia and launched a rebellion to overthrow the one-party military rule of the All
People’s Congress (APC). In determining a beginning date of the temporal jurisdiction of the
Special Court within the period since 23 March 1991, the Secretary-General has been guided
by the following considerations:

(a) the temporal jurisdiction should be reasonably limited in time so that the Prosecutor is
not overburdened and the Court overloaded;
(b) the beginning date should correspond to an event or a new phase in the conflict without
necessarily having any political connotations; and
(c) it should encompass the most serious crimes committed by persons of all political and
military groups and in all geographical areas of the country. A temporal jurisdiction
limited in any of these respects would rightly be perceived as a selective or discriminatory
justice.

The court had a different authority than the ad hoc tribunals which were established by a resolu-
tion of the Security Council. However, although it is established in Sierra Leonean law, the court
retained international authority and judges from the country and overseas.

STATUTE OF THE SPECIAL COURT FOR SIERRA LEONE 2000, Articles 12 and 14

Article 12

Composition of the Chambers

1 The Chambers shall be composed of eleven independent judges, who shall serve as
follows:

(a) Three judges shall serve in each of the Trial Chambers, of whom one shall be a
judge appointed by the Government of Sierra Leone, and two judges appointed by the
Secretary-General of the United Nations (hereinafter ‘the Secretary-General’);
(b) Five judges shall serve in the Appeals Chamber, of whom two shall be judges
appointed by the Government of Sierra Leone, and three judges appointed by the
Secretary-General.
178 | MONITORING AND ENFORCING HUMAN RIGHTS

2 Each judge shall serve only in the Chamber to which he or she has been appointed.
3 The judges of the Appeals Chamber and the judges of the Trial Chambers, respectively,
shall elect a presiding judge who shall conduct the proceedings in the Chamber to which
he or she was elected. The presiding judge of the Appeals Chamber shall be the President
of the Special Court.
4 In addition to the judges sitting in the Chambers and present at every stage of the proceedings,
the presiding judge of a Trial Chamber or the Appeals Chamber shall designate an alternate
judge appointed by either the Government of Sierra Leone or the Secretary-General, to be
present at each stage of the trial, and to replace a judge, if that judge is unable to continue
sitting.

Article 14

Rules of Procedure and Evidence

1 The Rules of Procedure and Evidence of the International Criminal Tribunal for Rwanda
obtaining at the time of the establishment of the Special Court shall be applicable mutatis
mutandis to the conduct of the legal proceedings before the Special Court.
2 The judges of the Special Court as a whole may amend the Rules of Procedure and Evidence
or adopt additional rules where the applicable Rules do not, or do not adequately, provide
for a specific situation. In so doing, they may be guided, as appropriate, by the Criminal
Procedure Act, 1965, of Sierra Leone.

The court is international in composition, with judges from various countries: What then was the
jurisdiction of this body?

STATUTE OF THE SPECIAL COURT FOR SIERRA LEONE 2000, Articles 1–5

Article 1

Competence of the Special Court

The Special Court shall have the power to prosecute persons most responsible for serious
violations of international humanitarian law and Sierra Leonean law committed in the territory
of Sierra Leone since 30 November 1996.

Article 2

Crimes against humanity

The Special Court shall have the power to prosecute persons who committed the following
crimes as part of a widespread or systematic attack against any civilian population:
The Special Court shall have the power to prosecute persons who committed or ordered
the commission of serious violations of article 3 common to the Geneva Conventions of 12
August 1949 for the Protection of War Victims, and of Additional Protocol II thereto of 8 June
1977.
These violations shall include:

(a) Murder;
(b) Extermination;
(c) Enslavement;
(d) Deportation;
(e) Imprisonment;
(f) Torture;
(g) Rape, sexual slavery, enforced prostitution, forced pregnancy and any other form of sexual
violence;
 MONITORING AND ENFORCING HUMAN RIGHTS | 179

(h) Persecution on political, racial, ethnic or religious grounds;

(i) Other inhumane acts.

Article 3

Violations of article 3 common to the Geneva Conventions and of Additional

Protocol II

(a) Violence to life, health and physical or mental well-being of persons, in particular murder
as well as cruel treatment such as torture, mutilation or any form of corporal punishment;
(b) Collective punishments;
(c) Taking of hostages;
(d) Acts of terrorism;
(e) Outrages upon personal dignity, in particular humiliating and degrading treatment, rape,
enforced prostitution and any form of indecent assault;
(f) Pillage;
(g) The passing of sentences and the carrying out of executions without previous judgement
pronounced by a regularly constituted court, affording all the judicial guarantees which
are recognized as indispensable by civilized peoples;
(h) Threats to commit any of the foregoing acts.

Article 4

Other serious violations of international humanitarian law

The Special Court shall have the power to prosecute persons who committed the following
serious violations of international humanitarian law:

(a) Intentionally directing attacks against the civilian population as such or against individual
civilians not taking direct part in hostilities;
(b) Intentionally directing attacks against personnel, installations, material, units or vehicles
involved in a humanitarian assistance or peacekeeping mission in accordance with the
Charter of the United Nations, as long as they are entitled to the protection given to
civilians or civilian objects under the international law of armed conflict;
(c) Abduction and forced recruitment of children under the age of 15 years into armed forces
or groups for the purpose of using them to participate actively in hostilities.

Article 5

Crimes under Sierra Leonean law

The Special Court shall have the power to prosecute persons who have committed the following
crimes under Sierra Leonean law:

(a) Offences relating to the abuse of girls under the Prevention of Cruelty to Children Act,
1926 (Cap. 31):
(i) Abusing a girl under 13 years of age, contrary to section 6;
(ii) Abusing a girl between 13 and 14 years of age, contrary to section 7;
(iii) Abduction of a girl for immoral purposes, contrary to section 12.

(b) Offences relating to the wanton destruction of property under the Malicious Damage Act,
1861:
(i) Setting fire to dwelling-houses, any person being therein to section 2;
(ii) Setting fire to public buildings, contrary to sections 5 and 6;
(iii) Setting fire to other buildings, contrary to section 6.
180 | MONITORING AND ENFORCING HUMAN RIGHTS

Note that the jurisdiction is concurrent with other Sierra Leonean courts. Jurisdiction is over
international crimes and national crimes. There are some differences with the wordings of the
Statute and that of the ad hoc tribunals and the Statute of Rome.
The conflict in Sierra Leone was noted for the involvement of children. Indeed, the role of
children in the conflict and their need for special rehabilitation measures has been a feature of the
Truth and Reconciliation Process which is ongoing in the country. It is perhaps interesting to note
that the Sierra Leonean court has jurisdiction over those aged 15 and over, albeit in accordance
with international guidelines and the Truth and Reconciliation Process.
As to why the United Nations elected to establish a mixed court for Sierra Leone, perhaps
a hint can be found in the provisions on funding the court. This Special Court was, unlike the
Rwanda and Yugoslavian tribunals, funded by voluntary contributions. It also proved efficient in
terms of being established in 2002, the first cases starting in 2003 and the entire Court concluding
in 2013, transferring to a residual mechanism.

6.4.2.2 East Timor special panels

Conflict in East Timor accompanied its moves towards independence. Originally a Portuguese
colony, it became a self-governing territory in 1960 (UN General Assembly Resolution 1542
(XV) 1960) under Portuguese administration, but was occupied in 1975 by Indonesian forces and
deemed part of Indonesia. Following negotiations between Indonesia, Portugal and Timorese
representatives, a referendum on self-determination was held in August 1999. Over three-quarters
of the population voted for independence, despite increased violence and reports of intimidation.
The Security Council authorised the intervention of an international force to restore peace and
order (Security Council Resolution 1264, 1999) and proceeded to establish the United Nations
Transitional Administration in East Timor (Resolution 1272, 1999) as part of the nation-building
process. Securing independence and full self-determination was a slow process but successful and
East Timor became the 191st Member State of the United Nations in 2002.
Part of the Transitional Administration’s mandate was to create a judicial system, though the
issue of prosecuting those implicated in the violence and atrocities during Indonesian rule was
problematic. A United Nations Commission of Inquiry was established and supported the creation
of an international tribunal with Timorese and Indonesian representatives (UN Doc. A/54/726,
2000). However, the United Nations eventually supported the national prosecution of offenders.
Special Panels were established to prosecute international and serious criminal law offences. These
sat from 2000–2006 in Dili to try serious criminal offences committed in 1999. Similarly, Indo-
nesian law was invoked to ensure the prosecution of those resident within Indonesia. However,
the operation of the Timorese justice system and the Indonesian prosecutorial system has fallen
short of the normal standard of international law. A United Nations independent Commission
of Experts reviewed the prosecution of serious violations of human rights in Timor-L’este (East
Timor) in 1999 (UN Doc. S/2005/458) and, while recognising the positive impact of the judicial
process, raised a number of concerns. Prosecutions are still ongoing but no action has been taken
to establish an international body.

6.4.2.3 Others
Cambodia: The reign of Pol Pot and the Khmer Rouge and Cambodia’s subsequent civil con-
flict resulted in significant violence and genocide. Within Cambodia, it was only in 1991 that a
peace agreement was signed and the United Nations created an interim administration to oversee
the transfer of authority to the elected Cambodian authorities. Thereafter, Cambodia requested
UN assistance in the prosecution of Khmer Rouge members. An expert panel was appointed to
consider the options (GA Resolution 52/135 (1997)) and recommended an ad hoc tribunal. This
was rejected by Cambodia and agreement was eventually reached on the establishment of a mixed
 MONITORING AND ENFORCING HUMAN RIGHTS | 181

tribunal. The resulting extraordinary Chambers located within the Cambodian legal system have
jurisdiction over international crimes and include international judges. The Chambers are only
just entering their operational phase. The length of time between the genocide and trials renders
this scenario likely to be repeated with negative implications for justice. The Special Trial insti-
tuted proceedings against Kaing Guet Eav in February 2009. This former teacher had headed the
notorious S-21 prison in Phnom Penh and was the first person to be convicted by the court (in
July 2010). His appeal failed in February 2012 and his sentence was increased from 35 years to life
imprisonment. Contributions made to jurisprudence include forced marriage as a crime.
Iraq: Note the trial of Saddam Hussein and his co-accused, though for crimes against human-
ity, were held in Iraqi courts in accordance with Iraqi law. The Iraqi High Tribunal (now Supreme
Iraqi Criminal Tribunal) thus functions in accordance with the principle that national law should
be used to effect prosecutions when and where possible.
Lebanon: The Special Tribunal for Lebanon (STL) was established in the wake of the assas-
sination of Rafik Hariri, the former Prime Minister of Lebanon, on 14 February 2005. Hariri
was assassinated in a large explosion that killed 21 others and injured 226 more people in Beirut.
The attack was immediately denounced by the international community and then-United Nations
Secretary-General Kofi Annan, who ‘condemn[ed] in the strongest terms those who instigated,
planned and executed this callous political assassination’ (Special Tribunal for Lebanon, STL Time-
line of Events 2017).
Syria: Since 2011, the conflict in Syria has caused the death of hundreds of thousands of
individuals and the displacement of millions. Efforts to refer the Syrian situation to the ICC have
consistently failed despite well-documented reports about the commission of serious crimes in
Syria, including the use of chemical weapons against civilians, torture, the use of child soldiers,
and crimes of sexual violence. Only a handful of situations have been investigated thus far, mostly
within national jurisdictions of Western European nations. While the Security Council has been
deadlocked with respect to Syria, General Assembly passed a resolution in December 2016, estab-
lishing the International, Impartial and Independent Mechanism to Assist in the Investigation and
Prosecution of Persons Responsible for the Most Serious Crimes under International Law Com-
mitted in the Syrian Arab Republic since March 2011.
Kosovo: The Kosovo Specialist Chambers (KSC) and Specialist Prosecutor’s Office (KSPO)
were established in August 2015. They have jurisdiction over crimes against humanity, war crimes,
and other crimes under Kosovo law, and, like the ICTY and STL, they are located at The Hague
(Kosovo Specialist Chambers and Specialist Prosecutor’s Office, Background 2017). In the wake
of the publication of a Council of Europe Parliamentary Assembly Report in January 2011, the
European Union decided to create a Special Investigative Task Force (SITF) in September 2011,
to conduct a criminal investigation into some of the allegations contained in the report, as well
as into other crimes related to such allegations. SITF determined, by summer of 2014, that the
evidence investigated was sufficient to support an indictment; however, questions arose as to the
adequate judicial forum where such allegations could be investigated and potentially prosecuted.
The European Union consulted with Kosovar authorities, through an exchange of letters, regard-
ing the best modality for dealing with these serious allegations. On 3 August 2015, the Kosovo
Assembly adopted Article 162 of the Kosovo Constitution and the Law on Specialist Chambers
and Specialist Prosecutor’s Office (Kosovo Specialist Chambers and Specialist Prosecutor’s Office,
Background, 2017).

6.4.3 International criminal court

The present law relevant to international criminal law can be found in the Statute of Rome
creating the International Criminal Court. Note that this treaty is not signed by all Member
States of the international community and, for those falling outwith its jurisdiction, customary
182 | MONITORING AND ENFORCING HUMAN RIGHTS

international law alone applies. The International Criminal Court operates alongside but outwith
the United Nations system. It is thus independent.

STATUTE OF THE INTERNATIONAL CRIMINAL COURT 1998, Article 5

The jurisdiction of the Court shall be limited to the most serious crimes of concern to the
international community as a whole. The Court has jurisdiction in accordance with this Statute
with respect to the following crimes:

(a) The crime of genocide;

(b) Crimes against humanity;
(c) War crimes;
(d) The crime of aggression.

Articles 6–8 define the crimes identified in the preceding (a)–(c); the crime of aggression will
be defined separately when international consensus emerges. The definitions of the other crimes
are relatively detailed as is appropriate for an instrument which will serve as the basis of legal
prosecutions.

Questions
Look up the definitions of the aforementioned crimes. Do they possess the necessary legal quality to identify
perpetrators for appropriate prosecutions?
Compare the definition of genocide with that enshrined in the Genocide Convention. Has the definition
altered? It is also interesting to read the jurisprudence of the two international criminal tribunals which have
considerably developed the scope of genocide.

STATUTE OF THE INTERNATIONAL CRIMINAL COURT 1998, Article 13

The Court may exercise its jurisdiction with respect to a crime referred to in Article 5 in
accordance with the provisions of this Statute if:

(a) A situation in which one or more of such crimes appears to have been committed is
referred to the Prosecutor by a State Party in accordance with Article 14;
(b) A situation in which one or more of such crimes appears to have been committed is
referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter
of the United Nations; or
(c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with
Article 15.

There are a couple of important limitations in respect of jurisdiction. In accordance with Article
11 of the Statute, the Court only has jurisdiction in respect of crimes committed after the entry
into force of the Statute and after the entry into force of the Statute for the State concerned (unless
the State has agreed to backdate jurisdiction to the entry into force of the Statute). Perhaps more
important are the admissibility criteria which are found in Article 17 of the Statute.
However, unlike other areas of international human rights, international criminal law can be
enforced against individuals.

STATUTE OF THE INTERNATIONAL CRIMINAL COURT 1998, Article 25

(1) The Court shall have jurisdiction over natural persons pursuant to this Statute.
(2) A person who commits a crime within the jurisdiction of the Court shall be individually
responsible and liable for punishment in accordance with this Statute.
 MONITORING AND ENFORCING HUMAN RIGHTS | 183

The scope of individual liability is considerable. Read Articles 25(3)–33, which detail provisions
regarding the establishment and avoidance of individual liability.

Question
To what extent can individuals avoid liability for their actions? Do these provisions undermine the effectiveness
of international criminal law?

Individual liability for violations of human rights, albeit violations of a limited range of very seri-
ous abuses of human rights, in many respects challenges traditional views of international law,
insofar as States no longer suffer sole responsibility for implementing human rights. In extreme
situations, individuals too must recognise and respect the dignity and worth of their fellow human
beings, and act accordingly.

Question
Is the extension of liability for violations of rights to individuals implicated in international crimes acceptable
under international law?

6.4.3.1 Comment
Consider the example of the US-led action in Iraq. While the United States has not ratified
the Rome Statute, the United Kingdom has. Consequently, should any action of the United
Kingdom’s forces have infringed the provisions of the Statute, there would have been the possi-
bility of reference to the international Prosecutor. However, as the nature of international crimi-
nal law encourages concurrent jurisdiction, the UK elected to invoke national law, through the
courts martial system, to investigate and prosecute those allegedly involved in breaching interna-
tional criminal and humanitarian law. For the record, the United States of America also instituted
national proceedings against several of its troops allegedly involved in war crimes and other inap-
propriate behaviour in Iraq. The Office of the Prosecutor (ICCt) stated no international action
would follow.

6.4.4 Case study: first International Criminal Court warrants

and trial
In October 2005, the first five arrest warrants were unsealed by the Office of the Prosecutor of
the International Criminal Court. These were issued in accordance with the procedure prescribed
by the Statute of Rome and followed referral of the conflict in northern Uganda to the Court
by the Government of Uganda in December 2003. Following discussions the Prosecutor, Luis
Moreno-Ocampo, decided to open a formal investigation. This culminated in the application for
arrest warrants, made to the Pre-Trial Chamber II in May 2005. Warrants were issued in July 2005
but remained sealed until the Pre-Trial Chamber was satisfied that all necessary measures had been
taken to protect victims and potential witnesses.
All five accused were senior members of the Lord’s Resistance Army, an armed rebel group
claiming to fight on behalf of the Acholi peoples of northern Uganda but in fact frequently attack-
ing the Acholi people themselves. The conflict has been ongoing for 19 years and, according to
the Prosecutor, almost half the civilian population of northern Uganda had lost their freedom and
were living in camps for internally displaced persons. During the period under investigation, July
2002 until July 2004, the Prosecutor’s office amassed evidence of thousands of killings and abduc-
tions. Murder and enslavement were of particular concern.
The suspects were all involved in the conflict in Northern Uganda. Joseph Kony, the leader
of the Lord’s Resistance Army, was connected with 12 counts of crimes against humanity and
21 counts of war crimes. These included rape, murder, sexual enslavement, forced enlisting of
184 | MONITORING AND ENFORCING HUMAN RIGHTS

children and enslavement. Vincent Otti, the second in command of the Lord’s Resistance Army,
was named for 11 counts of crimes against humanity and 21 counts of war crimes. Other high-
ranking members of the Lord’s Resistance Army’s command who were under warrant were Raska
Lukwiya, Okot Odhiambo and Dominic Ongwen (although the Prosecutor noted that he had
reputedly been killed in combat). In accordance with the terms of the Statute of Rome, the alleged
crimes had all been committed after July 2002 when the jurisdiction of the Court commenced.
The first arrest was made in March 2006.
Thomas Lubanga, a Congolese militia leader, was the first to stand trial before the ICCt, his
trial beginning 28 January 2009 and concluding with his conviction in March 2012 in respect of
recruiting and using child soldiers in his rebel army. On 10 July 2012, Lubanga was sentenced for
14 years by the ICC. The sentencing was a landmark for the first permanent international criminal
court.
The Prosecutor is continuing to investigate situations in Uganda, the Democratic Republic
of the Congo, Kenya and Darfur, Sudan. The latter was referred to the Court by the Security
Council under Chapter VII of the UN Charter.
Following his investigations, the Prosecutor controversially issued a warrant for the arrest of
Omar Hassan Al Bashir, then President of Sudan, on 4 March 2009. The warrant specified war
crimes and crimes against humanity and was the first warrant issued against a sitting Head of State.

Question
The Pre-trial Chamber of the International Criminal Court decided Al Bashir was not immune from prosecu-
tion. Many governments objected vociferously. Evaluate the arguments for and against indicting a Head of State.

It is obviously not possible to comment at length on the work of the International Criminal Court
as only one conviction has emerged in over ten years. Neither is it possible to determine that the
balance between national prosecutions and referrals to the International court has been satisfacto-
rily achieved. Full information on national prosecutions is not available.

6.4.5 Truth-finding
Alongside these mechanisms, the UN has actively encouraged a number of reconciliation and truth-
finding initiatives. These form part of the package of transitional justice measures applicable to post-
conflict States. Truth-finding, or fact-finding, is often an important stage in post-conflict strategies
to rebuild States. Essentially such systems aim at creating an outlet for the airing of grievances and an
independent mechanism for establishing facts. Blame is not necessarily attributed, although some of
the procedures can be quasi-judicial. The ultimate objective is to ‘clear the air’ and allow rebuilding
to continue. However, there are also examples when reparations are sought and awarded.
A good review of current issues is available online: Anja Mihr (ed.), ‘Transitional Justice: Between
Criminal Justice, Atonement and Democracy’, SIM special no. 37, Utrecht University, 2012.

6.5 Organisation of American States Inter-American

Commission on Human Rights
In general, the regional human rights systems are limited by the powers granted to the salient
monitoring body in terms of the principal human rights instrument. The European Court of
Human Rights operates under the European Convention for the Protection of Human Rights
and Fundamental Freedoms and the African Commission on Human and Peoples’ Rights operates
in accordance with the African Charter on Human and Peoples’ Rights. The African Court of
Human Rights, while formed under the protocol to the Charter, also may assume some potential
for human rights implementation in terms of the Treaty on African Union, as well as the African
 MONITORING AND ENFORCING HUMAN RIGHTS | 185

Court of Justice and Human Rights. These courts of the regional bodies are all considered in
Chapter 7 on treaty-specific enforcement and monitoring mechanisms. The less judicial mecha-
nisms created under the auspices of the Organisation for Security and Cooperation in Europe (see
Chapter 5) have a broad jurisdiction over States, albeit with their consent.
Uniquely among regional organisations, the OAS incorporates a system for monitoring com-
pliance with human rights norms which exists outwith the confines of the formal treaty mecha-
nism. The Inter-American Commission enjoys a pervasive jurisdiction to monitor human rights
generally within the Organization of American States. As Chapter 5 noted, this means it has juris-
diction over all Member States rather than just those States ratifying the Convention and accepting
its jurisdiction thereunder. For those States who have not accepted the Convention, the Commis-
sion is limited to its residual consultative powers under the OAS Charter.

CHARTER OF THE ORGANIZATION OF AMERICAN STATES 1948, AS AMENDED CHAPTER XV

THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS Article 106

There shall be an Inter-American Commission on Human Rights, whose principal function shall
be to promote the observance and protection of human rights and to serve as a consultative
organ of the Organization in these matters.
An inter-American convention on human rights shall determine the structure, competence,
and procedure of this Commission, as well as those of other organs responsible for these
matters. . . .

Article 145

Until the Inter-American convention on human rights, referred to in Chapter XV, enters into
force, the present Inter-American Commission on Human Rights shall keep vigilance over the
observance of human rights.

The composition and procedures are addressed in detail in the American Convention on Human
Rights and associated documentation (see Articles 34–51).

AMERICAN CONVENTION ON HUMAN RIGHTS 1969

Article 35

The Commission shall represent all the member countries of the Organization of American
States. . . .

Article 41

The main function of the Commission shall be to promote respect for and defence of human
rights. In the exercise of its mandate, it shall have the following functions and powers:

a to develop an awareness of human rights among the peoples of America:

b to make recommendations to the governments of the Member States, when it considers
such action advisable, for the adoption of progressive measures in favour of human
rights within the framework of their domestic law and constitutional provisions as well as
appropriate measures to further the observance of those rights;
c to prepare such studies or reports as it considers advisable in the performance of its
duties;
d to request the governments of the Member States to supply it with information on the
measures adopted by them in matters of human rights;
e to respond, through the General Secretariat of the Organization of American States, to
inquiries made by the Member States on matters related to human rights and, within the
186 | MONITORING AND ENFORCING HUMAN RIGHTS

limits of its possibilities, to provide those States with the advisory services they request;
f to take action on petitions and other communications pursuant to its authority under the
provisions of Articles 44 through 51 of this Convention; and
g to submit an annual report to the General Assembly of the Organization of American
States.

Article 42

The States Parties shall transmit to the Commission a copy of each of the reports and studies
that they submit annually to the Executive Committees of the Inter-American Economic and
Social Council and the Inter-American Council for Education, Science, and Culture, in their
respective fields, so that the Commission may watch over the promotion of the rights implicit
in the economic, social, educational, scientific, and cultural standards set forth in the Charter
of the Organization of American States as amended by the Protocol of Buenos Aires.

The Statute of the Commission provides details of its operational procedures, as does its rules of
procedures.

STATUTE OF THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS

APPROVED BY RESOLUTION NO 447 TAKEN BY THE GENERAL ASSEMBLY
OF THE OAS 9TH SESSION, 1979

Article 1

1 The Inter-American Commission on Human Rights is an organ of the Organization of

American States, created to promote the observance and defence of human rights and to
serve as consultative organ of the Organization in this matter.
2 For the purposes of the present Statute, human rights are understood to be:

a The rights set forth in the American Convention on Human Rights, in relation to the
States Parties thereto;
b The rights set forth in the American Declaration of the Rights and Duties of Man, in
relation to the other Member States. . . .

Article 18

The Commission shall have the following powers with respect to the Member States of the
Organization of American States:

a to develop an awareness of human rights among the peoples of the Americas;

b to make recommendations to the governments of the States on the adoption of progressive
measures in favour of human rights in the framework of their legislation, constitutional
provisions and international commitments, as well as appropriate measures to further
observance of those rights;
c to prepare such studies or reports as it considers advisable for the performance of its
duties;
d to request that the governments of the States provide it with reports on measures they
adopt in matters of human rights;
e to respond to inquiries made by any Member State through the General Secretariat of the
Organization on matters related to human rights in the State and, within its possibilities,
to provide those States with the advisory services they request;
f to submit an annual report to the General Assembly of the Organization, in which due
account shall be taken of the legal regime applicable to those States Parties to the American
Convention on Human Rights and of that system applicable to those that are not Parties;
 MONITORING AND ENFORCING HUMAN RIGHTS | 187

g to conduct on-site observations in a State, with the consent or at the invitation of the
government in question; and
h to submit the program-budget of the Commission to the Secretary-General, so that he
may present it to the General Assembly. . . .

Article 20

In relation to those Member States of the Organization that are not parties to the American
Convention on Human Rights, the Commission shall have the following powers, in addition to
those designated in Article 18:

a to pay particular attention to the observance of the human rights referred to in Articles I,
II, III, IV, XVIII, XXV, and XXVI of the American Declaration of the Rights and Duties of Man;
b to examine communications submitted to it and any other available information, to
address the government of any Member State not a Party to the Convention for information
deemed pertinent by this Commission, and to make recommendations to it, when it finds
this appropriate, in order to bring about more effective observance of fundamental human
rights; and,
c to verify, as a prior condition to the exercise of the powers granted under subparagraph b.
above, whether the domestic legal procedures and remedies of each Member State not a
Party to the Convention have been duly applied and exhausted.

The United States of America has not accepted the American Convention on Human Rights and
thus complaints against it cannot be brought before the Inter-American Court of Human Rights.
However, it has more general responsibilities to adhere to under the American Declaration on
the Rights and Duties of Man. This has prompted a number of complaints to the Inter-American
Commission and a number of findings of violations of the American Declaration of the Rights
and Duties of Man: Mary and Carrie Dann v United States of America, Report No. 75/02 (2002)
mentioned in Chapter 5 is one major example concerning indigenous people’s rights. Many
of the other complaints relate to criminal and appeal procedures for those convicted of capital
offences and held on death row (for example: Report No. 1/05 Case 12.430 Roberto Moreno
Ramos v United States (2005) or Report No. 100/03, Case 12.240 Douglas Thomas v United States
(2003)).

Further reading
General public international law textbooks provide information on the basic United Nations organs –
see Chapter 1 for some suggestions.
Acquaviva, G., ‘Best Before Date Shown’: Residual Mechanisms at the ICTY’ in B. Swart, A. Zaha-
rand and G. Sluiter (eds), The Legacy of the International Criminal Tribunal for the Former Yugo-
slavia, 2011, Oxford: OUP, pp 507–537.
Alston, P., ‘Hobbling the Monitors: Should U.N. Human Rights Monitors Be Accountable?’ (2011)
52 Harvard International Law Journal 561.
Cassesse, A., International Criminal Law, 2nd edn, 2008, Oxford: OUP.
Cryer, R., Prosecuting International Crimes – Selectivity and the International Criminal Law Regime,
2011, Cambridge: CUP.
Domínguez-Redondo, E., ‘The History of Special Procedures: A “Learning-by-Doing” Approach
to Human Rights Implementation’ in A. Nolan, R. Freedman and T. Murphy (eds), The United
Nations Special Procedures System, 2017, Leiden: Brill.
188 | MONITORING AND ENFORCING HUMAN RIGHTS

Donders, Y., ‘UNESCO’s Communications Procedure on Human Rights’ in N. Rodley and T. Van Ho
(eds), Research Handbook on Human Rights Institutions and Enforcement, 2018, London: Edward
Elgar Publishing.
Evans, M., ‘The UN Special Rapporteur on Torture in the Developing Architecture of UN Torture
Protection’ in A. Nolan, R. Freedman and T. Murphy (eds), The United Nations Special Proce-
dures System, 2017, Leiden: Brill.
Fitzpatrick, J., Human Rights in Crisis. The International System for Protecting Rights during States of
Emergency, 1994, Philadelphia: University of Pennsylvania Press.
Frulli, M., ‘The Special Court for Sierra Leone: Some Preliminary Comments’ (2000) 19 European
Journal of International Law 857.
Jalloh, C.C., ‘The Special Tribunal for Lebanon: A Defense Perspective’ (2014) 47 Vanderbilt Journal
of Transnational Law 765–842.
Kelsall, T., ‘Truth, Lies, Ritual: Preliminary Reflections on the Truth and Reconciliation Commis-
sion in Sierra Leone’ (2005) 27 Human Rights Quarterly 361.
Kendall, S., and Nouwen, S.M.H., ‘Speaking of Legacy: Toward an Ethos of Modesty at the Interna-
tional Criminal Tribunal for Rwanda’ (2016) 110 American Journal of International Law 212–232.
King, K.L., and Meernik, J.D., ‘Assessing the Impact of the International Criminal Tribunal for the
Former Yugoslavia: Balancing International and Local Interests While Doing Justice’ in B.
Swart et al. (eds), The Legacy of the International Criminal Tribunal for the Former Yugoslavia,
2011, Oxford: OUP, pp 7–54.
Limon, M., and Power, H., History of the United Nations Special Procedures Mechanism: Origins, Evo-
lution and Reform, 2014, Versoix: Universal Rights Group.
Nolan, A., Freedman, R., and Murphy, T. (eds), The United Nations Special Procedures System, 2017,
Leiden: Brill.
Nowak, M., Introduction to the International Human Rights Regime: No. 14 (Raoul Wallenberg Insti-
tute Series of Intergovernmental Human Rights’ Documentation), 2004, Leiden: Brill.
OHCHR, Facts and Figures. United Nations Special Procedures, 2011, Geneva: OHCHR (annual
publication).
Ratner, M., and Abrams, J., Accountability for Human Rights Atrocities in International Law, 2001,
Oxford: OUP.
Ratner, R., ‘The Cambodian Settlement Accords’ (1993) 87 American Journal of International Law 1.
Robinson, D., and MacNeil, G., ‘The Tribunals and the Renaissance of International Criminal Law:
Three Themes’ (2016) 110 American Journal of International Law 191–211.
Subedi, S.P., Wheatley, S., Mukherjee, A., and Ngane, S., ‘The Role of the Special Rapporteurs of
the United Nations Human Rights Council in the Development and Promotion of International
Human Rights Norms’ (2011) 15.2 The International Journal of Human Rights 155–161.

Websites
www.un.org: United Nations
www.un.org/ga: General Assembly of the United Nations
www.un.org/securitycouncil: Security Council of the United Nations
www.un.org/ecosoc: Economic and Social Council
www.un.org/womenwatch/daw/csw: Commission on the Status of Women
https://www.ohchr.org/EN/HRBodies/HRC/Pages/Home.aspx: Human Rights Council
www.unesco.org: UNESCO
www.ilo.org: International Labour Organization
www.sc-sl.org: Special Court for Sierra Leone
www.rscsl.org: Residual Special Court for Sierra Leone
www.eccc.gov.kh/en: Extraordinary Chambers in the Courts of Cambodia
 MONITORING AND ENFORCING HUMAN RIGHTS | 189

https://iiim.un.org/: International, Impartial and Independent Mechanism to Assist in the

Investigation and Prosecution of Persons Responsible for the Most Serious Crimes Under
International Law Committed in the Syrian Arab Republic since March 2011
www.scp-ks.org/en: Kosovo Specialist Chambers & Specialist Prosecutor’s Office
www.stl-tsl.org/en: The Special Tribunal for Lebanon
www.irmct.org: International Residual Mechanism for Criminal Tribunals
Chapter 7

Implementing human rights treaties:

committees and courts

Chapter contents

7.1 United Nations treaty monitoring bodies:

conventional mechanisms 191
7.2 Regional systems: creating judicial
mechanisms 220
7.3 Remedies for individuals 230
 IMPLEMENTING HUMAN RIGHTS TREATIES: COMMITTEES AND COURTS | 191

In addition to the mechanisms outlined previously which are available to monitor compliance
with human rights, there are a number of conventional mechanisms – mechanisms specifically
focused on monitoring implementation of a specific treaty within the jurisdiction of the relevant
contracting parties. These treaty mechanisms are specific to each treaty and the relevant bodies do
not enjoy the general power to investigate human rights violations of the principal (treaty/charter)
bodies discussed in Chapters 5 and 6. Many of these treaty bodies permit individuals to bring
complaints directly against consenting States. This chapter will cover:

• The UN treaty bodies which monitor the core international human rights treaties.
• Monitoring of State compliance through reports, on-site investigations and individual com-
munications (not every State participates in every mechanism for promoting rights).
• The Organization of American States’ Inter-American Court of Human Rights, which mon-
itors the Inter-American Convention on Human Rights.
• The European Court of Human Rights, which supervises State compliance with the Euro-
pean Convention on Human Rights and Fundamental Freedoms.
• The African Commission and Court of Human Rights, which oversee the African Charter
of Human and Peoples’ Rights.
• The Association of South East Asian Nations.

While Chapter 6 examined those bodies with pervasive powers to monitor compliance with human
rights, this chapter has a narrower focus: those entities set up purely to administer a single treaty.
Their powers are thus generally prescribed by the enabling treaty and hence are ‘convention’ based
mechanisms. As a rule, these bodies enjoy only limited jurisdiction, in contrast to the broader man-
dates of those entities discussed in the previous chapters. Each core UN human rights treaty has a
specific committee entrusted with overseeing its implementation.
Regional organisations have been successful in developing the concept further, evolving
courts with jurisdiction to consider infringements of international human rights by States, publicly
holding the States to account.
This chapter will focus on these mechanisms, leading on to Chapter 8, which discusses
national institutions, those national entities which should oversee the realisation of treaty obliga-
tions at the national level.

7.1 United Nations treaty monitoring bodies:

conventional mechanisms
Compliance of States with the primary international human rights instruments is monitored by
committees created explicitly for this purpose. With the exception of the Committee on Eco-
nomic, Social and Cultural Rights, each of the treaty monitoring bodies is established by the treaty
in question. Accordingly, all power is derived from the provisions of the relevant treaty. Given the
similarity between the committees, generic examples will be utilised in this section, selected from
the various committees. Obviously, the text will be augmented by illustrations of the main varia-
tions from the general procedures.
The United Nations system supports nine treaty monitoring bodies:

the Human Rights Committee (HRC) oversees the International Covenant on Civil and
Political Rights;
the Committee on Economic, Social and Cultural Rights (CESCR) for the International
Covenant on Economic, Social and Cultural Rights;
the Committee on the Elimination of Racial Discrimination (CERD) for the International
Convention on the Elimination of All Forms of Racial Discrimination;
192 | IMPLEMENTING HUMAN RIGHTS TREATIES: COMMITTEES AND COURTS

the Committee on the Elimination of Discrimination against Women (CEDAW) in respect

of the Convention on the Elimination of All Forms of Discrimination against Women;
the Committee Against Torture (CAT) oversees the Convention on the Elimination of Tor-
ture, Cruel, Inhuman or Degrading Treatment or Punishment;
the Committee on the Rights of the Child (CRC) for the Convention on the Rights of the
Child;
the Committee on Migrant Workers (CMW) for the International Convention on Protection
of the Rights of all Migrant Workers and Members of their Families;
the Committee on Enforced Disappearances (CED) for the Convention for the Protection of
All Persons from Enforced Disappearances; and
the Committee on the Rights of Persons with Disabilities (CRPD) for the Convention of
the same name.

(Note that some books consider the Subcommittee on Prevention of Torture (SPT) to be a sepa-
rate monitoring body as it has distinct functions of visit and review in terms of the relevant treaty.)
Amongst reform proposals is to limit the monitoring reports required of States and increase coop-
eration before the committees, thereby minimising duplication of effort at the national level.

7.1.1 Creation of committees

Most Committees are created in terms of their parent instrument and derive powers based thereon.
The Human Rights Committee was one of the first Committees to be established only predated
by that on Race Discrimination, and as Steiner States, ‘has transformed what was a novel and
in some ways radical mandate into one that now appears conventional’ (Steiner, H., ‘Individual
Complaints in a World of Massive Violations: What Role for the Human Rights Committee?’ in P.
Alston and J. Crawford (eds), The Future of UN Human Rights Treaty Monitoring, 2000, Cambridge:
CUP). In some respects the Human Rights Committee continues to be the benchmark by which
other international committees are measured. Indeed, it has evolved dynamically into an active and
reasonably effective (given the constraints under which it operates) mechanism for monitoring the
implementation of a range of human rights globally.
Most of the international human rights treaty monitoring committees operate under similar
conditions. These committees are usually established in accordance with the terms of the relevant
treaty which prescribes how many members each committee has, the requisite terms of appoint-
ment, the function and role of the committee, how often and where it meets etc. The following
extract provides the relevant information for the Human Rights Committee; the appropriate sec-
tion of the other instruments should be consulted for specific details applicable to any of the other
committees.

INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS 1966

Article 28

1 There shall be established a Human Rights Committee (hereafter referred to in the

present Covenant as the Committee). It shall consist of eighteen members and shall carry
out the functions hereinafter provided.
2 The Committee shall be composed of nationals of the States Parties to the present
Covenant who shall be persons of high moral character and recognized competence in
the field of human rights, consideration being given to the usefulness of the participation
of some persons having legal experience.
3 The members of the Committee shall be elected and shall serve in their personal capacity.
 IMPLEMENTING HUMAN RIGHTS TREATIES: COMMITTEES AND COURTS | 193

Article 29

1 The members of the Committee shall be elected by secret ballot from a list of persons
possessing the qualifications prescribed in article 28 and nominated for the purpose by
the States Parties to the present Covenant.
2 Each State Party to the present Covenant may nominate not more than two persons.
These persons shall be nationals of the nominating State.
3 A person shall be eligible for renomination.

Article 30

1 The initial election shall be held no later than six months after the date of the entry into
force of the present Covenant.
2 At least four months before the date of each election to the Committee, other than an
election to fill a vacancy declared in accordance with article 34, the Secretary-General of
the United Nations shall address a written invitation to the States Parties to the present
Covenant to submit their nominations for membership of the Committee within three
months.
3 The Secretary-General of the United Nations shall prepare a list in alphabetical order
of all the persons thus nominated, with an indication of the States Parties which have
nominated them, and shall submit it to the States Parties to the present Covenant no later
than one month before the date of each election.
4 Elections of the members of the Committee shall be held at a meeting of the States
Parties to the present Covenant convened by the Secretary-General of the United
Nations at the Headquarters of the United Nations. At that meeting, for which two thirds
of the States Parties to the present Covenant shall constitute a quorum, the persons
elected to the Committee shall be those nominees who obtain the largest number of
votes and an absolute majority of the votes of the representatives of States Parties
present and voting.

Article 31

1 The Committee may not include more than one national of the same State.
2 In the election of the Committee, consideration shall be given to equitable geographical
distribution of membership and to the representation of the different forms of civilization
and of the principal legal systems.

Article 32

1 The members of the Committee shall be elected for a term of four years. They shall
be eligible for re-election if renominated. However, the terms of nine of the members
elected at the first election shall expire at the end of two years; immediately after the first
election, the names of these nine members shall be chosen by lot by the Chairman of the
meeting referred to in article 30, paragraph 4.
2 Elections at the expiry of office shall be held in accordance with the preceding articles of
this part of the present Covenant.

Article 33

1 If, in the unanimous opinion of the other members, a member of the Committee has ceased
to carry out his functions for any cause other than absence of a temporary character, the
Chairman of the Committee shall notify the Secretary-General of the United Nations, who
shall then declare the seat of that member to be vacant.
194 | IMPLEMENTING HUMAN RIGHTS TREATIES: COMMITTEES AND COURTS

2 In the event of the death or the resignation of a member of the Committee, the Chairman
shall immediately notify the Secretary-General of the United Nations, who shall declare
the seat vacant from the date of death or the date on which the resignation takes effect.

Article 34

1 When a vacancy is declared in accordance with article 33 and if the term of office of the
member to be replaced does not expire within six months of the declaration of the vacancy,
the Secretary-General of the United Nations shall notify each of the States Parties to the
present Covenant, which may within two months submit nominations in accordance with
article 29 for the purpose of filling the vacancy.
2 The Secretary-General of the United Nations shall prepare a list in alphabetical order
of the persons thus nominated and shall submit it to the States Parties to the present
Covenant. The election to fill the vacancy shall then take place in accordance with the
relevant provisions of this part of the present Covenant.
3 A member of the Committee elected to fill a vacancy declared in accordance with article
33 shall hold office for the remainder of the term of the member who vacated the seat on
the Committee under the provisions of that article.

Article 35

The members of the Committee shall, with the approval of the General Assembly of the United
Nations, receive emoluments from United Nations resources on such terms and conditions
as the General Assembly may decide, having regard to the importance of the Committee’s
responsibilities.

Article 36

The Secretary-General of the United Nations shall provide the necessary staff and facilities
for the effective performance of the functions of the Committee under the present Covenant.
. . .

Article 38

Every member of the Committee shall, before taking up his duties, make a solemn declaration
in open committee that he will perform his functions impartially and conscientiously.

Article 39

1 The Committee shall elect its officers for a term of two years. They may be re-elected.
2 The Committee shall establish its own rules of procedure, but these rules shall provide,
inter alia, that:

(a) Twelve members shall constitute a quorum;

(b) Decisions of the Committee shall be made by a majority vote of the members present.

Note that the membership of the Committee is re-elected in a staggered system, thus ensuring
some continuity throughout. Further guidelines on the independence and impartiality require-
ments can be found in the Addis Ababa guidelines – UN Doc HRI/MC/2012/ (June 2012).
Note the basic (limited) powers of the Committee. Remember that the contracting States had to
negotiate the terms of the treaty in the first place, thus the Committee only has the powers which
the international community was willing to bestow on it.

Question
Consider how many high contracting parties there are now to the International Covenant on Civil and Politi-
cal Rights. What problems therefore arise from the fact that there are usually only three annual three-week
sessions of the part-time Committee?
 IMPLEMENTING HUMAN RIGHTS TREATIES: COMMITTEES AND COURTS | 195

7.1.1.1 Exception: Committee on Economic, Social and Cultural Rights

The Committee on Economic, Social and Cultural Rights is an exception to the general rule in
that it was not created by its parent treaty, the International Covenant on Economic, Social and
Cultural Rights 1966. Rather it was created by the Economic and Social Council to assist it with
monitoring the Covenant.

ECOSOC RESOLUTION 1985/17, 28 May 1985

Review of the composition, organization and administrative arrangements of the Sessional

Working Group of Governmental Experts on the Implementation of the International
Covenant on Economic, Social and Cultural Rights

(a) The Working Group established by Economic and Social Council decision 1978/10 and
modified by Council decision 1981/158 and resolution 1982/33 shall be renamed ‘Committee
on Economic, Social and Cultural Rights’ (hereinafter referred to as ‘the Committee’):
(b) The Committee shall have eighteen members who shall be experts with recognized
competence in the field of human rights, serving in their personal capacity, due consideration
being given to equitable geographical distribution and to the representation of different
forms of social and legal systems; to this end, fifteen seats will be equally distributed
among the regional groups, while the additional three seats will be allocated in accordance
with the increase in the total number of States parties per regional group;
(c) The members of the Committee shall be elected by the Council by secret ballot from a list
of persons nominated by States parties to the International Covenant on Economic, Social
and Cultural Rights under the following conditions:

(i) The members of the Committee shall be elected for a term of four years and shall be
eligible for re-election at the end of their term, if renominated;
(ii) One half of the membership of the Committee shall be renewed every second
year, bearing in mind the need to maintain the equitable geographical distribution
mentioned in subparagraph (b) above;
(iii) The first elections shall take place during the Council’s first regular session of 1986;
immediately after the first elections, the President of the Council shall choose by lot
the names of nine members whose term shall expire at the end of two years;
(iv) The terms of office of members elected to the Committee shall begin on 1 January
following their election and expire on 31 December following the election of members
that are to succeed them as members of the Committee;
(v) Subsequent elections shall take place every second year during the first regular
session of the Council;
(vi) At least four months before the date of each election to the Committee the Secretary-
General shall address a written invitation to the States parties to the Covenant to
submit their nominations for membership of the Committee within three months;
the Secretary-General shall prepare a list of the persons thus nominated, with an
indication of the States parties which have nominated them, and shall submit it to the
Council no later than one month before the date of each election;

(d) The Committee shall meet annually for a period of up to three weeks, taking into account
the number of reports to be examined by the Committee, with the venue alternating
between Geneva and New York;
(e) The members of the Committee shall receive travel and subsistence expenses from
United Nations resources;
(f) The Committee shall submit to the Council a report on its activities, including a summary
of its consideration of the reports submitted by States parties to the Covenant, and
196 | IMPLEMENTING HUMAN RIGHTS TREATIES: COMMITTEES AND COURTS

shall make suggestions and recommendations of a general nature on the basis of its
consideration of those reports and of the reports submitted by the specialized agencies,
in order to assist the Council to fulfil, in particular, its responsibilities under articles 21
and 22 of the Covenant;
(g) The Secretary-General shall provide the Committee with summary records of its
proceedings, which shall be made available to the Council at the same time as the report
of the Committee; the Secretary-General shall further provide the Committee with the
necessary staff and facilities for the effective performance of its functions, bearing in
mind the need to give adequate publicity to its work;
(h) The procedures and methods of work established by Council resolution 1979/43 and the
other resolutions and decisions referred to in the preamble to the present resolution shall
remain in force in so far as they are not superseded or modified by the present resolution;
(i) The Council shall review the composition, organization and administrative arrangements
of the Committee at its first regular session of 1990, and subsequently every five years,
taking into account the principle of equitable geographical distribution of its membership.

Question
Look at the Covenant and the rights and obligations assumed by States thereunder. What reasons are there for
failing to create a conventional review mechanism to oversee the Covenant on Economic, Social and Cultural
Rights when the Covenant was drafted?

7.1.2 Administrative, secretarial and research support

Given the increased workload of the Committees through the burgeoning number of States sub-
mitting reports, inevitably the functioning of the Committees is reliant on the support provided
by the international secretariat. Most of the Committees are supported by the Office of the High
Commissioner for Human Rights (OHCHR). The following extract is taken from the OHCHR’s
mission statement available online:

MISSION STATEMENT OF THE OFFICE OF THE HIGH COMMISSIONER OF

HUMAN RIGHTS

www.ohchr.org/EN/AboutUs/Pages/MissionStatement.aspx

The mission of the Office of the United Nations High Commissioner for Human Rights (OHCHR)
is to work for the protection of all human rights for all people; to help empower people to
realize their rights; and to assist those responsible for upholding such rights in ensuring that
they are implemented.
In carrying out its mission OHCHR will:

• Give priority to addressing the most pressing human rights violations, both acute and
chronic, particularly those that put life in imminent peril;
• Focus attention on those who are at risk and vulnerable on multiple fronts;
• Pay equal attention to the realization of civil, cultural, economic, political, and social
rights, including the right to development; and
• Measure the impact of its work through the substantive benefit that is accrued, through it,
to individuals around the world.

Operationally, OHCHR works with governments, legislatures, courts, national institutions, civil
society, regional and international organizations, and the United Nations system to develop
and strengthen capacity, particularly at the national level, for the protection of human rights in
accordance with international norms.
Institutionally, OHCHR is committed to strengthening the United Nations human rights
programme and to providing it with the highest quality support. OHCHR is committed to
 IMPLEMENTING HUMAN RIGHTS TREATIES: COMMITTEES AND COURTS | 197

working closely with its United Nations partners to ensure that human rights form the bedrock
of the work of the United Nations.

The Office of the High Commissioner for Human Rights normally provides secretarial assis-
tance to the committees and appropriate accommodation for staff and meetings. The Committee
members are thus better able to maximise the (comparatively) short time they have in Geneva
to focus on monitoring the implementation of the relevant treaty by contracting States. One of
the criticisms levelled at the current system is that the increase in the number of treaties and the
proliferation in accessions thereto (due to the increase in membership of the United Nations) have
not been matched in an increase in resources to the committees to facilitate implementation. Of
particular concern, the 2019 budgetary crisis in the UN means that OHCHR has posited reducing
the number of sessions of the UN treaty bodies in 2019 and 2020. This will have a negative effect
on progress towards general recommendations and comments as well as progressing individual
communications and keeping on schedule with State reports and concluding observations.

7.1.2.1 Exception: Committee on the Elimination of Discrimination against Women

Unlike the other committees, CEDAW was initially supported by the Division for the Advance-
ment of Women (DAW). The protection of women has early origins in the United Nations: a
Sub-Commission on the Status of Women was established by ECOSOC Resolution E/20, 1946
with a nucleus of nine members. The Commission on the Status of Women (CSW) was estab-
lished as a functional commission of the Economic and Social Council by Council Resolution
11(II) of 21 June 1946 to prepare recommendations and reports to the Council on promoting
women’s rights in political, economic, civil, social and educational fields. It now has 45 members
and the work has now been subsumed into UN Women (www.unwomen.org).

7.1.3 Powers of committees

The power of each Committee is derived from the relevant instrument. It follows that each Com-
mittee only enjoys such power as the high contracting States agree. The terminology employed in
the treaties is prosaic, indicating little actual power: committees consider reports and communica-
tions then forward their views thereon to the appropriate parties following discussion in closed
meetings. It is clear that States did not envisage the role of Committees as being judicial, quasi-
judicial or even particularly proactive in monitoring the implementation of international human
rights norms. However, within the terms of their remit, the committees have succeeded in develop-
ing their powers. The impact of the Committees has been quite far-reaching – of perhaps particular
note, both the Human Rights Committee and the Committee on the Rights of the Child have
considerably developed the rights and freedoms enshrined in their parent document.
Committees each have the same principal function of monitoring the compliance with the
terms of the relevant treaty by States parties. Receiving, considering and opining on reports is the
principal function, inter-State and individual complaints sit alongside this in most systems. Addi-
tionally, most of the Committees take the opportunity to shape the law through issuing general
comments/recommendations on specific issues and some have the opportunity of conducting
visits to States parties to investigate their compliance record.

7.1.4 Initial and periodic reports by States to treaty

monitoring bodies
The primary mechanism for monitoring the implementation of human rights is reports. States
compile reports on the actions they have taken to realise the obligations undertaken in terms of
the relevant human rights instrument.
The Committees generally draw up reporting guidelines for the use of States when compiling
reports. The compilation of multiple reports is one of the consequential burdens on States as a result
198 | IMPLEMENTING HUMAN RIGHTS TREATIES: COMMITTEES AND COURTS

of the flourishing human rights treaty system. Essentially, States are requested to submit a core treaty
report containing information of interest to all treaty bodies. In addition, they submit a specific
report on pertinent issues for each of the treaty bodies. Technical assistance with the compilation of
initial periodic reports can be provided by the Office of the High Commissioner for Human Rights
to contracting States. The following diagram indicates the process of consideration of these reports.

For an example, see the following provisions of the convention on the Rights of Persons with
Disabilities:

CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES 2006

Article 35

Reports by States Parties

1 Each State Party shall submit to the Committee, through the Secretary-General of the
United Nations, a comprehensive report on measures taken to give effect to its obligations
under the present Convention and on the progress made in that regard, within two years
after the entry into force of the present Convention for the State Party concerned.
2 Thereafter, States Parties shall submit subsequent reports at least every four years and
further whenever the Committee so requests.
3 The Committee shall decide any guidelines applicable to the content of the reports.
4 A State Party which has submitted a comprehensive initial report to the Committee need
not, in its subsequent reports, repeat information previously provided. When preparing
reports to the Committee, States Parties are invited to consider doing so in an open and
transparent process and to give due consideration to the provision set out in article 4.3 of
the present Convention.
5 Reports may indicate factors and difficulties affecting the degree of fulfilment of obligations
under the present Convention.
 IMPLEMENTING HUMAN RIGHTS TREATIES: COMMITTEES AND COURTS | 199

Article 36

Consideration of reports

1 Each report shall be considered by the Committee, which shall make such suggestions and
general recommendations on the report as it may consider appropriate and shall forward
these to the State Party concerned. The State Party may respond with any information it
chooses to the Committee. The Committee may request further information from States
Parties relevant to the implementation of the present Convention.
2 If a State Party is significantly overdue in the submission of a report, the Committee
may notify the State Party concerned of the need to examine the implementation of the
present Convention in that State Party, on the basis of reliable information available to
the Committee, if the relevant report is not submitted within three months following
the notification. The Committee shall invite the State Party concerned to participate in
such examination. Should the State Party respond by submitting the relevant report, the
provisions of paragraph 1 of this article will apply.
3 The Secretary-General of the United Nations shall make available the reports to all States
Parties.
4 States Parties shall make their reports widely available to the public in their own countries
and facilitate access to the suggestions and general recommendations relating to these
reports.
5 The Committee shall transmit, as it may consider appropriate, to the specialized agencies,
funds and programmes of the United Nations, and other competent bodies, reports
from States Parties in order to address a request or indication of a need for technical
advice or assistance contained therein, along with the Committee’s observations and
recommendations, if any, on these requests or indications.

Further guidance on the material required in the reports is provided by the treaty bodies them-
selves in guidelines. For the Convention on the Rights of Persons with Disabilities, these are
contained in UN Doc. CRPD/C/2/3, 18 November 2009. To provide an example, the guidance
on awareness raising and accessibility is extracted here.

Guidelines on treaty-specific document to be submitted by States Parties

under Article 35, para 1, of the Convention on the Rights of Persons
with Disabilities, UN Doc. CRPD/C/2/3

Article 8 Awareness-raising

This article establishes the obligation of States Parties to conduct effective awareness raising
policies to promote a positive image of persons with disabilities. The report should contain
information on the measures taken to raise awareness of persons with disabilities, to foster
respect for their rights and dignity, their capabilities and contributions, and to combat stereotypes,
and prejudices against them.
States Parties should report on:

• Public-awareness campaigns directed to general society, within the education system and
actions undertaken through mainstream media
• Actions undertaken to raise awareness and inform persons with disabilities and other
parts of society on the Convention and the rights it includes

Article 9 Accessibility

This article establishes the obligation of States Parties to take appropriate measures to enable
persons with disabilities to live independently as possible and to participate fully in all aspects
of life.
200 | IMPLEMENTING HUMAN RIGHTS TREATIES: COMMITTEES AND COURTS

States Parties should report on:

• Legislative and other measures taken to ensure to persons with disabilities, access on an
equal basis with others to the physical environment (including the use of signal indicators
and street signs), to transportation, information and communications, (including
information and communications technologies and systems) and to other facilities and
services provided to the public including by private entities, both in urban and in rural
areas according to article 9, paragraphs 2 (b) to (h), of the Convention
• Technical standards and guidelines for accessibility; as well as on the auditing of their
fulfilment and sanctions for noncompliance; and whether resources obtained by means
of money sanctions are applied to encourage accessibility actions

The content and length of these reports are being considered part of the Office of the High
Commissioner on Human Rights’ review of the treaty body system. Streamlining of the reporting
system will lessen the burden on States and should ensure reports can be considered in a timely
fashion.

Question
Access a set of reports on any State to any treaty body (these are available online as outlined in the initial
section of this book). Read the State report and the concluding observations of the treaty body. Was the report
submitted and considered on time? Do the concluding observations address the main issues raised in the report
or do they raise additional matters of concern?

7.1.4.1 Comment on reports

Although primarily a mechanism for complying with the treaty obligations, the reports form part
of a constructive dialogue between the treaty monitoring body and the State. Reports may also be
employed as a self-evaluation exercise, allowing the State to identify problems and areas in which
the international community may help. Given the beneficial aspects of reports, States are actively
encouraged to submit reports, as per the treaty obligations. The frequency of reports varies from
instrument to instrument, as the following table indicates.

Treaty Frequency of periodic reports

International Convention on the Elimination of all Forms Every 2 years

of Racial Discrimination
International Covenant on Economic, Social and Cultural Not specified
Rights
International Covenant on Civil and Political Rights Not specified. Generally every 5 years
Convention on the Elimination of Discrimination against Every 4 years
Women
Convention against Torture Every 4 years
UN Convention on the Rights of the Child Every 5 years
International Convention on the Protection of the Rights of Every 5 years
all Migrant Workers and Members of Their Families
Convention on the Rights of Persons with Disabilities Every 4 years
Convention on Enforced Disappearances As requested
 IMPLEMENTING HUMAN RIGHTS TREATIES: COMMITTEES AND COURTS | 201

If each new State ratifies each instrument, it will have seven reports to submit within a year
and thereafter regular periodic reports. This can be unduly onerous on some States.

7.1.4.2 Non-submission of reports/incomplete reports

Should a State fail to submit a report on time, reminders may be sent. Thereafter, the matter will
be drawn to the attention of the relevant bodies in accordance with the hierarchy. Similarly, States
can be asked to provide further information to supplement their report. Such requests may be
based on information the Committee received from NGOs, other United Nations entities and
organisations, or even from general news coverage. Even if a report is complete and submitted
on time, before the scheduled meeting, Committees often elect to refer a list of issues to a State
for response. This is becoming increasingly standard and offers an opportunity for States to have
advance notice of, and thus prepare for, questions on the issues identified as being of particular
interest to the committee. Lists of issues also appear on the website of the relevant treaty body in
advance of the scheduled meeting.

Question
This system allows the Committee to focus on particular issues and set the agenda for the discussion. What
other advantages does it afford a system which is currently stretched in terms of time?

Note the following guidelines from the Committee on the Elimination of Racial Discrimination
which apply to the submission of reports.

RULES OF PROCEDURE ADOPTED FOR CERD: 01/01/89

UN Doc. CERD/C/35/Rev. 3.

PART TWO. RULES RELATING TO THE FUNCTIONS OF THE COMMITTEE XV. REPORTS AND
INFORMATION FROM STATES PARTIES UNDER ARTICLE 9 OF THE CONVENTION
Form and contents of reports
Rule 63
The Committee may, through the Secretary-General, inform the States parties of its Wishes
regarding the form and contents of the periodic reports required to be submitted under article 9
of the Convention.

Attendance by States parties at examination of reports

Rule 64
The Committee shall, through the Secretary-General, notify the States parties (as early as
possible) of the opening date, duration and place of the session at which their respective
reports will be examined. Representatives of the States parties may be present at the meetings
of the Committee when their reports are examined. The Committee may also inform a State
party from which it decides to seek further information that it may authorize its representative
to be present at a specified meeting. Such a representative should be able to answer questions
which may be put to him by the Committee and make statements on reports already submitted
by his State, and may also submit additional information from his State.

Request for additional information

Rule 65
If the Committee decides to request an additional report or further information from a State
party under the provisions of article 9, paragraph 1, of the Convention, it may indicate the
manner as well as the time within which such additional report or further information shall be
202 | IMPLEMENTING HUMAN RIGHTS TREATIES: COMMITTEES AND COURTS

supplied and shall transmit its decision to the Secretary-General for communication, within
two weeks, to the State party concerned.

Non-receipt of reports
Rule 66
1 At each session, the Secretary-General shall notify the Committee of all cases of non-
receipt of reports or additional information, as the case may be, provided for under article 9 of
the Convention. The Committee, in such cases, may transmit to the State party concerned,
through the Secretary-General, a reminder concerning the submission of the report or
additional information.
2 If even after the reminder, referred to in paragraph 1 of this rule, the State party does not
submit the report or additional information required under article 9 of the Convention, the
Committee shall include a reference to this effect in its annual report to the General Assembly.

Suggestions and general recommendations

Rule 67
1 When considering a report submitted by a State party under article 9, the Committee shall
first determine whether the report provides the information referred to in the relevant
communications of the Committee.
2 If a report of the State party to the Convention, in the opinion of the Committee, does not
contain sufficient information, the Committee may request that State to furnish additional
information.
3 If, on the basis of its examination of the reports and information supplied by the State party,
the Committee determines that some of the obligations of that State under the Convention
have not been discharged, it may make suggestions and general recommendations in
accordance with article 9, paragraph 2, of the Convention.

Transmission of suggestions and general recommendations

Rule 68
1 Suggestions and general recommendations made by the Committee based on the
examination of the reports and information received from States parties under article 9,
paragraph 2, of the Convention shall be communicated by the Committee through the
Secretary-General to the States parties for their comments.
2 The Committee may, where necessary, indicate a time-limit within which comments from
States parties are to be received.
3 Suggestions and general recommendations of the Committee, referred to in paragraph 1,
shall be reported to the General Assembly, together with comments, if any, from States
parties.

Should States fail to submit reports, certain Committees, such as CERD, reserve the right to con-
sider the status of human rights in the State on the basis of other information available to them.
Such a situation would only follow repeated requests to the State to engage in dialogue with the
Committee. In the first instance, following repeated failure to submit reports, the State is usually
sent a list of questions for written responses. These focus on identified key areas only.

Question
What advantages are offered by delivering a list of issues/questions when a series of reports have failed to be
forthcoming?

Note that letters and requests for information are often accompanied by an offer of technical assis-
tance should it be required by the State. Should no information be forthcoming, the Committee
will issue concluding observations. CERD operates a simplified reporting system for those States
 IMPLEMENTING HUMAN RIGHTS TREATIES: COMMITTEES AND COURTS | 203

which are seriously overdue. Examples include Sierra Leone, fourth periodic review overdue since
1977, Papua New Guinea second report overdue since 1985, Belize initial report overdue since
2002 and Iceland twenty-first to twenty-third combined report overdue since 2013 (see A/73/18
Annual Report of the Committee on the Elimination of Racial Discrimination, 2018). Note that
Belize was considered in August 2012 without the submission of a report.

7.1.4.3 Exception: early warning measures and urgent action procedures

The Committee on the Elimination of Racial Discrimination may also take action to prevent racial
discrimination under its early warning and urgent action provisions. This reflects the importance
attached to maintaining the prohibition on racial discrimination, not least as a contribution to
international peace and security.

PREVENTION OF RACIAL DISCRIMINATION, INCLUDING EARLY WARNING

AND URGENT ACTION PROCEDURE DECISION 1 (78), 4 March 2011

Situation in Côte d’Ivoire

The Committee on the Elimination of Racial Discrimination, acting according to its mandate,
Alarmed by reports of the seriously declining human rights and humanitarian situation
in Cote d’Ivoire, including ethnic tensions, incitement to ethnic violence, xenophobia, religious
and ethnic discrimination,

Considering the situation in Côte d’Ivoire under its early warning and urgent action procedure,

1 The Committee deplores that the political stalemate that followed the proclamation of
presidential election results continues to be marked by a number of serious and escalating
human rights and humanitarian violations across the country, including ethnic clashes that
have resulted in deaths, numerous injured people, destruction of property as well as in the
displacement of population inside and outside the country.
2 The Committee recalls its latest Concluding Observations on the fifth to fourteenth
periodic reports of Côte d’Ivoire adopted on 21 March 2003 (CERD/C/62/COI) where it
raised concerns on racial and xenophobic violence and on the fact that some of the national
media have used propaganda to incite war and encourage hatred and xenophobia.
3 The Committee reiterates its recommendations contained in its concluding observations
that Côte d’Ivoire continue its efforts to prevent a repetition of ethnic violence and to
punish those responsible; and that Cote d’Ivoire strengthen the measures guaranteeing
the contribution of civil society for the promotion of inter-ethnic harmony.
4 The Committee expresses its deep concern regarding the present situation and incitement
to hatred, ethnic violence and intolerance and calls upon Côte d’Ivoire to end any form of
ethnic violence and incitement to hatred.
5 The Committee calls upon Côte d’Ivoire to immediately halt inter-ethnic violence and
clashes, to take immediate steps to investigate and punish the perpetrators of ethnic
violence and provide redress to the victims in line with international human rights
standards, particularly the International Convention on the Elimination of All Forms of
Racial Discrimination.
6 The Committee calls upon the Secretary-General of the United Nations to continue
drawing the attention of the Security Council on the situation in Côte d’Ivoire which could
evolve into a threat to international peace and security, along with extended violations of
human rights and fundamental freedoms.
7 The Committee requests information on the situation and the measures taken by the State
party to redress it at its earliest convenience but preferably no later than 31 July 2011.

Question
What advantages are there for the Committee to adopt such decisions in the face of State non-action?
204 | IMPLEMENTING HUMAN RIGHTS TREATIES: COMMITTEES AND COURTS

Similarly, the Committee against Torture has the power to initiate investigations into information
on systematic torture in the territory of any of the high contracting States:

CONVENTION AGAINST TORTURE 1984, Article 20

1 If the Committee receives reliable information which appears to it to contain well-founded

indications that torture is being systematically practised in the territory of a State Party, the
Committee shall invite that State Party to co-operate in the examination of the information
and to this end to submit observations with regard to the information concerned.
2 Taking into account any observations which may have been submitted by the State Party
concerned, as well as any other relevant information available to it, the Committee may,
if it decides that this is warranted, designate one or more of its members to make a
confidential inquiry and to report to the Committee urgently.
3 If an inquiry is made in accordance with paragraph 2 of this article, the Committee shall
seek the co-operation of the State Party concerned. In agreement with that State Party,
such an inquiry may include a visit to its territory.
4 After examining the findings of its member or members submitted in accordance with
paragraph 2 of this article, the Commission shall transmit these findings to the State
Party concerned together with any comments or suggestions which seem appropriate in
view of the situation.
5 All the proceedings of the Committee referred to in paragraphs 1 to 4 of this article shall
be confidential, and at all stages of the proceedings the co-operation of the State Party
shall be sought. After such proceedings have been completed with regard to an inquiry
made in accordance with paragraph 2, the Committee may, after consultations with
the State Party concerned, decide to include a summary account of the results of the
proceedings in its annual report made in accordance with article 24.

Question
Why are CERD and CAT most likely to require these additional powers?

7.1.5 Inter-State complaints

Given the early systems evolved under traditional concepts of human rights, it is not surprising that
inter-State complaints were viewed as being the primary mechanism for enforcing human rights,
as would be the case for any other element of international law. International law being primarily
concerned with the law of nations, it follows that States are both the subjects and enforcers.
Both the Convention against Torture (Article 21) and the Migrant Workers’ Convention (Arti-
cle 74) offer the option of inter-State complaints. Note that States must overtly agree in advance to
this, that is, a State declaration recognising the necessary competence of the Committee is a neces-
sary precursor to the filing of a State complaint. A more complex system, though still commencing
with an appropriate declaration recognising the competence of the Committee, is provided for
under the International Covenant on Civil and Political Rights Articles 41–43. In contrast, the pro-
cedure under the International Convention on the Elimination of All Forms of Racial Discrimina-
tion is not optional. It applies to all States parties to the Convention upon ratification.

INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL

DISCRIMINATION 1965

Article 11

1 If a State Party considers that another State Party is not giving effect to the provisions
of this Convention, it may bring the matter to the attention of the Committee. The
 IMPLEMENTING HUMAN RIGHTS TREATIES: COMMITTEES AND COURTS | 205

Committee shall then transmit the communication to the State Party concerned. Within
three months, the receiving State shall submit to the Committee written explanations
or statements clarifying the matter and the remedy, if any, that may have been taken by
that State.
2 If the matter is not adjusted to the satisfaction of both parties, either by bilateral
negotiations or by any other procedure open to them, within six months after the receipt
by the receiving State of the initial communication, either State shall have the right to
refer the matter again to the Committee by notifying the Committee and also the other
State.
3 The Committee shall deal with a matter referred to it in accordance with paragraph 2
of this article after it has ascertained that all available domestic remedies have been
invoked and exhausted in the case, in conformity with the generally recognized principles
of international law. This shall not be the rule where the application of the remedies is
unreasonably prolonged.
4 In any matter referred to it, the Committee may call upon the States Parties concerned to
supply any other relevant information.
5 When any matter arising out of this article is being considered by the Committee, the States
Parties concerned shall be entitled to send a representative to take part in the proceedings
of the Committee, without voting rights, while the matter is under consideration.

Article 12

1 (a) After the Committee has obtained and collated all the information it deems necessary,
the Chairman shall appoint an ad hoc Conciliation Commission (hereinafter referred
to as the Commission) comprising five persons who may or may not be members
of the Committee. The members of the Commission shall be appointed with the
unanimous consent of the parties to the dispute, and its good offices shall be made
available to the States concerned with a view to an amicable solution of the matter
on the basis of respect for this Convention;
(b) If the States Parties to the dispute fail to reach agreement within three months on all
or part of the composition of the Commission, the members of the Commission not
agreed upon by the States Parties to the dispute shall be elected by secret ballot by
a two-thirds majority vote of the Committee from among its own members.

2 The members of the Commission shall serve in their personal capacity. They shall not be
nationals of the States Parties to the dispute or of a State not Party to this Convention.
3 The Commission shall elect its own Chairman and adopt its own rules of procedure.
4 The meetings of the Commission shall normally be held at United Nations Headquarters
or at any other convenient place as determined by the Commission.
5 The secretariat provided in accordance with article 10, paragraph 3, of this Convention
shall also service the Commission whenever a dispute among States Parties brings the
Commission into being.
6 The States Parties to the dispute shall share equally all the expenses of the members of
the Commission in accordance with estimates to be provided by the Secretary-General of
the United Nations.
7 The Secretary-General shall be empowered to pay the expenses of the members of the
Commission, if necessary, before reimbursement by the States Parties to the dispute in
accordance with paragraph 6 of this article.
8 The information obtained and collated by the Committee shall be made available to the
Commission, and the Commission may call upon the States concerned to supply any other
relevant information.
206 | IMPLEMENTING HUMAN RIGHTS TREATIES: COMMITTEES AND COURTS

Article 13

1 When the Commission has fully considered the matter, it shall prepare and submit to
the Chairman of the Committee a report embodying its findings on all questions of fact
relevant to the issue between the parties and containing such recommendations as it may
think proper for the amicable solution of the dispute.
2 The Chairman of the Committee shall communicate the report of the Commission to each
of the States Parties to the dispute. These States shall, within three months, inform the
Chairman of the Committee whether or not they accept the recommendations contained
in the report of the Commission.
3 After the period provided for in paragraph 2 of this article, the Chairman of the Committee
shall communicate the report of the Commission and the declarations of the States
Parties concerned to the other States Parties to this Convention.

In 2018, the Committee received its first ever inter-State complaints submitted under Article 11.
These are Qatar v Saudi Arabia, Qatar v United Arab Emirates and Palestine v Israel. In 2019, the
Committee moved to the discussions of preliminary questions with the States represented (under
Article 11(5)). To follow progress, see ohchr.org/EN/HRBodies/CERD/Pages/InterstateCom-
munications.aspx.

Question
The filing of three separate inter-State communications is unprecedented in terms of UN treaty body monitor-
ing. Follow these communications and determine whether the process is appropriate and secures an appropriate
remedy or solution.

Note also that States may refer matters concerning the interpretation, application and effect of cer-
tain instruments to the International Court of Justice in accordance with provisions of the conven-
tions itself (e.g. Article 29, Convention of the Elimination of All Forms of Discrimination against
Women) or indeed in accordance with normal international law procedure for disputes between
States. The relevant conventions prescribe a preliminary procedure in order to effect a peaceful and
non-contentious resolution of any dispute arising between States parties.

CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST

WOMEN 1979, Article 29

1 Any dispute between two or more States Parties concerning the interpretation or application
of the present Convention which is not settled by negotiation shall, at the request of one
of them, be submitted to arbitration. If within six months from the date of the request for
arbitration the parties are unable to agree on the organization of the arbitration, any one
of those parties may refer the dispute to the International Court of Justice by request in
conformity with the Statute of the Court.
2 Each State Party may at the time of signature or ratification of the present Convention
or accession thereto declare that it does not consider itself bound by paragraph 1 of this
article. The other States Parties shall not be bound by that paragraph with respect to any
State Party which has made such a reservation.
3 Any State Party which has made a reservation in accordance with paragraph 2 of this
article may at any time withdraw that reservation by notification to the Secretary-General
of the United Nations.

Question
States parties have proven reluctant to institute inter-State proceedings. What reasons are there for this?
Irrespective of your reasons, why does it remain astute to include inter-State complaints in most international
human rights instruments?
 IMPLEMENTING HUMAN RIGHTS TREATIES: COMMITTEES AND COURTS | 207

The only other option for inter-State complaints is recourse to the International Court of Justice.
Obviously this comes with its own limitations. As noted previously, this procedure has been insti-
tuted for the first time in the contentious case between Georgia and the Russian Federation, albeit
the case ultimately failed on admissibility grounds, given that the correct procedure (outlined
earlier) was not followed.
The 1948 Convention on the Prevention and Punishment of Genocide is the main inter-
national human rights related instrument which has been raised in contentious cases before the
International Court of Justice.

Question
Look at the cases arising from the Balkans conflict in the early 1990s which are in the docket of the Interna-
tional Court of Justice (www.icj-cij.org). Explain why these cases were brought. Why would recourse to the
ICJ be unlikely to benefit international human rights law enforcement?

As inter-State complaints have not proven to be a useful tool in enforcing international human
rights norms, recourse must be had to other available mechanisms.

7.1.6 Individual communications

Individual communications, thought not compulsory under any international system, have
emerged as an important element in protecting and preserving international human rights. States
must explicitly declare their acceptance of the individual petition system of the salient treaty or,
alternatively, ratify a separate protocol (where appropriate) which details the individual system.
(Only in Europe are individual communication procedures compulsory for all States ratifying the
European Convention for the Protection of Human Rights and Fundamental Freedoms. This
was not always the case, initially the system was optional. For other regional systems, they remain
optional.)
The following table shows which of the fundamental international human rights instruments
create a system of individual petitions.

Treaty Possibility of individual petition?

International Convention for the Elimination of all forms of Yes, Article 14

Racial Discrimination
International Covenant on Economic, Social and Cultural Rights Yes, optional protocol

International Covenant on Civil and Political Rights Yes, first optional protocol
Convention on the Elimination of Discrimination against Women Yes, optional protocol
Convention against Torture Yes, Article 22
UN Convention on the Rights of the Child Yes, third optional protocol
International Convention on the Protection of the Rights of all Yes, Article 77 but not yet in force
Migrant Workers and Members of Their Families
Convention on the Rights of Persons with Disabilities Yes, optional protocol
Convention on Enforced Disappearances Yes, Article 31

7.1.6.1 Comment
It should be remembered that due to the overlap in rights, it may be possible for individual com-
munications against a State which either does not recognise the right to individual petition or in
respect of a treaty with no automatic right of individual petition to be raised in a different forum.
For example, elements of the Convention on the Rights of the Child could be raised before the
208 | IMPLEMENTING HUMAN RIGHTS TREATIES: COMMITTEES AND COURTS

Human Rights Committee as there is an overlap in the rights contained in these instruments. This
is one of the advantages of overlapping treaty obligations. This also reflects the general guidance
that to determine the scope of a State’s obligations, you must examine all of its treaty obligations,
regional and international.

Question
Note the terminology employed – generally communications, not cases or complaints. Why is such ‘neutral’,
‘non-contentious’ terminology more likely to be acceptable to States?

Compare and contrast this terminology with that employed in the European Convention on
Human Rights and the Inter-American Convention on Human Rights. Both regional systems
have a designated Human Rights Court, as opposed to Committee (though note the concurrent
and complementary role of the Inter-American Commission). Unsurprisingly both courts can
render judgments, although they also have competence to issue advisory opinions (a jurisdiction
more commonly invoked by the Inter-American Court).

Question
How can the distinct differences between the international and regional systems be explained?

7.1.6.2 Admissibility criteria and communications process

In all instances, individual communications must satisfy certain criteria to be deemed admissible
and be in an appropriate format. Relevant specifications may be found in the instrument in point.
Consider Article 77 of the Migrant Workers’ Convention, noting particularly the conditions
specified in 77(2) + (3).

INTERNATIONAL CONVENTION ON THE PROTECTION OF THE RIGHTS OF ALL MIGRANT

WORKERS AND MEMBERS OF THEIR FAMILIES 1990, Article 77

1 A State Party to the present Convention may at any time declare under the present
article that it recognizes the competence of the Committee to receive and consider
communications from or on behalf of individuals subject to its jurisdiction who claim that
their individual rights as established by the present Convention have been violated by that
State Party. No communication shall be received by the Committee if it concerns a State
Party that has not made such a declaration.
2 The Committee shall consider inadmissible any communication under the present article
which is anonymous or which it considers to be an abuse of the right of submission of
such communications or to be incompatible with the provisions of the present Convention.
3 The Committee shall not consider any communication from an individual under the present
article unless it has ascertained that:

(a) The same matter has not been, and is not being, examined under another procedure
of international investigation or settlement;
(b) The individual has exhausted all available domestic remedies; this shall not be the rule
where, in the view of the Committee, the application of the remedies is unreasonably
prolonged or is unlikely to bring effective relief to that individual.

4 Subject to the provisions of paragraph 2 of the present article, the Committee shall bring
any communications submitted to it under this article to the attention of the State Party to
the present Convention that has made a declaration under paragraph I and is alleged to
be violating any provisions of the Convention. Within six months, the receiving State shall
submit to the Committee written explanations or statements clarifying the matter and the
remedy, if any, that may have been taken by that State.
 IMPLEMENTING HUMAN RIGHTS TREATIES: COMMITTEES AND COURTS | 209

5 The Committee shall consider communications received under the present article in the
light of all information made available to it by or on behalf of the individual and by the
State Party concerned.
6 The Committee shall hold closed meetings when examining communications under the
present article.
7 The Committee shall forward its views to the State Party concerned and to the individual.
8 The provisions of the present article shall come into force when ten States Parties to
the present Convention have made declarations under paragraph I of the present article.
Such declarations shall be deposited by the States Parties with the Secretary-General
of the United Nations, who shall transmit copies thereof to the other States Parties. A
declaration may be withdrawn at any time by notification to the Secretary-General. Such
a withdrawal shall not prejudice the consideration of any matter that is the subject of a
communication already transmitted under the present article; no further communication
by or on behalf of an individual shall be received under the present article after the
notification of withdrawal of the declaration has been received by the Secretary-General,
unless the State Party has made a new declaration.

The relevant treaty provision provides for the appropriate procedures to be followed by the Com-
mittee. More information is contained in the relevant optional protocols where such a mechanism
contains the relevant provisions. Complaints are normally brought by the alleged victim, but can
also be brought by a third party with the consent of the alleged victim or on his/her behalf where
he/she is unable to bring the complaint.
Unsurprisingly a slight modification is needed for individual complaints in respect of progres-
sively realisable rights, particularly the International Covenant on Economic, Social and Cultural
Rights and the Convention on the Rights of the Child. This matter is discussed in the literature
(see for example Mahon, C., ‘Progress at the Front: The Draft Optional Protocol to the Interna-
tional Covenant on Economic, Social and Cultural Rights’ (2008) 8.4 Human Rights Law Review
617; Vandenhole, W., ‘Completing the UN Complaint Mechanisms for Human Rights Violations
Step by Step: Towards a Complaints Procedure Complementing the International Covenant on
Economic, Social and Cultural Rights’ (2003) 21 Netherlands Quarterly of Human Rights 423).

Third Optional Protocol to the Convention on the Rights of the Child

Article 10(4) When examining communications alleging violations of economic, social or cultural
rights, the Committee shall consider the reasonableness of the steps taken by the State party in
accordance with article 4 of the Convention. In doing so, the Committee shall bear in mind that
the State party may adopt a range of possible policy measures for the implementation of the
economic, social and cultural rights in the Convention.

Later in this text, examples of extracts of individual communications facilitate an understanding of

the impact of this mechanism.
As to the procedure to be followed in the event of the receipt of a communication, although
this varies between the Committees, there are certain similarities. Consider the optional protocol
to the International Covenant on Civil and Political Rights.

OPTIONAL PROTOCOL TO THE INTERNATIONAL COVENANT ON CIVIL

AND POLITICAL RIGHTS 1966

Article 1

A State Party to the Covenant that becomes a Party to the present Protocol recognizes the
competence of the Committee to receive and consider communications from individuals
subject to its jurisdiction who claim to be victims of a violation by that State Party of any of the
210 | IMPLEMENTING HUMAN RIGHTS TREATIES: COMMITTEES AND COURTS

rights set forth in the Covenant. No communication shall be received by the Committee if it
concerns a State Party to the Covenant which is not a Party to the present Protocol.

Article 2

Subject to the provisions of article 1, individuals who claim that any of their rights enumerated
in the Covenant have been violated and who have exhausted all available domestic remedies
may submit a written communication to the Committee for consideration.

Article 3

The Committee shall consider inadmissible any communication under the present Protocol
which is anonymous, or which it considers to be an abuse of the right of submission of such
communications or to be incompatible with the provisions of the Covenant.

Article 4

1 Subject to the provisions of article 3, the Committee shall bring any communications
submitted to it under the present Protocol to the attention of the State Party to the present
Protocol alleged to be violating any provision of the Covenant.
2 Within six months, the receiving State shall submit to the Committee written explanations
or statements clarifying the matter and the remedy, if any, that may have been taken by
that State.

Article 5

1 The Committee shall consider communications received under the present Protocol in the
light of all written information made available to it by the individual and by the State Party
concerned.
2 The Committee shall not consider any communication from an individual unless it has
ascertained that:

(a) The same matter is not being examined under another procedure of international
investigation or settlement;
(b) The individual has exhausted all available domestic remedies. This shall not be the
rule where the application of the remedies is unreasonably prolonged.

3 The Committee shall hold closed meetings when examining communications under the
present Protocol.
4 The Committee shall forward its views to the State Party concerned and to the individual.

Article 6

The Committee shall include in its annual report under article 45 of the Covenant a summary
of its activities under the present Protocol . . .

Article 10

The provisions of the present Protocol shall extend to all parts of federal States without any
limitations or exceptions . . .

Article 12

1 Any State Party may denounce the present Protocol at any time by written notification
addressed to the Secretary-General of the United Nations. Denunciation shall take effect
three months after the date of receipt of the notification by the Secretary-General.
2 Denunciation shall be without prejudice to the continued application of the provisions of
the present Protocol to any communication submitted under article 2 before the effective
date of denunciation.
 IMPLEMENTING HUMAN RIGHTS TREATIES: COMMITTEES AND COURTS | 211

The working modalities of the Human Rights Committee concerning communications become
clearer when considering examples.

HUMAN RIGHTS COMMITTEE

Decision adopted by the Committee under the Optional Protocol, concerning communication
No. 2771/2016,
. . .

Consideration of admissibility

4.1 Before considering any claim contained in a communication, the Committee must decide,
in accordance with rule 93 of its rules of procedure, whether it is admissible under the
Optional Protocol.
4.2 The Committee has ascertained, as required under article 5 (2) (a) of the Optional Protocol,
that the same matter is not being examined under another procedure of international
investigation or settlement.
4.3 The Committee notes that the claims of the authors under article 14 (1) of the Covenant
relate to the administrative decisions made by the university authorities based on the
facts available to them concerning the performance and behaviour of the authors. The
Committee considers, however, that the authors did not establish that they had a prima
facie right under Canadian law to participate in a medical residency programme and
that, as a result, the determination of such a right should have been the subject of a
suit of law adjudicated, pursuant to the provisions of article 14 (1) of the Covenant, by a
tribunal established by law, not by the university authorities. In any event, the authors’
appeals against the decisions of the university authorities were examined by the State
party’s courts and nothing on file suggests that the courts conducted themselves in
violation of article 14 (1) of the Covenant. The Committee thus concludes that the claims
of the authors under article 14 (1) of the Covenant are inadmissible under article 3 of the
Optional Protocol and are incompatible with the provisions of the Covenant.
4.4 As for the authors’ claims concerning the alleged violation of their rights under articles
19 (2) and 26, the Committee notes that they are based solely on the authors’ assumptions
and are not duly supported by the relevant documents. From the material on file it also
seems that Y has not raised her claim under article 26 of the Covenant before the national
courts and has failed, therefore, to exhaust all domestic remedies. The Committee thus
finds the authors’ claims inadmissible owing to the lack of substantiation under article
2 and owing to the failure to exhaust domestic remedies under article 5 (2) (b) of the
Optional Protocol.
4.5 In the light of the above, the Committee decides not to examine the remainder of the
authors’ claims under article 2 (3), read in conjunction with articles 14 (1), 19 (2) and 26 of
the Covenant.
5 The Committee therefore decides:

(a) That the communication is inadmissible under articles 2, 3 and 5 (2) (b) of the
Optional Protocol;
(b) That the present decision shall be transmitted to the State party and to the authors.

Questions
Compare and contrast the admissibility criteria with those of regional bodies such as those overseeing the Euro-
pean, African and American systems. Is it more difficult to bring a complaint before the international bodies?
Does the lengthy procedure outlined in the preceding examples reflect traditional international practice or indi-
cate a move towards recognition of the importance of the individual?
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7.1.6.3 Remedies available to the individual

As is apparent, complaints to the treaty monitoring bodies are not per se cases. There is no system
of public ‘hearings’ and no ‘judgments’. In many respects this emphasises the role of the treaty
monitoring bodies in overseeing the implementation of rights within States rather than enforcing
them; this is in accordance with general principles of international law. For individuals, commu-
nications may thus seem a ‘weak’ remedy.
The Committee on the Elimination of Discrimination against Women has awarded extensive
reparations in a case concerning gender-based violence.

Angela González Carreño v Spain, Communication 47/20,

UN DOC. CEDAW/C/58/D/47/2012 (2014)

The Committee on the Elimination of Discrimination against Women found violations by Spain
of several rights under the convention. The victim had been subjected to domestic violence for
many years, which the authorities were aware of. She had secured protective orders for herself
and her daughter. Supervised visits were organized between her estranged husband and child.
Unsupervised visits were subsequently authorized by the Spanish court despite the evidence of
violence during supervised visits. Tragically her child was murdered by the estranged husband
who then committed suicide. The Committee determined Spain had violated numerous articles
of the convention including failures on gender based violence and remedies.

11 The Committee makes the following recommendations to the State party:

(a) With regard to the author of the communication:

(1) Grant the author appropriate reparation and comprehensive compensation

commensurate with the seriousness of the infringement of her rights
(2) Conduct an exhaustive and impartial investigation to determine whether there
are failures in the State’s structures and practices that have caused the author
and her daughter to be deprived of protection.

(b) In general:

(1) take appropriate and effective measures to prior acts of domestic violence will
be taken into consideration when determining custody and visitation rights
regarding children and so that the exercise of custody or visiting rights will not
endanger the safety of the victims of violence, including the children . . .
(2) Strengthen the application of the legal framework to ensure that the competent
authorities exercise due diligence to respond appropriately to situations of domestic
violence
(3) provide mandatory training for judges and administrative personnel on the
application of the legal framework with regard to combating domestic violence.
. . .

The author was forced to take her case up to the Spanish Supreme Court to secure compliance with
the committee’s recommendations. On appeal in late 2018, the Supreme Court ordered the Spanish
government to pay 600,000 euros to Ms González Carreño as compensation for the moral damages
suffered. The Supreme Court also noted that the treaty body’s opinion was legally binding on Spain.

Question
What remedies are available to individuals against a State? Look up an example of an individual communica-
tion before any of the UN treaty bodies for an example.

Note the regional provisions on remedies.

 IMPLEMENTING HUMAN RIGHTS TREATIES: COMMITTEES AND COURTS | 213

EUROPEAN CONVENTION ON HUMAN RIGHTS 1950, Article 41

If the Court finds that there has been a violation of the Convention or the protocols thereto, and
if the internal law of the High Contracting Party concerned allows only partial reparation to be
made, the Court shall, if necessary, afford just satisfaction to the injured party.

AMERICAN CONVENTION ON HUMAN RIGHTS 1969, Article 63

1 If the Court finds that there has been a violation of a right or freedom protected by this
Convention, the Court shall rule that the injured party be ensured the enjoyment of his
right or freedom that was violated. It shall also rule, if appropriate, that the consequences
of the measure or situation that constituted the breach of such right or freedom be
remedied and that fair compensation be paid to the injured party.
2 In cases of extreme gravity and urgency, and when necessary to avoid irreparable damage
to persons, the Court shall adopt such provisional measures as it deems pertinent in
matters it has under consideration. With respect to a case not yet submitted to the Court,
it may act at the request of the Commission.

7.1.7 Independent enquiries by committees

Certain of the treaties permit investigation by the committees. The Committee against Torture
and the Committee on the Elimination of All Forms of Discrimination against Women may take
the initiative and investigate human rights situations in any given State. The right is not unfet-
tered but subject to procedures agreed by States at the time of drafting, adopting and ratifying the
relevant instrument. As with inter-State complaints, States may opt out of the relevant provisions,
and thus no independent investigation can commence.

OPTIONAL PROTOCOL TO THE CONVENTION ON THE ELIMINATION OF DISCRIMINATION

AGAINST WOMEN 1999

Article 8

1 If the Committee receives reliable information indicating grave or systematic violations

by a State Party of rights set forth in the Convention, the Committee shall invite that
State Party to cooperate in the examination of the information and to this end to submit
observations with regard to the information concerned.
2 Taking into account any observations that may have been submitted by the State Party
concerned as well as any other reliable information available to it, the Committee may
designate one or more of its members to conduct an inquiry and to report urgently to the
Committee. Where warranted and with the consent of the State Party, the inquiry may
include a visit to its territory.
3 After examining the findings of such an inquiry, the Committee shall transmit these
findings to the State Party concerned together with any comments and recommendations.
4 The State Party concerned shall, within six months of receiving the findings, comments and
recommendations transmitted by the Committee, submit its observations to the Committee.
5 Such an inquiry shall be conducted confidentially and the cooperation of the State Party
shall be sought at all stages of the proceedings.

Article 9

1 The Committee may invite the State Party concerned to include in its report under article
18 of the Convention details of any measures taken in response to an inquiry conducted
under article 8 of the present Protocol.
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2 The Committee may, if necessary, after the end of the period of six months referred to in
article 8.4, invite the State Party concerned to inform it of the measures taken in response
to such an inquiry.

Article 10

1 Each State Party may, at the time of signature or ratification of the present Protocol or
accession thereto, declare that it does not recognize the competence of the Committee
provided for in articles 8 and 9.
2 Any State Party having made a declaration in accordance with paragraph 1 of the present
article may, at any time, withdraw this declaration by notification to the Secretary-General.

Note particularly that the procedure is strictly confidential and that the State concerned must
agree to the investigation taking place.

Question
What purpose may be served by such a ‘closed’ investigation?

Note also the power of the African Commission on Human and Peoples’ Rights, which has a
broad mandate and a broad range of investigative powers.

AFRICAN CHARTER ON HUMAN AND PEOPLES’ RIGHTS 1981, Articles 45(1)(a) and 46

Article 45(1)(a)

The functions of the Commission shall be:

1 To promote Human and Peoples’ Rights and in particular:

(a) to collect documents, undertake studies and researches on African problems in the
field of human and peoples’ rights, organize seminars, symposia and conferences,
disseminate information, encourage national and local institutions concerned
with human and peoples’ rights, and should the case arise, give its views or make
recommendations to Governments . . .

Article 46

The Commission may resort to any appropriate method of investigation; it may hear from the
Secretary-General of the Organization of African Unity or any other person capable of enlightening it.

7.1.8 General comments

General Comments are issued by most of the UN treaty monitoring bodies.

General Comments adopted by the Committee on Economic, Social and Cultural Rights

24 (2016) State Obligations under the International Covenant on Economic, Social and
23 (2016) Cultural Rights in the Context of Business Activities
22 (2016) Right to just and favourable conditions of work (art. 7)
21 (2009) Right to sexual and reproductive health (art. 12)
Right of everyone to take part in cultural life
20 (2009) Non-discrimination in economic, social and cultural rights (art. 2, para. 2)
19 (2008) The right to social security
18 (2005) The right to work (art. 6) Final edited version
 IMPLEMENTING HUMAN RIGHTS TREATIES: COMMITTEES AND COURTS | 215

17(2005) The right of everyone to benefit from the protection of the moral and material
interests resulting from any scientific, literary or artistic production of which
he is the author (art. 15(1)(c)) Final edited version
16(2005) The equal right of men and women to the enjoyment of all economic, social
and cultural rights (art. 3)
15(2002) The right to water (arts. 11 and 12)
14(2000) The right to the highest attainable standard of health (art. 12)
13(1999) The right to education (art. 13)
12(1999) The right to adequate food (art. 11)
11(1999) Plans of action for primary education (art. 14)
10(1998) The role of national human rights institutions in the protection of economic,
social and cultural rights
9(1998) The domestic application of the Covenant
8(1997) The relationship between economic sanctions and respect for economic,
social and cultural rights
7(1997) The right to adequate housing: forced evictions (art.11(1))
6(1995) The economic, social and cultural rights of older persons
5(1994) Persons with disabilities
4(1991) The right to adequate housing
3(1990) The nature of States parties’ obligations (art.2(1))
2(1990) International technical assistance measures (art. 22)
1 Reporting by States parties

The full text of General Comments of all the treaty monitoring bodies can be found either
online or in UN Doc. HRI/GEN/1/Rev. 7. (Note that the Committee on Elimination of All
Forms of Discrimination Against Women refer to their general comments as recommendations.)
General comments provide further elaboration of the rights and freedoms contained in a treaty.
They may provide guidance for States seeking to establish the scope and nature of their obligations
under the treaty. Moreover, they indicate the views of the Committee as to the scope of treaty
rights, thereby forewarning States as to the likely approach to be followed by the Committee in
its concluding observations to periodic reports. As the preceding list demonstrates, some reports
concern the reporting obligations under the treaty, offering advice to States in that regard. Others
focus on substantive rights, explaining the nature of the right and giving examples of the obliga-
tions assumed by the State in furtherance thereof.
Note, as an example, the Joint general comment of the Committee on the Protection of the
Rights of All Migrant Workers and Members of Their Families and No. 22 (2017) of the Com-
mittee on the Rights of the Child on the general principles regarding the human rights of children
in the context of international migration.

Joint general comment No. 3 (2017) of the Committee on the Protection of the Rights
of All Migrant Workers and Members of Their Families and No. 22 (2017) of the
Committee on the Rights of the Child on the general principles regarding the
human rights of children in the context of international migration

1 The present joint general comment was adopted at the same time as joint general
comment No. 4 (2017) of the Committee on the Protection of the Rights of All Migrant
Workers and Members of Their Families and No. 23 (2017) of the Committee on the Rights
of the Child on State obligations regarding the human rights of children in the context of
international migration in countries of origin, transit, destination and return. While that
216 | IMPLEMENTING HUMAN RIGHTS TREATIES: COMMITTEES AND COURTS

general comment and the present one are stand-alone documents in their own right, the
two complement each other and should be read and implemented together. The drafting
process included a series of global and regional consultations held between May and
July 2017 with representatives of key stakeholders and experts, including children and
migrant organizations, in Bangkok, Beirut, Berlin, Dakar, Geneva, Madrid and Mexico City.
In addition, the Committees received more than 80 written contributions from States,
United Nations agencies and entities, civil society organizations, national human rights
institutions and other stakeholders from every region of the world between November
2015 and August 2017.
3 In the context of international migration, children may be in a situation of double vulnerability
as children and as children affected by migration who (a) are migrants themselves, either
alone or with their families, (b) were born to migrant parents in countries of destination
or (c) remain in their country of origin while one or both parents have migrated to another
country. Additional vulnerabilities could relate to their national, ethnic or social origin;
gender; sexual orientation or gender identity; religion; disability; migration or status.
4 By virtue of their complementary mandates and shared commitment to strengthening
protection of all children in the context of international migration, both Committees
decided to develop these joint general comments. While the present comment is based
on the provisions of both Conventions, it is important to underline that the human rights
norms clarified herein are built on the provisions and principles of the Convention on
the Rights of the Child. Therefore, the authoritative guidance contained in the present
joint general comment is equally applicable to all States parties to the Convention on the
Rights of the Child and/or the International Convention on the Protection of the Rights of
All Migrant Workers and Members of Their Families.
7 The objective of the present joint general comment is to provide authoritative guidance
on legislative, policy and other appropriate measures that should be taken to ensure
full compliance with the obligations under the Conventions to fully protect the rights of
children in the context of international migration.
11 States should ensure that children in the context of international migration are treated
first and foremost as children. States parties to the Conventions have a duty to comply
with their obligations set out therein to respect, protect and fulfil the rights of children
in the context of international migration, regardless of their or their parents’ or legal
guardians’ migration status.
12 The obligations of States parties under the Conventions apply to each child within their
jurisdictions, including the jurisdiction arising from a State exercising effective control
outside its borders. Those obligations cannot be arbitrarily and unilaterally curtailed
either by excluding zones or areas from the territory of a State or by defining particular
zones or areas as not or only partly under the jurisdiction of the State, including in
international waters or other transit zones where States put in place migration control
mechanisms. The obligations apply within the borders of the State, including with respect
to those children who come under its jurisdiction while attempting to enter its territory.
23 The Committees recommend that States parties adopt adequate measures to combat
discrimination on any grounds and to protect children from multiple and intersecting
forms of discrimination, throughout the migration process, including in and after returning
to the country of origin, and/or as a result of their migration status. In order to achieve
such a goal, States parties should strengthen efforts to combat xenophobia, racism and
discrimination and take all appropriate measures to combat such attitudes and practices,
and to collect and disseminate accurate, reliable and updated data and information in that
regard. States should also promote the social inclusion and full integration of families
affected by international migration into the host society and implement programmes for
improving knowledge about migration and addressing any negative perceptions regarding
 IMPLEMENTING HUMAN RIGHTS TREATIES: COMMITTEES AND COURTS | 217

migrants, with the aim of protecting children affected by international migration and their
families from violence, discrimination, harassment and bullying, and fulfilling their access
to rights enshrined in the Conventions and other conventions ratified by each State. In
doing so, special attention should be paid to gender-specific and any other challenges and
vulnerabilities that may intersect.
24 States parties should conduct a robust gender analysis of the specific impacts of migration
policies and programmes on children of all genders. States parties should review and
amend any gender-discriminatory restrictions on migration in law or practice that limit
opportunities for girls or that do not recognize their capacity and autonomy to make their
own decisions.

Questions
Does this provide adequate and appropriate guidance to States as to the human rights of children in the context
of international migration? Does it clarify the application of the Convention on the Rights of the Child and
the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their
Families and thus make clear the obligations assumed by any State ratifying these treaties?

7.1.9 On-site visits

While the foregoing methods permit ‘remote’ monitoring of the human rights situation in the vari-
ous States, inevitably such a system does not produce a truly accurate reflection of human rights.
Consequently, additional sources may be consulted to ‘round out’ the reports of the State. But
there remains no viable alternative to in situ investigations. Some treaty monitoring bodies have
been given powers permitting this. As their powers are granted by the high contracting States, it is
inevitable that the States themselves have limited the powers of the committees in this respect. Most
notably, there is no power of ‘surprise’ visits, all visits must be at the invitation of the States and
agreed in advance. Essentially, State visits are currently only undertaken in the UN by rapporteurs;
the UN treaty monitoring bodies, unlike their regional counterparts, do not enjoy these powers.
At the international level, the Committee against Torture now has this power as its optional
protocol is in force with more than 60 parties. As noted earlier, the Sub-committee on Prevention
of Torture is sometimes considered as a separate treaty body.

OPTIONAL PROTOCOL TO THE CONVENTION AGAINST TORTURE AND OTHER CRUEL,

INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT 2002

Article 1

The objective of the present Protocol is to establish a system of regular visits undertaken by
independent international and national bodies to places where people are deprived of their liberty,
in order to prevent torture and other cruel, inhuman or degrading treatment or punishment.

Article 2

1 A Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment of the Committee against Torture (hereinafter referred to as the
Subcommittee on Prevention) shall be established and shall carry out the functions laid
down in the present Protocol.
2 The Subcommittee on Prevention shall carry out its work within the framework of the
Charter of the United Nations and shall be guided by the purposes and principles thereof,
as well as the norms of the United Nations concerning the treatment of people deprived
of their liberty.
3 Equally, the Subcommittee on Prevention shall be guided by the principles of confidentiality,
impartiality, non-selectivity, universality and objectivity.
218 | IMPLEMENTING HUMAN RIGHTS TREATIES: COMMITTEES AND COURTS

4 The Subcommittee on Prevention and the States Parties shall cooperate in the
implementation of the present Protocol.

Article 3

Each State Party shall set up, designate or maintain at the domestic level one or several
visiting bodies for the prevention of torture and other cruel, inhuman or degrading treatment
or punishment (hereinafter referred to as the national preventive mechanism).

Article 4

1 Each State Party shall allow visits, in accordance with the present Protocol, by the
mechanisms referred to in articles 2 and 3 to any place under its jurisdiction and control
where persons are or may be deprived of their liberty, either by virtue of an order given
by a public authority or at its instigation or with its consent or acquiescence (hereinafter
referred to as places of detention). These visits shall be undertaken with a view to
strengthening, if necessary, the protection of these persons against torture and other
cruel, inhuman or degrading treatment or punishment.
2 For the purposes of the present Protocol, deprivation of liberty means any form of detention
or imprisonment or the placement of a person in a public or private custodial setting
which that person is not permitted to leave at will by order of any judicial, administrative
or other authority . . .

Article 11

1 The Subcommittee on Prevention shall:

(a) Visit the places referred to in article 4 and make recommendations to States Parties
concerning the protection of persons deprived of their liberty against torture and
other cruel, inhuman or degrading treatment or punishment;
(b) In regard to the national preventive mechanisms:

(i) Advise and assist States Parties, when necessary, in their establishment;
(ii) Maintain direct, and if necessary confidential, contact with the national preventive
mechanisms and offer them training and technical assistance with a view to
strengthening their capacities;
(iii) Advise and assist them in the evaluation of the needs and the means necessary
to strengthen the protection of persons deprived of their liberty against torture
and other cruel, inhuman or degrading treatment or punishment;
(iv) Make recommendations and observations to the States Parties with a view to
strengthening the capacity and the mandate of the national preventive mechanisms
for the prevention of torture and other cruel, inhuman or degrading treatment or
punishment;

(c) Cooperate, for the prevention of torture in general, with the relevant United Nations
organs and mechanisms as well as with the international, regional and national
institutions or organizations working towards the strengthening of the protection
of all persons against torture and other cruel, inhuman or degrading treatment or
punishment.

Article 12

In order to enable the Subcommittee on Prevention to comply with its mandate as laid down in
article 11, the States Parties undertake:

(a) To receive the Subcommittee on Prevention in their territory and grant it access to the
places of detention as defined in article 4 of the present Protocol;
 IMPLEMENTING HUMAN RIGHTS TREATIES: COMMITTEES AND COURTS | 219

(b) To provide all relevant information the Subcommittee on Prevention may request to
evaluate the needs and measures that should be adopted to strengthen the protection of
persons deprived of their liberty against torture and other cruel, inhuman or degrading
treatment or punishment;
(c) To encourage and facilitate contacts between the Subcommittee on Prevention and the
national preventive mechanisms;
(d) To examine the recommendations of the Subcommittee on Prevention and enter into
dialogue with it on possible implementation measures.

. . .

Article 14

1 In order to enable the Subcommittee on Prevention to fulfil its mandate, the States Parties
to the present Protocol undertake to grant it:

(a) Unrestricted access to all information concerning the number of persons deprived
of their liberty in places of detention as defined in article 4, as well as the number of
places and their location;
(b) Unrestricted access to all information referring to the treatment of those persons as
well as their conditions of detention;
(c) Subject to paragraph 2 below, unrestricted access to all places of detention and their
installations and facilities;
(d) The opportunity to have private interviews with the persons deprived of their liberty
without witnesses, either personally or with a translator if deemed necessary, as
well as with any other person who the Subcommittee on Prevention believes may
supply relevant information;
(e) The liberty to choose the places it wants to visit and the persons it wants to interview.

2 Objection to a visit to a particular place of detention may be made only on urgent and
compelling grounds of national defence, public safety, natural disaster or serious disorder
in the place to be visited that temporarily prevent the carrying out of such a visit. The
existence of a declared state of emergency as such shall not be invoked by a State Party
as a reason to object to a visit.

Article 15

No authority or official shall order, apply, permit or tolerate any sanction against any person or
organization for having communicated to the Subcommittee on Prevention or to its delegates
any information, whether true or false, and no such person or organization shall be otherwise
prejudiced in any way.

Article 16

1 The Subcommittee on Prevention shall communicate its recommendations and observations

confidentially to the State Party and, if relevant, to the national preventive mechanism.
2 The Subcommittee on Prevention shall publish its report, together with any comments of
the State Party concerned, whenever requested to do so by that State Party. If the State
Party makes part of the report public, the Subcommittee on Prevention may publish
the report in whole or in part. However, no personal data shall be published without the
express consent of the person concerned.
3 The Subcommittee on Prevention shall present a public annual report on its activities to
the Committee against Torture.
4 If the State Party refuses to cooperate with the Subcommittee on Prevention according to
articles 12 and 14, or to take steps to improve the situation in the light of the recommendations
of the Subcommittee on Prevention, the Committee against Torture may, at the request of
220 | IMPLEMENTING HUMAN RIGHTS TREATIES: COMMITTEES AND COURTS

the Subcommittee on Prevention, decide, by a majority of its members, after the State
Party has had an opportunity to make its views known, to make a public statement on the
matter or to publish the report of the Subcommittee on Prevention.

Such a system of visits is already operational at a regional level. Indeed, the UN took its lead from
Europe in this respect: establishing the European Torture Committee was the primary raison d’être
of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment
or Punishment 1987.

Question
Consider the balance that must be struck by the Committee – while undertaking relevant visits, they must also
respect the rights of States, their territorial integrity and their political sovereignty. To what extent are States
likely to permit full access to treaty monitoring committees?

The reports of the various bodies are easily accessible online. The UN reports are accessible
online (https://www.ohchr.org/en/hrbodies/cat/pages/catindex.aspx); the Council of Europe’s
committee at www.cpt.coe.int/en/. In addition, note the powers of the Working group on Arbi-
trary Detention, as outlined in Chapter 6.

Question
Look up an example of a report on a visit to detention institutions by either the UN or European committee.
To what extent is the guidance of the Committee valuable for the State? Ascertain the extent to which the
Committee was permitted to examine the ‘real’ situation within the State.

7.2 Regional systems: creating judicial mechanisms

For general human rights, court systems only occur at the regional level. Some have argued for
the creation of a World Human Rights Court (see, for example, Thomas Buergenthal, ‘A Court
and Two Consolidated Treaty Bodies’ in A. Bayefsky (ed.), The UN Human Rights Treaty System
in the 21st Century, 2000, The Hague: Kluwer; and Manfred Nowak, ‘A World Court of Human
Rights’ in G. Oberleitner (ed.), International Human Rights Institutions, Tribunals, and Courts, 2018,
Springer), but no progress has been made to date. The International Criminal Court clearly has
the potential to give effect to certain human rights though obviously this is by prosecuting the
individuals responsible for war crimes, crimes against humanity etc. rather than holding the State
to account for infringements of human rights.

Question
What benefits could courts have over committees?

There is provision in terms of each of the principal regional instruments for a court to be estab-
lished to oversee the implementation of regional human rights. Given that the courts are estab-
lished in accordance with treaty and protocol provisions, they too are conventional mechanisms,
and restricted in their power to that permitted by the founding States.

7.2.1 European Court of Human Rights

The European Court of Human Rights is probably the most effective court yet established to
monitor and implement human rights. Its impact extends beyond Europe as various national
courts in other regions of the world have recourse to the jurisprudence of the European Court of
Human Rights when determining the nature and scope of certain contentious rights.
 IMPLEMENTING HUMAN RIGHTS TREATIES: COMMITTEES AND COURTS | 221

Of particular note, all contracting States must permit individual complaints to be brought
before the European Court of Human Rights.

European Convention on Human Rights 1950

Article 19 – Establishment of the Court

To ensure the observance of the engagements undertaken by the High Contracting Parties in
the Convention and the Protocols thereto, there shall be set up a European Court of Human
Rights, hereinafter referred to as ‘the Court’. It shall function on a permanent basis . . .

Article 32 – Jurisdiction of the Court

1 The jurisdiction of the Court shall extend to all matters concerning the interpretation and
application of the Convention and the protocols thereto which are referred to it as provided
in Articles 33, 34 and 47.
2 In the event of dispute as to whether the Court has jurisdiction, the Court shall decide.

Article 33 – Inter-State cases

Any High Contracting Party may refer to the Court any alleged breach of the provisions of the
Convention and the protocols thereto by another High Contracting Party.

Article 34 – Individual applications

The Court may receive applications from any person, non-governmental organisation or group
of individuals claiming to be the victim of a violation by one of the High Contracting Parties of
222 | IMPLEMENTING HUMAN RIGHTS TREATIES: COMMITTEES AND COURTS

the rights set forth in the Convention or the protocols thereto. The High Contracting Parties
undertake not to hinder in any way the effective exercise of this right . . .

Article 47 – Advisory opinions

1 The Court may, at the request of the Committee of Ministers, give advisory opinions on
legal questions concerning the interpretation of the Convention and the protocols thereto.
2 Such opinions shall not deal with any question relating to the content or scope of the
rights or freedoms defined in Section 1 of the Convention and the protocols thereto, or
with any other question which the Court or the Committee of Ministers might have to
consider in consequence of any such proceedings as could be instituted in accordance
with the Convention.
3 Decisions of the Committee of Ministers to request an advisory opinion of the Court shall
require a majority vote of the representatives entitled to sit on the Committee.

Note that no reporting system operates for the European Convention on Human Rights, although
reports are the principal mechanism deployed for ensuring compliance with the European Social
Charter.
Despite the terminology, the European Court of Human Rights continues to regard its func-
tion as supervisory – that is, it seeks to guide States in their application of the Convention. There
is copious evidence of this – the Court rarely awards punitive damages as just satisfaction (Article
41 of the Convention); the Court will determine a violation and rarely proceeds to elaborate on
subsequent articles of the Convention which may also have been infringed.
Examples of the impact of the Court’s judgments can be found online at https://www.coe.
int/en/web/impact-convention-human-rights/home#/.

7.2.2 European Committee for the Prevention of Torture and the

European Committee of Social Rights
The European Committee for the Prevention of Torture and Other Inhuman or Degrading Treat-
ment or Punishment has been mentioned previously. It has powers under the European Conven-
tion of the same name.

European Convention for the Prevention of Torture and other Inhuman or Degrading
Treatment or Punishment

Article 1

There shall be established a European Committee for the Prevention of Torture and Inhuman
or Degrading Treatment or Punishment (hereinafter referred to as ‘the Committee’). The
Committee shall, by means of visits, examine the treatment of persons deprived of their liberty
with a view to strengthening, if necessary, the protection of such persons from torture and from
inhuman or degrading treatment or punishment.

Article 2

Each Party shall permit visits, in accordance with this Convention, to any place within its
jurisdiction where persons are deprived of their liberty by a public authority.

Article 3

In the application of this Convention, the Committee and the competent national authorities of
the Party concerned shall co-operate with each other.

The powers of the Committee have been accepted (through ratification of the relevant Conven-
tion) by all Member States of the Council of Europe. The Committee undertakes periodic visits of
 IMPLEMENTING HUMAN RIGHTS TREATIES: COMMITTEES AND COURTS | 223

all States and, in addition, may visit States of particular concern. Its regular periodic visits in 2020
will cover Azerbaijan, Finland, Germany, Moldova, Monaco, Serbia, Spain and Sweden; its ad hoc
visits will be undertaken when circumstances so demand.
The European Committee of Social Rights, which administers the two European Social
Charters, operates a collective complaints procedure. Organisations registered under the system
can submit complaints. Famous examples include the series of complaints lodged in September
2003 by the World Organisation Against Torture. These complaints concerned corporal punish-
ment and were against Belgium, Portugal, Italy, Ireland and Greece. Each concerned Article 17
of the Charter on the rights of mothers and children to economic and social protection. In each
instance, the Committee found a violation.

World Organisation against Torture v Greece, Complaint 17/2003, 7 December 2004

30. The Committee recalls its interpretation of Article 17 of the Charter in the General
Introduction to Conclusions XV-2 (Vol. 1, 2001).
31. The Committee furthermore recalls that the Charter is a living instrument which must
be interpreted in light of developments in the national law of Member States of the Council
of Europe as well as relevant international instruments. In its interpretation of Article 17 the
Committee refers, in particular to,

a Article 19 of the United Nations Convention on the Rights of the Child and case-law as
interpreted by the Committee on the Rights of the Child;
b Article 3 of the European Convention on Human Rights as interpreted by the European
Court of Human Rights (inter alia Tyrer v. the United Kingdom, 1978, as regards judicial
birching of children, Campbell and Cosans v. the United Kingdom, 1982 as regards
corporal punishment inflicted at school and A v. the United Kingdom, 1998, as regards
parental corporal punishment);
c Recommendation No. R (93) 2 on the medico-social aspects of child abuse adopted by
the Committee of Ministers on 22 March 1993; Recommendation No. R (90) 2 on social
measures concerning violence within the family adopted by the Committee of Ministers
on 15 January 1990; Recommendation No. R(85)4 on violence within the Family adopted
by the Committee of Ministers on 26 March 1985;
d Recommendation 1666 (2004) ‘Europe-wide ban on corporal punishment of children’
adopted by the Parliamentary Assembly on 24 June 2004.

32. The Committee’s case law is to the effect that the prohibition of all forms of violence
must have a legislative basis. The prohibition must cover all forms of violence regardless
of where it occurs or of the identity of the alleged perpetrator. Furthermore, the sanctions
available must be adequate, dissuasive and proportionate.
33. The complainant organisation alleges that Greek legislation does not explicitly and
effectively prohibit corporal punishment against children within the family, in secondary
schools and in other institutions and forms of care for children.

Many of the complaints are brought by trade unions and other workers’ organisations. The preced-
ing complaints on corporal punishment are perhaps unusual but demonstrate the potential reach
of this little-studied committee.

7.2.3 Inter-American Court and Commission of Human Rights

The Inter-American system, as discussed in Chapters 5 and 7, operates with both a Commission
and a Court. As was the case initially with the European Court of Human Rights, individuals have
no locus standi before the Inter-American Court of Human Rights. However, complaints can still
reach the Court by individuals referring the matter first to the Commission.
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AMERICAN CONVENTION ON HUMAN RIGHTS 1969

Article 44

Any person or group of persons, or any nongovernmental entity legally recognized in one or
more Member States of the Organization, may lodge petitions with the Commission containing
denunciations or complaints of violation of this Convention by a State Party.

Article 45

1 Any State Party may, when it deposits its instrument of ratification of or adherence to
this Convention, or at any later time, declare that it recognizes the competence of the
Commission to receive and examine communications in which a State Party alleges that
another State Party has committed a violation of a human right set forth in this Convention.
2 Communications presented by virtue of this article may be admitted and examined
only if they are presented by a State Party that has made a declaration recognizing the
aforementioned competence of the Commission. The Commission shall not admit any
communication against a State Party that has not made such a declaration.
3 A declaration concerning recognition of competence may be made to be valid for an
indefinite time, for a specified period, or for a specific case.

Subsequent articles explain in detail the procedure employed in processing complaints, includ-
ing the admissibility criteria and the need to seek a friendly settlement if possible. The extra-
conventional competence of the Commission is addressed in Chapter 5. As was noted, the
Commission was established pursuant to the Convention but alterations to the OAS Charter
provided more substantive competence for the body.

AMERICAN CONVENTION ON HUMAN RIGHTS 1969

Article 57

The Commission shall appear in all cases before the Court . . .

Article 61

1 Only the States Parties and the Commission shall have the right to submit a case to the Court.
2 In order for the Court to hear a case, it is necessary that the procedures set forth in
Articles 48 and 50 shall have been completed.

Article 62

1 A State Party may, upon depositing its instrument of ratification or adherence to this
Convention, or at any subsequent time, declare that it recognizes as binding, ipso facto,
and not requiring special agreement, the jurisdiction of the Court on all matters relating
to the interpretation or application of this Convention.
2 Such declaration may be made unconditionally, on the condition of reciprocity, for a
specified period, or for specific cases. It shall be presented to the Secretary-General of
the Organization, who shall transmit copies thereof to the other Member States of the
Organization and to the Secretary of the Court.
3 The jurisdiction of the Court shall comprise all cases concerning the interpretation and
application of the provisions of this Convention that are submitted to it, provided that the
States Parties to the case recognize or have recognized such jurisdiction, whether by
special declaration pursuant to the preceding paragraphs, or by a special agreement.

Article 63

1 If the Court finds that there has been a violation of a right or freedom protected by this
Convention, the Court shall rule that the injured party be ensured the enjoyment of his
 IMPLEMENTING HUMAN RIGHTS TREATIES: COMMITTEES AND COURTS | 225

right or freedom that was violated. It shall also rule, if appropriate, that the consequences
of the measure or situation that constituted the breach of such right or freedom be
remedied and that fair compensation be paid to the injured party.
2 In cases of extreme gravity and urgency, and when necessary to avoid irreparable damage
to persons, the Court shall adopt such provisional measures as it deems pertinent in
matters it has under consideration. With respect to a case not yet submitted to the Court,
it may act at the request of the Commission.

Article 64

1 The Member States of the Organization may consult the Court regarding the interpretation
of this Convention or of other treaties concerning the protection of human rights in the
American States. Within their spheres of competence, the organs listed in Chapter X of
the Charter of the Organization of American States, as amended by the Protocol of Buenos
Aires, may in like manner consult the Court.
2 The Court, at the request of a Member State of the Organization, may provide that State
with opinions regarding the compatibility of any of its domestic laws with the aforesaid
international instruments . . .
226 | IMPLEMENTING HUMAN RIGHTS TREATIES: COMMITTEES AND COURTS

Article 67

The judgment of the Court shall be final and not subject to appeal. In case of disagreement as
to the meaning or scope of the judgment, the Court shall interpret it at the request of any of
the parties, provided the request is made within ninety days from the date of notification of the
judgment.

Article 68

1 The States Parties to the Convention undertake to comply with the judgment of the Court
in any case to which they are parties.
2 That part of a judgment that stipulates compensatory damages may be executed in the
country concerned in accordance with domestic procedure governing the execution of
judgments against the State.

The previous diagram indicates the various stages of a complaint being brought to the Court.
With respect to provisional measures, it is noteworthy that the Commission retains power to
request these, even if the Court is not seized of the matter.
Note that more substantive remedies are often awarded by the Inter-American Court.
The compensation can be for pecuniary and non-pecuniary damages. The Court can, and
has, also made specific orders – e.g. for a State to release a prisoner (Loayza Tamayo (Ser.C,
No. 33 (1997)) or change domestic law (Barrios Altos (Ser.C, No. 75 (2001)). (Note that both
these examples involve Peru, but other States have received similar judgments from the Inter-
American Court.)

7.2.4 African Commission and Court of Human and Peoples’ Rights

Under the African system, a Commission and Court oversee the application of the African Char-
ter on Human and Peoples’ Rights.

AFRICAN CHARTER ON HUMAN AND PEOPLES’ RIGHTS 1981

Article 30

An African Commission on Human and Peoples’ Rights, hereinafter called ‘the Commission’,
shall be established within the Organization of African Unity to promote human and peoples’
rights and ensure their protection in Africa. . . .

Article 45

The functions of the Commission shall be:

1 To promote Human and Peoples’ Rights and in particular:

(a) to collect documents, undertake studies and researches on African problems in the
field of human and peoples’ rights, organize seminars, symposia and conferences,
disseminate information, encourage national and local institutions concerned
with human and peoples’ rights, and should the case arise, give its views or make
recommendations to Governments;
(b) to formulate and lay down, principles and rules aimed at solving legal problems
relating to human and peoples’ rights and fundamental freedoms upon which African
Governments may base their legislations;
(c) co-operate with other African and international institutions concerned with the
promotion and protection of human and peoples’ rights.
 IMPLEMENTING HUMAN RIGHTS TREATIES: COMMITTEES AND COURTS | 227

2 Ensure the protection of human and peoples’ rights under conditions laid down by the
present Charter.
3 Interpret all the provisions of the present Charter at the request of a State party, an
institution of the OAU or an African Organization recognized by the OAU.
4 Perform any other tasks which may be entrusted to it by the Assembly of Heads of State
and Government.

Article 46

The Commission may resort to any appropriate method of investigation; it may hear from
the Secretary-General of the Organization of African Unity or any other person capable of
enlightening it.

Article 47

If a State party to the present Charter has good reasons to believe that another State party to
this Charter has violated the provisions of the Charter, it may draw, by written communication,
the attention of that State to the matter. This communication shall also be addressed to the
Secretary-General of the OAU and to the Chairman of the Commission. Within three months
of the receipt of the communication, the State to which the communication is addressed shall
give the enquiring State, written explanation or statement elucidating the matter. This should
include as much as possible relevant information relating to the laws and rules of procedure
applied and applicable, and the redress already given or course of action available . . .

Article 55

1 Before each Session, the Secretary of the Commission shall make a list of the
communications other than those of States parties to the present Charter and transmit
them to the members of the Commission, who shall indicate which communications
should be considered by the Commission.
2 A communication shall be considered by the Commission if a simple majority of its
members so decide.

Article 56

Communications relating to human and peoples’ rights referred to in Article 55 received by the
Commission, shall be considered if they:

1 Indicate their authors even if the latter request anonymity,

2 Are compatible with the Charter of the Organization of African Unity or with the present
Charter,
3 Are not written in disparaging or insulting language directed against the State concerned
and its institutions or to the Organization of African Unity,
4 Are not based exclusively on news discriminated (sic) through the mass media,
5 Are sent after exhausting local remedies, if any, unless it is obvious that this procedure is
unduly prolonged,
6 Are submitted within a reasonable period from the time local remedies are exhausted or
from the date the Commission is seized of the matter, and
7 Do not deal with cases which have been settled by these States involved in accordance
with the principles of the Charter of the United Nations, or the Charter of the Organization
of African Unity or the provisions of the present Charter.

Article 57

Prior to any substantive consideration, all communications shall be brought to the knowledge
of the State concerned by the Chairman of the Commission.
228 | IMPLEMENTING HUMAN RIGHTS TREATIES: COMMITTEES AND COURTS

Article 58

1 When it appears after deliberations of the Commission that one or more communications
apparently relate to special cases which reveal the existence of a series of serious or
massive violations of human and peoples’ rights, the Commission shall draw the attention
of the Assembly of Heads of State and Government to these special cases.
2 The Assembly of Heads of State and Government may then request the Commission to
undertake an in-depth study of these cases and make a factual report, accompanied by its
findings and recommendations.
3 A case of emergency duly noticed by the Commission shall be submitted by the latter to
the Chairman of the Assembly of Heads of State and Government who may request an in-
depth study.

No Court was provided for in the original African Charter. This appeared to be a deliberate deci-
sion. Although dissimilar from the other regional systems (Europe and the Americas), it reflects
the prevailing international (United Nations) practice of non-judicial mechanisms for addressing
violations of human rights.

Van der Mei, A., ‘The New African Court on Human and Peoples’ Rights: Towards an
Effective Human Rights Protection Mechanism for Africa?’ (2005) 18.1 Leiden Journal
of International Law 113, at 115

According to commentators, the choice to establish a commission and not a court was
motivated by African norms and values. These would favour negotiation, conciliation, and other
amicable forms as the appropriate methods for dispute settlement, and would oppose the
confrontational judicial settlement in the West.

The African Court is established by virtue of an optional protocol to the Charter. Details concern-
ing the Court, its jurisdiction and function can be found in that instrument. The African Court on
Human and Peoples’ Rights delivered its first judgment in 2009 Yogogombaye v Republic of Senegal.
As of June 2012, the Court had received 24 applications. There are ongoing plans for a human
rights section in the new African Court of Justice, which will replace the present Court.

7.2.5 Association of South East Asian Nations (ASEAN)

As noted in Chapter 5, the ASEAN Charter of 2007 provided for the creation of a human rights
body. The ASEAN Intergovernmental Commission on Human Rights (AICHR) was inaugurated
in October 2009 as a consultative body of the ASEAN.

AICHR’s Terms of Reference (ToR)

PURPOSES

The purposes of the AICHR are:

1.1 To promote and protect human rights and fundamental freedoms of the peoples of ASEAN;
1.2 To uphold the right of the peoples of ASEAN to live in peace, dignity and prosperity;
1.3 To contribute to the realisation of the purposes of ASEAN as set out in the ASEAN Charter
in order to promote stability and harmony in the region, friendship and cooperation among
ASEAN Member States, as well as the well-being, livelihood, welfare and participation of
ASEAN peoples in the ASEAN Community building process;
1.4 To promote human rights within the regional context, bearing in mind national and
regional particularities and mutual respect for different historical, cultural and religious
backgrounds, and taking into account the balance between rights and responsibilities;
 IMPLEMENTING HUMAN RIGHTS TREATIES: COMMITTEES AND COURTS | 229

1.5 To enhance regional cooperation with a view to complementing national and international
efforts on the promotion and protection of human rights; and
1.6 To uphold international human rights standards as prescribed by the Universal Declaration
of Human Rights, the Vienna Declaration and Programme of Action, and international
human rights instruments to which ASEAN Member States are parties.

. . .

4. MANDATE AND FUNCTIONS

4.1 To develop strategies for the promotion and protection of human rights and fundamental
freedoms to complement the building of the ASEAN Community;
4.2 To develop an ASEAN Human Rights Declaration with a view to establishing a framework
for human rights cooperation through various ASEAN conventions and other instruments
dealing with human rights;
4.3 To enhance public awareness of human rights among the peoples of ASEAN through
education, research and dissemination of information;
4.4 To promote capacity building for the effective implementation of international human
rights treaty obligations undertaken by ASEAN Member States;
4.5 To encourage ASEAN Member States to consider acceding to and ratifying international
human rights instruments;
4.6 To promote the full implementation of ASEAN instruments related to human rights;
4.7 To provide advisory services and technical assistance on human rights matters to ASEAN
sectoral bodies upon request;
4.8 To engage in dialogue and consultation with other ASEAN bodies and entities associated
with ASEAN, including civil society organisations and other stakeholders, as provided for
in Chapter V of the ASEAN Charter;
4.9 To consult, as may be appropriate, with other national, regional and international
institutions and entities concerned with the promotion and protection of human rights;
4.10 To obtain information from ASEAN Member States on the promotion and protection of
human rights;
4.11 To develop common approaches and positions on human rights matters of interest to
ASEAN;
4.12 To prepare studies on thematic issues of human rights in ASEAN;
4.13 To submit an annual report on its activities, or other reports if deemed necessary, to the
ASEAN Foreign Ministers Meeting; and
4.14 To perform any other tasks as may be assigned to it by the ASEAN Foreign Ministers
Meeting.

. . .

Alongside a range of civil, political, economic, social and cultural rights, the 2012 AEAN Dec-
laration is also unique in containing rights to development and peace. The Declaration also seeks
to reflect ASEAN cultural values. Article 7 states that ‘the realisation of human rights must be
considered in the regional and national context bearing in mind different political, economic,
legal, social, cultural, historical and religious backgrounds’. This has led to competing views on
the on the ASEAN Declaration as a proper expression of universal rights (see Joe Ing, ‘ASEAN
Human Rights Declaration: A Pragmatic Compromise’ (2012) RISIS Commentaries No. 211
and Caryl Thompson, ‘Self-Inflicted Harm: The ASEAN Declaration of Human Rights’ Global
Policy Journal (21 December 2012] for competing views). The Declaration is, however, not a
binding document.
230 | IMPLEMENTING HUMAN RIGHTS TREATIES: COMMITTEES AND COURTS

7.2.6 Arab Court of Human Rights?

The League of Arab States has also made some progress in creating an Arab Court of Human
Rights. As the box entitled progress on an Arab Court of Human Rights to date demonstrates,
the Court is currently open for ratification but has not yet attained the necessary number of votes
to become operational.

Progress on an Arab Court of Human Rights to date

2012 15 JANUARY: The Kingdom of Bahrain proposed the creation of an Arab Court
of Human Rights.
10 MARCH: The Council of Ministers of Foreign Affairs welcomed the proposal, and
requested a study on the creation of the Court.
2013 25–26 FEBRUARY: A conference of member States on the creation of the Arab
Court of Human Rights was held.
26 MARCH: The creation of an Arab Court of Human Rights was approved.
1 SEPTEMBER: The Council of Ministers of Foreign Affairs approved Bahrain’s request
to host the Arab Court of Human Rights.
2014 26 MARCH: The Kuwait Summit approves the draft Statute for the Arab Court
of Human Rights ‘in principle’.
20–26 MAY: The Arab League holds two conferences and at the opening of both
meetings, announces that the expert committee has finalized its work on the draft
Statute. The expected consultations with CSOs did not materialise.
7 SEPTEMBER: The Council of Ministers of Foreign Affairs approves with finality the
draft Statute of the Arab Court of Human Rights, and its funding by member States.
4 NOVEMBER: The Arab League website announces the opening of the Statute for
ratification. 

7.3 Remedies for individuals

For individuals, one of the main problems with the foregoing procedures is the perceived lack of
remedies. Obviously, the treaties make frequent reference to the need for adequate remedies (at a
national level) for infringements of human rights.

CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL

DISCRIMINATION 1965, Article 6

States Parties shall assure to everyone within their jurisdiction effective protection and
remedies, through the competent national tribunals and other State institutions, against
any acts of racial discrimination which violate his human rights and fundamental freedoms
contrary to this Convention, as well as the right to seek from such tribunals just and adequate
reparation or satisfaction for any damage suffered as a result of such discrimination.

The view of the Committee on this was clarified in a General Comment in 2000.

CERD General Recommendation 26 (2000)

1 The Committee on the Elimination of Racial Discrimination believes that the degree to
which acts of racial discrimination and racial insults damage the injured party’s perception
of his/her own worth and reputation is often underestimated.
 IMPLEMENTING HUMAN RIGHTS TREATIES: COMMITTEES AND COURTS | 231

2 The Committee notifies States parties that, in its opinion, the right to seek just and adequate
reparation or satisfaction for any damage suffered as a result of such discrimination,
which is embodied in article 6 of the Convention, is not necessarily secured solely by
the punishment of the perpetrator of the discrimination; at the same time, the courts
and other competent authorities should consider awarding financial compensation for
damage, material or moral, suffered by a victim, whenever appropriate.

See also the following articles from selected treaties:

INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS 1966

Article 9(5)

Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right
to compensation.

Article 14(6)

When a person has by a final decision been convicted of a criminal offence and when subsequently
his conviction has been reversed or he has been pardoned on the ground that a new or newly
discovered fact shows conclusively that there has been a miscarriage of justice, the person
who has suffered punishment as a result of such conviction shall be compensated according
to law, unless it is proved that the nondisclosure of the unknown fact in time is wholly or partly
attributable to him.

CONVENTION AGAINST TORTURE 1984

Article 14

1 Each State Party shall ensure in its legal system that the victim of an act of torture obtains
redress and has an enforceable right to fair and adequate compensation, including the
means for as full rehabilitation as possible. In the event of the death of the victim as a
result of an act of torture, his dependants shall be entitled to compensation.
2 Nothing in this article shall affect any right of the victim or other persons to compensation
which may exist under national law.

The UN also has a specific Voluntary Fund for the Victims of Torture which it administers.
Note also the view of the Committee on Economic, Social and Cultural Rights as regards the
exercise of the right to the highest attainable standard of health.

Committee on Economic, Social and Cultural Rights General Comment 14 (2000): Article 12:
The Right to the Highest Attainable Standard of Health

Remedies and accountability

59. Any person or group victim of a violation of the right to health should have access to effective
judicial or other appropriate remedies at both national and international levels. All victims of
such violations should be entitled to adequate reparation, which may take the form of restitution,
compensation, satisfaction or guarantees of non-repetition. National ombudsmen, human
rights commissions, consumer forums, patients’ rights associations or similar institutions
should address violations of the right to health.
60. The incorporation in the domestic legal order of international instruments recognizing
the right to health can significantly enhance the scope and effectiveness of remedial measures
and should be encouraged in all cases. Incorporation enables courts to adjudicate violations of
the right to health, or at least its core obligations, by direct reference to the Covenant.
232 | IMPLEMENTING HUMAN RIGHTS TREATIES: COMMITTEES AND COURTS

61. Judges and members of the legal profession should be encouraged by States parties
to pay greater attention to violations of the right to health in the exercise of their functions.
62. States parties should respect, protect, facilitate and promote the work of human
rights advocates and other members of civil society with a view to assisting vulnerable or
marginalized groups in the realization of their right to health.

For a practical example, consider the opinion of the Human Rights Committee:

Burgos v Uruguay, Communication 52/1979, UN Doc. CCPR/C/13/D/52/1979

The author is a political refugee of Uruguayan nationality, living in Austria. She submitted a
communication on behalf of her husband, who was in Uruguay. He was allegedly kidnapped
in Buenos Aires by members of the ‘Uruguayan security and intelligence forces’, detained in
Buenos Aires for about two weeks and clandestinely transported to Uruguay, where he was
detained incommunicado by the special security forces at a secret prison for three months.
During the entire period of detention, allegedly the man suffered from physical and mental
torture and other cruel, inhuman or degrading treatment. He sustained a broken jaw and
perforated eardrums. Burgos was then transferred to a military hospital. Over a year later, he
was charged and brought to trial before a military court. He was not entitled to his own counsel
and the final verdict was still pending at the time of the Communication.

13. The Human Rights Committee, acting under Article 5 (4) of the Optional Protocol to the
International Covenant on Civil and Political Rights is of the view that the communication
discloses violations of the Covenant, in particular of:

• Article 7, because of the treatment (including torture) suffered by Lopez Burgos at the
hands of Uruguayan military officers in the period from July to October 1976 both in
Argentina and Uruguay;
• Article 9(1), because the act of abduction into Uruguayan territory constituted an arbitrary
arrest and detention;
• Article 9(3), because Lopez Burgos was not brought to trial within a reasonable time;
• Article 14(3)(d), because Lopez Burgos was forced to accept Colonel Mario Rodriguez as
his legal counsel;
• Article 14(3)(g), because Lopez Burgos was compelled to sign a statement incriminating
himself;
• Article 22(1) in conjunction with Article 19(1) and (2), because Lopez Burgos has suffered
persecution for his trade union activities.

14. The Committee, accordingly, is of the view that the State party is under an obligation,
pursuant to Article 2(3) of the Covenant, to provide effective remedies to Lopez Burgos, including
immediate release, permission to leave Uruguay and compensation for the violations which he
has suffered, and to take steps to ensure that similar violations do not occur in the future.

Note the very specific references to compensation. Not all Committees (indeed not all communi-
cations) offer the same comments.
See also the preceding communication by González Carreño v Spain before CEDAW which
in 2018 resulted in the award of 600,000 euros of compensation, the highest compensation
recorded following an opinion of a UN treaty body.
The Inter-American system probably offers the highest financial compensation. However,
from its jurisprudence, it is possible to discern the process of evaluating compensation.
 IMPLEMENTING HUMAN RIGHTS TREATIES: COMMITTEES AND COURTS | 233

Case of Velásquez Rodríguez v Honduras Compensatory Damages (Article 63 (1) American

Convention on Human Rights), Series C, No. 7, Judgment of July 21 1989

The facts of this case are discussed in Chapter 11. In some respects they are similar to that of
Burgos. Essentially the applicant had disappeared and the Inter-American Court of Human
Rights had found infringements of many rights and freedoms contained in the American Conven-
tion. The applicant could be presumed dead. The judgment on the merits of the case is reported
in Series C, No. 4 (1988). The issue of compensation was reserved for the Court.
25. It is a principle of international law, which jurisprudence has considered ‘even a general
concept of law,’ that every violation of an international obligation which results in harm creates
a duty to make adequate reparation. Compensation, on the other hand, is the most usual way
of doing so . . .

26. Reparation of harm brought about by the violation of an international obligation consists in
full restitution (restitutio in integrum), which includes the restoration of the prior situation, the
reparation of the consequences of the violation, and indemnification for patrimonial and non-
patrimonial damages, including emotional harm.

27. As to emotional harm, the Court holds that indemnity may be awarded under international
law and, in particular, in the case of human rights violations. Indemnification must be based
upon the principles of equity.

. . .

34. However, in its judgment on the merits . . ., the Court has already pointed out the Government’s
continuing duty to investigate so long as the fate of a disappeared person is unknown. . . . The
duty to investigate is in addition to the duties to prevent involuntary disappearances and to
punish those directly responsible. . . .

35. Although these obligations were not expressly incorporated into the resolutory part of the
judgment on the merits, it is a principle of procedural law that the bases of a judicial decision
are a part of the same. Consequently, the Court declares that those obligations on the part of
Honduras continue until they are fully carried out.

36. Otherwise, the Court understands that the judgment on the merits of July 29, 1988, is in
itself a type of reparation and moral satisfaction of significance and importance for the families
of the victims. . . .

38. The expression ‘fair compensation,’ used in Article 63(1) of the Convention to refer to a part
of the reparation and to the ‘injured party,’ is compensatory and not punitive. Although some
domestic courts, particularly the Anglo-American, award damages in amounts meant to deter
or to serve as an example, this principle is not applicable in international law at this time.

39. Because of the foregoing, the Court believes, then, that the fair compensation, described
as ‘compensatory’ in the judgment on the merits of July 29, 1988, includes reparation to the
family of the victim of the material and moral damages they suffered because of the involuntary
disappearance of Manfredo Velásquez. . . .

46. The Court notes that the disappearance of Manfredo Velásquez cannot be considered
an accidental death for the purposes of compensation, given that it is the result of serious
acts imputable to Honduras. The amount of compensation cannot, therefore, be based upon
guidelines such as life insurance, but must be calculated as a loss of earnings based upon
the income the victim would have received up to the time of his possible natural death. In that
sense, one can take as a point of departure the salary that, according to the certification of the
Honduran Vice-Minister of Planning on October 19, 1988, Manfredo Velásquez was receiving
234 | IMPLEMENTING HUMAN RIGHTS TREATIES: COMMITTEES AND COURTS

at the time of his disappearance (1,030 lempiras per month) and calculate the amount he
would have received at the time of his obligatory retirement at the age of sixty, as provided
by Article 69 of the Law of the National Institute of Social Security for Teachers and which the
Government itself considers the most favourable. At retirement, he would have been entitled
to a pension until his death.

47. However, the calculation of the loss of earnings must consider two distinct situations.
When the beneficiary of the indemnity is a victim who is totally and permanently disabled, the
compensation should include all he failed to receive, together with appropriate adjustments
based upon his probable life expectancy. In that circumstance, the only income for the victim is
what he would have received, but will not receive, as earnings.

48. If the beneficiaries of the compensation are the family members, the situation is different.
In principle, the family members have an actual or future possibility of working or receiving
income on their own. The children, who should be guaranteed the possibility of an education
which might extend to the age of twenty-five, could, for example, begin to work at that time. It
is not correct, then, in these cases, to adhere to rigid criteria, more appropriate to the situation
described in the above paragraph, but rather to arrive at a prudent estimate of the damages,
given the circumstances of each case.

49. Based upon a prudent estimate of the possible income of the victim for the rest of his
probable life and on the fact that, in this case, the compensation is for the exclusive benefit of
the family of Manfredo Velásquez identified at trial, the Court sets the loss of earnings in the
amount of five hundred thousand lempiras to be paid to the wife and to the children of Manfredo
Velásquez as set out below.

50. The Court must now consider the question of the indemnification of the moral damages . . .,
which is primarily the result of the psychological impact suffered by the family of Manfredo
Velásquez because of the violation of the rights and freedoms guaranteed by the American
Convention, especially by the dramatic characteristics of the involuntary disappearance of
persons.

51. The moral damages are demonstrated by expert documentary evidence and the testimony
of Dr Federico Allodi . . ., psychiatrist and Professor of Psychology at the University of Toronto,
Canada. According to his testimony, the above doctor examined the wife of Manfredo Velásquez,
Mrs. Emma Guzmán Urbina de Velásquez and his children, Héctor Ricardo, Herling Lizzett
and Nadia Waleska Velásquez. According to those examinations, they had symptoms of fright,
anguish, depression and withdrawal, all because of the disappearance of the head of the family.
The Government could not disprove the existence of psychological problems that affect the
family of the victim. The Court finds that the disappearance of Manfredo Velásquez produced
harmful psychological impacts among his immediate family which should be indemnified as
moral damages.

52. The Court believes the Government should pay compensation for moral damages in the
amount of two hundred and fifty thousand lempiras, to be paid to the wife and children of
Manfredo Velásquez as specified below. . . .

56. The Court now determines how the Government is to pay compensation to the family of
Manfredo Velásquez.

57. Payment of the seven hundred and fifty thousand lempiras awarded by the Court must be
carried out within ninety days from the date of notification of the judgment, free from any tax
that might eventually be considered applicable. Nevertheless, the Government may pay in six
equal monthly instalments, the first being payable within ninety days and the remainder in
successive months. In this case, the balance shall be incremented by the appropriate interest,
which shall be at the interest rates current at the moment in Honduras.
 IMPLEMENTING HUMAN RIGHTS TREATIES: COMMITTEES AND COURTS | 235

58. One-fourth of the indemnity is awarded to the wife who shall receive that sum directly.
The remaining three-fourths shall be distributed among the children. With the funds from the
award to the children, a trust fund shall be set up in the Central Bank of Honduras under
the most favourable conditions permitted by Honduran banking practice. The children shall
receive monthly payments from this trust fund, and at the age of twenty-five shall receive their
proportionate part.

59. The Court shall supervise the implementation of the compensatory damages at all of its
stages. The case shall be closed when the Government has fully complied with the instant
judgment.

The European regional human rights system, in contrast, retains an altruistic approach and often
regards a pending change in national law remedy enough, thus restricting any award to the finan-
cial outlay for bringing the case.

Question
Given the nature of international human rights law (living instrument etc.), what rationale may there be for
the approach of the European Court to remedies?

However, in some circumstances, it does award compensation.

Selmouni v France, Application no. 25803/94, judgment 1999

Mr Selmouni was arrested following a series of drug-related arrests, in which he denied

involvement. He was held in custody for three days and questioned by police from the Criminal
Investigation Department. His detention was extended and he was repeatedly examined by a
medical officer who noted various injuries. Selmouni alleged police brutality (including sexual
assault) and accordingly an infringement to his freedom from torture, inhuman and degrading
treatment (Article 3, European Convention). The Court found a violation of Article 3 of the
Convention, corroborating the claims of assault.

120. The applicant claimed 750,000 French francs (FRF) for personal injury. That amount
comprised general compensation for the injuries occasioned by the violence he had endured
during police custody and special compensation for the effects on his visual acuity, the
condition of his eye not yet having stabilised. He claimed FRF 1,500,000 for non-pecuniary
damage resulting from his treatment in police custody, the length of the proceedings and the
impossibility of obtaining a transfer to the Netherlands to serve his sentence there.

121. The French Government submitted, having regard both to the lack of any distinction
between the damage sustained as a result of violations of Article 3 and Article 6 and to the
fact that proceedings were in progress before the domestic courts, that the question of the
application of Article 41 was not ready for decision.

. . .

123. The Court first reiterates its finding that the applicant has neither proved that he was
raped nor established a causal link between the violence suffered and the loss of visual acuity
relied on (see paragraph 90 above). Nevertheless, it finds, having regard, inter alia, to the five
days’ ITTP (see paragraph 31 above) and, in part, to his pain and suffering, that the applicant
sustained personal injury in addition to non-pecuniary damage. Accordingly, having regard to
the extreme seriousness of the violations of the Convention of which Mr Selmouni was a victim,
the Court considers that he suffered personal injury and non-pecuniary damage for which the
findings of violations in this judgment do not afford sufficient satisfaction. It considers, having
regard to its previous conclusions, that the question of the application of Article 41 is ready for
decision and, making its assessment on an equitable basis as required by that Article, it awards
him FRF 500,000.
236 | IMPLEMENTING HUMAN RIGHTS TREATIES: COMMITTEES AND COURTS

Questions
Can human rights violations ever satisfactorily be compensated from the perspective of the individual? Consider
the purpose of human rights monitoring and thus the purpose of the committees and courts. To what extent
does the award of compensation act as a deterrent to States? 

Human Rights Treaty Bodies – Glossary of technical

terms related to the treaty bodies (OHRCHR): www.
ohchr.org/EN/HRBodies/Pages/TBGlossary.aspx#cc
Concluding observations: The observations and recommendations issued by a treaty
body after it has considered a State party’s report. Concluding observations refer
both to the positive aspects of a State’s implementation of the treaty and to areas of
concern, where the treaty body recommends that further action needs to be taken
by the State. The treaty bodies are committed to issuing concluding observations
that are concrete, focused and implementable, and are paying increasing attention to
measures to ensure effective follow-up to their concluding observations.
General comment: A treaty body’s interpretation of human rights treaty provisions,
thematic issues or its methods of work. General comments often seek to clarify
the reporting duties of State parties with respect to certain provisions and suggest
approaches to implementing treaty provisions. Also called ‘general recommendation’
(Committee on the Elimination of Racial Discrimination and Committee on the
Elimination of Discrimination against Women).
Individual complaint: A formal complaint, from an individual who claims that her
or his rights under one of the treaties have been violated by a State party, which
most of the treaty bodies are competent to consider. The right of the treaty bodies
to consider individual complaints must be expressly conceded by the State party
concerned in one of three ways:
(a) By making a declaration under the relevant article of the treaty (this procedure
applies to the International Convention on the Elimination of All Forms of
Racial Discrimination, the Convention against Torture and the International
Convention on the Protection of the Rights of All Migrant Workers and Mem-
bers of their Families);
(b) By ratifying or acceding to the treaty itself (this procedure applies to the Interna-
tional Convention for the Protection of All Persons from Enforced Disappear-
ance; or
(c) By ratifying or acceding to the relevant optional protocol to a treaty providing
for a right of individual complaint (this procedure applies to the two Interna-
tional Covenants, the Convention on the Elimination of All Forms of Dis-
crimination against Women, the Convention on the Rights of the Child and
the Convention on the Rights of Persons with Disabilities).
State party report: The report that each State party to a human rights treaty is required,
under the provisions of that treaty, to submit regularly to the treaty body, indicating the
measures it has adopted to implement the treaty and the difficulties it has encountered.
All treaties require a comprehensive initial report within a fixed time after ratification
and, with the exception of the International Convention for the Protection of All Per-
sons from Enforced Disappearance, also subsequent periodic reports at regular intervals.
 IMPLEMENTING HUMAN RIGHTS TREATIES: COMMITTEES AND COURTS | 237

Treaty body or committee: A committee of independent experts appointed to

review the implementation by State parties of an international human rights treaty.
The treaties use the term ‘committee’ throughout, but the committees are widely
known as ‘treaty bodies’ because they are created in accordance with the provi-
sions of the treaty which they oversee. In many important respects, they are inde-
pendent of the United Nations system, although they receive support from the
United Nations Secretariat and report to the General Assembly. Sometimes also
called ‘treaty monitoring body’. 

Further reading
Alston, P., and Crawford, J., The Future of UN Human Rights Treaty Monitoring , 2000, Cambridge:
CUP.
Bates, E., The Evolution of the European Convention on Human Rights: From Its Inception to the Cre-
ation of a Permanent Court of Human Rights, 2010, Oxford: OUP.
Bayefsky, A., How to Complain to the UN Human Rights Treaty System , 2002, Ardsley, NY: Trans-
national Press.
Bratza, N., ‘The Relationship between the UK Courts and Strasbourg’ (2011) 5 European Human
Rights Law Review 505–512.
Buckley, C., Donald, A., and Leach, P. (eds), Towards Coherence in International Human Rights Law:
Approaches of Regional and International Systems, 2016, Leiden: Brill (Martinus Nijhoff).
Cancado Trinidade, A., ‘The Development of International Human Rights Law by the Operation and
the Caselaw of the European and Inter-American Courts of Human Rights’ (2004) 25 Human
Rights Law Journal 157.
Davala, M., Conflict of Interest in Universal Human Rights Bodies’ in A. Peters and L. Handschin
(eds), Conflict of Interest in Global, Public and Corporate Governance, 2012, Cambridge: CUP, pp
125–141.
David, V., ‘Reparations at the Human Rights Committee’ (2014) 32 Netherlands Quarterly of Human
Rights 8–43.
Donald, A., and Leach, P., Parliaments and the European Court of Human Rights, 2016, Oxford: OUP.
Early, L., Austin, A., Ovey, C., Chernishova, O. (eds), The Right to Life under Article 2 of the Euro-
pean Convention on Human Rights – Twenty Years of Legal Developments since McCann v. the
United Kingdom, 2016, Oisterwijk: Will-Jan van der Wolf.
Føllesdal, A., Schlütter, B., Ulfstein, G. (eds), Constituting Europe – The European Court of Human
Rights in a National, European and Global Context, 2013, Cambridge: CUP.
Fox Principi K., United Nations Individual Complaint Procedures- How Do States Comply? A Cate-
gorized Study Based on 268 Cases of “Satisfactory” Implementation under the Follow up Pro-
cedure, Mainly of the UN Human Rights Committee’ (2018) 37 Human Rights Law Journal 1–31.
García Ramírez, S., ‘The Relationship between Inter-American Jurisdiction and States (National
Systems): Some Pertinent Questions’ (2015) 5.1 Notre Dame Journal of International & Com-
parative Law 115–152.
Matthew, D., ‘An Agreement to Disagree: The ASEAN Human Rights Declaration and the Absence
of Regional Identity in Southeast Asia (2014) 33.3 Journal of Current Southeast Asian Affairs
107–129.
McGoldrick, D., The Human Rights Committee, Its Role in the Development of the International Cov-
enant on Civil and Political Rights, 1994, Oxford: Clarendon Press.
Murray, R., and Long, D., The Implementation of the Findings of the African Commission on Human
and Peoples Rights, 2015, Cambridge: CUP.
238 | IMPLEMENTING HUMAN RIGHTS TREATIES: COMMITTEES AND COURTS

Nowak, M., ‘A World Court of Human Rights’ in G. Oberleitner (ed.), International Human Rights
Institutions, Tribunals, and Courts, 2018, Springer, Singapore 271–290.
Pasqualucci, J., The Practice and Procedure of the Inter-American Court of Human Rights, 2nd edn,
2012, Cambridge: CUP.
Petcharamesree, S., ‘The ASEAN Human Rights Architecture: Its Development and Challenges’
(2013) 11 Equal Rights Review 46–60.
Rainey, B., Wicks, E., and Ovey, C., Jacobs, White & Ovey, The European Convention on Human
Rights , 5th edn, 2010, Oxford: OUP.
Rishmawi, M., ‘The Revised Arab Charter on Human Rights: A Step Forward?’ (2005) 5.2 Human
Rights Law Review 361.
Rodley, N., ‘The Role and Impact of Treaty Bodies,’ in D. Shelton (ed.), The Oxford Handbook of
International Human Rights Law, 2013, Oxford: OUP, pp 621–648.
Schmidt, M.G., ‘Follow-up Procedures to Individual Complaints and Periodic State Reporting
Mechanisms’ in G. Alfredsson, et al. (eds), International Human Rights Monitoring Mechanisms,
2011, The Hague: Martinus Nijhoff Publishers, pp 201–215.
Shelton, D., Remedies in International Human Rights Law, 2nd edn, 2005, Oxford: OUP.
Ssenyonjo, M. (ed), The African Regional Human Rights System, 2012, Leiden: Nijhoff.
United Nations Office of the High Commissioner for Human Rights, Complaint Procedures , Fact
Sheet No. 7 (Rev. 1), Geneva: OHCHR.
United Nations Office of the High Commissioner for Human Rights, The Committee on the Elimina-
tion of Racial Discrimination, Fact Sheet No. 12, Geneva: OHCHR.
United Nations Office of the High Commissioner for Human Rights, Civil and Political Rights: The
Human Rights Committee , Fact Sheet No. 15 (Rev. 1), 2005, Geneva: OHCHR.
United Nations Office of the High Commissioner for Human Rights, The Committee on Economic,
Social and Cultural Rights, Fact Sheet No. 16 (Rev. 1) 1991, Geneva: OHCHR.
United Nations Office of the High Commissioner for Human Rights, The Committee against Tor-
ture , Fact Sheet No. 17, Geneva: OHCHR.
United Nations Office of the High Commissioner for Human Rights, The United Nations Human
Rights Treaty System, an Introduction to the Core Human Rights Treaties and the Treaty Bod-
ies (2005), Fact Sheet No. 30, Geneva: OHCHR (also available online from www.ohchr.org ).
Van Dijk, P., and van Hoof, F., Theory and Practice of the European Convention on Human Rights ,
4th edn, 2006, The Hague: Intersentia.
Viljoen, F., ‘Understanding and Overcoming Challenges in Accessing the African Court on Human
and Peoples’ Rights’ (2018) 67 International & Comparative Law Quarterly 63–98.

Websites
www.ohchr.org/EN/HRbodies/CERD : Committee on the Elimination of Racial Discrimination
https://www.ohchr.org/EN/HRBodies/CCPR/Pages/CCPRIndex.aspx : Human Rights Committee
www.ohchr.org/en/hrbodies/cescr : Committee on Economic, Social and Cultural Rights
www.un.org/womenwatch/daw/cedaw : Committee on the Elimination of All Forms of Discrimina-
tion against Women
www.ohchr.org/EN/HRbodies/cat : Committee against Torture
www.ohchr.org/EN/HRBodies/crc : Committee on the Rights of the Child
www.ohchr.org/EN/HRBodies/cmw : Committee on Migrant Workers
www.echr.coe.int : European Court of Human Rights
www.cpt.coe.int : European Committee for the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment
www.african-court.org/en : African Court on Human and Peoples’ Rights
www.asean.org : Association of South East Asian Nations
https://seahrn.net/about-us : Southeast Asian Human Rights Network
Chapter 8

Extending the duties to protect and

respect human rights: non-State actors 

Chapter contents

8.1 Human rights education and training 240

8.2 Non-governmental organisations 243
8.3 Business and multinational corporations 251
8.4 Educators, lawyers and individuals  277
240 | EXTENDING THE DUTIES TO PROTECT AND RESPECT HUMAN RIGHTS

In spite of the systems outlined, human rights are infringed daily. This chapter will consider the
broader context in which human rights are engaged including:

• Reasons for extending human rights protection and promotion beyond States.
• Duties on individuals, businesses and NGOs.
• Relevance of human rights education.
• Human rights and business.
• Global compact on human rights.

International human rights are indivisible, inalienable and universal. Accordingly, everyone should
contribute towards their development. So far the role of international and regional institutions
and treaty monitoring bodies have been discussed. In spite of these developments, human rights
are still not enjoyed by everyone everywhere. This chapter therefore takes the discussion further,
looking at the involvement of non-State actors in building a culture of respect and promotion of
human rights. The UN Declaration on Human Rights Education and Training adds further sup-
port for this.
Three categories will be considered in this chapter: non-governmental organisations, mul-
tinational corporations (business) and educators. Of course, as the African regional instruments
indicate, there is perhaps a corresponding duty upon individuals and those involved in human
rights activities (lawyers, for example) to familiarise themselves with human rights and to strive to
secure their realisation. The ‘power of the people’ may produce a cumulative effect.
Accordingly, this chapter begins with consideration of human rights education and training.

8.1 Human rights education and training

Primary responsibility for human rights protection of course rests with States – the duty holders
under international human rights treaties and other instruments. As seven decades of the Universal
Declaration of Human Rights attest, this approach has proved insufficient to guarantee universal
protection, promotion and respect for human rights. The problems are of course foreseeable –
States are the primary obliges under international human rights, but prove reluctant to take the
necessary changes at the national level to give effect to their international human rights obligations.
The pressure on States is primarily ‘top down’, when being applied solely from the international
organisations and other States. Should those residing within a State be unaware of their rights, of
course, they are less likely to seek to enforce them, to apply pressure from the ‘bottom up’. Human
rights education and training addresses this problem by trying to ensure that everyone everywhere
is aware of their basic rights. National human rights institutions play a major role in this. However,
the United Nations has recently taken steps to more clearly define the responsibility of everyone
to learn about their human rights and the obligation of the State to publicise human rights issues. 

Definitions of Human Rights Education

The Council of Europe Charter on Education for Democratic Citizenship and
Human Rights Education (2010):
Education, training, awareness raising, information, practices and activities which
aim, by equipping learners with knowledge, skills and understanding and devel-
oping their attitudes and behaviour, to empower learners to contribute to the
building and defence of a universal culture of human rights in society, with a view
to the promotion and protection of human rights and fundamental freedoms.
 EXTENDING THE DUTIES TO PROTECT AND RESPECT HUMAN RIGHTS | 241

Amnesty International:
HRE is a process whereby people learn about their rights and the rights of others,
within a framework of participatory and interactive learning.
The Asia-Pacific Regional Resource Centre for Human Rights Education:
HRE is a participative process which contains deliberately designed sets of learning
activities using human rights knowledge, values, and skills as content aimed at the
general public to enable them to understand their experiences and take control of
their lives.
The United Nations World Programme for Human Rights Education:
Education, training and information aimed at building a universal culture of human
rights. A comprehensive education in human rights not only provides knowledge
about human rights and the mechanisms that protect them, but also imparts the
skills needed to promote, defend and apply human rights in daily life. Human
rights education fosters the attitudes and behaviours needed to uphold human
rights for all members of society.
A culture where human rights are learned, lived and ‘acted’ for. 

General Assembly resolution 217(III) D, 10 December 1948

PUBLICITY TO BE GIVEN TO THE UNIVERSAL DECLARATION OF HUMAN RIGHTS

The General Assembly,

Considering that the adoption of the Universal Declaration of Human Rights is an historic act,
destined to consolidate world peace through the contribution of the United Nations towards the
liberation of individuals from the unjustified oppression and constraint to which they are too
often subjected,
Considering that the text of the Declaration should be disseminated among all peoples
throughout the world,

1. Recommends Governments of Member States to show their adherence to Article 56 of

the Charter by using every means within their power solemnly to publicize the text of the
Declaration and to cause it to be disseminated, displayed, read and expounded principally
in schools and other educational institutions without distinction based on the political
status of countries or territories;
2. Requests the Secretary-General to have this Declaration widely disseminated and, to that
end, to publish and distribute texts, not only in the official languages, but also, using every
means at his disposal, in all languages possible;
3. Invites the specialized agencies and non-governmental organizations of the world to do
their utmost to bring this Declaration to the attention of their members.

There is no doubt that this aspiration has yet to be fulfilled.

Question
What reasons are there for States not to actively disseminate materials on human rights and be proactive in
encouraging everyone within their territory to become familiar with all applicable human rights treaties and
rights of individual complaints thereunder?
242 | EXTENDING THE DUTIES TO PROTECT AND RESPECT HUMAN RIGHTS

Some treaties also make provision for the publication and wide dissemination of their provision –
the UN Convention on the Rights of the Child is one example.

UN Convention on the Rights of the Child, Article 42

States Parties undertake to make the principles and provisions of the Convention widely known,
by appropriate and active means, to adults and children alike.

The Committee on the Rights of the Child has also reiterated the importance of human rights
education.

Committee on the Rights of the Child, concluding observations on the fifth

periodic report of the United Kingdom of Great Britain and
Northern Ireland, CRC/C/GBR/CO/5, 12 July 2016

33. The Committee encourages the State party and devolved administrations to conduct
consultations with children on the voting age. Should the voting age be lowered, the Committee
recommends that the State party ensure that it is supported by active citizenship and human
rights education in order to ensure early awareness of children that rights are to be exercised
as part of citizenship, with autonomy and responsibility, and that the measure does not lend
itself to undue influence.

This statement was in the context of the 2016 UK referendum on whether to stay in the European
Union and reflected on the Scottish position two years earlier in which those aged 16 and above
were able to vote on whether Scotland should leave the United Kingdom of Great Britain and
Northern Ireland.
A UN Decade for Human Rights Education ran from 1995 to 2004, with the objective of
improving awareness and knowledge of human rights, thereby cultivating an environment more
conducive to the protection of human rights and prevention of violations of human rights. General
Assembly resolution 49/184 (1993) proclaimed this decade.
The decade has been followed by a rolling (open-ended) World Programme for Human
Rights Education. The aim of the World Programme is explained as follows:

World Programme of Human Rights Education

2nd phase plan of action, para 8

The objectives of the World Programme for Human Rights Education are:

(a) To promote the development of a culture of human rights;

(b) To promote a common understanding, based on international instruments, of basic
principles and methodologies for human rights education;
(c) To ensure a focus on human rights education at the national, regional and international
levels;
(d) To provide a common collective framework for action by all relevant actors;
(e) To enhance partnership and cooperation at all levels;
(f) To survey, evaluate and support existing human rights education programmes, to highlight
successful practices, and to provide an incentive to continue and/or expand them and to
develop new ones.

Alongside these developments, the duties to protect and respect human rights are now extending
through advances with human rights education and training. Following an initiative by the Human
Rights Council, the UN General Assembly adopted Resolution 66/137 (2011) the UN Declara-
tion on Human Rights Education and Training.
 EXTENDING THE DUTIES TO PROTECT AND RESPECT HUMAN RIGHTS | 243

UN Declaration on Human Rights Education and Training 2011

Article 2

1 Human rights education and training comprises all educational, training, information,
awareness-raising and learning activities aimed at promoting universal respect for and
observance of all human rights and fundamental freedoms and thus contributing, inter
alia, to the prevention of human rights violations and abuses by providing persons with
knowledge, skills and understanding and developing their attitudes and behaviours,
to empower them to contribute to the building and promotion of a universal culture of
human rights.
2 Human rights education and training encompasses:

(a) Education about human rights, which includes providing knowledge and
understanding of human rights norms and principles, the values that underpin them
and the mechanisms for their protection;
(b) Education through human rights, which includes learning and teaching in a way that
respects the rights of both educators and learners;
(c) Education for human rights, which includes empowering persons to enjoy and
exercise their rights and to respect and uphold the rights of others.

Human rights education is envisaged as being lifelong – the first phase of the World Programme
(2005–2009) focused on embedding human rights education within primary and secondary school-
ing. The second phase (2010–2014) turned attention to higher education, teachers, educators,
civil servants, lawyers, and law enforcement and military personnel. The third phase (2015–2019)
consolidated the previous phases and focused on engaging media professionals and journalists.
Following consultations with States, Resolution A/HRC/39/3 of the Human Rights Council
determined that youth will be the focus of the fourth phase (2020–2024). As is self-evident, not all
these recipients are government officials or otherwise part of the State apparatus. Many are, how-
ever, and in this regard, the Declaration is intended to act as a prompt to States, inviting them to
carefully consider national initiatives to develop the necessary awareness of human rights. States are
also invited to submit their action plans and initiatives to the UN (available online – for the second
phase, see https://www.ohchr.org/EN/Issues/Education/Training/Pages/NationalActionPlans-
HumanRightsEducation.aspx).
Obviously, a fundamental problem lies with enforcement: the text is a declaration and some
of the putative obligees are not entities over which the State can officially exercise control. As the
subsequent sections of this chapter demonstrate, there is a growing tendency to adopt ‘soft law’
measures supporting the progress of human rights through the work of non-State actors. These
are, in effect, voluntary codes from an enforcement perspective. Nevertheless they can be used
against a State to support private initiatives which advocate human rights.

Question
Can you think of ways in which non-State actors, even private individuals, may be able to use the UN Decla-
ration on Human Rights Education and Training in a positive way? (Almost using it as a shield against State
disapproval thereby creating a sword of knowledge to challenge the State.)

8.2 Non-governmental organisations

Non-governmental organisations (NGOs) are ever more involved in the process of articulating and
realising rights. They influenced the inclusion of references to human rights in the UN Charter
during the drafting process at Dumbarton Oaks in San Francisco. Their involvement in the United
Nations has increased since – today they engage with international human rights in a variety of
244 | EXTENDING THE DUTIES TO PROTECT AND RESPECT HUMAN RIGHTS

ways. Inevitably, therefore, the number of NGOs and the range of issues with which they work
has also increased.

8.2.1 What are NGOs?

Non-governmental organisations encompasses all bodies which are not part of the State or inter-
national organisations. Political pressure groups and grass-roots activists are covered, along with
community initiatives and various bodies commonly accorded charitable status. Some NGOs are
huge, with thousands of members and a broad geographical remit. They may have international
membership and be active in international affairs. The December 2005 Montreal Summit on the
Kyoto Protocol is an example of major international NGOs participating in a global conference.
Large NGOs can exert considerable political influence within States and indeed at the regional or
international level. Consider the impact of multiple NGO campaigns against the use of landmines/
anti-personnel weapons, which resulted, eventually, in the 1997 Convention on the Prohibition of
the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction.
Other NGOs operate at a community or State level. Their importance to furthering international
human rights law remains, however. As Chapter 7 notes, groups have locus standi to initiate com-
plaints against States under the African Charter on Human and Peoples’ Rights.

8.2.1.1 List of principal international human rights NGOs

Several hundred NGOs enjoy recognition by the United Nations and other international and
regional bodies. Some represent a broad range of issues; other focus on a single issue/right/free-
dom. Some are peculiar to one country or region; others are international. It would be impos-
sible to list all NGOs active in human rights, not least because the list would change hourly. New
local organisations are continually being formed and single issue groups are inevitably created as a
response to State and international policy.

Question
Consider the recent increase in groups and coalitions of NGOs applying political pressure in respect of food
security, climate change and/or the global economic crisis. What benefits accrue from these activities? Can
human rights be advanced better through such groupings?

Examples of major international NGOs

Amnesty International
Oxfam
Save the Children International
Friends of the Earth
Human Rights Watch
Greenpeace
Survival International
Anti-Slavery International
Article 19

Note also the OHCHR publication, ‘Working with the United Nations Human Rights Pro-
gramme: A Handbook for Civil Society’, OHCHR, Geneva 2009.

8.2.1.2 Case study: anti-slavery

Anti-Slavery lays claim to being the oldest international human rights organization in the world,
having been founded in 1839.
 EXTENDING THE DUTIES TO PROTECT AND RESPECT HUMAN RIGHTS | 245

Anti-Slavery (www.antislavery.org)

Our vision

Our vision is a world free from

Our mission

Our mission is to work directly and indirectly with beneficiaries and stakeholders from a
grassroots to an international level to eradicate slavery and its causes from the world.

Our strategy

Anti-Slavery has its principal strategic priority as ensuring significant progress towards
slavery eradication in at least ten countries by 2020 (Organisational Strategy 2015–2020). The
objectives reflect the Theory of Change evinced by the organization. These reflect human rights
based approaches:

1) Duty bearers are responsive and accountable to the rights and needs of people affected by
and vulnerable to slavery
2) People affect by and vulnerable to slavery are empowered to understand, assert and claim
their rights
3) The social norms and attitudes that underpin and perpetuate slavery are rejected.

Question
Considering the theory of change outlined previously, to what extent is this different from a human rights based
approach? What additional benefits does anti-slavery bring to the moves to abolish slavery in all its forms everywhere?

8.2.2 How do NGOs contribute to human rights?

There are many roles for NGOs and, at times, there seems to be an ever-increasing range of inno-
vative ways in which they can contribute towards the development of human rights: education;
advocacy; training; fundraising; awareness-raising and participating in creating and developing
international and regional norms of international human rights (standard-setting).

ECONOMIC AND SOCIAL COUNCIL RESOLUTION 1996/31, UN DOC. E/1996/96 (1996)

Consultative relationship between the United Nations and non-governmental organizations

Part I

PRINCIPLES TO BE APPLIED IN THE ESTABLISHMENT OF CONSULTATIVE RELATIONS

The following principles shall be applied in establishing consultative relations with nongovernmental
organizations:

1 The organization shall be concerned with matters falling within the competence of the
Economic and Social Council and its subsidiary bodies.
2 The aims and purposes of the organization shall be in conformity with the spirit, purposes
and principles of the Charter of the United Nations.
3 The organization shall undertake to support the work of the United Nations and to promote
knowledge of its principles and activities, in accordance with its own aims and purposes
and the nature and scope of its competence and activities.
4 Except where expressly stated otherwise, the term ‘organization’ shall refer to nongov-
ernmental organizations at the national, subregional, regional or international levels.
5 Consultative relationships may be established with international, regional, subregional
and national organizations, in conformity with the Charter of the United Nations and
246 | EXTENDING THE DUTIES TO PROTECT AND RESPECT HUMAN RIGHTS

the principles and criteria established under the present resolution. The Committee, in
considering applications for consultative status, should ensure, to the extent possible,
participation of non-governmental organizations from all regions, and particularly from
developing countries, in order to help achieve a just, balanced, effective and genuine
involvement of non-governmental organizations from all regions and areas of the world.
The Committee shall also pay particular attention to non-governmental organizations
that have special expertise or experience upon which the Council may wish to draw.
6 Greater participation of non-governmental organizations from developing countries in
international conferences convened by the United Nations should be encouraged.
7 Greater involvement of non-governmental organizations from countries with economies
in transition should be encouraged.
8 Regional, subregional and national organizations, including those affiliated to an
international organization already in status, may be admitted provided that they can
demonstrate that their programme of work is of direct relevance to the aims and purposes
of the United Nations and, in the case of national organizations, after consultation with
the Member State concerned. The views expressed by the Member State, if any, shall
be communicated to the non-governmental organization concerned, which shall have
the opportunity to respond to those views through the Committee on Non-Governmental
Organizations.
9 The organization shall be of recognized standing within the particular field of its
competence or of a representative character. Where there exist a number of organizations
with similar objectives, interests and basic views in a given field, they may, for the purposes
of consultation with the Council, form a joint committee or other body authorized to carry
on such consultation for the group as a whole.
10 The organization shall have an established headquarters, with an executive officer. It shall
have a democratically adopted constitution, a copy of which shall be deposited with the
Secretary-General of the United Nations, and which shall provide for the determination of
policy by a conference, congress or other representative body, and for an executive organ
responsible to the policy-making body.
11 The organization shall have authority to speak for its members through its authorized
representatives. Evidence of this authority shall be presented, if requested.
12 The organization shall have a representative structure and possess appropriate
mechanisms of accountability to its members, who shall exercise effective control
over its policies and actions through the exercise of voting rights or other appropriate
democratic and transparent decision-making processes. Any such organization that
is not established by a governmental entity or intergovernmental agreement shall be
considered a non-governmental organization for the purpose of these arrangements,
including organizations that accept members designated by governmental authorities,
provided that such membership does not interfere with the free expression of views of the
organization.
13 The basic resources of the organization shall be derived in the main part from
contributions of the national affiliates or other components or from individual members.
Where voluntary contributions have been received, their amounts and donors shall be
faithfully revealed to the Council Committee on Non-Governmental Organizations. Where,
however, the above criterion is not fulfilled and an organization is financed from other
sources, it must explain to the satisfaction of the Committee its reasons for not meeting
the requirements laid down in this paragraph. Any financial contribution or other support,
direct or indirect, from a Government to the organization shall be openly declared to the
Committee through the Secretary-General and fully recorded in the financial and other
records of the organization and shall be devoted to purposes in accordance with the aims
of the United Nations.
 EXTENDING THE DUTIES TO PROTECT AND RESPECT HUMAN RIGHTS | 247

14 In considering the establishment of consultative relations with a non-governmental

organization, the Council will take into account whether the field of activity of the
organization is wholly or mainly within the field of a specialized agency, and whether or
not it could be admitted when it has, or may have, a consultative arrangement with a
specialized agency.
15 The granting, suspension and withdrawal of consultative status, as well as the
interpretation of norms and decisions relating to this matter, are the prerogative of Member
States exercised through the Economic and Social Council and its Committee on Non-
Governmental Organizations. A non-governmental organization applying for general or
special consultative status or a listing on the Roster shall have the opportunity to respond
to any objections being raised in the Committee before the Committee takes its decision.
16 The provisions of the present resolution shall apply to the United Nations regional
commissions and their subsidiary bodies mutatis mutandis.
17 In recognizing the evolving relationship between the United Nations and non-governmental
organizations, the Economic and Social Council, in consultation with the Committee on
Non-Governmental Organizations, will consider reviewing the consultative arrangements
as and when necessary to facilitate, in the most effective manner possible, the contributions
of non-governmental organizations to the work of the United Nations. . . .
. . .

Part VII

PARTICIPATION OF NON-GOVERNMENTAL ORGANIZATIONS IN INTERNATIONAL CONFERENCES

CONVENED BY THE UNITED NATIONS AND THEIR PREPARATORY PROCESS
41 Where non-governmental organizations have been invited to participate in an international
conference convened by the United Nations, their accreditation is the prerogative
of Member States, exercised through the respective preparatory committee. Such
accreditation should be preceded by an appropriate process to determine their eligibility.
42 Non-governmental organizations in general consultative status, special consultative
status and on the Roster, that express their wish to attend the relevant international
conferences convened by the United Nations and the meetings of the preparatory
bodies of the said conferences shall as a rule be accredited for participation. Other non-
governmental organizations wishing to be accredited may apply to the secretariat of the
conference for this purpose in accordance with the following requirements. . . .
49 A non-governmental organization that has been granted accreditation to attend a session
of the preparatory committee, including related preparatory meetings of regional
commissions, may attend all its future sessions, as well as the conference itself.
50 In recognition of the intergovernmental nature of the conference and its preparatory
process, active participation of non-governmental organizations therein, while welcome,
does not entail a negotiating role.
51 The non-governmental organizations accredited to the international conference may be
given, in accordance with established United Nations practice and at the discretion of the
chair-person and the consent of the body concerned, an opportunity to briefly address
the preparatory committee and the conference in plenary meetings and their subsidiary
bodies.
52 Non-governmental organizations accredited to the conference may make written
presentations during the preparatory process in the official languages of the United
Nations as they deem appropriate. Those written presentations shall not be issued as
official documents except in accordance with United Nations rules of procedure.
53 Non-governmental organizations without consultative status that participate in international
conferences and wish to obtain consultative status later on should apply through the normal
248 | EXTENDING THE DUTIES TO PROTECT AND RESPECT HUMAN RIGHTS

procedures established under Council resolution 1296 (XLIV) as updated. Recognizing

the importance of the participation of non-governmental organizations that attend a
conference in the follow-up process, the Committee on Non-Governmental Organizations,
in considering their application, shall draw upon the documents already submitted by that
organization for accreditation to the conference and any additional information submitted
by the non-governmental organization supporting its interest, relevance and capacity to
contribute to the implementation phase. The Committee shall review such applications
as expeditiously as possible so as to allow participation of the respective organization
in the implementation phase of the conference. In the interim, the Economic and Social
Council shall decide on the participation of non-governmental organizations accredited
to an international conference in the work of the relevant functional commission on the
follow-up to and implementation of that conference.
54 The suspension and withdrawal of the accreditation of non-governmental organizations
to United Nations international conferences at all stages shall be guided by the relevant
provisions of the present resolution.

The United Nations has produced information for NGOs wishing to enter and use the United Nations
system: United Nations System; A Guide for NGOs, 10th edn, 2003, New York: United Nations, also
available online (http://kaleidoscope2007.pbworks.com/f/A+guide+for+NGOs.pdf ).

8.2.2.1 Generating awareness of human rights

One of the most significant impacts of NGOs lies in generating an awareness of human rights
issues. Large and small NGOs campaign on a regular basis. Human rights awards have been given
to several NGOs for their contribution to the raising of awareness of human rights issues. NGOs
may collaborate across borders to provide a broader or stronger focus on any given issue. Examples
include the global alliance of NGOs on corporal punishment. At the United Kingdom national
level, NGOs formed an alliance: Children Are Unbeatable (see www.childrenareunbeatable.org.
uk), while at the international level, the Global Initiative with expansive NGO and organisation
support is End Corporal Punishment (see www.endcorporalpunishment.org).

Question
Consider the ways in which NGOs can raise the profile of human rights, both nationally and internationally.

8.2.2.2 Contributing to international standard-setting

The role of NGOs in drafting legislation should not be overlooked. At the international, regional
and national levels, NGOs can play a significant role in creating and establishing human rights
instruments. NGOs participate at a variety of world conferences. At the 2001 World Conference
Against Racism, the NGO Forum conducted its own discussions and adopted its own declaration
(see https://www.un.org/press/en/2001/rd959.doc.htm). Much of the text of that declaration
reflects the tenor of the outcome of the conference itself.
NGOs were also proactive advocating and then were involved in drafting the Convention on
the Rights of Persons with Disabilities. The Ad Hoc Committee on a Comprehensive and Integral
International Convention on the Protection and Promotion of the Rights and Dignity of Persons
with Disabilities actively encouraged the participation of Ngos and civil society throughout the
process.

Question
What limitations are there on the degree of participation of NGOs in various international and regional organ-
isation events? Consider the voting procedures, access to material and the influencing of government.
 EXTENDING THE DUTIES TO PROTECT AND RESPECT HUMAN RIGHTS | 249

8.2.2.3 Contributing towards work of treaty monitoring bodies

NGOs may enjoy considerable independence and thus democratic power within States and can
impartially report on and investigate a given human rights’ situation. This feature means that NGO
reports can help to balance the reports submitted by States under the periodic reporting system to
the treaty monitoring bodies. Obviously, care must be taken to balance what can be two polemical
viewpoints in a search for the truth. NGOs frequently submit shadow reports to UN treaty moni-
toring bodies. These can be used by the committee when identifying issues for discussion during
the committee session and even for challenging State national reports.
In some instances, the United Nations Treaty Monitoring Bodies have even resorted to using
NGO reports when a State has steadfastly failed to submit its periodic report.

8.2.2.4 Case study: CERD

With biennial reports in terms of Article 9(1) of the International Convention on the Elimination
of Racial Discrimination, failures to submit reports quickly become problematic.
The following extract is based on Guyana failing to submit its initial to 14th periodic reports,
even in a single document. It illustrates the latent power of NGOs and corroborates their impor-
tance given that treaty monitoring bodies clearly may have recourse to NGO reports.

COMMITTEE ON THE ELIMINATION OF RACIAL DISCRIMINATION, UN Doc.

CERD/C/64/Dec. 1, 1 May 2004

Decision (1) 64 on Guyana

1 The Committee on the Elimination of Racial Discrimination recalls its decision 2 (62)
adopted on 21 March 2003 and regrets that the State party has been unable to fulfil its
commitment to submit its initial to fourteenth periodic reports, combined in one document,
in time for consideration at the sixty-fourth session of the Committee. However, it takes
note of the submission by Guyana of its report to the Committee on the Elimination of
Discrimination against Women and of its report to the Committee on the Rights of the
Child.
. . .
3 The Committee recognizes the difficult economic and social conditions facing Guyana and
remains deeply concerned about the extensive political and ethnic conflicts which have
aggravated the situation in the country and led to serious divisions in society, and that this
has affected the ability of the State party to fulfil the requirements of the Convention.
4 The Committee agrees with intergovernmental and non-governmental organizations and
United Nations agencies that a vicious circle of political and ethnic tensions has adversely
affected human rights, weakened civil society, increased racial violence and poverty and
exclusion among indigenous population groups, and hampered the administration of
justice and the application of human rights standards in Guyana.
5 The Committee reiterates that the purpose of the system whereby States parties submit
reports is to establish and maintain a dialogue with the Committee on actions taken,
progress made and difficulties encountered in complying with obligations arising under
the Convention. It further reiterates that any State party’s failure to honour its reporting
obligations under article 9 of the Convention is a serious impediment to the operation of
the monitoring system established under the Convention.

8.2.2.5 Universal periodic review before the UN Human Rights Council

Non-governmental organisations and other relevant stakeholders can contribute to the universal
periodic review process (this process is discussed in Chapter 6). When preparing the documentation
for the working group of the UN Human Rights Council, the Office of the High Commissioner
250 | EXTENDING THE DUTIES TO PROTECT AND RESPECT HUMAN RIGHTS

of Human Rights prepares a Stakeholder’s report. This includes not only information from the
relevant national human rights institution, but also information from non-governmental organisa-
tions which is deemed credible.
The following example shows the NGOs contributing towards the stakeholders’ report of the
Office of the High Commissioner for Human Rights to the Working Group undertaking Cam-
bodia’s third cycle of periodic review in January 2019.

Summary of Stakeholders’ submissions on Cambodia

Report of the Office of the United Nations High Commissioner for Human Rights

ADF International – ADF International

AHR – Advocates for Human Rights
CCC – Clean Clothes Campaign
CDPO – Cambodian Disabled People’s Organization
CS – Cultural Survival
FLD – Front Line Defenders – The International Foundation for the Protection of Human Rights
Defenders
GIEACPC – Global Initiative to End All Corporal Punishment of Children
HRW – Human Rights Watch
ICAN – International Campaign to Abolish Nuclear Weapons
ICJ – International Commission of Jurists
ICTUR – International Centre for Trade Union Rights
ITUC – International Trade Union Confederation
LMPT – La Manif Pour Tous
RSF-RWB – Reporters Without Borders

14. Cultural Survival noted that deforestation remains a major issue in Cambodia, although
the government has stated its goal to reach 60% tree cover by 2030. With economic interests
exploiting natural resources, many Cambodian Indigenous Peoples have been forcibly evicted
from their home lands. Climate change has made dry seasons drier and the rainy seasons rainier,
increasing high flooding and drought, impacting Indigenous Peoples’ rice farming and fishing.
. . .
19. The ICJ recommended that Cambodia take necessary measures to hold to account
perpetrators of harassment, intimidation and violence against members of the political
opposition, civil society, critical media, lawyers, prosecutors, judges and/or individuals
for the legitimate exercise of their fundamental freedoms. It also recommended to end the
prosecution of individuals under article 437 bis of the Cambodian Criminal Code and release
individuals detained under lèse-majesté charges. It urged Cambodia to end the use of law as
a tool of harassment, intimidation or silencing of members of the political opposition, civil
society, critical media, lawyers, prosecutors, judges and/or individuals, in recognition of rights
protected under international human rights law.

8.2.2.6 Prompting the implementation of human rights

Naturally, NGOs have a prominent role to play in encouraging State compliance with human
rights instruments and with the recommendations and observations of the various human rights
treaty monitoring bodies (and regional courts). In contrast to national institutions (see Chapter 7),
NGOs usually operate outside the government but with the political process. They can and do
make political representation and seek to influence the political process. They can generate consid-
erable public interest and exert influence. Obviously, generating popular and/or political awareness
of an issue can, and often does, lead to change.
 EXTENDING THE DUTIES TO PROTECT AND RESPECT HUMAN RIGHTS | 251

Question
What examples can you think of where an NGO or a group of NGOs have successfully changed govern-
ment policy on a particular matter?

Many NGOs campaign on a single issue and thus amass unparalleled expertise in the field. Those
campaigning on environment issues are a good example. In the twenty-first century, much work,
including on the climate crisis, is focused on the UN Sustainable Development Goals.

8.3 Business and multinational corporations

The importance of global business lies in the economic, and even political, power wielded by
some multinational corporations. This power often usurps that of government of the State being
invested in with allegations of exploitation and corruption commonplace.
Undoubtedly globalisation brings prosperity for many and ‘development’ (whether positive or
negative is a matter for debate) for others. The power of multinational corporations involved in the
process has been noted by international organisations. It is in an attempt to ensure that the force
of change is a force of good that the following international guidelines for business have emerged.
There is nothing novel in proclaiming guidelines to be followed by companies wishing to
pursue ethical foreign transactions. A number of private initiatives have provided guidelines in the
past: some deal with particular States, for instance the Sullivan Principles governing US business
in apartheid South Africa and the similar MacBride Principles for Northern Ireland, both aimed
at limiting discriminatory employment and related work practices (see McCrudden, C., ‘Human
Rights Codes for Transnational Corporations: What Can the Sullivan and MacBride Principles
Tell Us?’ (1999) 19 Oxford Journal of Legal Studies 167–201); others deal with particular issues,
for example, the Valdez Principles on the environment. In addition, more specific sectoral codes
have been adopted: for example International Alert’s Conflict Sensitive Business Practice: Guid-
ance for Extractive Industries, The International Petroleum Industry Environmental Conservation
Association (IPIECA) Guide to operating in areas of conflict for the oil and gas industries, and
more recently, a plethora of self-regulation codes from within companies anxious to be seen as
promoting ethical trade. Many of these codes originated in the US. This is perhaps not surprising
given that the US has a density of multinational corporations and a history of foreign investment
and trade. Few of these codes are in any way binding – they are, in effect, political statements of
intention and support for policy objectives. Nevertheless they are often perceived as indicators of
corporate social responsibility and of, for example, fair trade and ethical practices. As such, they
can bolster trade and encourage consumer investment.

8.3.1 Guiding principles on business and human rights

The UN itself has adopted a set of guidelines for transnational corporations, which now serve
as the global standards on the issue of business and human rights. Former UN Special Repre-
sentative, John Ruggie, articulated a ‘protect, respect and remedy’ framework (approved Human
Rights Council resolution 8/7 (2008)) as a focal point for these issues. These were elaborated on
in General Principles – UN Doc A/HRC/17/31 (2011) (see, for discussion on the creation of
the UNGP: L.C. Backer, ‘On the Evolution of the United Nations’ Protect-Respect-Remedy’
Project: The State, the Corporation and Human Rights in a Global Governance Context’ (2011)
9.1 Santa Clara Journal of International Law).
The UN Guiding Principles consist of three pillars, with 31 guiding principles and a commen-
tary to each principle. The first pillar is the State duty to protect human rights. The second is the
business responsibility to respect human rights, while the third pillar outlines the duties and responsi-
bilities of States and businesses respectively to ensure that victims are remedied when breaches occur.
252 | EXTENDING THE DUTIES TO PROTECT AND RESPECT HUMAN RIGHTS

REPORT OF THE SPECIAL REPRESENTATIVE OF THE SECRETARY-GENERAL ON THE ISSUE

OF HUMAN RIGHTS AND TRANSNATIONAL CORPORATIONS AND OTHER
BUSINESS ENTERPRISES, JOHN RUGGIE, UN DOC. A/HRC/17/31

Annexe, Guiding Principles on Business and Human Rights: Implementing the United Nations
‘Protect, Respect and Remedy’ Framework

These Guiding Principles are grounded in recognition of:

(a) States’ existing obligations to respect, protect and fulfil human rights and fundamental
freedoms;
(b) The role of business enterprises as specialized organs of society performing specialized
functions, required to comply with all applicable laws and to respect human rights;
(c) The need for rights and obligations to be matched to appropriate and effective remedies
when breached.

These Guiding Principles apply to all States and to all business enterprises, both transnational
and others, regardless of their size, sector, location, ownership and structure.
These Guiding Principles should be understood as a coherent whole and should be read,
individually and collectively, in terms of their objective of enhancing standards and practices with
regard to business and human rights so as to achieve tangible results for affected individuals
and communities, and thereby also contributing to a socially sustainable globalization.

The discussion examines each pillar in turn.

THE STATE DUTY TO PROTECT

Pillar 1 of the UNGP addresses the State duty to protect human rights. The Principles reflect the
fact that, under international law, obligations for regulating businesses fall on States and that in
an ideal world, the State duty to protect and remedy is the best way to regulate the activities of
businesses.

REPORT OF THE SPECIAL REPRESENTATIVE OF THE SECRETARY-GENERAL ON THE ISSUE

OF HUMAN RIGHTS AND TRANSNATIONAL CORPORATIONS AND OTHER BUSINESS
ENTERPRISES, JOHN RUGGIE, UN DOC. A/HRC/17/31

Annexe, Guiding Principles on Business and Human Rights: Implementing the United Nations
‘Protect, Respect and Remedy’ Framework

THE STATE DUTY TO PROTECT HUMAN RIGHTS

A. FOUNDATIONAL PRINCIPLES
1 States must protect against human rights abuse within their territory and/or jurisdiction
by third parties, including business enterprises. This requires taking appropriate steps to
prevent, investigate, punish and redress such abuse through effective policies, legislation,
regulations and adjudication.

Commentary
States’ international human rights law obligations require that they respect, protect and fulfil
the human rights of individuals within their territory and/ or jurisdiction. This includes the duty
to protect against human rights abuse by third parties, including business enterprises. The
State duty to protect is a standard of conduct. Therefore, States are not per se responsible for
human rights abuse by private actors. However, States may breach their international human
rights law obligations where such abuse can be attributed to them, or where they fail to take
 EXTENDING THE DUTIES TO PROTECT AND RESPECT HUMAN RIGHTS | 253

appropriate steps to prevent, investigate, punish and redress private actors’ abuse. While States
generally have discretion in deciding upon these steps, they should consider the full range of
permissible preventative and remedial measures, including policies, legislation, regulations
and adjudication. States also have the duty to protect and promote the rule of law, including by
taking measures to ensure equality before the law, fairness in its application, and by providing
for adequate accountability, legal certainty, and procedural and legal transparency.

In discharging its duties, ‘States . . . should consider a smart mix of measures [. . .] to foster busi-
ness respect for human rights’. Guiding Principle 3 offers a number of ways in which States ensure
that businesses respect human rights.

REPORT OF THE SPECIAL REPRESENTATIVE OF THE SECRETARY-GENERAL ON THE ISSUE OF

HUMAN RIGHTS AND TRANSNATIONAL CORPORATIONS AND OTHER BUSINESS ENTERPRISES,
JOHN RUGGIE, UN DOC. A/HRC/17/31

Annexe, Guiding Principles on Business and Human Rights: Implementing the United Nations
‘Protect, Respect and Remedy’ Framework

General State regulatory and policy functions

3. In meeting their duty to protect, States should:

(a) Enforce laws that are aimed at, or have the effect of, requiring business enterprises to respect
human rights, and periodically to assess the adequacy of such laws and address any gaps;
(b) Ensure that other laws and policies governing the creation and ongoing operation of
business enterprises, such as corporate law, do not constrain but enable business respect
for human rights;
(c) Provide effective guidance to business enterprises on how to respect human rights
throughout their operations;
(d) Encourage, and where appropriate require, business enterprises to communicate how
they address their human rights impacts.

Given the range of ways in which States should seek to protect human rights, a recent development
in the area has been the production of National Action Plans on Business and Human Rights and
guidelines to help State’s develop them. A central aspect of these guidelines is the use of baseline assess-
ment, which is a study conducted at the start of an intervention to analyse current conditions in a given
context. The purpose of doing so is to ‘strengthen the effectiveness of NAPs by providing information
on commitment-compliance gaps and raising awareness of business and human rights issues across gov-
ernment agencies (see further, De Felice, D., and Graf, A., ‘The Potential of National Action Plans to
Implement Human Rights Norms: An Early Assessment with Respect to the UN Guiding Principles
on Business and Human Rights’ (2015) 7.1 Journal of Human Rights Practice).

UK National Action Plan on Business and Human Rights:

Good Business: Implementing the UN Guiding Principles on Business and Human Rights

Updated May 2016

Actions taken
17. To give effect to the UN Guiding Principles, the Government has:

(i) introduced the Modern Slavery Act which consolidates and simplifies existing legislation,
toughened penalties to allow a maximum sentence of life imprisonment, and provides
safeguards for victims. Companies covered by the Act are required to produce a ‘slavery
254 | EXTENDING THE DUTIES TO PROTECT AND RESPECT HUMAN RIGHTS

and human trafficking’ statement for each financial year setting out what steps they have
taken to ensure that slavery and human trafficking is not taking place in its business
and supply chains. The Act, which entered into force on 31 July 2015, also created an
Independent AntiSlavery Commissioner.
. . .
(iv) in March 2015 the Government concluded its chairmanship of the Voluntary Principles
Initiative. During our chairmanship we worked to raise awareness of the VPI in priority
countries for membership, to support UK oil, gas and mining companies to use the VPs
to manage security and human rights risks more effectively, and encouraged greater
openness by companies in line with the UN Guiding Principles on Business and Human
Rights. More detail on our chairmanship year can be found in our 2014 annual report.
(v) in 2015, the ISO 28007 maritime standard and ISO 18788 land standard for Private Security
Companies were published. The UK Accreditation Service (UKAS) conducted a pilot
certification process and has issued guidance for certifying bodies for ISO28007, including
on human rights. UKAS will also issue guidance on ISO18788.

Government commitments
18. The Government will do the following to reinforce its implementation of its commitments
under Pillar 1 of the UNGPs:

(i) Continue to support the implementation of the UNGPs in other countries, including through
the development of National Action Plans. This will create certainty, a level-playing field
and a positive environment for UK business. We will lobby foreign states, including through
ministerial contact and our embassies and high commissions, to support widespread
international implementation of the UNGPs and other relevant international instruments
including the ILO’s Fundamental Principles and Rights at Work and the eight core
Conventions which embody them, and the OECD Guidelines for Multinational Enterprises.
(iv) Work with government, industry and civil society members of the International Code of
Conduct Association to establish an international mechanism to monitor compliance with
the Code. This will take the form of (i) certification against the Code, (ii) monitoring by the
Association, and (iii) a complaints process. We continue to engage with government and
non-state clients to promote the Code and the Association.

UN work on business and human rights

There is now one UN special procedure mechanism dealing with the issue:
The Working Group on the issue of human rights and transnational corporations and
other business enterprises (also referred to as the Working Group on Business and Human
Rights) was established by the Human Rights Council in 2011 (resolution 17/4). The
Working Group is composed of five independent experts, of balanced geographical repre-
sentation. The Council renewed the Working Group’s mandate in 2014 (resolution 26/22)
and 2017 (resolution 35/7). 

UN Working Group on Business and Human Rights

Guidance on National Action Plans on Business and Human Rights

Overall structure and content

The UNWG recommends that Governments consider structuring their NAPs along the following
four sections.
 EXTENDING THE DUTIES TO PROTECT AND RESPECT HUMAN RIGHTS | 255

In an introductory section, the Government should commit to protect against adverse

corporate human rights impacts. It should also state its expectation that business enterprises
respect human rights in line with the UNGPs, including by implementing human rights due
diligence, and ensuring access to remedy where adverse impacts occur. Governments
should thereby indicate the significance of the policies and activities outlined in the NAP the
implementation by business enterprises of the corporate responsibility to respect human rights.
A second section should provide some context. Governments may include a short
introduction into the UNGPs, clarify the relation of the NAP to other related government policy
strategies, and outline some key national business and human rights challenges.
In a third section, Governments should highlight their priorities in addressing adverse
corporate human rights impacts and discuss current and planned activities on each of the Guiding
Principles directed at States (Guiding Principles 1–10, 25–28, 30, and 31). For every planned activity,
Governments should clarify the modalities of implementation including clear responsibilities of
relevant entities, a timeframe, and indicators to evaluate success (see Annex II).
In a fourth section, Governments should specify the modalities of monitoring and update.
This might include the creation of a multi-stakeholder monitoring group which receives, and
comments on, regular Government reports. Moreover, Governments should define a date for
the next NAP update (see Annex I).

Danish Institute of Human Rights and International Corporate Accountability Rountable,

NATIONAL ACTION PLANS ON BUSINESS AND HUMAN RIGHTS TOOLKIT 2017

NATIONAL BASELINE ASSESSMENT TEMPLATE

National Laws, Policies, and Regulations

Guiding Questions
Has the state put in place relevant structures to ensure implementation of the UNGPs, for
example, through the establishment or designation of a body tasked with implementation
measures or through the allocation of internal resources?
Has the state set out and fully disseminated to relevant government agencies (including
foreign embassies and consulates) clear policy statements on the expectation that all
businesses domiciled in its territory and/or jurisdiction respect human rights?
. . .
Has the state established measures to overcome the challenges associated with limited
liability of parent companies? For example, has the state established a ‘duty of care’ for parent
companies in terms of the human rights impacts of their subsidiaries, regardless of where the
subsidiaries operate?
. . .
Has the state taken measures to ensure that there are no legal barriers to prevent
legitimate cases from being brought before the courts?
This includes ensuring that:

(1) it is possible to hold businesses accountable under domestic criminal and civil laws,
meaning that liability for both natural and legal persons exists under the law;
(2) all members of society can raise complaints, including indigenous peoples, migrants,
women, and children, and are afforded the same legal protection as for the wider population;

Extraterritorial Obligations
The activities of transnational corporations internationally, as well as cross-border transactions
and overseas investments by locally incorporated companies, can result in adverse impacts
outside these companies’ home jurisdictions. Increasingly, states are regarded as possessing
256 | EXTENDING THE DUTIES TO PROTECT AND RESPECT HUMAN RIGHTS

obligations to regulate the activities of subsidiary companies operating abroad when their
parent companies are domiciled in that state. The UNGP are, however, ambiguous on the point.

REPORT OF THE SPECIAL REPRESENTATIVE OF THE SECRETARY-GENERAL ON THE ISSUE

OF HUMAN RIGHTS AND TRANSNATIONAL CORPORATIONS AND OTHER BUSINESS
ENTERPRISES, JOHN RUGGIE, UN DOC. A/HRC/17/31

Annexe, Guiding Principles on Business and Human Rights: Implementing the United Nations
‘Protect, Respect and Remedy’ Framework

2. States should set out clearly the expectation that all business enterprises domiciled in their
territory and/or jurisdiction respect human rights throughout their operations.

Commentary

At present States are not generally required under international human rights law to regulate
the extraterritorial activities of businesses domiciled in their territory and/or jurisdiction. Nor
are they generally prohibited from doing so, provided there is a recognized jurisdictional basis.
Within these parameters some human rights treaty bodies recommend that home States
take steps to prevent abuse abroad by business enterprises within their jurisdiction. There
are strong policy reasons for home States to set out clearly the expectation that businesses
respect human rights abroad, especially where the State itself is involved in or supports those
businesses.
The reasons include ensuring predictability for business enterprises by providing coherent
and consistent messages, and preserving the State’s own reputation. States have adopted
a range of approaches in this regard. Some are domestic measures with extraterritorial
implications. Examples include requirements on ‘parent’ companies to report on the global
operations of the entire enterprise; multilateral soft-law instruments such as the Guidelines
for Multinational Enterprises of the Organisation for Economic Co-operation and Development;
and performance standards required by institutions that support overseas investments. Other
approaches amount to direct extraterritorial legislation and enforcement.
This includes criminal regimes that allow for prosecutions based on the nationality of
the perpetrator no matter where the offence occurs. Various factors may contribute to the
perceived and actual reasonableness of States’ actions, for example whether they are grounded
in multilateral agreement.

More recently, treaty bodies have elaborated on the nature and extent of these obligations.

UN Committee on Economic, Social and Cultural Rights (2017) General

comment 24: state obligations under the ICESCR in the context of
business activities, UN Doc. E/C.12/GC/24

C. Extraterritorial obligations
25. The past thirty years have witnessed a significant increase of activities of transnational
corporations, growing investment and trade flows between countries, and the emergence
of global supply chains. In addition, major development projects have increasingly involved
private investments, often in the form of public-private partnerships between State agencies
and foreign private investors. These developments give particular significance to the question
of extraterritorial human rights obligations of States.
26. In its 2011 statement on the obligations of States parties regarding the corporate
sector and economic, social and cultural rights, the Committee reiterated that States parties’
obligations under the Covenant did not stop at their territorial borders. States parties were
required to take the steps necessary to prevent human rights violations abroad by corporations
 EXTENDING THE DUTIES TO PROTECT AND RESPECT HUMAN RIGHTS | 257

domiciled in their territory and/or jurisdiction (whether they were incorporated under their
laws, or had their statutory seat, central administration or principal place of business on the
national territory), without infringing the sovereignty or diminishing the obligations of the
host States under the Covenant. The Committee has also addressed specific extraterritorial
obligations of States parties concerning business activities in its previous general comments
relating to the right to water, the right to work, the right to social security, and the right to just
and favourable conditions of work, as well as in its examination of States’ periodic reports.
27. Such extraterritorial obligations of States under the Covenant follow from the fact
that the obligations of the Covenant are expressed without any restriction linked to territory or
jurisdiction. Although article 14 of the Covenant does refer to compulsory primary education
having to be provided by a State ‘in its metropolitan territory or other territories under its
jurisdiction’, such a reference is absent from the other provisions of the Covenant. Moreover,
article 2 (1) refers to international assistance and cooperation as a means of fulfilling economic,
social and cultural rights. It would be contradictory to such a reference to allow a State to
remain passive where an actor domiciled in its territory and/or under its jurisdiction, and thus
under its control or authority, harmed the rights of others in other States, or where conduct by
such an actor may lead to foreseeable harm being caused. Indeed, the Members of the United
Nations have pledged ‘to take joint and separate action in cooperation with the Organization’
to achieve the purposes set forth in article 55 of the Charter, including ‘universal respect for,
and observance of, human rights and fundamental freedoms for all without distinction as
to race, sex, language, or religion’. This duty is expressed without any territorial limitation,
and should be taken into account when addressing the scope of States’ obligations under
human rights treaties. Also in line with the Charter, the International Court of Justice has
acknowledged the extraterritorial scope of core human rights treaties, focusing on their object
and purpose, their legislative history and the lack of territorial limitation provisions in the
text. Customary international law also prohibits a State from allowing its territory to be used
to cause damage on the territory of another State, a requirement that has gained particular
relevance in international environmental law. The Human Rights Council has confirmed that
such prohibition extends to human rights law, when it endorsed the guiding principles on
extreme poverty and human rights, in its resolution 21/11.
28. Extraterritorial obligations arise when a State party may influence situations located
outside its territory, consistent with the limits imposed by international law, by controlling the
activities of corporations domiciled in its territory and/or under its jurisdiction, and thus may
contribute to the effective enjoyment of economic, social and cultural rights outside its national
territory. In that regard, the Committee also takes note of general comment No. 16 (2013)
on State obligations regarding the impact of the business sector on children’s rights, of the
Committee on the Rights of the Child, as well as of the positions adopted by other human rights
treaty bodies.

Nadia Bernaz differentiates two different approaches to accountability, which are important when
considering different ways in which States can regulate the activities of businesses operating abroad.

Bernaz, N., ‘Enhancing Corporate Accountability for Human Rights

Violations: Is Extraterritoriality the Magic Potion?’ (2013) 117.3 Journal
of Business Ethics 493–511, 494

The phrase ‘corporate accountability’ must be distinguished from ‘corporate liability’, which
implies a legal obligation or a legal duty. As such, when a given obligation is breached,
the injured party can initiate legal proceedings against the company before a court of law.
Accountability is a wider and looser concept, not limited to the consequences of the breach of
a necessarily circumscribed legal obligation. It encompasses the idea that those accountable
should be answerable for the consequences of their actions and refers to ‘non-legal risks of
258 | EXTENDING THE DUTIES TO PROTECT AND RESPECT HUMAN RIGHTS

loss of reputation, denial of access to foreign markets, and shareholder dissent (not to mention
plunging stock values)’.

While liability refers primarily to holding businesses accountable through courts and litigation,
accountability is much wider, encompassing a range of measures. The discussion explores the
distinction with two case studies.

Case Study: Extraterritorial Liability: The Alien Tort Statute

States can regulate extraterritorially through legislation, giving rise to possible litigation against
companies in civil law. One such example is the US Alien Tort Statute (ATS), initially passed by
the First Congress in 1789.

US ALIEN TORT CLAIMS ACT 1789

Section 1350. Alien’s action for tort

The district courts shah have original jurisdiction of any civil action by an alien for a tort only,
committed in violation of the law of nations or a treaty of the United States.
The application of this provision to human rights became apparent after the litigation in
Filartiga v Pena-Irala 1980 F. 2d 876 (2d cir) (US). The United States Circuit Court of Appeals
considered the prohibition on torture part of customary international law and opened the way
for human rights abuses overseas to be actioned within the United States.
While adopted in the context of addressing territorial issues about piracy on the High Seas,
beginning in the mid-1990s, a class of ATS suits have emerged that aim to hold multinational
corporations accountable for complicity in human rights abuses. The case of John Doe et al.
v Unocal Corp helps to demonstrate the emergence of cases involving businesses operating
abroad litigated in the US.

John Doe et al. v Unocal Corp. 2002 WL 31063976 (9th Cir. (Cal.)), September 18 2002

In 1996, people from the Tenasserim area of Myanmar (formerly Burma) assisted by two
NGOs (EarthRights International and Center for Constitutional Rights) filed suit against
Unocal alleging that the company directly or indirectly subjected the villagers to serial human
rights abuses during the construction of a gas pipeline. (The plaintiffs filed as John, Jane
and baby Doe to preserve anonymity with the consent of the court and in accordance with
American legal practice.) The initially named co-defendants Total SA, a French oil firm of which
Unocal has an interest, the Myanmar government and Myanmar Oil were dropped as Total
had insufficient interest to be sued in the US and the other two had sovereign immunity. The
action continued against Unocal on the basis of its interest in Total, the company involved in
the pipeline. The gas pipeline was constructed under an agreement between Total SA and the
two Myanmar defendants. The pipeline was built between 1992 and 1999. International human
rights organisations reported evidence of human rights violations perpetrated by Myanmar
authorities during the construction phase.

Unocal’s Knowledge that the Myanmar Military was Providing Security and
Other Services for the Project

It is undisputed that the Myanmar Military provided security and other services for the Project,
and that Unocal knew about this. The pipeline was to run through Myanmar’s rural Tenasserim
region. The Myanmar Military increased its presence in the pipeline region to provide security
and other services for the Project. A Unocal memorandum documenting Unocal’s meetings
with Total on March 1 and 2, 1995 reflects Unocal’s understanding that ‘[f]our battalions of
 EXTENDING THE DUTIES TO PROTECT AND RESPECT HUMAN RIGHTS | 259

600 men each will protect the [pipeline] corridor’ and ‘[f]ifty soldiers will be assigned to guard
each survey team.’ A former soldier in one of these battalions testified at his deposition that
his battalion had been formed in 1996 specifically for this purpose. In addition, the Military built
helipads and cleared roads along the proposed pipeline route for the benefit of the Project.
There is also evidence sufficient to raise a genuine issue of material fact whether the
Project hired the Myanmar Military, through Myanmar Oil, to provide these services, and
whether Unocal knew about this. In March 2005, an unspecified out-of-court settlement was
reached between Unocal and the villagers.

Unocal statement on settlement from www.unocal.com/myanmar/suit.htm

On March 21, 2005, Unocal announced that it had reached a final settlement with the parties
to several lawsuits related to the company’s investment through subsidiaries in the Yadana
natural gas pipeline project in Myanmar (Burma). The lawsuits had alleged that Unocal was
complicit in human rights violations committed by the Burmese military. Both state and federal
courts will soon be acting to dismiss these claims.
Although terms of the settlement are confidential, we want to make the following very
clear. Unocal has never condoned, encouraged or participated in human rights violations in
any project. As indicated in the agreed joint press release that was published earlier, Unocal
maintains, and has always maintained, that we did nothing wrong and have always respected
human rights in Myanmar (Burma). Indeed, we received a ruling from the court that Unocal did
nothing wrong with regard to the Yadana project.
It is absolutely against our principles, practices and Code of Conduct to tolerate the use
of forced labour. Under the management of Total, the project operator, all workers on the
Yadana project were paid and voluntary. All workers were paid directly, and these payments
were carefully documented by Total. Further, no villages were relocated in connection with the
Yadana project. Owners of land used for the project received fair compensation.
Unocal is not the only company to face litigation in the United States: a number of actions
are in progress or have recently been concluded.

There have been numerous other cases brought against corporations under the ATS. These cases
help to demonstrate the range of ways in which businesses can undermine human rights, particu-
larly in contexts where domestic legal systems are incapable or where political elites are unwilling
to hold businesses to account for their deleterious activities. The plaintiffs in Presbyterian Church of
Sudan v Talisman Energy, for example, claimed that the oil company had aided and abetted in the
commission of genocide and war crimes in Sudan (582 F.3d 244 (2d Cir. 2009). The company
built roads that the military used when carrying out military strikes, provided fuel for military
aircraft and paid royalties to the government. The case of Sarei v Rio Tinto involved allegations
that the mining giant’s exploitation of copper in Papa New Guinea destroyed the environment,
inculcated a policy of racial discrimination, incited a ten-year armed conflict that amounted to
genocide, and facilitated the commission of crimes against humanity and war crimes (221 F. Supp.
2d 1116 (C.D. Cal. 2002); 671 F. 3d 736 (9th Cir. 2011)). The case of Wiwa v Royal Dutch Shell
Petroleum Company relates to the execution of indigenous activists from the Niger Delta by the
Nigerian government following riots and protests over pollution in the Niger Delta. Shell was
alleged to have ‘instigated, orchestrated, planned, and facilitated’ the arrests, torture and execu-
tions (226 F.3d 88 (2d Cir. 2000), at 96). Similarly, in Kiobel v Royal Dutch Petroleum Company, the
court also addressed issues of co-operation between Shell and the Nigerian government, though
it involved a greater number of plaintiffs (569 U.S. (2013); 621 F.3d 111 (2d Cir. 2010)). Claim-
ants alleged that Shell aided and abetted numerous human rights violations throughout the Niger
Delta, principally through assisting the military.
For some, the ATS offers an important legal avenue for victims of corporate human rights
violations. Nevertheless, favourable outcomes are difficult. In particular, the potential reach of
260 | EXTENDING THE DUTIES TO PROTECT AND RESPECT HUMAN RIGHTS

the ATS has been significantly reduced following the decision in Kiobel v Royal Dutch Petroleum
(133 S. Ct. 1659 (2013)). In this case, the US Supreme Court found that there is a presumption
against extraterritorial jurisdiction under the Statute, which may only be rebutted if the alleged
tort sufficiently touches and concerns the United States. Four circuits have had occasion to apply
the ‘touch and concern’ test to corporations since Kiobel. Nevertheless, the approach in the US
helps to demonstrate the potential for home States to regulate the activities of businesses operating
overseas, particularly in those contexts with weak regulatory frameworks.

Case Study: Extraterritorial Accountability: The United Kingdom Modern Slavery Act
Non-financial reporting is described as a process of communicating information on social and
environmental impacts of business to interested stakeholders. The broad logic is that if businesses
are required or asked to communicate how they approach non-financial issues such as respecting
human rights, then they must have policies and procedures in place to report on.
Non-financial reporting can be both mandatory and extraterritorial in nature. For instance,
when in 2012 the Obama administration lifted economic sanctions on Myanmar, encouraging
American investments with a significant caveat. U.S. companies investing over $500,000 in Myan-
mar or investing with the country’s energy monopoly, Myanmar Oil and Gas Enterprise (MOGE),
were required to disclose information on their policies and procedures. These include those relat-
ing to human rights, worker rights, anti-corruption, land acquisition, grievance mechanisms and
the environment. Other initiatives have sought to address particular issues by requiring companies
to report on the extent to which they are addressing human rights-related issues or to explain why
they have not sought to do so.
The United Kingdom’s 2015 Modern Slavery Act provides a useful example of non-financial
reporting requirements with potential extraterritorial scope.

Modern Slavery Act 2015, c30

PART 6 TRANSPARENCY IN SUPPLY CHAINS ETC

54 Transparency in supply chains etc

(1) A commercial organisation within subsection (2) must prepare a slavery and human
trafficking statement for each financial year of the organisation.
(2) A commercial organisation is within this subsection if it –

(a) supplies goods or services, and

(b) has a total turnover of not less than an amount prescribed by regulations made by
the Secretary of State.

(3) For the purposes of subsection (2)(b), an organisation’s total turnover is to be determined
in accordance with regulations made by the Secretary of State.
(4) A slavery and human trafficking statement for a financial year is –

(a) a statement of the steps the organisation has taken during the financial year to
ensure that slavery and human trafficking is not taking place –
(i) in any of its supply chains, and
(ii) in any part of its own business, or

(b) a statement that the organisation has taken no such steps.

(5) An organisation’s slavery and human trafficking statement may include information about –

(a) the organisation’s structure, its business and its supply chains;
(b) its policies in relation to slavery and human trafficking;
(c) its due diligence processes in relation to slavery and human trafficking in its business
and supply chains;
 EXTENDING THE DUTIES TO PROTECT AND RESPECT HUMAN RIGHTS | 261

(d) the parts of its business and supply chains where there is a risk of slavery and human
trafficking taking place, and the steps it has taken to assess and manage that risk;
(e) its effectiveness in ensuring that slavery and human trafficking is not taking place in
its business or supply chains, measured against such performance indicators as it
considers appropriate;
(f) the training about slavery and human trafficking available to its staff.

(6) A slavery and human trafficking statement –

(a) if the organisation is a body corporate other than a limited liability partnership, must
be approved by the board of directors (or equivalent management body) and signed
by a director (or equivalent);
(b) if the organisation is a limited liability partnership, must be approved by the members
and signed by a designated member;
(c) if the organisation is a limited partnership registered under the Limited Partnerships
Act 1907, must be signed by a general partner;
(d) if the organisation is any other kind of partnership, must be signed by a partner.

(7) If the organisation has a website, it must –

(a) publish the slavery and human trafficking statement on that website, and
(b) include a link to the slavery and human trafficking statement in a prominent place on
that website’s homepage.

(8) If the organisation does not have a website, it must provide a copy of the slavery and human
trafficking statement to anyone who makes a written request for one, and must do so before
the end of the period of 30 days beginning with the day on which the request is received.
(9) The Secretary of State –

(a) may issue guidance about the duties imposed on commercial organisations by this
section;
(b) must publish any such guidance in a way the Secretary of State considers appropriate.

(10) The guidance may in particular include further provision about the kind of information
which may be included in a slavery and human trafficking statement.
(11) The duties imposed on commercial organisations by this section are enforceable by the
Secretary of State bringing civil proceedings in the High Court for an injunction or, in
Scotland, for specific performance of a statutory duty under section 45 of the Court of
Session Act 1988.
(12) For the purposes of this section – ‘commercial organisation’ means –

(a) a body corporate (wherever incorporated) which carries on a business, or part of a

business, in any part of the United Kingdom, or
(b) a partnership (wherever formed) which carries on a business, or part of a business,
in any part of the United Kingdom,

and for this purpose ‘business’ includes a trade or profession; ‘partnership’ means –

(a) a partnership within the Partnership Act 1890,

(b) a limited partnership registered under the Limited Partnerships Act 1907, or (c) a
firm, or an entity of a similar character, formed under the law of a country outside
the United Kingdom; ‘slavery and human trafficking’ means –
(a) conduct which constitutes an offence under any of the following –

(i) section 1, 2 or 4 of this Act,

262 | EXTENDING THE DUTIES TO PROTECT AND RESPECT HUMAN RIGHTS

(ii) section 1, 2 or 4 of the Human Trafficking and Exploitation (Criminal Justice and
Support for Victims) Act (Northern Ireland) 2015 (c.2 (N.I.)) (equivalent offences
in Northern Ireland),
(iii) section 22 of the Criminal Justice (Scotland) Act 2003 (asp7) (traffic in prostitution
etc), (iv) section 4 of the Asylum and Immigration (Treatment of Claimants, etc.)
Act 2004 (trafficking for exploitation),
(v) section 47 of the Criminal Justice and Licensing (Scotland) Act 2010 (asp13)
(slavery, servitude and forced or compulsory labour), or (b) conduct which
would constitute an offence in a part of the United Kingdom under any of those
provisions if the conduct took place in that part of the United Kingdom.

There is clear extra-territorial reach for these provisions as UK nationals commit offences
regardless of the geographical location.
Australia introduced very strict reporting and investigatory requirements in its Modern Slav-
ery Act 2018. Appropriately, the Act was assented to on Human Rights Day, 10 December 2018.
Supply chains in particular will become more transparent. Of particular relevance is the reporting
requirement for large businesses and those carrying on business in Australia with a hundred million
AUD consolidated revenue in the reporting period (s5). Reports must now be filed annually by all
enterprises in that category, by government and voluntarily by others.

Modern Slavery Act 2018, No. 153, 2018

16 Mandatory criteria for modern slavery statements

(1) A modern slavery statement must, in relation to each reporting entity covered by the
statement:

(a) identify the reporting entity: and

(b) describe the structure, operations and supply chains of the reporting entity; and
(c) describe the risks of modern slavery practices in the operations and supply chains of
the reporting entity, and any entities that the reporting entity owns or controls; and
(d) describe the actions taken by the reporting entity and any entity that the reporting
entity owns or controls, to assess and address those risks, including due diligence
and remediation processes; and
(e) describe how the reporting entity assesses the effectiveness of such actions; and
(f) describe the process of consultation with:

i. any entities that the reporting entity owns or controls; and

ii. in the case of a reporting entity covered by a statement under section 14 – the
entity giving the statement; and

(g) include any other information that the reporting entity, or the entity giving the
statement, considers relevant.

This provision has caused many large corporations to reflect carefully on supply chains at all levels,
from products and substantial components thereof to promotional materials they may use such as
pens and keychains.

Question
Think along supply chains for, for example, an item of clothing you are wearing. Do you know where the
material came from and where the clothing item was made (the latter is usually on the label)? What about this
book, or the device on which you are reading it?
 EXTENDING THE DUTIES TO PROTECT AND RESPECT HUMAN RIGHTS | 263

THE CORPORATE RESPONSIBILITY TO RESPECT

The UNGP also articulate corporate responsibility to protect human rights. Blowfield and Mur-
ray provide an excellent introduction to and overview of these issues with extensive illustration by
reference to case studies in Blowfield, M., and Murray, A., Corporate Responsibility, 2nd edn, 2011,
Oxford: OUP.
According to Ruggie’s guidelines, ‘The responsibility to respect human rights is a global
standard of expected conduct for all business enterprises wherever they operate. It exists indepen-
dently of States’ abilities and/or willingness to fulfil their own human rights obligations, and does
not diminish those obligations. And it exists over and above compliance with national laws and
regulations protecting human rights’ (Guidelines, para 11, commentary).
The minimal standard is stated as being ‘those [rights] expressed in the International Bill
of Human Rights and the principles concerning fundamental rights set out in the International
Labour Organisation’s Declaration on Fundamental Principles and Rights at Work’ (ibid., para 12)
(see box entitled The International Labour Organisation). 

The International Labour Organisation

The International Labour Organisation was established in 1919 in terms of the Treaty of Versailles.
The governing body of the International Labour Organisation has identified eight conventions as
‘fundamental to the rights of human beings at work, irrespective of levels of developments of . . .
States’. There are two conventions in each of four principal categories. The result is anticipated by
the ILO to be ‘a global consensus on social and labour issues, and serve as the major reference point
in this sphere’. Over almost a century, the ILO has made considerable advances in standard-setting.
Its efforts are obviously directed to States. Nevertheless there is scope for the guidelines of these
fundamental treaties to apply broadly as examples of positive generic work practices. 

ILO DECLARATION ON FUNDAMENTAL PRINCIPLES AND RIGHTS AT WORK, 86TH SESSION,

GENEVA, JUNE 1998

The International Labour Conference

1 Recalls:

(a) that in freely joining the ILO, all Members have endorsed the principles and rights set
out in its Constitution and in the Declaration of Philadelphia, and have undertaken to
work towards attaining the overall objectives of the Organization to the best of their
resources and fully in line with their specific circumstances;
(b) that these principles and rights have been expressed and developed in the form of
specific rights and obligations in Conventions recognized as fundamental both inside
and outside the Organization.

2 Declares that all Members, even if they have not ratified the Conventions in question, have
an obligation arising from the very fact of membership in the Organization to respect,
to promote and to realize, in good faith and in accordance with the Constitution, the
principles concerning the fundamental rights which are the subject of those Conventions,
namely:

(a) freedom of association and the effective recognition of the right to collective bargaining;
(b) the elimination of all forms of forced or compulsory labour;
264 | EXTENDING THE DUTIES TO PROTECT AND RESPECT HUMAN RIGHTS

(c) the effective abolition of child labour; and

(d) the elimination of discrimination in respect of employment and occupation.
. . .

ILO CONVENTION NO. 29 ON FORCED LABOUR (1930)

Article 1

1 Each Member of the International Labour Organisation which ratifies this Convention
undertakes to suppress the use of forced or compulsory labour in all its forms within the
shortest possible period.
2 With a view to this complete suppression, recourse to forced or compulsory labour may
be had, during the transitional period, for public purposes only and as an exceptional
measure, subject to the conditions and guarantees hereinafter provided.
3 At the expiration of a period of five years after the coming into force of this Convention, and
when the Governing Body of the International Labour Office prepares the report provided
for in Article 31 below, the said Governing Body shall consider the possibility of the
suppression of forced or compulsory labour in all its forms without a further transitional
period and the desirability of placing this question on the agenda of the Conference.

Article 2

1 For the purposes of this Convention the term forced or compulsory labour shall mean all
work or service which is exacted from any person under the menace of any penalty and for
which the said person has not offered himself voluntarily.
2 Nevertheless, for the purposes of this Convention, the term forced or compulsory labour
shall not include –

(a) any work or service exacted in virtue of compulsory military service laws for work of
a purely military character;
(b) any work or service which forms part of the normal civic obligations of the citizens of
a fully self-governing country;
(c) any work or service exacted from any person as a consequence of a conviction
in a court of law, provided that the said work or service is carried out under the
supervision and control of a public authority and that the said person is not hired to
or placed at the disposal of private individuals, companies or associations;
(d) any work or service exacted in cases of emergency, that is to say, in the event of
war or of a calamity or threatened calamity, such as fire, flood, famine, earthquake,
violent epidemic or epizootic diseases, invasion by animal, insect or vegetable pests,
and in general any circumstance that would endanger the existence or the well-
being of the whole or part of the population;
(e) minor communal services of a kind which, being performed by the members of the
community in the direct interest of the said community, can therefore be considered
as normal civic obligations incumbent upon the members of the community, provided
that the members of the community or their direct representatives shall have the
right to be consulted in regard to the need for such services. . . .

Article 11

1 Only adult able-bodied males who are of an apparent age of not less than 18 and not more
than 45 years may be called upon for forced or compulsory labour. Except in respect of the
kinds of labour provided for in Article 10 of this Convention, the following limitations and
conditions shall apply:

(a) whenever possible prior determination by a medical officer appointed by the administration
that the persons concerned are not suffering from any infectious or contagious disease
 EXTENDING THE DUTIES TO PROTECT AND RESPECT HUMAN RIGHTS | 265

and that they are physically fit for the work required and for the conditions under which it
is to be carried out;
(b) exemption of school teachers and pupils and officials of the administration in general;
(c) the maintenance in each community of the number of adult able-bodied men indis-
pensable for family and social life;
(d) respect for conjugal and family ties.

ILO CONVENTION NO. 138 MINIMUM AGE 1973

Article 1

Each Member for which this Convention is in force undertakes to pursue a national
policy designed to ensure the effective abolition of child labour and to raise progressively
the minimum age for admission to employment or work to a level consistent with the fullest
physical and mental development of young persons.

Article 2

1 Each Member which ratifies this Convention shall specify, in a declaration appended to its
ratification, a minimum age for admission to employment or work within its territory and
on means of transport registered in its territory; subject to Articles 4 to 8 of this Convention,
no one under that age shall be admitted to employment or work in any occupation. . . .
3 The minimum age specified in pursuance of paragraph 1 of this Article shall not be less
than the age of completion of compulsory schooling and, in any case, shall not be less than
15 years.
4 Notwithstanding the provisions of paragraph 3 of this Article, a Member whose economy
and educational facilities are insufficiently developed may, after consultation with the
organisations of employers and workers concerned, where such exist, initially specify a
minimum age of 14 years. . . .

ILO CONVENTION NO. 87 ON FREEDOM OF ASSOCIATION 1948

Article 2

Workers and employers, without distinction whatsoever, shall have the right to establish
and, subject only to the rules of the organisation concerned, to join organisations of their own
choosing without previous authorisation.

Article 3

1 Workers’ and employers’ organisations shall have the right to draw up their constitutions
and rules, to elect their representatives in full freedom, to organise their administration
and activities and to formulate their programmes.
2 The public authorities shall refrain from any interference which would restrict this right
or impede the lawful exercise thereof.

Article 4

Workers’ and employers’ organisations shall not be liable to be dissolved or suspended by

administrative authority.

Article 5

Workers’ and employers’ organisations shall have the right to establish and join federations
and confederations and any such organisation, federation or confederation shall have the right
to affiliate with international organisations of workers and employers.
The UNGP ask that businesses undertake a number of measures to respect human rights.
These are defined under General Principle 15.
266 | EXTENDING THE DUTIES TO PROTECT AND RESPECT HUMAN RIGHTS

REPORT OF THE SPECIAL REPRESENTATIVE OF THE SECRETARY-GENERAL ON THE ISSUE

OF HUMAN RIGHTS AND TRANSNATIONAL CORPORATIONS AND OTHER BUSINESS
ENTERPRISES, JOHN RUGGIE, UN DOC. A/HRC/17/31

Annexe, Guiding Principles on Business and Human Rights: Implementing the United Nations
‘Protect, Respect and Remedy’ Framework

15 In order to meet their responsibility to respect human rights, business enterprises should
have in place policies and processes appropriate to their size and circumstances, including:
16
(a) A policy commitment to meet their responsibility to respect human rights;
(b) A human rights due diligence process to identify, prevent, mitigate and account for
how they address their impacts on human rights;
(c) Processes to enable the remediation of any adverse human rights impacts they
cause or to which they contribute.

A particularly novel aspect of the UNGP is the concept of due diligence as explained by Ruggie
and Sherman:

Ruggie, J.G., and Sherman, J.F. III, ‘The Concept of “Due Diligence” in the UN
Guiding Principles on Business and Human Rights: A Reply to Jonathan
Bonnitcha and Robert McCorquodale’ (August 2017) 28.3 European
Journal of International Law 921–928

Human rights due diligence enters the picture by enabling the enterprise to discover
whether and how it may become involved in human rights risks (forward looking) or is
already involved in an adverse impact (present). Human rights due diligence includes
using the information so gained to craft an appropriate response. And the enterprises’
responsibility in relation to remedy is commensurate with, and proportional to, its
involvement in the harm.

The UNGP outline in detail the concept of due diligence and steps that businesses ought to take
in order to put due diligence into practice.

REPORT OF THE SPECIAL REPRESENTATIVE OF THE SECRETARY-GENERAL ON THE ISSUE OF

HUMAN RIGHTS AND TRANSNATIONAL CORPORATIONS AND OTHER BUSINESS ENTERPRISES,
JOHN RUGGIE, UN DOC. A/HRC/17/31

Annexe, Guiding Principles on Business and Human Rights: Implementing the United Nations
‘Protect, Respect and Remedy’ Framework

HUMAN RIGHTS DUE DILIGENCE

17. In order to identify, prevent, mitigate and account for how they address their adverse
human rights impacts, business enterprises should carry out human rights due diligence. The
process should include assessing actual and potential human rights impacts, integrating and
acting upon the findings, tracking responses, and communicating how impacts are addressed.
Human rights due diligence:

(a) Should cover adverse human rights impacts that the business enterprise may cause or
contribute to through its own activities, or which may be directly linked to its operations,
products or services by its business relationships;
(b) Will vary in complexity with the size of the business enterprise, the risk of severe human
rights impacts, and the nature and context of its operations;
(c) Should be ongoing, recognizing that the human rights risks may change over time as the
business enterprise’s operations and operating context evolve.
 EXTENDING THE DUTIES TO PROTECT AND RESPECT HUMAN RIGHTS | 267

In order to assist companies in undertaking due diligence, various guidelines have been developed.
The UNOHCHR’s interpretive guide on the corporate responsibility to respect human rights
helps to identify the sort of questions that companies must ask.

UNOHCHR THE CORPORATE RESPONSIBILITY TO RESPECT HUMAN RIGHTS

An Interpretive Guide

QUESTIONS TO ASK
Do we already have systems on which we may build as we develop our human rights due
diligence processes?
Are these systems effective and fit for the purpose of addressing human rights risks?
What changes may be needed to make them fit for this purpose?
Are there circumstances in which we will need separate processes for human rights?
Who should lead on human rights due diligence?
Who needs to have oversight?
What departments will most likely need to be involved in aspects of human rights due diligence?
How could we involve them in the development of the processes?
How could we structure and motivate collaboration?
What external expertise are we likely to need?
If we use external experts, how can we ensure that this supports, rather than detracts from, the
embedding of respect for human rights in our internal values and practices?
How and at what points in the human rights due diligence process should we seek to engage
with our directly affected stakeholders or their representatives?
If we cannot do so, how else can we gain an understanding of their likely concerns and
perspectives?
How will we make sure that we keep our human rights due diligence up to date so that we may
recognize changes that may require renewed assessments of and responses to our impact?

Although both the reach and impact of the UNGP are difficult to ascertain, there are numerous
examples of businesses attempting to integrate the corporate responsibility to respect human rights
and more specifically human rights due diligence into their operations. Following are responses to
specific questions posed in the Myanmar Foreign Investment Tracking Project, which is an initia-
tive that seeks to provide a public database of major foreign companies investing or operating in
Myanmar and provide an open record of their human rights commitments. Additional informa-
tion about the Coca-Cola Company due diligence efforts in Myanmar is available in the annual
reports on the US State Department website:

Response by Coca-Cola: Myanmar Foreign Investment Tracking Project, 2013

How are human rights managed within your company?

The Coca-Cola Company’s Respect for Human Rights Framework.
We were fortunate that, starting in 2005, we worked with Professor John Ruggie, the former
UN Special Representative for Business and Human Rights, and his team in the development
of a framework for respecting human rights. In 2007, we joined the Business Leaders Initiative
on Human Rights and later became a founding member of a successor organization, the Global
Business Initiative on Human Rights as well as adopting the Company’s human and workplace
rights policies.
In 2009, we began engaging with the Danish Institute on Human Rights to identify gaps in
our global policies on human rights and to develop checklists to identify critical human rights
issues. We endorsed the United Nations Guiding Principles on Business and Human Rights
in May 2011 prior to their being adopted by the United Nations Human Rights Council. The
268 | EXTENDING THE DUTIES TO PROTECT AND RESPECT HUMAN RIGHTS

Guiding Principles establish a respect for human rights framework that has been endorsed by
governments, business and civil society, starting with the primary duty of the state to protect
its citizens from human rights harm.
This framework means that a company with some confidence can implement the Guiding
Principles without any concern of any debate from stakeholders. It is the key touchstone for
implementing our human rights policies, conducting human rights due diligence, and mitigating
any human rights impacts if they occur. We expect our Company, our bottling partners and
our suppliers to avoid causing, or contributing to adverse human rights impacts as a result
of business actions. This is reinforced through bottler and supplier training and our Supplier
Guiding Principles assessments of bottlers and suppliers.
The Company utilizes numerous tools to identify human right impacts that have evolved
and been refined over time. In 2007, our primary human rights due diligence tools were from
three sources: (1) information provided by critical stakeholders such as the International Union
of Foodworkers, Human Rights Watch, socially responsible investors and many others; (2)
human rights audits conducted of the Company, bottling partners and supply chain; (3) issues
raises by the Company’s human rights grievance mechanisms.
Today, the due diligence tool box is improved and continues to expand. We now conduct
2500 human rights audits with corrective action plans put in place, as needed, for the Company,
bottling partners and suppliers each year and we have a Global Human Rights Scorecard
reflecting overall compliance with meeting the Company’s standards.
Our goal for 2014 is 88 percent compliance well above the global compliance standard
of 63 percent just a few years ago. We have several human rights due diligence checklists
ranging from plant siting to child labour to migrant and forced labour. In 2011, we conducted
an end-to-end value chain analysis from raw materials to end use to identify potential
human rights impacts. As a result, we have established seven priority human rights issues
with metrics that we report to the Board of Directors with 2020 goals on progress being
made.

UNGP PILLAR 3: REMEDIES

The third and final pillar of the UNGP deals with remedies for victims of corporate human
rights abuses caused both directly and indirectly by businesses.

REPORT OF THE SPECIAL REPRESENTATIVE OF THE SECRETARY-GENERAL ON THE

ISSUE OF HUMAN RIGHTS AND TRANSNATIONAL CORPORATIONS AND OTHER
BUSINESS ENTERPRISES, JOHN RUGGIE, UN DOC. A/HRC/17/31

Annexe, Guiding Principles on Business and Human Rights: Implementing the United Nations
‘Protect, Respect and Remedy’ Framework

Pillar 3: Remedies
Foundational Principle

25. As part of their duty to protect against business-related human rights abuse, States
must take appropriate steps to ensure, through judicial, administrative, legislative or other
appropriate means, that when such abuses occur within their territory and/or jurisdiction
those affected have access to effective remedy.

Effective remedies can be provided through State-based judicial (non-judicial) and non-State-
based grievance mechanisms. The following discussion examines each of these in turn.
 EXTENDING THE DUTIES TO PROTECT AND RESPECT HUMAN RIGHTS | 269

State-based Judicial Mechanisms

REPORT OF THE SPECIAL REPRESENTATIVE OF THE SECRETARY-GENERAL ON THE ISSUE

OF HUMAN RIGHTS AND TRANSNATIONAL CORPORATIONS AND OTHER BUSINESS
ENTERPRISES, JOHN RUGGIE, UN DOC. A/HRC/17/31

Annexe, Guiding Principles on Business and Human Rights: Implementing the United Nations
‘Protect, Respect and Remedy’ Framework

State-based Judicial Mechanisms

26. States should take appropriate steps to ensure the effectiveness of domestic judicial
mechanisms when addressing business-related human rights abuses, including considering ways
to reduce legal, practical and other relevant barriers that could lead to a denial of access to remedy.
Effective judicial mechanisms are unsurprisingly at the core of ensuring access to remedy.
The provision of justice must not be prevented by corruption of the judicial process.

Resolution adopted by the Human Rights Council on 30 June 2016

32/10. Business and human rights: improving accountability and access to remedy
. . .
Concerned at legal and practical barriers to remedies for victims of business-related
human rights abuses, which may leave those aggrieved without opportunity for effective
remedy, including through judicial and non-judicial avenues,
Expressing concern at reports of intimidation against victims, witnesses and their legal
representatives regarding cases of business-related human rights abuses, and emphasizing
the need to ensure their safety,
Reaffirming that, as part of their duty to protect against business-related human rights
abuses, States should take appropriate steps to ensure, through judicial, administrative,
legislative or other appropriate means, that when such abuses are committed within their
territory and/or jurisdiction, those affected have access to effective remedy,

State-based Non-judicial Mechanisms

REPORT OF THE SPECIAL REPRESENTATIVE OF THE SECRETARY-GENERAL ON THE ISSUE

OF HUMAN RIGHTS AND TRANSNATIONAL CORPORATIONS AND OTHER BUSINESS
ENTERPRISES, JOHN RUGGIE, UN DOC. A/HRC/17/31

Annexe, Guiding Principles on Business and Human Rights: Implementing the United Nations
‘Protect, Respect and Remedy’ Framework

State-based non-judicial mechanisms

27. States should provide effective and appropriate non-judicial grievance mechanisms, along-
side judicial mechanisms, as part of a comprehensive State-based system for the remedy of
business-related human rights abuse.

Resolution adopted by the Human Rights Council on 30 June 2016

32/10. Business and human rights: improving accountability and access to remedy

Recalling that States should provide effective and appropriate non-judicial grievance mechanisms
as part of a comprehensive State-based system of remedy for business-related human rights
abuses, and that such mechanisms play an essential role in complementing and supplementing
judicial mechanisms,
270 | EXTENDING THE DUTIES TO PROTECT AND RESPECT HUMAN RIGHTS

The National Actions Plans of UK, Norway and Colombia provide examples of existing State-
based non-judicial mechanisms. They also help to illustrate the types of initiatives that can be
developed to help States discharge their duties under international law to ensure that victims have
access to remedy.

UK

Good Business Implementing the UN Guiding Principles on Business and

Human Rights Updated May 2016, p 17

The UK sees its own provision of judicial remedy options as an important element in the
remedy mix. Non-judicial grievance mechanisms based on engagement between the parties
involved are also an important option. This can be done through an internal company grievance
procedure or through arbitration, adjudication, mediation, conciliation and negotiation. Such
services can be advised on or offered by independent dispute resolution companies, the
Ombudsman, the Citizens’ Advice Bureau, the Government regulator in certain sectors, or the
Advisory, Conciliation and Arbitration Service (ACAS).

Norway

Næringsliv og menneskerettigheter Nasjonal handlingsplan for oppfølging av

FNs veiledende prinsipper, 2015
The 27th principle concerns public non-judicial grievance mechanisms:
27. States should provide effective and appropriate non-judicial grievance mechanisms,
alongside judicial mechanisms, as part of a comprehensive State-based system for the remedy
of business-related human rights abuse.
Norway has a number of well-functioning institutions such as the Labour Inspection Authority,
the Ombudsman for Children, the Consumer Ombudsman, the Equality and Anti-discrimination
Ombudsman, the Norwegian Environment Agency and the Parliamentary Ombudsman for the
Public Administration. There are also complaints mechanisms in connection with the rights of
employees, children, women and men. For example, on the basis of the Environmental Information
Act, the Appeals Board for Environmental Information handles appeals concerning rejected
requests from private and public agencies for access to environmental information. The National
Contact Point provides information on the OECD Guidelines for Multinational Enterprises and the
UN Guiding Principles. The Contact Point also deals with individual cases independently of the
government. In line with the Guidelines, the parties to cases that come before the Contact Point
are expected to participate in good faith during the procedure.

Colombia

Plan Nacional de Acción sobre Derechos Humanos y Empresas

Action point 2.6 (p. 13):

The Ministry of Environment, jointly with the National Authority for Environmental Per-
mits, will strengthen the existence of respect for human rights requirements regarding
the Environmental Impact Assessment of companies, and the Business Social Risk Man-
agement and Human Rights Plans.

Action point 3.3 (p. 14):

The Ministry of Internal Affairs will propose the inclusion of the business and human
rights issue on the agenda of the National Committee for Human Rights Defenders, Social
and Community Leaders, as well as the Regional Committees for Guarantees, with the
 EXTENDING THE DUTIES TO PROTECT AND RESPECT HUMAN RIGHTS | 271

purpose of using them as meeting spaces to settle conflicts with impacts on human rights
caused by the business activity.

Action point 3.4 (p. 14):

Through the Comprehensive Conflict Prevention and Management System, the National
Government will create agreement and social talk mechanisms between the Government
and its several levels, the communities and the enterprises. The foregoing is intended to
create formal dialogue areas for actors with various interests; all of that as a means to
contribute to peacebuilding and respect for human rights in the territories. This action will
begin its execution once the system is implemented.

Action point 4.1 (p. 15):

The Government will strengthen the subscribing to these multi-actor initiatives: Guias
Colombia, Swiss Ethical Committee and the Mining-Energy Committee, as well as the
implementation of guides or the provided recommendations by such initiatives.

Action point 5.3 (p. 16):

Promote the implementation of the United Nations Guiding Principles and other
international standards on business and human rights by the trades and the enterprises
part thereof, so they may adopt human rights policies. Thus, during the first year of the
execution of this Plan, the Council to the President for Human Rights will convene high level
meetings with the trades to determine the inclusion goals in the multi-actor initiatives and
human rights performance follow-up mechanisms. These actions must be coordinated
with the entities of the Working Group, especially with the Ministry of Commerce, Industry
and Tourism and in cooperation with the Post-Conflict Directorate.

Non-State-based grievance mechanisms

The term multistakeholder initiative (MSI) refers to voluntary initiatives where two or more stake-
holders cooperate to address some area of sustainability, CSR, the environment and or human rights.
Such stakeholders include some combination of companies, industry associations, NGOs, trade
unions, government agencies, investors, academics and international organisations. Human Rights
Governance MSIs include three primary functions: legislative, executive and judicial. Baumann-
Pauly et al. note that when they work well, industry-specific, standards-based MSIs support these
functions by concretely defining human rights standards in a specific industry context (see Baumann-
Pauly, D., et al., ‘Defining and Implementing Human Rights Industry by Industry’ in D. Baumann-
Pauly and J. Nolan (eds) Business and Human Rights: From Principles to Practice, 2016, New York:
Routledge, p 107). MSIs also operationalise the standard into measurable benchmarks that allow for
independent and public assessment of a member company’s performance against the standard; and
establish processes for sanctioning non-compliance and providing access to remedy. The potential for
MSIs to contribute to providing remedies is explicitly recognised in GPs 28 and 30.

REPORT OF THE SPECIAL REPRESENTATIVE OF THE SECRETARY-GENERAL ON THE

ISSUE OF HUMAN RIGHTS AND TRANSNATIONAL CORPORATIONS AND OTHER
BUSINESS ENTERPRISES, JOHN RUGGIE, UN DOC. A/HRC/17/31

Annexe, Guiding Principles on Business and Human Rights: Implementing the United Nations
‘Protect, Respect and Remedy’ Framework

Non-state-based grievance mechanisms

28. States should consider ways to facilitate access to effective non-State-based grievance
mechanisms dealing with business-related human rights harms.
272 | EXTENDING THE DUTIES TO PROTECT AND RESPECT HUMAN RIGHTS

. . .
30. Industry, multi-stakeholder and other collaborative initiatives that are based on respect
for human rights-related standards should ensure that effective grievance mechanisms are
available.

One area where human rights are particularly at risk is with regard to private security service pro-
viders. Because private security service providers are non-State actors, they often operate in a legal
lacuna, outside of the usual oversight of State security services. Although the Montreaux Docu-
ment, which clarified governmental obligations vis-à vis private and security companies in times
of armed conflict, prior to 2009, there was little in the way of a regulatory framework targeting
private companies. The following case study provides an example of a MSI initiative with a built
in grievance mechanism.

Case Study: International Code of Conduct for Private Security Service Providers Association (ICoCA)
According to Buzatu, the initiative emerged in two distinct standard-setting phases: first, devel-
opment of the ICoC, which articulates human rights-compliant principles and standards for the
provision of private security services, as well as specific commitments by management to support
the implementation of the ICoC into a company’s operations and policies; and second, the devel-
opment of the ICoCA, or the framework for the multi-stakeholder governance and oversight body
tasked with overseeing the ICoC (see Buzatu, A.M., ‘The Emergence of the International Code of
Conduct for Private Security Service Providers’ in D. Baumann-Pauly and J. Nolan (eds), Business
and Human Rights: From Principles to Practice, 2016, New York: Routledge).

INTERNATIONAL CODE OF CONDUCT FOR PRIVATE SECURITY SERVICE PROVIDERS, 2010

14. This Code complements and does not replace the control exercised by Competent
Authorities, and does not limit or alter applicable international law or relevant national law.
The Code itself creates no legal obligations and no legal liabilities on the Signatory Companies,
beyond those which already exist under national or international law. Nothing in this Code shall
be interpreted as limiting or prejudicing in any way existing or developing rules of international
law.

E. GENERAL COMMITMENTS

16. Signatory Companies agree to operate in accordance with the principles contained in
this Code. Signatory Companies will require that their Personnel, and all subcontractors or
other parties carrying out Security Services under Signatory Company contracts, operate in
accordance with the principles contained in this Code.
. . .
20. Signatory Companies will not knowingly enter into contracts where performance
would directly and materially conflict with the principles of this Code, applicable national or
international law, or applicable local, regional and international human rights law, and are
not excused by any contractual obligation from complying with this Code. To the maximum
extent possible, Signatory Companies will interpret and perform contracts in a manner that is
consistent with this Code.
21. Signatory Companies will comply, and will require their Personnel to comply, with
applicable law which may include international humanitarian law, and human rights law as
imposed upon them by applicable national law, as well as all other applicable international and
national law. Signatory Companies will exercise due diligence to ensure compliance with the
law and with the principles contained in this Code, and will respect the human rights of persons
they come into contact with, including, the rights to freedom of expression, association, and
peaceful assembly and against arbitrary or unlawful interference with privacy or deprivation
of property.
. . .
 EXTENDING THE DUTIES TO PROTECT AND RESPECT HUMAN RIGHTS | 273

25. Signatory Companies will take reasonable steps to ensure that the goods and services
they provide are not used to violate human rights law or international humanitarian law, and
such goods and services are not derived from such violations.

Detention
33. Signatory Companies will only, and will require their Personnel will only, guard, transport,
or question detainees if: (a) the Company has been specifically contracted to do so by a state;
and (b) its Personnel are trained in the applicable national and international law. Signatory
Companies will, and will require that their Personnel, treat all detained persons humanely and
consistent with their status and protections under applicable human rights law or international
humanitarian law, including in particular prohibitions on torture or other cruel, inhuman or
degrading treatment or punishment.

The oversight mechanisms were adopted as the Articles of Association for the ICoCA, launched
in September 2013.

ICoCA, The Articles of Association, 2013

. . .
Article 12: Reporting, Monitoring and Assessing Performance

12.1 The Association shall be responsible for exercising oversight of Member companies’
performance under the Code, including through external monitoring, reporting and a
process to address alleged violations of the code.
12.2 The Board shall develop procedures for this Article based on the following elements and
submit them to the General Assembly for approval:

12.2.1 Using established human rights methodologies, the Secretariat shall gather and
receive information from public and other available sources on whether Member
companies are operating in compliance with the Code.
12.2.2 Member companies shall provide to the Association a written assessment of
their performance pursuant to a transparent set of criteria covered by necessary
confidentiality and nondisclosure arrangements.
12.2.3 The Executive Director may initiate a field based review, unless the Board decides
otherwise, (i) where the review of available information or a human rights risk
assessment has identified a need for further monitoring within an area of one
or more Member companies’ operations, or (ii) on request from a Member of
the Association. In each case such field base review shall be aimed at improving
performance or addressing specific compliance concerns.
12.2.4 The Secretariat shall review information gathered pursuant to Articles 12.2.1–12.2.3 to
identify compliance concerns, assess the human rights impacts of company operations,
and identify and analyse broader patterns in particular complex environments.
12.2.5 The Secretariat shall offer observations and engage in dialogue with Member
companies aimed at improving performance or addressing specific compliance
concerns. The Executive Director shall refer alleged violations of the Code to
the Board. The Executive Director shall report regularly to the Board on the
Secretariat’s activities pursuant to this Article.
12.2.6 The Board shall review performance and compliance issues referred by the
Executive Director or at its own initiative. The Board shall offer observations and
advice to Member companies aimed at improving performance or addressing
specific compliance concerns.
12.2.7 If the Board determines that corrective action is required to remedy non-
compliance with the Code, the Board shall request a Member company take
274 | EXTENDING THE DUTIES TO PROTECT AND RESPECT HUMAN RIGHTS

corrective action within a specific time period. Should a Member company fail to
take reasonable corrective action within the period specified by the Board, or fail
to act in good faith in accordance with these Articles, then the Board shall initiate
suspension proceedings in accordance with these Articles.
12.2.8 Member companies shall be expected to co-operate in good faith, consistent with
applicable contractual and legal requirements.
12.2.9 The Board shall implement necessary confidentiality and nondisclosure arrange-
ments related to its activities under this Article. Subject to these arrangements
and following consultations with relevant parties, the Board may issue a pub-
lic statement on the status or outcome of the Association’s review of a Member
company.
12.2.10 The Board shall ensure that the Association appropriately respects legal investi-
gations or proceedings and any rights or privileges attached to those investiga-
tions or proceedings in carrying out the functions of this Article, but the presence
of a legal investigation or proceeding will not necessarily of itself cause suspen-
sion of the functions of this Article.

12.3 The Association will report publicly, no less than annually, on its activities under this
article.
12.4 The Association shall serve as a central agency for, and will promote industry best
practices on, particular elements of the Code that will be available to companies.

In cases where the complainant alleges that the company’s grievance mechanisms does not offer
effective remedy, or is otherwise not compliant with the ICoC, the ICoCA Secretariat will review
the internal grievance process. According to Bazutu, this could have several follow-on effects,
including recommending other alternatives such as mediation, or offering the ‘good offices’ of
the ICoCA to help resolve complaints. The Board is also empowered to suspend or terminate a
company’s membership if it fails to act in good faith to remedy non-compliance with the ICoC,
including when it fails to offer effective remedy.
For some, the ICoCA marks a significant step forward, both in efforts to address the human
rights responsibilities of the private security industry, and in the wider development of MSIs that
seek to advance respect for international humanitarian law and human rights standards. Thus, some
suggest that this model can be useful to promote respect for international humanitarian law as a
supplement to other legal instruments, cannot make up for the absence or inadequacy of national or
international legislation. For others, the fact that the initiative is not a State enforcement mechanism
and therefore does not have the powers of arrest or to conduct criminal investigations remains an
issue. In 2017, a UN expert panel called for new international standards on private military and
security companies, a voluntary initiative that did not feature accountability or enforceable remedies
for victims (see Mateu, H.T., ‘PMSC and Human Rights: The International Boundaries of the
Sovereign Power of Coercion’ in M. Prandi et al., Companies in Conflict Situations: Building a Research
Network on Business, Conflicts and Human Rights, 2013, Institut Català Internacional per la Pau).

Discussion on the United Guiding Principles on Business and Human Rights

When Ruggie began his work as SRSG, there existed a range of approaches all attempting to regu-
late the human rights impacts of businesses. These included such initiatives as the United Nations
Global Compact, the Organization for Economic Co-operation and Development and a range of
International Labour Organisation standards.
There was, however, a ‘lack of an authoritative standard guiding the business and human
rights discussion’, and a ‘patchwork of uncoordinated schemes competing vigorously for adher-
ents, resources, legitimacy, and public notice’. Ruggie evaluated that what was needed was ‘a new
regulatory dynamic under which [. . .] governance systems become better aligned in relation to
business and human rights; add distinct value; compensate for one another’s weaknesses and play
 EXTENDING THE DUTIES TO PROTECT AND RESPECT HUMAN RIGHTS | 275

mutually reinforcing roles out of which cumulative change can evolve (see Ruggie, J.G., Just Busi-
ness: Multinational Corporations and Human Rights, 2013, New York: W. W. Norton, p 91).
One of the successes of the UNGP is that they provide an authoritative set of standards for
both business and States. To this end, different actors and organisations have attempted to support
or integrate various aspects of the UNGP into their operations. For instance, the OECD Guide-
lines on MNEs have incorporated the concept of human rights due diligence into a new chapter
on human rights (see box entitled UN Global Compact). The website on guidance for the United
Nations Global Compact was updated to refer to the UNGP, while the UN Office of the High
Commissioner for Human Rights has issued guidelines on the corporate responsibility to respect
and remedy. 

UN Global Compact
The UN Global Compact was announced by then UN Secretary-General Kofi Annan in
an address to the World Economic Forum on 31 January 1999, and was officially launched
at UN Headquarters in New York City on 26 July 2000. The United Nations Global
Compact is a non-binding United Nations pact to encourage businesses worldwide to
adopt sustainable and socially responsible policies, and to report on their implementa-
tion. The UN Global Compact is a principle-based framework for businesses, stating ten
principles in the areas of human rights, labour, the environment and anti-corruption.

Principle 1: Businesses should support and respect the protection of internationally

proclaimed human rights; and
Principle 2: make sure that they are not complicit in human rights abuses.
Principle 3: Businesses should uphold the freedom of association and the effective
recognition of the right to collective bargaining;
Principle 4: the elimination of all forms of forced and compulsory labour;
Principle 5: the effective abolition of child labour; and
Principle 6: the elimination of discrimination in respect of employment and
occupation.
Principle 7: Businesses should support a precautionary approach to environmental
challenges;
Principle 8: undertake initiatives to promote greater environmental responsibility;
and
Principle 9: encourage the development and diffusion of environmentally friendly
technologies.
Principle 10: Businesses should work against all forms of corruption, including
extortion and bribery. 

At the international level, the Principles have influenced the current design of International
Organization for Standardization (ISO) 26000. The International Finance Corporation (IFC) – a
sister organisation of the World Bank and member of the World Bank Group, which is the largest
global development institution focused exclusively on the private sector in developing countries –
has updated its Performance Standards making direct reference to Ruggie’s due diligence recom-
mendations. The International Bar Association (IBA) went so far as to issue official guidance on
what the UNGPs mean for law firms as businesses in their own right, and in their role as wise
counsel to clients, while Fédération Internationale de Football Association, the governing body of
international football, has endorsed the UNGPs. 
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The Organisation of Economic Cooperation and

Development
The Organisation of Economic Cooperation and Development is a trade organisation which
has also developed extensive provisions of corporate social responsibility. It has a more limited
membership of some 30 States drawn primarily from the ‘developed world’, primarily Western
Europe, North America and the Antipodes. Although considerably more limited in Member
States than the UN or the ILO, the importance in the OECD lies in the identity of its members –
primarily those States which are home to the largest multinational enterprises. Increased for-
eign investment through globalisation highlighted the potential inf luence of such enterprises,
thus in 1976 the OECD produced its first set of Guidelines for Multinational Enterprises. These
guidelines have been periodically reviewed, the most recent set date to May 2011.
Section IV:
States have the duty to protect human rights.
Enterprises should, within the framework of internationally recognised human rights, the
international human rights obligations of the countries in which they operate as well as relevant
domestic laws and regulations:

1 Respect human rights, which means they should avoid infringing on the human rights of oth-
ers and should address adverse human rights impacts with which they are involved.
2 Within the context of their own activities, avoid causing or contributing to adverse human
rights impacts and address such impacts when they occur.
3 Seek ways to prevent or mitigate adverse human rights impacts that are directly linked to
their business operations, products or services by a business relationship, even if they do
not contribute to those impacts.
4 Have a policy commitment to respect human rights.
5 Carry out human rights due diligence as appropriate to their size, the nature and context
of operations and the severity of the risks of adverse human rights impacts.
6 Provide for or co-operate through legitimate processes in the remediation of adverse
human rights impacts where they identify that they have caused or contributed to these
impacts. 

At the same time, the UNGP has invoked much debate and criticism. For instance, some
assess that in drafting the UNGP, Ruggie missed an opportunity to further human rights protec-
tions by not mandating extraterritorial regulatory obligations (Nolan, J., ‘Mapping the Movement:
The Business and Human Rights Regulatory Framework’ in D. Baumann-Pauly and J. Nolan
(eds), Business and Human Rights: From Principles to Practice, 2016, New York: Routledge). Oth-
ers argue that the language of the UNGP is too weak. For Justine Nolan, for instance, allowing
businesses too much leeway with terms such as ‘should’ in place of ‘shall’ (Nolan, J., ‘Refining
the Rules of the Game: The Corporate Responsibility to Respect Human Rights’ (2014) 30.78
Utrecht Journal of International and European Law).
Thus, many, like Michael Posner, view the UNGP as a foundation upon which to build on
in pursuance of greater corporate social responsibility:

Posner, M. ‘Business & Human Rights: A Commentary from the Inside’ (2016) 29.4
Accounting, Auditing & Accountability Journal 710

The Guiding Principles must be our foundation but must develop practical application in having
industry-specific content and substantive standards. .  .  . We need to define responsibility to
 EXTENDING THE DUTIES TO PROTECT AND RESPECT HUMAN RIGHTS | 277

respect in the extractive industries, in the manufacturing sector. We need to come up with
benchmarks, key performance indicators. It is not acceptable for every company to define these
individually. No more pilot projects, no more go it alone; there has to be a collective response
in each industry. This challenges companies because they seek to avoid risk to reputation or
additional resources.

Towards a Business and Human Rights Treaty?

One of the results of the differing and contradictory views on the UNGP has been a move
towards a business and human rights treaty. In June 2014 at its 26th session, the UN Human
Rights Council in Geneva adopted a resolution drafted by Ecuador and South Africa. An open-
ended intergovernmental working group with the mandate to elaborate an international legally
binding instrument on Transnational Corporations and Other Business Enterprises with respect
to human rights, chaired by Ecuador, was subsequently established. The first session of the open-
ended intergovernmental working group (IGWG) took place from 6 to 10 July 2015 in Geneva.
A second session was held in October 2016, and a third session in October 2017. Elements for the
draft legally binding instrument were issued by the Chair in September 2017, and a Zero Draft
(followed by its draft Optional Protocol) was presented in July 2018. A fourth IGWG session was
held in Geneva in October 2018.

26/9 Elaboration of an international legally binding instrument on transnational corporations

and other business enterprises with respect to human rights

Bearing in mind the progressive development of this issue, 1. Decides to establish an open-
ended intergovernmental working group on transnational corporations and other business
enterprises with respect to human rights; whose mandate shall be to elaborate an international
legally binding instrument to regulate, in international human rights law, the activities of
transnational corporations and other business enterprises.

The drafting of the Treaty remains a work in progress. At the time of writing, the UNGP remains the
primary normative framework on the issue of business and human rights. The extent to which they
succeed in curbing human rights violations caused by businesses remains to be seen.

8.4 Educators, lawyers and individuals

The duty to promote and respect human rights arguably extends beyond the remit of States,
NGOs and business to individuals themselves. While individuals are the primary beneficiary of
human rights, those benefits bring with them duties.

UNIVERSAL DECLARATION OF HUMAN RIGHTS Article 29(1)

Everyone has duties to the community in which alone the free and full development of his
personality is possible.

A general obligation to encourage human rights education may also be derived from the General
Assembly’s Declaration on the Rights and Responsibility of Individuals, Groups and Organs of
Society to Promote and Protect Universally Recognised Human Rights and Fundamental Free-
doms. As previously mentioned, this declaration reinforces the rights of human rights defenders,
recognising the role of every person and group in advancing the cause of global human rights.
This declaration is considered in more detail later in Chapter 10 on human rights defenders.
278 | EXTENDING THE DUTIES TO PROTECT AND RESPECT HUMAN RIGHTS

GENERAL ASSEMBLY’S DECLARATION ON THE RIGHTS AND RESPONSIBILITY OF INDIVIDUALS,

GROUPS AND ORGANS OF SOCIETY TO PROMOTE AND PROTECT UNIVERSALLY RECOGNISED
HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS RESOLUTION 53/144(1999)

Article 16

Individuals, non-governmental organizations and relevant institutions have an important role

to play in contributing to making the public more aware of questions relating to all human
rights and fundamental freedoms through activities such as education, training and research
in these areas to strengthen further, inter alia, understanding, tolerance, peace and friendly
relations among nations and among all racial and religious groups, bearing in mind the various
backgrounds of the societies and communities in which they carry out their activities.
. . .

Article 18

1 Everyone has duties towards and within the community, in which alone the free and full
development of his or her personality is possible.
2 Individuals, groups, institutions and non-governmental organizations have an important
role to play and a responsibility in safeguarding democracy, promoting human rights and
fundamental freedoms and contributing to the promotion and advancement of democratic
societies, institutions and processes.
3 Individuals, groups, institutions and non-governmental organizations also have an
important role and a responsibility in contributing, as appropriate, to the promotion of the
right of everyone to a social and international order in which the rights and freedoms set
forth in the Universal Declaration of Human Rights and other human rights instruments
can be fully realized.

This is obviously of particular importance to lawyers and law enforcement agents. Substantial
guidelines and technical support is available from the United Nations to ensure that law enforce-
ment personnel are familiar with the basics of international human rights and their practices and
policies conform to the salient standards. For example, consider the United Nations guidelines for
law enforcement officials.

CODE OF CONDUCT FOR LAW ENFORCEMENT OFFICIALS, GENERAL ASSEMBLY

RESOLUTION 34/169 (1979)

Article 1

Law enforcement officials shall at all times fulfil the duty imposed upon them by law, by serving
the community and by protecting all persons against illegal acts, consistent with the high
degree of responsibility required by their profession.

Article 2

In the performance of their duty, law enforcement officials shall respect and protect human
dignity and maintain and uphold the human rights of all persons.

Obviously, the human rights alluded to include provisions of the basic international (and indeed
regional) instruments. Inevitably, it is necessary for all law enforcement officials to be aware of the
provisions and accordingly their impact and effect on the scope of their work. Elements of human
rights training thus have to be incorporated inter alia into police training. Some of the issues con-
cerning the treatment of detainees are discussed in more detail in Chapter 12. Note that such a
requirement has a precedent: the Geneva Conventions on the conduct of hostilities and protection
of injured armed forces and the civilian population must be taught to all members of armed forces
within each and every State.
 EXTENDING THE DUTIES TO PROTECT AND RESPECT HUMAN RIGHTS | 279

For a State to discharge its positive obligation under international human rights law, all offi-
cials must be aware of the relevant international standards.

Question
Consider mechanisms by which States can discharge this positive obligation and ensure the practice of law
enforcement officials conforms to the international standard.

Similarly, lawyers require knowledge of human rights and the mechanisms for their enforcement.
Through lawyers pushing the boundaries of international human rights, the parameters of protec-
tion will become clear. Consider the progress in the United Kingdom: England has a common law
tradition with a strong civil liberties flavour, yet since the introduction of the Human Rights Act
1998 (extracted Chapter 3, Section5 3.5.4) lawyers have embraced human rights and fundamental
freedoms with haste, resulting in a comprehensive jurisprudence in but a few years. More gener-
ally, if lawyers are unaware of the opportunities available at the international and regional levels to
enforce and implement human rights, progress towards securing and realising rights will be slow.

8.4.1 Education
Education is a right recognised by international law. It appears in several treaties:

UNIVERSAL DECLARATION 1948, Article 26

Everyone has the right to education. Education shall be free, at least in the elementary and
fundamental stages. Elementary education shall be compulsory. Technical and professional
education shall be made generally available and higher education shall be equally accessible
to all on the basis of merit.

UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD 1989

Article 28

1 States Parties recognize the right of the child to education, and with a view to achieving
this right progressively and on the basis of equal opportunity, they shall, in particular:

(a) Make primary education compulsory and available free to all;

(b) Encourage the development of different forms of secondary education, including
general and vocational education, make them available and accessible to every
child, and take appropriate measures such as the introduction of free education and
offering financial assistance in case of need;
(c) Make higher education accessible to all on the basis of capacity by every appropriate
means;
(d) Make educational and vocational information and guidance available and accessible
to all children;
(e) Take measures to encourage regular attendance at schools and the reduction of
drop-out rates.

2 States Parties shall take all appropriate measures to ensure that school discipline is
administered in a manner consistent with the child’s human dignity and in conformity
with the present Convention.
3 States Parties shall promote and encourage international cooperation in matters relating
to education, in particular with a view to contributing to the elimination of ignorance and
illiteracy throughout the world and facilitating access to scientific and technical knowledge
and modern teaching methods. In this regard, particular account shall be taken of the
needs of developing countries.
280 | EXTENDING THE DUTIES TO PROTECT AND RESPECT HUMAN RIGHTS

Obviously these provisions impose obligations on the State. However, the right to education also
imposes obligations as to the nature of the education provided. ‘Education involves much more
than the transmission of knowledge and skills’, as the then Special Rapporteur commented in a
report on her Mission to the United States of America (UN Doc. E/CN.4/2002/60/Add. 1, para
76). Note therefore the international espoused purpose of education.

UNIVERSAL DECLARATION 1948, Article 26(2)

Education shall be directed to the full development of the human personality and to the
strengthening of respect for human rights and fundamental freedoms. It shall promote
understanding, tolerance and friendship among all nations, racial or religious groups, and
shall further the activities of the United Nations for the maintenance of peace.

VIENNA DECLARATION OF THE WORLD CONFERENCE ON HUMAN RIGHTS 1993, para. 33

The World Conference on Human Rights reaffirms that States are duty-bound, as stipulated
in the Universal Declaration of Human Rights and the International Covenant on Economic,
Social and Cultural Rights and in other international human rights instruments, to ensure that
education is aimed at strengthening the respect of human rights and fundamental freedoms. The
World Conference on Human Rights emphasizes the importance of incorporating the subject of
human rights education programmes and calls upon States to do so. Education should promote
understanding, tolerance, peace and friendly relations between the nations and all racial or
religious groups and encourage the development of United Nations activities in pursuance
of these objectives. Therefore, education on human rights and the dissemination of proper
information, both theoretical and practical, play an important role in the promotion and respect
of human rights with regard to all individuals without distinction of any kind such as race, sex,
language or religion, and this should be integrated in the education policies at the national as well
as international levels. The World Conference on Human Rights notes that resource constraints
and institutional inadequacies may impede the immediate realization of these objectives.

Note in particular the link to international peace and security. Arguably, everyone has a duty to
respect and preserve international peace and security. By making this link, the United Nations
avoids complicated issues over jurisdictional competence (or at least attempts to). Comprehensive
information on the obligation to provide education and on the nature of education permeates many
international documents. Key provisions are found in the Convention on the Rights of the Child.

UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD 1989

Article 29

1 States Parties agree that the education of the child shall be directed to:

(a) The development of the child’s personality, talents and mental and physical abilities
to their fullest potential;
(b) The development of respect for human rights and fundamental freedoms, and for the
principles enshrined in the Charter of the United Nations;
(c) The development of respect for the child’s parents, his or her own cultural identity,
language and values, for the national values of the country in which the child is living,
the country from which he or she may originate, and for civilizations different from
his or her own;
(d) The preparation of the child for responsible life in a free society, in the spirit of
understanding, peace, tolerance, equality of sexes, and friendship among all peoples,
ethnic, national and religious groups and persons of indigenous origin;
(e) The development of respect for the natural environment.
 EXTENDING THE DUTIES TO PROTECT AND RESPECT HUMAN RIGHTS | 281

2 No part of the present article or article 28 shall be construed so as to interfere with the
liberty of individuals and bodies to establish and direct educational institutions, subject
always to the observance of the principle set forth in paragraph 1 of the present article
and to the requirements that the education given in such institutions shall conform to
such minimum standards as may be laid down by the State.

Question
To what extent do resource implications (Vienna Declaration) limit the nature of education as opposed to the
basic provision of education?

Arguably education holds the key to the future of the human rights movement which has charac-
terised international development in the last 50 years. Strong parallels can be drawn between the
right to education and the development of respect for human dignity; the involvement of human
rights in the equation strengthens this connection.
Having compared and contrasted the various provisions on education, Professor Manfred
Nowak extracts four principal goals of education in accordance with international human rights.

Nowak, M., ‘The Right to Education’ in A. Eide, K. Krause and A. Rosas (eds),
Economic, Social and Cultural Rights, 2nd edn, 2001, Dordrecht: Martinus
Nijhoff, pp 245–71 at p 251

Notwithstanding all the controversies about the universality of human rights preceding the
Vienna World Conference on Human Rights, one may conclude that there exists today at least a
fairly broad universal consensus on the major aims and objectives of the right to education: a) to
enable a human being freely to develop his or her personality and dignity; b) to enable a human
being to actively participate in a free society in the spirit of mutual tolerance and respect for
other civilisations, cultures and religions; c) to develop respect for one’s parents, the national
values of one’s country and for the natural environment; and d) to develop respect for human
rights, fundamental freedoms and the maintenance of peace. Education is not just directed
at children. Children obviously benefit from compulsory and free primary education and an
evolving right to free education at subsequent levels. (Note the potential problem of university
tuition fees.) Education extends to tertiary level (university) and beyond into community
education and lifelong learning. As discussion enters the realm of adult learning (including
universities in this), there is clearly an element of individual responsibility It is not simply the
State discharging an obligation, but rather an individual seeking educational provision. In this
respect human rights education is most successful: teaching those who want to learn is easier
than teaching those obliged to learn. However, this concept also places an onus on universities
and further education centres to ensure that appropriate quality of education is provided.

UNESCO WORLD DECLARATION ON HIGHER EDUCATION FOR THE

TWENTY-FIRST CENTURY 1998

Article 1 – Mission to Educate, to Train and to Undertake Research

We affirm that the core missions and values of higher education, in particular the mission to
contribute to the sustainable development and improvement of society as a whole, should be
preserved, reinforced and further expanded, namely, to:

(a) educate highly qualified graduates and responsible citizens able to meet the needs of all
sectors of human activity, by offering relevant qualifications, including professional train-
ing, which combine high-level knowledge and skills, using courses and content continu-
ally tailored to the present and future needs of society;
282 | EXTENDING THE DUTIES TO PROTECT AND RESPECT HUMAN RIGHTS

(b) provide opportunities (espace ouvert) for higher learning and for learning throughout
life, giving to learners an optimal range of choice and a flexibility of entry and exit points
within the system, as well as an opportunity for individual development and social
mobility in order to educate for citizenship and for active participation in society, with a
worldwide vision, for endogenous capacity-building, and for the consolidation of human
rights, sustainable development, democracy and peace, in a context of justice;
(c) advance, create and disseminate knowledge through research and provide, as part of
its service to the community, relevant expertise to assist societies in cultural, social and
economic development, promoting and developing scientific and technological research
as well as research in the social sciences, the humanities and the creative arts;
(d) help understand, interpret, preserve, enhance, promote and disseminate national and
regional, international and historic cultures, in a context of cultural pluralism and diversity;
(e) help protect and enhance societal values by training young people in the values which form
the basis of democratic citizenship and by providing critical and detached perspectives
to assist in the discussion of strategic options and the reinforcement of humanistic
perspectives;
(f) contribute to the development and improvement of education at all levels, including
through the training of teachers.

Similarly, within Europe, the European Union and Council of Europe promulgate education
grounded in cross-cultural democratic values. European bodies are particularly concerned with
developing plurilingual skills and historical and cultural understanding. The work of the OSCE
also impinges on this (as part of its Human Dimension). European integration and the harmonious
coexistence of many small States is aided by developing appropriate education strategies under-
pinned by mutual tolerance and enhanced understanding of interrelated histories and cultural dif-
ferences (Recommendation Rec (2000) 24 of the Committee of Ministers on the Development
of European Studies for Democratic Citizenship).
The United Nations concluded its Decade for Human Rights Education in December 2004
and launched a World Programme for Human Rights Education. The rationale underpinning
this initiative was partly the need to develop awareness of human rights. Generating an aware-
ness of human rights clearly empowers individuals to call their State to account for violations and
effects, over time, a cultural shift towards promotion and respect of norms of international human
rights law. 2009 was the International Year of Human Rights Learning. As noted previously, the
UN Declaration on Human Rights Education and Training 2011 adds further weight to these
initiatives.
Perhaps that is the final frontier for human rights – creating an environment in which all
human beings can and do learn of their ‘birthright’ of human rights. With knowledge comes
empowerment (as the Millennium Declaration and multiple United Nations declarations enforce).
With empowerment comes the possibility of grass-roots activism and non-governmental organisa-
tions influencing State authorities. Thereafter, consumerism ethics can influence global business
and corporations themselves may elect to acknowledge, at least in part, basic human rights stan-
dards. All of the foregoing should help to affect a cultural shift towards respect for human rights.
There are many problems with individuals passively waiting for the State to conform to interna-
tional and regional norms. There is a limit to the power of international and regional organisations
as regards enforcement of international human rights (see Chapters 4, 5, 6 and 7). Accordingly,
it is perhaps reasonable to extend to non-State actors (individuals, non-governmental organisa-
tions and multinational corporations) the opportunity to embrace, claim and develop international
human rights. They can best bring a State to account nationally and, if applicable (see Chapters 6
and 7), internationally. If the international and regional systems along with States cannot be relied
on to secure human rights, alternative avenues of reinforcing the message of human rights must
be employed.
 EXTENDING THE DUTIES TO PROTECT AND RESPECT HUMAN RIGHTS | 283

Further reading
Alfredsson, G., ‘The Right to Human Rights Education’ in A. Eide, K. Krause and A. Rosas (eds),
Economic, Social and Cultural Rights, 2nd edn, 2001, Dordrecht: Martinus Nijhoff, pp 273–288.
Alston, P. (ed.), Non-State Actors and Human Rights, 2005, Oxford: OUP.
Baumann-Pauly, D., and Nolan, J., Business and Human Rights: From Principles to Practice, 2016,
New York: Routledge.
Baxi, U., ‘Human Rights Education: the Promise of the Third Millennium’ in G. Andreopoulos and
R. Claude (eds), Human Rights Education for the Twenty-first Century, 1997, Philadelphia: Uni-
versity of Pennsylvania Press.
Baxi, U., ‘Human Rights Education’ in R.K.M. Smith and C. van den Anker (eds), The Essentials of
Human Rights, 2005, London: Hodder Arnold, pp 159–162.
Bernaz, N., Business and Human Rights: History, Law and Policy – Bridging the Accountability Gap,
2017, London, New York: Routledge.
Bilchitz, D., ‘The Necessity for a Business and Human Rights Treaty’ (2014) 1.1 Business and
Human Rights Journal 203–227.
Blowfield, M., and Murray, A., Corporate Responsibility, 2nd edn, 2011, Oxford: OUP.
Breen, C., ‘The Role of NGOs in the Formulation of and Compliance with the Optional Protocol to
the Convention on the Rights of the Child on Involvement of Children in Armed Conflict’ (2003)
25.2 Human Rights Quarterly 453.
Carey, H., and Richmond, O., Mitigating Conflict: The Role of NGOs, 2003, London: Frank Cass.
Cassell, D., and Ramasastry, A., ‘White Paper: Options for a Treaty on Business and Human Rights’
(2016) 6.1 (Article 4) Notre Dame Journal of International & Comparative Law 1–51.
Crane, A., et al. (eds), The Oxford Handbook of Corporate Social Responsibility, 2008, Oxford: OUP.
Crick, B., et al. Education for Citizenship and the Teaching of Democracy in Schools, Final report of the
Advisory Group on Citizenship, 1998, London: QCA.
Deva, S., Regulating Corporate Human Rights Violations: Humanizing Business, 2012, Oxon: Routledge.
Deva, S., and Bilchitz, D. (eds), Human Rights Obligations of Business: Beyond the Corporate Respon-
sibility to Respect?, 2013, Cambridge: CUP.
Kuper, A., Global Responsibilities: Who Must Deliver on Human Rights, 2005, London: Taylor and Francis.
Lagoutte, S., ‘The UN Guiding Principles on Business and Human Rights: A Confusing ‘Smart Mix’
of Soft and Hard International Human Rights Law’ in S. Lagoutte, T. Gammeltoft-Hansen and
J. Cerone (eds), Tracing the Roles of Soft Law in Human Rights. Oxford Scholarship Online, 2017.
Mares, R. (ed.), The UN Guiding Principles on Business and Human Rights – Foundations and Imple-
mentation, 2012, Leiden, Boston: Martinus Nijhoff Publishers.
Muntarbhorn, V., ‘Education for Human Rights’ in J. Symonides (ed.), Human Rights: New Dimen-
sions and Challenges, 1998, Aldershot: Ashgate/Dartmouth/UNESCO, pp 281–301.
Murray, R., and Wheatley, S., ‘Groups and the African Charter on Human and Peoples’ Rights’
(2003) 25.1 Human Rights Quarterly 213.
Nowak, M., ‘The Right to Education’ in A. Eide, K. Krause and A. Rosas (eds), Economic, Social and
Cultural Rights, 2nd edn, 2001, Dordrecht: Martinus Nijhoff, pp 245–271.
Nowak, M., ‘Prioritising Human Rights Education and Training’ (2004) 3 European Human Rights
Law Review 235.
O’Brien, C.M., and Dhanarajan, S., ‘The Corporate Responsibility to Respect Human Rights: A Sta-
tus Review’ (2016) 29.4 Accounting, Auditing & Accountability Journal 542.
Pasternak, S., ‘The International Legal Obligation to Teach Worldism in US Classrooms’ (1999) 10
Indiana International and Comparative Law Review 51.
Peterson, T.M., Murdie, A., and Asal, V., ‘Human Rights, NGO Shaming and the Exports of Abusive
States’ (July 2018) 48.3 British Journal of Political Science 767–778.
Poullaos, I., ‘The Nature of the Beast: Using the Alien Tort Claims Act to Combat International
Human Rights Violations’ (2002) 80 Washington University Law Quarterly 327.
284 | EXTENDING THE DUTIES TO PROTECT AND RESPECT HUMAN RIGHTS

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bridge: CUP.
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Norton.
Simons, P., and Macklin, A., The Governance Gap: Extractive Industries, Human Rights, and the Home
State Advantage (Routledge Studies in Governance and Change in the Global Era), 2014, Lon-
don: Routledge.
Steiner, H., ‘The University’s Critical Role in the Human Rights Movement’ (2002) 15 Harvard
Human Rights Journal 317.
Tomasevski, K., Human Rights in Education as Prerequisite for Human Rights Education, 2001, Right
to Education Primers 4, Lund: Raoul Wallenberg Institute.
Tomasevski, K., Report on the Right to Education by the Special Rapporteur, 2004, UN Doc. E/
CN.4/2004/45.
UNESCO, World Declaration on Higher Education for the Twenty-first Century 1998: Vision and Action,
1998, Paris: UNESCO.
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Human Rights Programme: A Handbook for Civil Society, 2008, Geneva: OHCHR.
United Nations, Plan of Action for the United Nations Decade for Human Rights Education 1995–2004:
Human Rights Education – Lessons for Life (1996), UN. Doc. A/51/506/Add.1, Appendix, 12
December 1996.
Van Ho, T.L., ‘Transnational Civil and Criminal Litigation’ in S. Michalowski (ed.), Corporate Account-
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International Affairs 493.
Waldron, F., and Ruane, B. (eds), Human Rights Education – Reflections on Theory and Practice, 2010,
Dublin: Liffey Press.
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Rienner.

Websites
www.unglobalcompact.org: The United Nations’ Global Compact
https://www.ohchr.org/Documents/Publications/BusinessHRen.pdf: Office of the High Commis-
sioner for Human Rights: Business and Human Rights: A Progress Report
www.ilo.org: International Labour Organization
www.oecd.org: Organisation for Economic Co-operation and Development
www.amnesty.org.uk/business: Amnesty International UK Business Group
www.right-to-education.org: the website established by the former United Nations Rapporteur on
education, Katarina Tomasevski, and now maintained by the current rapporteur
www.unesco.org: UNESCO’s portal with various instruments on education
https://europa.eu/european-union/index_en: The European Union’s portal with links to its social
policy and law provisions
www.business-humanrights.org: Business and Human Rights Resource Centre
https://www.ohchr.org/EN/Issues/Business/Forum/Pages/ForumonBusinessandHumanRights.
aspx: United Nations Forum on Business and Human Rights
https://sdghub.com: SDG Business Hub
Chapter 9

Children 

Chapter contents

9.1 Children as humans 286

9.2 Tabulating children’s rights 294
9.3 The United Nations Convention on the
Rights of the Child 298
9.4 Governing principles 300
9.5 Regional instruments 320
286 | CHILDREN 

This chapter, and those which follow, examine the protection accorded by international human
rights to specific groups of individuals. The first such group is one upon which the global com-
munity seems to achieve remarkable consensus – children. This chapter will look at:

• Why children are especially vulnerable.

• Linked human rights, codependence on women’s rights.
• The UN Convention on the Rights of the Child.
• Key principles underpinning the Children’s Convention.

VIENNA DECLARATION AND PROGRAMME OF ACTION Article 21

The World Conference on Human Rights, welcoming the early ratification of the Convention on
the Rights of the Child by a large number of States and noting the recognition of the human
rights of children in the World Declaration on the Survival, Protection and Development of
Children and Plan of Action adopted by the World Summit for Children, urges universal
ratification of the Convention by 1995 and its effective implementation by States Parties through
the adoption of all the necessary legislative, administrative and other measures and the
allocation to the maximum extent of the available resources. In all actions concerning children,
non-discrimination and the best interest of the child should be primary considerations and the
views of the child given due weight. National and international mechanisms and programmes
should be strengthened for the defence and protection of children, in particular, the girl-child,
abandoned children, street children, economically and sexually exploited children, including
through child pornography, child prostitution or sale of organs, children victims of diseases
including acquired immunodeficiency syndrome, refugee and displaced children, children in
detention, children in armed conflict, as well as children victims of famine and drought and
other emergencies. International cooperation and solidarity should be promoted to support the
implementation of the Convention and the rights of the child should be a priority in the United
Nations system-wide action on human rights.
The World Conference on Human Rights also stresses that the child for the full and
harmonious development of his or her personality should grow up in a family environment
which accordingly merits broader protection.

In the words of the 1924 Geneva Declaration on the Rights of the Child, mankind owes to the child
the best it has to give. Ninety-five years later, the sentiment articulated by the Assembly of the League
of Nations still echoes true. This chapter examines the rights of children, tracing the reasoning behind
developing a distinct set of rights for them, then considers the nature and scope of those rights.

9.1 Children as humans

For children, recognition of their human rights is a two-part process: first, recognition that chil-
dren are entitled to human rights as their own independent rights (not as the property of their
guardians), and second, recognition that children require additional protection, protection which
the international community has now articulated. The 1924 Geneva Declaration on the Rights of
the Child acknowledged the need for protection of children, but stopped short of granting them
rights. As a declaration, there was of course no issue of enforcement against the State. In the twen-
tieth century, many States still viewed children as part of their parents – there was little recognition
of children enjoying their own legal, political and personal status.
The Geneva Declaration is thus perhaps best viewed as a statement of principle. As the years
and this chapter progresses, more rights are added and the rights themselves are further elaborated.
 CHILDREN  | 287

GENEVA DECLARATION OF THE RIGHTS OF THE CHILD OF 1924, adopted

26 September 1924, League of Nations OJ Spec. Supp. 21 at 43 (1924)

By the present Declaration of the Rights of the Child, commonly known as ‘Declaration of
Geneva’, men and women of all nations, recognizing that mankind owes to the Child the best
that it has to give, declare and accept it as their duty that, beyond and above all considerations
of race, nationality or creed:

(1) The child must be given the means requisite for its normal development, both materially
and spiritually;
(2) The child that is hungry must be fed; the child that is sick must be nursed; the child that
is backward must be helped; the delinquent child must be reclaimed; and the orphan and
the waif must be sheltered and succoured;
(3) The child must be the first to receive relief in times of distress;
(4) The child must be put in a position to earn a livelihood, and must be protected against
every form of exploitation;
(5) The child must be brought up in the consciousness that its talents must be devoted to the
service of fellow men.

Question
To what extent were these obligations realisable by States in the inter-war period? To what extent does the
declaration recognise that children are entitled to ‘rights’?

The Declaration was subsequently endorsed by the United Nations, though eventually children
were accorded their own charter of rights in the form of the United Nations Convention on the
Rights of the Child. Under the auspices of the International Labour Organisation, further protec-
tion for children was developed, with conventions concerning night work and types of employ-
ment to which children could be subjected. Internationally there was no comparable statement
(to the Geneva Declaration) on general human rights. This was possibly a step too far for the
international community at that time.

Question
To what extent has the content of the Declaration lasted the test of time? Are similar rights found in the United
Nations Convention on the Rights of the Child?

Children are entitled of course to the full range of international human rights and fundamental
freedoms which are the birthright of all. Age is not a barrier to enjoyment of human rights though
Corporal punishment, education and children during conflict are examples of course some rights
do not extend to children: the right to marry and the right to vote are two such examples. They
are, as Chapter 2 indicated, nevertheless inalienable rights. However, children are deemed par-
ticularly deserving of additional support and, unlike some of the groups discussed in subsequent
chapters, there is almost universal consensus on this. Even from the pre-existing human rights
monitoring bodies, jurisprudence on children’s issues and rights has emerged. Other examples
relate to education and legal status. Perhaps the reticence of the international community in rec-
ognising children as rights holders distinct from their parents or guardians is a failure. However,
since the United Nations Convention on the Rights of the Child was agreed (1989) consider-
able advances have been made. Nevertheless all children remain beneficiaries of rights enshrined
in all other general international human rights treaties and many more specific treaties (e.g. girls
benefit from the provisions of the conventions on women’s rights). This extends the opportuni-
ties for children seeking to examine their rights. For example, it may be appropriate to complain
288 | CHILDREN 

to the European Court of Human Rights rather than a UN treaty monitoring body in respect of
a specific right. The treaty monitoring bodies frequently make reference to children as specific
rights holders when considering State reports. Moreover, data on children’s development is often
requested, not least in respect of the sustainable development goals.

9.1.1 Why separate rights?

Inherently vulnerable for physiological reasons, children depend on others for their survival in a
manner not matched by any other groups which have been accorded discrete protection (refugees,
women, migrant workers, prisoners, etc.). Young infants, for example, are unable to feed them-
selves and thus depend on others for essential nourishment and thus their survival. According to
Piaget (a Swiss child development expert), children are unable to see things beyond their own per-
spective up until the age of five when they start to decentre. Therefore, children have no concept
of the autonomy of others and thus they depend on others to protect them.
Their sense of right and wrong develops from around seven years (according to Freud) and
thus children require guidance up to and indeed through this stage.
Much of the international rhetoric focuses on the fact that children are the adults of the
future. A somewhat idealistic and altruistic stance thus permeates international children’s rights as
the following preambular statements demonstrate.

DECLARATION OF THE RIGHTS OF THE CHILD, GA Res. 1386 (XIV), 14 UN GAOR Supp.
(No. 16) at 19, UN Doc. A/4354 (1959), Preamble

Whereas the peoples of the United Nations have, in the Charter, reaffirmed their faith
in fundamental human rights and in the dignity and worth of the human person, and have
determined to promote social progress and better standards of life in larger freedom.
Whereas the United Nations has, in the Universal Declaration of Human Rights, proclaimed
that everyone is entitled to all the rights and freedoms set forth therein, 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.
Whereas the child, by reason of his physical and mental immaturity, needs special
safeguards and care, including appropriate legal protection, before as well as after birth.
Whereas the need for such special safeguards has been stated in the Geneva Declaration
of the Rights of the Child of 1924, and recognized in the Universal Declaration of Human Rights
and in the statutes of specialized agencies and international organizations concerned with the
welfare of children.
Whereas mankind owes to the child the best it has to give.

UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD 1989, Preamble

The States Parties to the present Convention,

. . .
Recalling that, in the Universal Declaration of Human Rights, the United Nations has
proclaimed that childhood is entitled to special care and assistance,
Convinced that the family, as the fundamental group of society and the natural environment
for the growth and well-being of all its members and particularly children, should be afforded
the necessary protection and assistance so that it can fully assume its responsibilities within
the community,
Recognizing that the child, for the full and harmonious development of his or her
personality, should grow up in a family environment, in an atmosphere of happiness, love and
understanding,
 CHILDREN  | 289

Considering that the child should be fully prepared to live an individual life in society, and
brought up in the spirit of the ideals proclaimed in the Charter of the United Nations, and in
particular in the spirit of peace, dignity, tolerance, freedom, equality and solidarity,
Bearing in mind that the need to extend particular care to the child has been stated in the
Geneva Declaration of the Rights of the Child of 1924 and in the Declaration of the Rights of the
Child adopted by the General Assembly on 20 November 1959 and recognized in the Universal
Declaration of Human Rights, in the International Covenant on Civil and Political Rights (in
particular in articles 23 and 24), in the International Covenant on Economic, Social and Cultural
Rights (in particular in article 10) and in the statutes and relevant instruments of specialized
agencies and international organizations concerned with the welfare of children,
Bearing in mind that, as indicated in the Declaration of the Rights of the Child, ‘the child,
by reason of his physical and mental immaturity, needs special safeguards and care, including
appropriate legal protection, before as well as after birth’,
. . .
Recognizing that, in all countries in the world, there are children living in exceptionally
difficult conditions, and that such children need special consideration,
Taking due account of the importance of the traditions and cultural values of each people
for the protection and harmonious development of the child,
Recognizing the importance of international co-operation for improving the living
conditions of children in every country, in particular in the developing countries.

AFRICAN CHARTER ON THE RIGHTS AND WELFARE OF THE CHILD,

OAU Doc. CAB/LEG/24.9/49 (1990)

PREAMBLE

The African Member States of the Organization of African Unity, Parties to the present

Charter entitled ‘African Charter on the Rights and Welfare of the Child’,
. . .

NOTING WITH CONCERN that the situation of most African children, remains critical due to the
unique factors of their socio-economic, cultural, traditional and developmental circumstances,
natural disasters, armed conflicts, exploitation and hunger, and on account of the child’s
physical and mental immaturity he/she needs special safeguards and care,

RECOGNIZING that the child occupies a unique and privileged position in the African society
and that for the full and harmonious development of his personality the child should grow up in
a family environment in an atmosphere of happiness, love and understanding,

RECOGNIZING that the child, due to the needs of his physical and mental development requires
particular care with regard to health, physical, mental, moral and social development, and
requires legal protection in conditions of freedom, dignity and security,

TAKING INTO CONSIDERATION the virtues of their cultural heritage, historical background and
the values of the African civilization which should inspire and characterize their reflection on
the concept of the rights and welfare of the child,

CONSIDERING that the promotion and protection of the rights and welfare of the child also
implies the performance of duties on the part of everyone,

REAFFIRMING ADHERENCE to the principles of the rights and welfare of the child contained in
the declaration, conventions and other instruments of the Organization of African Unity and in
the United Nations and in particular the United Nations Convention on the Rights of the Child;
and the OAU Heads of State and Government’s Declaration on the Rights and Welfare of the
African Child.
290 | CHILDREN 

Question
How compelling is this rhetoric? Consider what reasons there may be for emphasising the vulnerability of
children. Does the preamble of the African Charter suggest that a uniquely African tabulation of rights is
required or desired?

There is little dispute over the vulnerability of children.

The following table contains information drawn from UNICEF’s official statistics. The statis-
tics are accurate (where applicable to the nearest thousand), and are taken from UNICEF’s annual
State of the World’s Children Report 2017(available at www.unicef.org/sowc). Note that the focus
now is on the UN Sustainable Development Goals and statistics are more regularly updated there.
The lowest life expectancy at birth is 52 years in Sierra Leone and the Central African Repub-
lic. In contrast, the highest life expectancy is 84 years, in Japan. In many parts of the world, 50 is the
maximum life expectancy. The highest ranked under-five mortality rates are in Somalia and Chad.
Surviving to school age is a not insignificant achievement in these States. Such statistics evidence
that children are vulnerable and that the plight of their carers is indelibly linked to their own fate.
UNICEF runs a number of campaigns focusing on key issues affecting children, including poverty,
HIV/AIDS, sanitation and children’s rights in emergency situations. The 2017 State of the World’s
Children report highlighted children in a digital world (a different topic is chosen each year).

State of the World’s Children 2017 (from www.unicef.org)

Countries and areas Population (thousands) Annual Annual Life

number number of expectancy
of births under-5 at birth
(thousands) deaths (years)
(thousands)

2016 2016 2016 2016

total under 18 under 5

East Asia and Pacific 2,291,492 545,358 156,758  31,393   510 75

Europe and Central Asia 908,161 191,748 55,778  11,087   107 77
Eastern Europe and Central Asia 416,914 100,514 31,087   6,139    88 73
Western Europe 491,247 91,234 24,691   4,948    19 81
Latin America and Caribbean 633,773 193,378 53,227  10,749   187 76
Middle East and North Africa 435,225 152,698 49,143   9,953   237 74
North America 358,469 80,927 21,535   4,389    28 80
South Asia 1,765,989 619,518 169,895  35,853 1,713 69
Sub-Saharan Africa 1,034,153 511,533 167,977  37,038 2,860 60
Eastern and Southern Africa 542,206 261,901 83,757  18,203 1,104 63
West and Central Africa 491,947 249,631 84,220  18,835 1,756 57
Least developed countries 979,388 454,924 142,971  31,163 2,101 64
World 7,427,263 2,295,160 674,314 140,462 5,642 72

Question
Consider what factors make children particularly vulnerable, in law as well as in reality. Is it feasible to expect
law (in this case human rights) to be successful as avehicle in championing the rights of children?

In September 2015, 170 world leaders gathered at the UN Sustainable Development Summit in
New York to adopt the 2030 Agenda, which consists of 17 Sustainable Development Goals and
169 targets that seek to build on the Millennium Development Goals and complete what these did
not achieve. Children and the rights of children are a central facet of this agenda.
 CHILDREN  | 291

Resolution adopted by the General Assembly on 25 September 2015

70/1. Transforming our world: the 2030 Agenda for Sustainable Development

8. We envisage a world of universal respect for human rights and human dignity, the rule of law,
justice, equality and non-discrimination; of respect for race, ethnicity and cultural diversity; and
of equal opportunity permitting the full realization of human potential and contributing to shared
prosperity. A world which invests in its children and in which every child grows up free from
violence and exploitation. A world in which every woman and girl enjoys full gender equality and all
legal, social and economic barriers to their empowerment have been removed. A just, equitable,
tolerant, open and socially inclusive world in which the needs of the most vulnerable are met.
. . .
25. We commit to providing inclusive and equitable quality education at all levels –
early childhood, primary, secondary, tertiary, technical and vocational training. All people,
irrespective of sex, age, race or ethnicity, and persons with disabilities, migrants, indigenous
peoples, children and youth, especially those in vulnerable situations, should have access to
life-long learning opportunities that help them to acquire the knowledge and skills needed
to exploit opportunities and to participate fully in society. We will strive to provide children
and youth with a nurturing environment for the full realization of their rights and capabilities,
helping our countries to reap the demographic dividend, including through safe schools and
cohesive communities and families.
A call for action to change our world
51. What we are announcing today – an Agenda for global action for the next 15 years – is
a charter for people and planet in the twenty-first century. Children and young women and men
are critical agents of change and will find in the new Goals a platform to channel their infinite
capacities for activism into the creation of a better world.

There are 17 SDG Goals defined in the 2030 Agenda:

1 No Poverty
2 Zero Hunger
3 Good Health and Well-being
4 Quality Education
5 Gender Equality
6 Clean Water and Sanitation
7 Affordable and Clean Energy
8 Decent Work and Economic Growth
9 Industry, Innovation and Infrastructure
10 Reduced Inequality
11 Sustainable Cities and Communities
12 Responsible Consumption and Production
13 Climate Action
14 Life Below Water
15 Life on Land
16 Peace and Justice Strong Institutions
17 Partnerships to achieve the Goal

As is obvious, many of these goals directly affect the welfare of children. Each goal consists of a
number of specific targets and corresponding indicators. Some of the targets and indicators are
also specific to children:

16 Peace and Justice Strong Institutions

292 | CHILDREN 

Target: 16.2
End abuse, exploitation, trafficking and all forms of violence against and torture of children
Indicators:
– 16.2.1 Proportion of children aged 1–17 years who experienced any physical punishment
and/or psychological aggression by caregivers in the past month Donwload
– 16.2.2 Number of victims of human trafficking per 100,000 population, by sex, age and
form of exploitation
– 16.2.3 Proportion of young women and men aged 18–29 years who experienced sexual
violence by age 18

The SDGs, which are discussed further in Chapter 15, have helped to develop and inform the
work of various mechanisms tasked with promoting the protection of children’s rights. Consider
the following:

Report of the Special Rapporteur on the sale and sexual exploitation of children, including child
prostitution, child pornography and other child sexual abuse material, 17 July 2018

III. Thematic study on combating and preventing the sale and sexual exploitation of children
through the implementation of the Sustainable Development Goals from a children’s rights-
based perspective

A. Introduction

14. As mandated by the Human Rights Council in its resolution 34/16, the Special Rapporteur
launched an in-depth review of the ongoing implementation of the 2030 Agenda, with the ultimate
goal of eradicating the sale and sexual exploitation of children. The initial reviews of the fulfilment
of the 2030 Agenda by the high-level political forum on sustainable development represent an ideal
opportunity for the Special Rapporteur to advocate a specific focus on realizing the rights of the child.
15. In the present study, the Special Rapporteur takes stock of the existing pledges to
achieve the Sustainable Development Goals and provides guidance for all stakeholders
concerned on how to effectively pursue and reflect the implementation of targets relating to
the rights of the child. She aims in particular to advocate greater accountability on the part of
Governments and a pragmatic use of existing reporting mechanisms.

Resolution adopted by the General Assembly on 17 December 2018

73/155. Rights of the child

Economic and social well-being of children

12. Reaffirms paragraphs 13 to 15 of its resolution 71/177, calls upon all States and the
international community to create an enabling environment in which the wellbeing of the
child is ensured, including by strengthening international cooperation in this field and by
implementing their commitments, including the Sustainable Development Goals, 30 and
reaffirms that investment in children, especially for early childhood development, has high
economic and social returns and that all related efforts to ensure that resources allocated and
spent for children, especially on children’s education and health, should serve as a means for
the fulfilment of the rights of the child. . .

Committee on the Rights of the Child

General comment No. 20 (2016) on the implementation of the rights of the child during adolescence

4. In the present general comment, the Committee provides guidance to States on the
measures necessary to ensure the realization of the rights of children during adolescence,
 CHILDREN  | 293

cognizant also of the 2030 Agenda for Sustainable Development. It highlights the importance
of a human rights-based approach that includes recognition and respect for the dignity and
agency of adolescents; their empowerment, citizenship and active participation in their own
lives; the promotion of optimum health, well-being and development; and a commitment to the
promotion, protection and fulfilment of their human rights, without discrimination.
. . .

9.1.2 Secondary violations of rights

‘A WORLD FIT FOR CHILDREN’, UN Doc. A/RES/S-27/2

1. Promoting healthy lives

35. Owing to poverty and lack of access to basic social services, more than 10 million children
under five years of age, nearly half of them in their neonatal period, die every year of preventable
diseases and malnutrition. Complications related to pregnancy and childbirth and maternal
anaemia and malnutrition kill more than half a million women and adolescents each year, and
injure and disable many more. More than one billion people cannot obtain safe drinking water,
150 million children under five years of age are malnourished, and more than two billion people
lack access to adequate sanitation.
36. We are determined to break the intergenerational cycle of malnutrition and poor
health by providing a safe and healthy start in life for all children; providing access to effective,
equitable, sustained and sustainable primary health-care systems in all communities,
ensuring access to information and referral services; providing adequate water and sanitation
services; and promoting a healthy lifestyle among children and adolescents. Accordingly, we
resolve to achieve the following goals in conformity with the outcomes of recent United Nations
conferences, summits and special sessions of the General Assembly, as reflected in their
respective reports:

(a) Reduction in the infant and under-five mortality rate by at least one third, in pursuit of the
goal of reducing it by two thirds by 2015;
(b) Reduction in the maternal mortality ratio by at least one third, in pursuit of the goal of
reducing it by three quarters by 2015;
(c) Reduction of child malnutrition among children under five years of age by at least one
third, with special attention to children under two years of age, and reduction in the rate
of low birth weight by at least one third of the current rate;
(d) Reduction in the proportion of households without access to hygienic sanitation facilities
and affordable and safe drinking water by at least one third;
(e) Development and implementation of national early childhood development policies
and programmes to ensure the enhancement of children’s physical, social, emotional,
spiritual and cognitive development;
(f) Development and implementation of national health policies and programmes for
adolescents, including goals and indicators, to promote their physical and mental health;
(g) Access through the primary health-care system to reproductive health for all individuals
of appropriate age as soon as possible, and no later than 2015.

As indicated by the preceding statistics, children also can suffer from ‘secondary violations’ of
human rights. When the rights of their primary carer are infringed, the child can suffer too. Obvi-
ous examples include children born to homeless parents lacking adequate housing, and children
born to malnourished women being deprived of milk or milk of suitable quality, thereby com-
pounding the suffering from lack of food. Children can indirectly be denied an adequate standard
294 | CHILDREN 

of living and appropriate health care in much of the world due to poverty. With pandemics such as
HIV/AIDS in sub-Saharan Africa, the right to life of the child is threatened by the lack of appro-
priate anti-viral drugs or pre-/post-birth diagnostic tests and medical treatment. Securing respect
for universal rights must therefore remain a priority as the rights of children and the rights of their
carers are often interdependent to a degree which defies separation, especially during the formative
years of the child’s development.

The rights of the child clearly link into the progressive development of the State insofar as
factors such as life expectancy, literacy and the poverty cycle have an impact. The development of
the State obviously has an impact on the rights and freedoms of the parents/carers and thereafter
a direct impact on the child.
Note Article 25(2) of the Universal Declaration of Human Rights. Article 25 provides a gen-
eral right to a standard of living adequate for the health and well-being of each and every person.

UNIVERSAL DECLARATION OF HUMAN RIGHTS 1948, Article 25(2)

Motherhood and childhood are entitled to special care and assistance. All children, whether
born in or out of wedlock, shall enjoy the same social protection.

Question
To what extent are the rights of other identified vulnerable people interdependent? Are children in a unique
position in this respect? What characteristics single out children for particular attention? Can any instrument
on children’s rights thus be successful, when the related rights of their carers are not explicitly mentioned?

9.2 Tabulating children’s rights

Progress towards universal agreement on children’s rights took time. Taking up the mantle of
children’s rights from the League of Nations, the United Nations General Assembly proclaimed its
own Declaration on the Rights of the Child in 1959.

DECLARATION OF THE RIGHTS OF THE CHILD, GA Res. 1386 (XIV), UN Doc. A/4354 (1959)

The General Assembly

Proclaims this Declaration of the Rights of the Child to the end that he may have a happy
childhood and enjoy for his own good and for the good of society the rights and freedoms herein
set forth, and calls upon parents, upon men and women as individuals, and upon voluntary
 CHILDREN  | 295

organizations, local authorities and national Governments to recognize these rights and strive
for their observance by legislative and other measures progressively taken in accordance with
the following principles:

Principle 1
The child shall enjoy all the rights set forth in this Declaration. Every child, without any
exception whatsoever, shall be entitled to these rights, without distinction or discrimination
on account of race, colour, sex, language, religion, political or other opinion, national or social
origin, property, birth or other status, whether of himself or of his family.

Principle 2
The child shall enjoy special protection, and shall be given opportunities and facilities, by
law and by other means, to enable him to develop physically, mentally, morally, spiritually
and socially in a healthy and normal manner and in conditions of freedom and dignity. In the
enactment of laws for this purpose, the best interests of the child shall be the paramount
consideration.

Principle 3
The child shall be entitled from his birth to a name and a nationality.

Principle 4
The child shall enjoy the benefits of social security. He shall be entitled to grow and develop in
health; to this end, special care and protection shall be provided both to him and to his mother,
including adequate pre-natal and post-natal care. The child shall have the right to adequate
nutrition, housing, recreation and medical services.

Principle 5
The child who is physically, mentally or socially handicapped shall be given the special
treatment, education and care required by his particular condition.

Principle 6
The child, for the full and harmonious development of his personality, needs love and
understanding. He shall, wherever possible, grow up in the care and under the responsibility of
his parents, and, in any case, in an atmosphere of affection and of moral and material security;
a child of tender years shall not, save in exceptional circumstances, be separated from his
mother. Society and the public authorities shall have the duty to extend particular care to
children without a family and to those without adequate means of support. Payment of State
and other assistance towards the maintenance of children of large families is desirable.

Principle 7
The child is entitled to receive education, which shall be free and compulsory, at least in the
elementary stages. He shall be given an education which will promote his general culture and
enable him, on a basis of equal opportunity, to develop his abilities, his individual judgement,
and his sense of moral and social responsibility, and to become a useful member of society.
The best interests of the child shall be the guiding principle of those responsible for his
education and guidance; that responsibility lies in the first place with his parents.
The child shall have full opportunity for play and recreation, which should be directed to
the same purposes as education; society and the public authorities shall endeavour to promote
the enjoyment of this right.

Principle 8
The child shall in all circumstances be among the first to receive protection and relief.
296 | CHILDREN 

Principle 9
The child shall be protected against all forms of neglect, cruelty and exploitation. He shall not
be the subject of traffic, in any form.
The child shall not be admitted to employment before an appropriate minimum age; he
shall in no case be caused or permitted to engage in any occupation or employment which would
prejudice his health or education, or interfere with his physical, mental or moral development.

Principle 10
The child shall be protected from practices which may foster racial, religious and any other
form of discrimination. He shall be brought up in a spirit of understanding, tolerance, friendship
among peoples, peace and universal brotherhood, and in full consciousness that his energy
and talents should be devoted to the service of his fellow men.

Although not per se a list of rights, these ten principles retain applicability today. Note that the
standard of the best interest of the child (Principle 2) still governs legislation on children and finds
legal expression in the United Nations Convention on the Rights of the Child (Section 9.3).
Arguably, Principle 5 is an early indication of the recognition in the early twenty-first century of
the rights of disabled people. The General Assembly has clearly acknowledged that some children
are more vulnerable than others. That the situation may be acute in humanitarian situations is
evident from Principle 8 and the sobering statistics produced in the wake of humanitarian crises
around the world. Children do indeed require an early call on aid given their increased vulner-
ability in survival situations.
Token recognition of the special status of children appears in the International Covenant on
Civil and Political Rights, as well as the American Convention on Human Rights.

INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS 1966, Article 24

1 Every child shall have, without any discrimination as to race, colour, sex, language, religion,
national or social origin, property or birth, the right to such measures of protection as are
required by his status as a minor, on the part of his family, society and the State.
2 Every child shall be registered immediately after birth and shall have a name.
3 Every child has the right to acquire a nationality.

Shortly thereafter, the Organisation of American States acknowledged the special status of children
with a short provision within the American Convention on Human Rights. In addition, Article
17(5) provides for legal equality between children born in and out of wedlock while Article 18
encapsulates the right to a name.

AMERICAN CONVENTION ON HUMAN RIGHTS 1969, Article 19

Every minor child has the right to the measures of protection required by his condition as a
minor on the part of his family, society, and the state.

Note that the Convention on Elimination of All Forms of Discrimination against Women 1979
makes specific reference to prevention of discrimination against girl children. A lot of details are
provided in the Convention and this still constitutes a considerable contribution to children’s
rights.
1979 was the International Year of the Child with the goal of advancing the United Nations
Declaration, spurring the international community into further action to prepare a binding charter
of children’s rights. As will be seen, such a dedicated year (or decade) is a common precursor to
international tabulations of rights: the year serves to focus international attention on a particular
issue, raising awareness, galvanising concern at grass-roots level.
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GENERAL ASSEMBLY RESOLUTION 31/169 (1976)

1 Proclaims the year 1979 International Year of the Child;

2 Decides that the International Year of the Child should have the following general objectives:

(a) To provide a framework for advocacy on behalf of children and for enhancing the
awareness of the special needs of children on the part of decisionmakers and the
public;
(b) To promote recognition of the fact that programmes for children should be an
integral part of economic and social development plans with a view to achieving, in
both the long term and the short term, sustained activities for the benefit of children
at the national and international levels.

A decade later, the international community agreed the final text of a comprehensive convention
on children’s rights. In September 1990, a World Summit for Children was held in New York.
And the World Declaration on the Survival, Protection and Development of Children and a Plan
of Action was adopted.

WORLD DECLARATION ON THE SURVIVAL, PROTECTION AND DEVELOPMENT OF CHILDREN 1990

(www.un-documents.net/wsc-dec.htm)

1 We have gathered at the World Summit for Children to undertake a joint commitment and
to make an urgent universal appeal – to give every child a better future.
2 The children of the world are innocent, vulnerable and dependent. They are also curious,
active and full of hope. Their time should be one of joy and peace, of playing, learning and
growing. Their future should be shaped in harmony and co-operation. Their lives should
mature, as they broaden their perspectives and gain new experiences.
3 But for many children, the reality of childhood is altogether different.

The challenge

4 Each day, countless children around the world are exposed to dangers that hamper their
growth and development. They suffer immensely as casualties of war and violence; as
victims of racial discrimination, apartheid, aggression, foreign occupation and annexation;
as refugees and displaced children, forced to abandon their homes and their roots; as
disabled; or as victims of neglect, cruelty and exploitation.
5 Each day, millions of children suffer from the scourges of poverty and economic crisis –
from hunger and homelessness, from epidemics and illiteracy, from degradation of the
environment. They suffer from the grave effects of the problems of external indebtedness
and also from the lack of sustained and sustainable growth in many developing countries,
particularly the least developed ones.
6 Each day, 40,000 children die from malnutrition and disease, including acquired
immunodeficiency syndrome (AIDS), from the lack of clean water and inadequate
sanitation and from the effects of the drug problem.
7 These are challenges that we, as political leaders, must meet.
. . .

The task

10 Enhancement of children’s health and nutrition is a first duty, and also a task for which
solutions are now within reach. The lives of tens of thousands of boys and girls can be
saved every day, because the causes of their death are readily preventable. Child and
infant mortality is unacceptably high in many parts of the world, but can be lowered
dramatically with means that are already known and easily accessible.
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11 Further attention, care and support should be accorded to disabled children, as well as to
other children in very difficult circumstances.
12 Strengthening the role of women in general and ensuring their equal rights will be to the
advantage of the world’s children. Girls must be given equal treatment and opportunities
from the very beginning.
13 At present, over 100 million children are without basic schooling, and two-thirds of
them are girls. The provision of basic education and literacy for all are among the most
important contributions that can be made to the development of the world’s children.
14 Half a million mothers die each year from causes related to childbirth. Safe motherhood
must be promoted in all possible ways. Emphasis must be placed on responsible planning
of family size and on child spacing. The family, as a fundamental group and natural
environment for the growth and well-being of children, should be given all necessary
protection and assistance.
15 All children must be given the chance to find their identity and realize their worth in a safe
and supportive environment, through families and other care-givers committed to their
welfare. They must be prepared for responsible life in a free society. They should, from
their early years, be encouraged to participate in the cultural life of their societies.
16 Economic conditions will continue to influence greatly the fate of children, especially in
developing nations. For the sake of the future of all children, it is urgently necessary to
ensure or reactivate sustained and sustainable economic growth and development in all
countries and also to continue to give urgent attention to an early, broad and durable
solution to the external debt problems facing developing debtor countries.
17 These tasks require a continued and concerted effort by all nations, through national
action and international co-operation.

Note the view of Hammarberg commenting on the summit.

Hammarberg, T., ‘Children’, Chapter 19 in Eide, Krause and Rosas (eds), Economic, Social and
Cultural Rights – a Textbook, The Hague: Martinus Nijhoff

Never before had so many world leaders assembled to discuss the situation of children. With
its focus on health and education, the Summit also became a major meeting on economic and
social rights. All decisions were taken unanimously. In fact, it appeared as if the draft texts
were non-controversial in spite of the heavy burdens they placed on governments. Clearly one
reason for this sense of unanimity was that the subject matter was children.

Question
The rhetoric which often accompanies children’s rights is outlined at the beginning of this chapter. Why do
children and children’s interests generate such a consensual international response? Consider the approach of
various international fundraising bodies – to what extent do they capitalise on this?

9.3 The United Nations Convention on the Rights

of the Child
The United Nations Convention on the Rights of the Child represents not only the apex of
international children’s rights, but also, some would argue, the pinnacle of achievement for the
contemporary international human rights movement. Note the range and breadth of the various
rights and freedoms as well as the detail therein. The terms of the Convention are unparalleled
in scope and have attracted unprecedented support. In the twenty-first century, the Convention
on the Rights of Persons with Disabilities has also attracted broad support but the statistics do not
match the initial early success of the Convention on the Rights of the Child. The Convention on
the Rights of the Child is the most comprehensive instrument in force under any international or
 CHILDREN  | 299

regional human rights regime. This perhaps renders all the more surprising the number of ratifica-
tions it has attracted. Indeed all members of the United Nations, bar South Sudan, Somalia and
the United States of America, have ratified it. (See, for example, Kilbourne, S., ‘The Wayward
Americans – Why the USA Has Not Ratified the UN Convention on the Rights of the Child’
(1998) 10 Child and Family Law Quarterly 243). During the first cycle of universal periodic review,
Somalia and the United States of America (South Sudan was not reviewed) indicated the matter
was receiving attention with a view to moving towards ratification.

Question
Evaluate the potential arguments for and against ratification by the United States of America. What can be
gained (legally, politically or diplomatically) by remaining outwith the treaty system?

However, as with so many instruments, the operation of the Convention is plagued by reservations
(for information on reservations, see Chapter 3). Some reservations are broad, protecting constitutional
rights or Shari’a law against any contrary provisions or application of the United Nations Convention.
See also, para 46 of the Vienna World Conference urging States to withdraw their reservations.
The Convention has been augmented by three optional protocols, two adopted in 2000, one
on the involvement of children in armed conflict, the other on the sale of children, child prostitu-
tion and child pornography. These instruments were controversial, both topics are addressed in
the principal treaty and some commentators felt that the drafting of distinct instruments on them
undermined the base provisions in the Convention. However, for others, just as international
human rights are frequently rewritten and extended, so too children’s rights. Adding protocols is
thus viewed as a logical process in the progressive realisation of children’s rights. Interestingly, the
United States of America has ratified optional protocols but not the actual convention. The latest
(third) optional protocol provides for a complaints mechanism. This was opened for signature early
in 2012 and awaits the requisite ratifications to enter into force.

9.3.1 What is the applicable definition of a child?

First, however, scope of application: who benefits from the Convention?

CONVENTION ON THE RIGHTS OF THE CHILD 1989, GA res. 44/25, annex, 44 UN GAOR Supp.
(No. 49) at 167, UN Doc. A/44/49

Article 1

For the purposes of the present Convention, a child means every human being below the age of
eighteen years unless under the law applicable to the child, majority is attained earlier.

Article 2

1 States Parties shall respect and ensure the rights set forth in the present Convention to
each child within their jurisdiction without discrimination of any kind, irrespective of the
child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political
or other opinion, national, ethnic or social origin, property, disability, birth or other status.
2 States Parties shall take all appropriate measures to ensure that the child is protected
against all forms of discrimination or punishment on the basis of the status, activities,
expressed opinions, or beliefs of the child’s parents, legal guardians, or family members.
In general, everyone under the age of 18 is covered. This issue proved contentious during
the drafting process and in true United Nations fashion, a compromise was reached: 18
was finalised as the age limit with a caveat that national law may make provision for a
lower limit. Some States use 16 as an age of legal capacity, other States have a lower age
for marriage. Irrespective of this, the Committee on the Rights of the Child consistently
advocates 18 years as the preferred scope of the Convention. Obviously the Committee
expresses concern if a State has discriminatory age limits – in marriage, for example.
300 | CHILDREN 

Such practices should be eradicated and equality introduced between boy and girl
children. Should a State permit the early attainment of majority, then such a young adult
is not right-less. He or she is entitled to all human rights and fundamental freedoms and
indeed remains within the scope of some children-orientated instruments. For example,
discrete instruments make provisions on child labour and include the prohibition on the
death penalty for those under 18 years of age. The upper limit of 18 remains aspirational
for many States, extending protection to those under 18 has clear benefits when it comes
to social and economic protection. The Convention on the Rights of the Child makes
provision for States which criminalise the actions of children under eighteen years the
provisions on juvenile justice are further outlined in chapter 11. Similarly, as discussed
below, children under eighteen years can be employed. The treaty simply seeks to ensure
as substantial and sustained protection of children as is possible. It does not prevent
those under eighteen years from employment criminal responsibility etc. States remain
free to set their own lower age limits, bearing in mind the advice of the UN Committee and
the terms of the Convention.

Note that the optional protocol on the involvement of children in armed conflict has 18 as the
age limit for compulsory recruitment into the armed forces (Article 2). This contrasts with Article
38(3) of the Convention which has 15 as the minimum age for recruitment.
Contrast this with the African Charter.

AFRICAN CHARTER OF THE RIGHTS AND WELFARE OF THE CHILD 1990, Article 2

For the purposes of this Charter, a child means every human being below the age of 18 years.

The UN Committee has elaborated definitions of children for different purposes.

UN COMMITTEE ON THE RIGHTS OF THE CHILD

General comment No. 19 (2016) on public budgeting for the realization of children’s rights (art. 4)
‘A child means every human being below the age of eighteen years unless under the law
applicable to the child, majority is attained earlier’. (Convention on the Rights of the Child,
Article 1)
A separated child is a child who is separated from both parents, or from his or her previous
legal or customary primary caregiver, but not necessarily from other relatives. Separated
children may, therefore, include children who are accompanied by other adult family members.
(General Comment No. 6 (2005): Treatment of unaccompanied and separated children outside
their country of origin, UN Committee on the Rights of the Child)
An unaccompanied child is one who is separated from both parents and other relatives
and is not being cared for by an adult who, by law or custom, is responsible for doing so.
(General Comment No. 6 (2005): Treatment of unaccompanied and separated children outside
their country of origin, UN Committee on the Rights of the Child).

Question
Investigate the various age limits applicable in your, or any other, State. If below 18 years in any respect, is it
unduly detrimental to children and young people? (You can find the primary information in the State reports
to the Committee on the Rights of the Child.)

9.4 Governing principles

There are four guiding principles which govern the operation of the United Nations Conven-
tion: non-discrimination (Article 2); the best interests of the child (Article 3); rights to life, survival
and development of the child (Article 6); and the view of the child (Article 12). The principle of
 CHILDREN  | 301

non-discrimination is deeply ingrained in international human rights, as of course is the necessity for
the right to life and survival. Obviously, for a child these rights bring their own unique challenges.
As mentioned earlier, the survival of a child depends to a large extent (at least in the formative years)
on their carer/parent. The other two principles: participation of children in matters affecting them
(the view of the child) and the welfare principle (best interest of the child), are more progressive.
Van Beuren categorised the principles as the four Ps: protection of children from harm, pre-
vention of discrimination, participation in decisions and provision of essentials for survival and
development (1995). To facilitate as broad a discussion of children’s rights as possible within the
confines of this text, a generous interpretation will be taken of each of these principles to enable a
large swathe of convention rights to be considered.
The Convention includes civil, political, economic, social and cultural rights. Many rights are
similar to those contained in other instruments although there are some unique aspects given the
primary beneficiaries are children, not adults.

9.4.1 ‘The best interests of the child’

The governing principle which underpins the entire Convention and associated jurisprudence is
the best interests of the child. Given the universality of the Convention and the wide acceptance
of its principles by all States, with credence being taken of the best interests of the child even when
the Convention is not incorporated into the laws of the State concerned, it is possible to argue that
the ‘best interests of the child’ has now crystallised into customary international law. (Customary
international law is discussed in Chapter 1.)

CONVENTION ON THE RIGHTS OF THE CHILD 1989

Article 3

1 In all actions concerning children, whether undertaken by public or private social welfare
institutions, courts of law, administrative authorities or legislative bodies, the best
interests of the child shall be a primary consideration.
2 States Parties undertake to ensure the child such protection and care as is necessary for
his or her well-being, taking into account the rights and duties of his or her parents, legal
guardians, or other individuals legally responsible for him or her, and, to this end, shall
take all appropriate legislative and administrative measures.
3 States Parties shall ensure that the institutions, services and facilities responsible for the
care or protection of children shall conform with the standards established by competent
authorities, particularly in the areas of safety, health, in the number and suitability of their
staff, as well as competent supervision.

Article 4

States Parties shall undertake all appropriate legislative, administrative, and other measures
for the implementation of the rights recognized in the present Convention. With regard to
economic, social and cultural rights, States Parties shall undertake such measures to the
maximum extent of their available resources and, where needed, within the framework of
international co-operation.

Article 4 of the African Charter on the Rights and Welfare of the Child is similar. Subsequent
articles make further relevant provisions. Article 21 explicitly protects children against harmful
social and cultural practices. This would appear based on respect for the best interests of the child.
As mentioned in Chapter 2, practices such as female circumcision are potentially very injurious
to girls, even although the practice may be in conformity with cultural tradition. Interestingly
Article 21 of the African Charter explicitly mentions discriminatory traditional practices.
302 | CHILDREN 

Many States now include reference to the best interests of the child in statutes concerning
children (see, e.g. s 28(2) of the Constitution of the Republic of South Africa 1996). In other
instances, practice dictates that courts consider it when addressing family matters and related issues.
In terms of Article 4, States parties should ensure that all the rights in the treaty are recognised at
the national level. This includes the adoption of provisions giving effect to the prevailing principle
of the best interests of the child. Many States responded to this by incorporating the principle into
national law. The breadth of States doing so adds credence to the argument that the ‘best interests
of the child’ is actually transformed into customary law. Obviously this applies to the principle
in general rather than specifically as there is considerable State variation as regards issues such as
education and juvenile justice.

Charter of Fundamental Rights of the European Union, 2000

Article 24

Children shall have the right to such protection and care as is necessary for their well-being.
They may express their views freely. Such views shall be taken into consideration on matters
which concern them in accordance with their age and maturity. In all actions relating to
children, whether taken by public authorities or private institutions, the child’s best interests
must be a primary consideration. Every child shall have the right to maintain on a regular basis
a personal relationship and direct contact with both his or her parents, unless that is contrary
to his or her interests.

The Committee on the Rights of the Child regularly adopts General Comments elaborating on
specific aspects of State’s duties to protect the rights of the child.

9.4.2 ‘Participation’ of the child in decisions affecting him or her

These provisions go to the root of children’s rights. In some theories, children’s rights exist to
prepare the child for adulthood. This certainly is the underlying theory behind the provisions on
participation in the United Nations Convention. It is perhaps unreasonable to expect children,
overnight on their eighteenth birthday, to suddenly have all the necessary life skills for adulthood
and the necessary knowledge and ability to acquit themselves in all situations. Consequently, the
Convention makes provision for children to progressively develop the skills needed for adulthood.
Children thus also enjoy freedom of expression, religion and association.
Hammarberg (Hammarberg, T., ‘The UN. Convention on the Rights of the Child – and
How to Make it Work’ (1990) 12 Human Rights Quarterly 97) considers the Convention weakest on
participation. There are a number of reasons for this. An independent right of a child to form and
express opinions and have them taken into account in relevant decisions clearly reflects not only
an evolving capacity of the child but also the evolving transfer of some parental rights to the child.
Religious freedom is an obvious example of this. The following provisions concern participation
and evolving participatory related skills.

CONVENTION ON THE RIGHTS OF THE CHILD 1989

Article 12

1 States Parties shah assure to the child who is capable of forming his or her own views the
right to express those views freely in all matters affecting the child, the views of the child
being given due weight in accordance with the age and maturity of the child.
2 For this purpose, the child shall in particular be provided the opportunity to be heard in
any judicial and administrative proceedings affecting the child, either directly, or through
a representative or an appropriate body, in a manner consistent with the procedural rules
of national law.
 CHILDREN  | 303

Article 13

1 The child shall have the right to freedom of expression; this right shall include freedom to
seek, receive and impart information and ideas of all kinds, regardless of frontiers, either
orally, in writing or in print, in the form of art, or through any other media of the child’s
choice.
2 The exercise of this right may be subject to certain restrictions, but these shall only be
such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others; or

(b) For the protection of national security or of public order (order public), or of public
health or morals.

Article 14

1 States Parties shall respect the right of the child to freedom of thought, conscience and
religion.
2 States Parties shall respect the rights and duties of the parents and, when applicable,
legal guardians, to provide direction to the child in the exercise of his or her right in a
manner consistent with the evolving capacities of the child.
3 Freedom to manifest one’s religion or beliefs may be subject only to such limitations as
are prescribed by law and are necessary to protect public safety, order, health or morals,
or the fundamental rights and freedoms of others.

Article 15

1 States Parties recognize the rights of the child to freedom of association and to freedom
of peaceful assembly.
2 No restrictions may be placed on the exercise of these rights other than those imposed in
conformity with the law and which are necessary in a democratic society in the interests
of national security or public safety, public order (ordre public), the protection of public
health or morals or the protection of the rights and freedoms of others.

Article 17

States Parties recognize the important function performed by the mass media and shall
ensure that the child has access to information and material from a diversity of national and
international sources, especially those aimed at the promotion of his or her social, spiritual
and moral well-being and physical and mental health. To this end, States Parties shall:

(a) Encourage the mass media to disseminate information and material of social and cultural
benefit to the child and in accordance with the spirit of article 29;
(b) Encourage international co-operation in the production, exchange and dissemination
of such information and material from a diversity of cultural, national and international
sources;
(c) Encourage the production and dissemination of children’s books;
(d) Encourage the mass media to have particular regard to the linguistic needs of the child
who belongs to a minority group or who is indigenous;
(e) Encourage the development of appropriate guidelines for the protection of the child from
information and material injurious to his or her well-being, bearing in mind the provisions
of articles 13 and 18.

These provisions embody the right of the child to participation in formal decisions effecting
their interests (Article 12) and the rights of children to access information (Article 17), receive and
impart information (Article 13) and to associate with others (Article 15). Children can thus accrue
304 | CHILDREN 

skills necessary for adulthood and greater effective participation in society. Information on the
spiritual and moral well-being should be made available to children and young people (Article
17) which links to the slightly more controversial independent right of the child to freedom of
thought, conscience and religion (Article 14).
The 2017 General Comment by the Committee on the Rights of the Child offers a useful
example of children participation.

Committee on the Rights of the Child

General comment No. 21 (2017) on children in street situations

I. Introduction: ‘change our story’

1 Children in street situations consulted for the present general comment spoke strongly
about the need for respect, dignity and rights. In expressing their feelings, they said, inter
alia: ‘Respect us as human beings’; ‘I would like for people who have never lived on the
streets to see us as persons with pride, like normal people’; ‘It’s not about getting us off
the streets and into shelters. It’s about giving us a status’; ‘Governments should not say
we should not be on the streets. They should not harass us if on the streets. We should be
accepted’; ‘Living on the street does not mean that we cannot have rights’; ‘The street leaves
its mark: either you get out or you don’t’; ‘We don’t want help, charity, pity. Governments
should work with the community to give us rights. We’re not asking for charity. I want to
become someone to fend for myself’; ‘[People] should give us a chance to use our gifts and
talents to achieve our dreams’; ‘Give us the opportunity to change our story’.

II. Overall context

Purpose
2 In the present general comment, the Committee on the Rights of the Child provides
authoritative guidance to States on developing comprehensive, long-term national strategies
on children in street situations using a holistic, child rights approach and addressing both
prevention and response in line with the Convention on the Rights of the Child. While the
Convention makes no explicit reference to them, all of its provisions are applicable to children
in street situations, who experience violations of a large majority of the Convention’s articles.

Question
Does Article 14 make adequate and appropriate provision for the balance between a parent’s right to bring his/
her child up in a particular religious belief system and the right of a child to determine to follow a different system?

Reconciling the rights of parents with those of their children runs as an undercurrent throughout
the Convention and is particularly obvious in the foregoing articles. No similar conflict arises
consistently in respect of other identified vulnerable groups. Children are unique in their evolving
capacity. This links in to elements of human rights education and the need for children to learn
about civic society and form their own independent views thereon in preparation for assuming
the full raft of civic obligations which should be extended to adults. Accordingly, children require
Article 17 access to information in order to develop and form their own opinions, which they can
then express in terms of Article 13. Article 17 also relates to educational development – note the
provisions encouraging the production and dissemination of children’s books and associated mate-
rial. There are clear links to the right to education (Article 29) and to the rights of minorities.
Article 17 notes the linguistic needs of minority and indigenous children. This echoes regional pro-
visions found in the Council of Europe’s European Charter for Regional and Minority Languages
1992 and the Framework Convention for the Protection of National Minorities 1995 as well as
the OSCE’s Oslo Recommendations Regarding the Linguistic Rights of National Minorities 1998
and their Hague Recommendations Regarding the Education Rights of National Minorities 1996.
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Note that the African Charter encapsulates responsibilities for the child, though not a cor-
responding right per se of participation.

AFRICAN CHARTER ON THE RIGHTS AND WELFARE OF THE CHILD 1990, Article 31

Every child shall have responsibilities towards his family and society, the State and other legally
recognized communities and the international community. The child, subject to his age and
ability, and such limitations as may be contained in the present Charter, shall have the duty;

(a) to work for the cohesion of the family, to respect his parents, superiors and elders at all
times and to assist them in case of need;
(b) to serve his national community by placing his physical and intellectual abilities at its
service;
(c) to preserve and strengthen social and national solidarity;
(d) to preserve and strengthen African cultural values in his relations with other members
of the society, in the spirit of tolerance, dialogue and consultation and to contribute to the
moral well-being of society;
(e) to preserve and strengthen the independence and the integrity of his country;
(f) to contribute to the best of his abilities, at all times and at all levels, to the promotion and
achievement of African Unity.

For many States, involving children in decision-making processes is inherently problematic. Quite
clearly, not all children of all ages will have appropriate opinions to feed into the salient processes.
There is room for involvement in judicial processes, for example concerning child care arrange-
ments ensuing from a divorce or separation. Children’s views are not the sole deciding factor but
are clearly a relevant consideration. Schools in, for example, Australia often include children on
the school governing body. Such children can hold some power in influencing events. Again, their
power is not absolute, but their opinions can be a valuable contribution. More controversial is the
role of children in the political decision-making process. Youth parliaments and similar fora have
an important role to play in this respect.
There are many national, regional and international examples of youth fora, parliaments and
similar. These all develop participation of children and preparation for adulthood.

9.4.3 Provision of a safe environment and basic needs

Given the aforementioned interdependence of children, the State is also obliged to respect the
rights of the child’s parents and guardians. This can cause problems as a judgment must be made
as to when a child ceases to be subject to parental control and should be recognised as having
an evolving autonomy over their own life. This links in to Article 12. However, protection of
children is a key principle and thus children require a safe environment in which to mature and
gain the necessary skills and experiences in preparation for full adulthood and the associated
responsibilities that entails.

CONVENTION ON THE RIGHTS OF THE CHILD 1989

Article 5

States Parties shall respect the responsibilities, rights and duties of parents or, where
applicable, the members of the extended family or community as provided for by local custom,
legal guardians or other persons legally responsible for the child, to provide, in a manner
consistent with the evolving capacities of the child, appropriate direction and guidance in the
exercise by the child of the rights recognized in the present Convention.
306 | CHILDREN 

Parental responsibilities, and when they are transferred to the child or indeed the State, remain a
highly charged political issue. Recognising a child as an autonomous individual, distinct from his
or her parents/guardians, is contrary to the paternalistic approach of some States.

AFRICAN CHARTER ON THE RIGHTS AND WELFARE OF THE CHILD 1990, Article 20

1 Parents or other persons responsible for the child shall have the primary responsibility of
the upbringing and development the child and shall have the duty:

(a) to ensure that the best interests of the child are their basic concern at all times;
(b) to secure, within their abilities and financial capacities, conditions of living
necessary to the child’s development; and
(c) to ensure that domestic discipline is administered with humanity and in a manner
consistent with the inherent dignity of the child.

2 States Parties to the present Charter shall in accordance with their means and national
conditions take all appropriate measures:

(a) to assist parents and other persons responsible for the child and in case of need
provide material assistance and support programmes particularly with regard to
nutrition, health, education, clothing and housing;
(b) to assist parents and others responsible for the child in the performance of
childrearing and ensure the development of institutions responsible for providing
care of children; and
(c) to ensure that the children of working parents are provided with care services and
facilities.

Note the emphasis on the best interests of the child as a guiding principle influencing parents.
Remember also, the African Charter applies to all children under 18 years (Article 2).
The Convention deals chronologically with the life of the child from birth. Note however,
that birth is the determining factor – in contrast see the American Convention on Human Rights,
Article 4. Children have the right to life and the right to a name. This right also appears as a human
right in the American Convention and African Charter. Without a name and an identity, children
can remain commodities and lack the legal status necessary to be attributed independent rights
and freedoms. Traumatic problems were encountered in January 2005 in Indonesia, Haiti in 2010,
Japan in 2011 and in various other countries affected by sudden natural catastrophes (tsunamis,
earthquakes, etc.) when trying to create registers of all children found. Once registered, it was
easier to trace family and the children were also ‘safe’ from predatory paedophiles as the State and
non-governmental organisations were better able to monitor their geographical location.

CONVENTION ON THE RIGHTS OF THE CHILD 1989

Article 6

1 States Parties recognize that every child has the inherent right to life.
2 States Parties shall ensure to the maximum extent possible the survival and development
of the child. . . .

Article 7

1 The child shall be registered immediately after birth and shall have the right from birth to
a name, the right to acquire a nationality and, as far as possible, the right to know and be
cared for by his or her parents.
2 States Parties shall ensure the implementation of these rights in accordance with their
national law and their obligations under the relevant international instruments in this
field, in particular where the child would otherwise be stateless.
 CHILDREN  | 307

Article 8

1 States Parties undertake to respect the right of the child to preserve his or her identity,
including nationality, name and family relations as recognized by law without unlawful
interference.
2 Where a child is illegally deprived of some or all of the elements of his or her identity,
States Parties shall provide appropriate assistance and protection, with a view to re-
establishing speedily his or her identity.

Health care impacts on the right to life and development. Article 24 is the key provision. Note
it also emphasises the need for maternal pre and post-natal care, identifying the unique interrela-
tionship between the rights of the child and the mother. To ensure children the highest attainable
standard of health, States are required to take measures to decrease infant mortality, ensure medical
assistance, combat disease and malnutrition. International support can be available to assist States in
such endeavours, not least when the goals tally with progress towards the sustainable development
goals mentioned elsewhere in this text.

9.4.3.1 Family rights

The family is viewed traditionally, with the family recognised as the natural unit within which a
child should be raised and in the Convention there is a corresponding emphasis on family rights.
However, the scope of ‘family’ is broad, encompassing a variety of cultural practices and societal
traditions. Adoption and fostering are also addressed. Overriding all permutations is the need for
stability for the child. Accordingly, no child should be unnecessarily separated from his or her
parents and any arrangements for alternative care/custody should be dealt with swiftly to minimise
the disruption to the child.

CONVENTION ON THE RIGHTS OF THE CHILD 1989

Article 9

1 States Parties shall ensure that a child shall not be separated from his or her parents
against their will, except when competent authorities subject to judicial review determine,
in accordance with applicable law and procedures, that such separation is necessary for
the best interests of the child. Such determination may be necessary in a particular case
such as one involving abuse or neglect of the child by the parents, or one where the parents
are living separately and a decision must be made as to the child’s place of residence.
2 In any proceedings pursuant to paragraph I of the present article, all interested parties
shall be given an opportunity to participate in the proceedings and make their views known.
3 States Parties shall respect the right of the child who is separated from one or both
parents to maintain personal relations and direct contact with both parents on a regular
basis, except if it is contrary to the child’s best interests.
4 Where such separation results from any action initiated by a State Party, such as the
detention, imprisonment, exile, deportation or death (including death arising from any
cause while the person is in the custody of the State) of one or both parents or of the child,
that State Party shall, upon request, provide the parents, the child or, if appropriate, another
member of the family with the essential information concerning the whereabouts of the
absent member(s) of the family unless the provision of the information would be detrimental
to the well-being of the child. States Parties shall further ensure that the submission of
such a request shall of itself entail no adverse consequences for the person(s) concerned.

Article 10

1 In accordance with the obligation of States Parties under article 9, paragraph 1,

applications by a child or his or her parents to enter or leave a State Party for the purpose
308 | CHILDREN 

of family reunification shall be dealt with by States Parties in a positive, humane and
expeditious manner. States Parties shall further ensure that the submission of such a
request shall entail no adverse consequences for the applicants and for the members of
their family.
2 A child whose parents reside in different States shall have the right to maintain on a
regular basis, save in exceptional circumstances, personal relations and direct contacts
with both parents. Towards that end and in accordance with the obligation of States Parties
under article 9, paragraph 1, States Parties shall respect the right of the child and his or
her parents to leave any country, including their own, and to enter their own country. The
right to leave any country shall be subject only to such restrictions as are prescribed by
law and which are necessary to protect the national security, public (ordre public), public
health or morals or the rights and freedoms of others and are consistent with the other
rights recognized in the present Convention. . . .

Article 18

1 States Parties shall use their best efforts to ensure recognition of the principle that both
parents have common responsibilities for the upbringing and development of the child.
Parents or, as the case may be, legal guardians, have the primary responsibility for the
upbringing and development of the child. The best interests of the child will be their basic
concern.
2 For the purpose of guaranteeing and promoting the rights set forth in the present
Convention, States Parties shall render appropriate assistance to parents and legal
guardians in the performance of their child-rearing responsibilities and shall ensure the
development of institutions, facilities and services for the care of children.
3 States Parties shall take all appropriate measures to ensure that children of working
parents have the right to benefit from child-care services and facilities for which they are
eligible. . . .

Article 20

1 A child temporarily or permanently deprived of his or her family environment, or in whose

own best interests cannot be allowed to remain in that environment, shall be entitled to
special protection and assistance provided by the State.
2 States Parties shall in accordance with their national laws ensure alternative care for
such a child.
3 Such care could include, inter alia, foster placement, kafalah of Islamic law, adoption or if
necessary placement in suitable institutions for the care of children. When considering
solutions, due regard shall be paid to the desirability of continuity in a child’s upbringing
and to the child’s ethnic, religious, cultural and linguistic background.

See also the equivalent provisions in the African Charter on the Rights and Welfare of the Child.
Article 18 emphasises the commonality of interests of both parents in the upbringing of
children. It is the States Parties who have the secondary role of supporting parents in fulfilling the
rights of children guaranteed by the Convention. Some States have fully embraced this. Indeed
Article 44(6) obliges States to make their periodic reports available to their citizens. Therefore the
State must ensure that parents know the relevant provisions. This links in to the positive obligation
on States as regards human rights (see Chapter 2). States must ensure that parents comply with the
guarantees and protection in the Convention or the State itself will fail in its own obligation to
ensure enjoyment of rights.
 CHILDREN  | 309

CONVENTION ON THE RIGHTS OF THE CHILD 1989

Article 21

States Parties that recognize and/or permit the system of adoption shall ensure that the best
interests of the child shall be the paramount consideration and they shall:

(a) Ensure that the adoption of a child is authorized only by competent authorities who
determine, in accordance with applicable law and procedures and on the basis of all
pertinent and reliable information, that the adoption is permissible in view of the child’s
status concerning parents, relatives and legal guardians and that, if required, the persons
concerned have given their informed consent to the adoption on the basis of such counsel-
ling as may be necessary;
(b) Recognize that inter-country adoption may be considered as an alternative means of
child’s care, if the child cannot be placed in a foster or an adoptive family or cannot in any
suitable manner be cared for in the child’s country of origin;
(c) Ensure that the child concerned by inter-country adoption enjoys safeguards and
standards equivalent to those existing in the case of national adoption;
(d) Take all appropriate measures to ensure that, in inter-country adoption, the placement
does not result in improper financial gain for those involved in it;
(e) Promote, where appropriate, the objectives of the present article by concluding bilateral
or multilateral arrangements or agreements, and endeavour, within this framework, to
ensure that the placement of the child in another country is carried out by competent
authorities or organs.

Committee on the Rights of the Child

General comment No. 14 (2013) on the right of the child to have his or her best interests
taken as a primary consideration (art 3, para 1)

I. Introduction

A. The best interests of the child: a right, a principle and a rule of procedure
1. Article 3, paragraph 1, of the Convention on the Rights of the Child gives the child the right to
have his or her best interests assessed and taken into account as a primary consideration in all
actions or decisions that concern him or her, both in the public and private sphere. Moreover,
it expresses one of the fundamental values of the Convention. The Committee on the Rights
of the Child (the Committee) has identified article 3, paragraph 1, as one of the four general
principles of the Convention for interpreting and implementing all the rights of the child, and
applies it is a dynamic concept that requires an assessment appropriate to the specific context.
. . .
6. The Committee underlines that the child’s best interests is a threefold concept:

(a) A substantive right: The right of the child to have his or her best interests assessed and
taken as a primary consideration when different interests are being considered in order to
reach a decision on the issue at stake, and the guarantee that this right will be implemented
whenever a decision is to be made concerning a child, a group of identified or unidentified
children or children in general. Article 3, paragraph 1, creates an intrinsic obligation for
States, is directly applicable (self-executing) and can be invoked before a court.
(b) A fundamental, interpretative legal principle: If a legal provision is open to more than one
interpretation, the interpretation which most effectively serves the child’s best interests
should be chosen. The rights enshrined in the Convention and its Optional Protocols
provide the framework for interpretation.
310 | CHILDREN 

(c) A rule of procedure: Whenever a decision is to be made that will affect a specific child,
an identified group of children or children in general, the decision-making process must
include an evaluation of the possible impact (positive or negative) of the decision on the child
or children concerned. Assessing and determining the best interests of the child require
procedural guarantees. Furthermore, the justification of a decision must show that the right
has been explicitly taken into account. In this regard, States parties shall explain how the
right has been respected in the decision, that is, what has been considered to be in the
child’s best interests; what criteria it is based on; and how the child’s interests have been
weighed against other considerations, be they broad issues of policy or individual cases.

7. In the present general comment, the expression ‘the child’s best interests’ or ‘the best
interests of the child’ covers the three dimensions developed above.

Question
Consider the application of these articles to issues such as inter-country adoption from China to the Nether-
lands; the special protection afforded to children when endangered within the family situation and with respect
to Article 18, the scope for parental-State interaction and guidance.

Inter-country adoption is addressed in more detail in the Hague Convention on Protection of

Children and Co-operation in Respect of Intercountry Adoption 1993. A discussion of this instru-
ment is outwith the scope of the present work. Article 24 of the African Charter also addresses
this topic in some detail.

9.4.3.2 Child abduction

CONVENTION ON THE RIGHTS OF THE CHILD 1989

Article 11

1 States Parties shall take measures to combat the illicit transfer and non-return of children
abroad.
2 To this end, States Parties shall promote the conclusion of bilateral or multilateral
agreements or accession to existing agreements.

See also Articles 9 and 10, excerpted earlier. This issue is dealt with at length in private international
law. International child abduction is a major problem and distinct from the issue of child trafficking.
Child abduction is particularly problematic when it occurs as a result of a breakdown in family rela-
tions with one parent taking a child to a second or third country thereby illegally terminating the
parental rights of the other parent. As the sad cases reported in the media indicate, problems can occur
in enforcing national court orders for the return of a child when the child is in a different State. For
children and parents the situation can become barely tolerable, very traumatic and have long-term
effects. The Hague Convention on the Civil Aspects of International Child Abduction 1980 has
attracted accessions by around half the membership of the United Nations. Essentially the Convention
creates judicial mechanisms for redressing the removal of a child from his or her ‘habitual residence’.

HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION 1980

Article 1

The objects of the present Convention are –

a) to secure the prompt return of children wrongfully removed to or retained in any

Contracting State; and
 CHILDREN  | 311

b) to ensure that rights of custody and of access under the law of one Contracting State are
effectively respected in the other Contracting States.

Article 2

Contracting States shall take all appropriate measures to secure within their territories the
implementation of the objects of the Convention. For this purpose they shall use the most
expeditious procedures available.

Article 3

The removal or the retention of a child is to be considered wrongful where –

a) it is in breach of rights of custody attributed to a person, an institution or any other body,

either jointly or alone, under the law of the State in which the child was habitually resident
immediately before the removal or retention; and
b) at the time of removal or retention those rights were actually exercised, either jointly or
alone, or would have been so exercised but for the removal or retention.

The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation
of law or by reason of a judicial or administrative decision, or by reason of an agreement having
legal effect under the law of that State.

Article 4

The Convention shall apply to any child who was habitually resident in a Contracting State
immediately before any breach of custody or access rights. The Convention shall cease to apply
when the child attains the age of 16 years.

A European Convention on Recognition and Enforcement of Decisions Concerning Custody of

Children and on the Restoration of Custody of Children 1980 can be invoked to enforce existing
custody orders/decisions by competent courts.
The principal problems with these mechanisms is lack of participation. Universal compliance
and universal acceptance of third State judicial decisions concerning child custody would be essen-
tial, if unlikely, to ensure the system functions. For more information, specialist texts should be
consulted and/or relevant websites such as those listed here. A full discussion is outwith the scope
of the current text. For more information, see:

• www.reunite.org – for helping families of abducted children

• hcch.e-vision.nl – Hague Conference on Private International Law with access to relevant
source material

9.4.4 Protecting the child from harm

To facilitate their development, children should be protected from all forms of harm. Both the
optional protocols to the United Nations Convention aimed at strengthening these provisions. In
the African Charter on the Rights and Welfare of the Child, many of the threats to children are
addressed in individual articles. For example, Article 23 on refugee children, Article 21 on harmful
social and cultural practices and Article 22 on armed conflict.
Many of the rights are similar to those in other international instruments. The following are
some examples.
312 | CHILDREN 

CONVENTION ON THE RIGHTS OF THE CHILD 1989

Article 19
1 States Parties shall take all appropriate legislative, administrative, social and educational
measures to protect the child from all forms of physical or mental violence, injury or abuse,
neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while
in the care of parent(s), legal guardian(s) or any other person who has the care of the child.
2 Such protective measures should, as appropriate, include effective procedures for the
establishment of social programmes to provide necessary support for the child and for
those who have the care of the child, as well as for other forms of prevention and for
identification, reporting, referral, investigation, treatment and follow-up of instances of
child maltreatment described heretofore, and, as appropriate, for judicial involvement. . . .

Article 25

States Parties recognize the right of a child who has been placed by the competent authorities
for the purposes of care, protection or treatment of his or her physical or mental health, to a
periodic review of the treatment provided to the child and all other circumstances relevant to
his or her placement.

Article 26

1 States Parties shall recognize for every child the right to benefit from social security,
including social insurance, and shall take the necessary measures to achieve the full
realization of this right in accordance with their national law.
2 The benefits should, where appropriate, be granted, taking into account the resources and
the circumstances of the child and persons having responsibility for the maintenance of
the child, as well as any other consideration relevant to an application for benefits made
by or on behalf of the child.

Article 27

1 States Parties recognize the right of every child to a standard of living adequate for the
child’s physical, mental, spiritual, moral and social development.
2 The parent(s) or others responsible for the child have the primary responsibility to secure,
within their abilities and financial capacities, the conditions of living necessary for the
child’s development.
3 States Parties, in accordance with national conditions and within their means, shall take
appropriate measures to assist parents and others responsible for the child to implement
this right and shall in case of need provide material assistance and support programmes,
particularly with regard to nutrition, clothing and housing.
4 States Parties shall take all appropriate measures to secure the recovery of maintenance
for the child from the parents or other persons having financial responsibility for the
child, both within the State Party and from abroad. In particular, where the person having
financial responsibility for the child lives in a State different from that of the child, States
Parties shall promote the accession to international agreements or the conclusion of
such agreements, as well as the making of other appropriate arrangements. . . .

Article 37

States Parties shall ensure that:

(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment
or punishment. Neither capital punishment nor life imprisonment without possibility of
release shall be imposed for offences committed by persons below eighteen years of age;
 CHILDREN  | 313

(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest,
detention or imprisonment of a child shall be in conformity with the law and shall be used
only as a measure of last resort and for the shortest appropriate period of time;
(c) Every child deprived of liberty shall be treated with humanity and respect for the inherent
dignity of the human person, and in a manner which takes into account the needs of
persons of his or her age. In particular, every child deprived of liberty shall be separated
from adults unless it is considered in the child’s best interest not to do so and shall have
the right to maintain contact with his or her family through correspondence and visits,
save in exceptional circumstances;
(d) Every child deprived of his or her liberty shall have the right to prompt access to legal
and other appropriate assistance, as well as the right to challenge the legality of the
deprivation of his or her liberty before a court or other competent, independent and
impartial authority, and to a prompt decision on any such action.

Other provisions address particular issues which are tabulated in specific instruments (convention
or declarations). The provisions on refugee children obviously overlap with the provisions in the
Convention Relating to the Status of Refugees (see Chapter 13), cultural rights are found in the
International Covenant on Civil and Political Rights as well as in the instruments on indigenous
peoples (see Chapter 11) and child civilians in conflict situations of course fall within the provi-
sions of the Geneva Conventions. Of perhaps more interest is the provision on respecting the
rights of mentally and physically disabled children. The African Charter makes similar provision.
This despite the fact that the United Nations had not then succeeded in agreeing the text of a
framework of rights and freedoms for such people. (Of course the text of the UN Convention on
the Rights of Persons with Disabilities and Protocol was agreed in 2006.)

CONVENTION ON THE RIGHTS OF THE CHILD 1989

Article 22

1 States Parties shall take appropriate measures to ensure that a child who is seeking refugee
status or who is considered a refugee in accordance with applicable international or domestic
law and procedures shall, whether unaccompanied or accompanied by his or her parents
or by any other person, receive appropriate protection and humanitarian assistance in the
enjoyment of applicable rights set forth in the present Convention and in other international
human rights or humanitarian instruments to which the said States are Parties.
2 For this purpose, States Parties shall provide, as they consider appropriate, co-operation
in any efforts by the United Nations and other competent intergovernmental organizations
or non-governmental organizations co-operating with the United Nations to protect and
assist such a child and to trace the parents or other members of the family of any refugee
child in order to obtain information necessary for reunification with his or her family. In
cases where no parents or other members of the family can be found, the child shall be
accorded the same protection as any other child permanently or temporarily deprived of
his or her family environment for any reason, as set forth in the present Convention.

Article 23

1 States Parties recognize that a mentally or physically disabled child should enjoy a full
and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the
child’s active participation in the community.
2 States Parties recognize the right of the disabled child to special care and shall encourage
and ensure the extension, subject to available resources, to the eligible child and those
responsible for his or her care, of assistance for which application is made and which
is appropriate to the child’s condition and to the circumstances of the parents or others
caring for the child.
314 | CHILDREN 

3 Recognizing the special needs of a disabled child, assistance extended in accordance with
paragraph 2 of the present article shall be provided free of charge, whenever possible,
taking into account the financial resources of the parents or others caring for the child,
and shall be designed to ensure that the disabled child has effective access to and
receives education, training, health care services, rehabilitation services, preparation for
employment and recreation opportunities in a manner conducive to the child’s achieving
the fullest possible social integration and individual development, including his or her
cultural and spiritual development.
4 States Parties shall promote, in the spirit of international cooperation, the exchange of
appropriate information in the field of preventive health care and of medical, psychological
and functional treatment of disabled children, including dissemination of and access to
information concerning methods of rehabilitation, education and vocational services, with
the aim of enabling States Parties to improve their capabilities and skills and to widen
their experience in these areas. In this regard, particular account shall be taken of the
needs of developing countries.
. . .

Article 30

In those States in which ethnic, religious or linguistic minorities or persons of indigenous origin
exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in
community with other members of his or her group, to enjoy his or her own culture, to profess
and practise his or her own religion, or to use his or her own language.
. . .

Article 38

1 States Parties undertake to respect and to ensure respect for rules of international
humanitarian law applicable to them in armed conflicts which are relevant to the child.
2 States Parties shall take all feasible measures to ensure that persons who have not
attained the age of fifteen years do not take a direct part in hostilities.
3 States Parties shall refrain from recruiting any person who has not attained the age of
fifteen years into their armed forces. In recruiting among those persons who have attained
the age of fifteen years but who have not attained the age of eighteen years, States Parties
shall endeavour to give priority to those who are oldest.
4 In accordance with their obligations under international humanitarian law to protect the
civilian population in armed conflicts, States Parties shall take all feasible measures to
ensure protection and care of children who are affected by an armed conflict.

Protecting children from the illicit use of narcotic and psychotropic substances is an interesting
addition. The drafters probably had in mind not only the extensive use of ‘recreational drugs’
by children, but also the role such substances play in recruiting and maintaining child partici-
pation in armed conflicts and the sex trade. As Article 33 notes, children are also often used
to traffic drugs. Employing children in drug smuggling can range from using their prams and
toys to hide the substances through to using children to actually carry (externally or internally)
large volumes of drugs. If caught, such children are often abandoned by the gang of smugglers
at the border.

CONVENTION ON THE RIGHTS OF THE CHILD 1989, Article 33

States Parties shall take all appropriate measures, including legislative, administrative,
social and educational measures, to protect children from the illicit use of narcotic drugs and
psychotropic substances as defined in the relevant international treaties, and to prevent the
use of children in the illicit production and trafficking of such substances.
 CHILDREN  | 315

Children are also entitled to special protection when facing the criminal justice system in a State
(see also Chapter 12). The minimum age for criminal responsibility varies, thus the Convention
focuses on ensuring the rights of the child are adequately protected during the criminal proceed-
ings. (For a detailed analysis of associated rights by the European Court of Human Rights, see T &
V v United Kingdom (Chapter 12).)

CONVENTION ON THE RIGHTS OF THE CHILD 1989, Article 40

1 States Parties recognize the right of every child alleged as, accused of, or recognized as
having infringed the penal law to be treated in a manner consistent with the promotion of
the child’s sense of dignity and worth, which reinforces the child’s respect for the human
rights and fundamental freedoms of others and which takes into account the child’s age
and the desirability of promoting the child’s reintegration and the child’s assuming a
constructive role in society.
2 To this end, and having regard to the relevant provisions of international instruments,
States Parties shall, in particular, ensure that:

(a) No child shall be alleged as, be accused of, or recognized as having infringed the
penal law by reason of acts or omissions that were not prohibited by national or
international law at the time they were committed;
(b Every child alleged as or accused of having infringed the penal law has at least the
following guarantees:

(i) To be presumed innocent until proven guilty according to law;

(ii) To be informed promptly and directly of the charges against him or her, and, if
appropriate, through his or his or her parents or legal guardians, and to have
legal or other appropriate assistance in the preparation and presentation of
his or her defence;
(iii) To have the matter determined without delay by a competent, independent and
impartial authority or judicial body in a fair hearing according to law, in the
presence of legal or other appropriate assistance and, unless it is considered
not to be in the best interest of the child, in particular, taking into account his
or her age or situation, his or her parents or legal guardians;
(iv) Not to be compelled to give testimony or to confess guilt; to examine or have
examined adverse witnesses and to obtain the participation and examination
of witnesses on his or her behalf under conditions of equality;
(v) If considered to have infringed the penal law, to have this decision and any
measures imposed in consequence thereof reviewed by a higher competent,
independent and impartial authority or judicial body according to law;
(vi) To have the free assistance of an interpreter if the child cannot understand or
speak the language used;
(vii) To have his or her privacy fully respected at all stages of the proceedings.

3 States Parties shall seek to promote the establishment of laws, procedures, authorities
and institutions specifically applicable to children alleged as, accused of, or recognized as
having infringed the penal law, and, in particular:

(a) The establishment of a minimum age below which children shall be presumed not
to have the capacity to infringe the penal law;
(b) Whenever appropriate and desirable, measures for dealing with such children
without resorting to judicial proceedings, providing that human rights and legal
safeguards are fully respected.

4 A variety of dispositions, such as care, guidance and supervision orders; counselling;

probation; foster care; education and vocational training programmes and other
316 | CHILDREN 

alternatives to institutional care shall be available to ensure that children are dealt with in
a manner appropriate to their well-being and proportionate both to their circumstances
and the offence.

Children are, as is apparent, particularly vulnerable during armed conflict. Child soldiers, whether
drawn into international or civil insurgency, are protected by the United Nations Convention and
its 2000 Protocol. The International Committee of the Red Cross/Red Crescent and the Inter-
national Labour Organisation (Convention No. 182) both condemn the use of children in armed
conflict while the Statute of the International Criminal Court lists ‘conscripting or enlisting chil-
dren under the age of 15 years into armed forces or groups or using them to participate actively in
the hostilities’ as a war crime (Article 8(2)(e)(vii)). Child soldier recruitment and retention is one
of the crimes perpetrated by Thomas Lubanga, the first person to be tried before the International
Criminal Court.
Naturally, all children should be fully supported when recovering from any form of neglect
and exploitation and every attempt should be made to help reintegrate them into society. Consider
the work done in orphanages in Sierra Leone and Angola with former child soldiers – a perfect
example of this provision in practice. This provision may have significant resource implications
for States. However, to ensure the child at issue a future with as few limitations and hindrances as
possible, it is imperative that recovery and reintegration are assisted.

CONVENTION ON THE RIGHTS OF THE CHILD 1989

Article 39

States Parties shall take all appropriate measures to promote physical and psychological
recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse;
torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed
conflicts. Such recovery and reintegration shall take place in an environment which fosters the
health, self-respect and dignity of the child.

Question
Compare and contrast the range of rights and freedoms in this Convention with those in the Universal Declara-
tion/the International Covenants.

Note Article 21(2) of the African Charter and its impact on sexual exploitation:

AFRICAN CHARTER ON THE RIGHTS AND WELFARE OF THE CHILD 1990

Article 21(2) Child marriage and the betrothal of girls and boys shall be prohibited and effective
action, including legislation, shall be taken to specify the minimum age of marriage to be 18
years and make registration of all marriages in an official registry compulsory.
. . .
Article 27 States Parties to the present Charter shall undertake to protect the child from
all forms of sexual exploitation and sexual abuse and shall in particular take measures to
prevent:

(a) the inducement, coercion or encouragement of a child to engage in any sexual activity;
(b) the use of children in prostitution or other sexual practices;
(c) the use of children in pornographic activities, performances and materials.

Question
To what extent does specifying a relatively high age for marriage extend the protection of children against
exploitation? Is specifying an age for marriage compatible with protection of cultural practices?
 CHILDREN  | 317

9.4.4.1 Child labour

The International Labour Organisation has, since inception, campaigned against the worst forms
of child labour. Naturally some work, within and even out with the home, can be beneficial for
young people. What the international community is seeking to regulate is the abusive impact of
child labour. Many reports of the ILO focus on negative aspects of child labour, including its effect
on education and health. See, generally, www.ilo.org/public/english/standards/ipec/index.htm –
the International Programme on the Elimination of Child Labour.
Child labour is inevitably linked to poverty. The International Labour Office has further
linked this to education. Indeed the economic and social developmental progress of a State can be
indicated by its child labour statistics (see www.ilo.org).

AFRICAN CHARTER ON THE RIGHTS AND WELFARE OF THE CHILD 1990, Article 15

1 Every child shall be protected from all forms of economic exploitation and from performing
any work that is likely to be hazardous or to interfere with the child’s physical, mental,
spiritual, moral, or social development.
2 States Parties to the present Charter take all appropriate legislative and administrative
measures to ensure the full implementation of this Article which covers both the formal
and informal sectors of employment and having regard to the relevant provisions of the
International Labour Organization’s instruments relating to children, States Parties shall
in particular:

(a) provide through legislation, minimum wages for admission to every employment;
(b) provide for appropriate regulation of hours and conditions of employment;
(c) provide for appropriate penalties or other sanctions to ensure the effective
enforcement of this Article;
(d) promote the dissemination of information on the hazards of child labour to all
sectors of the community.

Poverty, social exclusion, hunger and homelessness inevitably impact on children. In many house-
holds, children are the healthiest and strongest members, thus inevitably they can be made to
work. The International Labour Organisation has been concerned with limiting working hours
and restricting abusive working conditions for children since its inception following the Treaty of
Versailles. Many of its conventions impact on the rights of children, seeking to prevent economic
exploitation. These range from Convention No. 5 Minimum Age (Industry) and Convention
No. 6 Night Work of Young Persons (Industry) Convention, both 1919, through to two more
recent instruments adopted under the auspices of the International Labour Organisation. These
are highlighted in its capsule list of eight fundamental instruments: Convention No. 138 (1973) on
minimum age and the 1999 Convention No. 182 on the elimination of the worst forms of child
labour. In many instances, children are sold into practices analogous to slavery or are trafficked to
work in exploitative industries and the sex trade. The 2000 Protocol to the United Nations Con-
vention on the Rights of the Child addresses this issue in more detail. A number of international
conferences and initiatives also seek to internationalise protection of children from such treatment.
For example, the Organisation of American States adopted a resolution on child trafficking (OAS
Doc. AG/RES.1948 (XXXIII-O/03)).

ILO CONVENTION No. 138 MINIMUM AGE 1973

Article 1

Each Member for which this Convention is in force undertakes to pursue a national policy
designed to ensure the effective abolition of child labour and to raise progressively the minimum
age for admission to employment or work to a level consistent with the fullest physical and
mental development of young persons.
318 | CHILDREN 

Article 2

1 Each Member which ratifies this Convention shall specify, in a declaration appended to
its ratification, a minimum age for admission to employment or work within its territory
and on means of transport registered in its territory; subject to Articles 4 to 8 of this
Convention, no one under that age shall be admitted to employment or work in any
occupation.
2 Each Member which has ratified this Convention may subsequently notify the Director-
General of the International Labour Office, by further declarations, that it specifies a
minimum age higher than that previously specified.
3 The minimum age specified in pursuance of paragraph 1 of this Article shall not be less
than the age of completion of compulsory schooling and, in any case, shall not be less
than 15 years.
4 Notwithstanding the provisions of paragraph 3 of this Article, a Member whose economy
and educational facilities are insufficiently developed may, after consultation with the
organisations of employers and workers concerned, where such exist, initially specify a
minimum age of 14 years.
5 Each Member which has specified a minimum age of 14 years in pursuance of the
provisions of the preceding paragraph shall include in its reports on the application of
this Convention submitted under article 22 of the Constitution of the International Labour
Organisation a statement –

(a) that its reason for doing so subsists; or

(b) that it renounces its right to avail itself of the provisions in question as from a stated
date.

Article 3

1 The minimum age for admission to any type of employment or work which by its nature
or the circumstances in which it is carried out is likely to jeopardise the health, safety or
morals of young persons shall not be less than 18 years.
2 The types of employment or work to which paragraph 1 of this Article applies shall
be determined by national laws or regulations or by the competent authority, after
consultation with the organisations of employers and workers concerned, where such
exist.
3 Notwithstanding the provisions of paragraph 1 of this Article, national laws or regulations
or the competent authority may, after consultation with the organisations of employers
and workers concerned, where such exist, authorise employment or work as from the age
of 16 years on condition that the health, safety and morals of the young persons concerned
are fully protected and that the young persons have received adequate specific instruction
or vocational training in the relevant branch of activity.

Question
To what extent is this instrument standard-setting? Note the flexibility in the age limits.

While there may be some flexibility in the instrument as regards age, the position changes with
respect to the worst forms of child labour. Here there is an absolute prohibition.

ILO CONVENTION No. 182 ON THE WORST FORMS OF CHILD LABOUR 1999

Article 2

For the purposes of this Convention, the term child shall apply to all persons under the age of 18.
 CHILDREN  | 319

Article 3

For the purposes of this Convention, the term the worst forms of child labour comprises:

(a) all forms of slavery or practices similar to slavery, such as the sale and trafficking of
children, debt bondage and serfdom and forced or compulsory labour, including forced or
compulsory recruitment of children for use in armed conflict;
(b) the use, procuring or offering of a child for prostitution, for the production of pornography
or for pornographic performances;
(c) the use, procuring or offering of a child for illicit activities, in particular for the production
and trafficking of drugs as defined in the relevant international treaties;
(d) work which, by its nature or the circumstances in which it is carried out, is likely to harm
the health, safety or morals of children.
. . .

Article 7

1 Each Member shall take all necessary measures to ensure the effective implementation
and enforcement of the provisions giving effect to this Convention including the provision
and application of penal sanctions or, as appropriate, other sanctions.
2 Each Member shall, taking into account the importance of education in eliminating child
labour, take effective and time-bound measures to:

(a) prevent the engagement of children in the worst forms of child labour;
(b) provide the necessary and appropriate direct assistance for the removal of
children from the worst forms of child labour and for their rehabilitation and social
integration;
(c) ensure access to free basic education, and, wherever possible and appropriate,
vocational training, for all children removed from the worst forms of child labour;
(d) identify and reach out to children at special risk; and
(e) take account of the special situation of girls.

Several provisions of the United Nations Convention are also relevant for child labour. Note that
Article 31 further guarantees children the right to rest and leisure, the right to be a child. This
applies on top of existing employment provisions on rest and leisure time. These provisions are
inevitably problematic for some States as, although the principle is accepted, there may be real
abject poverty resulting in children having to work or starve. Clearly in such situations, the State
should be revising social security provisions to ensure children can enjoy an adequate standard of
living appropriate to ensure their development and respect for their rights and freedoms.

CONVENTION ON THE RIGHTS OF THE CHILD 1989

Article 32

1 States Parties recognize the right of the child to be protected from economic exploitation
and from performing any work that is likely to be hazardous or to interfere with the child’s
education, or to be harmful to the child’s health or physical, mental, spiritual, moral or
social development.
2 States Parties shall take legislative, administrative, social and educational measures to
ensure the implementation of the present article. To this end, and having regard to the
relevant provisions of other international instruments, States Parties shall in particular:

(a) Provide for a minimum age or minimum wages for admission to employment;
(b) Provide for appropriate regulation of the hours and conditions of employment;
320 | CHILDREN 

(c) Provide for appropriate penalties or other sanctions to ensure the effective
enforcement of the present article.

Article 33

1 States Parties recognize the right of the child to rest and leisure, to engage in play and
recreational activities appropriate to the age of the child and to participate freely in
cultural life and the arts.
2 States Parties shall respect and promote the right of the child to participate fully in cultural
and artistic life and shall encourage the provision of appropriate and equal opportunities
for cultural, artistic, recreational and leisure activity. . . .

Article 34

States Parties undertake to protect the child from all forms of sexual exploitation and sexual
abuse. For these purposes, States Parties shall in particular take all appropriate national,
bilateral and multilateral measures to prevent:

(a) The inducement or coercion of a child to engage in any unlawful sexual activity;
(b) The exploitative use of children in prostitution or other unlawful sexual practices;
(c) The exploitative use of children in pornographic performances and materials.

Article 35

States Parties shall take all appropriate national, bilateral and multilateral measures to
prevent the abduction of, the sale of or traffic in children for any purpose or in any form.

Article 36

States Parties shall protect the child against all other forms of exploitation prejudicial to any
aspects of the child’s welfare.

UNICEF and UNESCO are both heavily involved in promoting the rights of children. One of
the key areas in which these organisations are active is education. In many respects, education and
human rights education is the key to the future of the human rights movement (see Chapter 8).
Compulsory (and focused) education of children has been shown to protect against accidental
injury by landmines and the transmission of disease through poor personal hygiene. A number of
similar educational schemes are currently being funded globally. Educating children can also have
a positive effect on the parents and carers of the child. From a human rights perspective, much has
been done to generate an awareness of children’s rights among children.
The Special Rapporteur on the sale of children, child prostitution and child pornography was
created in 1990 by the former United Nations Commission on Human Rights amidst growing
international concern over the commercial sexual exploitation and the sale of children.

9.5 Regional instruments

Within the main regions, little attention has been paid to discrete children’s rights. Africa is the
sole exception as discussed later. The Council of Europe restricted themselves to encouraging
national mechanisms for enforcing the United Nations Convention on the Rights of the Child
(European Convention on the Exercise of Children’s Rights 1996, ETS 160). Perhaps part of the
reason is the fast and almost universal ratification of the United Nations Convention. Obviously,
the United Nations has a comparatively new instrument to which States have proven remarkably
receptive. Perhaps there is little that regional systems could add to the United Nations Convention.
 CHILDREN  | 321

Question
Revisit and consider the arguments for and against regional systems creating and protecting the range of human
rights. Is the ‘success’ of the United Nations Conventions sufficient justification for the lack of regional instruments?

9.5.1 African Charter on the Rights and Welfare of the Child

Within the regions, only Africa has adopted a substantial tabulation of children’s rights. In Africa,
over half the population of many countries are children hence the situation is often acute. In 1990,
the African Charter on the Rights and Welfare of the Child was adopted by the then OAU. It
applies to all human beings below the age of 18 and is reminiscent of the UN Convention, for
example the principle of the best interest of the child (Article 4). Children enjoy a variety of
rights, including the right to life, survival and development; the right to a name and national-
ity; freedom of expression, association, thought, conscience and religion; privacy; education; and
health care. Children are to be protected from abuse, economic and sexual exploitation, harmful
traditional practices, torture, armed conflict, apartheid and trafficking. Refugees and mentally and
handicapped children are singled out for particular care. All children are also entitled to have their
opinions heard in matters concerning them in specified situations (Article 4(2)). In keeping with
the ethos of the African Charter on Human and Peoples’ Rights, children are also the incumbents
of a series of duties. These include respecting their parents, serving the national community, pre-
serving African cultural values and contributing towards African unity (Article 31).

Question
In a region such as Africa, how feasible is the realisation of these rights? Consequently, what is the value of
the African Charter?

Given that children are owed the best the world has to give, what must be asked is whether the
current range of children’s rights realise that standard.

Further reading
Ackers, L., and Stalford, H., A Community for Children? Children, Citizenship and Internal Migra-
tion in the EU, 2004, London: Ashgate.
Alston, P., Parker, S., and Seymour, J. (eds), Children, Rights and the Law, 1992, Oxford: Clarendon.
Bonthuys, E., ‘The Best Interest of Children in the South African Constitution’ (2005) 20.1 Interna-
tional Journal of Law, Policy and the Family 23.
Buck, T., International Child Law, 2nd edn, 2010, London: Cavendish.
De Beco, G., ‘The Optional Protocol to the Convention on the Rights of the Child on Communica-
tions Procedure: Good News?’ (2013) 13.2 Human Rights Law Review 367–387.
Detrick, S., A Commentary on the United Nations Convention on the Rights of the Child, 1999, The
Hague: Martinus Nijhoff.
Eekelaar, J., ‘The Emergence of Children’s Rights’ (1986) 6 Oxford Journal of Legal Studies 161.
Eekelaar, J., ‘The Role of the Best Interests Principle in Decisions Affecting Children and Decisions
about Children’ (2015) 23 The International Journal of Children’s Rights 3–26.
Fenwick, H., ‘Clashing Rights, the Welfare of the Child and the Human Rights Act’ (2004) 76 Modern
Law Review 889.
Ferguson, L., ‘Not Merely Rights for Children but Children’s Rights: The Theory Gap and the
Assumption of the Importance of Children’s Rights’ (2013) 21 The International Journal of Chil-
dren’s Rights 177–208.
Freeman, M. (ed.), Children’s Rights – A Comparative Perspective, 1996, Aldershot: Dartmouth.
Hammarberg, T., ‘Children’ in A. Eide, C. Krause A. and Rosas (eds), Economic, Social and Cultural
Rights – A Textbook, 2003, The Hague: Martinus Nijhoff.
322 | CHILDREN 

Hammarberg, T., ‘The U.N. Convention on the Rights of the Child – and How to Make it Work’ (1990)
12 Human Rights Quarterly 97.
Happold, M., Child Soldiers in International Law, 2005, Manchester: Manchester University Press.
Hollingsworth, K. and Stalford, H., ‘Judging Parental Child Abduction: What Does It Mean to Adopt
a Children’s Rights Approach?’ in G. Douglas, M. Murch and V. Stephens (eds), International
and National Perspectives on Child and Family Law: Essays in Honour of Nigel Lowe, 2018, Cam-
bridge: Intersetia.
Jones, P., and Welch, S., Rethinking Children’s Rights: Attitudes in Contemporary Society, 2010,
London: Continuum.
Kilkelly, U., The Child and the European Convention on Human Rights, 1999, Aldershot: Ashgate.
Kilkelly, U., ‘The Best of Both Worlds for Children’s Rights? Interpreting the European Conven-
tion on Human Rights in the Light of the UN Convention on the Rights of the Child’ (2013) 23
Human Rights Quarterly 308–326.
Kuper, J., International Law Concerning Child Civilians in Armed Conflict, 1997, Oxford: OUP.
Lansdown, G., ‘The Reporting Process under the Convention on the Rights of the Child’ in P. Alston
and J. Crawford (eds), The Future of the UN Human Rights Treaty Monitoring, 2001, Cam-
bridge: CUP.
Lundy, L., and McEvoy, L., ‘Children’s Rights and Research Processes: Assisting Children to (in)
formed Views’ (2012) 19 Childhood 129–144.
Stalford, H., Hollingsworth, K., and Gilmore, S. (ed.), Rewriting Children’s Rights Judgments: From
Academic Vision to New Practice, 2017, Oxford, UK: Hart Bloomsbury.
Smolin, D., ‘Strategic Choices in the International Campaign against Child Labour’ (2000) 22
Human Rights Quarterly 942.
Sutherland, E.E., ‘Listening to the Child’s Voice in the Family Setting: From Aspiration to Reality’
(2014) 26.2 Child & Family Law Quarterly 152–172.
United Nations Office of the High Commissioner for Human Rights, The Rights of the Child, Fact
Sheet No. 10 (Rev. 1) Geneva: OHCHR.
Van Beuren, G., The International Law on the Rights of the Child, 1994, Dordrecht: Martinus Nijhoff.

Websites
www.unicef.org: United Nations Children’s Fund
www.unesco.org: United Nations Educational, Scientific and Cultural Organization
www.savethechildren.org: Save the Children International
https://www.ohchr.org/en/hrbodies/crc/pages/crcindex.aspx : United Nations Committee of the
Rights of the Child.
www.ilo.org: International Labour Organization
www.europeanchildrensnetwork.org: European Children’s Network
www.unicef-irc.org : Office of Research-Innocenti.
www.unicef.org/specialsession/wffc: A World Fit for Children: the United Nations Special Session
2002
https://www.un.org/millenniumgoals/2015_MDG_Report/pdf/MDG%202015%20PC%20final.pdf :
Millennium Development Goals and Progress
Chapter 10

Human rights defenders

Chapter contents

10.1 Who are human rights defenders? 324

10.2 What do human rights defenders do? 325
10.3 Rights of human rights defenders 330
10.4 Duties of human rights defenders 334
10.5 International Protection Framework 335
10.6 Regional framework 342
 
324 | HUMAN RIGHTS DEFENDERS

This chapter focuses on the human rights defenders. Twenty years after the adoption of the so-called
UN Declaration on Human Rights Defenders (General Assembly resolution A/RES/53/144; see
also Chapter 8), non-State actors who advocate for and defend human rights are under great
threat. Death rates for journalists are high in many countries, being a human rights advocate for
several civil and political rights, including anti-corruption, expression and land rights, can result
in arrest, detention and even death. The former High Commissioner for Human Rights reflected
on the increased resistance to human rights monitoring in his September 2016 speech opening
the Council’s tenth anniversary session. He noted that ‘Officials have protested that human rights
officers observing a public street demonstration are “interfering” in the State’s internal affairs.
Statements by my Office regarding credible allegations of violations – including excessively broad
and violent security sweeps; prosecutions that appear politically motivated; and the massive use of
capital punishment for crimes not consistent with the norms laid out by the ICCPR – are deemed
“biased”, “irresponsible”, “misleading” or based on “false” premises. Monitoring activities, and
advocacy intended to help better protect the people of your countries, are refuted as somehow
violating the principle of State sovereignty – or even the UN Charter. . . . Human rights viola-
tions will not disappear if a government blocks access to international observers and then invests
in a public relations campaign to offset any unwanted publicity. On the contrary, efforts to duck
or refuse legitimate scrutiny raise an obvious question: what, precisely, are you hiding from us?’ (www.
ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=20474).
This chapter will look at:

• Who are human rights defenders?

• What do human rights defenders do?
• What are the challenges faced by them?
• What rights to human rights defenders have?

10.1 Who are human rights defenders?

There is no universally agreed definition of a human rights defender. Essentially the term covers
people and groups who work to promote and protect human rights and fundamental freedoms
everywhere. That means that governments themselves, who are the primary duty bearers under
the international human rights system should be considered human rights defenders. However, all
too often governments are challenging/limiting the protection of human rights and threatening
those who choose to advocate for human rights. The main human rights defenders are therefore
others who seek to hold the government to account of its action or inaction and advocate the
protection and respect for any or all human rights.
On the occasion of the twentieth anniversary of the so-called UN Declaration on Human
Rights Defenders (see next), many UN independent experts addressed the subject:

Joint statement by a group of chairs, vice-chairs and members of the United Nations
Human Rights Treaty Bodies and the UN Special Rapporteur on Human
Rights Defenders 2018

A human rights defender means any person who, individually or in association with others,
acts or seeks to act to promote, protect or strive for the protection and realization of human
rights and fundamental freedoms, at the local, national, regional and international levels. They
advocate, vindicate, enforce, protect and promote human rights. Human rights defenders not
only identify human rights violations while drawing authorities’ attention to the consequences
of their actions and omissions, including rights set out in the Treaties, but also assist State
parties in developing public policies compliant with treaty obligations.
 HUMAN RIGHTS DEFENDERS | 325

This is arguably a broad definition but reflects the prevailing practice as the following definitions
make clear.

Ensuring protection – European Union Guidelines on Human Rights Defenders 2004

3. Human rights defenders are those individuals, groups and organs of society that promote
and protect universally recognised human rights and fundamental freedoms. Human rights
defenders seek the promotion and protection of civil and political rights as well as the
promotion, protection and realisation of economic, social and cultural rights. Human rights
defenders also promote and protect the rights of members of groups such as indigenous
communities. The definition does not include those individuals or groups who commit or
propagate violence.

Human Rights Defenders: Protecting the Right to Defend, OHCHR Human Rights Fact Sheet No. 29

B. Who can be a human rights defender?

There is no specific definition of who is or can be a human rights defender. The Declaration
on human rights defenders (see annex I) refers to ‘individuals, groups and associations .  .  .
contributing to . . . the effective elimination of all violations of human rights and fundamental
freedoms of peoples and individuals’ (fourth preambular paragraph). In accordance with this
broad categorization, human rights defenders can be any person or group of persons working
to promote human rights, ranging from intergovernmental organizations based in the world’s
largest cities to individuals working within their local communities. Defenders can be of any
gender, of varying ages, from any part of the world and from all sorts of professional or other
backgrounds. In particular, it is important to note that human rights defenders are not only
found within NGOs and intergovernmental organizations but might also, in some instances, be
government officials, civil servants or members of the private sector.

Anyone can be a human rights defender. Arguably indeed everyone should be a human rights
defender.

Question
Think about the ways in which you can be or are a human rights defender. Are your human rights defence and
advocacy activities ever under threat or challenged?

10.2 What do human rights defenders do?

As the preceding definitions show, human rights defenders can be any number of individuals or
groups that seek to ensure that human rights are protected. As the Office of the High Commis-
sioner for Human Rights (OHCHR) notes, human rights defenders are identified only by what
they do and it is through a description of their actions and of some of the contexts in which they
work that the term can best be explained.

Human Rights Defenders: Protecting the Right to Defend, Human Rights Fact Sheet No. 29

A. What do human rights defenders do?

1 All human rights for all

To be a human rights defender, a person can act to address any human right (or rights) on
behalf of individuals or groups. Human rights defenders seek the promotion and protection
326 | HUMAN RIGHTS DEFENDERS

of civil and political rights as well as the promotion, protection and realization of economic,
social and cultural rights. Human rights defenders address any human rights concerns,
which can be as varied as, for example, summary executions, torture, arbitrary arrest and
detention, female genital mutilation, discrimination, employment issues, forced evictions,
access to health care, and toxic waste and its impact on the environment. Defenders are
active in support of human rights as diverse as the rights to life, to food and water, to the
highest attainable standard of health, to adequate housing, to a name and a nationality, to
education, to freedom of movement and to non-discrimination. They sometimes address
the rights of categories of persons, for example women’s rights, children’s rights, the
rights of indigenous persons, the rights of refugees and internally displaced persons, and
the rights of national, linguistic or sexual minorities.

2 Human rights everywhere

Human rights defenders are active in every part of the world: in States that are divided by
internal armed conflict as well as States that are stable; in States that are non-democratic
as well as those that have a strong democratic practice; in States that are developing
economically as well as those that are classified as developed. They seek to promote
and protect human rights in the context of a variety of challenges, including HIV/AIDS,
development, migration, structural adjustment policies and political transition.

3 Local, national, regional and international action The majority of human rights defenders
work at the local or national level, supporting respect for human rights within their own
communities and countries. In such situations, their main counterparts are local authorities
charged with ensuring respect for human rights within a province or the country as a whole.
However, some defenders act at the regional or international level. They may, for example,
monitor a regional or worldwide human rights situation and submit information to regional
or international human rights mechanisms, including the special rapporteurs of the United
Nations Commission on Human Rights and United Nations treaty bodies. Increasingly,
the work of human rights defenders is mixed, with the focus being on local and national
human rights issues, but with defenders making contact with regional and international
mechanisms which can support them in improving human rights in their countries.

4 Collecting and disseminating information on violations

Human rights defenders investigate, gather information regarding and report on human
rights violations. They may, for example, use lobbying strategies to draw their reports to
the attention of the public and of key political and judicial officials to ensure that their
investigative work is given consideration and that human rights violations are addressed.
Most commonly, such work is conducted through human rights organizations, which
periodically publish reports on their findings. However, information may also be gathered
and reported by an individual focusing on one specific instance of human rights abuse.

5 Supporting victims of human rights violations

A very large proportion of the activities of human rights defenders can be characterized
as action in support of victims of human rights violations. Investigating and reporting
on violations can help end ongoing violations, prevent their repetition and assist victims
in taking their cases to courts. Some human rights defenders provide professional
legal advice and represent victims in the judicial process. Others provide victims with
counselling and rehabilitation support.

6 Action to secure accountability and to end impunity

Many human rights defenders work to secure accountability for respect for human
rights legal standards. In its broadest sense, this might involve lobbying authorities and
advocating greater efforts by the State to implement the international human rights
 HUMAN RIGHTS DEFENDERS | 327

obligations it has accepted by its ratification of international treaties. In more specific

instances, the focus on accountability can lead human rights defenders to bear witness,
either in a public forum (for example, a newspaper) or before a court or tribunal, to
human rights violations that have already occurred. In this way, defenders contribute
to securing justice on behalf of victims in specific cases of human rights violation and
to breaking patterns of impunity, thereby preventing future violations. A significant
number of defenders, frequently through organizations established for the purpose,
focus exclusively on ending impunity for violations. The same groups of defenders might
also work to strengthen the State’s capacity to prosecute perpetrators of violations, for
example by providing human rights training for prosecutors, judges and the police.

7 Supporting better governance and government policy

Some human rights defenders focus on encouraging a Government as a whole to fulfil

its human rights obligations, for example by publicizing information on the Government’s
record of implementation of human rights standards and monitoring progress made.
Some defenders focus on good governance, advocating in support of democratization and
an end to corruption and the abuse of power, and providing training to a population on how
to vote and why their participation in elections is important.

8 Contributing to the implementation of human rights treaties

Human rights defenders make a major contribution, particularly through their organizations,
to the material implementation of international human rights treaties. Many non-
governmental organizations (NGOs) and intergovernmental organizations help to establish
housing, health care and sustainable income-generation projects for poor and marginalized
communities. They offer training in essential skills and provide equipment such as computers
to give communities improved access to information. This group merits particular attention
as its members are not always described as human rights defenders and they themselves
may not use the term ‘human rights’ in a description of their work, focusing instead on terms
such as ‘health’, ‘housing’ or ‘development’ which reflect their area of activity. Indeed, many
of these activities in support of human rights are described in general terms as development
action. Many NGOs and United Nations bodies fall within these categories. Their work, as
much as that of other human rights defenders, is central to respect for and protection and
achievement of human rights standards, and they need and deserve the protection given to
their activities by the Declaration on human rights defenders.

9 Human rights education and training

A further major action undertaken by human rights defenders is the provision of human
rights education. In some instances, education activities take the form of training for
the application of human rights standards in the context of a professional activity, for
example by judges, lawyers, police officers, soldiers or human rights monitors. In other
instances, education may be broader and involve teaching about human rights in schools
and universities or disseminating information on human rights standards to the general
public or to vulnerable populations.

Ensuring protection – European Union Guidelines on Human Rights Defenders 2008

5. The work of human rights defenders often involves criticism of government policies and actions.
However, governments should not see this as a negative. The principle of allowing room for
independence of mind and free debate on a government’s policies and actions is fundamental, and
is a tried and tested way of establishing a better level of protection of human rights. Human rights
defenders can assist governments in promoting and protecting human rights. As part of consultation
processes they can play a key role in helping to draft appropriate legislation, and in helping to draw
up national plans and strategies on human rights. This role too should be recognised and supported.
328 | HUMAN RIGHTS DEFENDERS

10.2.1 Case Study: Business and Human Rights

As was explored in Chapter 8, civil society organisations can play a range of roles in helping to
ensure that rights are respected, protected and fulfilled. Perhaps nowhere is the role of NGOs as
HR Defenders more evident than in the area of business and human rights.
NGOs have consistently investigated the activities of businesses in some of the most danger-
ous parts of the globe. In what some term a process of ‘information gathering’ on activities which
violate human rights, NGOs put pressure on businesses to respect rights by, and press governments
to adopt, stronger regulatory frameworks. The report by Human Rights Watch provides a flavour
of NGOs as HR Defenders in the context of business and human rights.

Human Rights Watch, ‘Without Remedy: Human Rights Abuse and Indonesia’s Pulp and Paper
Industry’, vol. 15, no. 1(C), January 2003

This report details three cases of attacks on protesting villagers by security forces of Arara Abadi,
APP’s primary pulp supplier and sister company (both are owned by parent conglomerate Sinar
Mas Group). In all three cases, Indonesian police, who trained the civilian security force and
were present during the attacks, were complicit in the attacks. Out of hundreds of assailants,
moreover, Human Rights Watch is aware of only two who were brought to trial, and those two,
convicted of assault and battery, were released for time served (only thirty days).
Human Rights Watch does not condone illegal actions by community members and
recognizes the company’s obligation to protect personnel and property. The use of excessive
force by company-funded militias, however, cannot be justified as a response to community
protests, even where those protests themselves include illegal actions. The acquiescence of
state security forces and, sometimes, their direct assistance in the militia attacks, moreover,
has meant that villagers have no recourse for the violations. Impunity for those responsible for
beatings is directly fuelling this cycle of vigilante justice.
The attacks described in this report are only the latest turn in a vicious circle in which
environmental depredation and human rights violations have gone hand in hand in Riau. In order
to appreciate how this scenario of violence developed and the wide scope of its occurrence,
it is essential to understand the history of the development of forest sector and financial
policies in Indonesia. Community disputes against Arara Abadi are rooted in routine seizures of
community lands during Soeharto’s ‘New Order’ administration. Community members say that
they were afraid to protest, because those who resisted ‘government projects’ (as commercial
operations were often represented to local communities) were frequently arrested or beaten
by an unaccountable military and police who served as corporate protection, and who were
also direct beneficiaries of and partners in forest businesses. Soeharto used the award of
forest concessions as a means of consolidating political power and prioritized industrial uses
of resources over subsistence and the claims of local communities-practices that engendered
deep resentments that continue to simmer even under post-Soeharto ‘reform’ administrations.

10.2.2 Risks and Dangers

Because HR defenders are often involved in holding to account politically or economically pow-
erful actors, they are often confronted with numerous dangers. As will be discussed in due course,
HR Defenders now enjoy a range of rights.

Committee against Torture

Decision adopted by the Committee under article 22 of the Convention, concerning

communication No. 841/2017, 23 January 2019

3.2 In the Democratic Republic of the Congo, human rights defenders are persecuted, arrested
and even killed, and the political situation in the country is currently tense owing to the collapse
 HUMAN RIGHTS DEFENDERS | 329

of political talks between the Government and the opposition. These assertions are supported
by several reports and various human rights sources, which denounce serious mass violations
of the rights of human rights defenders by the security forces.

Report of the Special Rapporteur on the situation of human rights defenders,

Margaret Sekaggya A/HRC/25/55, 23 December 2013

58. Defenders and their families are intimidated, harassed, subject to surveillance, threatened,
attacked, arbitrarily arrested, criminalized, tortured and ill-treated in detention, subject
to enforced disappearances, and sometimes killed. State and non-State actors are involved
in the commission of these acts and impunity tends to prevail when it comes to attacks and
violations against defenders. Investigations are excessively protracted, due process is not
always guaranteed and perpetrators are often not held accountable.
59. During her tenure, the Special Rapporteur has seen the space for civil society and
defenders visibly shrink in certain regions of the world. She has also observed the consolidation
of more sophisticated forms of silencing their voices and impeding their work, including the
application of legal and administrative provisions or the misuse of the judicial system to
criminalize and stigmatise their activities. These patterns not only endanger the physical
integrity and undermine the work of human rights defenders, but also impose a climate of fear
and send an intimidating message to society at large.

Office for Democratic Institutions and Human Rights HUMAN RIGHTS DEFENDERS IN THE
OSCE REGION: CHALLENGES AND GOOD PRACTICES APRIL 2007 – APRIL 2008

1.2 Threats to, and attacks on, the physical integrity of human rights defenders

Defenders continued to face serious attacks on, and threats to, their physical and psychological
integrity during the period under consideration. At least three defenders were killed. Human
rights activists were subjected to abduction, ill-treatment in custody, and poor detention
conditions that affected their health. They were attacked and threatened, subjected to
harassment and intimidation, and their family members were harassed.
The following examples describe some of the circumstances and challenges affecting
human rights defenders.

Killings
• A well-known journalist who had been active in uncovering and reporting on human rights
abuses in a neighbouring country was shot and killed by an unknown gunman.
• A defender and member of an opposition party was shot by unknown individuals in the
stairwell of the block of flats where he lived with his family.
• A defender was arrested by police, without a warrant, and taken to a police station where
he was subsequently detained. The following day, he was found dead in his cell, having
allegedly committed suicide by hanging himself with his shirt. The preliminary results of
a post mortem examination revealed that he had died as a result of asphyxiation. However,
it was also reported that there were wounds on his body and that he showed signs of
having been brutally beaten. He was reportedly arrested for his alleged involvement in
persuading high-ranking local government officials to move to the opposition. He had
also participated in a hunger strike along with 50 to 80 other individuals calling for
constitutional reforms.

Abduction
• The head of a human rights NGO and three journalists were abducted by unidentified
masked men pretending to be anti-terrorism officers at the hotel where they were staying
330 | HUMAN RIGHTS DEFENDERS

prior to a demonstration they planned to cover. They were first beaten by their captors and
then detained for several hours by police after filing a complaint.

Ill-treatment in custody
• A journalist and member of an opposition movement was arrested while undergoing a
medical examination and was placed in a psychiatric hospital, where she was allegedly
beaten, injected with drugs, and tied to a bed. Two weeks after her arrest, the local district
court ordered compulsory treatment for her, after which she was placed in a wing for
violent patients. Her arrest followed her publication of an article about the ill-treatment
of children in psychiatric hospitals. She was released a month later.

Deterioration of health due to detention conditions

• A freelance journalist who wrote articles about government corruption was kept in a
psychiatric hospital for a year and a half. While there, he smuggled a note to his friends
in which he reported that his health was worsening, including memory loss, difficulties
concentrating, and partial loss of vision.
• A defender who was sentenced to eight years’ imprisonment reportedly spent seven
months in solitary confinement and was held in a psychiatric unit for drug addicts
and the mentally ill. Her health deteriorated as a result of the conditions in which
she was being held. It was reported that she had lost approximately 20 kilograms and
was suffering from low blood pressure as well as a kidney-related illness caused by
cold.

Human Rights Defenders: Protecting the Right to Defend, Human Rights Fact Sheet No. 29

In many parts of the world, the traditional role of women is perceived as integral to a society’s
culture. This can make it especially hard for women human rights defenders to question and
oppose aspects of their tradition and culture when they violate human rights. Female genital
mutilation is a good example of such practices, although there are many others. Similarly,
many women are perceived by their communities as an extension of the community itself. If a
woman human rights defender is the victim of a rape because of her human rights work she
may be perceived by her extended family as having brought shame on both the family and the
wider community.
As a human rights defender she must carry the burden not only of the trauma of the rape,
but also of the notion within her community that, through her human rights work, she has
brought shame on those around her. Even where no rape or other attack has occurred, women
who choose to be human rights defenders must often confront the anger of families and
communities that consider them to be jeopardizing both honour and culture. The pressures to
stop human rights work can be very strong. Women human rights defenders having day-to-day
responsibility for the care of young children or elderly parents often find it very hard to continue
their human rights work knowing that arrest and detention would prevent them from fulfilling
that role in the family.

10.3 Rights of human rights defenders

The United Nations has created several instruments that are essential for the work of human rights
defenders and in particular ensuring that their rights are respected. Among these is the Univer-
sal Declaration of Human Rights, of which articles 19, 20 and 28 refer to freedom of opinion
and speech, the right of peaceful assembly and association and the right to an established social
and international order in which these rights and freedoms are fully effective. The International
 HUMAN RIGHTS DEFENDERS | 331

Covenant on Civil and Political Rights in articles 19, 21 and 22 recognises and guarantees freedom
of opinion and speech as well as the right to peaceful assembly and association.

UNIVERSAL DECLARATION OF HUMAN RIGHTS, 1948

Article 19

Everyone has the right to freedom of opinion and expression; this right includes freedom to
hold opinions without interference and to seek, receive and impart information and ideas
through any media and regardless of frontiers.

Article 20

(1) Everyone has the right to freedom of peaceful assembly and association.
(2) No one may be compelled to belong to an association.

Article 28

Everyone is entitled to a social and international order in which the rights and freedoms set
forth in this Declaration can be fully realized.

INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS 1966

Article 19

1 Everyone shall have the right to hold opinions without interference.

2 Everyone shall have the right to freedom of expression; this right shall include freedom to
seek, receive and impart information and ideas of all kinds, regardless of frontiers, either
orally, in writing or in print, in the form of art, or through any other media of his choice.
3 The exercise of the rights provided for in paragraph 2 of this article carries with it special
duties and responsibilities. It may therefore be subject to certain restrictions, but these
shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public
health or morals.

Article 21

The right of peaceful assembly shall be recognized. No restrictions may be placed on the
exercise of this right other than those imposed in conformity with the law and which are
necessary in a democratic society in the interests of national security or public safety, public
order (ordre public), the protection of public health or morals or the protection of the rights
and freedoms of others.

Article 22

1 Everyone shall have the right to freedom of association with others, including the right to
form and join trade unions for the protection of his interests.
2 No restrictions may be placed on the exercise of this right other than those which are
prescribed by law and which are necessary in a democratic society in the interests of
national security or public safety, public order (ordre public), the protection of public
health or morals or the protection of the rights and freedoms of others. This article shall
not prevent the imposition of lawful restrictions on members of the armed forces and of
the police in their exercise of this right.
3 Nothing in this article shall authorize States Parties to the International Labour
Organisation Convention of 1948 concerning Freedom of Association and Protection of the
332 | HUMAN RIGHTS DEFENDERS

Right to Organize to take legislative measures which would prejudice, or to apply the law
in such a manner as to prejudice, the guarantees provided for in that Convention.

On 9 December 1998 under Resolution 53/144, the General Assembly of the United Nations
adopted the Declaration on the Right and Responsibility of Individuals, Groups and Organs of
Society to Promote and Protect Universally Recognized Human Rights and Fundamental Free-
doms, known as the Declaration on Human Rights Defenders. This document outlines a number
of specific rights belonging to human rights defenders.

RESOLUTION ADOPTED BY THE GENERAL ASSEMBLY, 53/144

Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote
and Protect Universally Recognized Human Rights and Fundamental Freedoms

Article 1

Everyone has the right, individually and in association with others, to promote and to strive for
the protection and realization of human rights and fundamental freedoms at the national and
international levels.

Article 5

For the purpose of promoting and protecting human rights and fundamental freedoms, everyone
has the right, individually and in association with others, at the national and international levels:

(a) To meet or assemble peacefully;

(b) To form, join and participate in non-governmental organizations, associations or groups;
(c) To communicate with non-governmental or intergovernmental organizations.

Article 6

Everyone has the right, individually and in association with others:

(a) To know, seek, obtain, receive and hold information about all human rights and fundamental
freedoms, including having access to information as to how those rights and freedoms are
given effect in domestic legislative, judicial or administrative systems;
(b) As provided for in human rights and other applicable international instruments, freely to
publish, impart or disseminate to others views, information and knowledge on all human
rights and fundamental freedoms;
(c) To study, discuss, form and hold opinions on the observance, both in law and in practice,
of all human rights and fundamental freedoms and, through these and other appropriate
means, to draw public attention to those matters.

Article 7

Everyone has the right, individually and in association with others, to develop and discuss new
human rights ideas and principles and to advocate their acceptance.

Article 8

1 Everyone has the right, individually and in association with others, to have effective access,
on a non-discriminatory basis, to participation in the government of his or her country and
in the conduct of public affairs.
2 This includes, inter alia, the right, individually and in association with others, to submit
to governmental bodies and agencies and organizations concerned with public affairs
criticism and proposals for improving their functioning and to draw attention to any
 HUMAN RIGHTS DEFENDERS | 333

aspect of their work that may hinder or impede the promotion, protection and realization
of human rights and fundamental freedoms.

Article 9
1 In the exercise of human rights and fundamental freedoms, including the promotion and
protection of human rights as referred to in the present Declaration; everyone has the
right, individually and in association with others, to benefit from an effective remedy and
to be protected in the event of the violation of those rights.
2 To this end, everyone whose rights or freedoms are allegedly violated has the right,
either in person or through legally authorized representation, to complain to and have
that complaint promptly reviewed in a public hearing before an independent, impartial
and competent judicial or other authority established by law and to obtain from such
an authority a decision, in accordance with law, providing redress, including any
compensation due, where there has been a violation of that person’s rights or freedoms,
as well as enforcement of the eventual decision and award, all without undue delay.

Article 11
Everyone has the right, individually and in association with others, to the lawful exercise of
his or her occupation or profession. Everyone who, as a result of his or her profession, can
affect the human dignity, human rights and fundamental freedoms of others should respect
those rights and freedoms and comply with relevant national and international standards of
occupational and professional conduct or ethics.

Article 13

Everyone has the right, individually and in association with others, to solicit, receive and
utilize resources for the express purpose of promoting and protecting human rights and
fundamental freedoms through peaceful means, in accordance with article 3 of the present
Declaration.

Many of these rights are especially important for human rights defenders given the nature of their
work. They regularly must work with together others, in an outwith the state. Their freedoms of
assembly, expression and association are more likely to be restricted than many others in a state,
not least as they may be discussing, sharing information on and working on issues which the state
does not support. Land and environmental rights are an example. Moreover, the work of human
rights defenders is frequently seeking to hold the state itself to account for violations and potential
infringements of its human rights obligations.

Report of the Special Rapporteur on the situation of human rights defenders,

Margaret Sekaggya, A/HRC/25/55, 23 December 2013

60. The defence and promotion of human rights is a legitimate and courageous activity which
is necessary to ensure that communities can fully enjoy their entitlements and realize their
potential. Defenders can play a key role in safeguarding democracy and ensuring that it
remains open, pluralistic and participatory and in line with the principles of rule of law and
good governance. Defenders should be able to carry out their activities in an environment that
empowers them to defend all human rights for all.
334 | HUMAN RIGHTS DEFENDERS

10.4 Duties of human rights defenders

As with international human rights law more generally, rights of individuals and groups also give
rise to corresponding duties on the part of the State.

RESOLUTION ADOPTED BY THE GENERAL ASSEMBLY, 53/144.

Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote
and Protect Universally Recognized Human Rights and Fundamental Freedoms

Article 2

1 Each State has a prime responsibility and duty to protect, promote and implement all
human rights and fundamental freedoms, inter alia, by adopting such steps as may be
necessary to create all conditions necessary in the social, economic, political and other
fields, as well as the legal guarantees required to ensure that all persons under its
jurisdiction, individually and in association with others, are able to enjoy all those rights
and freedoms in practice.
2 Each State shall adopt such legislative, administrative and other steps as may be
necessary to ensure that the rights and freedoms referred to in the present Declaration
are effectively guaranteed.

Article 12

1 Everyone has the right, individually and in association with others, to participate in
peaceful activities against violations of human rights and fundamental freedoms.
2 The State shall take all necessary measures to ensure the protection by the competent
authorities of everyone, individually and in association with others, against any violence,
threats, retaliation, de facto or de jure adverse discrimination, pressure or any other
arbitrary action as a consequence of his or her legitimate exercise of the rights referred
to in the present Declaration.
3 In this connection, everyone is entitled, individually and in association with others, to
be protected effectively under national law in reacting against or opposing, through
peaceful means, activities and acts, including those by omission, attributable to States
that result in violations of human rights and fundamental freedoms, as well as acts of
violence perpetrated by groups or individuals that affect the enjoyment of human rights
and fundamental freedoms.

Article 14

1 The State has the responsibility to take legislative, judicial, administrative or other
appropriate measures to promote the understanding by all persons under its jurisdiction
of their civil, political, economic, social and cultural rights.
2 Such measures shall include, inter alia:

(a) The publication and widespread availability of national laws and regulations and of
applicable basic international human rights instruments;
(b) Full and equal access to international documents in the field of human rights,
including the periodic reports by the State to the bodies established by the
international human rights treaties to which it is a party, as well as the summary
records of discussions and the official reports of these bodies.

3 The State shall ensure and support, where appropriate, the creation and development
of further independent national institutions for the promotion and protection of human
rights and fundamental freedoms in all territory under its jurisdiction, whether they be
ombudsmen, human rights commissions or any other form of national institution.
 HUMAN RIGHTS DEFENDERS | 335

Article 15

The State has the responsibility to promote and facilitate the teaching of human rights and
fundamental freedoms at all levels of education and to ensure that all those responsible for
training lawyers, law enforcement officers, the personnel of the armed forces and public
officials include appropriate elements of human rights teaching in their training programme.

In 2013, the Human Rights Council adopted a resolution specifically addressing human rights
defenders, which sought to reaffirm the commitments made by States in the Declaration on the
Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect
Universally Recognized Human Rights and Fundamental Freedoms.

Resolution adopted by the Human Rights Council 22/6. Protecting human rights defenders

2. Urges States to create a safe and enabling environment in which human rights defenders
can operate free from hindrance and insecurity, in the whole country and in all sectors of
society, including by extending support to local human rights defenders;
3. Stresses that legislation affecting the activities of human rights defenders and its
application must be consistent with international human rights law, including the International
Covenant on Civil and Political Rights and the International Covenant on Economic, Social and
Cultural Rights, and guided by the Declaration on the Right and Responsibility of Individuals,
Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights
and Fundamental Freedoms, and, in this regard, condemns the imposition of any limitations
on the work and activities of human rights defenders enforced in contravention of international
human rights law;
6. Calls upon States to ensure that human rights defenders can perform their important
role in the context of peaceful protests, in accordance with national legislation consistent with
the Charter of the United Nations and international human rights law and, in this regard, to
ensure that no one is subject to excessive or indiscriminate use of force, arbitrary arrest or
detention, torture or other cruel, inhuman or degrading treatment or punishment, enforced
disappearance, abuse of criminal and civil proceedings or threats of such acts;
7. Underlines that the access to and use of information technologies and the media of
one’s choice, including radio, television and the Internet, should be promoted and facilitated
at the national level, between States and at the international level as an integral part of
the enjoyment of the fundamental rights to freedom of opinion and expression, and also
encourages international cooperation aimed at the development of media and information and
communications technologies in all countries

10.5 International Protection Framework

The international system of human rights has developed a number of ways to both protect the
rights of human rights defenders and ensure that States are adhering to their obligations under
international law. The following discussion focuses on two: the Special Rapporteur on the situa-
tion of human rights defenders and human rights treaty bodies.

10.5.1 Special Rapporteur on the situation of human

rights defenders
Two years after the Declaration, the United Nations Human Rights Commission asked the Secre-
tary General to appoint a Special Representative on human rights defenders to monitor and support
the implementation of the declaration. On 26 April 2000, Resolution E/CN.4/RES/2000/61
336 | HUMAN RIGHTS DEFENDERS

led to the creation of the post of Special Representative for Human Rights Defenders. In 2008,
Resolution 7/884 led to a renewal of the mandate on the special procedure for the situation of
human rights defenders but this time appointing a Special Rapporteur rather than a Special Rep-
resentative of the Secretary General.

Human Rights Council Resolution 7/8. Mandate of the Special Rapporteur

on the situation of human rights defenders

2. Decides to extend the special procedure on the situation of human rights defenders as a
Special Rapporteur for a period of three years, and requests the Special Rapporteur:

(a) To promote the effective and comprehensive implementation of the Declaration on the
Right and Responsibility of Individuals, Groups and Organs of Society to Promote and
Protect Universally Recognized Human Rights and Fundamental Freedoms through
cooperation and constructive dialogue and engagement with Governments, relevant
stakeholders and other interested actors;
(b) To study, in a comprehensive manner, trends, developments and challenges in relation
to the exercise of the right of anyone, acting individually or in association with others, to
promote and protect human rights and fundamental freedoms;
(c) To recommend concrete and effective strategies to better protect human rights defenders
through the adoption of a universal approach, and to follow up on these recommendations;
(d) To seek, receive, examine and respond to information on the situation and the rights of
anyone, acting individually or in association with others, to promote and protect human
rights and fundamental freedoms;
(e) To integrate a gender perspective throughout the work of his/her mandate, paying
particular attention to the situation of women human rights defenders;
(f) To work in close coordination with other relevant United Nations bodies, offices,
departments and specialized agencies, both at Headquarters and at the country level, and
in particular with other special procedures of the Council;
(g) To report regularly to the Council and the General Assembly;

In its capacity, the Special Rapporteur has focused on developing protection at the national level
for human rights defenders.

Human Rights Council Twenty-fifth session Agenda item 3 Promotion and protection of all
human rights, civil, political, economic, social and cultural rights, including the right to
development Report of the Special Rapporteur on the situation of human rights
defenders, Margaret Sekaggya, A/HRC/25/55, 23 December 2013

54. In line with the Declaration on Human Rights Defenders, the primary duty and responsibility
to promote and protect human rights and fundamental freedoms lies with the State. This
includes guaranteeing the right of everyone, individually and in association with others,
to promote and strive for the protection and realization of human rights and fundamental
freedoms at the national and international levels (art. 1). Thus, States have the obligation to
undertake the required steps to create all conditions necessary, including in the political and
legal domains, to ensure that everyone under their jurisdiction can enjoy all those rights and
freedoms in practice (art. 2), including the right to promote and defend human rights.
55. The State has a duty to protect those who work for the promotion and protection
of human rights defenders under their jurisdiction, regardless of the status of the alleged
perpetrators, from any violence threats, or any other arbitrary action as a consequence of the
legitimate exercise of their work (art. 12). The State’s duty to protect the rights of defenders
 HUMAN RIGHTS DEFENDERS | 337

from violations committed by States and non-State actors is derived from each State’s primary
responsibility and duty to protect all human rights.
56. From the Declaration, the Special Rapporteur believes that the main responsibility
for ensuring that defenders can enjoy a safe and enabling environment lies with the State as
the main duty-bearer. However, she considers that the role, responsibilities and behaviour of
relevant stakeholders need to be taken into account.
57. The mandate has repeatedly addressed the great risks and challenges that defenders
face due to their work. The Special Rapporteur regrets to say that defending rights and speaking
up against violations and abuses still remains a dangerous activity.
61. The Special Rapporteur has repeatedly underlined the need to create and consolidate
a safe and enabling environment for defenders and has elaborated on some of the basic
elements that she believes are necessary in this regard. These elements include a conducive
legal, institutional and administrative framework; access to justice and an end to impunity
for violations against defenders; strong and independent national human rights institutions;
effective protection policies and mechanisms paying attention to groups at risk; specific
attention to women defenders; non-State actors that respect and support the work of
defenders; safe and open access to international human rights bodies; and a strong and
dynamic community of defenders.

A. Conducive legal, institutional and administrative framework

62. One of the key elements of a safe and enabling environment for defenders is the existence of
laws and provisions at all levels, including administrative provisions, that protect, support and
empower defenders, and are in compliance with international human rights law and standards.
Moreover, institutional frameworks should be shaped in such a way that they are receptive and
supportive of defenders’ work.
67. The Special Rapporteur has noted that there is a number of worrying developments
with regard to legislation regulating associations, including their establishment, functioning
and funding. During her tenure, she has also seen the introduction of restrictions on the types
of activities that associations can engage in, such as political rights advocacy.
68. The Special Rapporteur has observed a disturbing trend towards the criminalization
of activities carried out by unregistered groups. She believes that denial of registration is an
extreme measure curtailing the right to freedom of association; especially where activities
carried out by unregistered organizations carry criminal sanctions.
71. In this context, the Special Rapporteur welcomes the landmark resolution 22/6
adopted by the Council which provides significant guidance on creating a safe and enabling
environment for human rights defenders. In the resolution, States are urged to ensure that
reporting requirements placed upon organizations do not obstruct their autonomy and that
restrictions are not discriminatorily imposed on potential sources of funding other than those
laid down to ensure transparency and accountability, and according to the Special Rapporteur,
this should be done regardless of the geographic origin of funding. Furthermore, States are
called upon to combat terrorism and preserve national security by adopting measures that
are in compliance with international law and do not hinder the work and safety of defenders. It
further urges States to ensure that all legal provisions and their application are clearly defined,
determinable and non-retroactive so that the defence and promotion of human rights is not
criminalized.
72. In addition to, and as a complement to, ensuring a conducive normative and
administrative framework, States should disseminate the Declaration widely. In line with article
13 of the Declaration, human rights educational programmes, especially those addressed to
law enforcement and public officials, should include modules based on the text that reaffirm
the basic right to defend human rights and the role that human rights defenders play in society.
Enabling human rights defenders’ work also involves periodically recognizing and informing
338 | HUMAN RIGHTS DEFENDERS

populations about the rights and responsibilities of all individuals to promote and protect
human rights.

B. Fight against impunity and access to justice for violations against defenders

74. States should ensure prompt and independent investigation of all violations against
defenders, and the prosecution of alleged perpetrators regardless of their status. They should
also ensure for victims of violations access to just and effective remedies, including appropriate
compensation. The provision of an effective remedy should be understood as access to judicial
and administrative or quasi-judicial mechanisms. Investigation and prosecution should rest on
an effective and independent judiciary.
75. States should also implement the interim measures of protection granted by
international and regional human rights mechanisms to defenders.
76. Unfortunately, in many instances, weaknesses in the judicial system and flaws in the
legal framework have deprived defenders of adequate tools for seeking and obtaining justice.
Therefore, strengthening the judiciary and making sure that it can operate independently and
effectively should be a priority for States.

C. Strong, independent and effective national human rights institutions

77. As part of the institutional architecture of the State, the Special Rapporteur has underlined
the key role that national human rights institutions can play in ensuring a safe and conducive
environment for defenders (A/HRC/22/47). National human rights institutions that comply with
the Paris Principles are in a unique position to guide and advise Governments on their human
rights obligations, and ensure that international principles and standards are adequately
incorporated into domestic law and mainstreamed into public policies.
79. The Special Rapporteur has also emphasized that national human rights institutions
can play a crucial role in the protection of human rights defenders. Evidence shows that when
the mandate of national institutions includes competence to investigate complaints and provide
effective protection, they can play a leading role in cases where States’ judicial systems are
unable or unwilling to adjudicate on alleged violations against defenders.
80. The Special Rapporteur has also strongly recommended that national institutions
have a designated focal point for human rights defenders with responsibility to monitor their
situation, including risks to their security, and legal and other impediments to a safe and
conducive environment for defenders.
81. The role of national institutions in monitoring legal and administrative frameworks
which regulate the work of defenders was highlighted in Council resolution 22/6, adopted in
March 2013. This landmark resolution underlines the important role of these institutions in
monitoring existing and draft legislation, and informing States about the impact or potential
impact of legislation on the work of defenders.
82. In addition, national institutions could play an important role in disseminating
information about protection programmes for defenders, where they exist, and ensuring that
defenders are closely involved in the design, implementation and evaluation thereof.
83. The Special Rapporteur believes that, in order to ensure the credibility of the work of
national institutions, Governments must be responsive and ensure adequate follow-up and
implementation of their recommendations. This is particularly important given that most of
these institutions have advisory functions. Governments should therefore work proactively to
implement these recommendations, and follow-up should be tracked and evaluated.

D. Effective protection policies and mechanisms, including public support for the work of defenders

84. The Special Rapporteur has advocated for the use of public policies and specific institutional
mechanisms to provide protection when it is considered necessary to guarantee a safe and
enabling environment for defenders.
 HUMAN RIGHTS DEFENDERS | 339

85. During her tenure, the Special Rapporteur has focused extensively on the security
challenges faced by human rights defenders in the conduct of their activities and has issued
recommendations regarding the development of protection programmes (A/HRC/13/22). She
has repeatedly underlined that the State has an obligation to protect human rights defenders,
investigate violations and prosecute the perpetrators. This obligation extends to acts and
omissions of non-State actors.
86. In an attempt to delegitimize their work and activities, defenders are often branded
enemies of the State or terrorists. This stigmatization makes defenders even more vulnerable
to attacks, especially by non-State actors. Therefore, as part of protection policy, it is of crucial
importance that the work and role of defenders be publicly acknowledged by State officials at
the highest level. The Special Rapporteur believes that a public acknowledgment of defenders’
work could contribute to providing their work with due recognition and legitimacy.

10.5.2 Treaty Bodies

Human Rights Treaty bodies all provide a degree of protection for HR Defenders, both through
the issuing of comments and recommendations, and also through individual complaints proce-
dures. The Human Rights Committee provides useful examples.

Human Rights Committee

General comment No. 36 (2018) on article 6 of the International Covenant on Civil and Political
Rights, on the right to life, 30 October 2018

23. The duty to protect the right to life requires States parties to take special measures of
protection towards persons in situation of vulnerability whose lives have been placed at
particular risk because of specific threats or pre-existing patterns of violence. These include
human rights defenders . . .
53. Article 6 also reinforces the obligations of States parties under the Covenant and the
Optional Protocol to protect individuals against reprisals for promoting and striving to protect
and realize human rights, including through cooperation or communication with the Committee.
States parties must take the necessary measures to respond to death threats and to provide
adequate protection to human rights defenders, including the creation and maintenance of a
safe and enabling environment for defending human rights.

Human Rights Committee

Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning
communication No. 2577/2015

9.2 The author has claimed that the State party violated article 7, alone and in conjunction with
article 2 (3) of the Covenant, as her husband, a human rights defender, who monitored trials
and wrote pamphlets on human rights issues, was subjected to incommunicado detention for
over one week after his arrest, during which he was tortured; and that after his conviction he
was repeatedly and severely beaten, held in isolation and stripped of his clothing, handcuffed
and held in an unheated prison cell for 23 days despite temperatures below freezing. In that
connection, the Committee notes the State party’s submission that neither Mr. Formonov nor
his lawyers had initially complained about his alleged torture and that his accusations about
torture in his appeal complaint were examined in the course of the appeal hearing and were
not found to be confirmed by the appeals court. The Committee, however, notes that the chosen
counsel of the author and her husband, Mr. Yakubov, lodged several complaints to no avail; and
that the author has presented the instances of torture in great detail, including information on
how her husband was tortured, who was present during such torture and certain statements
340 | HUMAN RIGHTS DEFENDERS

made during such torture. Mr. Formonov’s post-conviction torture was also well detailed,
including his placement in isolation cells, continual beatings that left him unable to walk for
over a week, his placement in unheated cells where the sub-freezing temperatures left him
ill, his being strangled by prison authorities and threats of imprisonment of his children. The
Committee further notes the author’s assertion that the family was only granted a small number
of meetings with Mr. Formonov in order to conceal evidence of his torture. The Committee
notes that the State party has provided no documentary evidence of any specific inquiry into
the numerous allegations of ill-treatment. The Committee further notes the State party has
not provided any explanation as to the reasons for which Mr. Formonov was transferred to
other prison facilities during visits to Jasluk by the Red Cross. The Committee considers that,
under the circumstances, the State party has failed to demonstrate in a satisfactory manner
how its authorities adequately addressed the allegations of torture and ill-treatment made by
the authors in any meaningful way. It recalls that the burden of proof in regard to torture or
ill-treatment cannot rest alone on the author of a communication, especially in view of the fact
that the author and the State party do not always have equal access to the evidence and that
frequently the State party alone has access to the relevant information. The State party has the
duty to conduct a prompt, effective and independent investigation of all credible allegations of
violations of article 7 of the Covenant. Under those circumstances, the Committee considers that
due weight must be given to the author’s allegations of torture and ill-treatment. Accordingly,
the Committee concludes that the facts as presented by the author reveal a violation of Mr.
Formonov’s rights under article 7, alone and in conjunction with article 2 (3) of the Covenant.
9.3 Regarding the author’s claims that Mr. Formonov was detained arbitrarily as a
result of his human rights activities, in violation of his rights under articles 9 (1) and 19 (2),
the Committee notes the author’s submission that Mr. Formonov had been the chair of
a human rights organization’s regional branch, that he had monitored trials and had written
human rights-related pamphlets. It further notes the State party’s contention that he was
arrested on charges of extortion. In that regard, the Committee recalls its jurisprudence that
the protection against arbitrary detention is to be applied broadly and that the ‘arbitrariness’
is not to be equated with ‘against the law’, but must be interpreted more broadly to include
elements of inappropriateness, injustice, lack of predictability and due process of law. The
Committee also recalls that an arrest or detention as punishment for the legitimate exercise
of the rights as guaranteed by the Covenant is arbitrary, including freedom of opinion and
expression. The Committee notes the author’s claims that the arrest was aimed at intimidating
and silencing Mr. Formonov, targeting his activities as a human rights defender. It also notes
the author’s information that his photocopier and all human rights-related literature and
pamphlets were seized during the search, and the State party’s failure to explain how the
confiscated human rights material could be related to the extortion charges. The Committee
considers therefore that the author has established that Mr. Formonov was arrested and
detained for his human rights work. In the circumstances described by the author, and in the
absence of the State party’s explanations regarding these elements of the communication, the
Committee considers that there has been a violation of Mr. Formonov’s rights under articles 9
(1) and 19 of the Covenant.
9.4 Regarding article 14 of the Covenant, the Committee notes the author’s claim that
Mr. Formonov was kept in a metal cage during the court hearing. The Committee further notes
that the State party has accepted this as a fact. The Committee recalls that defendants should
not be shackled or kept in cages during trials or otherwise presented to the court in a manner
indicating that they may be dangerous criminals. On the basis of the information before it, the
Committee concludes that keeping Mr. Formonov in a cage constitutes a violation of his right to
be presumed innocent until proved guilty under article 14 (2) of the Covenant.
9.5 The Committee notes the author’s claims that throughout most of the trial her husband
had no access to counsel of his own choosing, his chosen counsel was not given adequate time
to prepare the case and neither defence counsel had access to certain documents, including
 HUMAN RIGHTS DEFENDERS | 341

the appeal court decision. It further notes the fact, which is undisputed by the State party, that
Mr. Formonov’s chosen counsel, before having been removed from the trial, was given 11.5
hours to have access to the documents, which were provided less than a week before the trial
took place. Accordingly, the Committee finds that the State party has violated Mr. Formonov’s
rights under article 14 (3) (b) and (d) of the Covenant.
9.6 The Committee further notes the claim that Mr. Formonov’s confession under
duress to the charge of extortion obtained in the presence of the State-appointed counsel
was accepted as evidence by the trial court. It also notes the State party’s statement that the
evidence considered by the court was obtained in a lawful way and accepted by the court as
admissible and that the torture allegations raised in Mr. Formonov’s appeal were reviewed
and rejected by the appeals court. In that regard, the Committee notes the author’s contention
that the appeals court decision was kept secret. It further notes that the State party has not
furnished any documentary evidence to support its statement and that there is nothing on file
to suggest that either the trial or the appeals court considered Mr. Formonov’s claim that he
was kept incommunicado when he made his confession under duress and that he retracted the
confession once he talked to his chosen counsel. In that connection, the Committee concludes
that the author’s rights under article 14 (3) (g) of the Covenant had been violated.
9.7 Having found a violation of article 14 (2) and 14 (3) (b), (d) and (g) of the Covenant, the
Committee will not examine separately the author’s remaining claims under article 14 (1) and
(3) (e) of the Covenant.
10. The Human Rights Committee, acting under article 5 (4) of the Optional Protocol, is of
the view that the information before it discloses a violation by the State party of Mr. Formonov’s
rights under articles 7, read alone and in conjunction with articles 2 (3), 9 (1), 14 (2) and (3) (b),
(d) and (g), and 19 (2) of the Covenant.
11. In accordance with article 2 (3) (a) of the Covenant, the State party is under an obligation
to provide individuals whose Covenant rights have been violated with an effective remedy in the
form of full reparation. Accordingly, the State party is obligated to, inter alia: (a) conduct a
thorough and effective investigation into the allegations of torture of the author’s husband and,
if confirmed, prosecute, try and punish those responsible; (b) quash the trial court verdicts;
and (c) provide adequate compensation to the author’s husband for the violations suffered. The
State party is also under an obligation to take all necessary steps to prevent the occurrence of
similar violations in the future.
12. Bearing in mind that, by becoming a party to the Optional Protocol, the State party has
recognized the competence of the Committee to determine whether there has been a violation
of the Covenant or not and that, pursuant to article 2 of the Covenant, the State party has
undertaken to ensure to all individuals within its territory and subject to its jurisdiction the
rights recognized in the Covenant and to provide an effective and enforceable remedy when
it has been determined that a violation has occurred, the Committee wishes to receive from
the State party, within 180 days, information about the measures taken to give effect to the
Committee’s Views. The State party is also requested to publish the present Views, and to have
them widely disseminated in the official languages of the State party.

The important role of treaty bodies is also recognised both in 2015 San José Guidelines against
intimidation or reprisals and the 2018 Joint statement by a group of chairs, vice-chairs and mem-
bers of the United Nations Human Rights Treaty Bodies and the UN Special Rapporteur on
Human Rights Defenders.

Guidelines against intimidation or reprisals (‘San José Guidelines’) 2015

Coordination with other procedures

29. When allegations of intimidation or reprisal are received, in addition to the action taken
by the treaty body itself, the Secretariat also may inform individuals or groups making such
342 | HUMAN RIGHTS DEFENDERS

allegations that they may submit an urgent communication to the special procedures mandate
holders of the Human Rights Council, including the Special Rapporteur on the situation of
human rights defenders. The Treaty Bodies can also themselves refer such allegations to other
mechanisms and procedures, when appropriate, in order to encourage an efficient, effective
and coordinated response.

10.6 Regional framework

10.6.1 Europe
In 2004, the Council of the European Union issues the European Guidelines on Human Rights
Defenders. In 2006, the first review of the implementation of the EU guidelines on human rights
defenders was published. The analysis and recommendations are based on information provided by
several partners in response to a questionnaire submitted by EU Heads of Mission in 79 countries
and with practical examples of good practice. The review led to the Council conclusions on the
EU guidelines on human rights defenders and these in turn were revised in 2006 and a further
review following new contributions in 2008.

Ensuring protection – European Union Guidelines on Human Rights Defenders 2008

I. PURPOSE

1. Support for human rights defenders is already a long-established element of the European
Union’s human rights external relations policy. The purpose of these Guidelines is to provide
practical suggestions for enhancing EU action in relation to this issue. The Guidelines can be
used in contacts with third countries at all levels as well as in multilateral human rights fora,
in order to support and strengthen ongoing efforts by the Union to promote and encourage
respect for the right to defend human rights. The Guidelines also provide for interventions by
the Union for human rights defenders at risk and suggest practical means of supporting and
assisting human rights defenders.
An important element of the Guidelines is support for the Special Procedures of the UN
Human Rights Council, including the UN Special Rapporteur on Human Rights Defenders and
appropriate regional mechanisms to protect human rights defenders. The Guidelines will assist
EU Missions (Embassies and Consulates of EU Member States and European Commission
Delegations) in their approach to human rights defenders. While the primary purpose of
the Guidelines is to address specific concerns regarding human rights defenders, they also
contribute to reinforcing the EU’s human rights policy in general.

Also in 2008, the Committee of Ministers’ issued the Declaration on Council of Europe action to
improve the protection of human rights defenders and promote their activities.

Declaration of the Committee of Ministers on Council of Europe action to improve the

protection of human rights defenders and promote their activities 2008

The Committee of Ministers of the Council of Europe

. . .
2. Calls on member states to:

i) create an environment conducive to the work of human rights defenders, enabling

individuals, groups and associations to freely carry out activities, on a legal basis, consistent
with international standards, to promote and strive for the protection of human rights and
fundamental freedoms without any restrictions other than those authorised by the European
Convention on Human Rights;
 HUMAN RIGHTS DEFENDERS | 343

ii) take effective measures to protect, promote and respect human rights defenders and
ensure respect for their activities;
iii) strengthen their judicial systems and ensure the existence of effective remedies for those
whose rights and freedoms are violated;
iv) take effective measures to prevent attacks on or harassment of human rights defenders,
ensure independent and effective investigation of such acts and to hold those responsible
accountable through administrative measures and/or criminal proceedings;
v) consider giving or, where appropriate, strengthening competence and capacity to independent
commissions, ombudspersons, or national human rights institutions to receive, consider
and make recommendations for the resolution of complaints by human rights defenders
about violations of their rights;
vi) ensure that their legislation, in particular on freedom of association, peaceful assembly
and expression, is in conformity with internationally recognised human rights standards
and, where appropriate, seek advice from the Council of Europe in this respect;

For its part, in 2007, the Organization for Security and Cooperation in EUROPE (OSCE) created
a Focal Point for Human Rights Defenders and National Human Rights Institutions as part of its
Office for Democratic Institutions and Human Rights (ODIHR) (www.osce.org/odihr).

10.6.2 Latin America and the Caribbean

In Latin America and the Caribbean, the Organization of American States (OAS) has paid special
attention to violence against human rights defenders since 1999 by adopting annual resolutions on
this subject (see box).

Organization of American States resolutions on human

rights defenders
Resolution by the Organisation of American States (OAS) concerning human rights
defenders. AG/RES. 2412 (XXXVIII-O/08)
Resolution on human rights defenders. AG/RES. 2280 (XXXVII-O/07)
OAS Resolution on human rights defenders. AG/RES. 2177 (XXXVI-O/06)
OAS Resolution on human rights defenders. AG/RES. 2067 (XXXVO-O/05)
OAS Resolution on human rights defenders. AG/RES. 2036 (XXXIV-O/04)
OAS Resolution on human rights defenders. AG/RES. 1920 (XXXIII-O/03)
OAS Resolution on human rights defenders. AG/RES. 1842 (XXXII-O/02)
OAS Resolution on human rights defenders. AG/RES. 1711 (XXX-O/00)
OAS Resolution on human rights defenders. AG/RES. 1671 (XXIX-O/99)

In 2001, in Resolution AG/RES. 1818, the General Assembly of the OAS asked one of the
main bodies in its human rights protection system – the Inter-American Commission on Human
Rights (IACHR) – to continue to monitor the situation of human rights defenders in Latin
America and the Caribbean.

AG/RES. 1818 2001

THE GENERAL ASSEMBLY,

. . .
RESOLVES:
344 | HUMAN RIGHTS DEFENDERS

1 To reiterate its support for the work carried out, at both the national and regional
levels, by human rights defenders; and to recognize their valuable contribution to the
protection, promotion, and observance of human rights and fundamental freedoms in the
Hemisphere.
2 To condemn actions that directly or indirectly prevent or hamper the work of human rights
defenders in the Americas.
3 To urge member states to step up their efforts to adopt the necessary measures, in keeping
with their domestic law and with internationally accepted principles and standards, to
safeguard the lives, personal safety, and freedom of expression of human rights defenders.
4 To invite member states to publicize and enforce the instruments of the inter-American
system and the decisions of its bodies on this matter, as well as the United Nations
Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to
Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms.
5 To invite the Inter-American Commission on Human Rights to continue to pay due
attention to the situation of human rights defenders in the Americas and to consider, inter
alia, preparing a comprehensive study on the matter and to give due consideration to this
situation at the level it may judge appropriate.
6 To continue the dialogue and cooperation with the United Nations, in particular with the
office of the Special Representative of the UN Secretary-General to Report on the Situation
of Human Rights Defenders, through the Inter-American Commission on Human Rights
and the Permanent Council.
7 To instruct the Permanent Council to follow up on this resolution and to report on its
implementation to the General Assembly at its thirty-third regular session.
8 To direct that the mandates in this resolution be executed in accordance with the resources
allocated in the program-budget and other resources.

The Inter-American Court on Human Rights has also tried states for human rights violations
including violations perpetrated against human rights defenders.

Inter-American Court of Human Rights, Tiu Tojin v Guatemala,

Series C, No 190, judgement 26 November 2008

2. The facts of the present case refer to the alleged forced disappearance of María Tiu Tojín and
her daughter Josefa, occurred in the Municipality of Chajul, Department of the Quiché, as of
August 29, 1990, in hands of officers of the Guatemalan army along with members of the Civil
Self-Defense Patrols. The Commission held that, up to this date, the State has not complied
with its duty to investigate these facts with the due diligence required, and therefore they
remain in absolute impunity and under the knowledge of military courts. In the Commission’s
opinion, the present case reflects ‘the abuses committed during the internal [armed] conflict
by the military forces against the Mayan indigenous people and the communities of populations
in resistance.’ Based on these facts, the Commission requested that the Court determine that
the State has failed to comply with its international obligations by incurring in the violation of
Articles 4 (Right to Life), 5 (Right to Humane Treatment), 7 (Right to Personal Liberty), 8 (Right
to a Fair Trial), and 25 (Right to Judicial Protection) of the American Convention, in relation to
the general obligation of respect and guarantee of human rights established in Article 1(1) of
the same instrument and Article I of the Inter-American Convention on Forced Disappearances
of People (hereinafter ‘Inter-American Convention on Forced Disappearances’), in detriment
of María and Josefa Tiu Tojín; Article 19 (Rights of the Child) of the American Convention, in
relation to the general obligation included in Article 1(1) of the same treaty, in detriment of the
child Josefa Tiu Tojín; and Articles 5 (Right to Humane Treatment), 8 (Right to a Fair Trial), and
25 (Right to Judicial Protection) of the American Convention, in relation to Article 1(1) of the
same instrument, in detriment of the next of kin of the alleged victims.
 HUMAN RIGHTS DEFENDERS | 345

The Inter-American Court of Human Rights has also tried States for human rights violations
including violations perpetrated against human rights defenders. For instance, in the 9 July 2004
Resolution on Interim Measures requested by the Inter-American Commission on Human Rights
with respect to Venezuela in the ‘Nieto and others’ case, the Inter-American Court said, ‘States
should provide effective and adequate guarantees to human rights defenders to enable them to
act freely. Particular attention should be paid to anything that might limit or prevent their work’.

10.6.3 Africa
The African Charter on Human and Peoples’ rights does not explicitly refer to human rights
defenders. It does, however, authorise individuals and NGOs to make complaints about human
rights violations.

African Charter on Human and Peoples’ Rights 2005

ARTICLE 56

Communications relating to Human and Peoples’ rights referred to in Article 55 received by the
Commission, shall be considered if they:

Indicate their authors even if the latter requests anonymity,

Are compatible with the Charter of the Organisation of African Unity or with the present
Charter,
Are not written in disparaging or insulting language directed against the State concerned
and its institutions or to the Organisation of African Unity,
Are not based exclusively on news disseminated through the mass media,
Are sent after exhausting local remedies, if any, unless it is obvious that this procedure is
unduly prolonged,
Are submitted within a reasonable period from the time local remedies are exhausted or
from the date the Commission is seized with the matter, and
Do not deal with cases which have been settled by those States involved in accordance with
the principles of the Charter of the United Nations, or the Charter of the Organisation of
African Unity or the provisions of the present Charter.

The African Human Rights Commission (set up by the Organization of African Unity, which is
now the African Union – AU) has also made a number of important steps to protect human rights
defenders. These include the Kigali Declaration in which it wholeheartedly supported the role of
human rights defenders and the need for their protection, and the adoption of a Resolution on
the Protection of African Human Rights Defenders, which introduced the post of a Special Rap-
porteur for Human Rights Defenders in Africa.
In May 2009, following the Pan-African Conference on Human Rights Defenders in Kam-
pala, the Kampala Plan of Action (KAPA) for the protection of human rights defenders was
launched.

Kampala Plan of Action for Human Rights Defenders 2009

1 To establish the Pan African Human Rights Defenders Network (PAHRD-Net) as the
coordinating unit of the existing and functioning African human rights defenders networks.
The AHRD-Net should have a coordinating unit (the Secretariat hereafter) initially based
at the East and Horn of Africa Human Rights Defenders Project (EHAHRDP) in Kampala,
and a Steering Committee (described in §2) for overall implementation of the Kampala
Plan of Action (KAPA). The Steering Committee shall accordingly evaluate the length of
the mandate of the Secretariat.
346 | HUMAN RIGHTS DEFENDERS

2 The PAHRD-Net seeks to enhance the protection of HRDs and their rights across the
continent by re-enforcing collaboration of sub-regional networks and key interest groups.
The Steering Committee will therefore consist of the Cairo Institute for Human Rights,
East and Horn of Africa Human Rights Defenders Network, West Africa Human Rights
Defenders Network, Southern African Human Rights Defenders Network, and Central
African Human Rights Defenders Network, and four female representatives of key interest
groups: women HRDs, lesbian, gay, bisexual, transgender and intersex (LGBTI), African
journalists, and defenders working in armed conflict. The Steering Committee will meet
at least once a year to monitor and evaluate the level of implementation of the KAPA by
the Secretariat.

Further reading
Bennett, K., Ingleton, D., Nah, A.N., and Savage, J., ‘Critical Perspectives on the Security and
Protection of Human Rights Defenders’ (2015) 19.7 The International Journal of Human Rights
883–895.
Golan, D., and Orr, Z., ‘Translating Human Rights of the “Enemy”: The Case of Israeli NGOs Defending
Palestinian Rights’ (2012) 46.4 Law & Society Review 781–814.
Ineichen, M., ‘Protecting Human Rights Defenders: A Critical Step Towards a More Holistic Imple-
mentation of the UNGPs’ (2018) 3.1 Business and Human Rights Journal 97–104.
Jones, M., ‘Protecting Human Rights Defenders at Risk: Asylum and Temporary International
Relocation (2015) 19/7 The International Journal of Human Rights 935–960.
McCall-Smith, K., Wouters, J., and Isa, F.G., The Faces of Human Rights, 2019, Oxford: Hart Publishing.
Nah, A.M., Bennet, K., Ingleton, D., and Savage, J., ‘A Research Agenda for the Protection of Human
Rights Defenders’ (2013) 5.3 Journal of Human Rights Practice.
Neto, U.T., Protecting Human Rights Defenders in Latin America: A Legal and Socio-Political Analysis
of Brazil, 2018, Aberdeen: Springer.
Penchaszadeh, A., Turley, A., and Dempsey, R., ‘A Feminist Alternative for the Protection, Self-
Care, and Safety of Women Human Rights Defenders in Mesoamerica’ (2013) 5.3 Journal of
Human Rights Practice 446–459.
Sekaggya, M., 2011 ‘UN Special Rapporteur on the Situation of Human Rights Defenders’, Avail-
able at https://www.ohchr.org/Documents/Issues/Defenders/CommentarytoDeclarationon
defendersJuly2011.pdf
Chapter 11

Indigenous peoples 

Chapter contents

11.1 Towards recognition of indigenous rights 348

11.2 Invoking minority rights 351
11.3 The scope of ‘indigenous people’ 367
11.4 Rights claimed by indigenous people 369
11.5 The right to self-determination 369
11.6 Land rights 376
11.7 Cultural rights 391
348 | INDIGENOUS PEOPLES

According to the United Nations, there are over 370 million indigenous peoples living in some
90 countries. This chapter will include materials drawn from the international and regional bod-
ies on the rights of indigenous peoples, and some minorities, focusing on the following key areas:
self-determination/autonomy, land rights and restitution, and reconciliation and culture. It will
address:

• Who are indigenous peoples?

• What is the right to self-determination?
• Land rights and indigenous peoples.
• Problems of secession and autonomy.
• Cultural preservation.

The rights of indigenous peoples were initially linked to minority rights. However, many com-
mentators, the peoples themselves and indeed the international and regional bodies now appear
recognise indigenous people as a distinct group. Indeed indigenous peoples require redress for
many problems not faced by other minority groups. Many of the claims of indigenous peoples
are particular to their historic situations: they reflect colonisation, assimilation and alienation of
traditional ways of living.

11.1 Towards recognition of indigenous rights

Many indigenous peoples suffered from non-recognition by the conquering forces invading their
lands. Land was claimed in the name of the relevant sovereign or leader, and the indigenous peo-
ples were either ignored or persecuted, although in many instances their skills and produce were
bartered for. The traditional approach was one of removal and/or assimilation.
The International Labour Organisation (ILO) was one of the first international bodies to
address the rights of indigenous peoples (see, for example, Charles, ‘Tribal Society and Labour
Legislation’ (1952) 65 International Labour Review 423). This in many ways was a strange
development, as it may be viewed as tangential to the object and purpose of the International
Labour Organisation. However, issues such as forced labour, addressed in ILO Convention No.
35 (1930), are particularly relevant for indigenous people. In 1936, the ILO considered the
Recruiting of Indigenous Workers in Convention No. 50 (1936), following this with Conven-
tion No. 64 Contracts of Employment (Indigenous Workers) and Convention No. 65 Penal
Sanctions (Indigenous Workers), both in 1939. Note the definition of beneficiaries of these
initiatives.

ILO CONVENTION 50, RECRUITING OF INDIGENOUS WORKERS 1936, Article 2(b)

For the purposes of this Convention –

(b) the term indigenous workers includes workers belonging to or assimilated to the indigenous
populations of the dependent territories of Members of the Organisation and workers
belonging to or assimilated to the dependent indigenous populations of the home
territories of Members of the Organisation.

(Note that this Convention is no longer operational.)

A Committee of Experts on Indigenous Labour was created to examine the problems of
indigenous populations, problems seen as being social and economic in character. This was fol-
lowed by a global survey which prompted the tabulation of more detailed rights in two principal
instruments on the rights of tribal and indigenous peoples.
Consider the differences in the preambles to both conventions (1957 and 1989):
 INDIGENOUS PEOPLES | 349

ILO CONVENTION 107, INDIGENOUS AND TRIBAL POPULATIONS 1957

The General Conference of the International Labour Organisation, . . .

Having decided upon the adoption of certain proposals with regard to the protection and
integration of indigenous and other tribal and semi-tribal populations in independent countries,
which is the sixth item on the agenda of the session, and
Having determined that these proposals shall take the form of an international Convention,
and . . .
Considering that there exist in various independent countries indigenous and other tribal
and semi-tribal populations which are not yet integrated into the national community and
whose social, economic or cultural situation hinders them from benefiting fully from the rights
and advantages enjoyed by other elements of the population, and
Considering it desirable both for humanitarian reasons and in the interest of the countries
concerned to promote continued action to improve the living and working conditions of these
populations by simultaneous action in respect of all the factors which have hitherto prevented
them from sharing fully in the progress of the national community of which they form part, and
Considering that the adoption of general international standards on the subject will
facilitate action to assure the protection of the populations concerned, their progressive
integration into their respective national communities, and the improvement of their living and
working conditions.

Question
What aspects of the preambular paragraphs may be deemed objectionable by indigenous peoples, both at adop-
tion and, indeed, now?

ILO CONVENTION 169, INDIGENOUS AND TRIBAL PEOPLES 1989

The General Conference of the International Labour Organisation, . . .

Noting the international standards contained in the Indigenous and Tribal Populations
Convention and Recommendation, 1957, and
Recalling the terms of the Universal Declaration of Human Rights, the International
Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and
Political Rights, and the many international instruments on the prevention of discrimination,
and
Considering that the developments which have taken place in international law since 1957,
as well as developments in the situation of indigenous and tribal peoples in all regions of the
world, have made it appropriate to adopt new international standards on the subject with a view
to removing the assimilationist orientation of the earlier standards, and
Recognising the aspirations of these peoples to exercise control over their own institutions,
ways of life and economic development and to maintain and develop their identities, languages
and religions, within the framework of the States in which they live, and
Noting that in many parts of the world these peoples are unable to enjoy their fundamental
human rights to the same degree as the rest of the population of the States within which they
live, and that their laws, values, customs and perspectives have often been eroded, and
Calling attention to the distinctive contributions of indigenous and tribal peoples to the
cultural diversity and social and ecological harmony of humankind and to international co-
operation and understanding, and . . .
Having decided upon the adoption of certain proposals with regard to the partial revision
of the Indigenous and Tribal Populations Convention, 1957 (No. 107), which is the fourth item
on the agenda of the session, and
Having determined that these proposals shall take the form of an international Convention
revising the Indigenous and Tribal Populations Convention, 1957.
350 | INDIGENOUS PEOPLES

The preamble to the second ILO Convention clearly indicates an intention that the problems
identified in the first Convention have been addressed. This reflects the impact of decolonisation
and a growing awareness of the distinct needs of indigenous peoples.

Question
Read both conventions and ascertain the extent to which the assimilationist approach is removed in Conven-
tion 169.

Ascertaining the scope of the term ‘indigenous’ has been, and indeed remains, problematic.
Although there are many indigenous peoples in the world, they do not all wish to be treated differ-
ently from their co-citizens in a State. No uniform definition has been agreed upon. The follow-
ing guidelines were adopted by the International Labour Organisation and retain currency today.

Indigenous Peoples: Living and Working Conditions of Aboriginal Populations in

Independent Countries, Studies and Reports, Series 35, 1953 International
Labour Office: Geneva, para 25–6

Indigenous persons are descendants of the aboriginal population living in a given country at the
time of settlement or conquest (or of successive waves of conquest) by some of the ancestors
of the non-indigenous groups in whose hand political and economic power at present lies.
In general, these descendants tend to live more in conformity with the social, economic and
cultural institutions which existed before colonisation or conquest . . . than with the culture of
the nation to which they belong; they do not fully share in the national economy and culture
owing to barriers of language, customs, creed, prejudice, and often out-of-date and unjust
systems of worker-employer relationship and other social and political factors. When their
full participation in national life is not hindered by one of the obstacles mentioned above, it is
restricted by historical influences producing in them an attitude of overriding loyalty to their
position as members of a given tribe; in the case of marginal indigenous persons or groups, the
problem arises from the fact that they are not accepted into, or cannot or will not participate in,
the organised life of either the nation or the indigenous society.

Many indigenous peoples fall outwith this working definition, or at least do not fully fall within it.
Indigenous peoples often occupy border territories and may move freely between States (for example,
the Kurds and Druze). The definition also appears inconsistent with the initial paternalistic assimi-
lationist approach of the International Labour Organisation. The ILO continued its ‘monopoly’ of
indigenous rights after its affiliation to the new United Nations, ‘[i]n effect, the United Nations system
assigned responsibility for this subject to the ILO’ (Lee Swepston, ‘Indigenous and Tribal Populations:
A Return to Centre Stage’ (1987) 126 International Labour Review 447).

11.1.1 ILO successes in evincing indigenous rights

The ILO had a number of successes in promulgating indigenous peoples’ rights:

(1) The creation of the Andean Indian Programme – an inter-agency programme coordinated
by the ILO which aimed at improving the living and working conditions of the indigenous
Andean communities. It commenced in 1954 in Bolivia, Ecuador and Peru though sub-
sequently was expanded to Argentina, Chile, Columbia and Venezuela (see Rens, J., ‘The
Andean Programme’ (1961) International Labour Review 423).
(2) A comprehensive study on indigenous peoples and their rights: Indigenous Peoples: Living and
Working Conditions of Aboriginal Populations in Independent Countries, Studies and Reports,
 INDIGENOUS PEOPLES | 351

Series 35, 1953, International Labour Office: Geneva. It represented a culmination of the
work undertaken as part of the Andean Indian Programme and laid the groundwork for the
subsequent instruments on indigenous rights.
(3) The adoption of the first Convention on indigenous peoples in 1957 (Convention No. 107
concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal
Populations in Independent Countries) and a Recommendation (No. 104) on the same her-
alded recognition of the unique status and needs of indigenous peoples.

Both these treaties were unusual in that they addressed indigenous and tribal peoples directly.
Initially, as indicated, much of their protection for indigenous peoples was grounded in protection
of minorities. Depending on the definition adopted for ‘minority’ (this in itself is controversial in
international law) many indigenous peoples do indeed fall within the scope of these provisions.
However, the concept of minority was viewed as patronising, implying inferiority.
Minority rights have nevertheless achieved greater international acceptance and recognition
than the rights of indigenous peoples. Accordingly, for some indigenous people, there may be
considerable advantage in accepting minority rights and benefiting from them.
Indigenous issues have been identified as of concern by the Human Rights Council. Accord-
ingly Human Rights Council Resolution 6/36 (2007) established an Expert Mechanism on the
Rights of Indigenous Peoples to provide thematic expertise to the Council. This body met for
the first time in October 2008. The UN Working Group on the Rights of Indigenous Peoples
strove to transform the rights of indigenous peoples into a reality (see first report UN Doc. A/
HRC/10/56), as does the Permanent Forum.

11.2 Invoking minority rights

In contemporary international human rights law, Article 27 of the International Covenant on
Civil and Political Rights contains the principal provision on minority rights. This has been used
as a vehicle to claim some collective rights of indigenous groups. Note, however, that many indig-
enous peoples reject the inferiority connotations sometimes associated with the term ‘minority’.

INTERNATIONAL CONVENANT ON CIVIL AND POLITICAL RIGHTS 1966, Article 27

In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such
minorities shall not be denied the right, in community with the other members of their group, to
enjoy their own culture, to profess and practise their own religion, or to use their own language.

For children, Article 30 of the Convention on the Rights of the Child is closely linked to this.
The Committee on the Rights of the Child in General Comment 11 (2009) (UN Doc. CRC/C/
GC/11) notes that ‘many States parties give insufficient attention to the rights of indigenous chil-
dren and to promotion of their development’ (at para 20). ‘Empowerment of indigenous children
and the effective exercise of their rights to culture, religion and language provide an essential
foundation of a culturally diverse State in harmony and compliance with its human rights obliga-
tions’ (at para 82).
Many groups have indeed been able to employ Article 27, successfully submitting complaints
to the Human Rights Committee. Minority rights may be utilised by indigenous peoples to secure
their traditional practices.

Human Rights Committee, General Comment 23 (1994) (see also Chapter 5)

6.1. Although article 27 is expressed in negative terms, that article, nevertheless, does recognize
the existence of a ‘right’ and requires that it shall not be denied. Consequently, a State party is
352 | INDIGENOUS PEOPLES

under an obligation to ensure that the existence and the exercise of this right are protected
against their denial or violation. Positive measures of protection are, therefore, required not only
against the acts of the State party itself, whether through its legislative, judicial or administrative
authorities, but also against the acts of other persons within the State party.
6.2. Although the rights protected under article 27 are individual rights, they depend in turn
on the ability of the minority group to maintain its culture, language or religion. Accordingly,
positive measures by States may also be necessary to protect the identity of a minority and the
rights of its members to enjoy and develop their culture and language and to practise their
religion, in community with the other members of the group. In this connection, it has to be
observed that such positive measures must respect the provisions of articles 2.1 and 26 of the
Covenant both as regards the treatment between different minorities and the treatment between
the persons belonging to them and the remaining part of the population. However, as long as
those measures are aimed at correcting conditions which prevent or impair the enjoyment of
the rights guaranteed under article 27, they may constitute a legitimate differentiation under
the Covenant, provided that they are based on reasonable and objective criteria.
. . .
9. The Committee concludes that article 27 relates to rights whose protection imposes
specific obligations on States parties. The protection of these rights is directed towards
ensuring the survival and continued development of the cultural, religious and social identity
of the minorities concerned, thus enriching the fabric of society as a whole. Accordingly, the
Committee observes that these rights must be protected as such and should not be confused
with other personal rights conferred on one and all under the Covenant. States parties,
therefore, have an obligation to ensure that the exercise of these rights is fully protected and
they should indicate in their reports the measures they have adapted to this end.

The relevance of elements of minority rights is obvious. So too is the benefit – minority rights are
enforceable in international law. Few instruments on the rights of indigenous people are. Naturally
some problems emerge as many States have not ratified the optional protocol to the Covenant and
thus recognise no right people to submit communications to the Human Rights Committee (the
salient treaty monitoring body). There are, however, a number of instances of indigenous people
successfully invoking Article 27 to protect elements of their cultural identity. This is the reason for
including Article 27 in this chapter.

Lovelace v Canada, Communication No. 24/1977 (1) and (2), UN Doc. CCPR/C/13/D/24/1977

The author of the communication, Sandra Lovelace, was born and registered a Maliseet Indian
but lost her rights and status as an Indian when she married a non-Indian as, in accordance
with domestic law, she ceased to be a member of the Tobique band at that time. The same
restriction did not apply to Indian men marrying non-Indian women. Possession of Indian
status carries with it, inter alia, rights of residency on reserve land. Following her divorce, the
author wished to return to live on a reserve. As she was prohibited from so doing, she claimed
a violation of Articles 2(1), 3, 23(1) and (4), 26 and 27 of the International Covenant on Civil and
Political Rights. The Human Rights Committee noted the Canadian Government’s intention to
change to relevant laws (which has been done). Lovelace was ultimately permitted to return to
her reserve and engage in a full cultural Maliseet life.

13.1 The Committee considers that the essence of the present complaint concerns the
continuing effect of the Indian Act, in denying Sandra Lovelace legal status as an Indian, in
particular because she cannot for this reason claim a legal right to reside where she wishes
to, on the Tobique Reserve. This fact persists after the entry into force of the Covenant, and its
effects have to be examined, without regard to their original cause. Among the effects referred
to on behalf of the author (see para. 9.9, above), the greater number, ((1) to (8)), relate to the
 INDIGENOUS PEOPLES | 353

Indian Act and other Canadian rules in fields which do not necessarily adversely affect the
enjoyment of rights protected by the Covenant. In this respect the significant matter is her last
claim, that ‘the major loss to a person ceasing to be an Indian is the loss of the cultural benefits
of living in an Indian community, the emotional ties to home, family, friends and neighbours,
and the loss of identity’.

. . .

14. The rights under article 27 of the Covenant have to be secured to ‘persons belonging’ to the
minority. At present Sandra Lovelace does not qualify as an Indian under Canadian legislation.
However, the Indian Act deals primarily with a number of privileges which, as stated above,
do not as such come within the scope of the Covenant. Protection under the Indian Act and
protection under article 27 of the Covenant therefore have to be distinguished. Persons who
are born and brought up on a reserve, who have kept ties with their community and wish to
maintain these ties must normally be considered as belonging to that minority within the
meaning of the Covenant. Since Sandra Lovelace is ethnically a Maliseet Indian and has only
been absent from her home reserve for a few years during the existence of her marriage, she
is, in the opinion of the Committee, entitled to be regarded as ‘belonging’ to this minority and to
claim the benefits of article 27 of the Covenant. The question whether these benefits have been
denied to her depends on how far they extend.

15. The right to live on a reserve is not as such guaranteed by article 27 of the Covenant.
Moreover, the Indian Act does not interfere directly with the functions which are expressly
mentioned in that article. However, in the opinion of the Committee the right of Sandra
Lovelace to access to her native culture and language ‘in community with the other members’
of her group, has in fact been, and continues to be interfered with, because there is no place
outside the Tobique Reserve where such a community exists. On the other hand, not every
interference can be regarded as a denial of rights within the meaning of article 27. Restrictions
on the right to residence, by way of national legislation, cannot be ruled out under article 27 of
the Covenant. This also follows from the restrictions to article 12 (1) of the Covenant set out in
article 12 (3). The Committee recognizes the need to define the category of persons entitled to
live on a reserve, for such purposes as those explained by the Government regarding protection
of its resources and preservation of the identity of its people. However, the obligations which
the Government has since undertaken under the Covenant must also be taken into account.

16. In this respect, the Committee is of the view that statutory restrictions affecting the right
to residence on a reserve of a person belonging to the minority concerned, must have both
a reasonable and objective justification and be consistent with the other provisions of the
Covenant, read as a whole. Article 27 must be construed and applied in the light of the other
provisions mentioned above, such as articles 12, 17 and 23 in so far as they may be relevant to
the particular case, and also the provisions against discrimination, such as articles 2, 3 and 26,
as the case may be. It is not necessary, however, to determine in any general manner which
restrictions may be justified under the Covenant, in particular as a result of marriage, because
the circumstances are special in the present case.

17. The case of Sandra Lovelace should be considered in the light of the fact that her marriage
to a non-Indian has broken up. It is natural that in such a situation she wishes to return to the
environment in which she was born, particularly as after the dissolution of her marriage her
main cultural attachment again was to the Maliseet band. Whatever may be the merits of the
Indian Act in other respects, it does not seem to the Committee that to deny Sandra Lovelace
the right to reside on the reserve is reasonable, or necessary to preserve the identity of the
tribe. The Committee therefore concludes that to prevent her recognition as belonging to the
band is an unjustifiable denial of her rights under article 27 of the Covenant, read in the context
of the other provisions referred to.
354 | INDIGENOUS PEOPLES

18. In view of this finding, the Committee does not consider it necessary to examine whether
the same facts also show separate breaches of the other rights invoked. The specific rights
most directly applicable to her situation are those under article 27 of the Covenant. The rights
to choose one’s residence (article 12), and the rights aimed at protecting family life and children
(articles 17, 23 and 24) are only indirectly at stake in the present case. The facts of the case
do not seem to require further examination under those articles. The Committee’s finding of
a lack of a reasonable justification for the interference with Sandra Lovelace’s rights under
article 27 of the Covenant also makes it unnecessary, as suggested above (para. 12), to examine
the general provisions against discrimination (arts. 2, 3 and 26) in the context of the present
case, and in particular to determine their bearing upon inequalities predating the coming into
force of the Covenant for Canada.

19. Accordingly, the Human Rights Committee, acting under article 5 (4) of the Optional Protocol
to the International Covenant on Civil and Political Rights, is of the view that the facts of the
present case, which establish that Sandra Lovelace has been denied the legal right to reside on
the Tobique Reserve, disclose a breach by Canada of article 27 of the Covenant.

The element of sex discrimination was crucial in the determination of this case.

Question
To what extent did the cultural arguments influence the Committee? Is it possible that the Committee would
have concluded there was a violation of Article 27 had discrimination not occurred?

In neither Lovelace nor the following case, Lubicon Lake Band, did the Human Rights Committee
express an opinion on whether the author of the complaint belonged to what could be termed a
minority. Thus it appears that it was accepted that indigenous people could be included within the
protective ambit of Article 27 without requiring them to overtly embrace designation as a minor-
ity. Given that most indigenous groups are reluctant to accept minority status, this is an important
point. The emphasis was on the traditional way of life of the indigenous peoples, something closely
tied to their cultural rights.

Lubicon Lake Band v Canada, Communication 167/1984, UN Doc. CCPR/C/38/D/167/1984

Chief Bernard Ominayak of the Lubicon Lake Band primarily complained about a violation of
Article 1 of the International Covenant on Civil and Political Rights though aspects of the case were
resolved with reference to Article 27. The Lubicon Lake Band are a Cree Indian band who speak
Cree and inhabit their traditional lands in northern Alberta, maintaining their traditional culture,
religion, political structure and subsistence economy. The Canadian government expropriated the
territory for the benefit of private corporate interests – leases for oil and gas exploration among
others. It was alleged that the very existence of the group was threatened by the government’s
actions. Article 1 was dismissed by the Committee as falling outwith their jurisdiction, not being
an individual right. Article 27 was considered although the Committee accepted that the proposed
remedial actions of the government sufficiently met the standard of the Covenant.

32.1 The question has arisen of whether any claim under Article 1 of the Covenant remains, the
Committee’s decision on admissibility notwithstanding. While all peoples have the right of self-
determination and the right freely to determine their political status, pursue their economic,
social and cultural development and dispose of their natural wealth and resources, as stipulated
in Article 1 of the Covenant, the question whether the Lubicon Lake Band constitutes a ‘people’
is not an issue for the Committee to address under the Optional Protocol to the Covenant. The
Optional Protocol provides a procedure under which individuals can claim that their individual
rights have been violated. These rights are set out in part III of the Covenant, Articles 6 to 27,
 INDIGENOUS PEOPLES | 355

inclusive. There is, however, no objection to a group of individuals, who claim to be similarly
affected, collectively to submit a communication about alleged breaches of their rights.

32.2 Although initially couched in terms of alleged breaches of the provisions of Article 1 of the
Covenant, there is no doubt that many of the claims presented raise issues under Article 27.
The Committee recognizes that the rights protected by Article 27, include the right of persons,
in community with others, to engage in economic and social activities which are part of the
culture of the community to which they belong. Sweeping allegations concerning extremely
serious breaches of other articles of the Covenant (6, 7, 14, para. 1; and 26), made after the
communication was declared admissible, have not been substantiated to the extent that they
would deserve serious consideration. The allegations concerning breaches of Articles 17 and
23, paragraph 1, are similarly of a sweeping nature and will not be taken into account except
in so far as they may be considered subsumed under the allegations which, generally, raise
issues under Article 27.

32.3 The most recent allegations that the State party has conspired to create an artificial
band, the Woodland Cree Band, said to have competing claims to traditional Lubicon land, are
dismissed as an abuse of the right of submission within the meaning of Article 3 of the Optional
Protocol.

33. Historical inequities, to which the State party refers, and certain more recent developments
threaten the way of life and culture of the Lubicon Lake Band, and constitute a violation of Article
27 so long as they continue. The State party proposes to rectify the situation by a remedy that the
Committee deems appropriate within the meaning of Article 2 of the Covenant.

The opinion of the Committee was not unanimous. Nisuke Ando submitted an individual opin-
ion on the application of Article 27. He concluded that only culture was affected, there being no
issue of religion or language denied to the band. He accepted that culture may be closely tied to
the land but expressed reservation at the Committee’s conclusion:

The communication in its present form essentially concerns the authors’ rights to freely
dispose of their natural wealth and resources, and to retain their own means of subsistence,
such as hunting and fishing. In its decision of 22 July 1987, the Human Rights Commit-
tee decided that the communication was admissible in so far as it could have raised issues
under article 27 or other articles of the Covenant. With respect to provisions other than
article 27 the authors’ allegations have remained, however, of such a sweeping nature that
the Committee has not been able to take them into account except in so far as they may be
subsumed under the claims which, generally, raise issues under article 27. That is the basis
of my individual opinion.
Since the Committee adopted its decision on admissibility, discussions seeking a reso-
lution of the matter have taken place between the Federal Government, the Province of
Alberta and the authors. As no progress was made towards a settlement, the Federal Gov-
ernment initiated legal proceedings against the Province of Alberta and the Lubicon Lake
Band on 17 May 1988, in order to enable Canada to meet its legal obligations vis-a-vis
the authors under Treaty 8. The Statement of Claim, initiating the legal action, seeks from
the Court of the Queen’s Bench of Alberta (a) a declaration that the Lubicon Lake Band is
entitled to a reserve and (b) a determination of the size of that reserve.
On 9 June 1988, the Lubicon Lake Band filed a Statement of Defence and Counter-
claim. In this connection, the State party has submitted that the issue forming the basis of
the domestic dispute as well as the basis of the communication before the Human Rights
Committee concerns the extent of the territory to be set aside as a reserve, and related
issues. It is not altogether clear that all issues which may be raised under article 27 of the
356 | INDIGENOUS PEOPLES

Covenant are issues to be considered by the Court of Queen’s Bench of Alberta in the case
still pending before it. At the same time, it does appear that issues under article 27 of the
Covenant are inextricably linked with the extent of the territory to be set aside as a reserve,
and questions related to those issues.
The rationale behind the general rule of international law that domestic remedies should
be exhausted before a claim is submitted to an instance of international investigation or
settlement is primarily to give a respondent State an opportunity to redress, by its own
means within the framework of its domestic legal system, the wrongs alleged to have been
suffered by the individual. In my opinion, this rationale implies that, in a case such as the
present one, an international instance shall not examine a matter pending before a court
of the respondent State. To my mind, it is not compatible with international law that an
international instance consider issues which, concurrently, are pending before a national
court. An instance of international investigation or settlement must, in my opinion, refrain
from considering any issue pending before a national court until such time as the matter
has been adjudicated upon by the national courts. As that is not the case here, I find the
communication inadmissible at this point in time.

Ando’s opinion gains further credence when considered along with the opinion of the Committee
in the case of Mahuika v New Zealand (discussed later). The cultural elements are discussed in detail
in Dominic McGoldrick, ‘Canadian Indians, Cultural Rights and the Human Rights Committee’
(1991) 40 International and Comparative Law Quarterly 658–669.
This communication illustrates a potential use of Article 27 with respect to the right to self-
determination as obviously a group wishing to claim self-determination may articulate their claim
in terms of cultural, linguistic or religious rights under Article 27 rather than Article 1. The same
result may be achieved although obviously full self-determination is unlikely to result in the case
of most indigenous peoples for the reasons stated previously.
Moreover, these two communications are of note as the concept of Article 27 comprising a
series of individual rights was promulgated and accepted by the Committee. Thus, although the
rights are only exercisable in community with others, the rights clearly can attach to individu-
als rather than groups, thereby obviating the problems encountered in claiming under Article 1
(self-determination).

Question
Reread Article 27 ICCPR. What are the arguments for collective and individual right holders? Can the same
argument be made for Article 1 on self-determination?

Kitok v Sweden, Communication 197/1985, UN Doc. CCPR/C/33/D/197/1985

I van Kitok was a member of a Sami family which had been actively involved in reindeer husbandry
for a hundred years. The author of the communication claimed that he had inherited rights
to reindeer breeding territory and water in Sorkaitum Sami village. However, under Swedish
law, membership of a Sami village (in terms of exercising reindeer breeding rights) is lost by a
Sami person who engages in any other profession for a minimum period of three years. Such
legislation had the sole purpose of protecting those who practise reindeer husbandry as their
primary source of income. Indeed few Sami people retain their traditional rights. Violations
of Articles 1 and 27 were alleged. Article 1 was deemed inapplicable for the reasons later
elaborated on in Lubicon Lake Band v Canada – that is, it is a group not individual right.
Article 27 was considered in context. Preserving the traditional livelihood of the Sami
people was considered a reasonable aim of the Swedish legislation. Kitok’s continued links
with his Sami community were noted and it was suggested that the application of the Swedish
 INDIGENOUS PEOPLES | 357

law to him may have been disproportionate to these aims not least because he was permitted
to graze and farm reindeer, albeit he did not enjoy an inalienable right to do so.

9.7 It can thus be seen that the Act provides certain criteria for participation in the life of an
ethnic minority whereby a person who is ethnically a Sami can be held not to be a Sami for
the purposes of the Act. The Committee has been concerned that the ignoring of objective
ethnic criteria in determining membership of a minority, and the application to Mr. Kitok of
the designated rules, may have been disproportionate to the legitimate ends sought by the
legislation. It has further noted that Mr. Kitok has always retained some links with the Sami
community, always living on Sami lands and seeking to return to full-time reindeer farming as
soon as it became financially possible, in his particular circumstances, for him to do so.

9.8 In resolving this problem, in which there is an apparent conflict between the legislation,
which seems to protect the rights of the minority as a whole, and its application to a single
member of that minority, the Committee has been guided by the ratio decidendi in the Lovelace
case (No. 24/1977, Lovelace v. Canada), namely, that a restriction upon the right of an individual
member of a minority must be shown to have a reasonable and objective justification and to
be necessary for the continued viability and welfare of the minority as a whole. After a careful
review of all the elements involved in this case, the Committee is of the view that there is no
violation of Article 27 by the State party. In this context, the Committee notes that Mr. Kitok is
permitted, albeit not as of right, to graze and farm his reindeer, to hunt and to fish.

The Swedish legislation took no account of the economic reality of reindeer breeding and thus the
fact that many Sami wished to pursue a second more economically viable profession contempo-
raneous to reindeer husbandry. Moreover, the right to breed reindeer was effectively a once-only
right, renunciation thereof (through alternative employment) being irreversible thereby excluding
the majority of the Sami population from the ambit of the legislation.
No violation of Article 27 was found. Similar issues with fishing arose in Mahuika.

Mahuika v New Zealand, Communication 547/1993, UN Doc. CCPR/C/70/D/547/1993

6.1 The authors claim that the Treaty of Waitangi (Fisheries Claims) Settlement Act confiscates
their fishing resources, denies them their right to freely determine their political status and
interferes with their right to freely pursue their economic, social and cultural development. It is
submitted that the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 is in breach of the
State party’s obligations under the Treaty of Waitangi. In this context, the authors claim that the
right to self-determination under article 1 of the Covenant is only effective when people have
access to and control over their resources.

6.2 The authors claim that the Government’s actions are threatening their way of life and
the culture of their tribes, in violation of article 27 of the Covenant. They submit that fishing
is one of the main elements of their traditional culture, that they have present-day fishing
interests and the strong desire to manifest their culture through fishing to the fullest extent
of their traditional territories. They further submit that their traditional culture comprises
commercial elements and does not distinguish clearly between commercial and other fishing.
They claim that the new legislation removes their right to pursue traditional fishing other than
in the limited sense preserved by the law and that the commercial aspect of fishing is being
denied to them in exchange for a share in fishing quota. In this connection, the authors refer
to the Committee’s Views in communication No. 167/1984 (Ominayak v. Canada), where it was
recognised that ‘the rights protected by article 27 include the right of persons, in community
with others, to engage in economic and social activities which are part of the culture of the
community to which they belong.’
. . .
358 | INDIGENOUS PEOPLES

9.4 The right to enjoy one’s culture cannot be determined in abstracto but has to be placed
in context. In particular, article 27 does not only protect traditional means of livelihood of
minorities, but allows also for adaptation of those means to the modern way of life and ensuing
technology. In this case the legislation introduced by the State affects, in various ways, the
possibilities for Maori to engage in commercial and non-commercial fishing. The question is
whether this constitutes a denial of rights. . . .

9.6 The Committee notes that the State party undertook a complicated process of consultation
in order to secure broad Maori support to a nation-wide settlement and regulation of fishing
activities. Maori communities and national Maori organizations were consulted and their
proposals did affect the design of the arrangement. The Settlement was enacted only following
the Maori representatives’ report that substantial Maori support for the Settlement existed. For
many Maori, the Act was an acceptable settlement of their claims. The Committee has noted
the authors’ claims that they and the majority of members of their tribes did not agree with the
Settlement and that they claim that their rights as members of the Maori minority have been
overridden. In such circumstances, where the right of individuals to enjoy their own culture
is in conflict with the exercise of parallel rights by other members of the minority group, or
of the minority as a whole, the Committee may consider whether the limitation in issue is in
the interests of all members of the minority and whether there is reasonable and objective
justification for its application to the individuals who claim to be adversely affected. . . .

10. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol
to the International Covenant on Civil and Political Rights, is of the view that the facts before it
do not reveal a breach of any of the articles of the Covenant.

The Human Rights Committee has proved a useful, if limited, forum for indigenous people to
challenge limitations of their rights. When the new optional protocol to the International Cov-
enant on Economic, Social and Cultural Rights enters into force, it will be interesting to observe
whether the cultural rights of indigenous peoples are invoked in communications before the Com-
mittee on Economic, Social and Cultural Rights (e.g. under Article 15 of the Covenant).

11.2.1 Language rights

The following cases involve issues concerning language rights. Language is another distinctive
characteristic of many indigenous groups. Moreover, it is of crucial importance to cultural rights
in respect of the continuation of literature, myths and legends.

Diergaardt v Namibia, Communication 760/1997, UN Doc. CCPR/C/69/D/760/1996

10.2 The Committee regrets that the State party has not provided any information with regard
to the substance of the authors’ claims. It recalls that it is implicit in the Optional Protocol that
States parties make available to the Committee all information at its disposal. In the absence of
a reply from the State party, due weight must be given to the authors’ allegations to the extent
that they are substantiated.
. . .

10.4 The authors have made available to the Committee the judgement which the Supreme
Court gave on 14 May 1996 on appeal from the High Court which had pronounced on the claim
of the Baster community to communal property. Those courts made a number of findings
of fact in the light of the evidence which they assessed and gave certain interpretations of
the applicable domestic law. The authors have alleged that the land of their community has
been expropriated and that, as a consequence, their rights as a minority are being violated
 INDIGENOUS PEOPLES | 359

since their culture is bound up with the use of communal land exclusive to members of their
community. This is said to constitute a violation of Article 27 of the Covenant.
10.5 The authors state that, although the land passed to the Rehoboth Government before
20 March 1976, that land reverted to the community by operation of law after that date.
According to the judgement, initially the Basters acquired for and on behalf of the community
land from the Wartbooi Tribe but there evolved a custom of issuing papers (papieren) to
evidence the granting of land to private owners and much of the land passed into private
ownership. However, the remainder of the land remained communal land until the passing
of the Rehoboth Self-Government Act No. 56 of 1976 by virtue of which ownership or control
of the land passed from the community and became vested in the Rehoboth Government. The
Baster Community had asked for it. Self-Government was granted on the basis of proposals
made by the Baster Advisory Council of Rehoboth. Elections were held under this Act and the
Rehoboth area was governed in terms of the Act until 1989 when the powers granted under
the Act were transferred by law to the Administrator General of Namibia in anticipation and in
preparation for the independence of Namibia which followed on 21 March 1990. And in terms of
the Constitution of Namibia, all property or control over property by various public institutions,
including the Government of South West Africa, became vested in, or came under the control,
of the Government of Namibia. The Court further stated:

In 1976 the Baster Community, through its leaders, made a decision opting for Self-
Government. The community freely decided to transfer its communal land to the new
Government. Clearly it saw advantage in doing so. Then in 1989, the community, through
the political party to which its leaders were affiliated, subscribed to the Constitution of an
independent Namibia. No doubt, once again, the Community saw advantage in doing so.
It wished to be part of the new unified nation which the Constitution created. . . . One aim
of the Constitution was to unify a nation previously divided under the system of apartheid.
Fragmented self-governments had no place in the new constitutional scheme. The years
of divide and rule were over.

10.6 To conclude on this aspect of the complaint, the Committee observes that it is for the domestic
courts to find the facts in the context of, and in accordance with, the interpretation of domestic
laws. On the facts found, if ‘expropriation’ there was, it took place in 1976, or in any event before
the entry into force of the Covenant and the Optional Protocol for Namibia on 28 February 1995.
As to the related issue of the use of land, the authors have claimed a violation of Article 27 in that
a part of the lands traditionally used by members of the Rehoboth community for the grazing of
cattle no longer is in the de facto exclusive use of the members of the community. Cattle raising
is said to be an essential element in the culture of the community. As the earlier case law by the
Committee illustrates, the right of members of a minority to enjoy their culture under Article 27
includes protection to a particular way of life associated with the use of land resources through
economic activities, such as hunting and fishing, especially in the case of indigenous peoples.
However, in the present case the Committee is unable to find that the authors can rely on Article
27 to support their claim for exclusive use of the pastoral lands in question. This conclusion is
based on the Committee’s assessment of the relationship between the authors’ way of life and
the lands covered by their claims. Although the link of the Rehoboth community to the lands in
question dates back some 125 years, it is not the result of a relationship that would have given
rise to a distinctive culture. Furthermore, although the Rehoboth community bears distinctive
properties as to the historical forms of self-government, the authors have failed to demonstrate
how these factors would be based on their way of raising cattle. The Committee therefore finds
that there has been no violation of Article 27 of the Covenant in the present case.

10.7 The Committee further considers that the authors have not substantiated any claim under
Article 17 that would raise separate issues from their claim under Article 27 with regard to
their exclusion from the lands that their community used to own.
360 | INDIGENOUS PEOPLES

. . .

10.10 The authors have also claimed that the lack of language legislation in Namibia has had
as a consequence that they have been denied the use of their mother tongue in administration,
justice, education and public life. The Committee notes that the authors have shown that
the State party has instructed civil servants not to reply to the authors’ written or oral
communications with the authorities in the Afrikaans language, even when they are perfectly
capable of doing so. These instructions barring the use of Afrikaans do not relate merely to
the issuing of public documents but even to telephone conversations. In the absence of any
response from the State party the Committee must give due weight to the allegation of the
authors that the circular in question is intentionally targeted against the possibility to use
Afrikaans when dealing with public authorities. Consequently, the Committee finds that the
authors, as Afrikaans speakers, are victims of a violation of Article 26 of the Covenant.

11. The Human Rights Committee, acting under Article 5, paragraph 4, of the Optional Protocol
to the International Covenant on Civil and Political Rights, is of the view that the facts before it
disclose a violation of Article 26 of the Covenant.

See also Guedson v France, UN Doc. CCPR/C/39/D/219/1986, extracted in Chapter 3.

Obviously, those seeking to enforce language rights are often required to do so in an offi-
cial language of the State or, indeed, of the pertinent international organisation. Multilingualism
is obviously expensive as State policy, but accepting the indigenous language can go some way
towards reconciliation within a State. Of course, this is not always practicable. Vanuatu, for exam-
ple, has over a hundred languages rendering it one of the most linguistically diverse of countries.
Officially, business is conducted in English or French and/or Bislama. Most (but not all) people
speak an indigenous language plus Bislama, and then either French or English.

11.2.2 Religious rights

Many indigenous peoples are also distinguishable from the rest of the population by their religious
beliefs. Religion is often a sensitive topic in many (secular) States.

UNITED NATIONS DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES, adopted by

General Assembly Resolution 61/295 on 13 September 2007

Article 12

1 Indigenous peoples have the right to manifest, practise, develop and teach their spiritual
and religious traditions, customs and ceremonies; the right to maintain, protect, and have
access in privacy to their religious and cultural sites; the right to the use and control of
their ceremonial objects; and the right to the repatriation of their human remains.
2 States shall seek to enable the access and/or repatriation of ceremonial objects and
human remains in their possession through fair, transparent and effective mechanisms
developed in conjunction with indigenous peoples concerned.

However, indigenous groups may also use existing human rights to prevent discrimination on
religious grounds. Religious practices may also benefit from the various provisions on freedom of
religion.

INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS 1966

Article 18

1 Everyone shall have the right to freedom of thought, conscience and religion. This right
shall include freedom to have or to adopt a religion or belief of his choice, and freedom,
 INDIGENOUS PEOPLES | 361

either individually or in community with others and in public or private, to manifest his
religion or belief in worship, observance, practice and teaching.
2 No one shall be subject to coercion which would impair his freedom to have or to adopt a
religion or belief of his choice.
3 Freedom to manifest one’s religion or beliefs may be subject only to such limitations as
are prescribed by law and are necessary to protect public safety, order, health, or morals
or the fundamental rights and freedoms of others.
4 The States Parties to the present Covenant undertake to have respect for the liberty of
parents and, when applicable, legal guardians to ensure the religious and moral education
of their children in conformity with their own convictions.

Article 26

All persons are equal before the law and are entitled without any discrimination to the equal
protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to
all persons equal and effective protection against discrimination on any ground such as race,
colour, sex, language, religion, political or other opinion, national or social origin, property,
birth or other status.

Using these provisions obviously means that indigenous peoples can bring complaints to the Human
Rights Committee should the State in question so recognise the competence of the committee.

Singh Bhinder v Canada, Communication 208/1986, UN Doc. CCPR/C/37/D/208/1986

The author lost his job as a maintenance electrician with the Canadian Railway Company
because of his refusal to wear the mandatory hard hat. As a Sikh, he argued that he should
be permitted solely to wear his turban. Health and safety issues were accepted as overruling
respect for religious beliefs in the instant case.

6.1 The Committee notes that in the case under consideration legislation which, on the face of
it, is neutral in that it applies to all persons without distinction, is said to operate in fact in a way
which discriminates against persons of the Sikh religion. The author has claimed a violation
of article 18 of the Covenant. The Committee has also examined the issue in relation to article
26 of the Covenant.

6.2 Whether one approaches the issue from the perspective of article 18 or article 26, in the
view of the Committee the same conclusion must be reached. If the requirement that a hard
hat be worn is regarded as raising issues under article 18, then it is a limitation that is justified
by reference to the grounds laid down in article 18, paragraph 3. If the requirement that a hard
hat be worn is seen as a discrimination de facto against persons of the Sikh religion under
article 26, then, applying criteria now well established in the jurisprudence of the Committee,
the legislation requiring that workers in federal employment be protected from injury and
electric shock by the wearing of hard hats is to be regarded as reasonable and directed towards
objective purposes that are compatible with the Covenant.

7. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol
to the International Covenant on Civil and Political Rights, is of the view that the facts which
have been placed before it do not disclose a violation of any provision of the International
Covenant on Civil and Political Rights.

Obviously this case represents a success for common sense. However, the dicta of the Commit-
tee indicates the potential for invoking the International Covenant in respect of minority religious
beliefs. This provides some potential for indigenous peoples if they can phrase their claim in terms of
rights under their belief systems. This communication also suggests possibilities for land claims given
the close spiritual ties enjoyed by many indigenous people with their traditional lands.
362 | INDIGENOUS PEOPLES

11.2.3 Other
Other overt manifestations of culture may be protected under a diverse range of pre-existing
rights. As with all groups it should be remembered that indigenous people are also entitled to the
full range of human rights articulated in all relevant regional and international instruments.
Moreover, minority rights are also an emergent characteristic of the European regional sys-
tem. The Council of Europe adopted the European Charter for Regional or Minority Languages
1992 and the Framework Convention for the Protection of National Minorities 1994 – the first
ever legally binding multilateral instrument on minority rights. It is open for accession by any
State and subject to national implementation. Reports are used to evaluate compliance with the
standards. Both these instruments represent a response to increasing ethnic tensions and unrest in
parts of Europe.

11.2.4 International decade of the world’s indigenous people,

towards legal rights
Within the United Nations, securement of an international declaration on the rights of indigenous
peoples was one of the principal objectives of the International Decade on the World’s Indigenous
Peoples. The current instrument remains the draft presented in 1994 in the inaugural year of the
international decade. These preambular paragraphs precede the United Nations Draft Declaration.
A final text was not adopted during the UN Decade, which concluded in December 2004. At its
first session in June 2006, the new Human Rights Council adopted the text of the Declaration but
unfortunately it failed to meet with the General Assembly’s approval. Obstacles to be overcome
include the opposition of Canada, Australia, the United Kingdom and the United States of Amer-
ica. These countries all host considerable numbers of indigenous peoples and have adopted vari-
ous approaches towards them over the centuries and decades including persecution, assimilation,
alienation and devolution. Nevertheless, the Declaration was eventually adopted in September
2007, with only Australia, Canada, New Zealand and the USA voting against it. This represents a
dramatic advance for the rights of indigenous peoples (see GA Res 61/295 (2007)). By Resolution
59/174, 20/12/04, the General Assembly proclaimed a second International Decade commencing
1 January 2005 and continuing observation of the designated International Day (9 August).

UNITED NATIONS DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES, adopted

by General Assembly Resolution 61/295 on 13 September 2007

The General Assembly,

Guided by the purposes and principles of the Charter of the United Nations, and good faith
in the fulfilment of the obligations assumed by States in accordance with the Charter,
Affirming that indigenous peoples are equal to all other peoples, while recognizing the
right of all peoples to be different, to consider themselves different, and to be respected as
such,
Affirming also that all peoples contribute to the diversity and richness of civilizations and
cultures, which constitute the common heritage of humankind,
Affirming further that all doctrines, policies and practices based on or advocating
superiority of peoples or individuals on the basis of national origin or racial, religious, ethnic
or cultural differences are racist, scientifically false, legally invalid, morally condemnable and
socially unjust,
Reaffirming that indigenous peoples, in the exercise of their rights, should be free from
discrimination of any kind,
Concerned that indigenous peoples have suffered from historic injustices as a result of,
inter alia, their colonization and dispossession of their lands, territories and resources, thus
preventing them from exercising, in particular, their right to development in accordance with
their own needs and interests,
 INDIGENOUS PEOPLES | 363

Recognizing the urgent need to respect and promote the inherent rights of indigenous
peoples which derive from their political, economic and social structures and from their
cultures, spiritual traditions, histories and philosophies, especially their rights to their lands,
territories and resources,
Recognizing also the urgent need to respect and promote the rights of indigenous peoples
affirmed in treaties, agreements and other constructive arrangements with States,
Welcoming the fact that indigenous peoples are organizing themselves for political,
economic, social and cultural enhancement and in order to bring to an end all forms of
discrimination and oppression wherever they occur,
Convinced that control by indigenous peoples over developments affecting them and their
lands, territories and resources will enable them to maintain and strengthen their institutions,
cultures and traditions, and to promote their development in accordance with their aspirations
and needs,
Recognizing that respect for indigenous knowledge, cultures and traditional practices
contributes to sustainable and equitable development and proper management of the environment,
Emphasizing the contribution of the demilitarization of the lands and territories of
indigenous peoples to peace, economic and social progress and development, understanding
and friendly relations among nations and peoples of the world,
Recognizing in particular the right of indigenous families and communities to retain
shared responsibility for the upbringing, training, education and well-being of their children,
consistent with the rights of the child,
Considering that the rights affirmed in treaties, agreements and other constructive
arrangements between States and indigenous peoples are, in some situations, matters of
international concern, interest, responsibility and character,
Considering also that treaties, agreements and other constructive arrangements, and the
relationship they represent, are the basis for a strengthened partnership between indigenous
peoples and States,
Acknowledging that the Charter of the United Nations, the International Covenant on
Economic, Social and Cultural Rights and the International Covenant on Civil and Political
Rights, as well as the Vienna Declaration and Programme of Action, affirm the fundamental
importance of the right to self-determination of all peoples, by virtue of which they freely
determine their political status and freely pursue their economic, social and cultural
development,
Bearing in mind that nothing in this Declaration may be used to deny any peoples their
right to self-determination, exercised in conformity with international law,
Convinced that the recognition of the rights of indigenous peoples in this Declaration will
enhance harmonious and cooperative relations between the State and indigenous peoples,
based on principles of justice, democracy, respect for human rights, non-discrimination and
good faith,
Encouraging States to comply with and effectively implement all their obligations as they
apply to indigenous peoples under international instruments, in particular those related to
human rights, in consultation and cooperation with the peoples concerned,
Emphasizing that the United Nations has an important and continuing role to play in
promoting and protecting the rights of indigenous peoples,
Believing that this Declaration is a further important step forward for the recognition,
promotion and protection of the rights and freedoms of indigenous peoples and in the
development of relevant activities of the United Nations system in this field,
Recognizing and reaffirming that indigenous individuals are entitled without discrimination
to all human rights recognized in international law, and that indigenous peoples possess
collective rights which are indispensable for their existence, well-being and integral development
as peoples,
364 | INDIGENOUS PEOPLES

Recognizing that the situation of indigenous peoples varies from region to region and from
country to country and that the significance of national and regional particularities and various
historical and cultural backgrounds should be taken into consideration,

In 2018, the Third Committee of the UN General Assembly at its 73rd session adopted a new
resolution on the ‘Rights of indigenous peoples’. The resolution reaffirmed the United Nations
Declaration on the Rights of Indigenous Peoples, which addresses the individual and collective
rights of indigenous peoples.

UN General Assembly

Rights of Indigenous Peoples, A/C.3/73/L.24/Rev. 1

Stressing the importance of promoting and pursuing the objectives of the United Nations
Declaration on the Rights of Indigenous Peoples also through international cooperation to
support national and regional efforts to achieve the ends of the Declaration, including the
right to maintain and strengthen the distinct political, legal, economic, social and cultural
institutions of indigenous peoples and the right to participate fully, if they so choose, in the
political, economic, social and cultural life of the State
. . .
2. Urges Governments and the United Nations system, in consultation and cooperation
with indigenous peoples through their representatives and institutions, to continue to
implement, when appropriate, measures at the national level, including legislative, policy and
administrative measures, to achieve the ends of the United Nations Declaration on the Rights
of Indigenous Peoples5 and to promote awareness of it among all sectors of society, including
members of legislatures, the judiciary and the civil service, as well as among indigenous
peoples, and invites international and regional organizations, within their respective mandates,
national human rights institutions, where they exist, civil society, including non-governmental
organizations, and other relevant actors to contribute to those efforts;

The same resolution also highlighted the importance of the SDGs.

UN General Assembly Rights of Indigenous Peoples, A/C.3/73/L.24/Rev. 1

. . .
Recalling the 2030 Agenda for Sustainable Development,8 and stressing the need to
ensure that no one is left behind and to reach the furthest behind first, including indigenous
peoples, who should participate in, contribute to and benefit without discrimination from the
implementation of the 2030 Agenda, and encouraging Member States to give due consideration
to all the rights of indigenous peoples while implementing the 2030 Agenda,
. . .
12. Encourages States to consider including in their voluntary national reviews for the
high-level political forum on sustainable development and their national and global reports
information related to indigenous peoples on the progress made and challenges in the
implementation of the 2030 Agenda, bearing in mind paragraphs 78 and 79 of the 2030 Agenda,
and also encourages States to compile disaggregated data to measure progress and to ensure
that no one is left behind;
13. Also encourages States, according to their relevant national context and characteristics,
to collect and disseminate data disaggregated by ethnicity, income, gender, age, race, migratory
status, disability, geographic location or other factors, as appropriate, in order to monitor and
improve the impact of development policies, strategies and programmes aimed at improving
the well-being of indigenous peoples and individuals, to combat and eliminate violence and
 INDIGENOUS PEOPLES | 365

multiple and intersecting forms of discrimination against them and to support work towards
the achievement of the Sustainable Development Goals and the 2030 Agenda;
14. Encourages the Secretary-General to include information pertinent to indigenous
peoples in the forthcoming annual reports on progress towards the Sustainable Development
Goals;

Question
Consider the preambular paragraphs to the United Nations Declaration extract previously. Do they indicate a
difference in approach to that of the ILO, even in its revised Convention 169?

The United Nations Declaration was compiled in consultation with indigenous peoples. Related
to this, the creation of the United Nations Forum for Indigenous Peoples was a major success of
the International Decade. This body comprises a number of indigenous peoples and was heavily
involved in the process of revising the draft declaration for the Human Rights Council and Gen-
eral Assembly (see generally, https://www.un.org/development/desa/indigenouspeoples/).

ECONOMIC AND SOCIAL COUNCIL RESOLUTION 2000/22, Establishment of

a Permanent Forum on Indigenous Issues

1 Decides to establish as a subsidiary organ of the Council a permanent forum on

indigenous issues, consisting of sixteen members, eight members to be nominated by
Governments and elected by the Council, and eight members to be appointed by the
President of the Council following formal consultation with the Bureau and the regional
groups through their coordinators, on the basis of broad consultations with indigenous
organizations, taking into account the diversity and geographical distribution of the
indigenous people of the world as well as the principles of transparency, representativity
and equal opportunity for all indigenous people, including internal processes, when
appropriate, and local indigenous consultation processes, with all members serving
in their personal capacity as independent experts on indigenous issues for a period of
three years with the possibility of re-election or reappointment for one further period;
States, United Nations bodies and organs, intergovernmental organizations and non-
governmental organizations in consultative status with the Council may participate as
observers; organizations of indigenous people may equally participate as observers
in accordance with the procedures which have been applied in the Working Group on
Indigenous Populations of the Subcommission on the Promotion and Protection of Human
Rights;
2 Also decides that the Permanent Forum on Indigenous Issues shall serve as an advisory
body to the Council with a mandate to discuss indigenous issues within the mandate
of the Council relating to economic and social development, culture, the environment,
education, health and human rights; in so doing the Permanent Forum shall:

(a) Provide expert advice and recommendations on indigenous issues to the Council,
as well as to programmes, funds and agencies of the United Nations, through the
Council;
(b) Raise awareness and promote the integration and coordination of activities relating
to indigenous issues within the United Nations system;
(c) Prepare and disseminate information on indigenous issues;

The Forum is an advisory body to the Economic and Social Council. Its work is being accorded
higher status by the planning of a World Conference on indigenous peoples, which was con-
vened in 2012 – General Assembly resolution A/RES/65/198 of 21 December 2010 instituted
this process. Paragraph 8 of the resolution notes the purpose of this high level meeting as being
366 | INDIGENOUS PEOPLES

‘to share perspectives and best practices on the realization of the rights of indigenous peoples,
including to pursue the objectives of the United Nations Declaration on the Rights of Indig-
enous Peoples’.

11.2.5 Regional initiatives

To date, only one regional body has addressed in detail the specific rights of indigenous peo-
ples. That is the Organisation of American States. It should be noted, however, that consider-
able progress towards articulating minority rights and instruments aimed at protecting cultural
heritage, including indigenous languages, has been made in Europe, under the auspices of the
Council of Europe and the Organisation of Security and Cooperation in Europe. These Euro-
pean provisions create, in effect, a web of protection for various aspects of minority and indig-
enous culture.
Despite the American Declaration appearing to be set for a speedy adoption, the United
Nations Declaration was finalised first. Lengthy preambular paragraphs follow the introductory
paragraphs and, as before, indicate the position underpinning the text which follows. This allows
contrast with the approaches of the ILO and UN. Obviously the full text of the salient instru-
ments should be consulted to facilitate a determination as to whether the instruments follow the
approach indicated in the preambular paragraphs.

Consolidated Text of the Proposed American Declaration on the Rights of Indigenous

Peoples, OEA/Ser. K/XVI GT/DADIN/doc. 139/03, 17 June 2003

The Member States of the Organization of American States (hereinafter ‘the States’),
RECOGNIZING that the rights of indigenous peoples constitute a fundamental and historically
significant issue for the present and future of the Americas; RECOGNIZING, moreover, the
importance for humankind of preserving the indigenous cultures of the Americas.

Mention perhaps should also be made of the Council of Europe’s Framework Convention on the
Protection of National Minorities. Although focused on national minorities, it has clear relevance
to indigenous peoples within a State.

Preamble to the European Framework Convention on National Minorities 1995

Being resolved to protect within their respective territories the existence of national minorities;
Considering that the upheavals of European history have shown that the protection of
national minorities is essential to stability, democratic security and peace in this continent;
Considering that a pluralist and genuinely democratic society should not only respect the
ethnic, cultural, linguistic and religious identity of each person belonging to a national minority,
but also create appropriate conditions enabling them to express, preserve and develop this
identity;
Considering that the creation of a climate of tolerance and dialogue is necessary to enable
cultural diversity to be a source and a factor, not of division, but of enrichment for each society;
Considering that the realisation of a tolerant and prosperous Europe does not depend
solely on co-operation between States but also requires transfrontier co-operation between
local and regional authorities without prejudice to the constitution and territorial integrity of
each State.

The first issue when dealing with any group right is to determine the membership of the group in
question, or the parameters thereof. As with minorities, self-identification is the key for determin-
ing whether a person is indeed indigenous.
 INDIGENOUS PEOPLES | 367

11.3 The scope of ‘indigenous people’

Of the groups discussed in the present text, indigenous peoples are the most problematic from
a definitional perspective. It is easier to determine who are women, children, detainees or even,
arguably, refugees, than indigenous people. Plurality of cultures, languages and religions in States
heighten cross-culturalisation, interracial marriages produce offspring who are not necessarily bio-
logically 100 per cent indigenous. There is no general rule as to whether or not such people wish
to be considered indigenous. National assimilation policies and issues like the ‘stolen generation’
in Australia (mid-twentieth century) may result in indigenous peoples denying their heritage and
claiming non-indigenous practices. The issue of definition has also been mentioned in connection
with the ILO.
Consider the scope of application of the following instruments.

Organization of American States Draft Declaration on the Rights of Indigenous Peoples

Article 1

1 This Declaration applies to the indigenous peoples of the Americas and their members,
who within the national States descend from a native culture that predates European
colonization and who conserve their fundamental distinctive features, such as their
language, normative systems, usages and customs, artistic expressions, beliefs, and
social, economic, cultural, and political institutions.
2 Self-identification as indigenous peoples will be a fundamental criterion for determining
to whom this Declaration applies. The States shall ensure respect for selfidentification as
indigenous, individually and collectively, in keeping with the institutions of each indigenous
people.

As Gordon Bennett notes, ‘[g]iven the lack of unanimity among Member States as to the criteria
to be applied in identifying indigenous groups, a rambling definition of indigenous peoples was
perhaps inevitable’ (Bennett, G., Aboriginal Rights in International Law, 1978, London: Royal
Anthropological Institute, p. 17).

ILO CONVENTION 169 (1989) Article 1

1 This Convention applies to:

(a) tribal peoples in independent countries whose social, cultural and economic
conditions distinguish them from other sections of the national community, and
whose status is regulated wholly or partially by their own customs or traditions or
by special laws or regulations;
(b) peoples in independent countries who are regarded as indigenous on account of
their descent from the populations which inhabited the country, or a geographical
region to which the country belongs, at the time of conquest or colonisation or the
establishment of present state boundaries and who, irrespective of their legal status,
retain some or all of their own social, economic, cultural and political institutions.

2 Self-identification as indigenous or tribal shall be regarded as a fundamental criterion for

determining the groups to which the provisions of this Convention apply.
3 The use of the term peoples in this Convention shall not be construed as having any
implications as regards the rights which may attach to the term under international law.

The provision of ILO Convention 169 can be contrasted with its predecessor, Article 1 of Con-
vention 107:
368 | INDIGENOUS PEOPLES

ILO CONVENTION 107 (1957) Article 1

1 This Convention applies to –

(a) members of tribal or semi-tribal populations in independent countries whose

social and economic conditions are at a less advanced stage than the stage reached
by the other sections of the national community, and whose status is regulated
wholly or partially by their own customs or traditions or by special laws or
regulations;
(b) members of tribal or semi-tribal populations in independent countries which are
regarded as indigenous on account of their descent from the populations which
inhabited the country, or a geographical region to which the country belongs, at the
time of conquest or colonisation and which, irrespective of their legal status, live
more in conformity with the social, economic and cultural institutions of that time
than with the institutions of the nation to which they belong.

2 For the purposes of this Convention, the term semi-tribal includes groups and persons
who, although they are in the process of losing their tribal characteristics, are not yet
integrated into the national community.
3 The indigenous and other tribal or semi-tribal populations mentioned in paragraphs 1 and
2 of this Article are referred to hereinafter as ‘the populations concerned’.

From a definitional perspective, the element of self-identification is important. Not all indigenous
peoples wish to avail themselves of the rights and opportunities open to indigenous peoples; many
prefer assimilation and the progressive modernisation of society rather than respect and protection
for their traditional values and ways of life. Some of the communications discussed previously, e.g.
Kitok v Sweden, demonstrate this.
Note also that the definition clause of the ILO 169 convention contains a caveat excluding
implications as regards rights attaching to the term under international law – that is, excluding
potential implications for self-determination.
A more general (working) definition, with enumerated criteria can be found in the work
of the Special Rapporteur, Jose Martinez-Cobo in his seminal report E/CN.4/ Sub.2/1986/7/
Add.4, 1986 at paras 378–380.

Question
To what extent do the preceding definitions include or exclude members of indigenous groups? Do the defini-
tions facilitate an appropriate distinction between minority groups and indigenous groups?

While aspects of indigenous peoples’ rights are inevitably mired in controversy, the definitional
issues are of central importance. Many States wish to limit the rights evinced by indigenous people
and an easy way of achieving such a limitation is to apply a narrow definition.

Questions
Is there any element of consensus in the various definitions espoused to date?
Before proceeding further, consider what rights indigenous peoples claim or may claim, and identify the poten-
tial political, legal and economic problems therewith.

The International Labour Organisation Convention 169 addresses Land (Part II), Recruitment
and Conditions of Employment (Part III), Vocational Training, Handicrafts and Rural Industry
(Part IV), Social Security (Part V) and Education (Part VI). A full range of rights and freedoms
are extended to indigenous peoples in one of the most comprehensive instruments yet concluded.
 INDIGENOUS PEOPLES | 369

11.4 Rights claimed by indigenous people

Inevitably the rights of indigenous peoples attract considerable controversy in certain States. The
right to self-determination, land and cultural rights are examples.

11.5 The right to self-determination

Self-determination, though a right enshrined prominently in both international covenants, is
somewhat elusive in many respects. There is little agreement on the scope of the right or the
intended beneficiaries. Although it is accepted that the right applied primarily to colonised peo-
ples seeking to divest themselves of colonial power and secure independence, the question now is
to what further purpose can self-determination extend? Are indigenous peoples entitled to self-
determination or some version thereof?
Self-determination is always a vexed question in international law, not least as it cohabits
uncomfortably with the proclaimed UN principle of respect for the territorial integrity of a State.
Respect for territorial integrity can be found in various texts.

ARTICLE 2 OF THE UN CHARTER 1945

The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in
accordance with the following Principles.
(1) The Organization is based on the principle of the sovereign equality of all its Members.
. . .
(4) All Members shall refrain in their international relations from the threat or use of force
against the territorial integrity or political independence of any state, or in any other manner
inconsistent with the Purposes of the United Nations.

General Assembly Resolution 1514 (XV) on the granting of independence to colonial countries
and peoples (1960)

1 The subjection of peoples to alien subjugation, domination and exploitation constitutes a

denial of fundamental human rights, is contrary to the Charter of the United Nations and
is an impediment to the promotion of world peace and co-operation.
2 All peoples have the right to self-determination; by virtue of that right they freely determine
their political status and freely pursue their economic, social and cultural development.
. . .
6 Any attempt aimed at the partial or total disruption of the national unity and the territorial
integrity of a country is incompatible with the purposes and principles of the Charter of
the United Nations.
7 All States shall observe faithfully and strictly the provision of the Charter of the United
Nations, the Universal Declaration of Human Rights and the present Declaration on the
basis of equality, non-interference in the internal affairs of all States, and respect for the
sovereign rights of all peoples and their territorial integrity.

To promote self-determination within the confines of territorial integrity, the whole population
of the State must opt for the change and the change must apply to the peoples of a given ter-
ritory as a whole. The application of this to decolonisation is obvious. So too is its application
to the democratic process by which a State undergoes a change in constitutional process or
government. It is not possible for a section of the community to opt for self-determination
independent of the rest of the population of the State. This paradox has serious repercussions
for indigenous and minority peoples as there are few such groups whose independence would
370 | INDIGENOUS PEOPLES

not result in the break-up of the State, or, at the very least, an infringement of its territorial
integrity. The spectre of secession looms over the freedom of self-determination for all peoples.
‘The principle of self-determination has been one of the most vigorous and vigorously disputed
collective or group rights in modern international law’ (Crawford, J. (ed.), The Rights of Peoples,
1988, Oxford: Clarendon Press, p 58).
The first problem faced is one of definition. Defining the scope of indigenous peoples is a
vexed issue, as discussed earlier. For the purpose of self-determination, the problem is magnified.
Can indigenous peoples and minorities be differentiated? How do these definitions fit in with
‘peoples’ for self-determination. If all peoples are entitled to self-determination, who decides who
the ‘peoples’ are?

Jennings, Sir Ivor, The Approach to Self-Government, 1956, Cambridge: CUP, pp 55–56

Nearly forty years ago, a Professor of Political Science, who was also President of the United
States, President Wilson, enunicated a doctrine which was ridiculous, but which was widely
accepted as a sensible proposition, the doctrine of selfdetermination. On the surface, it seemed
reasonable: let the people decide. In fact it was ridiculous, because the people cannot decide
until someone decides who are the people.

Perhaps the reason the definition of what constitutes a people is so controversial in law is that
‘all peoples have the right of self determination’ (Article 1, International Covenants on Civil and
Political Rights and on Economic, Social and Cultural Rights). Thus there are potential repercus-
sions which would flow from the automatic inclusion of indigenous peoples in the term ‘people’,
at least insofar as self-determination could involve independence in any form. Are indigenous
peoples ‘peoples’ for the purpose of self-determination, or is ‘peoples’ narrower in scope than
‘indigenous peoples’?
As noted previously, inclusion in the scope of indigenous people is normally a question of
self-identification. If this principle also applies as regards who is entitled to self-determination then
there are surely serious implications for territorial integrity.

UNITED NATIONS DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES, adopted by

General Assembly Resolution 61/295 on 13 September 2007

Article 3

Indigenous peoples have the right to self-determination. By virtue of that right they freely
determine their political status and freely pursue their economic, social and cultural development.

Article 4

Indigenous peoples, in exercising their right to self-determination, have the right to autonomy
or self-government in matters relating to their internal and local affairs, as well as ways and
means for financing their autonomous functions.

Article 5

Indigenous peoples have the right to maintain and strengthen their distinct political, legal,
economic, social and cultural institutions, while retaining their right to participate fully, if they
so choose, in the political, economic, social and cultural life of the State.
. . .

Article 46

1 Nothing in this Declaration may be interpreted as implying for any State, people, group
or person any right to engage in any activity or to perform any act contrary to the Charter
 INDIGENOUS PEOPLES | 371

of the United Nations or construed as authorizing or encouraging any action which

would dismember or impair, totally or in part, the territorial integrity or political unity of
sovereign and independent States.
2 In the exercise of the rights enunciated in the present Declaration, human rights and
fundamental freedoms of all shall be respected. The exercise of the rights set forth in
this Declaration shall be subject only to such limitations as are determined by law and
in accordance with international human rights obligations. Any such limitations shall
be nondiscriminatory and strictly necessary solely for the purpose of securing due
recognition and respect for the rights and freedoms of others and for meeting the just and
most compelling requirements of a democratic society.
3 The provisions set forth in this Declaration shall be interpreted in accordance with the
principles of justice, democracy, respect for human rights, equality, nondiscrimination,
good governance and good faith.

Note the caveat in Article 46, which can be interpreted as including provisions on respect for ter-
ritorial integrity. Contrast this with Article IV of the OAS Draft Declaration.

Article III

OAS Draft Declaration on the Rights of Indigenous Peoples

Within the States, the right to self-determination of the indigenous peoples is recognized,
pursuant to which they can define their forms of organization and promote their economic,
social, and cultural development.

Article IV

Nothing in this Declaration shall be construed so as to authorize or foster any action aimed at
breaking up or diminishing, fully or in part, the territorial integrity, sovereignty, and political
independence of the States, or other principles contained in the Charter of the Organization of
American States.

Here the provisions on respect for territorial integrity are more explicit. Full self-determination
would clearly be problematic if granted to all indigenous peoples. Given that few States are homo-
geneous and monocultural, the issue of territorial integrity is of fundamental importance.

Advisory Opinion on Western Sahara, International Court of Justice Reps 1975, 39

Judge Dillard: it hardly seems necessary to make more explicit the cardinal restraints which
the legal right of self-determination imposes. That restraint may be captured in a single
sentence. It is for the people to determine the destiny of the territory and not the territory the
destiny of the people.

11.5.1 Towards autonomy for indigenous peoples

One solution for indigenous people has been the evolution of land rights and of grants of auton-
omy to groups. Self-autonomy is perhaps the variation of self-determination best suited to address-
ing the needs of indigenous peoples. An element of self-determination is almost synonymous with
self-preservation for indigenous people (Turpel, M., ‘“Indigenous Peoples” Rights of Political
Self-Determination: Recent International Legal Developments and the Continuing Struggle for
Recognition’, (1992) 25 Cornell International Law Journal 579, at 593). It is essential not only
that they participate in decisions affecting their destiny, but also that they can decide the direction
of that destiny. Given that full self-determination is frequently mired in controversy and prob-
lems, perhaps internal autonomy represents an acceptable compromise. It would enable indigenous
372 | INDIGENOUS PEOPLES

peoples who so desire to preserve their culture and live in accordance with traditional practices,
customs and laws, while others may elect to advance and develop those traditional practices in
response to the evolving society in which they find themselves. Indigenous peoples should be
entitled to live their lives as they choose, in an atmosphere of respect for their heritage.

Question
Re-read the two excerpts from the declarations: to what extent do they achieve a balance between encouraging
self-determination of indigenous people and maintaining respect for territorial integrity? Is there any potential
that such a balance could be maintained effectively in practice? (Consider the disparate land claims of indig-
enous peoples.)

Note that the UN Declaration Article 4 (see Section 11.5) explicitly includes autonomy as an
option.
Indigenous peoples are also accorded the right to determine their own citizenship in accor-
dance with their traditions (Article 33). They are also encouraged to promote, develop and
maintain their institutional structures and their own juridical customs and practices, which are
in accordance with international human rights law. Increasingly, indigenous peoples are enjoying
degrees of autonomy.

11.5.2 Models for autonomy

There are numerous models of autonomy which illustrate the potential for invoking a modified
version of self-determination peacefully and successfully.

11.5.2.1 Australia
A number of different models exist in Australia. In general they are related to claims for land rights.
Calls for self-determination by aboriginal peoples have been more vocal than those of the Torres
Strait Islanders. Obviously, the Torres Strait Islanders are geographically separated from the main-
land and enjoy greater autonomy per se. In contrast, land rights in Australia were highlighted by
the Torres Strait Islanders, as is discussed here.

National Indigenous Australians Agency – From July 2019, indigenous issues now come
under the umbrella of the NIAA (niaa.gov.au) which works with the Minister for Indigenous
Australians although many other government departments have sub sections focusing on
indigenous issues. A higher profile is accorded to Aboriginal and Torres Strait Islander issues
than was hitherto the case but a number of problems, both practical and bureaucratic, remain.
The Aboriginal Provisional Government was created to represent Aboriginal interests in
Australia. Michael Mansell, Secretary, considered its creation the first step towards ‘real self-
determination’ (‘It’s Now or Never: Building an Aboriginal Government’, APG Papers,
Vol. 2, December 1992, extract from a speech of Michael Mansell in Hobart 27 August
1992). The APG issues Aboriginal passports, which are not officially recognised by all
States. However, of greater importance, it also represents a powerful political presence,
campaigning for Aboriginal peoples in Canberra (see generally www.apg.org.au).
Land management – several Aboriginal peoples in Australia now enjoy full or partial auton-
omy over their lands. Examples include Arnhem Land in the Northern Territory, Uluru
(Ayer’s Rock) and Katu Tinggu (the Olgas) also in the Northern Territory. See the early
Pitjantjatjara Land Rights Act 1981. This Act was discussed in relation to the Race Dis-
crimination Act in Gerhardy v Brown (1985) 59 Australian Law Reports 311. The follow-
ing is an example of land management, indeed it is one of the first pieces of legislation
which sought to recognize the indigenous land system in Australia:
 INDIGENOUS PEOPLES | 373

ABORIGINAL LAND RIGHTS (NORTHERN TERRITORY) ACT 1976 Establishment of Land Councils

21 (1) The Minister shall, on the commencement of this section, by notice published in the
Gazette, divide the Northern Territory into at least 2 areas and establish an Aboriginal
Land Council for each area.
(2) A notice published under subsection (1) shall, in respect of each Aboriginal Land Council,
set out:

(a) the name of the Council; and

(b) the boundaries of the area for which the Council is established.

(3) Where the Minister is satisfied that:

(a) a substantial majority of adult Aboriginals living in an area that:

(i) is wholly included in the area of a Land Council; or

(ii) is partly included in the area of one Land Council and partly included in the
area of another Land Council or in the areas of other Land Councils;
is in favour of the setting up of a new Land Council for that first-mentioned
area only; and

(b) that first-mentioned area is an appropriate area for the operation of a new
Land Council; the Minister may, by notice published in the Gazette, establish an
Aboriginal Land Council for that first-mentioned area.

(4) A notice published under subsection (3) shall:

(a) specify the name of the new Land Council; and

(b) set out the boundaries of the area for which the new Land Council is established.

(5) On the publication of a notice under subsection (3), the area specified in the notice ceases
by force of this subsection to be part of the area of the Land Council, or of the areas of the
Land Councils, in which it was included immediately before that publication.
(6) On the establishment of a Land Council under this section, the Minister shall take whatever
steps he or she considers necessary and practicable to inform the adult Aboriginals living
in the area of the Land Council of the existence of the Land Council.

Grants of exploration licences

40 An exploration licence shall not be granted to a person in respect of Aboriginal land

(including Aboriginal land in a conservation zone) unless:

(a) both the Minister and the Land Council for the area in which the land is situated have
consented, in writing, to the grant of the licence; or
(b) the Governor-General has, by Proclamation, declared that the national interest requires
that the licence be granted;

and the Land Council and the person have entered into an agreement under this Part as to the
terms and conditions to which the grant of the licence will be subject.

11.5.2.2 Canada
In Canada, certain groups have been given autonomy; consider the position of the Nunuvut (see
https://www.gov.nu.ca/). However, claims for full secession have been rejected. The following
extract addresses claims for secession of Quebec from Canada. This continues to be a topical issue
and is relevant here even though the ‘peoples’ distinguish themselves on language rather than
indigenousness.
374 | INDIGENOUS PEOPLES

Reference re secession Quebec [1998] 2 SCR 217

83 Secession is the effort of a group or section of a state to withdraw itself from the political
and constitutional authority of that state, with a view to achieving statehood for a new territorial
unit on the international plane. In a federal state, secession typically takes the form of a
territorial unit seeking to withdraw from the federation. Secession is a legal act as much as a
political one. By the terms of Question 1 of this Reference, we are asked to rule on the legality
of unilateral secession ‘[u]nder the Constitution of Canada’. This is an appropriate question, as
the legality of unilateral secession must be evaluated, at least in the first instance, from the
perspective of the domestic legal order of the state from which the unit seeks to withdraw. As
we shall see below, it is also argued that international law is a relevant standard by which the
legality of a purported act of secession may be measured.

84 The secession of a province from Canada must be considered, in legal terms, to require an
amendment to the Constitution, which perforce requires negotiation. The amendments necessary
to achieve a secession could be radical and extensive. Some commentators have suggested that
secession could be a change of such a magnitude that it could not be considered to be merely an
amendment to the Constitution. We are not persuaded by this contention. It is of course true that
the Constitution is silent as to the ability of a province to secede from Confederation but, although
the Constitution neither expressly authorizes nor prohibits secession, an act of secession
would purport to alter the governance of Canadian territory in a manner which undoubtedly is
inconsistent with our current constitutional arrangements. The fact that those changes would be
profound, or that they would purport to have a significance with respect to international law, does
not negate their nature as amendments to the Constitution of Canada.

85 The Constitution is the expression of the sovereignty of the people of Canada. It lies within
the power of the people of Canada, acting through their various governments duly elected and
recognized under the Constitution, to effect whatever constitutional arrangements are desired
within Canadian territory, including, should it be so desired, the secession of Quebec from
Canada. As this Court held in the Manitoba Language Rights Reference, supra, at p. 745, ‘[t]he
Constitution of a country is a statement of the will of the people to be governed in accordance
with certain principles held as fundamental and certain prescriptions restrictive of the powers
of the legislature and government’. The manner in which such a political will could be formed
and mobilized is a somewhat speculative exercise, though we are asked to assume the
existence of such a political will for the purpose of answering the question before us. By the
terms of this Reference, we have been asked to consider whether it would be constitutional in
such a circumstance for the National Assembly, legislature or government of Quebec to effect
the secession of Quebec from Canada unilaterally.

86 The ‘unilateral’ nature of the act is of cardinal importance and we must be clear as to
what is understood by this term. In one sense, any step towards a constitutional amendment
initiated by a single actor on the constitutional stage is ‘unilateral’. We do not believe that
this is the meaning contemplated by Question 1, nor is this the sense in which the term has
been used in argument before us. Rather, what is claimed by a right to secede ‘unilaterally’ is
the right to effectuate secession without prior negotiations with the other provinces and the
federal government. At issue is not the legality of the first step but the legality of the final act of
purported unilateral secession. The supposed juridical basis for such an act is said to be a clear
expression of democratic will in a referendum in the province of Quebec. This claim requires us
to examine the possible juridical impact, if any, of such a referendum on the functioning of our
Constitution, and on the claimed legality of a unilateral act of secession.

. . .

92 However, we are equally unable to accept the reverse proposition, that a clear expression
of self-determination by the people of Quebec would impose no obligations upon the other
 INDIGENOUS PEOPLES | 375

provinces or the federal government. The continued existence and operation of the Canadian
constitutional order cannot remain indifferent to the clear expression of a clear majority of
Quebecers that they no longer wish to remain in Canada. This would amount to the assertion
that other constitutionally recognized principles necessarily trump the clearly expressed
democratic will of the people of Quebec. Such a proposition fails to give sufficient weight to
the underlying constitutional principles that must inform the amendment process, including
the principles of democracy and federalism. The rights of other provinces and the federal
government cannot deny the right of the government of Quebec to pursue secession, should a
clear majority of the people of Quebec choose that goal, so long as in doing so, Quebec respects
the rights of others. Negotiations would be necessary to address the interests of the federal
government, of Quebec and the other provinces, and other participants, as well as the rights of
all Canadians both within and outside Quebec.

93 Is the rejection of both of these propositions reconcilable? Yes, once it is realized that none
of the rights or principles under discussion is absolute to the exclusion of the others. This
observation suggests that other parties cannot exercise their rights in such a way as to amount
to an absolute denial of Quebec’s rights, and similarly, that so long as Quebec exercises its
rights while respecting the rights of others, it may propose secession and seek to achieve it
through negotiation. The negotiation process precipitated by a decision of a clear majority of the
population of Quebec on a clear question to pursue secession would require the reconciliation
of various rights and obligations by the representatives of two legitimate majorities, namely,
the clear majority of the population of Quebec, and the clear majority of Canada as a whole,
whatever that may be. There can be no suggestion that either of these majorities ‘trumps’ the
other. A political majority that does not act in accordance with the underlying constitutional
principles we have identified puts at risk the legitimacy of the exercise of its rights.

94 In such circumstances, the conduct of the parties assumes primary constitutional significance.
The negotiation process must be conducted with an eye to the constitutional principles we have
outlined, which must inform the actions of all the participants in the negotiation process.

95 Refusal of a party to conduct negotiations in a manner consistent with constitutional

principles and values would seriously put at risk the legitimacy of that party’s assertion of its
rights, and perhaps the negotiation process as a whole. Those who quite legitimately insist upon
the importance of upholding the rule of law cannot at the same time be oblivious to the need to
act in conformity with constitutional principles and values, and so do their part to contribute to
the maintenance and promotion of an environment in which the rule of law may flourish.

. . .

104 Accordingly, the secession of Quebec from Canada cannot be accomplished by the
National Assembly, the legislature or government of Quebec unilaterally, that is to say, without
principled negotiations, and be considered a lawful act. Any attempt to effect the secession
of a province from Canada must be undertaken pursuant to the Constitution of Canada, or
else violate the Canadian legal order. However, the continued existence and operation of the
Canadian constitutional order cannot remain unaffected by the unambiguous expression of a
clear majority of Quebecers that they no longer wish to remain in Canada. The primary means
by which that expression is given effect is the constitutional duty to negotiate in accordance with
the constitutional principles that we have described herein. In the event secession negotiations
are initiated, our Constitution, no less than our history, would call on the participants to work to
reconcile the rights, obligations and legitimate aspirations of all Canadians within a framework
that emphasizes constitutional responsibilities as much as it does constitutional rights.

. . .

138 In summary, the international law right to self-determination only generates, at best,
a right to external self-determination in situations of former colonies; where a people is
376 | INDIGENOUS PEOPLES

oppressed, as for example under foreign military occupation; or where a definable group is
denied meaningful access to government to pursue their political, economic, social and cultural
development. In all three situations, the people in question are entitled to a right to external
self-determination because they have been denied the ability to exert internally their right
to self-determination. Such exceptional circumstances are manifestly inapplicable to Quebec
under existing conditions. Accordingly, neither the population of the province of Quebec, even if
characterized in terms of ‘people’ or ‘peoples’, nor its representative institutions, the National
Assembly, the legislature or government of Quebec, possess a right, under international law,
to secede unilaterally from Canada.

Question
Do the arguments advanced by the Canadian Supreme Court conform to the international standards? Would
the situation be different if native peoples had claimed secession?

11.5.3 Recognising cultural autonomy and rights

It is often easier to recognise aspects of indigenous culture and respect that, rather than according
full or even partial autonomy. This can involve removing the indigenous peoples from the ambit
of national law. For example, whale hunting, reindeer husbandry, and a variety of other usufruc-
tory rights may be extended to indigenous peoples to the exclusion of others. In instances such
as whale hunting, indigenous peoples are permitted to hunt and kill animals which are otherwise
protected. Such an exception to the general rule recognises cultural rights. Some of the Human
Rights Committee opinions extracted previously are also relevant.
An element of self-determination is almost synonymous with self-preservation for indigenous
people (Turpel (see Further Reading) at p 593). It is essential not only that they participate in
decisions affecting their destiny, but also that they can decide the direction of that destiny. Given
that full self-determination is frequently mired in controversy and problems, perhaps full internal
autonomy represents a compromise. It would enable indigenous peoples who so desire to preserve
their culture and live in accordance with traditional practices, customs and laws, or to advance and
develop those traditional practices in response to the evolving society in which they find them-
selves. Indigenous peoples need not be preserved, somewhat paternalistically, as a living museum-
piece. Rather they should be entitled to live their lives as they choose, in an atmosphere of respect
for their heritage. This is a problematic issue around the world.
Equally vexatious and closely related to the issue of self-determination is the question of land
rights.

11.6 Land rights

As history attests, many indigenous peoples were dispossessed of their lands upon initial colo-
nisation. Few indigenous peoples still live on and have full responsibility over their traditional
lands. The lack of identifiable (to the colonisers) systems of land ownership caused further
problems. Some indigenous peoples were forcibly removed from their lands, others ceded land
under pressure. For example, some of the Maori peoples of Aotorea/New Zealand signed the
Treaty of Waitangi, granting land rights to the ‘invaders’ while in Australia and the Americas,
the land was regarded as ‘terra nullius’, literally empty land which was ‘discovered’ and occupied
by Europeans.
For many indigenous peoples, land rights are crucial for several reasons. Not least land is
often strongly related to cultural beliefs as the following two quotes from indigenous people aptly
demonstrate.
 INDIGENOUS PEOPLES | 377

Narritjin Maymuru, Yirrkala, Australia quoted in Isaacs, J. led.),

Australian Dreaming: 40,000 years of Aboriginal History, 1984,
Sydney: Ure Smith Press, p 99

We belong to the ground

It is our power and we must stay
Close to it or maybe
We will get lost

Elder brothers, Kogi peoples, Sierra Nevada, Columbia, interviewed in Ereira,

A., The Heart of the World, 1990, London: Jonathan Cape, p 58

The Elder Brother was there to protect the earth

Because the earth
It is our Mother, earth
Without earth we cannot live

Similar sentiments are found in the artistic works of other indigenous peoples. Evolution, morality
and culture are often referenced to the land and key features.

Question
Consider what myths and other legends explain the geological and geographical features of the landscape around
you? What are their origins?

There is evidence that the special relationship between indigenous peoples and their land has been
recognised by the international community.

UNITED NATIONS DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES, adopted by

General Assembly Resolution 61/295 on 13 September 2007

Article 25

Indigenous peoples have the right to maintain and strengthen their distinctive spiritual
relationship with their traditionally owned or otherwise occupied and used lands, territories,
waters and coastal seas and other resources and to uphold their responsibilities to future
generations in this regard.

Article 26

1 Indigenous peoples have the right to the lands, territories and resources which they have
traditionally owned, occupied or otherwise used or acquired.
2 Indigenous peoples have the right to own, use, develop and control the lands, territories
and resources that they possess by reason of traditional ownership or other traditional
occupation or use, as well as those which they have otherwise acquired.
3 States shall give legal recognition and protection to these lands, territories and resources.
Such recognition shall be conducted with due respect to the customs, traditions and land
tenure systems of the indigenous peoples concerned.

Article 27

States shall establish and implement, in conjunction with indigenous peoples concerned, a fair,
independent, impartial, open and transparent process, giving due recognition to indigenous
peoples’ laws, traditions, customs and land tenure systems, to recognize and adjudicate the
rights of indigenous peoples pertaining to their lands, territories and resources, including
378 | INDIGENOUS PEOPLES

those which were traditionally owned or otherwise occupied or used. Indigenous peoples shall
have the right to participate in this process.

Article 28

1 Indigenous peoples have the right to redress, by means that can include restitution or,
when this is not possible, just, fair and equitable compensation, for the lands, territories
and resources which they have traditionally owned or otherwise occupied or used, and
which have been confiscated, taken, occupied, used or damaged without their free, prior
and informed consent.
2 Unless otherwise freely agreed upon by the peoples concerned, compensation shall take
the form of lands, territories and resources equal in quality, size and legal status or of
monetary compensation or other appropriate redress.

Article 29

1 Indigenous peoples have the right to the conservation and protection of the environment
and the productive capacity of their lands or territories and resources. States shall
establish and implement assistance programmes for indigenous peoples for such
conservation and protection, without discrimination.
2 States shall take effective measures to ensure that no storage or disposal of hazardous
materials shall take place in the lands or territories of indigenous peoples without their
free, prior and informed consent.
3 States shall also take effective measures to ensure, as needed, that programmes for
monitoring, maintaining and restoring the health of indigenous peoples, as developed and
implemented by the peoples affected by such materials, are duly implemented.

Article 30

1 Military activities shall not take place in the lands or territories of indigenous peoples,
unless justified by a relevant public interest or otherwise freely agreed with or requested
by the indigenous peoples concerned.
2 States shall undertake effective consultations with the indigenous peoples concerned,
through appropriate procedures and in particular through their representative institutions,
prior to using their lands or territories for military activities.

Note particularly the prohibition on military activities in Article 30, a right arguably undermined
by the ‘public interest’ caveat. Military activities on indigenous lands is a major issue, and swathes
of indigenous lands cannot be used due to previous military activities or current military practices.
Even the provisions on ‘free consent’ can be problematic, as many groups of indigenous peoples give
freely of their consent in return for appropriate compensation. The full impact of this ‘voluntary’
loss of land may not be evident for years after. The British Indian Ocean Territories (BIOT) is one
example. The Chagos islanders were moved to Mauritius, and an American air base and defence
facilities were built with UK agreement. Issues arriving from this dispossession have been discussed
in court for years, culminating in R (on the application of Bancoult) v Secretary of State for Foreign
and Commonwealth Affairs [2008] UKHL 61, in which the islanders lost their legal battle to return
to their archipelago. Nevertheless, high-level diplomatic debates continue over the status of the
atolls and islands. See also the ICJ Advisory Opinion, Legal Consequences of the Separation of the
Chagos Archipelago from Mauritius in 1965, 2019.

UN General Assembly Rights of Indigenous Peoples, A/C.3/73/L.24/Rev. 1

Recognizing also the value and the diversity of the cultures and the form of social organization
of indigenous peoples and their holistic traditional knowledge of their lands, natural resources
and environment,
 INDIGENOUS PEOPLES | 379

Recognizing further the importance of traditional sustainable agricultural practices,

including traditional seed supply systems, as well as access to credit and other financial
services, markets, secure land tenure, health care and health-care services, social services,
education, training, knowledge and appropriate and affordable technologies, including efficient
irrigation, the reuse of treated wastewater and water harvesting and storage for indigenous
peoples and others living in rural areas,

Preamble to the Draft Organization of American States Declaration on

the Rights of Indigenous Peoples

4. Lands, territories, and resources

Recognizing the special relationship that the indigenous peoples maintain with their
lands, territories, and resources.
Recognizing, that for the indigenous peoples their traditional collective forms of ownership
and use of lands, territories, resources, waters, and coastal zones are a necessary condition
for their survival, social organization, development, spirituality, and individual and collective
well-being.

More detailed provisions are found in the provisions of Convention No. 169 (1989) of the Inter-
national Labour Organisation, part II of which addresses land rights.

ILO CONVENTION 169 (1989)

Article 13

1 In applying the provisions of this Part of the Convention governments shall respect the
special importance for the cultures and spiritual values of the peoples concerned of their
relationship with the lands or territories, or both as applicable, which they occupy or
otherwise use, and in particular the collective aspects of this relationship.
2 The use of the term lands in Articles 15 and 16 shall include the concept of territories,
which covers the total environment of the areas which the peoples concerned occupy or
otherwise use.

Article 14

1 The rights of ownership and possession of the peoples concerned over the lands which
they traditionally occupy shall be recognised. In addition, measures shall be taken
in appropriate cases to safeguard the right of the peoples concerned to use lands not
exclusively occupied by them, but to which they have traditionally had access for their
subsistence and traditional activities. Particular attention shall be paid to the situation of
nomadic peoples and shifting cultivators in this respect.
2 Governments shall take steps as necessary to identify the lands which the peoples
concerned traditionally occupy, and to guarantee effective protection of their rights of
ownership and possession.
3 Adequate procedures shall be established within the national legal system to resolve land
claims by the peoples concerned.

Article 15

1 The rights of the peoples concerned to the natural resources pertaining to their lands shall
be specially safeguarded. These rights include the right of these peoples to participate in
the use, management and conservation of these resources.
2 In cases in which the State retains the ownership of mineral or sub-surface resources or
rights to other resources pertaining to lands, governments shall establish or maintain
380 | INDIGENOUS PEOPLES

procedures through which they shall consult these peoples, with a view to ascertaining
whether and to what degree their interests would be prejudiced, before undertaking
or permitting any programmes for the exploration or exploitation of such resources
pertaining to their lands. The peoples concerned shall wherever possible participate in
the benefits of such activities, and shall receive fair compensation for any damages which
they may sustain as a result of such activities.

Article 16

1 Subject to the following paragraphs of this Article, the peoples concerned shall not be
removed from the lands which they occupy.
2 Where the relocation of these peoples is considered necessary as an exceptional measure,
such relocation shall take place only with their free and informed consent. Where their
consent cannot be obtained, such relocation shall take place only following appropriate
procedures established by national laws and regulations, including public inquiries where
appropriate, which provide the opportunity for effective representation of the peoples
concerned.
3 Whenever possible, these peoples shall have the right to return to their traditional lands,
as soon as the grounds for relocation cease to exist.
4 When such return is not possible, as determined by agreement or, in the absence of
such agreement, through appropriate procedures, these peoples shall be provided in all
possible cases with lands of quality and legal status at least equal to that of the lands
previously occupied by them, suitable to provide for their present needs and future
development. Where the peoples concerned express a preference for compensation in
money or in kind, they shall be so compensated under appropriate guarantees.
5 Persons thus relocated shall be fully compensated for any resulting loss or injury.

Article 17

1 Procedures established by the peoples concerned for the transmission of land rights
among members of these peoples shall be respected.
2 The peoples concerned shall be consulted whenever consideration is being given to
their capacity to alienate their lands or otherwise transmit their rights outside their own
community.

Article 18

Adequate penalties shall be established by law for unauthorised intrusion upon, or use of,
the lands of the peoples concerned, and governments shall take measures to prevent such
offences.

Article 19

National agrarian programmes shall secure to the peoples concerned treatment equivalent to
that accorded to other sectors of the population with regard to:

(a) the provision of more land for these peoples when they have not the area necessary
for providing the essentials of a normal existence, or for any possible increase in their
numbers;
(b) the provision of the means required to promote the development of the lands which these
peoples already possess.
 INDIGENOUS PEOPLES | 381

11.6.1 Conflicting land rights: pre-existing and new

Land was claimed by ‘invaders’ without due consideration to the pre-existing rights of the indig-
enous population. Frequently, land deemed subject to ‘discovery’ in terms of international law was
regarded in law as ‘terra nullius’, literally empty land. For examples of statements to this effect in
Australia see, for example, Attorney-General for New South Wales v Brown (1847) 1 Legge 312 at
316 or New South Wales v Commonwealth (1975) 135 Commonwealth Law Reports 337 at 438.
Prior proprietal rights of the indigenous population were not recognised although it was usually
acknowledged that there were indigenous inhabitants. Moreover, prior rights of indigenous peo-
ples were frequently not viewed by the peoples themselves as ‘rights’ to the land. This concept was
alien to many indigenous people as due to their inalienable spiritual ties to the land, the concept
of titular ownership of land did not exist in traditional societies.

UN Doc. E/CN.4/Sub.2/AC.4/1990/1/Add. 1, p 5 (Australian submission to

Working Group on Indigenous Populations)

There would be fundamental difficulties in attempting to transfer Aboriginal land systems,

including concepts of ownership, custodianship and inheritance, into a legally enforceable
system of rights and obligations.

Similar sentiments are expressed by other States with significant dispossessed indigenous popula-
tions. Obviously the passage of time makes the dispossession which characterised the centuries of
colonisation unacceptable today. Nevertheless land rights are contentious and reparation (compen-
sation) for dispossession is a common claim. As the UN Declaration makes clear:

UNITED NATIONS DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES 2007

Article 8

1 Indigenous peoples and individuals have the right not to be subjected to forced assimilation
or destruction of their culture.
2 States shall provide effective mechanisms for prevention of, and redress for:

(b) Any action which has the aim or effect of dispossessing them of their lands,
territories or resources;
(c) Any form of forced population transfer which has the aim or effect of violating or
undermining any of their rights;
. . .

Article 10

Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation
shall take place without the free, prior and informed consent of the indigenous peoples concerned
and after agreement on just and fair compensation and, where possible, with the option of return.

In some instances, land rights were transferred by the indigenous population by legal deeds. It has
long since been argued that the implication of such a transfer was not necessarily apparent to the
indigenous people.

11.6.2 Case study: New Zealand, Maori peoples and the Treaty
of Waitangi
In New Zealand, too, the indigenous people signed instruments concerning land rights following
the arrival of the colonising powers. The Treaty of Waitangi was signed on 6 February 1840, at
382 | INDIGENOUS PEOPLES

Waitangi in the Bay of Islands, by Lieutenant General Hobson on behalf of the British Empire,
several English residents and approximately 45 Māori rangatira, Hone Heke being the first. The
Māori text of the Treaty was then sent around the rest of the country for signing. In contrast the
English text was signed in only two further locations, by a total of 39 rangatira. In the course of
1840, over 500 Māori had signed the Treaty.
Many issues have arisen subsequently concerning the Treaty. Some of these arise due to per-
ceived differences between the English and Māori versions. The following extracts are from the
official English text and an official translation into English of the actual Māori version of the treaty,
which was signed by the majority of Māori rangatira.

Preamble

Treaty of Waitangi 1840, official English version

HER MAJESTY VICTORIA Queen of the United Kingdom of Great Britain and Ireland regarding
with Her Royal favour the Native Chiefs and Tribes of New Zealand and anxious to protect their
just Rights and Property and to secure to them the enjoyment of Peace and Good Order has
deemed it necessary in consequence of the great number of Her Majesty’s Subjects who have
already settled in New Zealand and the rapid extension of Emigration both from Europe and
Australia which is still in progress to constitute and appoint a functionary properly authorised
to treat with the Aborigines of New Zealand for the recognition of Her Majesty’s Sovereign
authority over the whole or any part of those islands – Her Majesty therefore being desirous
to establish a settled form of Civil Government with a view to avert the evil consequences
which must result from the absence of the necessary Laws and Institutions alike to the native
population and to Her subjects has been graciously pleased to empower and to authorise me
William Hobson a Captain in Her Majesty’s Royal Navy Consul and Lieutenant Governor of
such parts of New Zealand as may be or hereafter shall be ceded to her Majesty to invite the
confederated and independent Chiefs of New Zealand to concur in the following Articles and
Conditions.

Article the First

The Chiefs of the Confederation of the United Tribes of New Zealand and the separate and
independent Chiefs who have not become members of the Confederation cede to Her
Majesty the Queen of England absolutely and without reservation all the rights and powers of
Sovereignty which the said Confederation or Individual Chiefs respectively exercise or possess,
or may be supposed to exercise or to possess over their respective Territories as the sole
Sovereigns thereof.

Article the Second

Her Majesty the Queen of England confirms and guarantees to the Chiefs and Tribes of New
Zealand and to the respective families and individuals thereof the full exclusive and undisturbed
possession of their Lands and Estates Forests Fisheries and other properties which they may
collectively or individually possess so long as it is their wish and desire to retain the same
in their possession; but the Chiefs of the United Tribes and the individual Chiefs yield to Her
Majesty the exclusive right of Preemption over such lands as the proprietors thereof may be
disposed to alienate at such prices as may be agreed upon between the respective Proprietors
and persons appointed by Her Majesty to treat with them in that behalf.

Article the Third

In consideration thereof Her Majesty the Queen of England extends to the Natives of New
Zealand Her royal protection and imparts to them all the Rights and Privileges of British
Subjects.
 INDIGENOUS PEOPLES | 383

Translation of the Māori Version of the Treaty by Professor Sir Hugh Kawharu (taken from https://
www.waitangitribunal.govt.nz/treaty-of-waitangi/translation-of-te-reo-maori-text/)

Article the First

The Chiefs of the Confederation and all the Chiefs who have not joined that Confederation give
absolutely to the Queen of England for ever the complete government over their land.

Article the Second

The Queen of England agrees to protect the Chiefs, the Subtribes and all the people of New
Zealand in the unqualified exercise of their chieftainship over their lands, villages and all their
treasures. But on the other hand the Chiefs of the Confederation and all the Chiefs will sell land
to the Queen at a price agreed to by the person owning it and by the person buying it (the latter
being) appointed by the Queen as her purchase agent.

Article the Third

For this agreed arrangement therefore concerning the Government of the Queen, the Queen
of England will protect all the ordinary people of New Zealand (ie the Māori) and will give them
the same rights and duties of citizenship as the people of England.

Given the controversy which the Treaty of Waitangi continued to evoke, not least in relation
to land rights, the 1975 Treaty of Waitangi Act established the Waitangi Tribunal, which had as
its primary objective adjudicating on claims. By 2009, there had been over 1,000 Treaty claims
lodged, with a total value of about $600 million (from www.nzhistory.net.nz/category/tid/133).
It was set up to inquire into claims by Māori against any Crown act, policy, action or omission
that prejudicially affects them. A claim lodged with the Tribunal is checked against section 6 of the
Treaty of Waitangi Act 1975 to ascertain whether it is one that the Tribunal may look into. If it
is, the claim is then registered, heard, and reported on to the Minister of Māori Affairs. Deciding
whether the claim is well founded is a key issue for the Tribunal. If it sees fit, the Tribunal may
make recommendations about the claim to the government.

11.6.3 Establishing native title

The pre-existence of native title is slowly being recognised. Cases in Australia and South Africa,
inter alia, elucidate a change in opinion. Historic wrongs are being righted once again.

Mabo and Others v the State of Queensland [No. 2], 175 Commonwealth
Law Reports (1991–1992) 1

The Torres Strait Islands lie off the northeast tip of Australia. Certain islands including the
Murray Islands (Mer, Dauar and Waier) were annexed to Queensland in terms of the Queensland
Coast Islands Act 1879. Some parts of the islands were transferred to missionaries, others
leased by the British Crown. The sovereignty of the British Crown was not questioned. However,
in 1982, Eddie Mabo, a native Meriam, joined with others seeking judicial confirmation of
their traditional land rights on the island. They sought a declaration that they were entitled
to the islands as owners, possessors, occupiers or as persons entitled to use and to enjoy
the islands, that the islands were not and had never been Crown land and that the State of
Queensland was not entitled to extinguish the title of the Meriam people. A decade later, the
case arrived before the High Court of Australia by which time Eddie Mabo and some of the
other initial plaintiffs had died though the case continued and its constitutional significance
is undiminished.
384 | INDIGENOUS PEOPLES

Brennan, J: 54. Once it is accepted that indigenous inhabitants in occupation of a territory when
sovereignty is acquired by the Crown are capable of enjoying – whether in community, as a
group or as individuals – proprietary interests in land, the rights and interests in the land
which they had theretofore enjoyed under the customs of their community are seen to be a
burden on the radical title which the Crown acquires. The notion that feudal principle dictates
that the land in a settled colony be taken to be a royal demesne upon the Crown’s acquisition
of sovereignty is mistaken. However, that was not the only basis advanced to establish the
proposition of absolute Crown ownership and the alternative bases must next be considered.

. . .

60. In Calder v. Attorney-General of British Columbia (124) (1973) SCR, at p 416; contra per Judson J.
at pp. 328–30; (1973) 34 DLR (3d), at p. 218; contra per Judson J. at pp. 156, 157 Hall J. rejected as
‘wholly wrong’ ‘the proposition that after conquest or discovery the native peoples have no rights
at all except those subsequently granted or recognized by the conqueror or discoverer’.

61. The preferable rule, supported by the authorities cited, is that a mere change in sovereignty
does not extinguish native title to land. (The term ‘native title’ conveniently describes the
interests and rights of indigenous inhabitants in land, whether communal, group or individual,
possessed under the traditional laws acknowledged by and the traditional customs observed
by the indigenous inhabitants.) The preferable rule equates the indigenous inhabitants of a
settled colony with the inhabitants of a conquered colony in respect of their rights and interests
in land and recognizes in the indigenous inhabitants of a settled colony the rights and interests
recognized by the Privy Council in In re Southern Rhodesia as surviving to the benefit of the
residents of a conquered colony.

62. If native title survives the Crown’s acquisition of sovereignty as, in my view, it does, it is
unnecessary to examine the alternative arguments advanced to support the rights and interests
of the Meriam people to their traditional land. One argument raised the presumption of a Crown
grant arising from the Meriam people’s possession of the Murray Islands from a time before
annexation; another was the existence of a title arising after annexation in accordance with a
supposed local legal custom under the common law whereby the Meriam people were said to be
entitled to possess the Murray Islands. There are substantial difficulties in the way of accepting
either of these arguments, but it is unnecessary to pursue them. It is sufficient to state that,
in my opinion, the common law of Australia rejects the notion that, when the Crown acquired
sovereignty over territory which is now part of Australia it thereby acquired the absolute
beneficial ownership of the land therein, and accepts that the antecedent rights and interests in
land possessed by the indigenous inhabitants of the territory survived the change in sovereignty.
Those antecedent rights and interests thus constitute a burden on the radical title of the Crown.

. . .

64. Native title has its origin in and is given its content by the traditional laws acknowledged by
and the traditional customs observed by the indigenous inhabitants of a territory. The nature
and incidents of native title must be ascertained as a matter of fact by reference to those laws
and customs. The ascertainment may present a problem of considerable difficulty, as Moynihan
J. perceived in the present case. It is a problem that did not arise in the case of a settled colony
so long as the fictions were maintained that customary rights could not be reconciled ‘with the
institutions or the legal ideas of civilized society’ In Re Southern Rhodesia (1919) AC, at p 233,
that there was no law before the arrival of the British colonists in a settled colony and that
there was no sovereign law-maker in the territory of a settled colony before sovereignty was
acquired by the Crown. These fictions denied the possibility of a native title recognized by our
laws. But once it is acknowledged that an inhabited territory which became a settled colony
was no more a legal desert than it was ‘desert uninhabited’ in fact, it is necessary to ascertain
 INDIGENOUS PEOPLES | 385

by evidence the nature and incidents of native title. Though these are matters of fact, some
general propositions about native title can be stated without reference to evidence.

65. First, unless there are pre-existing laws of a territory over which the Crown acquires
sovereignty which provide for the alienation of interests in land to strangers, the rights and
interests which constitute a native title can be possessed only by the indigenous inhabitants
and their descendants. Native title, though recognized by the common law, is not an institution
of the common law and is not alienable by the common law. Its alienability is dependent on
the laws from which it is derived. If alienation of a right or interest in land is a mere matter
of the custom observed by the indigenous inhabitants, not provided for by law enforced by
a sovereign power, there is no machinery which can enforce the rights of the alienee. The
common law cannot enforce as a proprietary interest the rights of a putative alienee whose title
is not created either under a law which was enforceable against the putative alienor at the time
of the alienation and thereafter until the change of sovereignty or under the common law. And,
subject to an important qualification, the only title dependent on custom which the common
law will recognize is one which is consistent with the common law. Thus, in The Case of Tanistry,
the Irish custom of tanistry was held to be void because it was founded in violence and because
the vesting of title under the custom was uncertain (1608) Davis (80 ER); 4th ed. Dublin (1762)
English translation, at pp.  94–99. The inconsistency that the court perceived between the
custom of tanistry known to the Brehon law of Ireland and the common law precluded the
recognition of the custom by the common law. At that stage in its development, the common
law was too rigid to admit recognition of a native title based on other laws or customs, but that
rigidity has been relaxed, at least since the decision of the Privy Council in Amodu Tijani. The
general principle that the common law will recognize a customary title only if it be consistent
with the common law is subject to an exception in favour of traditional native title.

66. Of course, since European settlement of Australia, many clans or groups of indigenous people
have been physically separated from their traditional land and have lost their connexion with it.
But that is not the universal position. It is clearly not the position of the Meriam people. Where a
clan or group has continued to acknowledge the laws and (so far as practicable) to observe the
customs based on the traditions of that clan or group, whereby their traditional connexion with
the land has been substantially maintained, the traditional community title of that clan or group
can be said to remain in existence. The common law can, by reference to the traditional laws and
customs of an indigenous people, identify and protect the native rights and interests to which
they give rise. However, when the tide of history has washed away any real acknowledgment of
traditional law and any real observance of traditional customs, the foundation of native title has
disappeared. A native title which has ceased with the abandoning of laws and customs based on
tradition cannot be revived for contemporary recognition. Australian law can protect the interests
of members of an indigenous clan or group, whether communally or individually, only in conformity
with the traditional laws and customs of the people to whom the clan or group belongs and only
where members of the clan or group acknowledge those laws and observe those customs (so far
as it is practicable to do so). Once traditional native title expires, the Crown’s radical title expands
to a full beneficial title, for then there is no other proprietor than the Crown.

97. It follows that a right or interest possessed as a native title cannot be acquired from
an indigenous people by one who, not being a member of the indigenous people, does not
acknowledge their laws and observe their customs; nor can such a right or interest be acquired
by a clan, group or member of the indigenous people unless the acquisition is consistent with
the laws and customs of that people. Such a right or interest can be acquired outside those laws
and customs only by the Crown. This result has been reached in other jurisdictions, though for
different reasons: see Reg. v. Symonds (1847) NZPCC, at p 390; Johnson v. McIntosh (1823) 8
Wheat, at p 586 (21 US, at p 259); St. Catherine’s Milling and Lumber Co. v. The Queen (1887) 13 SCR
577, at p 599. Once the Crown acquires sovereignty and the common law becomes the law of
386 | INDIGENOUS PEOPLES

the territory, the Crown’s sovereignty over all land in the territory carries the capacity to accept
a surrender of native title. The native title may be surrendered on purchase or surrendered
voluntarily, whereupon the Crown’s radical title is expanded to absolute ownership, a plenum
dominium, for there is then no other owner: St. Catherine’s Milling and Lumber Co. v. The Queen
(1888) 14 App Cas, at p 55. If native title were surrendered to the Crown in expectation of a
grant of a tenure to the indigenous title holders, there may be a fiduciary duty on the Crown
to exercise its discretionary power to grant a tenure in land so as to satisfy the expectation.
See Guerin v. The Queen (1984) 13 DLR (4th) 321, at pp 334, 339, 342–343, 356–357, 360–361,
but it is unnecessary to consider the existence or extent of such a fiduciary duty in this case.
Here, the fact is that strangers were not allowed to settle on the Murray Islands and, even
after annexation in 1879, strangers who were living on the Islands were deported. The Meriam
people asserted an exclusive right to occupy the Murray Islands and, as a community, held a
proprietary interest in the Islands. They have maintained their identity as a people and they
observe customs which are traditionally based. There was a possible alienation of some kind
of interest in 2 acres to the London Missionary Society prior to annexation but it is unnecessary
to consider whether that land was alienated by Meriam law or whether the alienation was
sanctioned by custom alone. As we shall see, native title to that land was lost to the Meriam
people in any event on the grant of a lease by the Crown in 1882 or by its subsequent renewal.

68. Secondly, native title, being recognized by the common law (though not as a common
law tenure), may be protected by such legal or equitable remedies as are appropriate to the
particular rights and interests established by the evidence, whether proprietary or personal
and usufructuary in nature and whether possessed by a community, a group or an individual.
The incidents of a particular native title relating to inheritance, the transmission or acquisition
of rights and interests on death or marriage, the transfer of rights and interests in land and the
grouping of persons to possess rights and interests in land are matters to be determined by
the laws and customs of the indigenous inhabitants, provided those laws and customs are not
so repugnant to natural justice, equity and good conscience that judicial sanctions under the
new regime must be withheld: Idewu Inasa v. Oshodi (1934) AC 99, at p 105. Of course in time the
laws and customs of any people will change and the rights and interests of the members of the
people among themselves will change too. But so long as the people remain as an identifiable
community, the members of whom are identified by one another as members of that community
living under its laws and customs, the communal native title survives to be enjoyed by the
members according to the rights and interests to which they are respectively entitled under
the traditionally based laws and customs, as currently acknowledged and observed. Here, the
Meriam people have maintained their own identity and their own customs. The Murray Islands
clearly remain their home country. Their land disputes have been dealt with over the years by
the Island Court in accordance with the customs of the Meriam people.

69. Thirdly, where an indigenous people (including a clan or group), as a community, are in
possession or are entitled to possession of land under a proprietary native title, their possession
may be protected or their entitlement to possession may be enforced by a representative
action brought on behalf of the people or by a sub-group or individual who sues to protect or
enforce rights or interests which are dependent on the communal native title. Those rights and
interests are, so to speak, carved out of the communal native title. A sub-group or individual
asserting a native title dependent on a communal native title has a sufficient interest to sue to
enforce or protect the communal title: Australian Conservation Foundation v. The Commonwealth
(19801 146 CLR 493, at pp 530–531, 537–539, 547–548; Onus v Alcoa of Australia Ltd. (19811 149
CLR 27, at pp 35–36, 41–42, 46, 51, 62, 74–75. A communal native title enures for the benefit of
the community as a whole and for the sub-groups and individuals within it who have particular
rights and interests in the community’s lands.

. . .
 INDIGENOUS PEOPLES | 387

73. Sovereignty carries the power to create and to extinguish private rights and interests in
land within the Sovereign’s territory: Joint Tribal Council of the Passamaquoddy Tribe v. Morton
(19751 528 Fed 2d 370, at p 376 n.6. It follows that, on a change of sovereignty, rights and
interests in land that may have been indefeasible under the old regime become liable to
extinction by exercise of the new sovereign power. The sovereign power may or may not be
exercised with solicitude for the welfare of indigenous inhabitants but, in the case of common
law countries, the courts cannot review the merits, as distinct from the legality, of the exercise
of sovereign power: United States v. Santa Fe Pacific Railroad Company (19411 314 US 339,
at p 347; Tee-Hit-Ton Indians v. United States (19541 348 US 272, at pp 281–285. However,
under the constitutional law of this country, the legality (and hence the validity) of an exercise
of a sovereign power depends on the authority vested in the organ of government purporting
to exercise it: municipal constitutional law determines the scope of authority to exercise a
sovereign power over matters governed by municipal law, including rights and interests in land.

Today, the National Native Title Tribunal in Australia (www.nntt.gov.au) discharges a range of
functions under the Native Title Act 1993, a landmark piece of legislation passed after the Mabo
case.

Question
Look again at the extracts of the UN Declaration on the Rights of Indigenous Peoples (11.5). Australia voted
against this. Consider the implications of Mabo and the reasons Australia is reluctant to accept the instrument
on the rights of indigenous peoples.

Calder v Attorney-General of British Columbia (1973) 34 Dominion

Law Reports (3rd) 145

Traditional authorities and precedents led the Provincial Courts to uphold the lawful extinction
of the Nishga Indians’ native title by the Crown. The Supreme Court of Canada overturned it
declaring that native title once established continued unless there was specific legislation to
the contrary or the land had been ceded to the Crown.

Hall, J., dissenting, pp. 173–4: When asked to state the nature of the right being asserted and
for which a declaration was being sought, counsel for the appellants described it as ‘an interest
which is a burden on the title of the Crown; an interest which is usufructuary in nature; a tribal
interest inalienable except to the Crown and extinguishable only by legislative enactment of the
Parliament of Canada’. The exact nature and extent of the Indian right or title does not need
to be precisely stated in this litigation. The issue here is whether any right or title the Indians
possess as occupants of the land from time immemorial has been extinguished. They ask for a
declaration that there has been no extinguishment. The precise nature and value of that right
or title would, of course, be most relevant in any litigation that might follow extinguishment
in the future because in such an event, according to common law, the expropriation of private
rights by the Government under the prerogative necessitates the payment of compensation:
Newcastle Breweries Ltd. v. The King, [1920] 1 K.B. 854. Only express words to that effect in
an enactment would authorize a taking without compensation. This proposition has been
extended to Canada in City of Montreal v. Montreal Harbour Com’rs, [1926] 1 D.L.R. 840, 47 Que.
K.B. 163, [1926] A.C. 299. The principle is so much part of the common law that it even exists
in time of war as was made clear in Attorney-General v. DeKeyser’s Royal Hotel, Ltd., [1920] A.C.
508, and Burmah Oil Co. (Burmah Trading) Ltd. v. Lord Advocate, [1965] A.C. 75. This is not a claim
to title in fee but is in the nature of an equitable title or interest (see Cherokee Nation v. State of
Georgia (1831), 5 Peters 1, 30 U.S. 1), a usufructuary right and a right to occupy the lands and
to enjoy the fruits of the soil, the forest and of the rivers and streams which does not in any
way deny the Crown’s paramount title as it is recognized by the law of nations. Nor does the
388 | INDIGENOUS PEOPLES

Nishga claim challenge the federal Crown’s right to extinguish that title. Their position is that
they possess a right of occupation against the world except the Crown and that the Crown has
not to date lawfully extinguished that right. The essence of the action is that such rights as the
Nishgas possessed in 1858 continue to this date. Accordingly, the declaratory judgment asked
for implies that the status quo continues and this means that if the right is to be extinguished it
must be done by specific legislation in accordance with the law.
The right to possession claimed is not prescriptive in origin because a prescriptive right
presupposes a prior right in some other person or authority. Since it is admitted that the
Nishgas have been in possession since time immemorial, that fact negatives that anyone ever
had or claimed prior possession.
The Nishgas do not claim to be able to sell or alienate their right to possession except to
the Crown. They claim the right to remain in possession themselves and to enjoy the fruits of
that possession. They do not deny the right of the Crown to dispossess them but say the Crown
has not done so. There is no claim for compensation in this action. The action is for a declaration
without a claim for consequential relief as contemplated by British Columbia O. 25, r.5 (M.R.
285) quoted later. However, it must be recognized that if the Nishgas succeed in establishing
a right to possession, the question of compensation would remain for future determination as
and when proceedings to dispossess them should be taken. British Columbia’s position has
been that there never was any right or title to extinguish, and alternatively, that if any such
right or title did exist it was extinguished in the period between 1858 and Confederation in
1871. The respondent admits that nothing has been done since Confederation to extinguish
the right or title.

Canada also voted against the UN Declaration on Indigenous People. Note also the case of Lubi-
con Lake Band, extracted earlier. It is clear issues remain unresolved in many countries despite
the efforts of successive governments.

11.6.4 Land, natural resources and development

Land may contain valuable resources which are exploited by others contrary to the cultural and
spiritual ties of the indigenous peoples or to the detriment of elements of their right to develop-
ment. More recent and ongoing challenges to indigenous peoples are the exploitation of land
and natural resources. Mining and oil and mineral exploration impact heavily on traditional lands
in large swathes of Africa. Note that general human rights also impact on this. Consider certain
‘peoples’ rights’ in the African Charter.

AFRICAN CHARTER ON HUMAN AND PEOPLES’ RIGHTS 1981, Article 21

1 All peoples shall freely dispose of their wealth and natural resources. This right shall be
exercised in the exclusive interest of the people. In no case shall a people be deprived of it.
2 In case of spoilation the dispossessed people shall have the right to the lawful recovery of
its property as well as to an adequate compensation.
3 The free disposal of wealth and natural resources shall be exercised without prejudice to
the obligation of promoting international economic cooperation based on mutual respect,
equitable exchange and the principles of international law.
4 States parties to the present Charter shall individually and collectively exercise the right
to free disposal of their wealth and natural resources with a view to strengthening African
unity and solidarity.
5 States parties to the present Charter shall undertake to eliminate all forms of foreign
economic exploitations particularly that practiced by international monopolies so as to enable
their peoples to fully benefit from the advantages derived from their national resources.
 INDIGENOUS PEOPLES | 389

Chapter 8 includes the practical application of such provisions when considering cases brought
before African and American courts/commissions arising from the exploitation of the Niger delta
and the impact on, inter alia, the Ogoni peoples.

Question
Noting the Treaty of Waitangi, extracted earlier, what problems may there be for indigenous peoples in the
Amazon basin or Papua New Guinea when faced with incomers wishing to draft instruments for transferring
mineral rights to traditional lands?

11.6.5 Restitution or compensation

Neither restitution nor compensation is habitually offered to all affected peoples. Inevitably busi-
ness and politics intervene. When natural resources are exploited, the potential for compensation
is greater. In Alaska, the Alaskan Native Settlement Claim Act 1971 was the largest Indian settle-
ment in history, giving Alaska’s indigenous people clear title to 40 million acres and cash of $962.5
million. This settlement paved the way for the trans-Alaskan pipeline which impacted heavily on
traditional Inuit lands and affected natural migration routes of many indigenous species. Consider
the salient extracts from the Act.

ALASKA NATIVE SETTLEMENT CLAIMS ACT 1971, Title 43, Chapter 33

S 1601. Congressional findings and declaration of policy

Congress finds and declares that –

(a) there is an immediate need for a fair and just settlement of all claims by Natives and
Native groups of Alaska, based on aboriginal land claims;
(b) the settlement should be accomplished rapidly, with certainty, in conformity with the real
economic and social needs of Natives, without litigation, with maximum participation
by Natives in decisions affecting their rights and property, without establishing any
permanent racially defined institutions, rights, privileges, or obligations, without creating
a reservation system or lengthy wardship or trusteeship, and without adding to the
categories of property and institutions enjoying special tax privileges or to the legislation
establishing special relationships between the United States Government and the State of
Alaska;
(c) no provision of this chapter shall replace or diminish any right, privilege, or obligation
of Natives as citizens of the United States or of Alaska, or relieve, replace, or diminish
any obligation of the United States or of the State or Alaska to protect and promote the
rights or welfare of Natives as citizens of the United States or of Alaska; the Secretary is
authorized and directed, together with other appropriate agencies of the United States
Government, to make a study of all Federal programs primarily designed to benefit Native
people and to report back to the Congress with his recommendations for the future
management and operation of these programs within three years of December 18, 1971;
(d) no provision of this chapter shall constitute a precedent for reopening, renegotiating,
or legislating upon any past settlement involving land claims or other matters with any
Native organizations, or any tribe, band, or identifiable group of American Indians;
(e) no provision of this chapter shall effect a change or changes in the petroleum reserve
policy reflected in sections 7421 through 7438 of title 10 except as specifically provided in
this chapter;
(f) no provision of this chapter shall be construed to constitute a jurisdictional act, to confer
jurisdiction to sue, nor to grant implied consent to Natives to sue the United States or any
of its officers with respect to the claims extinguished by the operation of this chapter; and
390 | INDIGENOUS PEOPLES

(g) no provision of this chapter shall be construed to terminate or otherwise curtail the activities
of the Economic Development Administration or other Federal agencies conducting loan
or loan and grant programs in Alaska. For this purpose only, the terms ‘Indian reservation’
and ‘trust or restricted Indian-owned land areas’ in Public Law 89–136, the Public Works
and Economic Development Act of 1965, as amended [42 U.S.C. 3121 et seq.], shall be
interpreted to include lands granted to Natives under this chapter as long as such lands
remain in the ownership of the Native villages or the Regional Corporations.

S 1602. Definitions

. . .
(b) ‘Native’ means a citizen of the United States who is a person of one-fourth degree or more
Alaska Indian (including Tsimshian Indians not enrolled in the Metlaktla Indian Community)
Eskimo, or Aleut blood, or combination thereof. The term includes any Native as so defined
either or both of whose adoptive parents are not Natives. It also includes, in the absence of
proof of a minimum blood quantum, any citizen of the United States who is regarded as an
Alaska Native by the Native village or Native group of which he claims to be a member and
whose father or mother is (or, if deceased, was) regarded as Native by any village or group.
Any decision of the Secretary regarding eligibility for enrollment shall be final;
(c) ‘Native village’ means any tribe, band, clan, group, village, community, or association in
Alaska listed in sections 1610 and 1615 of this title, or which meets the requirements of
this chapter, and which the Secretary determines was, on the 1970 census enumeration
date (as shown by the census or other evidence satisfactory to the Secretary, who shall
make findings of fact in each instance), composed of twenty-five or more Natives;
(d) ‘Native group’ means any tribe, band, clan, village, community, or village association of
Natives in Alaska composed of less than twenty-five Natives, who comprise a majority of
the residents of the locality.

S 1605. Alaska Native Fund

(a) Establishment in Treasury; deposits into Fund of general fund, interest, and revenue sharing
moneys

There is hereby established in the United States Treasury an Alaska Native Fund into which the
following moneys shall be deposited:

(1) $462,500,000 from the general fund of the Treasury, which are authorized to be appropriated
according to the following schedule:

(A) $12,5000,000 during the fiscal year in which this chapter becomes effective;
(B) $50,000,000 during the second fiscal year;
(C) $70,000,000 during each of the third, fourth, and fifth fiscal years;
(D) $40,000,000 during the period beginning July 1, 1976, and ending September 30,
1976; and
(E) $30,000,000 during each of the next five fiscal years, for transfer to the Alaska
Native Fund in the fourth quarter of each fiscal year.

(2) Four percent interest per annum, which is authorized to be appropriated, on any amount
authorized to be appropriated by this paragraph that is not appropriated within six months
after the fiscal year in which payable.
(3) $500,000,000 pursuant to the revenue sharing provisions of section 1608 of this title.

(b) Prohibition of expenditures for propaganda or political campaigns; misdemeanor; penalty

None of the funds paid or distributed pursuant to this section to any of the Regional and Village
Corporations established pursuant to this chapter shall be expended, donated, or otherwise
 INDIGENOUS PEOPLES | 391

used for the purpose of carrying on propaganda, or intervening in (including the publishing and
distributing of statements) any political campaign on behalf of any candidate for public office.
Any person who willfully violates the foregoing provision shall be guilty of a misdemeanor and,
upon conviction thereof, shall be fined not more than $1,000 or imprisoned not more than
twelve months, or both.

(c) Distribution of Fund moneys among organized Regional Corporations; basis as relative
number of Native enrollees in each region; reserve for payment of attorney and other fees;
retention of share in Fund until organization of corporation

After completion of the roll prepared pursuant to section 1604 of this title, all money in the
Fund, except money reserved as provided in section 1619 of this title for the payment of
attorney and other fees, shall be distributed at the end of each three months of the fiscal year
among the Regional Corporations organized pursuant to section 1606 of this title on the basis
of the relative numbers of Natives enrolled in each region. The share of a Regional Corporation
that has not been organized shall be retained in the Fund until the Regional Corporation is
organized.

The African Charter, excerpted earlier, also makes provision for compensation in the event of loss
of natural resources. Realising this, however, is problematic.

Question
Consider the scope of traditional lands in, for example, Australia or Canada. Why is full restitution impossible?

Once the existence of native title is established, restitution/compensation can be discussed. The
criteria for establishing native title vary from State to State. For examples, see the Mabo case
(extracted earlier) or Hamlet of Baker Lake v Minister of Indian Affairs and Northern Development
(1980) 107 Dominion Law Reports (3rd) 513 at 542.
In New Zealand, too, it is recognised that native title cannot be extinguished other than by
the free consent of the native peoples – Judge Chapman in Regina v Symonds (1847) NZPCC 387
at 390.
In some areas, restitution of traditional lands, or at least restoration of traditional custodianship
has been effected.

11.7 Cultural rights

Of considerable concern to indigenous people worldwide is the erosion of their cultural identity.
Inevitably eroding elements of cultural identity, whether in furtherance of assimilationist policies
or as voluntary integration/development, impacts on the rights of indigenous peoples and the
continuation of their traditional way of life.

Question
‘You can provide rights to protect and promote cultural diversity but you cannot force anyone to retain a tra-
ditional way of life’. Consider this view of the perennial debate between preserving and protecting indigenous
culture.

Like so many terms, culture has no universally accepted meaning. Most recognise it if they encoun-
ter it, but definitions can so easily exclude important aspects of cultural identity

Michael Leiris, Race and Culture, Paris UNESCO, 1951 (p 21)

As culture, then, comprehends all that is inherited or transmitted through society, it follows that
its individual elements are proportionately diverse. They include not only beliefs, knowledge,
392 | INDIGENOUS PEOPLES

sentiments and literature (and illiterate peoples often have an immensely rich oral tradition),
but the language or other systems of symbols which are their vehicles. Other elements are
the rules of kinship, methods of education, forms of Government and all the fashions followed
in social relations. Gestures, bodily attitudes and even facial expressions are also included,
since they are in large measure acquired by the community through education or imitation; and
so, among the material elements, are fashions in housing and clothing and ranges of tools,
manufactures and artistic production, all of which are to some extent traditional.

11.7.1 Cultural genocide?

Clearly genocidal practices aimed at an indigenous group would fall within the ambit of the
Genocide Convention and the perpetrators could be prosecuted in accordance with the prevailing
international criminal law. However, what if only the culture and traditional life of the indigenous
peoples are affected? Some commentators have argued for recognition of cultural genocide (see,
for example, Dunn, J., ‘East Timor: A Case of Cultural Genocide?’ in G.J. Andreopoulos (ed.),
Genocide: Conceptual and Historical Dimensions, 1994, Philadelphia: Pennsylvania Press, pp  171–
190). Early drafts of the Genocide Convention included cultural genocide: the brutal destruction
of the specific characteristics of a group. With opposition from States such as the USA and France,
the clause was dropped. The emphasis in the Convention is thus on political genocide. Cultural
genocide remains an academic discussion point. However, some elements overlap. It is difficult
to reconcile the policy in Australia of removing mixed race children to be brought up by white
families etc. with contemporary international law. The ‘stolen generation’ remains a black spot in
Australia’s history, albeit then Prime Minister Rudd issued a formal apology in 2008.

Draft United Nations Genocide Convention, UN Doc. E/794 (1948)

In this Convention genocide also means any deliberate act committed with the intent to destroy
the language, religion or culture of a national, racial or religious group on grounds of the
national or racial origin or religious belief of its members such as:

(1) prohibiting the use of language of the group in daily intercourse or in schools, or the
printing and circulation or publications in the language of the group;
(2) destroying or preventing the use of libraries, museums, schools, historical monuments,
places of worship or other cultural institutions and objects of the group.

Of course, this clause did not reach the final version of the Convention. Rather, cultural genocide
was excluded.

Question
What reasons are there for the exclusion of cultural genocide from an international convention on the
punishment and prevention of genocide? Is cultural genocide less important?

Some elements of traditional practices are proscribed when deemed unacceptably injurious.
Female genital mutilation is probably one of the best-known examples of this. The erosion of its
acceptability is discussed in Chapter 2.
Most elements of cultural rights can be preserved by deploying the protection in Article 27
of the International Covenant on Civil and Political Rights. Relevant communications brought
before the Human Rights Committee of the United Nations are discussed in Section 11.2.2.

Further reading
Allen, S., and Xanthaki, A. (eds), Reflections on the UN Declaration on the Rights of Indigenous Peo-
ples, 2011, Oxford: Hart.
 INDIGENOUS PEOPLES | 393

Anaya, J., Indigenous Peoples in International Law, 2nd edn, 2004, Oxford: OUP.
Brownlie, I., Treaties and Indigenous Peoples, 1992, Oxford: Clarendon.
Cassesse, A., Self-Determination of Peoples: A Legal Reappraisal, 1995, Cambridge: CUP.
Davis, M., ‘To Bind or Not to Bind: The United Nations Declaration on the Rights of Indigenous
Peoples Five Years On’ (2012) 19.1 Australian International Law Journal 19–48.
Fitzgerald, O.E., and Chartrand, L., ‘UNDRIP Implementation: More Reflections on the Braiding
of International, Domestic and Indigenous Laws’, 2018, Centre for International Governance
Innovation (CIGI), and Wiyasiwewin Mikiwahp Native Law Centre of the University of Saskatch-
ewan College of Law.
Gayim, E., ‘The United Nations Law on Self-Determination of Indigenous Peoples’ (1982) 51 Nordic
Journal of International Law 53.
Gudmundur, A., ‘International Law, International Organisations and Indigenous Peoples’ (1982) 36
Journal of International Affairs 113.
Hannum, H., Autonomy, Sovereignty and Self-Determination: The Accommodation of Conflicting
Rights, 1990, Philadelphia: University of Pennsylvania Press.
Hocking, B. (ed.), International Law and Aboriginal Human Rights, 1988, Sydney: Law Book
Company.
McCorquodale, R., ‘Self-determination: A Human Rights Approach’ (1994) 43 International and
Comparative Law Quarterly 857.
Mihandoost, F., and Babajanian, B., ‘The Rights of Minorities in International Law’ (2016) 9.6 Jour-
nal of Politics and Law 15–19.
Nettheim, G., ‘“Peoples” and “Populations”: Indigenous Peoples and the Rights of Peoples’ in J.
Crawford (ed.), The Rights of Peoples, 1980, Oxford: Clarendon.
Pritchard, S. (ed.), Indigenous Peoples, the United Nations and Human Rights, 1998, Annandale:
Federation Press.
Prott, L., ‘Cultural Rights as Peoples’ Rights in International Law’ in J. Crawford (ed.), The Rights
of Peoples, 1980, Oxford: Clarendon, pp 93–106.
Richardson, B., Imai, S., and McNeil, K. (eds), Indigenous Peoples and the Law – Comparative and
Critical Perspectives, 2009, Oxford: Hart.
Rigo-Sureda, A., The Evolution of the Right of Self-determination: A Study of UN Practice, 1973,
Leiden: Sitjhoff.
Sanders, W., ‘The UN Working Group on Indigenous Populations’ (1989) 11 Human Rights Quar-
terly 406–433.
Summers, J., Peoples and International Law. 2nd edn, 2014, Leiden, The Netherlands: Martinus
Nijhoff.
Thornberry, P., Indigenous Peoples and Human Rights, 2002, Manchester: Manchester University
Press.
Tomuschat, C. (ed.), Modern Law of Self-Determination, 1993, The Netherlands: Martinus Nijhoff.
Turpel, M., ‘Indigenous Peoples’ Rights of Political Self-Determination: Recent International Legal
Developments and the Continuing Struggle for Recognition’ (1992) 25 Cornell International
Law Journal 579.
United Nations Office of the High Commissioner for Human Rights, The Rights of Indigenous Peo-
ples, Fact Sheet No. 9 (Rev. 1), Geneva: OHCHR.
Wet, E., ‘The Collective Right to Indigenous Property in the Jurisprudence of Regional Human
Rights Bodies’ (2015) 40 South African Yearbook of International Law 3.
Xanthaki, A., Indigenous Rights and United Nations Standards: Self-Determination, Culture and Land,
2010, Cambridge: CUP.
Xanthaki, A., Valkonen, S., Heinämäki, L., and Nuorgam, P.K., Indigenous Peoples’ Cultural Heritage:
Rights, Debates, Challenges, 2017, Leiden/Boston: Brill.
394 | INDIGENOUS PEOPLES

Websites
https://www.un.org/development/desa/indigenouspeoples/: United Nations Permanent Forum on
Indigenous Issues
https://www.ohchr.org/EN/Issues/IPeoples/Pages/IndigenousPeoplesIndex.aspx: OHCHR Indigenous
Peoples
www.coe.int/t/dghl/monitoring/minorities: Council of Europe Framework Convention
https://www.ohchr.org/EN/Issues/IPeoples/EMRIP/Pages/EMRIPIndex.aspx: Expert Mechanism
on the Rights of Indigenous Peoples.
https://www.ohchr.org/EN/Issues/IPeoples/Pages/WGIP.aspx: Working Group on Indigenous
Populations
Chapter 12

Prisoners, detainees and convicts 

Chapter contents

12.1 Equality before the law 396

12.2 Arrest 398
12.3 Enforced/involuntary disappearances 401
12.4 Detention pending trial 414
12.5 Torture and the use of force 419
12.6 Fair trial 423
12.7 Detention after conviction 434
12.8 Juveniles in detention and court 443
12.9 Capital punishment 448
 
396 | PRISONERS, DETAINEES AND CONVICTS

In few situations is conflict between the State and individuals more apparent than when consider-
ing the application of criminal law. The arrest, detention and trial of an individual brings to the
fore a plethora of human rights. For many, the invocation of rights in such circumstances empha-
sises the importance of human rights. This is particularly so in societies strongly advocating civil
liberties. Encompassing political prisoners, disappeared detainees, State use of force and the notion
of a fair trial, the rights of detainees, prisoners and convicts demonstrate the reality of human
rights. This chapter will examine:

• Vulnerability of detainees.
• Rights surrounding detention.
• Legislating against enforced and unexplained disappearances.
• Rights to a fair trial.
• The use of the death penalty.

Crucially, irrespective of how heinous the alleged or actual crimes, individuals are still entitled to
respect for their basic rights and freedoms. Human rights cannot be denied to alleged terrorists,
murderers or rapists or even those convicted of such crimes.
The pre-eminence and importance of this area may be gauged by the array of provisions relat-
ing to the issues under the various international and regional systems which are augmented by a
series of recommendations and principles drafted by the international community.
As the subject is vast, only selected elements will be able to be discussed here.

12.1 Equality before the law

Given that the international human rights regime is based on the principle of equal treatment and
non-discrimination, it is not surprising that States must ensure equal treatment before the courts
and under the law. Equality before the law stems from respect for human dignity and indeed from
the rule of law itself.
Given the importance of the law and the judicial system in ensuring respect for fundamen-
tal rights and freedoms, the issue of equality before the law has been rigorously examined in
jurisprudence.

12.1.1 Recognition as a person before the law

Once recognised as a person under national law (usually upon birth, although see the potential
impact of Articles 3 and 4 of the American Convention on Human Rights), elements of equality
before the law apply. There is potential for national and regional differences in equality before
the law.

Smith, R., Textbook on International Human Rights, 9th edn, 2019, p xxx

The first and certainly most crucial aspect of those rights associated with a fair trial is
the right to be recognized as a person before the law. Clearly non-recognition presents
severe challenges to the individual wishing to enforce rights before, or even appear before,
a court or tribunal. . . . The right to recognition as a person before the law is embedded in
the concept of the right to an existence. It enables the individual to enter into certain legal
obligations including contracts and facilitates the exercise and enforcement of rights before
the courts. Every person is thus entitled [prima facie] to bear legal rights and obligations.
It is not open to a State to subject a citizen to a ‘civil death’, that is to deprive an individual
of legal personality.
 PRISONERS, DETAINEES AND CONVICTS | 397

Obviously certain categories of persons do not enjoy full rights and responsibilities – minors and
those deemed otherwise legally impaired. Note however, the views of the Committee of the
Rights of Persons with Disabilities on capacity.
Increasingly there is concern that people are denied rights and freedoms through being denied
legal recognition in some States, including by being rendered stateless.

12.1.2 Non-discrimination/equality before the law

The concept of equality before the law has comparatively early origins. It is alluded to in instru-
ments dating from the French Revolution, as well as even earlier religious texts. The French Dec-
laration is more unequivocal about the extension of equality to all. (In some religious texts, the
concept of equality was riddled with caveats.)

French Declaration of the Rights of Man and the Citizen 1789 Article 7 (obtained in
translation from https://www.conseil-constitutionnel.fr/sites/default/files/as/
root/bank_mm/anglais/cst2.pdf)

No man may be accused, arrested or detained except in the cases determined by the Law, and
following the procedure that it has prescribed. Those who solicit, expedite, carry out, or cause
to be carried out arbitrary orders must be punished; but any citizen summoned or apprehended
by virtue of the Law, must give instant obedience; resistance makes him guilty.

General Comment 18 (1989) of the Human Rights Committee elaborates on the principle of non-
discrimination and the concept of equality before the law. The principle of non-discrimination
is fundamental to the international human rights system. Equality before the law is a slightly dif-
ferent matter. Without equality before the law, some individuals will be denied access to the legal
system. Accordingly, they will be unable to enforce their rights at the national level and thus will
encounter problems at the international level.

12.1.3 Case study: women

In some societies, women do not enjoy equal access to the legal system with men. This is often
especially so with respect to matrimonial matters. Consider the following complaints raised before
the international mechanisms. Ato del Avellanal v Peru and Broeks v Netherlands. Both authors raised
398 | PRISONERS, DETAINEES AND CONVICTS

issues before the Human Rights Committee alleging violations of the International Covenant on
Civil and Political Rights. Ato del Avellanal is extracted in Chapter 14 on women.

Broeks v Netherlands, Communication 172/1984, Human Rights Committee

UN Doc. CCPR/C/29/D/172/1984

The author was dismissed from employment due to disability. She was then entitled to social
security benefits from the Dutch authorities. Her unemployment (but not disability) payments
were terminated in terms of the relevant Netherlands law. She contended that this would not
have occurred if she had been a man, irrespective of marital status.

12.4 Although article 26 requires that legislation should prohibit discrimination, it does not of
itself contain any obligation with respect to the matters that may be provided for by legislation.

Thus it does not, for example, require any State to enact legislation to provide for social security.
However, when such legislation is adopted in the exercise of a State’s sovereign power, then
such legislation must comply with article 26 of the Covenant.

12.5 The Committee observes in this connection that what is at issue is not whether or not social
security should be progressively established in the Netherlands but whether the legislation
providing for social security violates the prohibition against discrimination contained in article
26 of the International Covenant on Civil and Political Rights and the guarantee given therein to
all persons regarding equal and effective protection against discrimination.

13. The right to equality before the law and to equal protection of the law without any
discrimination does not make all differences of treatment discriminatory. A differentiation
based on reasonable and objective criteria does not amount to prohibited discrimination within
the meaning of article 26.

14. It therefore remains for the Committee to determine whether the differentiation in Netherlands
law at the time in question and as applied to Mrs. Broeks constituted discrimination within the
meaning of article 26. The Committee notes that in Netherlands law the provisions of articles 84
and 85 of the Netherlands Civil Code impose equal rights and obligations on both spouses with
regard to their joint income. Under section 13, subsection 1 (1), of the Unemployment Benefits
Act (WWV), a married woman, in order to receive WWV benefits, had to prove that she was a
‘breadwinner’ – a condition that did not apply to married men. Thus a differentiation which appears
on one level to be one of status is in fact one of sex, placing married women at a disadvantage
compared with married men. Such a differentiation is not reasonable; and this seems to have
been effectively acknowledged even by the State party by the enactment of a change in the law on
29 April 1985, with retroactive effect to 23 December 1984 (see para. 4.5 above).

15. The circumstances in which Mrs. Broeks found herself at the material time and the
application of the then valid Netherlands law made her a victim of a violation, based on sex, of
article 26 of the International Covenant on Civil and Political Rights, because she was denied a
social security benefit on an equal footing with men.

Note that the need for equality before the law involves equal access to the courts and the legal
process for all. States must have regard to the special need of young people (discussed later) and the
needs for other special groups who may not be able to invoke the protection of the legal system
(those with mental health issues, for example).

12.2 Arrest
The next few sections will progress through stages of treatment.
 PRISONERS, DETAINEES AND CONVICTS | 399

The lawful exercise of the power of arrest is an important aspect of respecting the right to liberty.
In what circumstances can an individual be arrested? Guidance is provided in the various treaties.

EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND

FUNDAMENTAL FREEDOMS 1950, Article 5

1 Everyone has the right to liberty and security of person. No one shall be deprived of his
liberty save in the following cases and in accordance with a procedure prescribed by law:

a the lawful detention of a person after conviction by a competent court;

b the lawful arrest or detention of a person for non-compliance with the lawful order
of a court or in order to secure the fulfilment of any obligation prescribed by law;
c the lawful arrest or detention of a person effected for the purpose of bringing him
before the competent legal authority on reasonable suspicion of having committed
an offence or when it is reasonably considered necessary to prevent his committing
an offence or fleeing after having done so;
d the detention of a minor by lawful order for the purpose of educational supervision or his
lawful detention for the purpose of bringing him before the competent legal authority;
e the lawful detention of persons for the prevention of the spreading of infectious
diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
f the lawful arrest or detention of a person to prevent his effecting an unauthorised
entry into the country or of a person against whom action is being taken with a view
to deportation or extradition.

2 Everyone who is arrested shall be informed promptly, in a language which he understands,

of the reasons for his arrest and of any charge against him.
3 Everyone arrested or detained in accordance with the provisions of paragraph 1.c of this
article shall be brought promptly before a judge or other officer authorised by law to
exercise judicial power and shall be entitled to trial within a reasonable time or to release
pending trial. Release may be conditioned by guarantees to appear for trial.
4 Everyone who is deprived of his liberty by arrest or detention shall be entitled to take
proceedings by which the lawfulness of his detention shall be decided speedily by a court
and his release ordered if the detention is not lawful.
5 Everyone who has been the victim of arrest or detention in contravention of the provisions
of this article shall have an enforceable right to compensation.

INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS 1966, Article 10

1 All persons deprived of their liberty shall be treated with humanity and with respect for
the inherent dignity of the human person.
2. (a) Accused persons shall, save in exceptional circumstances, be segregated from convicted
persons and shall be subject to separate treatment appropriate to their status as
unconvicted persons;
(b) Accused juvenile persons shall be separated from adults and brought as speedily as
possible for adjudication.
3 The penitentiary system shall comprise treatment of prisoners the essential aim of which
shall be their reformation and social rehabilitation. Juvenile offenders shall be segregated
from adults and be accorded treatment appropriate to their age and legal status.

The arresting officials must ensure they comply with a concept of fairness to the suspect and the
presumption of innocence. Arrests must not be arbitrary. Of particular importance in prevent-
ing arbitrary detention is ensuring that arrests are only carried out by authorised officials and for
authorised reasons. These matters are addressed within national law of most States – regulations
governing the police, requirements for arrest warrants and summons, etc.
400 | PRISONERS, DETAINEES AND CONVICTS

There is an evident need for an established legal basis for an arrest. Of course, this relates in
part to a fundamental element of the rule of law. A prohibition on retroactive penal legislation
and the need for fairness demand that an individual is informed of his arrest, and the reason for it.

Borisenco v Hungary, Communication 852/1999, Human Rights Committee, UN Doc.

CCPR/C/76/D/852/1999

2.1 On 29 April 1996, the author and his friend, Mr. Kuspish arrived in Budapest. . . . Because
they were late for their train, they ran to the metro station. At this point, they were stopped by
three policemen in civilian clothing. The police suspected them of pick-pocketing. They illtreated
the author and his friend by ‘tightening handcuffs and striking our heads against metal booths
when we attempted to speak’. They were interrogated for three hours at the police station.

2.2 On 30 April 1996, the author and his friend were charged with theft. Although the charge was
not translated from Hungarian they were provided with an interpreter. Mr. Kuspish signed the
investigation report but the author refused to do so without the presence of a lawyer and without
including his version of the facts of the incident. The author and his friend lodged complaints
against their arrest and interrogation. On 1 May 1996, in a written decision, the public prosecutor
rejected these complaints, having reviewed the legality of the arrest and detention.

2.3 On 2 May 1996 the author and his friend were brought before the Pescht Central District
Court for the purpose of deciding whether they should be remanded in custody. The court
decided to detain them due to the risk of flight. During the police interrogation, the hearing
on detention and the detention itself, the author and his friend were not allowed to contact
their Embassy, families, lawyers or sports organization. On 7 May 1996, the police authorities
completed the investigation and referred the case to the public prosecutor’s office . . .

3.1 The author complains that his rights were violated as he was arrested and charged without
any proof of being involved in criminal activity and was ill-treated by police on arrest. He claims
that he did not understand what he was being charged with and that the charge itself was not
translated. He also claims a violation of the Covenant, for having been detained for over two
weeks without trial.

. . .

7.3 With respect to the author’s claim that the State party violated article 9, paragraph 2, of the
Covenant as he did not understand the reasons for his arrest or the charges against him, the
Committee notes the State party’s argument that the author was provided with an interpreter
who explained to him the reasons for his arrest and the charge against him and finds that in
the circumstances, the Committee is unable to find a violation of the Covenant in this regard
(see para. 3.1).

This point has been reiterated by the Human Rights Committee and by the various regional bod-
ies. Law enforcement agencies must ensure any arrest is in accordance with international human
rights law (treaties and associated guidelines). Appropriate training is necessary to ensure relevant
standards are met.

12.2.1 Recording detainees

The United Nations has offered guidelines to be adhered to during detention. This is particu-
larly important with respect to ensuring that individuals subject to detention are not deprived
of their rights to a legal existence. In conflict situations, recording of detainees and monitoring
their condition is a task frequently undertaken by independent and neutral humanitarian bodies
such as the International Committee of the Red Cross. From 2012, the fast-changing situation in
 PRISONERS, DETAINEES AND CONVICTS | 401

various Middle Eastern countries again focused attention on the Red Cross/Crescent and its work
in conflict situations. External bodies such as the Red Crescent/Cross have a particular role to play
when power shifts add a further dimension, a national power vacuum for example. Deposed gov-
ernments can rarely effectively monitor detainees, with existing systems undermined or disgarded
completely as the power shifts within the State.

GENERAL ASSEMBLY DECLARATION ON THE PROTECTION OF ALL PERSONS FROM ENFORCED

DISAPPEARANCES, RESOLUTION 47/133, 1992

Article 10

1 Any person deprived of liberty shall be held in an officially recognized place of detention
and, in conformity with national law, be brought before a judicial authority promptly after
detention.
2 Accurate information on the detention of such persons and their place or places
of detention, including transfers, shall be made promptly available to their family
members, their counsel or to any other persons having a legitimate interest in
the information unless a wish to the contrary has been manifested by the persons
concerned.
3 An official up-to-date register of all persons deprived of their liberty shall be maintained
in every place of detention. Additionally, each State shall take steps to maintain similar
centralized registers. The information contained in these registers shall be made
available to the persons mentioned in the preceding paragraph, to any judicial or other
competent and independent national authority and to any other competent authority
entitled under the law of the State concerned or any international legal instrument to
which a State concerned is a party, seeking to trace the whereabouts of a detained person.

Article 12

All persons deprived of liberty must be released in a manner permitting reliable verification
that they have actually been released and, further, have been released in conditions in which
their physical integrity and ability fully to exercise their rights are assured.

As is apparent, comprehensive and accurate record-keeping is key to complying with inter-

national human rights. For States, there is of course a ‘set-up’ cost to establish an appropriate
record-keeping system. However, detention of individuals is one of the most overt breaches of
human rights with the State removing an individual from his or her normal residence and life-
style, imposing severe restrictions on movement, socialisation and on many other daily activities.
Deprivation of liberty cannot be undertaken lightly. Moreover, a lack of recording of data can
also lead to disappearances.

12.3 Enforced/involuntary disappearances

An area of significant concern to the international community is the issue of disappearances of
individuals. In terms of international law, enforced disappearances are deemed to violate the prin-
ciple of respect for human dignity. Consequently, the practice is condemned and contrary to
international law.

12.3.1 The international prohibition

The international prohibition is grounded in respect for the inviolability of human dignity and
also those provisions concerning rights to liberty and security of the person. Accordingly there is
402 | PRISONERS, DETAINEES AND CONVICTS

no legally binding international instrument on the subject, although various instruments and ‘soft
law’ can be used to substantiate the ban. In June 2006, the Human Rights Council adopted the
International Convention for the Protection of All Persons from Enforced Disappearances. Much
of the text reflects the pre-existing Declaration on the subject. The Americas, as is discussed later,
also have a specific international instrument.

INTERNATIONAL CONVENTION FOR THE PROTECTION OF ALL PERSONS FROM

ENFORCED DISAPPEARANCE 2006

Article 1

1 No one shall be subjected to enforced disappearance.

2 No exceptional circumstances whatsoever, whether a state of war or a threat of war,
internal political instability or any other public emergency, may be invoked as a justification
for enforced disappearance.

Article 2

For the purposes of this Convention, ‘enforced disappearance’ is considered to be the arrest,
detention, abduction or any other form of deprivation of liberty by agents of the State or by
persons or groups of persons acting with the authorization, support or acquiescence of the
State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of
the fate or whereabouts of the disappeared person, which place such a person outside the
protection of the law.

Article 4

Each State Party shall take the necessary measures to ensure that enforced disappearance
constitutes an offence under its criminal law.

Article 5

The widespread or systematic practice of enforced disappearance constitutes a crime against

humanity as defined in applicable international law and shall attract the consequences provided
for under such applicable international law.

States are, as is clear, required to enact appropriate national law. Enforced disappearances are
viewed seriously by the international community and, as the preceding extract demonstrates, the
practice of enforced disappearances constitutes a crime against humanity and perpetrators can be
prosecuted under international as well as national law. They are thus of concern to the Office of
the Prosecutor of the International Criminal Court.

Question
Is the definition adopted in the Convention adequate, clear and concise?

12.3.2 Duty to investigate disappearances

As would be expected, the laws concerning disappearances involve positive obligations on States.
Just as with the right to life and the prohibition on torture (both of which are often invoked in cases
of enforced disappearances), States are under a duty to properly investigate enforced disappearances
and prosecute the perpetrators. This was confirmed by the wider world community at the Vienna
Global Conference on Human Rights (Vienna Declaration 1993, para 62). The Human Rights
Council was swift to support the International Convention on Enforced Disappearances in 2006.
 PRISONERS, DETAINEES AND CONVICTS | 403

This instrument clearly defines enforced disappearance and elaborates on the investigatory duties
incumbent on States.

INTERNATIONAL CONVENTION FOR THE PROTECTION OF ALL PERSONS FROM ENFORCED

DISAPPEARANCE 2006

Article 3

Each State Party shall take appropriate measures to investigate acts defined in article 2
committed by persons or groups of persons acting without the authorization, support or
acquiescence of the State and to bring those responsible to justice.
. . .

Article 12

1 Each State Party shall ensure that any individual who alleges that a person has been
subjected to enforced disappearance has the right to report the facts to the competent
authorities, which shall examine the allegation promptly and impartially and, where
necessary, undertake without delay a thorough and impartial investigation. Appropriate
steps shall be taken, where necessary, to ensure that the complainant, witnesses, relatives
of the disappeared person and their defence counsel, as well as persons participating in
the investigation, are protected against all ill-treatment or intimidation as a consequence
of the complaint or any evidence given.
2 Where there are reasonable grounds for believing that a person has been subjected to
enforced disappearance, the authorities referred to in paragraph 1 of this article shall
undertake an investigation, even if there has been no formal complaint.
3 Each State Party shall ensure that the authorities referred to in paragraph 1 of this article:

(a) Have the necessary powers and resources to conduct the investigation effectively,
including access to the documentation and other information relevant to their
investigation;
(b) Have access, if necessary with the prior authorization of a judicial authority, which
shall rule promptly on the matter, to any place of detention or any other place
where there are reasonable grounds to believe that the disappeared person may be
present.

4 Each State Party shall take the necessary measures to prevent and sanction acts that
hinder the conduct of an investigation. It shall ensure in particular that persons suspected
of having committed an offence of enforced disappearance are not in a position to influence
the progress of an investigation by means of pressure or acts of intimidation or reprisal
aimed at the complainant, witnesses, relatives of the disappeared person or their defence
counsel, or at persons participating in the investigation.

Article 17

1 No one shall be held in secret detention.

2 Without prejudice to other international obligations of the State Party with regard to the
deprivation of liberty, each State Party shall, in its legislation:

(a) Establish the conditions under which orders of deprivation of liberty may be given;
(b) Indicate those authorities authorized to order the deprivation of liberty;
(c) Guarantee that any person deprived of liberty shall be held solely in officially
recognized and supervised places of deprivation of liberty;
404 | PRISONERS, DETAINEES AND CONVICTS

(d) Guarantee that any person deprived of liberty shall be authorized to communicate
with and be visited by his or her family, counsel or any other person of his or her
choice, subject only to the conditions established by law, or, if he or she is a foreigner,
to communicate with his or her consular authorities, in accordance with applicable
international law;
(e) Guarantee access by the competent and legally authorized authorities and
institutions to the places where persons are deprived of liberty, if necessary with
prior authorization from a judicial authority;
(f) Guarantee that any person deprived of liberty or, in the case of a suspected enforced
disappearance, since the person deprived of liberty is not able to exercise this right,
any persons with a legitimate interest, such as relatives of the person deprived of
liberty, their representatives or their counsel, shall, in all circumstances, be entitled
to take proceedings before a court, in order that the court may decide without delay
on the lawfulness of the deprivation of liberty and order the person’s release if such
deprivation of liberty is not lawful.

3 Each State Party shall assure the compilation and maintenance of one or more up-
to-date official registers and/or records of persons deprived of liberty, which shall be
made promptly available, upon request, to any judicial or other competent authority or
institution authorized for that purpose by the law of the State Party concerned or any
relevant international legal instrument to which the State concerned is a party. The
information contained therein shall include, as a minimum:

(a) The identity of the person deprived of liberty;

(b) The date, time and place where the person was deprived of liberty and the identity of
the authority that deprived the person of liberty;
(c) The authority that ordered the deprivation of liberty and the grounds for the
deprivation of liberty;
(d) The authority responsible for supervising the deprivation of liberty;
(e) The place of deprivation of liberty, the date and time of admission to the place of
deprivation of liberty and the authority responsible for the place of deprivation of
liberty;
(f) Elements relating to the state of health of the person deprived of liberty;
(g) In the event of death during the deprivation of liberty, the circumstances and cause
of death and the destination of the remains;
(h) The date and time of release or transfer to another place of detention, the destination
and the authority responsible for the transfer.

Article 21

Each State Party shall take the necessary measures to ensure that persons deprived of
liberty are released in a manner permitting reliable verification that they have actually been
released.
Each State Party shall also take the necessary measures to assure the physical integrity
of such persons and their ability to exercise fully their rights at the time of release, without
prejudice to any obligations to which such persons may be subject under national law.

Thus the State has a positive obligation to facilitate investigations of alleged disappearances.
There must be appropriate avenues for the family and friends of ‘victims’ to report concerns. The
investigations must be adequate and prompt. Note also the provisions concerning detention in
Article 17. These are preventative measures to ensure no secret detention and ensure appropri-
ate records are kept of those in detention. If these conditions are met, any alleged disappearance
should be easier to investigate. Of course, people can disappear following an alleged arrest, before
 PRISONERS, DETAINEES AND CONVICTS | 405

reaching a designated place of detention and having their details checked. Equally people can dis-
appear when being moved between detention places–it is not unknown for the official reason to
be given as ‘escape’ of detainee.
Article 23 of the Convention reinforces the need for appropriately trained and aware law
enforcement officials. Such training will ensure all staff dealing with detainees are familiar with
the international standards. The desirability of a system of regular reviews and onsite visits also
becomes clear.

Yrusta v Argentina, Committee on Enforced Disappearances Communication

No. 1/2013 UN Doc. CED/C/10/D/1/2013 (2016)

The authors are sisters of an Argentine national sentenced to eight years’ imprisonment for
aggravated robbery involving the use of a firearm. He suffered ill treatment in prison and
eventually was transferred to another prison. For almost a week his family had no contact
with him. A few months before his scheduled release, his family were informed that he had
committed suicide. It was argued that the authorities had failed to adequately investigate the
death including through autopsy.

E. Conclusion and recommendations

12. The Committee, acting under article 31 (5) of the Convention, finds that the facts before it
reveal a violation of articles 1, 2, 12 (1), 17, 18, 20 and 24 (1), (2) and (3), of the Convention in
relation to Mr. Yrusta; and of articles 12 (1), 18, 20 and 24 (1), (2) and (3), in relation to the authors.
12. In accordance with article 31 (5) of the Convention, the Committee urges the State
party to:

(a) Recognize the authors’ status as victims, thereby allowing them to play an effective part in
the investigations into the death and enforced disappearance of their brother;
(b) Ensure that the investigation into the case of Mr. Yrusta is not confined to the causes of his
death but instead also entails a thorough and impartial investigation of his disappearance
at the time of his transfer from Córdoba to Santa Fe;
(c) Prosecute, judge and punish the persons responsible for the violations that have been
committed;
(d) Provide the authors with rehabilitation and prompt, fair and adequate compensation, in
accordance with article 24 (4) and (5) of the Convention;
(e) Adopt all necessary measures to enforce the guarantees of non-repetition stipulated
in article 4 (5) (d) of the Convention, including compiling and maintaining registers that
meet the requirements of the Convention and to ensure that the relevant information is
accessible to all persons with a legitimate interest therein, as set out in articles 17 and 18
of the Convention.

13. The State party is further urged to make public the present Views and disseminate
their content widely, in particular, though not solely, among members of the security forces and
prison personnel who are in charge of persons deprived of their liberty.
14. The Committee hereby requests the State party to provide it with information, within six
months of the date of transmission of these Views, on the action that it has taken to implement
all previous recommendations.

There are similarities in respect to the general duty to investigate fully deaths in custody.
The Right to Truth has also emerged as an important component of the duty to investigate
in the context of enforced disappearances. As will be outlined later, the Inter-American system
of human rights has been a forerunner in this area of law. The approach adopted by the Inter-
American Commission on Human Rights on the Right to Truth is outlined here:
406 | PRISONERS, DETAINEES AND CONVICTS

Inter-American Commission on Human Rights, The Right to Truth in the Americas,

OEA/Ser.L/V/II.152, doc. 2 (2014)

The first dimension [of the right to truth] is the right of the victims and their family members
to know the truth about the events that led to serious violations of human rights, and the right
to know the identity of those who played a role in the violations. This means that the right to
the truth creates an obligation upon States to clarify and investigate the facts, prosecute and
punish those responsible for cases of serious human rights violations, and, depending on the
circumstances of each case, to guarantee access to the information available in State facilities
and files concerning serious human rights violations.
Secondly, a principle has been established to the effect that the holders of this right are
not just the victims and their family members, but also society as a whole. The Commission has
maintained that greater society has the inalienable right to know the truth about past events,
as well as the motives and circumstances in which aberrant crimes came to be committed, in
order to prevent recurrence of such acts in the future

Question
Read either Yasoda Sharma v Nepal UN Doc. CCPR/C/94/D/1469/2006 or Zohra Madoui v
Algeria UN Doc. CCPR/C/94/D/1495/2006, two communications on alleged enforced disappearances
which the Human Rights Committee considered almost at the same time and delivered opinions. Would the
circumstances outlined be a violation of the Convention on Enforced Disappearances? Note particularly how
existing human rights provisions are used to provide redress for the victims.

The International Convention for the Protection of All Persons from Enforced Disappearance
also provides that other States should offer assistance as required to aid investigations. This can be
important for cross-border issues and when an individual is alleged to have been taken to a third
country (the extraordinary rendition scenario is relevant whereby one State removes individuals
from the territory of another State and transports them, possibly through intermediate States, to
either their own territory or that of yet another State).

12.3.2.1 Extraordinary rendition

Following allegations of secret renditions during the early years of the twenty-first century,
the United States Congress undertook a major investigation – United States Congress Senate
Committee on Foreign Relations, Extraordinary Rendition, Extraterritorial Detention and the
Treatment of Detainees: Restoring Our Moral Credibility and Strengthening Our Diplomatic Standing,
2008 US Government: Washington DC (hearing July 2007). The subject remains sensitive and
controversial.
The issue was also considered extensively within Europe. Several European States were
involved as transit or refuelling stops by US authorities transporting detainees from Asia to North
America. A number of inquiries thus followed the release/leaking of that information. The Coun-
cil of Europe’s Venice Commission acts as an advisory body on constitutional matters, comprising
of international law and constitutional experts from the region. In the last 20 years, the Commis-
sion has grown in pre-eminence and now has members from beyond the region. It is well-regarded
as an independent international think tank. In 2005/2006 it was asked by the Committee on Legal
Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe to comment on the
legal questions raised by extraordinary rendition flights operated by external States through Euro-
pean Member States’ airspace and territory.
The Commission began its opinion by outlining the regular position of transfers of detain-
ees: ‘there are four situations in which a State may lawfully transfer a prisoner to another State:
deportation, extradition, transit and transfer of sentenced persons for the purposes of serving their
sentence in another country’ (paras 10 and 137).
 PRISONERS, DETAINEES AND CONVICTS | 407

EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW OPINION 363/2005 ON THE

INTERNATIONAL LEGAL OBLIGATIONS OF COUNCIL OF EUROPE MEMBER STATES IN
RESPECT OF SECRET DETENTION FACILITIES AND INTER-STATE TRANSPORT
OF PRISONERS adopted by the Venice Commission at its 66th Plenary Session
(Venice, 17–18 March 2006)

In reply to the questions put by the Legal Affairs Committee of the Parliamentary Assembly of
the Council of Europe, the Venice Commission has reached the conclusions listed below:

As regards arrest and secret detention

a) Any form of involvement of a Council of Europe member State or receipt of information

prior to an arrest within its jurisdiction by foreign agents entails accountability under
Articles 1 and 5 of the European Convention on Human Rights (and possibly Article 3 in
respect of the modalities of the arrest). A State must thus prevent the arrest from taking
place. If the arrest is effected by foreign authorities in the exercise of their jurisdiction
under the terms of an applicable Status of Forces Agreement (SOFA), the Council of Europe
member State concerned may remain accountable under the European Convention on
Human Rights, as it is obliged to give priority to its jus cogens obligations, such as they
ensue from Article 3.
b) Active and passive co-operation by a Council of Europe member State in imposing and
executing secret detentions engages its responsibility under the European Convention
on Human Rights. While no such responsibility applies if the detention is carried out by
foreign authorities without the territorial State actually knowing it, the latter must take
effective measures to safeguard against the risk of disappearance and must conduct a
prompt and effective investigation into a substantiated claim that a person has been taken
into unacknowledged custody.
c) The Council of Europe member State’s responsibility is engaged also in the case where
its agents (police, security forces etc.) co-operate with the foreign authorities or do not
prevent an arrest or unacknowledged detention without government knowledge, acting
ultra vires. The Statute of the Council of Europe and the European Convention on Human
Rights require respect for the rule of law, which in turn requires accountability for all
form of exercise of public power. Regardless of how a State chooses to regulate political
control over security and intelligence agencies, in any event effective oversight and control
mechanisms must exist.
d) If a State is informed or has reasonable suspicions that any persons are held incomunicado
at foreign military bases on its territory, its responsibility under the European Convention
on Human Rights is engaged, unless it takes all measures which are within its power in
order for this irregular situation to end.
e) Council of Europe member States which have ratified the European Convention for the
Prevention of Torture must inform the European Committee for the Prevention of Torture
of any detention facility on their territory and must allow it to access such facilities. Insofar
as international humanitarian law may be applicable, States must grant the International
Committee of the Red Cross permission to visit these facilities.

As regards inter-state transfers of prisoners

f) . . . The prohibition to extradite or deport to a country where there exists a risk of torture
or ill-treatment must be respected.
g) Diplomatic assurances must be legally binding on the issuing State and must be unequivocal
in terms; when there is substantial evidence that a country practices or permits torture
in respect of certain categories of prisoners, Council of Europe member States must
refuse the assurances in cases of requests for extradition of prisoners belonging to those
categories.
408 | PRISONERS, DETAINEES AND CONVICTS

h) The prohibition to transfer to a country where there exists a risk of torture or ill-treatment
also applies in respect of the transit of prisoners through the territory of Council of Europe
member States: they must therefore refuse to allow transit of prisoners in circumstances
where there is such a risk.

As regards overflight
i) If a Council of Europe member State has serious reasons to believe that an airplane
crossing its airspace carries prisoners with the intention of transferring them to countries
where they would face ill-treatment in violation of Article 3 of the European Convention
on Human Rights, it must take all the necessary measures in order to prevent this from
taking place.
j) If the state airplane in question has presented itself as a civil plane, that is to say it has
not duly sought prior authorisation pursuant to Article 3 c) of the Chicago Convention,
the territorial State must require landing and must search it. In addition, it must protest
through appropriate diplomatic channels.
k) If the plane has presented itself as a state plane and has obtained overflight permission
without however disclosing its mission, the territorial State cannot search it unless the
captain consents. However, the territorial State can refuse further overflight clearances in
favour of the flag State or impose, as a condition therefor, the duty to submit to searches;
if the overflight permission derives from a bilateral treaty or a Status of Forces Agreement
or a military base agreement, the terms of such a treaty should be questioned if and to the
extent that they do not allow for any control in order to ensure respect for human rights.
l) In granting foreign state aircraft authorisation for overflight, Council of Europe member
States must secure respect for their human rights obligations. This means that they may
have to consider whether it is necessary to insert new clauses, including the right to search,
as a condition for diplomatic clearances in favour of State planes carrying prisoners. If
there are reasonable grounds to believe that, in certain categories of cases, the human
rights of certain passengers risk being violated, States must indeed make overflight
permission conditional upon respect of express human rights clauses. Compliance with
the procedures for obtaining diplomatic clearance must be strictly monitored; requests
for overflight authorisation should provide sufficient information as to allow effective
monitoring (for example, the identity and status (voluntary or involuntary passenger) of all
persons on board and the destination of the flight as well as the final destination of each
passenger). Whenever necessary, the right to search civil planes must be exercised.
m) With a view to discouraging repetition of abuse, any violations of civil aviation principles
in relation to irregular transport of prisoners should be denounced, and brought to the
attention of the competent authorities and eventually of the public. Council of Europe
member States could bring possible breaches of the Chicago Convention before the
Council of the International Civil Aviation Organisation pursuant to Article 54 of the
Chicago Convention.
n) As regards the treaty obligations of Council of Europe member States, the Commission
considers that there is no international obligation for them to allow irregular transfers
of prisoners or to grant unconditional overflight rights, for the purposes of combating
terrorism. The Commission recalls that if the breach of a treaty obligation is determined
by the need to comply with a peremptory norm (jus cogens), it does not give rise to an
internationally wrongful act, and the prohibition of torture is a peremptory norm. In
the Commission’s opinion, therefore, States must interpret and perform their treaty
obligations, including those deriving from the NATO treaty and from military base
agreements and Status of Forces Agreements, in a manner compatible with their human
rights obligations.
 PRISONERS, DETAINEES AND CONVICTS | 409

This academic analysis was subject to academic and political debate. Alexander Leone critiques the
Commission’s opinion, seeking to establish its broader application to international human rights
(as opposed to the terms of the European Convention on Human Rights). He concludes that the
inevitable reliance on inter-State mechanisms is problematic (Leone, A., ‘Compliance with New
International Law: A Study of Venice Commission Opinion No. 363/2005 on the International
Legal Obligations of Council of Europe Member States in Respect of Secret Detention Facilities
and Inter-State Transport of Prisoners’ (2009) 41 George Washington International Law Review 299).

12.3.3 The Americas

Within the Americas, thousands of people disappeared in the 1970s and 1980s. For many who have
lost family and friends, the unresolved nature of disappearances is particularly difficult to come to
terms with. Indeed, part of the truth and reconciliation process in some States has involved recog-
nition of disappearances, if not reparation and apologies. Thus it is unsurprising that the Americas
have produced not only the first instrument solely concerned with forced disappearances, but also
the seminal case – Velásquez Rodriguez. The Parties to the Inter-American Convention note in
the preamble that enforced disappearances violate numerous human rights and the forced disap-
pearance of persons is an affront to the conscience of the Hemisphere and a grave and abominable
offence against the inherent dignity of the human being, and one that contradicts the principles
and purposes enshrined in the Charter of the Organisation of American States.

INTER-AMERICAN CONVENTION ON THE FORCED DISAPPEARANCES OF PERSONS 1994

Article I

The States Parties to this Convention undertake:

a Not to practice, permit, or tolerate the forced disappearance of persons, even in states of
emergency or suspension of individual guarantees;
b To punish within their jurisdictions, those persons who commit or attempt to commit the
crime of forced disappearance of persons and their accomplices and accessories;
c To cooperate with one another in helping to prevent, punish, and eliminate the forced
disappearance of persons;
d To take legislative, administrative, judicial, and any other measures necessary to comply
with the commitments undertaken in this Convention.

Article II

For the purposes of this Convention, forced disappearance is considered to be the act of
depriving a person or persons of his or their freedom, in whatever way, perpetrated by agents
of the state or by persons or groups of persons acting with the authorization, support, or
acquiescence of the state, followed by an absence of information or a refusal to acknowledge
that deprivation of freedom or to give information on the whereabouts of that person, thereby
impeding his or her recourse to the applicable legal remedies and procedural guarantees.

Article III

The States Parties undertake to adopt, in accordance with their constitutional procedures, the
legislative measures that may be needed to define the forced disappearance of persons as an
offense and to impose an appropriate punishment commensurate with its extreme gravity. This
offense shall be deemed continuous or permanent as long as the fate or whereabouts of the
victim has not been determined.
410 | PRISONERS, DETAINEES AND CONVICTS

The States Parties may establish mitigating circumstances for persons who have
participated in acts constituting forced disappearance when they help to cause the victim to
reappear alive or provide information that sheds light on the forced disappearance of a person. . . .

In order to achieve these aims, the treaty also makes provisions for the prosecution of those
involved – no defences such as due obedience (Article VIII), expiry of statutes of limitations (Article
VII) or the existence of war, instability, etc. (Article X) are acceptable to criminal charges.
The same reporting and record-keeping requirements appear in the Inter-American Conven-
tion as the international convention.
Article XI

Every person deprived of liberty shall be held in an officially recognized place of detention and
be brought before a competent judicial authority without delay, in accordance with applicable
domestic law.
The States Parties shall establish and maintain official up-to-date registries of their
detainees and, in accordance with their domestic law, shall make them available to relatives,
judges, attorneys, any other person having a legitimate interest, and other authorities.

Question
Consider the extent to which the provisions of this convention go beyond the provisions on deprivation of liberty
and detention which are enshrined in the Inter-American Convention on Human Rights and the International
Covenant on Civil and Political Rights.

12.3.4 Case study

VELÁSQUEZ RODRIGUEZ, INTER-AMERICAN COURT OF HUMAN RIGHTS 1988,
SERIES C, NO. 4

The Americas produced the seminal case on disappearances. A complaint was received on behalf
of Velásquez Rodriguez who had disappeared following an ‘arrest’ in Tegucigalpa, Honduras. It
was alleged that the State was responsible, as Rodriguez had been arrested by State security
forces, although this was consistently officially denied. The complaint also alleged that he
had been subjected to interrogation and ill-treatment/torture. As a consequence, violations
of numerous rights protected by the American Convention were claimed. The InterAmerican
Commission referred the matter to the Court, which found violations of the Convention. It should
be noted that Honduras repeatedly failed to reply to communications from the Inter-American
Commission concerning the facts, and disputed the Commission’s finding of fact.

Opinion of the Inter-American Court

174. The State has a legal duty to take reasonable steps to prevent human rights violations and
to use the means at its disposal to carry out a serious investigation of violations committed
within its jurisdiction, to identify those responsible, to impose the appropriate punishment and
to ensure the victim adequate compensation.

175. This duty to prevent includes all those means of a legal, political, administrative and
cultural nature that promote the protection of human rights and ensure that any violations
are considered and treated as illegal acts, which, as such, may lead to the punishment of
those responsible and the obligation to indemnify the victims for damages. It is not possible
to make a detailed list of all such measures, since they vary with the law and the conditions
of each State Party. Of course, while the State is obligated to prevent human rights abuses,
the existence of a particular violation does not, in itself, prove the failure to take preventive
measures. On the other hand, subjecting a person to official, repressive bodies that practice
 PRISONERS, DETAINEES AND CONVICTS | 411

torture and assassination with impunity is itself a breach of the duty to prevent violations of the
rights to life and physical integrity of the person, even if that particular person is not tortured
or assassinated, or if those facts cannot be proven in a concrete case.

176. The State is obligated to investigate every situation involving a violation of the rights
protected by the Convention. If the State apparatus acts in such a way that the violation goes
unpunished and the victim’s full enjoyment of such rights is not restored as soon as possible, the
State has failed to comply with its duty to ensure the free and full exercise of those rights to the
persons within its jurisdiction. The same is true when the State allows private persons or groups
to act freely and with impunity to the detriment of the rights recognized by the Convention.

177. In certain circumstances, it may be difficult to investigate acts that violate an individual’s
rights. The duty to investigate, like the duty to prevent, is not breached merely because the
investigation does not produce a satisfactory result. Nevertheless, it must be undertaken in
a serious manner and not as a mere formality preordained to be ineffective. An investigation
must have an objective and be assumed by the State as its own legal duty, not as a step taken
by private interests that depends upon the initiative of the victim or his family or upon their offer
of proof, without an effective search for the truth by the government. This is true regardless of
what agent is eventually found responsible for the violation. Where the acts of private parties
that violate the Convention are not seriously investigated, those parties are aided in a sense by
the government, thereby making the State responsible on the international plane.

178. In the instant case, the evidence shows a complete inability of the procedures of the
State of Honduras, which were theoretically adequate, to carry out an investigation into the
disappearance of Manfredo Velásquez, and of the fulfillment of its duties to pay compensation
and punish those responsible, as set out in Article 1(1) of the Convention.

179. As the Court has verified above, the failure of the judicial system to act upon the writs
brought before various tribunals in the instant case has been proven. Not one writ of habeas
corpus was processed. No judge has access to the places where Manfredo Velásquez might
have been detained. The criminal complaint was dismissed.

180. Nor did the organs of the Executive Branch carry out a serious investigation to establish
the fate of Manfredo Velásquez. There was no investigation of public allegations of a practice
of disappearances nor a determination of whether Manfredo Velásquez had been a victim of
that practice. The Commission’s requests for information were ignored to the point that the
Commission had to presume, under Article 42 of its Regulations, that the allegations were
true. The offer of an investigation in accord with Resolution 30/83 of the Commission resulted
in an investigation by the Armed Forces, the same body accused of direct responsibility for the
disappearances. This raises grave questions regarding the seriousness of the investigation. The
Government often resorted to asking relatives of the victims to present conclusive proof of their
allegations even though those allegations, because they involved crimes against the person,
should have been investigated on the Government’s own initiative in fulfillment of the State’s
duty to ensure public order. This is especially true when the allegations refer to a practice
carried out within the Armed Forces, which, because of its nature, is not subject to private
investigations. No proceeding was initiated to establish responsibility for the disappearance
of Manfredo Velásquez and apply punishment under internal law. All of the above leads to the
conclusion that the Honduran authorities did not take effective action to ensure respect for
human rights within the jurisdiction of that State as required by Article 1(1) of the Convention.

181. The duty to investigate facts of this type continues as long as there is uncertainty about the
fate of the person who has disappeared. Even in the hypothetical case that those individually
responsible for crimes of this type cannot be legally punished under certain circumstances,
the State is obligated to use the means at its disposal to inform the relatives of the fate of the
victims and, if they have been killed, the location of their remains.
412 | PRISONERS, DETAINEES AND CONVICTS

182. The Court is convinced, and has so found, that the disappearance of Manfredo Velásquez
was carried out by agents who acted under cover of public authority. However, even had that
fact not been proven, the failure of the State apparatus to act, which is clearly proven, is a failure
on the part of Honduras to fulfill the duties it assumed under Article 1(1) of the Convention,
which obligated it to ensure Manfredo Velásquez the free and full exercise of his human rights.

183. The Court notes that the legal order of Honduras does not authorize such acts and that
internal law defines them as crimes. The Court also recognizes that not all levels of the
Government of Honduras were necessarily aware of those acts, nor is there any evidence that
such acts were the result of official orders. Nevertheless, those circumstances are irrelevant
for the purposes of establishing whether Honduras is responsible under international law for
the violations of human rights perpetrated within the practice of disappearances.

. . .

185. The Court, therefore, concludes that the facts found in this proceeding show that the State
of Honduras is responsible for the involuntary disappearance of Angel Manfredo Velásquez
Rodríguez. Thus, Honduras has violated Articles 7, 5 and 4 of the Convention.

186. As a result of the disappearance, Manfredo Velásquez was the victim of an arbitrary
detention, which deprived him of his physical liberty without legal cause and without a
determination of the lawfulness of his detention by a judge or competent tribunal. Those acts
directly violate the right to personal liberty recognized by Article 7 of the Convention and are a
violation imputable to Honduras of the duties to respect and ensure that right under Article 1 (1).

187. The disappearance of Manfredo Velásquez violates the right to personal integrity
recognized by Article 5 of the Convention. First, the mere subjection of an individual to
prolonged isolation and deprivation of communication is in itself cruel and inhuman treatment
which harms the psychological and moral integrity of the person, and violates the right of every
detainee under Article 5 (1) and 5 (2) to treatment respectful of his dignity. Second, although it
has not been directly shown that Manfredo Velásquez was physically tortured, his kidnapping
and imprisonment by governmental authorities, who have been shown to subject detainees to
indignities, cruelty and torture, constitute a failure of Honduras to fulfill the duty imposed by
Article 1 (1) to ensure the rights under Article 5 (1) and 5 (2) of the Convention. The guarantee
of physical integrity and the right of detainees to treatment respectful of their human dignity
require States Parties to take reasonable steps to prevent situations which are truly harmful
to the rights protected.

188. The above reasoning is applicable to the right to life recognized by Article 4 of the
Convention. The context in which the disappearance of Manfredo Velásquez occurred and the
lack of knowledge seven years later about his fate create a reasonable presumption that he
was killed. Even if there is a minimal margin of doubt in this respect, it must be presumed
that his fate was decided by authorities who systematically executed detainees without trial
and concealed their bodies in order to avoid punishment. This, together with the failure to
investigate, is a violation by Honduras of a legal duty under Article 1(1) of the Convention
to ensure the rights recognized by Article 4(1). That duty is to ensure every person subject
to its jurisdiction the inviolability of the right to life and the right not to have one’s life taken
arbitrarily. These rights imply an obligation on the part of States Parties to take reasonable
steps to prevent situations that could result in the violation of that right.

This case remains one of the most influential as regards State detention and enforced disappearances.
Other regional and national courts have considered and applied it. The last paragraphs extracted
above indicate which core international rights can be engaged by enforced disappearances. This
remains useful in those States in which there is no criminalising of enforced disappearances per se,
thus reference to the pre-existing international human rights treaties is required.
 PRISONERS, DETAINEES AND CONVICTS | 413

12.3.5 Other examples

This chapter has referred to complaints before the Human Rights Committee on enforced disap-
pearances (12.3.2) and a leading case from the OAS. The Americas are not the only region within
which enforced disappearances have occurred. The following case was heard by a Grand Chamber
of the European Court of Human Rights. It is unusual insofar as it is an inter-State complaint. As
noted in Chapters 4, 5 and 6, these are not common in international and regional law. Due to
the contentious nature of the division of Cyprus, several inter-State applications have been made.
The following case is the most recent and concerns, inter alia, the matter of disappearances. It is
the first of the complaints to have been referred to the Court.

Cyprus v Turkey, Application no. 25781/94, judgment, 10 May 2001

Cyprus is currently a divided island with the northern Turkish part and the southern Greek part.
The island (south) is now a Member State of the European Union and is recognised as being
Cyprus. Turkish armed forces occupy the northern part of the island. Cyprus claimed that about
1,491 Greek Cypriots were still missing 20 years after the cessation of hostilities. They were last
seen alive in Turkish custody, and their fate has never been accounted for by the respondent
State. Turkey noted a lack of proof that any of the missing persons were still alive or were being
kept in custody. In their principal submission, the issues raised by the applicant Government
should continue to be pursued within the framework of the United Nations Committee on Missing
Persons rather than under the Convention. Note that in 1981 the United Nations Committee
on Missing Persons (CMP) was set up to ‘look into cases of persons reported missing in the
inter-communal fighting as well as in the events of July 1974 and afterwards’ and ‘to draw up
comprehensive lists of missing persons of both communities, specifying as appropriate whether
they are still alive or dead, and in the latter case approximate times of death’.

132. The Court recalls that there is no proof that any of the missing persons have been
unlawfully killed. However, in its opinion, and of relevance to the instant case, the above-
mentioned procedural obligation also arises upon proof of an arguable claim that an individual,
who was last seen in the custody of agents of the State, subsequently disappeared in a context
which may be considered life-threatening.

133. Against this background, the Court observes that the evidence bears out the applicant
Government’s claim that many persons now missing were detained either by Turkish or Turkish-
Cypriot forces. Their detention occurred at a time when the conduct of military operations was
accompanied by arrests and killings on a large scale. The Commission correctly described the
situation as life-threatening. The above-mentioned broadcast statement of Mr Denktas, and
the later report of Professor Küçük, if not conclusive of the respondent State’s liability for the
death of missing persons are, at the very least, clear indications of the climate of risk and fear
obtaining at the material time and of the real dangers to which detainees were exposed.

. . .

136. Having regard to the above considerations, the Court concludes that there has been a
continuing violation of Article 2 on account of the failure of the authorities of the respondent
State to conduct an effective investigation aimed at clarifying the whereabouts and fate of
Greek-Cypriot missing persons who disappeared in life-threatening circumstances.

. . .

148. The Court refers to the irrefutable evidence that Greek Cypriots were held by Turkish or
Turkish-Cypriot forces. There is no indication of any records having been kept of either the
identities of those detained or the dates or location of their detention. From a humanitarian
point of view, this failing cannot be excused with reference either to the fighting which took
place at the relevant time or to the overall confused and tense state of affairs. Seen in terms
414 | PRISONERS, DETAINEES AND CONVICTS

of Article 5 of the Convention, the absence of such information has made it impossible to allay
the concerns of the relatives of the missing persons about the latter’s fate. Notwithstanding the
impossibility of naming those who were taken into custody, the respondent State should have
made other inquiries with a view to accounting for the disappearances. As noted earlier, there
has been no official reaction to new evidence that Greek-Cypriot missing persons were taken
into Turkish custody (see paragraph 134 above).

149. The Court has addressed this allegation from the angle of the procedural requirements of
Article 5 of the Convention and the obligations devolving on the respondent State as a Contracting
Party to the Convention. Like the Commission, and without questioning the value of the humanitarian
work being undertaken by the CMP, the Court reiterates that those obligations cannot be discharged
with reference to the nature of the CMP’s investigation (see paragraph 135 above).

150. The Court concludes that, during the period under consideration, there has been a
continuing violation of Article 5 of the Convention by virtue of the failure of the authorities of
the respondent State to conduct an effective investigation into the whereabouts and fate of the
missing Greek-Cypriot persons in respect of whom there is an arguable claim that they were in
custody at the time they disappeared.

. . .

157. The Court observes that the authorities of the respondent State have failed to undertake
any investigation into the circumstances surrounding the disappearance of the missing persons.
In the absence of any information about their fate, the relatives of persons who went missing
during the events of July and August 1974 were condemned to live in a prolonged state of acute
anxiety which cannot be said to have been erased with the passage of time. The Court does not
consider, in the circumstances of this case, that the fact that certain relatives may not have
actually witnessed the detention of family members or complained about such to the authorities
of the respondent State deprives them of victim status under Article 3. It recalls that the military
operation resulted in a considerable loss of life, large-scale arrests and detentions and enforced
separation of families. The overall context must still be vivid in the minds of the relatives of
persons whose fate has never been accounted for by the authorities. They endure the agony
of not knowing whether family members were killed in the conflict or are still in detention or,
if detained, have since died. The fact that a very substantial number of Greek Cypriots had to
seek refuge in the south coupled with the continuing division of Cyprus must be considered to
constitute very serious obstacles to their quest for information. The provision of such information
is the responsibility of the authorities of the respondent State. This responsibility has not been
discharged. For the Court, the silence of the authorities of the respondent State in the face of the
real concerns of the relatives of the missing persons attains a level of severity which can only be
categorised as inhuman treatment within the meaning of Article 3.

158. For the above reasons, the Court concludes that, during the period under consideration,
there has been a continuing violation of Article 3 of the Convention in respect of the relatives of
the Greek-Cypriot missing persons.

Some of the issues raised by this complaint have yet to be resolved. Other, similar issues, have been
raised in a number of cases concerning Turkey and its southern border with the Middle Eastern
States. Obviously these are not inter-State complaints but rather individual complaints brought by
the families of the missing or presumed deceased individuals.

12.4 Detention pending trial

While it is feasible to detain suspects pending trial, care must be taken to ensure that detention
is actually necessary and that the period of it is reasonable. States should not detain people while
 PRISONERS, DETAINEES AND CONVICTS | 415

undertaking investigation unless they have a reasonable suspicion that an offence has been com-
mitted and release could encourage flight or tampering with evidence. As to the reasonableness of
length of detention, this varies from State to State and case to case. The circumstances of the case
dictate how long is acceptable. Note, however, that the need for a judge to approve and authorise
prolonged periods of pre-trial detention remains.
Aside from issues of length of detention, care must also be taken to treat pre-trial detainees as
innocent. Ideally they should be kept separate from convicts. The presumption of innocence oper-
ates in their favour. This is, of course, problematic for many States. Lack of resources and appro-
priate detention facilities can give rise to complaints. In light of this, a balance must be achieved
between the need to detain an individual pending trial (for whatever legitimate reason) and the
need to treat detainees with the respect due to the presumed innocent during custody.

Arias Leiva v Colombia, Human Rights Committee communication No. 2537/2015

UN Doc. CCPR/C/123/D/2537/2015

The author served as Minister of Agriculture in Colombia, a role including responsibility for an
agricultural subsidies programme. Irregularities allegedly arose in connection with activities and
the author was subsequently held in pretrial detention by order of the Bogota High Court. He was
detained for some twenty months before his release was ordered. Almost a year later, he was
convicted and sentenced to 17 years and 5 months in prison as well as a fine. By this time, fearing
for his life and that of his family, he had fled the country and sought asylum in the USA.
3.2 The author submits that his prolonged and unjustified pretrial detention and the
conditions of his indictment hearing (para. 2.6) constituted cruel, inhuman and degrading
treatment, contrary to articles 7 and 17 (1) of the Covenant.
3.3 In relation to article 9 (1) – (4) of the Covenant, the author claims that his right to freedom
and security was violated by the acts described in the preceding paragraph, especially when the
pretrial detention order was issued against him without there being any grounds to justify such a
measure. The author’s pretrial detention was unjustified, and wasnot necessary in his case. The
author further submits that he was charged with offences against the State administration and
that such offences are not considered serious under any legal system. His requests for repeal of
the pretrial detention order were arbitrarily refused by the judicial authorities.
3.4 The author claims a violation of his right to equality before the courts and his right
to a fair hearing under article 14 (1) of the Covenant. He did not receive the same treatment
as other defendants in the proceedings, as he was the only one held in pretrial detention
for ‘many months’. His sentence was not commensurate with the gravity of the offence and
other defendants accused of the same offences received less severe sentences. There was no
equality of arms during the criminal proceedings as the prosecution was generally given more
opportunity to prepare and present evidence than the accused’s defence team. The defendant
did not have adequate time and facilities for the preparation of his defence. The author also
claims that the Attorney General was not impartial; there were conflicts of interest originating
from earlier personal issues with the author’s lawyer and she had expressed a view on the
author’s case when working as a journalist at a radio station. Furthermore, the head Supreme
Court judge, who oversaw the trial and drafted the verdict, had attempted to recuse herself
at the start of the trial, citing a conflict of interest in that she was one of the victims in a
separate criminal trial under way against other members of the government of ex-President
Uribe concerning alleged surveillance of Supreme Court judges. However, the Supreme Court
refused her request and she continued to lead the trial, even drawing up the sentence.
3.5 The author maintains that his right to be presumed innocent under article 14 (2) was
also violated, since the Attorney General had expressed an opinion on the author’s case before
taking up her position, while working as a journalist. He considers that the inclusion of his
case in the 2012 management report of the Attorney General’s Office under the heading ‘high-
impact cases’ also violated his right to be presumed innocent. In addition, the Supreme Court
did not duly assess and evaluate the evidence presented during the trial; it convicted the author
416 | PRISONERS, DETAINEES AND CONVICTS

despite the fact that his conduct did not conform to the definition of embezzlement and he did
not enter into contracts without meeting the legal requirements.
3.6 The author also claims that he did not have adequate time and facilities for the
preparation of his defence, in violation of article 14 (3) (b) of the Covenant. A report issued by
the Criminal Investigation Police on 9 March 2010, which states that the Technical Investigation
Corps of the Attorney General’s Office had concluded that the author did not engage in irregular
activity, was not admitted in evidence by the Supreme Court. The Supreme Court also refused
the author’s request that a handwriting test be carried out with a view to contesting a document
admitted as evidence. The President also refused to provide the author with copies of the
records of meetings of the Council of Ministers at which the AIS programme was discussed.
3.7 The author claims that he was not tried without undue delay, in violation of article 14
(3) (c) of the Covenant.
3.8 The author claims that the criminal proceedings against high-ranking officials heard
by the Supreme Court, at sole instance, as provided for in article 235 of the Constitution, violated
article 14 (5) of the Covenant. In his case, the author had no opportunity to appeal against the
conviction and sentence handed down by the Supreme Court in its judgment of 17 July 2014.
3.9 The author also alleges that the State party violated his rights under article 14 (6) in
that, in the absence of any judge or court to which an appeal could be submitted, there was no
other authority able to set aside his conviction at a later stage.
3.10 The author alleges that he was tried twice for the same acts in violation of article 14
(7) of the Covenant. In July 2012, the Counsel General’s Office imposed administrative sanctions
on the author for irregularities in the AIS programme that occurred while he was Minister.
However, although responsibility was attributed to him, no criminal intent was established. The
same events were subsequently the subject of criminal proceedings before the Supreme Court
which ended with his conviction. The author adds that other public bodies had concluded that
there was no evidence to substantiate his alleged criminal liability. For example, the Attorney
General’s Office initially dismissed suggestions that the author could be held criminally liable for
irregularities identified in the disbursement of subsidies under the AIS programme, the General
Comptroller’s Office shelved the preliminary investigation and, in proceedings brought against the
legal adviser to the Ministry, in which the author was not a party, Cundinamarca Administrative
Court concluded that the scientific and technological cooperation agreements were not unlawful.
3.12 In relation to article 15 of the Covenant, the author claims that he was sentenced for
acts or omissions that were not offences and that no criminal liability could be established under
article 32 (10) (1) of the Criminal Code. The scientific and technological cooperation agreements
were concluded on the basis of established practice in the Ministry of Agriculture and among
the relevant legal and technical experts. Accordingly, any error on the author’s part would be of
the kind that precluded any criminal liability. Even if this were not the case, his actions would
constitute negligence and, in the absence of any criminal intent, he would not be subject to criminal
penalties. Therefore, he was convicted of acts or omissions that were not criminal offences.
3.12 The author also maintains that he is a victim of a violation by the State party of his
rights under articles 19 (1) and 26 of the Covenant, in that the criminal proceedings brought
against him were part of a campaign of persecution led by the current Government of Colombia
and motivated by his political opinions and his opposition to the peace process between the
Government and the Fuerzas Armadas Revolucionarias de Colombia (Revolutionary Armed
Forces of Colombia, known as FARC). He claims that the authorities were persecuting
individuals who might potentially be candidates for the presidential elections held on 15
June 2014. He was singled out for these same reasons, and was prevented from exercising
his civil and political rights, including the right to appeal against the conviction and sentence
pronounced against him by the Supreme Court.
3.13 Lastly, the author claims that all these facts constitute a violation of his right to
human dignity under article 10 (1) of the Covenant
 PRISONERS, DETAINEES AND CONVICTS | 417

Consideration of the merits

12.4 The Committee recalls that article 14 (5) of the Covenant provides that everyone convicted
of a crime has the right to have his or her conviction and sentence reviewed by a higher tribunal
according to the law. The Committee recalls that the phrase ‘according to the law’ is not
intended to mean that the very existence of a right to review should be left to the discretion of
the States parties. Although a State party’s legislation may provide in certain circumstances for
the trial of an individual, because of his or her position, by a higher court than would normally
be the case, this circumstance alone cannot impair the defendant’s right to have his or her
conviction and sentence reviewed by a court. In the present case, the State party has given no
indication of the existence of any remedy that the author may use to apply to have his conviction
and sentence reviewed by another court. Accordingly, the Committee finds that the State party
violated the author’s rights under article 14 (5) of the Covenant.
12.5 The Committee takes note of the author’s allegations that the Supreme Court’s
judgment of 17 July 2014 constitutes a violation of his rights under article 25 of the Covenant,
since he is banned for life from being elected to public office or serving as a public official
(para. 7.6).
12. The Committee, acting under article 5 (4) of the Optional Protocol to the Covenant, is
of the view that the facts before it disclose a violation of articles 14 (5) and 25 of the Covenant.
13. In accordance with article 2 (3) (a) of the Covenant, the State party is under an obligation
to provide the author with an effective remedy. This requires that full reparation be made to
individuals whose Covenant rights have been violated. The Committee considers that, in the
present case, its Views on the merits of the complaint constitute sufficient reparation for the
violation found. The State party is also under an obligation to take all necessary steps to prevent
the occurrence of similar violations in the future, including a review of its legislation to ensure
that any restriction of the right to take part in the conduct of public affairs and to be elected is
reasonable and proportional and is based on an individualized assessment of each case.
14. Bearing in mind that, by becoming a party to the Optional Protocol, the State party
has recognized the competence of the Committee to determine whether or not there has been
a violation of the Covenant and that, pursuant to article 2 of the Covenant, the State party has
undertaken to ensure for all individuals within its territory or subject to its jurisdiction the
rights recognized in the Covenant and to provide an effective and enforceable remedy when a
violation has been established, the Committee wishes to receive from the State party, within
180 days, information on the measures taken to give effect to the present Views. The State party
is also requested to publish the present Views and to disseminate them widely.

12.4.1 Terrorism and derogations

In the current political climate, detention of terrorism suspects is increasingly common. For a
variety of reasons, the individuals are not brought to trial but rather detained without trial and
often for long periods of time. This has resulted in derogations from the provisions on detention.
In other instances, legalistic devices have been used in an attempt to obviate the international
requirements.

12.4.1.1 United States of America detainees in Guantanamo Bay, Cuba/Bagram,

Afghanistan/Kandahar, Afghanistan/Charleston, USA
The United States of America has/has had a number of detainees at the above locations, detained
under the then proclaimed ‘war on terror’. In addition, others were allegedly detained at undis-
closed locations.
Perhaps foremost amongst the problems is that of where the detainees should go. For many,
return to their home country would almost inevitably result in torture; for others their ‘home’
418 | PRISONERS, DETAINEES AND CONVICTS

country no longer recognises their nationality and they are, in effect, stateless. Perhaps this is best
exhibited by the plight of some Chinese Uighyur detainees. Following much political and diplomatic
wrangling, some were freed from Guantanamo Bay and sent to freedom in Albania; the USA deemed
it impossible to return them to China, despite China’s requests and offers of assistance in this regard.
Irrespective of what happens, the academic and political debate over this period will continue.

Protecting Human Rights and Fundamental Freedoms While Countering Terrorism,

report of the Secretary-General, A/72/316, 12 August 2017

E. Due process, including the right to a fair trial

37. Bringing those suspected of terrorist acts to justice poses significant challenges in
many countries. Not only are there security risks involved in the prosecution of terrorist
cases, but also there are challenges associated with the collection and use of evidence
in accordance with international standards. Nevertheless, systems that have developed
processes for evidence collection, witness protection and similar measures that are
respectful of human rights have been better able to successfully bring perpetrators to
justice. In this regard, the General Assembly, in its resolution 70/148, and the Human Rights
Council, in its resolution 35/34, have urged States to take a range of specific measures to
ensure the fulfilment of due process guarantees as enshrined in international law. These
include recognition of the right of an individual to know why he or she has been detained;
the right of the family of a detainee to know where he or she is being held; and the right of a
detainee to have access to a lawyer and to challenge the lawfulness of his or her detention.
In many jurisdictions, however, respect for those rights is neither fully acknowledged nor
respected in practice.

12.4.1.2 Case study: United Kingdom

The United Kingdom provides a good case study of extended periods of detention.

PREVENTION OF TERRORISM (TEMPORARY PROVISIONS) ACT 1974, c. 56

7. (1) A constable may arrest without warrant a person whom he reasonably suspects to be –

a) a person guilty of an offence under section 1 or 3, of this Act;

b) a person concerned in the commission, preparation or instigation of acts of
terrorism;
c) a person subject to an exclusion order.

(2) A person arrested under this section shall not be detained in right of the arrest for
more than 48 hours after his arrest:

Provided that the Secretary of State may, in any particular case, extend the period of
48 hours by a further period not exceeding 5 days.

This Act was intended to be a temporary measure, as the name suggests, adopted in response to
rising tensions in Northern Ireland. Controversially, it was renewed annually. The United King-
dom entered a derogation to Article 5 of the European Convention on Human Rights to permit
detention of terrorist suspects. Note in particular the caveat that the Secretary of State may autho-
rise an extension of the period of detention. This appeared in subsequent versions of the Preven-
tion of Terrorism Act. The derogation was withdrawn eventually but, following the finding of an
infringement of the treaty by the court in Brogan v United Kingdom, Series A, No. 145 (1988), a
new derogation was inserted and upheld in Brannigan & McBride v United Kingdom, Series A, No.
258B (1993).
 PRISONERS, DETAINEES AND CONVICTS | 419

Note the Provisions of the Prevention of Terrorism Act 2005, an Act adopted in response to
the perceived change in the threat to the United Kingdom (that is, from beyond Northern Ireland).

PREVENTION OF TERRORISM ACT 2005, c. 2

Arrest and detention pending derogating control order

5. (1) A constable may arrest and detain an individual if –

(a) the Secretary of State has made an application to the court for a derogating
control order to be made against that individual; and
(b) the constable considers that the individual’s arrest and detention is necessary to
ensure that he is available to be given notice of the order if it is made.

(2) A constable who has arrested an individual under this section must take him
to the designated place that the constable considers most appropriate as soon as
practicable after the arrest.
(3) An individual taken to a designated place under this section may be detained there
until the end of 48 hours from the time of his arrest.
(4) If the court considers that it is necessary to do so to ensure that the individual in question
is available to be given notice of any derogating control order that is made against him, it
may, during the 48 hours following his arrest, extend the period for which the individual
may be detained under this section by a period of no more than 48 hours.
. ..
(7) An individual detained under this section –

(a) shall be deemed to be in legal custody throughout the period of his detention; and
(b) after having been taken to a designated place shall be deemed –

(i) in England and Wales, to be in police detention for the purposes of the
Police and Criminal Evidence Act 1984 (c. 60); and
(ii) in Northern Ireland, to be in police detention for the purposes of the Police
and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12));

but paragraph (b) has effect subject to subsection (8).

...
(9) The power to detain an individual under this section includes power to detain him in
a manner that is incompatible with his right to liberty under Article 5 of the Human
Rights Convention if, and only if –

(a) there is a designated derogation in respect of the detention of individuals under this
section in connection with the making of applications for derogating control orders; and
(b) that derogation and the designated derogation relating to the power to make
the orders applied for are designated in respect of the same public emergency.

Given the involvement of the courts in the process, the derogation of the United Kingdom was
finally withdrawn.
Detention of alleged terrorists was found contrary to Article 5 (deprivation of liberty) by the
European Court of Human Rights in 2009 – A & others v UK, Application 3455/05, Judgment of
the Grand Chamber 19 February 2009.

12.5 Torture and the use of force

Abuse of prisoners can arise at various stages of the detention and trial process. Obviously, interna-
tional human rights law includes an absolute prohibition on torture. However, as history regularly
420 | PRISONERS, DETAINEES AND CONVICTS

attests, there are regular allegations of torture and/or excessive use of force against detainees. More
commonly, complaints of confessions extracted under duress are raised. Although miscarriages of
justice are a major risk, not all systems in all countries provide appropriate and available remedies.
However, as arrest, detention and incarceration all involve the State impacting dramatically and
overtly on the rights and liberties of the individual, there is a clear and pressing need for inter-
national guidelines to be adhered to. Detainees are clearly incredibly vulnerable in these circum-
stances. Threat of unacceptable force and of course, torture, during detention can also be a ground
for seeking asylum and challenging any deportation order made in a third State.

12.5.1 At arrest
The first instance (to be examined here) in which force may be encountered is at the time of arrest.
Although due force can be used to effect an arrest, the level of force should be reasonable in the
circumstances of the case.

Basic Principles on the Use of Force and Firearms by Law Enforcement Officials Adopted by
the Eighth United Nations Congress on the Prevention of Crime and the Treatment of
Offenders, Havana, Cuba, 27 August to 7 September 1990

3 The development and deployment of non-lethal incapacitating weapons should be

carefully evaluated in order to minimize the risk of endangering uninvolved persons, and
the use of such weapons should be carefully controlled.
4 Law enforcement officials, in carrying out their duty, shall, as far as possible, apply
nonviolent means before resorting to the use of force and firearms. They may use force
and firearms only if other means remain ineffective or without any promise of achieving
the intended result.
5 Whenever the lawful use of force and firearms is unavoidable, law enforcement officials
shall:

(a) Exercise restraint in such use and act in proportion to the seriousness of the offence
and the legitimate objective to be achieved;
(b) Minimize damage and injury, and respect and preserve human life;
(c) Ensure that assistance and medical aid are rendered to any injured or affected
persons at the earliest possible moment;
(d) Ensure that relatives or close friends of the injured or affected person are notified at
the earliest possible moment.

6 Where injury or death is caused by the use of force and firearms by law enforcement officials,
they shall report the incident promptly to their superiors, in accordance with principle 22.
7 Governments shall ensure that arbitrary or abusive use of force and firearms by law
enforcement officials is punished as a criminal offence under their law.
8 Exceptional circumstances such as internal political instability or any other public
emergency may not be invoked to justify any departure from these basic principles.
9 Law enforcement officials shall not use firearms against persons except in self defence
or defence of others against the imminent threat of death or serious injury, to prevent
the perpetration of a particularly serious crime involving grave threat to life, to arrest a
person presenting such a danger and resisting their authority, or to prevent his or her
escape, and only when less extreme means are insufficient to achieve these objectives. In
any event, intentional lethal use of firearms may only be made when strictly unavoidable
in order to protect life.
10 In the circumstances provided for under principle 9, law enforcement officials shall
identify themselves as such and give a clear warning of their intent to use firearms, with
sufficient time for the warning to be observed, unless to do so would unduly place the
 PRISONERS, DETAINEES AND CONVICTS | 421

law enforcement officials at risk or would create a risk of death or serious harm to other
persons, or would be clearly inappropriate or pointless in the circumstances of the incident.

Force is not proscribed, but must be reasonable in the circumstances. Without a doubt,
State practice varies as regards arming regular police and law enforcement officials. Countries
such as the United Kingdom, which normally operate a consensual policing system, refrain
from arming police officers in ordinary situations. Only when responding to certain events,
including terrorism, are officers armed. The use of weapons, such as Tasers, raises additional
concern.

Question
Note the problems which arise when alleged terrorists are mistakenly shot and killed by armed officers. Can
the actions of the police be justified (in human rights terms), given the heightened security in place at the time?
Do medium range weapons (e.g. Tasers) offer a solution?

12.5.2 Effective investigation of allegations of torture

While the provisions governing arrest and detention have been addressed, a further issue of
concern is allegations of torture, inhuman or degrading treatment made by a detainee or pris-
oner against his or her captors. As is noted in Chapter 3, some rights and freedoms are non-
derogable. The prohibition on torture is a prime example. Moreover, as Chapter 1 notes, it may
even be regarded as jus cogens. To discharge their obligations, States have to ensure that systems
are put in place to ensure that infringing treatment does not occur. In the worst scenario, if
it does, it has to be investigated fully and expeditiously with appropriate steps taken to ensure
no repeat.

Principles on the Effective Investigation and Documentation of Torture and Other Cruel
Inhuman or Degrading Treatment or Punishment, General Assembly Resolution
55/89 of 4 December 2000

2 States shall ensure that complaints and reports of torture or ill-treatment are promptly
and effectively investigated. Even in the absence of an express complaint, an investigation
shall be undertaken if there are other indications that torture or ill treatment might have
occurred. The investigators, who shall be independent of the suspected perpetrators
and the agency they serve, shall be competent and impartial. They shall have access to,
or be empowered to commission investigations by, impartial medical or other experts.
The methods used to carry out such investigations shall meet the highest professional
standards and the findings shall be made public.
3. (a) The investigative authority shall have the power and obligation to obtain all the
information necessary to the inquiry. The persons conducting the investigation
shall have at their disposal all the necessary budgetary and technical resources for
effective investigation. They shall also have the authority to oblige all those acting in
an official capacity allegedly involved in torture or ill-treatment to appear and testify.
The same shall apply to any witness. To this end, the investigative authority shall be
entitled to issue summonses to witnesses, including any officials allegedly involved,
and to demand the production of evidence.
(b) Alleged victims of torture or ill-treatment, witnesses, those conducting the investigation
and their families shall be protected from violence, threats of violence or any other
form of intimidation that may arise pursuant to the investigation. Those potentially
implicated in torture or ill-treatment shall be removed from any position of control or
power, whether direct or indirect, over complainants, witnesses and their families, as
well as those conducting the investigation.
422 | PRISONERS, DETAINEES AND CONVICTS

4 Alleged victims of torture or ill-treatment and their legal representatives shall be

informed of, and have access to, any hearing, as well as to all information relevant to the
investigation, and shall be entitled to present other evidence.

Note also the role of the Committee against Torture in monitoring detention centres through
visits, though bear in mind that the State must consent to such visits – see Chapter 7 – noting
the provisions of the Optional Protocol. The International Convention on the Protection of all
Persons from Enforced Disappearances reinforces the need for accurate records to be maintained
of detainees and all injuries and/or deaths to be investigated.

12.5.3 Deaths in custody – Australia and aboriginal deaths

in custody
Deaths in custody require particularly careful investigation to ensure that the action or indeed inac-
tion of State officials did not contribute to the death.

HUMAN RIGHTS COMMITTEE

General comment No. 36 (2018) on article 6 of the International Covenant on Civil

and Political Rights, on the right to life

III. The Duty to Protect Life

25. States parties also have a heightened duty of care to take any necessary measures
to protect the lives of individuals deprived of their liberty by the State, since by arresting,
detaining, imprisoning or otherwise depriving individuals of their liberty, States parties
assume the responsibility to care for their life and bodily integrity, and they may not rely on
lack of financial resources or other logistical problems to reduce this responsibility. The same
heightened duty of care attaches to individuals held in private incarceration facilities operating
pursuant to an authorization by the State. The duty to protect the life of all detained individuals
includes providing them with the necessary medical care and appropriately regular monitoring
of their health, shielding them from inter-prisoner violence, preventing suicides and providing
reasonable accommodation for persons with disabilities. A heightened duty to protect the right
to life also applies to individuals quartered in liberty-restricting State-run facilities, such as
mental health facilities, military camps, refugee camps and camps for internally displaced
persons, juvenile institutions and orphanages.

In 1987, a Royal Commission was established in Australia to investigate the prevalence of aborigi-
nal deaths in custody. The Commission was set up jointly by the Commonwealth (of Australia),
the various States and the Northern Territory. It was precipitated by growing public awareness of
the large number of Aboriginal and Torres Strait Islander peoples dying in custody. The Com-
mission examined 99 incidences (deaths in custody, prison or juvenile detention) which occurred
between 1 January 1980 and 31 May 1989. Cognisance was taken of the circumstances of the
death, action taken by the appropriate authorities at the time and any relevant underlying causes
(social, cultural, legal factors).

Royal Commission Report into Aboriginal Deaths in Custody, 1991, Canberra:

Commonwealth Publishers (5 volumes)

Average personal profiles of the deceased

Age: young, average age 32 at time of death Education: only two had completed secondary
education Health: poor
 PRISONERS, DETAINEES AND CONVICTS | 423

Family: almost half had been separated from their birth families as children (the so-called
stolen generation policies)
Work: 83 were unemployed at the date of detention
Criminal record: 74 had previously been charged with offences when they were under 19 years
and 43 of that group had been taken into custody for alcohol-related offences.

The Commissioners did not consider any of the deaths attributable to violence or brutality on
the part of police or prison officers. There was, however, an allegation of a lack of proper care for
detainees. Aboriginal and Torres Strait Islanders were not statistically more likely to die in custody
than other Australians, however that statistic is tempered by the fact that they are 29 times more
likely to end up in custody in the first place! The recommendations of the Commission were
wide-ranging, covering all aspects of Australian life and aboriginal society.
The resulting report was not only lengthy, but a uniquely comprehensive review of the status
of indigenous peoples within Australia. Three hundred and thirty-nine recommendations were
made, encompassing all aspects of Aboriginal life, including education, health, housing and land.
The impact of this remains apparent almost 30 years later.

12.6 Fair trial

The right to a fair trial is one of the most heavily litigated human rights. Within the Council of
Europe, the majority of cases before the Court involve Article 6, the right to a fair trial. For many,
particularly in democratic liberal traditions, this is one of the more fundamental of rights. It finds
expression in all the major instruments.

INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS 1966

Article 14

1 All persons shall be equal before the courts and tribunals. In the determination of any
criminal charge against him, or of his rights and obligations in a suit at law, everyone
shall be entitled to a fair and public hearing by a competent, independent and impartial
tribunal established by law. The press and the public may be excluded from all or part of a
trial for reasons of morals, public order (ordre public) or national security in a democratic
society, or when the interest of the private lives of the parties so requires, or to the extent
strictly necessary in the opinion of the court in special circumstances where publicity
would prejudice the interests of justice; but any judgement rendered in a criminal case
or in a suit at law shall be made public except where the interest of juvenile persons
otherwise requires or the proceedings concern matrimonial disputes or the guardianship
of children.
2 Everyone charged with a criminal offence shall have the right to be presumed innocent
until proved guilty according to law.
3 In the determination of any criminal charge against him, everyone shall be entitled to the
following minimum guarantees, in full equality:

(a) To be informed promptly and in detail in a language which he understands of the

nature and cause of the charge against him;
(b) To have adequate time and facilities for the preparation of his defence and to
communicate with counsel of his own choosing;
(c) To be tried without undue delay;
(d) To be tried in his presence, and to defend himself in person or through legal
assistance of his own choosing; to be informed, if he does not have legal assistance,
424 | PRISONERS, DETAINEES AND CONVICTS

of this right; and to have legal assistance assigned to him, in any case where the
interests of justice so require, and without payment by him in any such case if he
does not have sufficient means to pay for it;
(e) To examine, or have examined, the witnesses against him and to obtain the
attendance and examination of witnesses on his behalf under the same conditions
as witnesses against him;
(f) To have the free assistance of an interpreter if he cannot understand or speak the
language used in court;
(g) Not to be compelled to testify against himself or to confess guilt.

4 In the case of juvenile persons, the procedure shall be such as will take account of their
age and the desirability of promoting their rehabilitation.
5 Everyone convicted of a crime shall have the right to his conviction and sentence being
reviewed by a higher tribunal according to law.
6 When a person has by a final decision been convicted of a criminal offence and when
subsequently his conviction has been reversed or he has been pardoned on the ground
that a new or newly discovered fact shows conclusively that there has been a miscarriage
of justice, the person who has suffered punishment as a result of such conviction shall be
compensated according to law, unless it is proved that the non-disclosure of the unknown
fact in time is wholly or partly attributable to him.
7 No one shall be liable to be tried or punished again for an offence for which he has already
been finally convicted or acquitted in accordance with the law and penal procedure of each
country.

Article 15

1 No one shall be held guilty of any criminal offence on account of any act or omission which
did not constitute a criminal offence, under national or international law, at the time when
it was committed. Nor shall a heavier penalty be imposed than the one that was applicable
at the time when the criminal offence was committed. If, subsequent to the commission of
the offence, provision is made by law for the imposition of the lighter penalty, the offender
shall benefit thereby.
2 Nothing in this article shall prejudice the trial and punishment of any person for any act or
omission which, at the time when it was committed, was criminal according to the general
principles of law recognized by the community of nations.

Among civil and political rights and for many people, the right to a fair trial is a fundamental
human right. The right to a fair trial and the right to equality before the law has roots deep in
modern concepts of justice and fairness. Many proponents trace it back to the rule of law. For citi-
zens, the right to liberty and the right to a fair trial represent obvious examples of when the State
and the individual interact. As a fair trial is an important aspect of determining the legitimacy of
any detention and as lawful detention is often a consequence of a trial, this chapter will consider
the law concerning a fair trial.
The modern definition of a fair trial also finds expression in the Statute of the International
Criminal Court, which indeed provides one of the most detailed tabulations of the right to be
found in international human rights law.

STATUTE OF THE INTERNATIONAL CRIMINAL COURT 1998, Article 20(1)

Except as provided in this Statute, no person shall be tried before the Court with respect to
conduct which formed the basis of crimes for which the person has been convicted or acquitted
by the Court.
 PRISONERS, DETAINEES AND CONVICTS | 425

The same applies to people tried for genocide, crimes against humanity or war crimes in
other courts. They cannot also be tried in the International Criminal Court unless there are
significant queries over the purpose of the initial trial or the independence or impartiality of
proceedings.

STATUTE OF THE INTERNATIONAL CRIMINAL COURT 1998

Article 22(1)

A person shall not be criminally responsible under this Statute unless the conduct in question
constitutes, at the time it takes place, a crime within the jurisdiction of the Court.

Article 23

A person convicted by the Court may be punished only in accordance with this Statute.

Article 24

No person shall be criminally responsible under this Statute for conduct prior to the entry into
force of the Statute.

Article 40

The judges shall be independent in the performance of their functions.

Article 42

The Office of the Prosecutor shall act independently as a separate organ of the Court.

Article 55

1 In respect of an investigation under this Statute, a person:

(a) Shall not be compelled to incriminate himself or herself or to confess guilt;

(b) Shall not be subjected to any form of coercion, duress or threat, to torture or to any
form of cruel, inhuman or degrading treatment or punishment;
(c) Shall, if questioned in a language other than a language the person fully understands
and speaks, have, free of cost, the assistance of a competent interpreter and such
translations as are necessary to meet the requirement of fairness; and
(d) Shall not be subjected to arbitrary arrest or detention, and shall not be deprived of
his or her liberty except on such grounds and in accordance with such procedures as
are established in this Statute.

2 Where there are grounds to believe that a person has committed a crime within the
jurisdiction of the Court and that person is about to be questioned .  .  . that person
shall also have the following rights of which he or she shall be informed prior to being
questioned:

(a) To be informed, prior to being questioned, that there are grounds to believe that he
or she has committed a crime within the jurisdiction of the Court;
(b) To remain silent without such silence being a consideration in the determination of
guilt or innocence;
(c) To have legal assistance of the person’s choosing, or, if the person does not have
legal assistance, to have legal assistance assigned to him or her, in any case where
the interests of justice so require, and without payment by the person in any case if
the person does not have sufficient means to pay for it; and
(d) To be questioned in the presence of counsel unless the person has voluntarily waived
his or her right to counsel.
426 | PRISONERS, DETAINEES AND CONVICTS

Article 63(1)

The accused shall be present during the trial.

Article 66

1 Everyone shall be presumed innocent until proved guilty before the Court in accordance
with the applicable law.
2 The onus is on the Prosecutor to prove the guilt of the accused.
3 In order to convict the accused, the Court must be convinced of the guilt of the accused
beyond reasonable doubt.

Question
Read Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
Compare and contrast its provisions with those of the Statute of the International Criminal Court.

12.6.1 Access to a court

The European Court of Human Rights created an early precedent by articulating the actual right
of access to a court. This may seem axiomatic but, without access to a competent court, the fair-
ness of any trial is obviously a moot point. This also raises issues (see 12.1) of legal identity and
recognition as a person before the law, thereby facilitating access to a court.

Golder v UK, European Court of Human Rights, Ser. A, No. 12 (1975)

Facts: the applicant in this complaint before the European Commission and then the Court of
Human Rights was allegedly involved in serious disturbances in Parkhurst Prison on the Isle
of Wight. He had been convicted in the United Kingdom of robbery with violence and sentenced
to 15 years’ imprisonment. Following the disturbances, he was placed in solitary confinement
pending disciplinary action and refused access to a solicitor. He wished to consult a solicitor
but the Home Secretary rejected this. The Commission and Court found violations of Article 6
of the European Convention.
34. As stated in Article 31 para. 2 of the Vienna Convention, the preamble to a treaty forms
an integral part of the context. Furthermore, the preamble is generally very useful for the
determination of the ‘object’ and ‘purpose’ of the instrument to be construed. In the present
case, the most significant passage in the Preamble to the European Convention is the signatory
Governments declaring that they are ‘resolved, as the Governments of European countries
which are like-minded and have a common heritage of political traditions, ideals, freedom and
the rule of law, to take the first steps for the collective enforcement of certain of the Rights
stated in the Universal Declaration’ of 10 December 1948.
In the Government’s view, that recital illustrates the ‘selective process’ adopted by the
draftsmen: that the Convention does not seek to protect Human Rights in general but merely
‘certain of the Rights stated in the Universal Declaration’. Articles 1 and 19 are, in their
submission, directed to the same end.
The Commission, for their part, attach great importance to the expression ‘rule of law’
which, in their view, elucidates Article 6 para. 1. The ‘selective’ nature of the Convention
cannot be put in question. It may also be accepted, as the Government have submitted, that
the Preamble does not include the rule of law in the object and purpose of the Convention, but
points to it as being one of the features of the common spiritual heritage of the member States
of the Council of Europe. The Court however considers, like the Commission, that it would
be a mistake to see in this reference a merely ‘more or less rhetorical reference’, devoid of
relevance for those interpreting the Convention. One reason why the signatory Governments
decided to ‘take the first steps for the collective enforcement of certain of the Rights stated in
 PRISONERS, DETAINEES AND CONVICTS | 427

the Universal Declaration’ was their profound belief in the rule of law. It seems both natural
and in conformity with the principle of good faith (Article 31 para. 1 of the Vienna Convention)
to bear in mind this widely proclaimed consideration when interpreting the terms of Article 6
para. 1 according to their context and in the light of the object and purpose of the Convention.
This is all the more so since the Statute of the Council of Europe, an organisation of which
each of the States Parties to the Convention is a Member (Article 66 of the Convention), refers
in two places to the rule of law: first in the Preamble, where the signatory Governments affirm
their devotion to this principle, and secondly in Article 3 which provides that ‘every Member of
the Council of Europe must accept the principle of the rule of law . . .’ And in civil matters one
can scarcely conceive of the rule of law without there being a possibility of having access to
the courts.
35. Article 31 para. 3(c) of the Vienna Convention indicates that account is to be taken,
together with the context, of ‘any relevant rules of international law applicable in the relations
between the parties’. Among those rules are general principles of law and especially ‘general
principles of law recognized by civilized nations’ (Article 38 para. 1(c) of the Statute of the
International Court of Justice). Incidentally, the Legal Committee of the Consultative Assembly
of the Council of Europe foresaw in August 1950 that ‘the Commission and the Court must
necessarily apply such principles’ in the execution of their duties and thus considered it to be
‘unnecessary’ to insert a specific clause to this effect in the Convention (Documents of the
Consultative Assembly, working papers of the 1950 session, Vol. III, no. 93, p. 982, para. 5).
The principle whereby a civil claim must be capable of being submitted to a judge ranks
as one of the universally ‘recognised’ fundamental principles of law; the same is true of the
principle of international law which forbids the denial of justice. Article 6 para. 1 must be read
in the light of these principles.
Were Article 6 para. 1 to be understood as concerning exclusively the conduct of an action
which had already been initiated before a court, a Contracting State could, without acting
in breach of that text, do away with its courts, or take away their jurisdiction to determine
certain classes of civil actions and entrust it to organs dependent on the Government. Such
assumptions, indissociable from a danger of arbitrary power, would have serious consequences
which are repugnant to the aforementioned principles and which the Court cannot overlook
(Lawless judgment of 1 July 1961, Series A no. 3, p. 52, and Delcourt judgment of 17 January
1970, Series A no. 12, pp. 14–15].
It would be inconceivable, in the opinion of the Court, that Article 6 para. 1 should describe
in detail the procedural guarantees afforded to parties in a pending lawsuit and should not
first protect that which alone makes it in fact possible to benefit from such guarantees, that is,
access to a court. The fair, public and expeditious characteristics of judicial proceedings are of
no value at all if there are no judicial proceedings.
36. Taking all the preceding considerations together, it follows that the right of access
constitutes an element which is inherent in the right stated by Article 6 para. 1. This is not an
extensive interpretation forcing new obligations on the Contracting States: it is based on the
very terms of the first sentence of Article 6 para. 1 read in its context and having regard to the
object and purpose of the Convention, a lawmaking treaty (see the Wemhoff judgment of 27
June 1968, Series A no. 7, p. 23, para. 8], and to general principles of law.
The Court thus reaches the conclusion, without needing to resort to ‘supplementary
means of interpretation’ as envisaged at Article 32 of the Vienna Convention, that Article 6
para. 1 secures to everyone the right to have any claim relating to his civil rights and obligations
brought before a court or tribunal. In this way the Article embodies the ‘right to a court’, of
which the right of access, that is the right to institute proceedings before courts in civil matters,
constitutes one aspect only. To this are added the guarantees laid down by Article 6 para. 1 as
regards both the organisation and composition of the court, and the conduct of the proceedings.
In sum, the whole makes up the right to a fair hearing.
428 | PRISONERS, DETAINEES AND CONVICTS

Thus although the Convention makes no explicit mention of the right to access a court, it appears
that this is an integral part of the right to a fair trial. A related issue is that of legal advice and
indeed, State-funded assistance to permit a detainee to properly present a defence. On the issue of
access to legal advice, the international bodies are of the opinion that this may be necessary, most
particularly in criminal proceedings.

Borisenco v Hungary, Communication 852/1999, Human Rights Committee

2.3 On 2 May 1996 the author and his friend were brought before the Pescht Central District
Court for the purpose of deciding whether they should be remanded in custody. The court
decided to detain them due to the risk of flight. During the police interrogation, the hearing
on detention and the detention itself, the author and his friend were not allowed to contact
their Embassy, families, lawyers or sports organization. On 7 May 1996, the police authorities
completed the investigation and referred the case to the public prosecutor’s office . . .

7.5 With respect to the author’s claim that he was not provided with legal representation
from the time of his arrest to his release from detention, which included a hearing on
detention at which he had to represent himself, the Committee notes that the State party has
confirmed that although it assigned a lawyer to the author, the lawyer failed to appear at the
interrogation or at the detention hearing. In its previous jurisprudence, the Committee has
made it clear that it is incumbent upon the State party to ensure that legal representation
provided by the State guarantees effective representation. It recalls its prior jurisprudence
that legal assistance should be available at all stages of criminal proceedings. Consequently
the Committee finds that the facts before it reveal a violation of article 14, paragraph 3 (d) of
the Covenant.

Many of the early fair trial communications raised before the UN bodies are drawn from a series of
complaints against Uruguay in the early 1980s; others relate to capital murder trials and associated
proceedings in Trinidad & Tobago and Jamaica.
Note that access to legal advice is a requirement where the interests of fairness so dictate,
see inter alia Artico v Italy, Series A, No. 47 (1980) European Court of Human Rights, or Airey v
Ireland, Series A, No. 32 (1979) European Court of Human Rights.

Aliev v Ukraine, Communication 781/1997, Human Rights Committee, UN Doc.

CCPR/C/78/D/781/1997

2.1 On 8 June 1996, in the town of Makeevka, Ukraine, having consumed a large quantity of
alcohol, the author, Mr. Kroutovertsev and Mr. Kot had an altercation in an apartment. The
altercation degenerated into a fight. A fourth person, Mr. Goncharenko, witnessed the incident.
According to the author, Mr. Kot and Mr. Kroutovertsev beat him severely. Mr. Kroutovertsev
also struck him with an empty bottle. While defending himself, the author seriously wounded
Mr. Kot and Mr. Kroutovertsev with a knife, whereupon he fled.

. . .

7.2 First, the author alleges that he did not have the services of a counsel during his first five
months of detention. The Committee notes that the State party is silent in this regard; it also
notes that the copies of the relevant judicial decisions do not address the author’s allegation
that he was not represented for five months, even though the author had mentioned this
allegation in his complaint to the Supreme Court dated 29 April 1997. Considering the nature
of the case and questions dealt with during this period, particularly the author’s interrogation
by police officers and the reconstruction of the crime, in which the author was not invited to
participate, the Committee is of the view that the author should have had the possibility of
consulting and being represented by a lawyer. Consequently, and in the absence of any relevant
 PRISONERS, DETAINEES AND CONVICTS | 429

information from the State party, the Committee is of the view that the facts before it constitute
a violation of article 14, paragraph 1, of the Covenant.

7.3 Secondly, the author alleges that, subsequently, on 17 July 1997, the Supreme Court heard
his case in his absence and in the absence of his counsel. The Committee notes that the State
party has not challenged this allegation and has not provided any reason for this absence.
The Committee finds that the decision of 17 July 1997 does not mention that the author or his
counsel was present, but mentions the presence of a procurator. Moreover it is uncontested
that the author had no legal representation in the early stages of the investigations. Bearing
in mind the facts before it, and in the absence of any relevant observation by the State party,
the Committee considers that due weight must be given to the author’s allegations. The
Committee recalls its jurisprudence that legal representation must be available at all stages
of criminal proceedings, particularly in cases in which the accused incurs capital punishment.
Consequently, the Committee is of the view that the facts before it disclose a violation of article
14, paragraph 1, as well as a separate violation of article 14, paragraph 3 (d), of the Covenant.

Question
To what extent is such an inference acceptable? Are there circumstances in which some charges/complaints may
not be resolvable by recourse to a court? What role is there for alternative forms of dispute resolution?

Related to this is the vexed issue of legal aid as one of the main limitations on court access in prac-
tice may be the lack of funds to employ legal expertise. As is noted earlier, legal counsel is required
for determination of criminal charges, most importantly when liberty is threatened. Those facing
serious charges should have legal assistance provided free of charge, if their circumstances pre-
vent an adequate defence being provided. Note the preceding comments of the Committee with
respect to what constitutes appropriate, unbiased, legal assistance.
A related issue is the additional vulnerability of non nationals who may be facing charges in a
foreign country and under a foreign legal system.

Report of the Working Group on Arbitrary Detention, A/HRC/39/45, 2 July 2018

57. The Working Group has found that non-national defendants and detainees are particularly
vulnerable to violations of the right to a fair trial. Access to the outside world, including through
consular visits, is an important component in securing a fair trial for detainees. In respect of
foreign nationals detained abroad, a meeting with a consular official may constitute the only
avenue for the detainee to be informed about how to exercise his or her fair trial rights, for
instance the right to habeas corpus12 and the right to effective access to a lawyer. Consular
assistance can thus contribute to a fair trial by providing detainees with effective access to a
lawyer, to ensure the provision of exculpatory evidence, for example that the detained national was
not involved in a particular criminal offence, to monitor trials through regular and comprehensive
trial attendance, and to ensure the provision of evidence on past good character when it comes to
sentencing. Consular assistance and/or diplomatic protection can thus have a significant impact
on an individual who is arbitrarily detained abroad, as such instruments can secure the release
and return of individuals, and prevent unfair trials and torture and ill-treatment.

12.6.2 Independent and fair judiciary

Fundamental to the concept of the rule of law and to the principle of separation of powers
between the three principal organs of the State (executive, judiciary and legislature) is the need
for a fair and independent judiciary. Independence is required from political, economic and other
external influences. Judges should remain influenced only by the application of the law to the facts
arising in the case before them.
430 | PRISONERS, DETAINEES AND CONVICTS

INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS 1966, Article 14(1)

Everyone shall be entitled to a fair and public hearing by a competent, independent and
impartial tribunal established by law.

Question
Note that Article 6(1) of the European Convention on Human Rights does not includea reference to the com-
petence of the judiciary. Article 8 of theAmerican Convention includes competence as a requirement whileArt-
icle 7 of the African Charter mentions only impartiality and competence.Consider whether competence is
implied by Article 6 of the European Convention, the oldest of all these instruments.

More detailed provisions can be found in the Statute of the International Criminal Court, which
though obviously restricted to the International Court in application, provides an indication of the
prevailing international standard.

STATUTE OF THE INTERNATIONAL CRIMINAL COURT 1998

Article 40

Independence of the judges

1 The judges shall be independent in the performance of their functions.
2 Judges shall not engage in any activity which is likely to interfere with their judicial
functions or to affect confidence in their independence.
3 Judges required to serve on a full-time basis at the seat of the Court shall not engage in
any other occupation of a professional nature.
4 Any question regarding the application of paragraphs 2 and 3 shall be decided by an
absolute majority of the judges. Where any such question concerns an individual judge,
that judge shall not take part in the decision.

Article 41

Excusing and disqualification of judges

1 The Presidency may, at the request of a judge, excuse that judge from the exercise of a
function under this Statute, in accordance with the Rules of Procedure and Evidence.
2. (a) A judge shall not participate in any case in which his or her impartiality might
reasonably be doubted on any ground. A judge shall be disqualified from a case in
accordance with this paragraph if, inter alia, that judge has previously been involved
in any capacity in that case before the Court or in a related criminal case at the
national level involving the person being investigated or prosecuted. A judge shall
also be disqualified on such other grounds as may be provided for in the Rules of
Procedure and Evidence.
(b) The Prosecutor or the person being investigated or prosecuted may request the
disqualification of a judge under this paragraph.
(c) Any question as to the disqualification of a judge shall be decided by an absolute
majority of the judges. The challenged judge shall be entitled to present his or her
comments on the matter, but shall not take part in the decision.

Similar provisions are made under Article 42 to guarantee the independence of the prosecutors in
the International Criminal Court.
Naturally judges may not judge a case in which they were previously involved as prosecutor
or investigator. This is particularly important with regard to appeal cases as, of course, a judge may
be a recent appointment to the bench.
 PRISONERS, DETAINEES AND CONVICTS | 431

Question
Look at the procedures in place in systems such as the European Court of Human Rights when a judge rapporteur
is appointed at the preliminary stages. Contrast this with the role of Advocates General in the European Court of
Justice. To what extent do such ‘devices’ contribute towards a fair trial?

Most States try to ensure safeguards for impartiality of judges, or at least a degree thereof. The prin-
ciples of bias are very well established, accountability through transparency of the judicial selection
process is useful in pre-empting complaints. Of course, the old adage is true – justice must not only be
done, but must be seen to be done. See the following comment and communication.

Human Rights Committee, General Comment 13 (1984)

5. The second sentence of article 14, paragraph I, provides that ‘everyone shall be entitled
to a fair and public hearing’. Paragraph 3 of the article elaborates on the requirements of a
‘fair hearing’ in regard to the determination of criminal charges. However, the requirements
of paragraph 3 are minimum guarantees, the observance of which is not always sufficient to
ensure the fairness of a hearing as required by paragraph 1.
6. The publicity of hearings is an important safeguard in the interest of the individual and
of society at large. At the same time article 14, paragraph 1, acknowledges that courts have
the power to exclude all or part of the public for reasons spelt out in that paragraph. It should
be noted that, apart from such exceptional circumstances, the Committee considers that a
hearing must be open to the public in general, including members of the press, and must not,
for instance, be limited only to a particular category of persons. It should be noted that, even in
cases in which the public is excluded from the trial, the judgement must, with certain strictly
defined exceptions, be made public.

Bahamonde v Equatorial Guinea, Communication 468/1991, Human Rights Committee,

UN Doc. CCPR/C/49/D/468/1991

9.4 The author has contended that despite several attempts to obtain judicial redress before the
courts of Equatorial Guinea, all of his démarches have been unsuccessful. This claim has been
refuted summarily by the State party, which argued that the author could have invoked specific
legislation before the courts, without however linking its argument to the circumstances of
the case. The Committee observes that the notion of equality before the courts and tribunals
encompasses the very access to the courts and that a situation in which an individual’s attempts
to seize the competent jurisdictions of his/her grievances are systematically frustrated runs
counter to the guarantees of article 14, paragraph 1. In this context, the Committee has also
noted the author’s contention that the State party’s president controls the judiciary in Equatorial
Guinea. The Committee considers that a situation where the functions and competences of the
judiciary and the executive are not clearly distinguishable or where the latter is able to control
or direct the former is incompatible with the notion of an independent and impartial tribunal
within the meaning of article 14, paragraph 1, of the Covenant.

Such a separation of powers is often a component of the rule of law. The guarantees as to indepen-
dence in the Statute of the International Court of Justice are:

STATUTE OF THE INTERNATIONAL COURT OF JUSTICE 1945

Article 14. Vacancies shall be filled by the same method as that laid down for the first election,
subject to the following provision: the Secretary-General shall, within one month of the
occurrence of the vacancy, proceed to issue the invitations provided for in Article 5, and the
date of the election shall be fixed by the Security Council.
432 | PRISONERS, DETAINEES AND CONVICTS

Article 15. A member of the Court elected to replace a member whose term of office has
not expired shall hold office for the remainder of his predecessor’s term.
Article 16. (1) No member of the Court may exercise any political or administrative
function, or engage in any other occupation of a professional nature.
(2) Any doubt on this point shall be settled by the decision of the Court.
Article 17. (1) No member of the Court may act as agent, counsel, or advocate in any case.
(2) No member may participate in the decision of any case in which he has previously
taken part as agent, counsel or advocate for one of the parties, or as a member of a national or
international court, or of a commission of enquiry, or in any other capacity.
(3) Any doubt on this point shall be settled by the decision of the Court.
Article 18. (1) No member of the Court can be dismissed unless, in the unanimous opinion
of the other members, he has ceased to fulfil the required conditions.
(2) Formal notification thereof shall be made to the Secretary-General by the Registrar.
(3) This notification makes the place vacant.
Article 19. The members of the Court, when engaged in the business of the Court, shall
enjoy diplomatic privileges and immunities.
Article 20. Every member of the Court shall, before taking up his duties, make a solemn
declaration in open court that he will exercise his powers impartially and conscientiously.

The United Nations Congress on the Prevention of Crime and the Treatment of Offenders adopted
a series of principles on the independence of the judiciary. These were subsequently endorsed by
the United Nations General Assembly and thus now form part of the body of ‘soft law’ in the area.
According to the preamble, the principles were ‘formulated to assist Member States in their task of
securing and promoting the independence of the judiciary. . . [and] principally with professional
judges in mind, but they apply equally, as appropriate, to lay judges, where they exist’.

Basic Principles on the Independence of the Judiciary, endorsed by General Assembly

Resolution 40/32 (1985) and 40/146 (1985) Independence of the Judiciary

1 The independence of the judiciary shall be guaranteed by the State and enshrined in
the Constitution or the law of the country. It is the duty of all governmental and other
institutions to respect and observe the independence of the judiciary.
2 The judiciary shall decide matters before them impartially, on the basis of facts and in
accordance with the law, without any restrictions, improper influences, inducements,
pressures, threats or interferences, direct or indirect, from any quarter or for any reason.
...
4 There shall not be any inappropriate or unwarranted interference with the judicial process,
nor shall judicial decisions by the courts be subject to revision. This principle is without
prejudice to judicial review or to mitigation or commutation by competent authorities of
sentences imposed by the judiciary, in accordance with the law.
...
6 The principle of the independence of the judiciary entitles and requires the judiciary to
ensure that judicial proceedings are conducted fairly and that the rights of the parties are
respected.
7 It is the duty of each Member State to provide adequate resources to enable the judiciary
to properly perform its functions.

Other matters addressed include conditions of service and tenure, and qualifications, selection and
training. The provision of adequate resources imposes a positive obligation on States and is a clear
example of a civil and political right the realisation of which entails financial outlay.
 PRISONERS, DETAINEES AND CONVICTS | 433

12.6.2.1 Judicial appointments

In some States judges are elected, while in others they are appointed through panels or by recom-
mendations to the legislature or executive.

Question
Choose any State; what safeguards apply to the appointment process toensure independence of the
judiciary?

12.6.2.2 Termination of judicial appointment

While obviously provisions on judicial selection and the conduct of the case are important to
demonstrating impartiality, so too is the need to ensure that the judiciary is not subjected to
external pressures stemming from the duration of their appointment and the conditions gov-
erning the termination of their service. Temporary judges who are subject to potential reap-
pointment are a potential problem, especially if the executive or legislature is involved in the
appointment process.
Consider the international guidelines on disciplining, suspending and removing judiciary.

Basic Principles on the Independence of the Judiciary, endorsed by General Assembly

Resolution 40/32 (1985) and 40/146 (1985) Discipline, Suspension
and Removal

17. A charge or complaint made against a judge in his/her judicial and professional capacity
shall be processed expeditiously and fairly under an appropriate procedure. The judge
shall have the right to a fair hearing. The examination of the matter at its initial stage shall
be kept confidential, unless otherwise requested by the judge.
18 Judges shall be subject to suspension or removal only for reasons of incapacity or
behaviour that renders them unfit to discharge their duties.
19 All disciplinary, suspension or removal proceedings shall be determined in accordance
with established standards of judicial conduct.
20 Decisions in disciplinary, suspension or removal proceedings should be subject to an
independent review. This principle may not apply to the decisions of the highest court and
those of the legislature in impeachment or similar proceedings.

Question
In what circumstances can judges be dismissed from the African Court on Human Rights (see the Protocol)?
Is this compliant with the international norms?

12.6.3 Trial in absentia

Generally, the accused should be present at the trial and thus in a position to ensure the conduct
of his or her defence. However, not all trials are conducted in person. This is not problematic at all
stages of proceedings as long as the principles of fairness and equality are complied with.

Mbenge v Republic of Congo, Communication 16/1977, Human Rights Committee,

UN Doc. CCPR/C/18/D/16/1977 (1983)

13. Daniel Monguya Mbenge, a Zairian citizen and former Governor of the province of Shaba,
who had left Zaire in 1974 and is at present living in Brussels, was twice sentenced to capital
punishment by Zairian tribunals. The first death sentence was pronounced against him by
judgement of 17 August 1977, in particular for his alleged involvement in the invasion of the
province of Shaba by the so-called Katangan gendarmes in March 1977. The second judgement
434 | PRISONERS, DETAINEES AND CONVICTS

is dated 16 March 1978. It pronounces the death sentence for ‘treason’ and ‘conspiracy’ without
providing facts to establish these charges. Daniel Monguya Mbenge learned about the trials
through the press. He had not been duly summoned at his residence in Belgium to appear
before the tribunals. An amnesty decree of 28 June 1978 (Act 78–023 of 29 December 1978)
covering offences ‘against the external or internal security of the State or any other offence
against the laws and regulations of the Republic of Zaire’, committed by Zairians having sought
refuge abroad, was restricted to persons returning to Zaire before 30 June 1979.

14.1 In the first place, the Human Rights Committee has to examine whether the proceedings on
the basis of which the author of the communication has been twice sentenced to death disclose
any breach of rights protected under the International Covenant on Civil and Political Rights.
According to article 14 (3) of the Covenant, everyone is entitled to be tried in his presence and
to defend himself in person or through legal assistance. This provision and other requirements
of due process enshrined in article 14 cannot be construed as invariably rendering proceedings
in absentia inadmissible irrespective of the reasons for the accused person’s absence. Indeed,
proceedings in absentia are in some circumstances (for instance, when the accused person,
although informed of the proceedings sufficiently in advance, declines to exercise his right to
be present) permissible in the interest of the proper administration of justice. Nevertheless,
the effective exercise of the rights under article 14 presupposes that the necessary steps
should be taken to inform the accused beforehand about the proceedings against him (art.
14 (3) (a)). Judgement in absentia requires that, notwithstanding the absence of the accused,
all due notification has been made to inform him of the date and place of his trial and to
request his attendance. Otherwise, the accused, in particular, is not given adequate time and
facilities for the preparation of his defence (art. 14 (3) (b)), cannot defend himself through legal
assistance of his own choosing (art. 14 (3) (d)) nor does he have the opportunity to examine,
or have examined, the witnesses against him and to obtain the attendance and examination of
witnesses on his behalf (art. 14 (3) (e)).

14.2 The Committee acknowledges that there must be certain limits to the efforts which can
duly be expected of the responsible authorities of establishing contact with the accused. With
regard to the present communication, however, those limits need not be specified. The State
party has not challenged the author’s contention that he had known of the trials only through
press reports after they had taken place. It is true that both judgements state explicitly that
summonses to appear had been issued by the clerk of the court. However, no indication is
given of any steps actually taken by the State party in order to transmit the summonses to
the author, whose address in Belgium is correctly reproduced in the judgement of 17 August
1977 and which was therefore known to the judicial authorities. The fact that, according to the
judgement in the second trial of March 1978, the summons had been issued only three days
before the beginning of the hearings before the court, confirms the Committee in its conclusion
that the State party failed to make sufficient efforts with a view to informing the author about
the impending court proceedings, thus enabling him to prepare his defence. In the view of the
Committee, therefore, the State party has not respected D. Monguya Mbenge’s rights under
article 14 (3) (a), (b), (d) and (e) of the Covenant.

As this opinion demonstrates, the fairness requirements mean that accused persons are given rea-
sonable notice of proceedings and thus adequate time to prepare their defence.

12.7 Detention after conviction

Generally, imprisonment is one of the appropriate sentences following conviction by a competent
court. However, note that not all offences justify imprisonment.
 PRISONERS, DETAINEES AND CONVICTS | 435

INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS 1966

Article 12

No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation.

AMERICAN CONVENTION ON HUMAN RIGHTS 1969, Article 7(7)

7. No one shall be detained for debt. This principle shall not limit the orders of a competent
judicial authority issued for nonfulfillment of duties of support.

Article 1, Protocol 4 to the European Convention on Human Rights makes similar provision.
Those who are sentenced to detention following trial should be housed separately from
those detained pending trial. Although those incarcerated for violations of national (and indeed
international) law may forfeit some civic rights, they are still entitled to the protection accorded
by inalienable human rights.

Basic Principles for the Treatment of Prisoners, General Assembly

Resolution 45/121 (1990)

1 All prisoners shall be treated with the respect due to their inherent dignity and value as
human beings
...
5 Except for those limitations that are demonstrably necessitated by the fact of incarceration,
all prisoners shall retain the human rights and fundamental freedoms set out in the
Universal Declaration of Human Rights, and, where the State concerned is a party, the
International Covenant on Economic, Social and Cultural Rights, and the International
Covenant on Civil and Political Rights and the Optional Protocol thereto, as well as such
other rights as are set out in other United Nations covenants.
6 All prisoners shall have the right to take part in cultural activities and education aimed at
the full development of the human personality.
7 Efforts addressed to the abolition of solitary confinement as a punishment, or to the
restriction of its use, should be undertaken and encouraged.
8 Conditions shall be created enabling prisoners to undertake meaningful remunerated
employment which will facilitate their reintegration into the country’s labour market
and permit them to contribute to their own financial support and to that of their
families.
9 Prisoners shall have access to the health services available in the country without
discrimination on the grounds of their legal situation.
10 With the participation and help of the community and social institutions, and with due regard
to the interests of victims, favourable conditions shall be created for the reintegration of the
ex-prisoner into society under the best possible conditions.

Question
Compare and contrast the rights of prisoners, as expressed in this resolution of the General Assembly, with
the general rights and freedom expressed in the principal human rights instruments (the Bill of Rights, for
example).

The following guidelines should inform all detentions. When reading this extract note carefully
the content of the minimum rules and consider how realistic they are for States in the developing
world and poorer countries.
436 | PRISONERS, DETAINEES AND CONVICTS

Standard Minimum Rules for the Treatment of Prisoners Adopted by the First United
Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at
Geneva in 1955, and approved by the Economic and Social Council by its Resolutions
663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977

Basic principle

6. (1) The following rules shall be applied impartially. There shall be no discrimination on
grounds of race, colour, sex, language, religion, political or other opinion, national or
social origin, property, birth or other status.
(2) On the other hand, it is necessary to respect the religious beliefs and moral precepts
of the group to which a prisoner belongs.

Register

7. (1) In every place where persons are imprisoned there shall be kept a bound registration
book with numbered pages in which shall be entered in respect of each prisoner
received:

(a) Information concerning his identity;

(b) The reasons for his commitment and the authority therefor;
(c) The day and hour of his admission and release.

(2) No person shall be received in an institution without a valid commitment order of

which the details shall have been previously entered in the register.

Separation of categories

8 The different categories of prisoners shall be kept in separate institutions or parts of

institutions taking account of their sex, age, criminal record, the legal reason for their
detention and the necessities of their treatment. Thus,

(a) Men and women shall so far as possible be detained in separate institutions; in an
institution which receives both men and women the whole of the premises allocated
to women shall be entirely separate;
(b) Untried prisoners shall be kept separate from convicted prisoners;
(c) Persons imprisoned for debt and other civil prisoners shall be kept separate from
persons imprisoned by reason of a criminal offence;
(d) Young prisoners shall be kept separate from adults.

Accommodation

9. (1) Where sleeping accommodation is in individual cells or rooms, each prisoner shall
occupy by night a cell or room by himself. If for special reasons, such as temporary
overcrowding, it becomes necessary for the central prison administration to make an
exception to this rule, it is not desirable to have two prisoners in a cell or room.
(2) Where dormitories are used, they shall be occupied by prisoners carefully selected
as being suitable to associate with one another in those conditions. There shall be
regular supervision by night, in keeping with the nature of the institution.
10 All accommodation provided for the use of prisoners and in particular all sleeping
accommodation shall meet all requirements of health, due regard being paid to climatic
conditions and particularly to cubic content of air, minimum floor space, lighting, heating
and ventilation.
12 In all places where prisoners are required to live or work,

(a) The windows shall be large enough to enable the prisoners to read or work by
natural light, and shall be so constructed that they can allow the entrance of fresh
air whether or not there is artificial ventilation;
 PRISONERS, DETAINEES AND CONVICTS | 437

(b) Artificial light shall be provided sufficient for the prisoners to read or work without
injury to eyesight.

12 The sanitary installations shall be adequate to enable every prisoner to comply with the
needs of nature when necessary and in a clean and decent manner.
13 Adequate bathing and shower installations shall be provided so that every prisoner may be
enabled and required to have a bath or shower, at a temperature suitable to the climate,
as frequently as necessary for general hygiene according to season and geographical
region, but at least once a week in a temperate climate.
14 All parts of an institution regularly used by prisoners shall be properly maintained and
kept scrupulously clean at all times.

Personal hygiene

15 Prisoners shall be required to keep their persons clean, and to this end they shall be
provided with water and with such toilet articles as are necessary for health and
cleanliness.
16 In order that prisoners may maintain a good appearance compatible with their self-
respect, facilities shall be provided for the proper care of the hair and beard, and men
shall be enabled to shave regularly.

Clothing and bedding

17. (1) Every prisoner who is not allowed to wear his own clothing shall be provided with an
outfit of clothing suitable for the climate and adequate to keep him in good health.
Such clothing shall in no manner be degrading or humiliating.
(2) All clothing shall be clean and kept in proper condition. Underclothing shall be
changed and washed as often as necessary for the maintenance of hygiene.
(3) In exceptional circumstances, whenever a prisoner is removed outside the institution
for an authorized purpose, he shall be allowed to wear his own clothing or other
inconspicuous clothing.
18 If prisoners are allowed to wear their own clothing, arrangements shall be made on their
admission to the institution to ensure that it shall be clean and fit for use.
19 Every prisoner shall, in accordance with local or national standards, be provided with a
separate bed, and with separate and sufficient bedding which shall be clean when issued,
kept in good order and changed often enough to ensure its cleanliness.

Food

20. (1) Every prisoner shall be provided by the administration at the usual hours with food
of nutritional value adequate for health and strength, of wholesome quality and well
prepared and served.
(2) Drinking water shall be available to every prisoner whenever he needs it.

Exercise and sport

21. (1) Every prisoner who is not employed in outdoor work shall have at least one hour of
suitable exercise in the open air daily if the weather permits.
(2) Young prisoners, and others of suitable age and physique, shall receive physical and
recreational training during the period of exercise. To this end space, installations
and equipment should be provided.

These rules place a considerable onus on the State and can prove expensive. Prison overcrowd-
ing is a perennial problem in many countries, thus the rules on single-cell occupancy and
carefully matched people for dormitories is not necessarily realistic. In rule 17 the concept
of degrading clothing is debatable – some detainees argue that any State-provided clothing is
438 | PRISONERS, DETAINEES AND CONVICTS

degrading as it indicates the ‘prisoner’s’ status. However, the simple fact of detention can be
degrading, indeed that is one reason it is selected as an appropriate penalty in criminal law in
many States. Paragraph 45 of the guidelines, however, expects proper safeguards to be adopted
to protect prisoners from ‘insult, curiosity and publicity in any form’ when being moved
between institutions.

Question
To what extent are these rules complied with in your country? Do you agree they represent a minimum stan-
dard or are they too ‘generous’?

The Minimum Standards also make provisions (at paras 22 et seq.) for medical services during
detention. Medical and dental services should be provided to all prisoners, as required. These
guidelines include treatment of sick prisoners, psychiatric assessment and treatment as necessary as
well as the mentoring of the physical and mental health of all detainees.
For pregnant women, the regulations (at para 23) indicate the desirability of children
being born outside the prison (in a hospital) and, in any event, a birth in prison should not be
recorded as such on the birth certificate to reduce any stigma which may attach to the child.
Moreover the need for women prisoners to be supervised by women wardens is also noted
(para 53).
Disciplinary matters are contentious within detention centres. Obviously prisons must retain
law and order equally obviously, there can be no excessive use of force in achieving that aim. The
concept of discipline is often vexed. Physical restraint is acceptable in limited situations. Any com-
plaints of maltreatment must be fully investigated. Prisoners live, work and exist in a vulnerable
status and thus all mistreatment must be redressed to ensure the highest standards of care are main-
tained. Prisoners are also, as the following extracts demonstrate, permitted contact with others and
essential elements of cultural development during incarceration.

Standard Minimum Rules for the Treatment of Prisoners Adopted by the

First United Nations Congress on the Prevention of Crime and the Treatment
of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by
its Resolutions 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977

Discipline and punishment

27. Discipline and order shall be maintained with firmness, but with no more restriction than is
necessary for safe custody and well-ordered community life.
. . .
33. Instruments of restraint, such as handcuffs, chains, irons and strait-jackets, shall
never be applied as a punishment. Furthermore, chains or irons shall not be used as restraints.
Other instruments of restraint shall not be used except in the following circumstances:

(a) As a precaution against escape during a transfer, provided that they shall be removed
when the prisoner appears before a judicial or administrative authority;
(b) On medical grounds by direction of the medical officer;
(c) By order of the director, if other methods of control fail, in order to prevent a prisoner from
injuring himself or others or from damaging property; in such instances the director shall
at once consult the medical officer and report to the higher administrative authority.

34. The patterns and manner of use of instruments of restraint shall be decided by the
central prison administration. Such instruments must not be applied for any longer time than
is strictly necessary.
 PRISONERS, DETAINEES AND CONVICTS | 439

Question
To what extent do these guidelines ensure the prohibition on torture and related treatment is not engaged in
prisons?

Socialisation is identified as one successful policy in minimising unrest and disturbances within
prisons. Prisoners are thus entitled to maintain contact with the outside world – with family and
friends. The rules indicate the desirability of prisoners maintaining such links during incarceration,
whether or not the length of their sentence indicates a likelihood of returning to civilian life. Pris-
oners are also expected to have access to books (para 40). Crucially, there are also provisions (para
41) on maintaining religious practices. Prisoners are thus explicitly permitted access to religious
books of his or her chosen denomination.

Standard Minimum Rules for the Treatment of Prisoners Adopted by the First United
Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at
Geneva in 1955, and approved by the Economic and Social Council by its Resolutions
663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977

Contact with the outside world

37 Prisoners shall be allowed under necessary supervision to communicate with their family
and reputable friends at regular intervals, both by correspondence and by receiving
visits.
38. (1) Prisoners who are foreign nationals shall be allowed reasonable facilities to
communicate with the diplomatic and consular representatives of the State to which
they belong.
(2) Prisoners who are nationals of States without diplomatic or consular representation
in the country and refugees or stateless persons shall be allowed similar facilities
to communicate with the diplomatic representative of the State which takes charge
of their interests or any national or international authority whose task it is to protect
such persons.
39 Prisoners shall be kept informed regularly of the more important items of news by the
reading of newspapers, periodicals or special institutional publications, by hearing
wireless transmissions, by lectures or by any similar means as authorized or controlled
by the administration.
...

Notification of death, illness, transfer, etc.

44. (1) Upon the death or serious illness of, or serious injury to a prisoner, or his removal to
an institution for the treatment of mental affections, the director shall at once inform
the spouse, if the prisoner is married, or the nearest relative and shall in any event
inform any other person previously designated by the prisoner.
(2) A prisoner shall be informed at once of the death or serious illness of any near relative.
In case of the critical illness of a near relative, the prisoner should be authorized,
whenever circumstances allow, to go to his bedside either under escort or alone.
(3) Every prisoner shall have the right to inform at once his family of his imprisonment
or his transfer to another institution.

This latter provision is also reflected in the International Convention on the Protection of All
Persons from Enforced Disappearances, which is extracted earlier in this chapter. Registration and
record-keeping is of vital importance in guaranteeing compliance with the convention and the
minimum rules.
440 | PRISONERS, DETAINEES AND CONVICTS

Standard Minimum Rules for the Treatment of Prisoners Adopted by the First United Nations
Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955,
and approved by the Economic and Social Council by its Resolutions 663 C (XXIV) of
31 July 1957 and 2076 (LXII) of 13 May 1977

Inspection

55. There shall be a regular inspection of penal institutions and services by qualified and
experienced inspectors appointed by a competent authority. Their task shall be in particular
to ensure that these institutions are administered in accordance with existing laws and
regulations and with a view to bringing about the objectives of penal and correctional services.

Thus the standard minimum rules also provide for inspections. Inspections of penal institutions
should be undertaken at a national level. As noted in Chapters 4 and 5, both the UN and the
Council of Europe operate inspection systems for penal institutions. These are optional under the
respective conventions against torture. Nevertheless they are an important aspect of monitoring
prevailing standards of detention. Inspections by international bodies are pre-notified to an extent,
for visa reasons; those of national inspectorates could and should be random and ‘on the spot’.
Inspections should ensure the required standards of human rights are met, and prisoners and other
detainees are treated appropriately. Inspectors can also work with facilities to improve detention
conditions.

12.7.1 Prisoners right to vote

A contentious issue in recent times has been political rights of prisoners, in particular whether
prisoners should have the right to vote. The right to vote is enshrined in international human
rights commitments.

International Covenant on Civil and Political Rights

Article 25

Every citizen shall have the right and the opportunity, without any of the distinctions mentioned
in article 2 and without unreasonable restrictions:

(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;
(b) To vote and to be elected at genuine periodic elections which shall be by universal and
equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the
will of the electors;
(c) To have access, on general terms of equality, to public service in his country.

EU Charter of Fundamental Rights, 2009

Article 40

Right to vote and to stand as a candidate at municipal elections

Every citizen of the Union has the right to vote and to stand as a candidate at municipal
elections in the Member State in which he or she resides under the same conditions as
nationals of that State.

See also Article 3, Protocol 1 to the European Convention on Human Rights.

There are, however, arguments that prisoners should not be entitled to vote, having forfeited
that political right upon committing the offence for which they are detained. Of course, specific
 PRISONERS, DETAINEES AND CONVICTS | 441

issues arise with respect to those in pre-trial detention as the presumption of innocence means that
they are presumed innocent albeit held in detention. Yet in many States, they are precluded from
voting if post-conviction detainees are also precluded from the electoral roll.

12.7.1.1 Case study: prisoner voting in the UK

Within the UK, the law is clear. Those convicted and detained cannot vote.

Representation of the People Act 1983

3 Disfranchisement of offenders in prison etc.

(1) A convicted person during the time that he is detained in a penal institution in
pursuance of his sentence or unlawfully at large when he would otherwise be so
detained is legally incapable of voting at any parliamentary or local government
election.
(2) For this purpose –

(a) ‘convicted person’ means any person found guilty of an offence (whether under
the law of the United Kingdom or not), including a person found guilty by a
court of a service offence within the meaning of the Armed Forces Act 2006, but
not including a person dealt with by committal or other summary process for
contempt of court; and
(b) ‘penal institution’ means an institution to which the M1Prison Act 1952, the
Prisons (Scotland) Act 1952 or the Prison Act (Northern Ireland) 1953 applies;
and
(c) a person detained for default in complying with his sentence shall not be
treated as detained in pursuance of the sentence, whether or not the sentence
provided for detention in the event of default, but a person detained by virtue
of a conditional pardon in respect of an offence shall be treated as detained in
pursuance of his sentence for the offence.

(3) It is immaterial for the purposes of this section whether a conviction or sentence was
before or after the passing of this Act.

Hirst (No. 2) v. the United Kingdom 6 October 2005 (Grand Chamber)

1. Principal facts

John Hirst, is a British national, aged 54, serving a sentence of life imprisonment in HM
Prison Rye Hill, Warwickshire (United Kingdom). On 25 May 2004, he was released from prison
on licence. On 12 February 1980 Mr Hirst pleaded guilty to manslaughter on the ground of
diminished responsibility. He was sentenced to a term of discretionary life imprisonment.
His tariff (the part of his sentence relating to retribution and deterrence) expired on 25 June
1994. However, he remained in detention, as the Parole Board considered that he continued to
present a risk of serious harm to the public.
As a convicted prisoner, Mr Hirst is barred by section 3 of the Representation of the People
Act 1983 from voting in parliamentary or local elections. According to the United Kingdom
Government’s figures, some 48,000 other prisoners are similarly affected.
Mr Hirst issued proceedings in the High Court, under section 4 of the Human Rights Act
1998, seeking a declaration that section 3 was incompatible with the European Convention on
Human Rights. On 21 and 22 March 2001 his application was heard before the Divisional Court;
but his claim and subsequent appeal were both rejected.
442 | PRISONERS, DETAINEES AND CONVICTS

Decision of the Court

Article 3 of Protocol No. 1
General Principles

The Court stressed that the rights guaranteed under Article 3 of Protocol No. 1 were crucial
to establishing and maintaining the foundations of an effective and meaningful democracy
governed by the rule of law and also that the right to vote was a right and not a privilege.
Nonetheless, the rights bestowed by Article 3 of Protocol No. 1 were not absolute. There
was room for implied limitations and States which had ratified the European Convention on
Human Rights (Contracting States) had to be given a margin of appreciation in that sphere.
There were numerous ways of organising and running electoral systems and a wealth
of differences, among other things, in historical development, cultural diversity and political
thought within Europe which it was for each Contracting State to mould into its own democratic
vision.
However, any limitations on the right to vote had to be imposed in pursuit of a legitimate
aim and be proportionate. Any such conditions had not to thwart the free expression of the
people in the choice of the legislature – in other words, they must reflect, or not run counter
to, the concern to maintain the integrity and effectiveness of an electoral procedure aimed at
identifying the will of the people through universal suffrage. Any departure from the principle
of universal suffrage risked undermining the democratic validity of the legislature elected and
its laws. Exclusion of any groups or categories of the general population had therefore to be
reconcilable with the underlying purposes of Article 3 of Protocol No. 1
Concerning prisoners in particular, the Court emphasized that they generally continued
to enjoy all the fundamental rights and freedoms guaranteed under the Convention, except for
the right to liberty, where lawfully imposed detention expressly fell within the scope of Article
5 (right to liberty and security). There was, therefore, no question that prisoners forfeit their
Convention rights merely because of their status as detainees following conviction. Nor was
there any place under the Convention system, where tolerance and broadmindedness were
the acknowledged hallmarks of democratic society, for automatic disenfranchisement based
purely on what might offend public opinion.
That standard of tolerance did not prevent a democratic society from taking steps to protect
itself against activities intended to destroy the rights or freedoms set out in the Convention.
Article 3 of Protocol No. 1, which enshrined the individual’s capacity to influence the
composition of the law-making power, did not therefore exclude that restrictions on electoral
rights be imposed on an individual who had, for example, seriously abused a public position or
whose conduct threatened to undermine the rule of law or democratic foundations.
However, the severe measure of disenfranchisement was not to be undertaken lightly
and the principle of proportionality required a discernible and sufficient link between the
sanction and the conduct and circumstances of the individual concerned. As in other contexts,
an independent court, applying an adversarial procedure, provided a strong safeguard against
arbitrariness.

Legitimate Aim

The Court recalled that Article 3 of Protocol No. 1 did not specify or limit the aims which a
measure must pursue. The United Kingdom Government had submitted that the measure
aimed to prevent crime, by sanctioning the conduct of convicted prisoners, and to enhance
civic responsibility and respect for the rule of law. The Court accepted that section 3 might be
regarded as pursuing those aims.

Proportionality

The Government submitted that the ban was in fact restricted in its application as it affected
only around 48,000 prisoners, those convicted of crimes serious enough to warrant a custodial
 PRISONERS, DETAINEES AND CONVICTS | 443

sentence and not including those detained on remand, for contempt of court or default in
payment of fines.
However, the Court considered that 48,000 prisoners was a significant figure and that it
could not be claimed that the bar was negligible in its effects. It also included a wide range of
offenders and sentences, from one day to life and from relatively minor offences to offences
of the utmost gravity. Also, in sentencing, the criminal courts in England and Wales made no
reference to disenfranchisement and it was not apparent that there was any direct link between
the facts of any individual case and the removal of the right to vote.
As to the weight to be attached to the position adopted by the legislature and judiciary in the
United Kingdom, there was no evidence that Parliament had ever sought to weigh the competing
interests or to assess the proportionality of a blanket ban on the right of a convicted prisoner to
vote. It could not be said that there was any substantive debate by members of the legislature on
the continued justification, in the light of modern day penal policy and of current human rights
standards, for maintaining such a general restriction on the right of prisoners to vote.
It was also evident that the nature of the restrictions, if any, to be imposed on the right
of a convicted prisoner to vote was in general seen as a matter for Parliament and not for
the national courts. The domestic courts did not therefore undertake any assessment of the
proportionality of the measure itself.
Regarding the existence or not of any consensus among Contracting States, the Court noted
that, although there was some disagreement about the state of the law in certain States, it was
undisputed that the United Kingdom was not alone among Convention countries in depriving all
convicted prisoners of the right to vote. It might also be said that the law in the United Kingdom
was less far-reaching than in certain other States. Not only were exceptions made for those
committed to prison for contempt of court or for default in paying fines, but unlike the position
in some countries, the legal incapacity to vote was removed as soon as the person ceased to
be detained. However the fact remained that it was a minority of Contracting States in which
a blanket restriction on the right of convicted prisoners to vote was imposed or in which there
was no provision allowing prisoners to vote. Even on the Government’s own figures, the number
of such States did not exceed 13. Moreover, and even if no common European approach to the
problem could be discerned, that could not of itself be determinative of the issue.
Therefore, while the Court reiterated that the margin of appreciation was wide, it was
not all embracing. Further, although the situation was somewhat improved by the Act of 2000
which for the first time granted the vote to persons detained on remand, section 3 of the 1983
Act remained a blunt instrument. It stripped of their Convention right to vote a significant
category of people and it did so in a way which was indiscriminate. It applied automatically
to convicted prisoners in prison, irrespective of the length of their sentence and irrespective
of the nature or gravity of their offence and their individual circumstances. Such a general,
automatic and indiscriminate restriction on a vitally important Convention right had to be seen
as falling outside any acceptable margin of appreciation, however wide that margin might be,
and as being incompatible with Article 3 of Protocol No. 1. The Court therefore held, by 12 votes
to five, that there has been a violation of Article 3 of Protocol No. 1.
Considering that the Contracting States had adopted a number of different ways of
addressing the question of the right of convicted prisoners to vote, the Court left the United
Kingdom legislature to decide on the choice of means for securing the rights guaranteed by
Article 3 of Protocol No. 1.

12.8 Juveniles in detention and court

While human rights are indeed universal, careful consideration must be given to the rights of vul-
nerable people subjected to incarceration and brought before the judicial process. A body of rules
has emerged on juveniles and the protection of those suffering from mental health complaints.
444 | PRISONERS, DETAINEES AND CONVICTS

With respect to children, the first point to note is that not all juveniles fall within the criminal
justice system. A minimum age of criminal responsibility is usually specified. This should reflect
the age at which a child is capable of distinguishing right from wrong and thus understanding the
consequences of his or her actions and taking responsibility for them. However, note the text of
the United Nations Convention on the Rights of the Child 1989.

CONVENTION ON THE RIGHTS OF THE CHILD 1989, Article 40

1 States Parties recognize the right of every child alleged as, accused of, or recognized as
having infringed the penal law to be treated in a manner consistent with the promotion of
the child’s sense of dignity and worth, which reinforces the child’s respect for the human
rights and fundamental freedoms of others and which takes into account the child’s age
and the desirability of promoting the child’s reintegration and the child’s assuming a
constructive role in society.
2 To this end, and having regard to the relevant provisions of international instruments,
States Parties shall, in particular, ensure that:

(a) No child shall be alleged as, be accused of, or recognized as having infringed the
penal law by reason of acts or omissions that were not prohibited by national or
international law at the time they were committed;
...
3 States Parties shall seek to promote the establishment of laws, procedures, authorities
and institutions specifically applicable to children alleged as, accused of, or recognized as
having infringed the penal law, and, in particular:

(a) The establishment of a minimum age below which children shall be presumed not to
have the capacity to infringe the penal law;
(b) Whenever appropriate and desirable, measures for dealing with such children
without resorting to judicial proceedings, providing that human rights and legal
safeguards are fully respected.

4 A variety of dispositions, such as care, guidance and supervision orders; counselling;

probation; foster care; education and vocational training programmes and other
alternatives to institutional care shall be available to ensure that children are dealt with in
a manner appropriate to their well-being and proportionate both to their circumstances
and the offence.

Question
Why is no minimum age specified in the Convention? Research the minimum ages which apply in different
countries – is there any consistency? Should there be?

The following extract is taken from the General Principles contained in the Beijing rules.

United Nations Standard Minimum Rules for the Administration of Juvenile

Justice (Beijing rules)

4.1 In those legal systems recognizing the concept of the age of criminal responsibility for
juveniles, the beginning of that age shall not be fixed at too low an age level, bearing in mind
the facts of emotional, mental and intellectual maturity.
5.1 The juvenile justice system shall emphasize the well-being of the juvenile and shall
ensure that any reaction to juvenile offenders shall always be in proportion to the circumstances
of both the offenders and the offence.
6.1 In view of the varying special needs of juveniles as well as the variety of measures
available, appropriate scope for discretion shall be allowed at all stages of proceedings and
 PRISONERS, DETAINEES AND CONVICTS | 445

at the different levels of juvenile justice administration, including investigation, prosecution,

adjudication and the follow-up of dispositions.
6.2 Efforts shall be made, however, to ensure sufficient accountability at all stages and
levels in the exercise of any such discretion.
6.3 Those who exercise discretion shall be specially qualified or trained to exercise it
judiciously and in accordance with their functions and mandates.
. . .
8.1 The juvenile’s right to privacy shall be respected at all stages in order to avoid harm
being caused to her or him by undue publicity or by the process of labelling.
8.2 In principle, no information that may lead to the identification of a juvenile offender
shall be published.

The following guidelines seek to ensure the full implementation of the United Nations Conven-
tion on the Rights of the Child.

Guidelines for Action on Children in the Criminal Justice System Recommended

by Economic and Social Council Resolution 1997/30 of 21 July 1997

13. Notwithstanding the age of criminal responsibility, civil majority and the age of consent as
defined by national legislation, States should ensure that children benefit from all their rights,
as guaranteed to them by international law, specifically in this context those set forth in articles
3, 37 and 40 of the Convention.
14. Particular attention should be given to the following points:

(a) There should be a comprehensive child-centred juvenile justice process;

(b) Independent expert or other types of panels should review existing and proposed juvenile
justice laws and their impact on children;
(c) No child who is under the legal age of criminal responsibility should be subject to criminal
charges;
(d) States should establish juvenile courts with primary jurisdiction over juveniles who
commit criminal acts and special procedures should be designed to take into account
the specific needs of children. As an alternative, regular courts should incorporate such
procedures, as appropriate. Wherever necessary, national legislative and other measures
should be considered to accord all the rights of and protection for the child, where the
child is brought before a court other than a juvenile court, in accordance with articles 3,
37 and 40 of the Convention.

15. A review of existing procedures should be undertaken and, where possible, diversion
or other alternative initiatives to the classical criminal justice systems should be developed
to avoid recourse to the criminal justice systems for young persons accused of an offence.
Appropriate steps should be taken to make available throughout the State a broad range of
alternative and educative measures at the pre-arrest, pre-trial, trial and post-trial stages, in
order to prevent recidivism and promote the social rehabilitation of child offenders. Whenever
appropriate, mechanisms for the informal resolution of disputes in cases involving a child
offender should be utilized, including mediation and restorative justice practices, particularly
processes involving victims. In the various measures to be adopted, the family should be
involved, to the extent that it operates in favour of the good of the child offender. States should
ensure that alternative measures comply with the Convention, the United Nations standards
and norms in juvenile justice, as well as other existing standards and norms in crime prevention
and criminal justice, such as the United Nations Standard Minimum Rules for Non-custodial
Measures (the Tokyo Rules), with special regard to ensuring respect for due process rules in
applying such measures and for the principle of minimum intervention.
446 | PRISONERS, DETAINEES AND CONVICTS

It is clear that juveniles should be treated differently to adults. Their youth means that special con-
sideration is required at every stage: arrest, questioning, pre-trial detention, trial and punishment/
detention. For many States, this is an expensive process, not least as children are rarely charged
with the most serious of crimes. Appropriate training is also required for those involved with
young people. Provision for juvenile justice, with an emphasis on preventing recidivism, is com-
mon for more minor offences. The real challenge lies with serious offences.

12.8.1 Case study: ‘child killers’

Children are relatively rarely charged with murder. However, children are charged with other
serious offences and, as the age of criminal responsibility is raised and juvenile courts instituted
for dealing with children under 18 years, the problem of serious and indeed serial child offenders
develops. Care must be taken to ensure that the entire trial process is understandable by the child,
having regard to his or her age, maturity and, of course, the seriousness of the criminal charge.
One of the most notorious cases of children convicted of murder arose in England. The
applicants (Thomson and Venables) were convicted of killing a two-year-old boy, James Bulger,
whom they had abducted from a shopping centre in England. They were just over the age set for
criminal responsibility in England (ten years). There was extensive media coverage of the event
and the trial within the United Kingdom. The names of the two boys were released but, for the
purpose of the complaint before the European Court of Human Rights (following), their names
were removed from all proceedings to respect their anonymity due to their youth (subsequent
national law cases address the issue of releasing their new names, addresses and pictures following
their release from detention).

T & V v United Kingdom, European Court of Human Rights, Applications 24724/94

and 24888/94

27. Pursuant to section 50 of the Children and Young Persons Act 1933 as amended by
section 16(1) of the Children and Young Persons Act 1963 (‘the 1933 Act’), the age of criminal
responsibility in England and Wales is ten years, below which no child can be found guilty of a
criminal offence. The age of ten was endorsed by the Home Affairs Select Committee (composed
of Members of Parliament) in October 1993 (Juvenile Offenders, Sixth Report of the Session
1992–93, Her Majesty’s Stationery Office). At the time of the applicant’s trial, a child between
the ages of ten and fourteen was subject to a presumption that he did not know that what he
was doing was wrong (doli incapax). This presumption had to be rebutted by the prosecution
proving beyond reasonable doubt that, at the time of the offence, the child knew that the act was
wrong as distinct from merely naughty or childish mischief (C. (a minor) v. the Director of Public
Prosecutions [1996] Appeal Cases 1). The doli incapax presumption has since been abolished
with effect from 30 September 1998 (section 34 of the Crime and Disorder Act 1998).

. . .

48. The age of criminal responsibility is seven in Cyprus, Ireland, Switzerland and Liechtenstein;
eight in Scotland; thirteen in France; fourteen in Germany, Austria, Italy and many Eastern
European countries; fifteen in the Scandinavian countries; sixteen in Portugal, Poland and
Andorra; and eighteen in Spain, Belgium and Luxembourg.

. . .

82. The Commission expressed the view that where a child was faced with a criminal charge
and the domestic system required a fact-finding procedure with a view to establishing guilt, it
was essential that the child’s age, level of maturity and intellectual and emotional capacities be
taken into account in the procedures followed. It considered that the public trial process in an
 PRISONERS, DETAINEES AND CONVICTS | 447

adult court with attendant publicity must be regarded in the case of an eleven-year-old child as
a severely intimidating procedure and concluded that, having regard to the applicant’s age, the
application of the full rigours of an adult, public trial deprived him of the opportunity to participate
effectively in the determination of the criminal charges against him, in breach of Article 6 § 1.

83. The Court notes that Article 6, read as a whole, guarantees the right of an accused to
participate effectively in his criminal trial. It has not until the present time been called upon
to consider how this Article 6 § 1 guarantee applies to criminal proceedings against children,
and in particular whether procedures which are generally considered to safeguard the rights of
adults on trial, such as publicity, should be abrogated in respect of children in order to promote
their understanding and participation (but see the Nortier v. the Netherlands judgment of
24 August 1993, Series A no. 267, and particularly the separate opinions thereto).

84. The Court recalls its above findings that there is not at this stage any clear common
standard amongst the member States of the Council of Europe as to the minimum age of
criminal responsibility and that the attribution of criminal responsibility to the applicant does
not in itself give rise to a breach of Article 3 of the Convention. Likewise, it cannot be said that
the trial on criminal charges of a child, even one as young as eleven, as such violates the fair
trial guarantee under Article 6 § 1. The Court does, however, agree with the Commission that
it is essential that a child charged with an offence is dealt with in a manner which takes full
account of his age, level of maturity and intellectual and emotional capacities, and that steps
are taken to promote his ability to understand and participate in the proceedings.

85. It follows that, in respect of a young child charged with a grave offence attracting high levels
of media and public interest, it would be necessary to conduct the hearing in such a way as to
reduce as far as possible his or her feelings of intimidation and inhibition. In this connection it is
noteworthy that in England and Wales children charged with less serious crimes are dealt with
in special Youth Courts, from which the general public is excluded and in relation to which there
are imposed automatic reporting restrictions on the media (see paragraphs 28 and 29 above).
Moreover, the Court has already referred to the international tendency towards the protection
of the privacy of child defendants. It has considered carefully the Government’s argument that
public trials serve the general interest in the open administration of justice, and observes that,
where appropriate in view of the age and other characteristics of the child and the circumstances
surrounding the criminal proceedings, this general interest could be satisfied by a modified
procedure providing for selected attendance rights and judicious reporting.

86. The Court notes that the applicant’s trial took place over three weeks in public in the Crown
Court. Special measures were taken in view of the applicant’s young age and to promote his
understanding of the proceedings: for example, he had the trial procedure explained to him and
was taken to see the courtroom in advance, and the hearing times were shortened so as not to
tire the defendants excessively. Nonetheless, the formality and ritual of the Crown Court must
at times have seemed incomprehensible and intimidating for a child of eleven, and there is
evidence that certain of the modifications to the courtroom, in particular the raised dock which
was designed to enable the defendants to see what was going on, had the effect of increasing
the applicant’s sense of discomfort during the trial, since he felt exposed to the scrutiny of the
press and public. The trial generated extremely high levels of press and public interest, both
inside and outside the courtroom, to the extent that the judge in his summing-up referred to
the problems caused to witnesses by the blaze of publicity and asked the jury to take this into
account when assessing their evidence.

87. As previously mentioned, there is limited psychiatric evidence in relation to this applicant.
However, it is noteworthy that Dr Vizard found in her report of 5 November 1993 that the post-
traumatic stress disorder suffered by the applicant, combined with the lack of any therapeutic
work since the offence, had limited his ability to instruct his lawyers and testify adequately in his
448 | PRISONERS, DETAINEES AND CONVICTS

own defence. Moreover, the applicant in his memorial states that due to the conditions in which
he was put on trial, he was unable to follow the trial or take decisions in his own best interests.

88. In such circumstances the Court does not consider that it was sufficient for the purposes of Article
6 § 1 that the applicant was represented by skilled and experienced lawyers. This case is different
from that of Stanford, where the Court found no violation arising from the fact that the accused could
not hear some of the evidence given at trial, in view of the fact that his counsel, who could hear all
that was said and was able to take his client’s instructions at all times, chose for tactical reasons
not to request that the accused be seated closer to the witnesses. Here, although the applicant’s
legal representatives were seated, as the Government put it, ‘within whispering distance’, it is highly
unlikely that the applicant would have felt sufficiently uninhibited, in the tense courtroom and under
public scrutiny, to have consulted with them during the trial or, indeed, that, given his immaturity
and his disturbed emotional state, he would have been capable outside the courtroom of cooperating
with his lawyers and giving them information for the purposes of his defence.

89. In conclusion, the Court considers that the applicant was unable to participate effectively in
the criminal proceedings against him and was, in consequence, denied a fair hearing in breach
of Article 6 § 1.

It is worth considering the requirements identified in the case. Whilst obviously useful in ensuring
the child understands proceedings and can be supported through the judicial process, the (cost)
implications for States can be substantial, particularly when there may be few such cases.

Question
To what extent has a general consensus on the age of criminal responsibility emerged since this time? Does the
Convention on the Rights of the Child exert any influence over law and practice in this area?

12.9 Capital punishment

At the time of drafting many of the international instruments, capital punishment was still accepted
practice. Today, the situation is rather different and it is proscribed in many States. However, many
of the international instruments still make reference to the death penalty as an acceptable exception
to the right to life. However, it is never acceptable for juveniles.

INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS 1966, ARTICLE 6

(2, 4, 5 AND 6)

2. In countries which have not abolished the death penalty, sentence of death may be imposed
only for the most serious crimes in accordance with the law in force at the time of the
commission of the crime and not contrary to the provisions of the present Covenant and to the
Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only
be carried out pursuant to a final judgement rendered by a competent court.
. . .
4. Anyone sentenced to death shall have the right to seek pardon or commutation of the
sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all
cases.
5. Sentence of death shall not be imposed for crimes committed by persons below
eighteen years of age and shall not be carried out on pregnant women.
6. Nothing in this article shall be invoked to delay or to prevent the abolition of capital
punishment by any State Party to the present Covenant.

See also Article 2(1) of the European Convention on Human Rights 1950.
 PRISONERS, DETAINEES AND CONVICTS | 449

AMERICAN CONVENTION ON HUMAN RIGHTS 1969, ARTICLE 4 (2, 3, 4, 5 AND 6)

2. In countries that have not abolished the death penalty, it may be imposed only for the
most serious crimes and pursuant to a final judgment rendered by a competent court and in
accordance with a law establishing such punishment, enacted prior to the commission of the
crime. The application of such punishment shall not be extended to crimes to which it does not
presently apply.
3. The death penalty shall not be reestablished in states that have abolished it.
4. In no case shall capital punishment be inflicted for political offenses or related common
crimes.
5. Capital punishment shall not be imposed upon persons who, at the time the crime
was committed, were under 18 years of age or over 70 years of age; nor shall it be applied to
pregnant women.
6. Every person condemned to death shall have the right to apply for amnesty, pardon, or
commutation of sentence, which may be granted in all cases. Capital punishment shall not be
imposed while such a petition is pending decision by the competent authority.

Perhaps indicative of the prevalence of the death penalty in some Member States and their reluc-
tance to condemn it, the League of Arab States extends provisions on the death penalty over several
articles, thereby effectively giving the matter greater prominence than the other regional systems.

ARAB CHARTER ON HUMAN RIGHTS 2004

Article 6

1 Sentence of death may only be imposed for the most serious crimes in accordance with
the laws in force at the time of commission of the crime and pursuant to a final judgment
rendered by a competent court. Anyone sentenced to death shall have the right to seek
pardon or commutation of the sentence.

Article 7

1 Sentence of death shall not be imposed on persons under 18 years of age, unless
otherwise stipulated in the laws in force at the time of the commission of the offence.
2 The death penalty shall not be inflicted on a pregnant woman prior to her delivery or on
a nursing mother within two years from the date of her delivery; in all cases the best
interests of the infant shall be the primary consideration.

Obviously for those States in which the death penalty is a legitimate penalty, careful safeguards
need to be built into the judicial process to ensure that no error exists. Moreover, there is a need
for certain standards to be reached in the trial process.
Most importantly, the full legal process has to be complied with before the ultimate sanction
can be imposed. Failure to do so will infringe international law and may infringe the Principles
on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions
(ECOSOC Resolution 1989/65, 1989).

Safeguards guaranteeing protection of the rights of those facing the death penalty,
ECOSOC Resolution 1984/50 (1984)

1 In countries which have not abolished the death penalty, capital punishment may be
imposed only for the most serious crimes, it being understood that their scope should not
go beyond intentional crimes with lethal or other extremely grave consequences.
...
450 | PRISONERS, DETAINEES AND CONVICTS

4 Capital punishment may be imposed only when the guilt of the person charged is based
upon clear and convincing evidence leaving no room for an alternative explanation of the
facts.
5 Capital punishment may only be carried out pursuant to a final judgement rendered by a
competent court after legal process which gives all possible safeguards to ensure a fair
trial, at least equal to those contained in article 14 of the International Covenant on Civil
and Political Rights, including the right of anyone suspected of or charged with a crime
for which capital punishment may be imposed to adequate legal assistance at all stages
of the proceedings.
6 Anyone sentenced to death shall have the right to appeal to a court of higher jurisdiction,
and steps should be taken to ensure that such appeals shall become mandatory.
7 Anyone sentenced to death shall have the right to seek pardon, or commutation of sentence;
pardon or commutation of sentence may be granted in all cases of capital punishment.
8 Capital punishment shall not be carried out pending any appeal or other recourse
procedure or other proceeding relating to pardon or commutation of the sentence.

Inevitably, reflecting some of the exclusion clauses contained in the instruments extracted earlier,
not everyone may be subjected to the death penalty.

Safeguards guaranteeing protection of the rights of those facing the death penalty,
ECOSOC Resolution 1984/50 (1984)

2 Capital punishment may be imposed only for a crime for which the death penalty is
prescribed by law at the time of its commission, it being understood that if, subsequent
to the commission of the crime, provision is made by law for the imposition of a lighter
penalty, the offender shall benefit thereby.
3 Persons below 18 years of age at the time of the commission of the crime shall not be
sentenced to death, nor shall the death sentence be carried out on pregnant women, or
on new mothers, or on persons who have become insane.

Finally, should all appropriate procedures be followed and the death penalty imposed, then care
must be taken to ensure that it is administered in as fair and humane a manner as possible (para 9,
Safeguards). This is increasingly problematic – a body of debate exists on the relative humanity of
differing death penalty practices. Public stoning is generally agreed to be inhuman and contrary
to international law. However, the relative merits of hanging, lethal injection, firing squad, etc.
remain debated. There is also discussion on the desirability of the victim and his/her family wit-
nessing the death of the convicted person. Is that ensuring a ‘dignified’ death? As an extension of
this debate, the question arises as to whether capital punishment should be executed in public or
private.

Resolution adopted by the General Assembly on 18 December 2014, A/RES/69/186,

4 February 2015

...
1 Expresses its deep concern about the continued application of the death penalty;
2 Welcomes the report of the Secretary-General on the implementation of resolution
67/1766 and the recommendations contained therein;
3 Also welcomes the steps taken by some States to reduce the number of offences for which
the death penalty may be imposed, as well as steps taken to limit its application;
4 Further welcomes the decisions made by an increasing number of States, at all levels of
government, to apply a moratorium on executions, followed in many cases by the abolition
of the death penalty;
 PRISONERS, DETAINEES AND CONVICTS | 451

5 Calls upon all States:

(a) To respect international standards that provide safeguards guaranteeing protection

of the rights of those facing the death penalty, in particular the minimum standards,
as set out in the annex to Economic and Social Council resolution 1984/50 of 25 May
1984, as well as to provide the Secretary-General with information in this regard;
(b) To comply with their obligations under article 36 of the 1963 Vienna Convention
on Consular Relations, 7 particularly the right to receive information on consular
assistance within the context of a legal procedure;
(c) To make available relevant information, disaggregated by applicable criteria, with
regard to their use of the death penalty, inter alia, the number of persons sentenced to
death, the number of persons on death row and the number of executions carried out,
which can contribute to possible informed and transparent national and international
debates, including on the obligations of States pertaining to the use of the death penalty;
...

Question
Would a public execution be justified for a convicted mass murderer (consider retributive justice balanced against
the standard for human treatment)?

12.9.1 Case study: ‘death row’

Soering v United Kingdom is discussed in Chapter 2. The European Court opined that States were
under a positive obligation to ensure their action did not give rise to a violation of the European
Convention on Human Rights. Extradicting Soering to the United States of America for almost
certain capital punishment was contrary to the prohibition on inhuman and degrading treatment
or punishment due to the prolonged length of time an individual could spend on death row.

Pratt & Morgan v Jamaica, Communications 210/1986 and 225/1987, Human Rights Committee,
UN Doc. CCPR/C/35/D/210/1986

The authors of the communication were convicted of murder and sentenced to death, with
execution scheduled for February 1987. A stay of proceedings was notified to them 45 minutes
before the scheduled time of execution.

13.4 The State party has contended that the time span of three years and nine months between
the dismissal of the authors’ appeal and the delivery of the Court of Appeal’s written judgement
was attributable to an oversight and that the authors should have asserted their right to receive
earlier the written judgement. The Committee considers that the responsibility for the delay of
45 months lies with the judicial authorities of Jamaica. This responsibility is neither dependent
on a request for production by the accused in a trial nor is non-fulfilment of this responsibility
excused by the absence of a request from the accused. The Committee further observes that
the Privy Council itself described the delay as inexcusable.

13.5 In the absence of a written judgement of the Court of Appeal, the authors were not
able to proceed to appeal before the Privy Council, thus entailing a violation of article 14,
paragraph 3(c), and article 14, paragraph 5. In reaching this conclusion it matters not that in
the event the Privy Council affirmed the conviction of the authors. The Committee notes that
in all cases, and especially in capital cases, accused persons are entitled to trial and appeal
without undue delay, whatever the outcome of those judicial proceedings turns out to be.

13.6 There are two issues concerning article 7 before the Committee: the first is whether
the excessive delays in judicial proceedings constituted not only a violation of article 14, but
452 | PRISONERS, DETAINEES AND CONVICTS

‘cruel, inhuman and degrading treatment’. The possibility that such a delay as occurred in this
case could constitute cruel and inhuman treatment was referred to by the Privy Council. In
principle prolonged judicial proceedings do not per se constitute cruel, inhuman or degrading
treatment even if they can be a source of mental strain for the convicted prisoners. However,
the situation could be otherwise in cases involving capital punishment and an assessment
of the circumstances of each case would be necessary. In the present cases the Committee
does not find that the authors have sufficiently substantiated their claim that delay in judicial
proceedings constituted for them cruel, inhuman and degrading treatment under article 7.

In Iraq, the American-led coalition forces removed the death penalty, only for the incoming Iraqi
regime to re-impose it in advance of the trial of Saddam Hussein. Hussein was sentenced to death
by hanging in November 2006, upheld on appeal. This remains an exception to the growing
tendency of States to abolish the death penalty or at least cease to invoke it. (Of course, certain
countries and indeed parts of the USA have recently returned to the death penalty as the ultimate
sanction.) During UPR, States were urged to transform moratoria into abolition.

12.9.2 Moves towards abolition of the death penalty

The formal calls for abolition first found legal expression in the Sixth Protocol to the European
Convention on Human Rights 1983. However, the international community followed in 1990 –
Second Optional Protocol to the International Covenant on Civil and Political Rights, Aimed at
abolishing the Death Penalty 1990 – and the Americas (Protocol to the American Convention on
Human Rights to Abolish the Death Penalty 1990). Note also that even for those States ratifying
the relevant protocols, the abolition is not necessarily absolute, and some derogations are occasion-
ally permitted.

Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the
abolition of the death penalty, General Assembly Resolution 44/128 (1989)

Article 1

1 No one within the jurisdiction of a State Party to the present Protocol shall be executed.
2 Each State Party shall take all necessary measures to abolish the death penalty within its
jurisdiction.

Article 2

1 No reservation is admissible to the present Protocol, except for a reservation made at

the time of ratification or accession that provides for the application of the death penalty
in time of war pursuant to a conviction for a most serious crime of a military nature
committed during wartime.

Compare to Articles 1–4 of Protocol 6 to the European Convention on Human Rights and Fun-
damental Freedoms and Articles 1–2 of the Protocol to the American Convention on Human
Rights to Abolish the Death Penalty.

Question
What elements of international law permit such a reservation and for what crimes may the death penalty thus
be preserved?

In statements from the General Assembly and in comments on universal periodic review national
reports there are increasing calls for moratoriums on the death penalty in those States which cur-
rently retain it.
 PRISONERS, DETAINEES AND CONVICTS | 453

General Assembly Resolution 62/149, 18 December 2007, Moratorium on the use

of the death penalty

2 Calls upon all States that still maintain the death penalty:

(a) To respect international standards that provide safeguards guaranteeing protection

of the rights of those facing the death penalty, in particular the minimum standards,
as set out in the annex to Economic and Social Council resolution 1984/50 of 25 May
1984;
(b) To provide the Secretary-General with information relating to the use of capital
punishment and the observance of the safeguards guaranteeing protection of the
rights of those facing the death penalty;
(c) To progressively restrict the use of the death penalty and reduce the number of
offences for which it may be imposed;
(d) To establish a moratorium on executions with a view to abolishing the death
penalty;

3 Calls upon States which have abolished the death penalty not to reintroduce it

There is increasing evidence of an emerging global view on the importance of banning the death
penalty. For example, in universal periodic review working group interactive dialogues before the
Human Rights Council, abolitionist States often comment on the death penalty where it is still
in operation.

Report of the Working Group on the Universal Periodic Review* Madagascar, A/HRC/28/13, 23
December 2014

. . .
44. Montenegro noted the improved institutional and legislative framework and commended
the standing invitation to special procedures. It asked about Madagascar’s intentions regarding
the establishment of an official moratorium on the death penalty, and about steps towards
combating discrimination against children. Montenegro made recommendations.
. . .
51. Norway noted the efforts to restore law and order, the democratic elections, the
establishment of democratic institutions, and the signature of the Second Optional Protocol
to the International Covenant on Civil and Political Rights, aiming at the abolition of the death
penalty (ICCPR-OP 2). It expressed concern about deteriorating conditions in the education
sector and the degradation of rainforests. Norway made recommendations.
. . .
94. Costa Rica noted the measures taken to guarantee universal access to education,
as well as the human rights education activities for public officials. It noted the de facto
moratorium on the death penalty, and the signature of ICCPR-OP 2. It made recommendations.
II. Conclusions and/or recommendations**
108. The recommendations formulated during the interactive dialogue and listed below
have been examined by Madagascar and enjoy its support:
108.4 Ratify the Second Optional Protocol to the International Covenant on Civil and
Political Rights, aiming at the abolition of the death penalty (ICCPR-OP 2) (Montenegro);
. . .
108.9 Ratify the Second Optional Protocol to the ICCPR, aiming at the abolition of the death
penalty (Portugal);
. . .
108.13 Ratify the Second Optional Protocol to the ICCPR, aiming at the abolition of the
death penalty (Rwanda);
. . .
454 | PRISONERS, DETAINEES AND CONVICTS

108.21 Ratify the Second Optional Protocol to the ICCPR with a view to abolishing the death
penalty (Turkey);
108.22 Ratify the Second Optional Protocol to the International Covenant on Civil and
Political Rights with a view to abolishing the death penalty (Uruguay);
108.32 Ratify the Second Optional Protocol to the International Covenant on Civil and
Political Rights, to eliminate the death penalty in national legislation (Costa Rica);
. . .
108.34 Ratify the Second Optional Protocol to the International Covenant on Civil and
Political Rights with the view to abolishing the death penalty, signed in 2012; and also amend
national criminal legislation on that basis as currently under discussion in the National
Assembly (France)

Further reading
Easton, S., Prisoners’ Rights: Principles and Practice, 2012, Abingdon: Routledge.
Freeland S., ‘No Longer Acceptable: The Exclusion of the Death Penalty under International Crimi-
nal Law’ (2010) 15.2 Australian Journal of Human Rights 1.
Lehtimaja, L., and Pellonpaa, M., ‘Article 10’ in G. Alfredsson and A. Eide (eds), The Universal Dec-
laration of Human Rights – A Common Standard of Achievement, 1999, The Hague: Martinus
Nijhoff.
McNulty, D., Watson, N., and Philo, G., ‘Human Rights and Prisoners’ Rights: The British Press and
the Shaping of Public Debate’ (2014) 53 Howard Journal of Criminal Justice 360.
Morgan, R., and Evans, M., Protecting Prisoners – The Standards of the European Committee for the
Prevention of Torture in Context, 1999, Oxford: OUP.
Murray C., ‘We Need to Talk: “Democratic Dialogue” and the Ongoing Saga of Prisoner Disenfran-
chisement’ (2012) 62.1 Northern Ireland Legal Quarterly 57–74.
Rodley, N., The Treatment of Prisoners in International Law, 3rd edn, 2012, Oxford: Clarendon Press.
Schabas, W., The Abolition of the Death Penalty in International Law, 3rd edn, 2002 Cambridge: CUP.
Weissbrodt, D., The Right to a Fair Trial under the Universal Declaration of Human Rights and the
International Covenant on Civil and Political Rights – Background, Development and Interpretation,
2001, The Hague: Kluwer.
van Zyl Smit, D., and Snacken, S., Principles of European Prison Law and Policy: Penology and Human
Rights, 2012, Oxford: OUP.

Websites
www.icc-cpi.int: International Criminal Court
www.icj-cij.org: International Court of Justice
www.echr.coe.int: European Court of Human Rights
www.corteidh.or.cr: Inter-American Court of Human Rights
www.ohchr.org/EN/HRBodies/CAT/Pages/catindex.aspx: United Nations Committee against Torture
https://www.coe.int/en/web/cpt: European Committee for the Prevention of Torture and Inhuman
or Degrading Treatment or Punishment (CPT)
Chapter 13

Refugees, stateless persons and

internally displaced persons

Chapter contents

13.1 Who is a refugee? 458

13.2 Procedures for determining refugee status 463
13.3 Termination of refugee status 469
13.4 Regional instruments and criteria for
determining refugee status and addressing
refugee rights 476
13.5 Rights of refugees 481
13.6 Granting asylum to refugees and others 489
13.7 Internally displaced persons 491
13.8 High Commissioner for Refugees 491
13.9 Stateless persons 493
456 | REFUGEES AND STATELESS PERSONS

An increasingly high media profile is accorded to refugees, asylum seekers and internally displaced
people. Whether as a result of natural disasters, famine, political persecution or conflict, millions
of people seek refuge outwith and even within their homeland. This chapter focuses on the rights
of refugees and the legal regime which has evolved to protect them. It will cover:

• Facts and figures of refugees, asylum seekers, internally displaced peoples.

• Who is a refugee and who are internally displaced peoples?
• Challenges for States protecting refugees.
• Processing asylum applications.
• Problem of stateless persons.

There is currently a global refugee crisis as populations in such contexts as Syria, Myanmar and
Venezuela flee from conflict, persecutions and natural disasters, as examples. According to the UN
High Commissioner for Refugees, in 2017, 65.6 million people were forcibly displaced worldwide
because of persecution, conflict, violence, or human rights violations alone. The extent of the
problem is articulated in the introduction to the 2018 Global Compact on Refugees.

Report of the United Nations High Commissioner for Refugees

Part II Global compact on refugees

I. Introduction
1 The predicament of refugees is a common concern of humankind. Refugee situations
have increased in scope, scale and complexity and refugees require protection, assistance
and solutions. Millions of refugees live in protracted situations, often in low- and middle
income countries facing their own economic and development challenges, and the average
length of stay has continued to grow. Despite the tremendous generosity of host countries
and donors, including unprecedented levels of humanitarian funding, the gap between
needs and humanitarian funding has also widened. There is an urgent need for more
equitable sharing of the burden and responsibility for hosting and supporting the world’s
refugees, while taking account of existing contributions and the differing capacities and
resources among States. Refugees and host communities should not be left behind.
2 The achievement of international cooperation in solving international problems of a
humanitarian character is a core purpose of the United Nations, as set out in its Charter, and
is in line with the principle of sovereign equality of States. Similarly, the 1951 Convention
relating to the Status of Refugees (1951 Convention) recognizes that a satisfactory solution
to refugee situations cannot be achieved without international cooperation, as the grant
of asylum may place unduly heavy burdens on certain countries. It is vital to translate this
long-standing principle into concrete and practical action, including through widening
the support base beyond those countries that have historically contributed to the refugee
cause through hosting refugees or other means.
3 Against this background, the global compact on refugees intends to provide a basis for
predictable and equitable burden- and responsibility-sharing among all United Nations
Member States, together with other relevant stakeholders as appropriate, including but
not limited to: international organizations within and outside the United Nations system,
including those forming part of the International Red Cross and Red Crescent Movement;
other humanitarian and development actors; international and regional financial
institutions; regional organizations; local authorities; civil society, including faith-based
organizations; academics and other experts; the private sector; media; host community
members and refugees themselves (hereinafter ‘relevant stakeholders’).
4 The global compact is not legally binding. Yet it represents the political will and ambition
of the international community as a whole for strengthened cooperation and solidarity
 REFUGEES AND STATELESS PERSONS | 457

with refugees and affected host countries. It will be operationalized through voluntary
contributions to achieve collective outcomes and progress towards its objectives, set
out in para 7 below. These contributions will be determined by each State and relevant
stakeholder, taking into account their national realities, capacities and levels of
development, and respecting national policies and priorities.

The following graph represents the origin of the major refugee populations in 2016 (figures and
statistics from www.unhcr.ch, released 2018).

10,000,000

9,000,000

8,000,000

7,000,000

6,000,000

5,000,000

4,000,000

3,000,000

2,000,000

1,000,000

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These are the statistics for refugees and people in refugee-like situations.

Unlike some of the other groups addressed in this text, refugees are by definition an interna-
tional matter. Refugees cross borders in search of sanctuary and so unlike women, children or even
indigenous peoples, the need for an international solution and transnational approach is beyond
question.

Region Total

Africa 5,108,310
Asia 8,265,537
Europe 2,268,993
Latin America and the Caribbean 100,877
North America 370,291
Oceania 49,090

Total number of refugees per region (UNCHR, 2016)

458 | REFUGEES AND STATELESS PERSONS

When the United Nations was founded, in the wake of war in Europe and Asia-Pacific, mil-
lions of displaced persons had to be considered in plans for rebuilding shattered economies and
newly created States. The fundamental human rights instruments make some provision.

UNIVERSAL DECLARATION ON HUMAN RIGHTS 1948

Article 13

1 Everyone has the right to freedom of movement and residence within the borders of each
State.
2 Everyone has the right to leave any country, including his own, and return to his country.

Article 14

1 Everyone has the right to seek and to enjoy in other countries asylum from persecution.
2 This right may not be invoked in the case of prosecutions genuinely arising from nonpolitical
crimes or from acts contrary to the purposes and principles of the United Nations.

Article 12 of the International Covenant on Civil and Political Rights 1966 reflects this.

13.1 Who is a refugee?

The principal instrument addressing issues relating to refugees is the United Nations Convention
Relating to the Status of Refugees 1951. This applies only to individuals who became refugees
as a result of events occurring in Europe before 1 January 1951 and was designed to assist in the
resettlement of persons displaced as a result of the Second World War. Today some 145 States are
party to the Convention.
Given the continual growth in refugee populations around the world, the international
community adopted a 1967 Protocol to the Convention which extended its ambit to all persons
coming within the definition adopted by the original Convention without reference to the date of
the events generating refugee status. There are at present 146 States Parties to the Protocol, who
thus agree to the international system of protection for refugees.

13.1.1 Definition of refugee

The definition of a refugee for the purpose of international law is stated in the Convention. Read
it carefully, noting the exceptions incorporated into the Convention. It was created to address a
particular problem, focused in Europe in the post-war period.

UNITED NATIONS CONVENTION RELATING TO THE STATUS OF REFUGEES 1951

Article 1. – Definition of the term ‘refugee’

A For the purposes of the present Convention, the term ‘refugee’ shall apply to any person
who:

(1) Has been considered a refugee under the Arrangements of 12 May 1926 and 30 June
1928 or under the Conventions of 28 October 1933 and 10 February 1938, the Protocol
of 14 September 1939 or the Constitution of the International Refugee Organization;
Decisions of non-eligibility taken by the International Refugee Organization during
the period of its activities shall not prevent the status of refugee being accorded to
persons who fulfil the conditions of paragraph 2 of this section;
(2) As a result of events occurring before 1 January 1951 and owing to well-founded
fear of being persecuted for reasons of race, religion, nationality, membership of a
 REFUGEES AND STATELESS PERSONS | 459

particular social group or political opinion, is outside the country of his nationality
and is unable or, owing to such fear, is unwilling to avail himself of the protection of
that country; or who, not having a nationality and being outside the country of his
former habitual residence as a result of such events, is unable or, owing to such fear,
is unwilling to return to it.
In the case of a person who has more than one nationality, the term ‘the country of his
nationality’ shall mean each of the countries of which he is a national, and a person
shall not be deemed to be lacking the protection of the country of his nationality if,
without any valid reason based on well-founded fear, he has not availed himself of
the protection of one of the countries of which he is a national.

B. (1) For the purposes of this Convention, the words ‘events occurring before 1 January
1951’ in article 1, section A, shall be understood to mean either (a) ‘events occurring
in Europe before 1 January 1951’; or (b) ‘events occurring in Europe or elsewhere
before 1 January 1951’; and each Contracting State shall make a declaration at the
time of signature, ratification or accession, specifying which of these meanings it
applies for the purpose of its obligations under this Convention.
(2) Any Contracting State which has adopted alternative (a) may at any time extend its
obligations by adopting alternative (b) by means of a notification addressed to the
Secretary-General of the United Nations. . .

D This Convention shall not apply to persons who are at present receiving from organs or
agencies of the United Nations other than the United Nations High Commissioner for
Refugees protection or assistance.

When such protection or assistance has ceased for any reason, without the position
of such persons being definitively settled in accordance with the relevant resolutions
adopted by the General Assembly of the United Nations, these persons shall ipso
facto be entitled to the benefits of this Convention.

E This Convention shall not apply to a person who is recognized by the competent authorities
of the country in which he has taken residence as having the rights and obligations which
are attached to the possession of the nationality of that country.
F The provisions of this Convention shall not apply to any person with respect to whom there
are serious reasons for considering that:

(a) He has committed a crime against peace, a war crime, or a crime against humanity,
as defined in the international instruments drawn up to make provision in respect of
such crimes;
(b) He has committed a serious non-political crime outside the country of refuge prior
to his admission to that country as a refugee;
(c) He has been guilty of acts contrary to the purposes and principles of the United
Nations.

Question
Was it realistic to create such a time restrictive instrument in 1951?

Governments desired the original time limitation of events before 1951 in order primarily to limit
their obligations to known situations and refugees. However, as Europe did not prove the only
source of refugees and, as more refugee situations emerged, the need to extend the ambit of the
Convention was accepted. The scope of the Convention was therefore augmented to include all
other and subsequent refugees facilitating the evolution of the Convention into the seminal global
instrument addressing the plight of refugees.
460 | REFUGEES AND STATELESS PERSONS

PROTOCOL RELATING TO THE STATUS OF REFUGEES 1967

The States Parties to the present Protocol,

Considering that the Convention relating to the Status of Refugees done at Geneva on
28 July 1951 (hereinafter referred to as the Convention) covers only those persons who have
become refugees as a result of events occurring before 1 January 1951,
Considering that new refugee situations have arisen since the Convention was adopted
and that the refugees concerned may therefore not fall within the scope of the Convention,
Considering that it is desirable that equal status should be enjoyed by all refugees covered
by the definition in the Convention irrespective of the dateline 1 January 1951,
Have agreed as follows:

Article 1. General provision

1 The States Parties to the present Protocol undertake to apply articles 2 to 34 inclusive of
the Convention to refugees as hereinafter defined.
2 For the purpose of the present Protocol, the term ‘refugee’ shall, except as regards the
application of paragraph 3 of this article, mean any person within the definition of article
1 of the Convention as if the words As a result of events occurring before 1 January 1951
and . . .’ and the words ‘. . . as a result of such events’, in article 1 A (2) were omitted.
3 The present Protocol shall be applied by the States Parties hereto without any geographic
limitation, save that existing declarations made by States already Parties to the Convention
in accordance with article 1 B (1) (a) of the Convention, shall, unless extended under
article 1 B (2) thereof, apply also under the present Protocol.

It is important to note that both the Convention and Protocol are self-standing. Therefore, some
States are party only to the original Convention with obligations limited to refugees created by cir-
cumstances before 1951 while other States only sign up to the Protocol and thus their obligations
are without the time limit. Many States Parties to the original Convention obviously subsequently
extended their obligations in terms of the Protocol.

Question
To what extent does the Convention, as revised, have the potential for application to ‘economic migrant
workers’?

For a detailed exposition and guide to the definition of refugee, see the Handbook of Proce-
dures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Pro-
tocol relating to the Status of Refugees, HCR/IP/4/Eng/REV.1 Re-edited, Geneva, January
1992, UNHCR 1979, paras 37–105. This is available online (https://www.unhcr.org/uk/
publications/legal/3d58e13b4/handbook-procedures-criteria-determining-refugee-status-under-
1951-convention.html). It is a manual aimed at guiding governments through the application
of the Convention. It consolidates the accumulated experience of the Office of the High Com-
missioner with the practical contemporary situation. Although not part of the Convention, the
Handbook is viewed authoritatively by many national governments and, indeed, courts. The
purpose of the Handbook is to assist governments and other interested parties. The explanation
of the definition is, according to paragraph V of the foreword, based on the knowledge accu-
mulated by the High Commissioner’s Office since the entry into force of the Convention: ‘The
practice of States is [also] taken into account as are exchanges of views between the Office [of
the High Commissioner] and the competent authorities of Contracting States, and the literature
devoted to the subject’ (ibid.).
A major problem which States encounter when legislating for refugees is the fact that many
people now arrive illegally and/or are smuggled in to the country.
 REFUGEES AND STATELESS PERSONS | 461

Bakhtiyari v Australia, Communication 1069/2002, Human Rights Committee,

UN Doc. CCPR/C/79/D/1069/2002

The author of the communication left Afghanistan for Pakistan. He was joined by his wife and
children. Mr. Bakhtiyari was then smuggled into Australia via Indonesia, arriving unlawfully
in Australia. He lost contact with his wife and children although apparently unbeknown to
him they were also smuggled into Australia over a year later. Mr. Bakhtiyari was detained on
arrival in Australia (October 1999) though subsequently lodged an application for a protection
visa based on his Afghan nationality and Hazara ethnicity. His wife and children had their
applications for a protection visa refused in early 2001, shortly after their arrival and detention
in Australia. Essentially Mrs. Bakhtiyari’s testimony was found implausible and it appeared she
was actually from Pakistan. A year later, subsequent evidence suggested that Mr. Bakhtiyari
was from Quetta, Pakistan, not Afghanistan as originally claimed. He was notified that his visa
status was being reviewed and, moreover, Mrs. Bakhtiyari’s status could not be reviewed on
the basis of her husband’s protection visa. An application to have the children released from
detention was made. In December 2002, Mr. Bakhtiyari’s protection visa was cancelled and he
was taken into custody. Various appeals were made against this decision.

2.14 On 19 June 2003, the Full Bench of the Family Court held, by a majority, that the Court did have
jurisdiction to make orders against the Minister, including release from detention, if that was in the
best interests of the child. The case was accordingly remitted for hearing as a matter of urgency
as to what orders would be appropriate in the particular circumstances of the children. On 8 July
2003, the Full Bench of the Family Court granted the Minister leave to appeal to the High Court, but
rejected the Minister’s application for a stay on the order for rehearing as a matter of urgency. On 5
August 2003, the Family Court (Strickland J) dismissed an application for interlocutory relief, that
is, that the children be released in advance of the trial of the question of what final orders would
be in their best interests. On 25 August 2003, the Full Bench of the Family Court allowed an appeal
and ordered the release of all of the children forthwith, pending resolution of the final application.
They were released the same day and have resided with carers in Adelaide since.

. . .

8.4 Referring to the arguments that Mrs. Bakhtiyari and her children, if removed to Afghanistan,
would be in fear of being subjected to treatment contrary to article 7 of the Covenant, the
Committee observes that as the authors have not been removed from Australia, the issue before
the Committee is whether such removal if implemented at the present time would entail a real risk
of treatment contrary to article 7 as a consequence. The Committee also observes that the State
party’s authorities, in the proceedings to date, have determined, as a matter of fact, that the authors
are not from Afghanistan, and hence they do not stand in fear of being returned to that country by the
State party. The authors on the other hand have failed to demonstrate that if returned to any other
country, such as Pakistan, they would be liable to be sent to Afghanistan, where they would be in fear
of treatment contrary to article 7. Much less have the authors substantiated that even if returned
to Afghanistan, directly or indirectly, they would face, as a necessary and foreseeable consequence,
treatment contrary to article 7. The Committee accordingly takes the view that the claim that, if the
State party returns them at the present time, Mrs. Bakhtiyari and her children would have to face
treatment contrary to article 7, has not been substantiated before the Committee, for purposes of
admissibility, and is inadmissible under article 2 of the Optional Protocol.

. . .

9.2 As to the claims of arbitrary detention, contrary to article 9, paragraph 1, the Committee
recalls its jurisprudence that, in order to avoid any characterization of arbitrariness, detention
should not continue beyond the period for which a State party can provide appropriate justification.
In the present case, Mr. Bakhtiyari arrived by boat, without dependents (sic), with his identity in
462 | REFUGEES AND STATELESS PERSONS

doubt and claiming to be from a State suffering serious internal disorder. In light of these factors
and the fact that he was granted a protection visa and released two months after he had filed an
application (some seven months after his arrival), the Committee is unable to conclude that, while
the length of his first detention may have been undesirable, it was also arbitrary and in breach
of article 9, paragraph 1. In the light of this conclusion, the Committee need not examine the
claim under article 9, paragraph 4, with respect to Mr. Bakhtiyari. The Committee observes that
Mr. Bakhtiyari’s second period of detention, which has continued from his arrest for purposes of
deportation on 5 December 2002 until the present may raise similar issues under article 9, but
does not express a further view thereon in the absence of argument from either party.

9.3 Concerning Mrs. Bakhtiyari and her children, the Committee observes that Mrs. Bakhtiyari
has been detained in immigration detention for two years and ten months, and continues to be
detained, while the children remained in immigration detention for two years and eight months
until their release on interim orders of the Family Court. Whatever justification there may have
been for an initial detention for the purposes of ascertaining identity and other issues, the
State party has not, in the Committee’s view, demonstrated that their detention was justified
for such an extended period. Taking into account in particular the composition of the Bakhtiyari
family, the State party has not demonstrated that other, less intrusive, measures could not
have achieved the same end of compliance with the State party’s immigration policies by, for
example, imposition of reporting obligations, sureties or other conditions which would take
into account the family’s particular circumstances. As a result, the continuation of immigration
detention for Mrs. Bakhtiyari and her children for length of time described above, without
appropriate justification, was arbitrary and contrary to article 9, paragraph 1, of the Covenant.

9.4 As to the claim under article 9, paragraph 4, related to this period of detention, the
Committee refers to its discussion of admissibility above and observes that the court review
available to Mrs. Bakhtiyari would be confined purely to a formal assessment of whether
she was a ‘non-citizen’ without an entry permit. The Committee observes that there was no
discretion for a domestic court to review the justification of her detention in substantive terms.
The Committee considers that the inability judicially to challenge a detention that was, or had
become, contrary to article 9, paragraph 1, constitutes a violation of article 9, paragraph 4.

9.5 As to the children, the Committee observes that until the decision of the Full Bench of the
Family Court on 19 June 2003, which held that it had jurisdiction under child welfare legislation to
order the release of children from immigration detention, the children were in the same position
as their mother, and suffered a violation of their rights under article 9, paragraph 4, up to that
moment on the same basis. The Committee considers that the ability for a court to order a child’s
release if considered in its best interests, which subsequently occurred (albeit on an interim basis),
is sufficient review of the substantive justification of detention to satisfy the requirements of article 9,
paragraph 4, of the Covenant. Accordingly, the violation of article 9, paragraph 4, with respect to
the children came to an end with the Family Court’s finding of jurisdiction to make such orders.

9.6 As to the claim under articles 17 and 23, paragraph 1, the Committee observes that to
separate a spouse and children arriving in a State from a spouse validly resident in a State may
give rise to issues under articles 17 and 23 of the Covenant. In the present case, however, the
State party contends that, at the time Mrs. Bakhtiyari made her application to the Minister under
section 417 of the Migration Act, there was already information on Mr. Bakhtiyari’s alleged visa
fraud before it. As it remains unclear whether the attention of the State party’s authorities was
drawn to the existence of the relationship prior to that point, the Committee cannot regard it
as arbitrary that the State party considered it inappropriate to unite the family at that stage.
The Committee observes, however, that the State party intends at present to remove Mrs.
Bakhtiyari and her children as soon as ‘reasonably practicable’, while it has no current plans to
do so in respect of Mr. Bakhtyari, who is currently pursuing domestic proceedings. Taking into
account the specific circumstances of the case, namely the number and age of the children,
 REFUGEES AND STATELESS PERSONS | 463

including a newborn, the traumatic experiences of Mrs. Bakhtiyari and the children in long-term
immigration detention in breach of article 9 of the Covenant, the difficulties that Mrs. Bakhtiyari
and her children would face if returned to Pakistan without Mr. Bakhtiyari and the absence of
arguments by the State party to justify removal in these circumstances, the Committee takes the
view that removing Mrs. Bakhtiyari and her children without awaiting the final determination of
Mr. Bakhtiyari’s proceedings would constitute arbitrary interference in the family of the authors,
in violation of articles 17, paragraph 1, and 23, paragraph 1, of the Covenant.

9.7 Concerning the claim under article 24, the Committee considers that the principle that
in all decisions affecting a child, its best interests shall be a primary consideration, forms
an integral part of every child’s right to such measures of protection as required by his or
her status as a minor, on the part of his or her family, society and the State, as required by
article 24, paragraph 1, of the Covenant. The Committee observes that in this case children
have suffered demonstrable, documented and on-going adverse effects of detention, and in
particular the two eldest sons, up until the point of release on 25 August 2003, in circumstances
where that detention was arbitrary and in violation of article 9, paragraph 1, of the Covenant.
As a result, the Committee considers that the measures taken by the State party had not, until
the Full Bench of the Family Court determined it had welfare jurisdiction with respect to the
children, been guided by the best interests of the children, and thus revealed a violation of
article 24, paragraph 1, of the Covenant, that is, of the children’s right to such measures of
protection as required by their status as minors up to that point in time.

10. The Human Rights Committee. . . is of the view that the facts as found by the Committee
reveal violations by Australia of articles 9, paragraphs 1 and 4, and 24, paragraph 1, and,
potentially, of articles 17, paragraph 1, and 23, paragraph 1, of the Covenant.

11. In accordance with article 2, paragraph 3 (a), of the Covenant, the State party is under
an obligation to provide the authors with an effective remedy. As to the violation of article 9,
paragraph 1 and 4, continuing up to the present time with respect to Mrs. Bakhtiyari, the State
party should release her and pay her appropriate compensation. So far as concerns the violations
of articles 9 and 24 suffered in the past by the children, which came to an end with their release
on 25 August 2003, the State party is under an obligation to pay appropriate compensation to the
children. The State party should also refrain from deporting Mrs. Bakhtiyari and her children
while Mr. Bakhtiyari is pursuing domestic proceedings, as any such action on the part of the State
party would result in violations of articles 17, paragraph 1, and 23, paragraph 1, of the Covenant.

Question
Is this decision appropriate? What implications does it have for States implementing a policy of detention pend-
ing verification of facts stated in an application for recognition of refugee status?

This communication also identifies a major issue with refugees – that of families. It is not always
practicable for an entire family to flee at once; frequently the family unit is separated. A body of
law has evolved on reunification.

13.2 Procedures for determining refugee status

While identification of members of other groups and categories may be self-evident or a matter of
self-identification, refugee status is formally recognised by others, primarily the government of the
State concerned. State practice varies considerably. In terms of the 1951 Convention, a person is
a refugee as soon as she or he fulfils the definition in Article 1. States Parties merely recognise this
pre-existing status. States do not decide whether a person fulfilling the criteria is or is not a refu-
gee. Thus, the Office of the High Commissioner has specified minimum criteria to be followed
in developing appropriate policies for declaring refugee status.
464 | REFUGEES AND STATELESS PERSONS

United Nations High Commission for Refugees ‘Determination of Refugee Status’, Document
ExCOM No. 8 (XXVIII) 1977

(e) Recommended that procedures for the determination of refugee status should satisfy the
following basic requirements:

(i) The competent official (e.g. immigration officer or border police officer) to whom
the applicant addresses himself at the border or in the territory of a Contracting
State, should have clear instructions for dealing with cases which might be within
the purview of the relevant international instruments. He should be required to act in
accordance with the principle of non-refoulement and to refer such cases to a higher
authority.
(ii) The applicant should receive the necessary guidance as to the procedure to be
followed.
(iii) There should be a clearly identified authority – wherever possible a single central
authority – with responsibility for examining requests for refugee status and taking a
decision in the first instance.
(iv) The applicant should be given the necessary facilities, including the services of
a competent interpreter, for submitting his case to the authorities concerned.
Applicants should also be given the opportunity, of which they should be duly
informed, to contact a representative of UNHCR.
(v) If the applicant is recognized as a refugee, he should be informed accordingly and
issued with documentation certifying his refugee status.
(vi) If the applicant is not recognized, he should be given a reasonable time to appeal
for a formal reconsideration of the decision, either to the same or to a different
authority, whether administrative or judicial, according to the prevailing system.
(vii) The applicant should be permitted to remain in the country pending a decision on his
initial request by the competent authority referred to in paragraph (iii) above unless it
has been established by that authority that his request is clearly abusive. He should
also be permitted to remain in the country while an appeal to a higher administrative
authority or to the courts is pending.

The issue of determining the status of asylum seekers has produced further guidelines in Europe.
The European Union, as a single internal market without frontiers, presents particular challenges
to asylum and refugee laws. Once legally within the Union, in effect an asylum seeker may move
freely within the larger geographical jurisdiction of the Union. Problems have arisen when asylum
seekers travel through the Union then seek recognition as a refugee. Within the Union, the focus
has thus been on substantiating the external borders to ensure a concerted and consistent approach
to asylum seekers. The application of the freedom of movement provisions will thus present no
further obstacle to asylum seekers and no further burden to States. The following guidelines deter-
mine which State should consider an application for asylum.

COUNCIL REGULATION (EC) NO 343/2003 OF 18 FEBRUARY 2003 on establishing the

criteria and mechanisms for determining the Member State responsible
for examining an asylum application lodged in one of the Member States
by a third-country national

Article 3

1 Member States shall examine the application of any third-country national who applies
at the border or in their territory to any one of them for asylum. The application shall be
examined by a single Member State, which shall be the one which the criteria set out in
Chapter III indicate is responsible.
 REFUGEES AND STATELESS PERSONS | 465

2 By way of derogation from paragraph 1, each Member State may examine an application
for asylum lodged with it by a third-country national, even if such examination is not
its responsibility under the criteria laid down in this Regulation. In such an event, that
Member State shall become the Member State responsible within the meaning of this
Regulation and shall assume the obligations associated with that responsibility. Where
appropriate, it shall inform the Member State previously responsible, the Member State
conducting a procedure for determining the Member State responsible or the Member
State which has been requested to take charge of or take back the applicant.
3 Any Member State shall retain the right, pursuant to its national laws, to send an asylum
seeker to a third country, in compliance with the provisions of the Geneva Convention.
4 The asylum seeker shall be informed in writing in a language that he or she may reasonably
be expected to understand regarding the application of this Regulation, its time limits and
its effects.

Article 4

1 The process of determining the Member State responsible under this Regulation shall
start as soon as an application for asylum is first lodged with a Member State.
2 An application for asylum shall be deemed to have been lodged once a form submitted
by the applicant for asylum or a report prepared by the authorities has reached the
competent authorities of the Member State concerned. Where an application is not made
in writing, the time elapsing between the statement of intention and the preparation of a
report should be as short as possible.
3 For the purposes of this Regulation, the situation of a minor who is accompanying the
asylum seeker and meets the definition of a family member set out in Article 2, point
(i), shall be indissociable from that of his parent or guardian and shall be a matter for
the Member State responsible for examining the application for asylum of that parent or
guardian, even if the minor is not individually an asylum seeker. The same treatment shall
be applied to children born after the asylum seeker arrives in the territory of the Member
States, without the need to initiate a new procedure for taking charge of them.
4 Where an application for asylum is lodged with the competent authorities of a Member
State by an applicant who is in the territory of another Member State, the determination
of the Member State responsible shall be made by the Member State in whose territory
the applicant is present. The latter Member State shall be informed without delay by the
Member State which received the application and shall then, for the purposes of this
Regulation, be regarded as the Member State with which the application for asylum was
lodged.
The applicant shall be informed in writing of this transfer and of the date on which it
took place.
5 An asylum seeker who is present in another Member State and there lodges an application
for asylum after withdrawing his application during the process of determining the
Member State responsible shall be taken back, under the conditions laid down in Article
20, by the Member State with which that application for asylum was lodged, with a view to
completing the process of determining the Member State responsible for examining the
application for asylum.
This obligation shall cease, if the asylum seeker has in the meantime left the territories
of the Member States for a period of at least three months or has obtained a residence
document from a Member State.

There are specific provisions for minors, family members and for those seeking asylum who hold
valid residence documentation for one or more Member States. Europe is often a destination
country for refugees, many of whom eventually settle in the region as they are unable to return
466 | REFUGEES AND STATELESS PERSONS

home. However, other countries experience mass movements of persons when sudden catas-
trophes engulf a country, whether man-made (e.g. conflict) or natural (e.g. floods). Obtaining
detailed statistical information on the numbers of refugees and other displaced persons is a very dif-
ficult task for the Office of the High Commissioner and NGOs working in the field. The process
of documentation is necessarily detailed. Obviously securing emergency humanitarian assistance
is the priority.
Full statistical information on numbers of refugees and others of concern are published regu-
larly by the Office of the High Commissioner of Refugees and available online (www.unhcr.org).
The information provided shows the numbers of asylum claims, the numbers of refugees and the
numbers of returned refugees (i.e. those able to return to their home country).

13.2.1 Children
Children may arrive either with their parents/guardians, or unaccompanied seeking refuge. As
Chapter 9 indicates, children are often particularly vulnerable. Unsurprisingly, therefore, particu-
lar regard must be had to the rights of children of refugees and refugee children. The European
Regulation indicates this, as does the United Nations Convention on the Rights of the Child.

UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD 1989, Article 22

1 States Parties shall take appropriate measures to ensure that a child who is seeking
refugee status or who is considered a refugee in accordance with applicable international
or domestic law and procedures shall, whether unaccompanied or accompanied by his
or her parents or by any other person, receive appropriate protection and humanitarian
assistance in the enjoyment of applicable rights set forth in the present Convention and
in other international human rights or humanitarian instruments to which the said States
are Parties.
2 For this purpose, States Parties shall provide, as they consider appropriate, cooperation
in any efforts by the United Nations and other competent intergovernmental organizations
or non-governmental organizations co-operating with the United Nations to protect and
assist such a child and to trace the parents or other members of the family of any refugee
child in order to obtain information necessary for reunification with his or her family. In
cases where no parents or other members of the family can be found, the child shall be
accorded the same protection as any other child permanently or temporarily deprived of
his or her family environment for any reason, as set forth in the present Convention.

Children are frequently especially vulnerable during periods of forced displacement, migration and
fleeing countries. From the mid 2010s, there have been many high profile examples of children
fleeing to safety and being drowned at sea, abused, smuggled across borders and so on.

Joint general comment No. 4 (2017) of the Committee on the Protection of the Rights of All
Migrant Workers and Members of Their Families and No. 23 (2017) of the Committee on the
Rights of the Child on State obligations regarding the human rights of children in the context of
international migration in countries of origin, transit, destination and return

I. Introduction

1 The International Convention on the Protection of the Rights of All Migrant Workers and
Members of Their Families and the Convention on the Rights of the Child contain legally
binding obligations that relate both in general and specifically to the protection of the
human rights of children and migrants. Both Conventions contain several provisions that
establish specific obligations related to the rights of children in the context of international
migration in the countries of origin, transit, destination and return.
 REFUGEES AND STATELESS PERSONS | 467

2 The present joint general comment was adopted at the same time as joint general
comment No. 3 (2017) of the Committee on the Protection of the Rights of All Migrant
Workers and Members of Their Families and No. 22 (2017) of the Committee on the Rights
of the Child on the general principles regarding the human rights of children in the context
of international migration. While that general comment and the present one are stand-
alone documents in their own right, the two complement each other and should be read
and implemented together. The drafting process included a series of global and regional
consultations held between May and July 2017 with representatives of key stakeholders
and experts, including children and migrant organizations, in Bangkok, Beirut, Berlin,
Dakar, Geneva, Madrid and Mexico City. In addition, the Committees received more than
80 written contributions from States, United Nations agencies and entities, civil society
organizations, national human rights institutions and other stakeholders from every
region of the world between November 2015 and August 2017.

13.2.2 Procedural safeguards

Determination of status is clearly a legal evaluation and thus the process must be in accordance
with the prescribed law. Appropriate safeguards such as appeals and reconsiderations of initial
denials of status are an integral part of the process. This can take time. Some States detain asylum
seekers or at least restrict their freedom of movement and access to full rights and liberties pending
determination of status. In such instances, the relevant procedures must be undertaken promptly
and fairly to minimise further trauma for the refugee. Inevitably, problems arise when the alacrity
of the decision-making process is lacking. Detaining asylum-seekers for long periods of time while
investigations are undertaken is problematic as the following case demonstrates. In spite of this,
States are entitled to verify the details in the application of the refugee to determine the validity of
their claims and thus the appropriateness of recognising refugee status.

A. v AUSTRALIA, COMMUNICATION 560/1993, HUMAN RIGHTS COMMITTEE, UN DOC.

CCPR/C/59/D/560/1993

A Cambodian national arrived in Australia with his family by boat and shortly thereafter sought
recognition of refugee status. His application was formally rejected. Various appeals were lodged.

3.3 It is contended that the State party’s policy of detaining boat people is inappropriate,
unjustified and arbitrary, as its principal purpose is to deter other boat people from coming
to Australia, and to deter those already in the country from continuing with applications for
refugee status. The application of the new legislation is said to amount to ‘human deterrence’,
based on the practice of rigidly detaining asylum-seekers under such conditions and for
periods so prolonged that prospective asylum-seekers are deterred from even applying for
refugee status, and current asylum-seekers lose all hope and return home.

. . .

9.1 The Human Rights Committee has examined the present communication in the light of all
the information placed before it by the parties, as it is required to do under article 5, paragraph 1,
of the Optional Protocol to the Covenant. Three questions are to be determined on their merits:

(a) whether the prolonged detention of the author, pending determination of his entitlement to
refugee status, was ‘arbitrary’ within the meaning of article 9, paragraph 1;

(b) whether the alleged impossibility to challenge the lawfulness of the author’s detention and
his alleged lack of access to legal advice was in violation of article 9, paragraph 4. . .

9.2 On the first question, the Committee recalls that the notion of ‘arbitrariness’ must not
be equated with ‘against the law’ but be interpreted more broadly to include such elements
468 | REFUGEES AND STATELESS PERSONS

as inappropriateness and injustice. Furthermore, remand in custody could be considered

arbitrary if it is not necessary in all the circumstances of the case, for example to prevent flight
or interference with evidence: the element of proportionality becomes relevant in this context.
The State party however, seeks to justify the author’s detention by the fact that he entered
Australia unlawfully and by the perceived incentive for the applicant to abscond if left in liberty.
The question for the Committee is whether these grounds are sufficient to justify indefinite and
prolonged detention.

9.3 The Committee agrees that there is no basis for the author’s claim that it is per se arbitrary
to detain individuals requesting asylum. Nor can it find any support for the contention that
there is a rule of customary international law which would render all such detention arbitrary.

9.4 The Committee observes however, that every decision to keep a person in detention should
be open to review periodically so that the grounds justifying the detention can be assessed.
In any event, detention should not continue beyond the period for which the State can provide
appropriate justification. For example, the fact of illegal entry may indicate a need for
investigation and there may be other factors particular to the individuals, such as the likelihood
of absconding and lack of cooperation, which may justify detention for a period. Without such
factors detention may be considered arbitrary, even if entry was illegal. In the instant case, the
State party has not advanced any grounds particular to the author’s case, which would justify
his continued detention for a period of four years, during which he was shifted around between
different detention centres. The Committee therefore concludes that the author’s detention for
a period of over four years was arbitrary within the meaning of article 9, paragraph 1.

9.5 The Committee observes that the author could, in principle, have applied to the court for
review of the grounds of his detention before the enactment of the Migration Amendment Act
of 5 May 1992; after that date, the domestic courts retained that power with a view to ordering
the release of a person if they found the detention to be unlawful under Australian law. In
effect, however, the courts’ control and power to order the release of an individual was limited
to an assessment of whether this individual was a ‘designated person’ within the meaning of
the Migration Amendment Act. If the criteria for such determination were met, the courts had
no power to review the continued detention of an individual and to order his/her release. In the
Committee’s opinion, court review of the lawfulness of detention under article 9, paragraph 4,
which must include the possibility of ordering release, is not limited to mere compliance of the
detention with domestic law. While domestic legal systems may institute differing methods
for ensuring court review of administrative detention, what is decisive for the purposes of
article 9, paragraph 4, is that such review is, in its effects, real and not merely formal. By
stipulating that the court must have the power to order release ‘if the detention is not lawful’,
article 9, paragraph 4, requires that the court be empowered to order release, if the detention
is incompatible with the requirements in article 9, paragraph 1, or in other provisions of the
Covenant. This conclusion is supported by article 9, paragraph 5, which obviously governs the
granting of compensation for detention that is ‘unlawful’ either under the terms of domestic
law or within the meaning of the Covenant. As the State party’s submissions in the instant
case show that court review available to A was, in fact, limited to a formal assessment of the
self-evident fact that he was indeed a ‘designated person’ within the meaning of the Migration
Amendment Act, the Committee concludes that the author’s right, under article 9, paragraph 4,
to have his detention reviewed by a court, was violated.

9.6 As regards the author’s claim that article 9, paragraph 4, encompasses a right to legal
assistance in order to have access to the courts, the Committee notes from the material before
it that the author was entitled to legal assistance from the day he requested asylum and would
have had access to it, had he requested it. Indeed, the author was informed on 9 December
1989, in the attachment to the form he signed on that day, of his right to legal assistance. This
 REFUGEES AND STATELESS PERSONS | 469

form was read in its entirety to him in Kampuchean, his own language, by a certified interpreter.
That the author did not avail himself of this possibility at that point in time cannot be held
against the State party. Subsequently (as of 13 September 1990), the author sought legal advice
and received legal assistance whenever requesting it. That A was moved repeatedly between
detention centres and was obliged to change his legal representatives cannot detract from
the fact that he retained access to legal advisers; that this access was inconvenient, notably
because of the remote location of Port Hedland, does not, in the Committee’s opinion, raise an
issue under article 9, paragraph 4.

Question
To what extent do the proposed process guidelines adequately guarantee the rights of potential refugees? Do
Australian practicalities comply with the guidelines?

Note also that refugees enjoy the same rights as nationals of a State with respect to administrative
and legal matters. Therefore, they are entitled to fair access to courts and equality of treatment in
legal affairs (see Articles 15, 16 and 29 of the 1951 Refugee Convention).
Refugees frequently need access to courts and tribunals for procedures relating to the deter-
mination of their status and accordance of their rights. Inevitably a number of problems can arise –
identification, permanent/contactable address and finance are some of the more obvious examples.

13.3 Termination of refugee status

Refugee status is not indefinite. Circumstances change. The United Nations Convention itself
addresses the circumstances in which refugee status ceases to be applicable in Article 1C(1)–(6),
frequently referred to as the cessation clauses.

UNITED NATIONS CONVENTION RELATING TO THE STATUS OF REFUGEES 1951 Article 1

C This Convention shall cease to apply to any person falling under the terms of section A if:

(1) He has voluntarily re-availed himself of the protection of the country of his
nationality; or
(2) Having lost his nationality, he has voluntarily reacquired it; or
(3) He has acquired a new nationality, and enjoys the protection of the country of his new
nationality; or
(4) He has voluntarily re-established himself in the country which he left or outside
which he remained owing to fear of persecution; or
(5) He can no longer, because the circumstances in connection with which he has been
recognized as a refugee have ceased to exist, continue to refuse to avail himself of
the protection of the country of his nationality;
(6) Being a person who has no nationality he is, because the circumstances in connection
with which he has been recognized as a refugee have ceased to exist, able to return
to the country of his former habitual residence;

Essentially, once refugee status is declared, the individual is protected unless, and until, one of the
preceding clauses is invoked. The purpose of this is to offer protection to the individual and a
guarantee that affirmed status as a refugee will not be constantly subject to re-evaluation thereby
creating fear and uncertainty. Further elaboration on the scope of the clauses can be found in paras
111–139 of the UNHCR’s Handbook on Procedures and Criteria for Determining Refugee Status.
Once individuals are deemed outwith the Convention, and thus not refugees eligible for the
protection afforded by the Convention, there are a number of issues to consider. As the following
470 | REFUGEES AND STATELESS PERSONS

provisions note, however, it is possible for people to enter the country illegally then seek confir-
mation of their refugee status. The provisions extracted go on to address the controversial issues of
removing individuals from their territory through expulsion or deportation.

UNITED NATIONS CONVENTION RELATING TO THE STATUS OF REFUGEES 1951

Article 31 – Refugees unlawfully in the country of refuge

1 The Contracting States shall not impose penalties, on account of their illegal entry or
presence, on refugees who, coming directly from a territory where their life or freedom
was threatened in the sense of article 1, enter or are present in their territory without
authorization, provided they present themselves without delay to the authorities and show
good cause for their illegal entry or presence.
2 The Contracting States shall not apply to the movements of such refugees restrictions
other than those which are necessary and such restrictions shall only be applied until
their status in the country is regularized or they obtain admission into another country. The
Contracting States shall allow such refugees a reasonable period and all the necessary
facilities to obtain admission into another country.

Article 32 – Expulsion

1 The Contracting States shall not expel a refugee lawfully in their territory save on grounds
of national security or public order.
2 The expulsion of such a refugee shall be only in pursuance of a decision reached in
accordance with due process of law. Except where compelling reasons of national security
otherwise require, the refugee shall be allowed to submit evidence to clear himself, and
to appeal to and be represented for the purpose before competent authority or a person
or persons specially designated by the competent authority.
3 The Contracting States shall allow such a refugee a reasonable period within which to
seek legal admission into another country. The Contracting States reserve the right to
apply during that period such internal measures as they may deem necessary.

Article 33 – Prohibition of expulsion or return (‘refoulement’)

1 No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever
to the frontiers of territories where his life or freedom would be threatened on account of
his race, religion, nationality, membership of a particular social group or political opinion.
2 The benefit of the present provision may not, however, be claimed by a refugee whom
there are reasonable grounds for regarding as a danger to the security of the country in
which he is, or who, having been convicted by a final judgement of a particularly serious
crime, constitutes a danger to the community of that country.

Article 34 – Naturalization

The Contracting States shall as far as possible facilitate the assimilation and naturalization of
refugees. They shall in particular make every effort to expedite naturalization proceedings and
to reduce as far as possible the charges and costs of such proceedings.

Question
Do the provisions of the Convention adequately balance the rights of refugees with the right of the State to
ensure protection of its territorial integrity, and preserve its national security?

Note that States cannot forcibly return refugees to a State in which they will face torture and
other treatment prohibited by international human rights treaties. This is linked to the positive
obligations which States undertake when accepting human rights treaties – this positive obligation
is discussed in relation to extradition and deportation in Chapter 2.
 REFUGEES AND STATELESS PERSONS | 471

Additional provisions on torture and other inhuman and degrading treatment or punishment
are also of relevance in this regard:

UNITED NATIONS CONVENTION AGAINST TORTURE 1984, Article 3

1 No State Party shall expel, return (‘refouler’) or extradite a person to another State where
there are substantial grounds for believing that he would be in danger of being subjected
to torture.
2 For the purpose of determining whether there are such grounds, the competent
authorities shall take into account all relevant considerations including, where applicable,
the existence in the State concerned of a consistent pattern of gross, flagrant or mass
violations of human rights.

This is corroborated by the United Nations Human Rights Committee in its general comments
on torture:

General Comment 20 (1992): UN Doc. A/47/40 (1992) 193 at para 9

9. In the view of the Committee, States parties must not expose individuals to the danger of
torture or cruel, inhuman or degrading treatment or punishment upon return to another
country by way of their extradition, expulsion or refoulement. States parties should
indicate in their reports what measures they have adopted to that end.

Employing provisions on torture offers a further avenue for complaint for asylum seekers. If seek-
ing refuge in a State which has ratified the provisions, there is the potential for an individual
communication or complaint to the relevant international or regional bodies. These support and
consolidate the provisions of the 1951 Refugee Convention. Given that the prohibition on torture
is arguably jus cogens (see Chapter 1) then of course arguably every State should refrain from tor-
ture and the issue should not arise. More pertinently, no State should send an individual back to
a territory in which they may suffer from torture. As regards the use of the communications and
complaints provisions, the following case provides an illustration.

KH v Denmark, Human Rights Committee communication No. 2423/2014,

7 September 2018

K.H. is a national of the Islamic Republic of Iran who sought asylum in Denmark and became
subject to deportation to the Islamic Republic of Iran following the Danish authorities’ rejection
of his application for refugee status. He claimed that by forcibly deporting him to the Islamic
Republic of Iran, Denmark would violate his rights under articles 6 and 7 of the Covenant.
8.2 The Committee notes the author’s claim that returning him to the Islamic Republic
of Iran would expose him to a risk of irreparable harm, in violation of articles 6 and 7 of the
Covenant. The Committee notes the author’s argument that he would face persecution by the
Iranian authorities because he refused to continue to work for the Basij – an Iranian militia –
and because he fled the Islamic Republic of Iran illegally. It also notes the information provided
by the State party regarding the treatment received, upon their return, by persons who fled
the Islamic Republic of Iran illegally. According to country information on illegal exit from the
Islamic Republic of Iran published by the Home Office of the United Kingdom of Great Britain
and Northern Ireland in July 2016, an Iranian person who seeks to return to the Islamic Republic
of Iran without a passport will not face any real risk of persecution on account of having left the
country illegally and/or being a failed asylum seeker, unless adverse interest has previously
been manifested by the Iranian authorities in respect of the person concerned. The State party
also indicates that the Islamic Republic of Iran does not criminalize failed asylum seekers as
it is not a criminal offence in the Islamic Republic of Iran for any Iranian to ask for asylum in
472 | REFUGEES AND STATELESS PERSONS

another country. The Committee also notes the author’s statement regarding his conversion
from Islam to Christianity, including his baptism and active participation in parish activities,
and the alleged risk of persecution that he may face from his family and the authorities should
he be returned to the Islamic Republic of Iran.
8.3 The Committee recalls its general comment No. 31 (2004) on the nature of the general
legal obligation imposed on States parties to the Covenant, in which it refers to the obligation of
States parties not to extradite, deport, expel or otherwise remove a person from their territory
when there are substantial grounds for believing that there is a real risk of irreparable harm
such as that contemplated by articles 6 and 7 of the Covenant (para. 12). The Committee has
also indicated that the risk must be personal and that there is a high threshold for providing
substantial grounds to establish that a real risk of irreparable harm exists. Thus, all relevant
facts and circumstances must be considered, including the general human rights situation in
the author’s country of origin. The Committee recalls that it is generally for the organs of States
parties to examine the facts and evidence of the case in question in order to determine whether
such a risk exists, unless it can be established that the assessment was clearly arbitrary or
amounted to a manifest error or denial of justice.
8.5 The Committee considers that when an asylum seeker submits that he or she has
converted to another religion after his or her initial asylum request has been dismissed in
the country of asylum, it may be reasonable for an in-depth examination of the circumstances
of the conversion to be carried out by the authorities. However the test remains whether,
regardless of the sincerity of the conversion, there are substantial grounds for believing that
such conversion may have serious adverse consequences in the country of origin so as to
create a real risk of irreparable harm such as that contemplated by articles 6 and 7 of the
Covenant. Therefore, even when it is found that the reported conversion is not sincere, the
authorities should proceed to assess whether, in the circumstances of the case, the asylum
seeker’s behaviour and activities in connection with, or to justify, his or her conversion, such as
attending a church, being baptized or participating in proselytizing activities, could have serious
adverse consequences in the country of origin so as to put him or her at risk of irreparable
harm.
9. The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that the
author’s removal to the Islamic Republic of Iran would, if implemented, violate his rights under
articles 6 and 7 of the Covenant.
10. In accordance with article 2 (1) of the Covenant, in which it is established that States
parties undertake to respect and to ensure to all individuals within their territory and subject to
their jurisdiction the rights recognized in the Covenant, the State party is under an obligation to
proceed to a review of the author’s case taking into account the State party’s obligations under
the Covenant and the Committee’s present Views. The State party is also requested to refrain
from expelling the author while his request for asylum is being reconsidered.
11. Bearing in mind that, by becoming a party to the Optional Protocol, the State party
has recognized the competence of the Committee to determine whether there has been a
violation of the Covenant and that, pursuant to article 2 of the Covenant, the State party has
undertaken to ensure to all individuals within its territory and subject to its jurisdiction the
rights recognized in the Covenant and to provide an effective and enforceable remedy when
it has been determined that a violation has occurred, the Committee wishes to receive from
the State party, within 180 days, information about the measures taken to give effect to the
Committee’s Views. The State party is also requested to publish the present Views.

Previously, the special position of children of refugees and refugee children has been mentioned.
Special consideration must be given to children when termination of status as a refugee may affect
the family relationship.
 REFUGEES AND STATELESS PERSONS | 473

UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD 1989, Article 9

1 States Parties shall ensure that a child shall not be separated from his or her parents
against their will, except when competent authorities subject to judicial review determine,
in accordance with applicable law and procedures, that such separation is necessary
for the best interests of the child. Such determination may be necessary in a particular
case such as one involving abuse or neglect of the child by the parents, or one where
the parents are living separately and a decision must be made as to the child’s place of
residence.
2 In any proceedings pursuant to paragraph I of the present article, all interested parties
shall be given an opportunity to participate in the proceedings and make their views
known.
3 States Parties shall respect the right of the child who is separated from one or both
parents to maintain personal relations and direct contact with both parents on a regular
basis, except if it is contrary to the child’s best interests.
4 Where such separation results from any action initiated by a State Party, such as the
detention, imprisonment, exile, deportation or death (including death arising from any
cause while the person is in the custody of the State) of one or both parents or of the
child, that State Party shall, upon request, provide the parents, the child or, if appropriate,
another member of the family with the essential information concerning the whereabouts
of the absent member(s) of the family unless the provision of the information would
be detrimental to the well-being of the child. States Parties shall further ensure that
the submission of such a request shall of itself entail no adverse consequences for the
person(s) concerned.

Maalem v Uzbekistan, Human Rights Committee communication No. 2371/2014,

4 September 2018

The authors of the communication are Noureddine Maalem, a national of Algeria born in 1962,
and his wife, Guldez Maalem, a national of Uzbekistan born in 1974. The communication is
submitted on their own behalf and on behalf of their five children, all nationals of Uzbekistan.
Mr. Maalem is subject to deportation to Algeria, or possibly to Kazakhstan, following his
criminal conviction and sentencing to five years’ imprisonment, followed by an amnesty by
court decision on 24 February 2014. The authors claim that the State party’s decision to expel
Mr. Maalem permanently from Uzbekistan constitutes a breach of his rights under articles 14,
23 and 24 of the Covenant and of Ms. Maalem’s and their children’s rights under articles 23 and
24 of the Covenant. Mr. Maalem also raises claims under article 7 of the Covenant.
11.3 In the present case, the Committee considers that the decision of the State party to
expel the father of five children, some of them minors, coupled with a restriction on re-entry
into the country, constitutes ‘interference’ with the family, in particular in circumstances in
which, as in the present case, substantial changes in family life would follow. In that regard, the
Committee observes that, although Mr. Maalem’s family life has been subjected to significant
restrictions during his incarceration from 2009 to 2014, he has been able to preserve and
maintain a close relationship with his family.
11.4 The Committee recalls that the notion of arbitrariness includes elements of
inappropriateness, injustice, lack of predictability and due process of law, as well as elements
of reasonableness, necessity and proportionality. The Committee also recalls that, in cases in
which one part of a family must leave the territory of the State party while the other part would
be entitled to remain, the relevant criteria for assessing whether the specific interference
with family life can be objectively justified must be considered in the light, on the one hand, of
the significance of the State party’s reasons for the removal of the person concerned and, on
474 | REFUGEES AND STATELESS PERSONS

the other hand, of the degree of hardship the family and its members would encounter as a
consequence of such removal.
11.5 In the present case, the Committee observes that Mr. Maalem’s removal pursued a
legitimate objective, which is the consequence of the enforcement of the State party’s criminal
law. In addition, the State party explained that the decision to expel Mr. Maalem was issued
on 24 February 2014 and upheld on cassation on 25 March 2014. The Committee notes that
subsequently, on 5 May 2014, the Tashkent Mirzo-Ulugbek Civil Inter-district Court temporarily
suspended the execution of the expulsion decision as child support was due to be paid by
Mr. Maalem to his minor children, and his residence permit was extended until 17 April 2020.
However, the Committee also notes Mr. Maalem’s argument that the State party applied
retroactively to his case a more severe and restrictive version of the regulation providing for
mandatory expulsion and a subsequent re-entry ban, which allows no exception, rather than an
earlier version of the regulation under which convicted aliens who had lawful grounds to reside
in the State party would not automatically be subjected to expulsion.
11.6 The Committee notes that the State party justifies Mr. Maalem’s removal from the
country by the fact that he was convicted of the offence of human trafficking and subsequently
granted amnesty, which leads automatically, without exception, to the expulsion of aliens who
have been lawfully residing in Uzbekistan. Furthermore, the State party is of the view that
the expulsion decision is fully in line with domestic legislation and serves a legitimate State
interest. However, it is to be noted that Mr. Maalem has served his sentence and that there is no
evidence that he constitutes a security problem for the State party. The Committee takes note
of the authors’ argument that their children cannot be expected to follow their father to Algeria,
as they are Uzbek nationals and have no ties with that country. The Committee also notes that
if Mr. Maalem were to be deported to Algeria – a country that he left more than 30 years ago –
the nature and quality of his family relationships could not be adequately maintained through
regular visits, due to the re-entry restrictions imposed on him.
The issuance of an expulsion order against Mr. Maalem presented the authors with the
choice of leaving the State party as a family unit, and exposing their children to unforeseen
challenges, or breaking up the family unit. Either alternative confronting the family would not
have been in the best interests of the children. It is undisputed that Mr. Maalem left Algeria
when he was young, has resided for more than 30 years in Uzbekistan and has established
connections with the State party. The State party has not adequately explained why its legitimate
objective in upholding its criminal policy concerning aliens on its territory, notably applying
retroactively a more restrictive version of the regulation providing for automatic expulsion,
without exception, of aliens who have committed crimes and served their sentences should
have outweighed the best interests of the authors’ children. In the light of all the circumstances
of the present case, the Committee considers that the expulsion order issued against Mr.
Maalem constituted disproportionate interference with the family life of both authors and their
children, which cannot be justified in the light of the reasons invoked by the State party to
remove him to Algeria. The Committee concludes that Mr. Maalem’s expulsion order resulted
in arbitrary interference with the right to family life, in breach of article 17 (1), read alone and
in conjunction with article 23 (1), of the Covenant, in respect of the authors and their children.
11.8 Concerning the claim under article 24, the Committee reiterates that the principle of
the best interests of the child forms an integral part of every child’s right to such measures of
protection as required by his or her status as a minor, on the part of his or her family, society
and the State, as required by article 24 (1) of the Covenant. In the light of its conclusions under
articles 17 and 23, the Committee considers that the expulsion order against Mr. Maalem has
violated article 24 owing to a failure to provide his minor children with the necessary protection
owed to them as children by the State party.
12. The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that
Mr. Maalem’s expulsion to Algeria would violate the rights of the authors and their children
 REFUGEES AND STATELESS PERSONS | 475

under article 17, read alone and in conjunction with article 23(1), of the Covenant and under
article 24 (1) of the Covenant, in relation to their minor children.

However, it should be noted that although children are a relevant consideration, they are not the
sole determinative factor. The mere presence of a child cannot automatically mean that refugee
status cannot be terminated. The following complaint was instituted by the family:

Karker v France, Communication 833/1998, Human Rights Committee UN Doc.

CCPR/C/70/D/833/1998

The salient facts are explained by the Human Rights Committee in their opinion:

2.1 In 1987, Mr. Karker, who is co-founder of the political movement Ennahdha, fled Tunisia,
where he had been sentenced to death by trial in absentia. In 1988, the French authorities
recognized him as a political refugee. On 11 October 1993, under suspicion that he actively
supported a terrorist movement, the Minister of the Interior ordered him expelled from
French territory as a matter of urgency. The expulsion order was not, however, enforced, and
instead Mr. Karker was ordered to compulsory residence in the department of Finistère. On 6
November 1993, Mr. Karker appealed the orders to the Administrative Tribunal of Paris. The
Tribunal rejected his appeals on 16 December 1994, considering that the orders were lawful.
The Tribunal considered that from the information before it, it appeared that the Ministry of
the Interior was in possession of information showing that Mr. Karker maintained close links
with Islamic organizations which use violent methods, and that in the light of the situation in
France the Minister could have concluded legally that Mr. Karker’s expulsion was imperative
for reasons of public security. It also considered that the resulting interference with Mr.
Karker’s family life was justifiable for reasons of ordre public. The Tribunal considered that
the compulsory residence order, issued by the Minister in order to allow Mr. Karker to find
a third country willing to receive him, was lawful . . . in view of the fact that Mr. Karker was a
recognized political refugee and could not be returned to Tunisia. On 29 December 1997, the
Council of State rejected Mr. Karker’s further appeal.

2.2 Following the orders, Mr. Karker was placed in a hotel in the department of Finistère, then
he was transferred to Brest. Allegedly because of media pressure, he was then transferred to St.
Julien in the Loire area, and from there to Cayres, and subsequently to the South East of France.
Lastly, in October 1995, he was assigned to Digne-les-Bains (Alpes de Haute Provence), where
he has resided since. According to the order fixing the conditions of his residence in Digne-les-
Bains, Mr. Karker is required to report to the police once a day. The author emphasizes that her
husband has not been brought before the courts in connection with the suspicions against him.

2.3 The author states that she lives in Paris with her six children, a thousand kilometres away
from her husband. She states that it is difficult to maintain personal contact with her husband. On
3 April 1998, Mr. Karker was sentenced to a suspended sentence of six months’ imprisonment for
having breached the compulsory residence order by staying with his family during three weeks.

. . .

9.2 The Committee notes that Mr. Karker’s expulsion was ordered in October 1993, but that
his expulsion could not be enforced, following which his residence in France was subjected to
restrictions of his freedom of movement. The State party has argued that the restrictions of
which the author is subjected are necessary for reasons of national security. In this respect, the
State party produced evidence to the domestic courts that Mr. Karker was an active supporter
of a movement which advocates violent action. It should also be noted that the restrictions
of movement on Mr. Karker allowed him to reside in a comparatively wide area. Moreover,
the restrictions on Mr. Karker’s freedom of movement were examined by the domestic courts
476 | REFUGEES AND STATELESS PERSONS

which, after reviewing all the evidence, held them to be necessary for reasons of national
security. Mr. Karker has only challenged the courts’ original decision on this question and chose
not to challenge the necessity of subsequent restriction orders before the domestic courts. In
these circumstances, the Committee is of the view that the materials before it do not allow it to
conclude that the State party has misapplied the restrictions in article 12, paragraph 3.

9.3 The Committee observes that article 13 of the Covenant provides procedural guarantees in
case of expulsion. The Committee notes that Mr. Karker’s expulsion was decided by the Minister
of the Interior for urgent reasons of public security, and that Mr. Karker was therefore not
allowed to submit reasons against his expulsion before the order was issued. He did, however,
have the opportunity to have his case reviewed by the Administrative Tribunal and the Council
of State, and at both procedures he was represented by counsel. The Committee concludes that
the facts before it do not show that article 13 has been violated in the present case.

This communication raises an issue of increasing concern to many host States. Conflict in States
can result in refugees whom the receiving State suspects are insurgents; other refugees can be sus-
pected of plotting terrorist atrocities. Irrespective of the views of the State, refugees are entitled to
protection and any deportation or alteration of status must be treated with caution.

Question
What practical options are open to a State which considers a refugee a threat to national security but realises that
returning the refugee to his or her State of origin is not compatible with obligations under international human rights?

13.4 Regional instruments and criteria for determining

refugee status and addressing refugee rights
Much of the criteria enshrined in the various regional instruments on refugees reflect that of the
1951 Refugee Convention. Elements of the European Union’s provisions have been discussed
previously and are currently under review. However, Africa and the Americas have also addressed
refugees; Africa in a binding treaty which entered into force in 1974. N.B. Regional instruments
generally post-date the United Nations Convention.

13.4.1 The Americas

Within the Americas, the first regional instrument on asylum was adopted in 1889 (the Montevi-
deo Treaty on International Criminal Law, which addressed issue of asylum). A Caracas Conven-
tion on Territorial Asylum followed in 1954.

ORGANIZATION OF AMERICAN STATES CONVENTION ON TERRITORIAL ASYLUM 1954

The governments of the Member States of the Organization of American States, desirous of
concluding a Convention regarding Territorial Asylum, have agreed to the following articles:

Article I

Every State has the right, in the exercise of its sovereignty, to admit into its territory such
persons as it deems advisable, without, through the exercise of this right, giving rise to
complaint by any other State.

Article II

The respect which, according to international law, is due the Jurisdictional right of each State
over the inhabitants in its territory, is equally due, without any restriction whatsoever, to that
 REFUGEES AND STATELESS PERSONS | 477

which it has over persons who enter it proceeding from a State in which they are persecuted for
their beliefs, opinions, or political affiliations, or for acts which may be considered as political
offenses. Any violation of sovereignty that consists of acts committed by a government or its
agents in another State against the life or security of an individual, carried out on the territory
of another State, may not be considered attenuated because the persecution began outside its
boundaries or is due to political considerations or reasons of state.

Article III

No State is under the obligation to surrender to another State, or to expel from its own territory,
persons persecuted for political reasons or offenses.

Article IV

The right of extradition is not applicable in connection with persons who, in accordance with the
qualifications of the solicited State, are sought for political offenses, or for common offenses
committed for political ends, or when extradition is solicited for predominantly political motives.

Article V

The fact that a person has entered into the territorial jurisdiction of a State surreptitiously or
irregularly does not affect the provisions of this Convention.

Article VI

Without prejudice to the provisions of the following articles, no State is under the obligation to
establish any distinction in its legislation, or in its regulations or administrative acts applicable
to aliens, solely because of the fact that they are political asylees or refugees.

Article VII

Freedom of expression of thought, recognized by domestic law for all inhabitants of a State,
may not be ground of complaint by a third State on the basis of opinions expressed publicly
against it or its government by asylees or refugees, except when these concepts constitute
systematic propaganda through which they incite to the use of force or violence against the
government of the complaining State.

Article VIII

No State has the right to request that another State restrict for the political asylees or refugees
the freedom of assembly or association which the latter State’s internal legislation grants to
all aliens within its territory, unless such assembly or association has as its purpose fomenting
the use of force or violence against the government of the soliciting State.

Article IX

At the request of the interested State, the State that has granted refuge or asylum shall take
steps to keep watch over, or to intern at a reasonable distance from its border, those political
refugees or asylees who are notorious leaders of a subversive movement, as well as those
against whom there is evidence that they are disposed to join it.
Determination of the reasonable distance from the border, for the purpose of internment,
shall depend upon the judgment of the authorities of the State of refuge.
All expenses incurred as a result of the internment of political asylees and refugees shall
be chargeable to the State that makes the request.

Article X

The political internees referred to in the preceding article shall advise the government of the
host State whenever they wish to leave its territory. Departure therefrom will be granted, under
478 | REFUGEES AND STATELESS PERSONS

the condition that they are not to go to the country from which they came; and the interested
government is to be notified.

Article XI

In all cases in which a complaint or request is permissible in accordance with this Convention,
the admissibility of evidence presented by the demanding State shall depend on the judgment
of the solicited State.

The current Central American text is the 1984 Cartagena Declaration. Note this is not legally
binding.

Cartagena Declaration on Refugees, Colloquium on the International Protection of

Refugees in Central America, Mexico and Panama 1984

3. To reiterate that, in view of the experience gained from the massive flows of refugees in
the Central American area, it is necessary to consider enlarging the concept of a refugee,
bearing in mind, as far as appropriate and in the light of the situation prevailing in the region,
the precedent of the OAU Convention (article 1, paragraph 2) and the doctrine employed in the
reports of the Inter-American Commission on Human Rights. Hence the definition or concept
of a refugee to be recommended for use in the region is one which, in addition to containing
the elements of the 1951 Convention and the 1967 Protocol, includes among refugees persons
who have fled their country because their lives, safety or freedom have been threatened by
generalized violence, foreign aggression, internal conflicts, massive violation of human rights
or other circumstances which have seriously disturbed public order.
. . .
9. To express its concern at the situation of displaced persons within their own countries.
In this connection, the Colloquium calls on national authorities and the competent international
organizations to offer protection and assistance to those persons and to help relieve the
hardship which many of them face.
10. To call on States parties to the 1969 American Convention on Human Rights to apply
this instrument in dealing with asilados and refugees who are in their territories.

13.4.2 Africa
An African Convention was specifically adopted to address the growing issue of refugees in Africa.
As the preamble notes, there were increasing numbers of refugees in Africa and there was growing
unease about those abusing the concept of refugee status by deploying its protection for subversive
reasons. Given the number of civil conflicts in this region and the presence of trans-frontier guer-
rilla groups in some areas, this concern is founded. See also the Khartoum Declaration on Africa’s
Refugee Crisis, OAU Doc. BR/COM/XV/55.90 (1990).

OAU CONVENTION GOVERNING THE SPECIFIC ASPECTS OF REFUGEE PROBLEMS

IN AFRICA 1969

Article 1

Definition of the term ‘Refugee’

1 For the purposes of this Convention, the term ‘refugee’ shah mean every person who,
owing to well-founded fear of being persecuted for reasons of race, religion, nationality,
membership of a particular social group or political opinion, is outside the country of
his nationality and is unable or, owing to such fear, is unwilling to avail himself of the
protection of that country, or who, not having a nationality and being outside the country
 REFUGEES AND STATELESS PERSONS | 479

of his former habitual residence as a result of such events is unable or, owing to such fear,
is unwilling to return to it.
2 The term ‘refugee’ shall also apply to every person who, owing to external aggression,
occupation, foreign domination or events seriously disturbing public order in either part
or the whole of his country of origin or nationality, is compelled to leave his place of
habitual residence in order to seek refuge in another place outside his country of origin or
nationality.
3 In the case of a person who has several nationalities, the term ‘a country of which he is a
national’ shall mean each of the countries of which he is a national, and a person shall not
be deemed to be lacking the protection of the country of which he is a national if, without
any valid reason based on well-founded fear, he has not availed himself of the protection
of one of the countries of which he is a national.
4 This Convention shall cease to apply to any refugee if: (a) he has voluntarily re-availed
himself of the protection of the country of his nationality, or, (b) having lost his nationality,
he has voluntarily reacquired it, or, (c) he has acquired a new nationality, and enjoys the
protection of the country of his new nationality, or, (d) he has voluntarily re-established
himself in the country which he left or outside which he remained owing to fear of
persecution, or, (e) he can no longer, because the circumstances in connection with
which he was recognized as a refugee have ceased to exist, continue to refuse to avail
himself of the protection of the country of his nationality, or, (f) he has committed a serious
non-political crime outside his country of refuge after his admission to that country as a
refugee, or, (g) he has seriously infringed the purposes and objectives of this Convention.
5 The provisions of this Convention shall not apply to any person with respect to whom the
country of asylum has serious reasons for considering that: (a) he has committed a crime
against peace, a war crime, or a crime against humanity, as defined in the international
instruments drawn up to make provision in respect of such crimes; (b) he committed a
serious nonpolitical crime outside the country of refuge prior to his admission to that
country as a refugee; (c) he has been guilty of acts contrary to the purposes and principles
of the Organization of African Unity; (d) he has been guilty of acts contrary to the purposes
and principles of the United Nations.
6 For the purposes of this Convention, the Contracting State of Asylum shall determine
whether an applicant is a refugee.

Article 2

Asylum
1 Member States of the OAU shall use their best endeavours consistent with their respective
legislations to receive refugees and to secure the settlement of those refugees who,
for well-founded reasons, are unable or unwilling to return to their country of origin or
nationality.
2 The grant of asylum to refugees is a peaceful and humanitarian act and shall not be
regarded as an unfriendly act by any Member State.
3 No person shall be subjected by a Member State to measures such as rejection at the
frontier, return or expulsion, which would compel him to return to or remain in a territory
where his life, physical integrity or liberty would be threatened for the reasons set out in
Article 1, paragraphs 1 and 2.
4 Where a Member State finds difficulty in continuing to grant asylum to refugees, such
Member State may appeal directly to other Member States and through the OAU, and such
other Member States shall in the spirit of African solidarity and international co-operation
take appropriate measures to lighten the burden of the Member State granting asylum.
5 Where a refugee has not received the right to reside in any country of asylum, he may be
granted temporary residence in any country of asylum in which he first presented himself
480 | REFUGEES AND STATELESS PERSONS

as a refugee pending arrangement for his resettlement in accordance with the preceding
paragraph.
6 For reasons of security, countries of asylum shall, as far as possible, settle refugees at a
reasonable distance from the frontier of their country of origin.

13.4.3 Europe
The Dublin Regulation (Regulation No. 604/2013) is a European Union (EU) law that deter-
mines which EU Member State is responsible for the examination of an application for asylum,
submitted by persons seeking international protection under the Geneva Convention and the EU
Qualification Directive, within the European Union.

REGULATION (EU) No. 604/2013 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 26 June 2013

CHAPTER II GENERAL PRINCIPLES AND SAFEGUARDS

Article 3 Access to the procedure for examining an application for international protection
1. Member States shall examine any application for international protection by a third-
country national or a stateless person who applies on the territory of any one of them,
including at the border or in the transit zones. The application shall be examined by a single
Member State, which shall be the one which the criteria set out in Chapter III indicate is
responsible.
2. Where no Member State responsible can be designated on the basis of the criteria listed
in this Regulation, the first Member State in which the application for international protection
was lodged shall be responsible for examining it.
Where it is impossible to transfer an applicant to the Member State primarily designated
as responsible because there are substantial grounds for believing that there are systemic
flaws in the asylum procedure and in the reception conditions for applicants in that Member
State, resulting in a risk of inhuman or degrading treatment within the meaning of Article 4 of
the Charter of Fundamental Rights of the European Union, the determining Member State shall
continue to examine the criteria set out in Chapter III in order to establish whether another
Member State can be designated as responsible.
Where the transfer cannot be made pursuant to this paragraph to any Member State
designated on the basis of the criteria set out in Chapter III or to the first Member State with
which the application was lodged, the determining Member State shall become the Member
State responsible.

13.4.4 Other regions

There is currently no regional instrument addressing refugee law in the Middle East or Asia
though commitments to addressing the issues of refugees and migrants are found in the 2016
General Assembly Resolution 71/1 New York Declaration for Refugees and Migrants. This was a
landmark international discussion on the subject.

13.4.4.1 The Middle East and Asia

There are no binding regional instruments addressing refugee law in the Middle East or Asia. In
1994, the Arab Convention on Regulating Status of Refugees in the Arab Countries was adopted
by the League of Arab States (LAS), but it never entered into force. In October 2017 the League
of Arab States adopted a new Arab Convention on refugees.
In 2001, Asian and African countries adopted the revised Bangkok Principles on the status
and treatment of refugees. Both the proposed Arab Convention and the Bangkok Principles use
 REFUGEES AND STATELESS PERSONS | 481

the refugee definition contained in the 1969 OAU Refugee Convention. The Arab Convention
extends it further to persons fleeing disasters or other grave events disrupting public order.
In 2012, Member States of the Organization of Islamic Cooperation adopted the Ashga-
bat Declaration at a ministerial conference in Turkmenistan. The Declaration recognizes that
‘over fourteen centuries ago, Islam laid down the basis for granting refuge, which is now deeply
ingrained in Islamic faith, heritage and tradition’. The ministers also noted the ‘enduring value
and relevance in the twenty-first century’ of the 1951 Convention and 1967 Protocol and ‘the
importance of respecting the principles and values that underlie these instruments’.
These non-binding documents are important but have not achieved the same prominence
and legal value as instruments in other regions.

Question
Are there any differences between the 1951 UN Convention and the regional criteria and approaches just outlined?

Africa often has a significant number of refugees and thus there is often a need for a coordinated
response thereto – the African Union and NGOs regularly work together.

13.5 Rights of refugees

Once refugee status is established, a range of rights are guaranteed to the refugee. In general,
these rights reflect those basic rights ascribed to all individuals. In particular, the rights are similar
to those guaranteed as a minimum standard of treatment to aliens. The current international law
on the standard of treatment to be accorded to aliens is found in the ‘Declaration on the Human
Rights of Individuals Who are not Nationals of the Country in which They Live’, which was
adopted by General Assembly Resolution 40/144 of 13 December 1985. The rights therein codify
elements of existing customary international law.

UNITED NATIONS GENERAL ASSEMBLY DECLARATION ON THE HUMAN RIGHTS

OF INDIVIDUALS WHO ARE NOT NATIONALS OF THE COUNTRY IN WHICH THEY
LIVE Res. 40/144 1985

Article 1

For the purposes of this Declaration, the term ‘alien’ shall apply, with due regard to qualifications
made in subsequent articles, to any individual who is not a national of the State in which he or
she is present.
. . .

Article 5

1 Aliens shall enjoy, in accordance with domestic law and subject to the relevant international
obligations of the State in which they are present, in particular the following rights:

(a) The right to life and security of person; no alien shall be subjected to arbitrary arrest
or detention; no alien shall be deprived of his or her liberty except on such grounds
and in accordance with such procedures as are established by law;
(b) The right to protection against arbitrary or unlawful interference with privacy, family,
home or correspondence;
(c) The right to be equal before the courts, tribunals and all other organs and interpreter
in criminal proceedings and, when prescribed by law, other proceedings;
(d) The right to choose a spouse, to marry, to found a family;
482 | REFUGEES AND STATELESS PERSONS

(e) The right to freedom of thought, opinion, conscience and religion; the right to manifest
their religion or beliefs, subject only to such limitations as are prescribed by law and
are necessary to protect public safety, order, health or morals or the fundamental
rights and freedoms of others;
(f) The right to retain their own language, culture and tradition;
(g) The right to transfer abroad earnings, savings or other personal monetary assets,
subject to domestic currency regulations.

2 Subject to such restrictions as are prescribed by law and which are necessary in a
democratic society to protect national security, public safety, public order, public health
or morals or the rights and freedoms of others, and which are consistent with the other
rights recognized in the relevant international instruments and those set forth in this
Declaration, aliens shall enjoy the following rights:

(a) The right to leave the country;

(b) The right to freedom of expression;
(c) The right to peaceful assembly;
(d) The right to own property alone as well as in association with others, subject to
domestic law.

3 Subject to the provisions referred to in paragraph 2, aliens lawfully in the territory of a

State shall enjoy the right to liberty of movement and freedom to choose their residence
within the borders of the State.
4 Subject to national legislation and due authorization, the spouse and minor or dependent
children of an alien lawfully residing in the territory of a State shall be admitted to
accompany, join and stay with the alien.

Article 6

No alien shall be subjected to torture or to cruel, inhuman or degrading treatment or

punishment and, in particular, no alien shall be subjected without his or her free consent to
medical or scientific experimentation.

Article 7

An alien lawfully in the territory of a State may be expelled therefore only in pursuance of
a decision reached in accordance with law and shall, except where compelling reasons of
national security otherwise require, be allowed to submit the reasons why he or she should not
be expelled and to have the case reviewed by, and be represented for the purpose before, the
competent authority or a person or persons specially designated by the competent authority.
Individual or collective expulsion of such aliens on grounds of race, colour, religion, culture,
descent or national or ethnic origin is prohibited.

Article 8

1 Aliens lawfully residing in the territory of a State shall also enjoy, in accordance with the
national laws, the following rights, subject to their obligations under article 4:

(a) The right to safe and healthy working conditions, to fair wages and equal remuneration
for work of equal value without distinction of any kind, in particular, women being
guaranteed conditions of work not inferior to those enjoyed by men, with equal pay
for equal work;
(b) The right to join trade unions and other organizations or associations of their choice
and to participate in their activities. No restrictions may be placed on the exercise
of this right other than those prescribed by law and which are necessary, in a
democratic society, in the interests of national security or public order or for the
protection of the rights and freedoms of others;
 REFUGEES AND STATELESS PERSONS | 483

(c) The right to health protection, medical care, social security, social services, education,
rest and leisure, provided that they fulfil the requirements under the relevant regulations
for participation and that undue strain is not placed on the resources of the State.

2 With a view to protecting the rights of aliens carrying on lawful paid activities in the country
in which they are present, such rights may be specified by the Governments concerned in
multilateral or bilateral conventions.

Article 9

No alien shall be arbitrarily deprived of his or her lawfully acquired assets. . . .

Inevitably many of these rights are core human rights. Note particularly, the protection of
cultural and religious rights. These can prove challenging for reception States but are imperative
as it is important for refugees to maintain all aspects of their pre-existing identity. With respect
to many rights, such as employment, it is important to remember that many States only choose
to accord them to refugees once their status has been recognised. Unfortunately, this process
can take some time, months or even years. Accordingly, refugees may find themselves at the
mercy of the subsistence provisions offered by the State for a prolonged period of time.

Charter of Fundamental Rights of the European Union, 2000

Article 19

Protection in the event of removal, expulsion or extradition

1 Collective expulsions are prohibited.

2 No one may be removed, expelled or extradited to a State where there is a serious risk that
he or she would be subjected to the death penalty, torture or other inhuman or degrading
treatment or punishment.

Question
How realistic is it for States to give effect to these rights, given the numbers involved?

13.5.1 Refugees as aliens

As is apparent, aliens are entitled to civil, political, economic, social and cultural rights. These are
arguably the range of rights which are most fundamental to all. So too the rights accorded to refu-
gees. Unsurprisingly, refugees are entitled to a similar range of civil, political, economic and social
rights – see the text of the 1951 Convention for details.

UNITED NATIONS CONVENTION RELATING TO THE STATUS OF REFUGEES 1951

Article 12. – Personal status

1 The personal status of a refugee shall be governed by the law of the country of his domicile
or, if he has no domicile, by the law of the country of his residence.
2 Rights previously acquired by a refugee and dependent on personal status, more
particularly rights attaching to marriage, shall be respected by a Contracting State,
subject to compliance, if this be necessary, with the formalities required by the law of that
State, provided that the right in question is one which would have been recognized by the
law of that State had he not become a refugee.

Article 13. – Movable and immovable property

The Contracting States shall accord to a refugee treatment as favourable as possible and, in any
event, not less favourable than that accorded to aliens generally in the same circumstances,
as regards the acquisition of movable and immovable property and other rights pertaining
thereto, and to leases and other contracts relating to movable and immovable property.
484 | REFUGEES AND STATELESS PERSONS

Article 14. – Artistic rights and industrial property

In respect of the protection of industrial property, such as inventions, designs or models, trade
marks, trade names, and of rights in literary, artistic and scientific works, a refugee shall
be accorded in the country in which he has his habitual residence the same protection as is
accorded to nationals of that country. In the territory of any other Contracting States, he shall
be accorded the same protection as is accorded in that territory to nationals of the country in
which he has his habitual residence.

Note the references to refugees being treated in a manner similar to aliens.

Question
Given that refugees may influx in greater numbers than aliens, what impact do the rights enshrined in the
Refugee Convention have on the resources of States?

13.5.2 Equality of treatment and the need for subsistence

In other matters, refugees are entitled to the same treatment as nationals of the host Member State.
When considering the following elements of the United Nations Convention, consider in particu-
lar the extent to which these rights provide measured relief for a State inundated with refugees.

UNITED NATIONS CONVENTION RELATING TO THE STATUS OF REFUGEES 1951

Article 17. – Wage-earning employment

1 The Contracting States shall accord to refugees lawfully staying in their territory
the most favourable treatment accorded to nationals of a foreign country in the same
circumstances, as regards the right to engage in wage-earning employment.
2 In any case, restrictive measures imposed on aliens or the employment of aliens for the
protection of the national labour market shall not be applied to a refugee who was already
exempt from them at the date of entry into force of this Convention for the Contracting
State concerned, or who fulfils one of the following conditions:

(a) He has completed three years’ residence in the country;

(b) He has a spouse possessing the nationality of the country of residence. A refugee
may not invoke the benefit of this provision if he has abandoned his spouse;
(c) He has one or more children possessing the nationality of the country of residence.

3 The Contracting States shall give sympathetic consideration to assimilating the rights
of all refugees with regard to wage-earning employment to those of nationals, and in
particular of those refugees who have entered their territory pursuant to programmes of
labour recruitment or under immigration schemes.

Article 18. – Self-employment

The Contracting States shall accord to a refugee lawfully in their territory treatment as
favourable as possible and, in any event, not less favourable than that accorded to aliens
generally in the same circumstances, as regards the right to engage on his own account in
agriculture, industry, handicrafts and commerce and to establish commercial and industrial
companies.

Article 19. – Liberal professions

1 Each Contracting State shall accord to refugees lawfully staying in their territory who hold
diplomas recognized by the competent authorities of that State, and who are desirous of
 REFUGEES AND STATELESS PERSONS | 485

practising a liberal profession, treatment as favourable as possible and, in any event, not
less favourable than that accorded to aliens generally in the same circumstances.
2 The Contracting States shall use their best endeavours consistently with their laws and
constitutions to secure the settlement of such refugees in the territories, other than the
metropolitan territory, for whose international relations they are responsible.

In general, the Convention focuses on non-discrimination. Given that refugees are already vulner-
able, the tenor of the Convention is to prevent further disadvantages by ensuring that refugees are
treated in a manner similar to nationals with respect to basic necessities. The United Kingdom, for
example, has been criticised for the length of time taken to recognise the status of those seeking
asylum. During the verification process, asylum-seekers are not usually entitled to work, relying
instead on the basic support provided by the State.

UNITED NATIONS CONVENTION RELATING TO THE STATUS OF REFUGEES 1951

Article 20. – Rationing

Where a rationing system exists, which applies to the population at large and regulates the
general distribution of products in short supply, refugees shall be accorded the same treatment
as nationals.

Article 21. – Housing

As regards housing, the Contracting States, in so far as the matter is regulated by laws or
regulations or is subject to the control of public authorities, shall accord to refugees lawfully
staying in their territory treatment as favourable as possible and, in any event, not less
favourable than that accorded to aliens generally in the same circumstances.

Article 22. – Public education

1 The Contracting States shall accord to refugees the same treatment as is accorded to
nationals with respect to elementary education.
2 The Contracting States shall accord to refugees treatment as favourable as possible,
and, in any event, not less favourable than that accorded to aliens generally in the same
circumstances, with respect to education other than elementary education and, in
particular, as regards access to studies, the recognition of foreign school certificates,
diplomas and degrees, the remission of fees and charges and the award of scholarships.

Article 23. – Public relief

The Contracting States shall accord to refugees lawfully staying in their territory the same
treatment with respect to public relief and assistance as is accorded to their nationals.

Article 24. – Labour legislation and social security

1 The Contracting States shall accord to refugees lawfully staying in their territory the same
treatment as is accorded to nationals in respect of the following matters;

(a) In so far as such matters are governed by laws or regulations or are subject to the
control of administrative authorities: remuneration, including family allowances
where these form part of remuneration, hours of work, overtime arrangements,
holidays with pay, restrictions on home work, minimum age of employment,
apprenticeship and training, women’s work and the work of young persons, and the
enjoyment of the benefits of collective bargaining;
(b) Social security (legal provisions in respect of employment injury, occupational diseases,
maternity, sickness, disability, old age, death, unemployment, family responsibilities
486 | REFUGEES AND STATELESS PERSONS

and any other contingency which, according to national laws or regulations, is covered
by a social security scheme), subject to the following limitations:

(i) There may be appropriate arrangements for the maintenance of acquired rights
and rights in course of acquisition;
(ii) National laws or regulations of the country of residence may prescribe special
arrangements concerning benefits or portions of benefits which are payable
wholly out of public funds, and concerning allowances paid to persons who
do not fulfil the contribution conditions prescribed for the award of a normal
pension.

2 The right to compensation for the death of a refugee resulting from employment injury
or from occupational disease shall not be affected by the fact that the residence of the
beneficiary is outside the territory of the Contracting State.
3 The Contracting States shall extend to refugees the benefits of agreements concluded
between them, or which may be concluded between them in the future, concerning the
maintenance of acquired rights and rights in the process of acquisition in regard to social
security, subject only to the conditions which apply to nationals of the States signatory to
the agreements in question.
4 The Contracting States will give sympathetic consideration to extending to refugees so far
as possible the benefits of similar agreements which may at any time be in force between
such Contracting States and non-Contracting States.

Refugees are also entitled to freedom of movement and to necessary identity and travel documen-
tation to facilitate this (Articles 26–28). Obviously, not all refugees will be in a position to flee with
full documentation. In the current political climate, this is obviously quite problematic. Article
28(2) provides an exception: States are permitted to not issue travel documentation if national
security and public order so dictate.

Question
To what extent is this a reasonable limitation given the much vocalised terrorist fears in some countries?

13.5.3 Increasing vulnerability – conflict situations

Refugees are inherently vulnerable, being inevitably dependent on receiving States for their sur-
vival. This can be problematic in, for example, sub-Saharan Africa when the receiving State lacks
the financial and other resources necessary to guarantee the safety and survival of the refugee
population. Some 80 per cent of refugees are women and children, both recognised vulnerable
groups in themselves. While many refugees flee from natural disasters, many seek refuge from
conflict. The origins of contemporary provisions on refugees date to the Second World War also
the following provisions on protecting civilians displaced by conflict.

FOURTH GENEVA CONVENTION RELATIVE TO THE PROTECTION OF CIVILIAN PERSONS

IN TIME OF WAR 1949

Art. 35. All protected persons who may desire to leave the territory at the outset of, or
during a conflict, shall be entitled to do so, unless their departure is contrary to the
national interests of the State. The applications of such persons to leave shall be decided in
accordance with regularly established procedures and the decision shall be taken as rapidly
as possible. Those persons permitted to leave may provide themselves with the necessary
funds for their journey and take with them a reasonable amount of their effects and articles
of personal use.
 REFUGEES AND STATELESS PERSONS | 487

If any such person is refused permission to leave the territory, he shall be entitled to
have refusal reconsidered, as soon as possible by an appropriate court or administrative board
designated by the Detaining Power for that purpose.
Upon request, representatives of the Protecting Power shall, unless reasons of security
prevent it, or the persons concerned object, be furnished with the reasons for refusal of any
request for permission to leave the territory and be given, as expeditiously as possible, the
names of all persons who have been denied permission to leave.
Art. 36. Departures permitted under the foregoing Article shall be carried out in
satisfactory conditions as regards safety, hygiene, sanitation and food. All costs in connection
therewith, from the point of exit in the territory of the Detaining Power, shall be borne by the
country of destination, or, in the case of accommodation in a neutral country, by the Power
whose nationals are benefited. The practical details of such movements may, if necessary, be
settled by special agreements between the Powers concerned.
The foregoing shall not prejudice such special agreements as may be concluded between
Parties to the conflict concerning the exchange and repatriation of their nationals in enemy
hands.
Art. 37. Protected persons who are confined pending proceedings or serving a sentence
involving loss of liberty, shall during their confinement be humanely treated.
As soon as they are released, they may ask to leave the territory in conformity with the
foregoing Articles.
Art. 38. With the exception of special measures authorized by the present Convention, in
particular by Article 27 and 41 thereof, the situation of protected persons shall continue to be
regulated, in principle, by the provisions concerning aliens in time of peace. In any case, the
following rights shall be granted to them:

(1) they shall be enabled to receive the individual or collective relief that may be sent to them.
(2) they shall, if their state of health so requires, receive medical attention and hospital
treatment to the same extent as the nationals of the State concerned.
(3) they shall be allowed to practise their religion and to receive spiritual assistance from
ministers of their faith.
(4) if they reside in an area particularly exposed to the dangers of war, they shall be authorized
to move from that area to the same extent as the nationals of the State concerned.
(5) children under fifteen years, pregnant women and mothers of children under seven years
shall benefit by any preferential treatment to the same extent as the nationals of the State
concerned.

Art. 39. Protected persons who, as a result of the war, have lost their gainful employment,
shall be granted the opportunity to find paid employment. That opportunity shall, subject to
security considerations and to the provisions of Article 40, be equal to that enjoyed by the
nationals of the Power in whose territory they are.
Where a Party to the conflict applies to a protected person methods of control which result
in his being unable to support himself, and especially if such a person is prevented for reasons
of security from finding paid employment on reasonable conditions, the said Party shall ensure
his support and that of his dependents.
Protected persons may in any case receive allowances from their home country, the
Protecting Power, or the relief societies referred to in Article 30.
Art. 40. Protected persons may be compelled to work only to the same extent as nationals
of the Party to the conflict in whose territory they are.
If protected persons are of enemy nationality, they may only be compelled to do work
which is normally necessary to ensure the feeding, sheltering, clothing, transport and health of
human beings and which is not directly related to the conduct of military operations.
488 | REFUGEES AND STATELESS PERSONS

In the cases mentioned in the two preceding paragraphs, protected persons compelled
to work shall have the benefit of the same working conditions and of the same safeguards
as national workers in particular as regards wages, hours of labour, clothing and equipment,
previous training and compensation for occupational accidents and diseases.
If the above provisions are infringed, protected persons shall be allowed to exercise their
right of complaint in accordance with Article 30.
Art. 41. Should the Power, in whose hands protected persons may be, consider the
measures of control mentioned in the present Convention to be inadequate, it may not have
recourse to any other measure of control more severe than that of assigned residence or
internment, in accordance with the provisions of Articles 42 and 43.
In applying the provisions of Article 39, second paragraph, to the cases of persons
required to leave their usual places of residence by virtue of a decision placing them in
assigned residence elsewhere, the Detaining Power shall be guided as closely as possible by
the standards of welfare set forth in Part III, Section IV of this Convention.
Art. 42. The internment or placing in assigned residence of protected persons may be
ordered only if the security of the Detaining Power makes it absolutely necessary.
If any person, acting through the representatives of the Protecting Power, voluntarily
demands internment, and if his situation renders this step necessary, he shall be interned by
the Power in whose hands he may be.
Art. 43. Any protected person who has been interned or placed in assigned residence shall
be entitled to have such action reconsidered as soon as possible by an appropriate court or
administrative board designated by the Detaining Power for that purpose. If the internment or
placing in assigned residence is maintained, the court or administrative board shall periodically,
and at least twice yearly, give consideration to his or her case, with a view to the favourable
amendment of the initial decision, if circumstances permit.
Unless the protected persons concerned object, the Detaining Power shall, as rapidly
as possible, give the Protecting Power the names of any protected persons who have been
interned or subjected to assigned residence, or who have been released from internment or
assigned residence. The decisions of the courts or boards mentioned in the first paragraph of
the present Article shall also, subject to the same conditions, be notified as rapidly as possible
to the Protecting Power.
Art. 44. In applying the measures of control mentioned in the present Convention, the
Detaining Power shall not treat as enemy aliens exclusively on the basis of their nationality de
jure of an enemy State, refugees who do not, in fact, enjoy the protection of any government.
Art. 45. Protected persons shall not be transferred to a Power which is not a party to the
Convention.
This provision shall in no way constitute an obstacle to the repatriation of protected
persons, or to their return to their country of residence after the cessation of hostilities.
Protected persons may be transferred by the Detaining Power only to a Power which is
a party to the present Convention and after the Detaining Power has satisfied itself of the
willingness and ability of such transferee Power to apply the present Convention. If protected
persons are transferred under such circumstances, responsibility for the application of
the present Convention rests on the Power accepting them, while they are in its custody.
Nevertheless, if that Power fails to carry out the provisions of the present Convention in any
important respect, the Power by which the protected persons were transferred shall, upon
being so notified by the Protecting Power, take effective measures to correct the situation or
shall request the return of the protected persons. Such request must be complied with.
In no circumstances shall a protected person be transferred to a country where he or she
may have reason to fear persecution for his or her political opinions or religious beliefs.
The provisions of this Article do not constitute an obstacle to the extradition, in pursuance
of extradition treaties concluded before the outbreak of hostilities, of protected persons
accused of offences against ordinary criminal law.
 REFUGEES AND STATELESS PERSONS | 489

Art. 46. In so far as they have not been previously withdrawn, restrictive measures taken
regarding protected persons shall be cancelled as soon as possible after the close of hostilities.
Restrictive measures affecting their property shall be cancelled, in accordance with the
law of the Detaining Power, as soon as possible after the close of hostilities.

The Geneva Convention clearly includes protection for refugees and other displaced persons.
Inevitably civil wars still characterise our world and a large number of refugees are displaced
though conflict. This is particularly evident in Africa and Asia (e.g. Afghanistan).

13.6 Granting asylum to refugees and others

While there is nothing in the United Nations Convention on the granting of asylum to refugees,
the matter has been considered by the General Assembly of the United Nations, regional bodies
such as the European Union, and of course the High Commissioner for Refugees. The spirit of
the Universal Declaration on Human Rights suggests that asylum policies adopted by States should
be construed generously, to ensure respect for human dignity. This is further corroborated by the
preambular paragraphs preceding the Convention relating to the Status of Refugees.

UNITED NATIONS CONVENTION RELATING TO THE STATUS OF REFUGEES 1951, Preamble

The High Contracting Parties,

Considering that the Charter of the United Nations and the Universal Declaration of
Human Rights approved on 10 December 1948 by the General Assembly have affirmed
the principle that human beings shall enjoy fundamental rights and freedoms without
discrimination,
Considering that the United Nations has, on various occasions, manifested its profound
concern for refugees and endeavoured to assure refugees the widest possible exercise of these
fundamental rights and freedoms,
Considering that the grant of asylum may place unduly heavy burdens on certain countries,
and that a satisfactory solution of a problem of which the United Nations has recognized the
international scope and nature recognized the internal scope and nature cannot therefore be
achieved without international co-operation,
Expressing the wish that all States, recognizing the social and humanitarian nature of
the problem of refugees, will do everything within their power to prevent this problem from
becoming a cause of tension between States,. . .

Question
Consider the scope of the Refugee Convention 1951 and the 1967 Protocol. What reasons could explain the
omission of asylum guidelines from these instruments?

Ever more people are seeking asylum in third countries and not necessarily only refugees falling
within the 1951 convention. As the following extract makes clear, asylum is excluded as an option
for those engaged in activities contrary to the purposes of the UN, or those suspected as trying to
escape prosecution for war crimes etc.

UNITED NATIONS DECLARATION ON TERRITORIAL ASYLUM, GENERAL ASSEMBLY RESOLUTION

2312 (XXII) (1967)

Article 1

1 Asylum granted by a State, in the exercise of its sovereignty, to persons entitled to invoke
article 14 of the Universal Declaration of Human Rights, including persons struggling
against colonialism, shall be respected by all other States.
490 | REFUGEES AND STATELESS PERSONS

2 The right to seek and to enjoy asylum may not be invoked by any person with respect
to whom there are serious reasons for considering that he has committed a crime
against peace, a war crime or a crime against humanity, as defined in the international
instruments drawn up to make provision in respect of such crimes.
3 It shall rest with the State granting asylum to evaluate the grounds for the grant of asylum.

Article 2

1 The situation of persons referred to in article 1, paragraph 1, is, without prejudice to the
sovereignty of States and the purposes and principles of the United Nations, of concern to
the international community.
2 Where a State finds difficulty in granting or continuing to grant asylum, States individually
or jointly or through the United Nations shall consider, in a spirit of international solidarity,
appropriate measures to lighten the burden on that State.

Article 3

1 No person referred to in article 1, paragraph 1, shall be subjected to measures such as

rejection at the frontier or, if he has already entered the territory in which he seeks asylum,
expulsion or compulsory return to any State where he may be subjected to persecution.
2 Exception may be made to the foregoing principle only for overriding reasons of national
security or in order to safeguard the population, as in the case of a mass influx of persons.
3 Should a State decide in any case that exception to the principle stated in paragraph 1 of
this article would be justified, it shall consider the possibility of granting to the persons
concerned, under such conditions as it may deem appropriate, an opportunity, whether by
way of provisional asylum or otherwise, of going to another State.

Article 4

States granting asylum shall not permit persons who have received asylum to engage in
activities contrary to the purposes and principles of the United Nations.

Some constitutions recognise a right to seek and enjoy asylum in a way that confers a right on
an individual, such as in Angola, Bosnia and Herzegovina, Croatia, Germany, Guinea, Indonesia,
Mali, Montenegro, Paraguay, Portugal, Serbia, Somalia, Venezuela and the Federal Republic of
Yugoslavia.

Constitution of the Federation of Bosnia and Herzegovina, 18 March 1994

Article 2.

The Federation will provide the implementation of the highest level of the internationally
recognized rights and freedoms prescribed by the documents enlisted in the Annexes of the
Constitution. In particular:
. . .

i) To asylum

CONSTITUTION OF THE REPUBLIC OF CROATIA, 6 July 2010

Article 33

Foreign citizens and stateless persons may be granted asylum in Croatia, unless they are being
prosecuted for non-political crimes and activities contrary to the fundamental principles of
international law.
 REFUGEES AND STATELESS PERSONS | 491

No alien legally in the territory of the Republic of Croatia shall be banished or extradited
to another state, except in cases of enforcement of decisions made in compliance with an
international treaty or law

THE CONSTITUTION OF MONTENEGRO, 25 October 2007

Right to asylum Article 44

A foreign national reasonably fearing from persecution on the grounds of his/her race,
language, religion or association with a nation or a group or due to own political beliefs may
request asylum in Montenegro. A foreign national shall not be expelled from Montenegro to
where due to his race, religion, language or association with a nation he/she is threatened
with death sentence, torture, inhuman degradation, persecution or serious violation of rights
guaranteed by this Constitution. A foreign national may be expelled from Montenegro solely on
the basis of a court decision and in a procedure provided for by the law.

Constitution of the Republic of Venezuela

January 16, 1961

Article 116.

The Republic recognizes asylum in behalf of any person who is the object of persecution or is
in danger for political reasons, under the conditions and requirements established by law and
by the standards of international law.

13.7 Internally displaced persons

A more recent phenomenon has been the rise in internally displaced people, those who are forced
to leave their homes but remain in the same country. According to the Office of the High Com-
missioner of Refugees, 26.4 million people were internally displaced due to conflict. Colombia,
Sudan, Somalia, Iraq and the Democratic Republic of the Congo have the most internally dis-
placed persons.
This is a growing area of concern for the High Commission and indeed for many States.
Arguably, internally displaced persons should benefit from the protection of the complete range
of internationally recognised human rights and fundamental freedoms. In emergency situations,
certain provisions of the Geneva Conventions (humanitarian law) may apply. The prevalence of
civil conflicts and natural disasters increases the likelihood of internally displaced persons. It is
also a topic which is difficult to ascertain due to a lack of consistent data collection and analysis.
Unfortunately, space prohibits a more comprehensive discussion of the law in this area at present.
For a comprehensive analysis, see, for example, Catherine Phuong, The International Protection of
Internally Displaced Persons, 2010, Cambridge: CUP

13.8 High Commissioner for Refugees

The work of the United Nations protecting refugees is undertaken under the auspices of the
United Nations High Commissioner for Refugees. The present incumbent of the post is Mr
Filippo Grandi, the 11th High Commissioner. More information can be found on the website of
the Office of the High Commissioner (https://www.unhcr.org/uk/the-high-commissioner.html).
General Assembly Resolution 319 A (IV) of 3 December 1949, established the office of High
Commissioner, Resolution 428 (V) 1950 adopted the Statute of the Office. This resolution calls
for international cooperation in specified areas.
492 | REFUGEES AND STATELESS PERSONS

GENERAL ASSEMBLY RESOLUTION 428(V) 1950

2 Calls upon governments to co-operate with the United Nations High Commissioner for
Refugees in the performance of his functions concerning refugees falling under the
competence of his Office, especially by:

(a) Becoming parties to international conventions providing for the protection of

refugees, and taking the necessary steps of implementation under such conventions;
(b) Entering into special agreements with the High Commissioner for the execution of
measures calculated to improve the situation of refugees and to reduce the number
requiring protection;
(c) Admitting refugees to their territories, not excluding those in the most destitute
categories;
(d) Assisting the High Commissioner in his efforts to promote the voluntary repatriation
of refugees;
(e) Promoting the assimilation of refugees, especially by facilitating their naturalization;
(f) Providing refugees with travel and other documents such as would normally be
provided to other aliens by their national authorities, especially documents which
would facilitate their resettlement;
(g) Permitting refugees to transfer their assets and especially those necessary for their
resettlement;
(h) Providing the High Commissioner with information concerning the number and
condition of refugees, and laws and regulations concerning them.

Question
Look at the website of the High Commissioner for Refugees (www.unchr.org). What different States are coop-
erating with the Commissioner in the different functions noted above?

In keeping with the scope of the original UN Convention, the initial competence of the High
Commissioner was focussed on those refugees created by the World Wars (see Statute at para
6A). However, as with the UN Convention itself, the scope of responsibility has been extended
thereafter. Today the High Commissioner and his office works with a large range of people who
find themselves outwith their place of normal residence/nationality. The activities cover advocacy,
emergency response, assistance and protection of affected people and capacity building and sup-
port in States.

STATUTE OF THE OFFICE OF UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES 1950

The competence of the High Commissioner shall cease to apply to any person defined in
section A above if:

(a) He has voluntarily re-availed himself of the protection of the country of his nationality; or
(b) Having lost his nationality, he has voluntarily re-acquired it; or
(c) He has acquired a new nationality, and enjoys the protection of the country of his new
nationality; or
(d) He has voluntarily re-established himself in the country which he left or outside which he
remained owing to fear of persecution; or
(e) He can no longer, because the circumstances in connection with which he has been
recognized as a refugee have ceased to exist, claim grounds other than those of personal
convenience, for continuing to refuse to avail himself of the protection of the country of his
nationality. Reasons of a purely economic character may not be invoked; or
(f) Being a person who has no nationality, he can no longer, because the circumstances in
connection with which he has been recognized as a refugee have ceased to exist and he is
 REFUGEES AND STATELESS PERSONS | 493

able to return to the country of his former habitual residence, claim grounds other than
those of personal convenience for continuing to refuse to return to that country.

B. Any other person who is outside the country of his nationality or, if he has no nationality,
the country of his former habitual residence, because he has or had well-founded fear of
persecution by reason of his race, religion, nationality or political opinion and is unable or,
because of such fear, is unwilling to avail himself of the protection of the government of the
country of his nationality, or, if he has no nationality, to return to the country of his former
habitual residence.
7. Provided that the competence of the High Commissioner as defined in paragraph 6
above shall not extend to a person:

(a) Who is a national of more than one country unless he satisfies the provisions of the
preceding paragraph in relation to each of the countries of which he is a national; or
(b) Who is recognized by the competent authorities of the country in which he has taken
residence as having the rights and obligations which are attached to the possession of the
nationality of that country; or
(c) Who continues to receive from other organs or agencies of the United Nations protection
or assistance; or
(d) In respect of whom there are serious reasons for considering that he has committed a
crime covered by the provisions of treaties of extradition or a crime mentioned in article 6
of the London Charter of the International Military Tribunal or by the provisions of article
14, paragraph 2, of the Universal Declaration of Human Rights.

8. The High Commissioner shall provide for the protection of refugees falling under the
competence of his Office by:

(a) Promoting the conclusion and ratification of international conventions for the protection
of refugees, supervising their application and proposing amendments thereto;
(b) Promoting through special agreements with governments the execution of any measures
calculated to improve the situation of refugees and to reduce the number requiring
protection;
(c) Assisting governmental and private efforts to promote voluntary repatriation or assimilation
within new national communities;
(d) Promoting the admission of refugees, not excluding those in the most destitute categories,
to the territories of States;
(e) Endeavouring to obtain permission for refugees to transfer their assets and especially
those necessary for their resettlement;
(f) Obtaining from governments information concerning the number and conditions of
refugees in their territories and the laws and regulations concerning them;
(g) Keeping in close touch with the governments and inter-governmental organizations
concerned;
(h) Establishing contact in such manner as he may think best with private organizations
dealing with refugee questions;
(i) Facilitating the co-ordination of the efforts of private organizations concerned with the
welfare of refugees.

13.9 Stateless persons

Related to issues surrounding refugees and those seeking asylum is the problem of stateless persons.
Clearly, people without nationality are at a severe disadvantage when it comes to human rights.
494 | REFUGEES AND STATELESS PERSONS

Their legal status is compromised. In many respects the right to a nationality is a fundamental ele-
ment of the right to identity. Early indications of the importance of the right to a nationality can
be deduced from the care taken by the relevant authorities in determining the appropriate nation-
ality, in many examples of re-delineation of borders in inter-war and post-war Europe. Nationality
was a key factor in determining the composition of new States: Yugoslavia comprised the South-
ern Slavs, for example. More recently, new States have changed many nationalities.
Within the new world order, the Universal Declaration itself identifies the right to a national-
ity as a key human right.

UNIVERSAL DECLARATION OF HUMAN RIGHTS 1948

Article 15

1 Everyone has the right to a nationality.

2 No one shall be arbitrarily deprived of his nationality nor denied the right to change his
nationality.

UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD 1989

Article 8

1 The child shall be registered immediately after birth and shall have the right from birth to
a name, the right to acquire nationality and, as far as possible, the right to know and be
cared for by his or her parents.

The 1954 Convention relating to the Status of Stateless Persons applies to those not considered
to be a national by any State. Its raison d’etre is to grant stateless people the security of legitimising
certain aspects of their residency thereby giving them a legitimate basis for living in a host State.
The Convention recognises that not all stateless persons are covered by the provisions of the 1951
Convention relating to the Status of Refugees. Consequently, it was deemed desirable to create an
international instrument to regulate and hopefully improve the status of stateless persons.
There are many similarities between the provisions of the Convention relating to the Status of
Refugees and the Convention relating to the Status of Stateless Persons as will be seen. First note
the applicable definition and relevant exceptions.

CONVENTION RELATING TO THE STATUS OF STATELESS PERSONS 1954

Article 1. – Definition of the term ‘stateless person’

1 For the purpose of this Convention, the term ‘stateless person’ means a person who is not
considered as a national by any State under the operation of its law.
2 This Convention shall not apply:

(i) To persons who are at present receiving from organs or agencies of the United
Nations other than the United Nations High Commissioner for Refugees protection
or assistance so long as they are receiving such protection or assistance;
(ii) To persons who are recognized by the competent authorities of the country in which
they have taken residence as having the rights and obligations which are attached to
the possession of the nationality of that country;
(iii) To persons with respect to whom there are serious reasons for considering that:

(a) They have committed a crime against peace, a war crime, or a crime against
humanity, as defined in the international instruments drawn up to make provisions
in respect of such crimes;
 REFUGEES AND STATELESS PERSONS | 495

(b) They have committed a serious non-political crime outside the country of their
residence prior to their admission to that country;
(c) They have been guilty of acts contrary to the purposes and principles of the
United Nations.

The general provisions relating to stateless persons and the emphasis on the guarantee of basic
rights reflects the 1951 Refugee Convention as the following extract reveals. This is logical as both
sets of people are unable to live in a country of nationality. They thus lack the possibility of protec-
tion from a State of nationality, something most people take for granted.

CONVENTION RELATING TO THE STATUS OF STATELESS PERSONS 1954

Article 2. – General obligations

Every stateless person has duties to the country in which he finds himself, which require in
particular that he conform to its laws and regulations as well as to measures taken for the
maintenance of public order.

Article 3. – Non-discrimination

The Contracting States shall apply the provisions of this Convention to stateless persons
without discrimination as to race, religion or country of origin.

Article 4. – Religion

The Contracting States shall accord to stateless persons within their territories treatment at
least as favourable as that accorded to their nationals with respect to freedom to practise their
religion and freedom as regards the religious education of their children.

Article 5. – Rights granted apart from this Convention

Nothing in this Convention shall be deemed to impair any rights and benefits granted by a
Contracting State to stateless persons apart from this Convention.

Article 6. – The term ‘in the same circumstances’

For the purpose of this Convention, the term ‘in the same circumstances’ implies that any
requirements (including requirements as to length and conditions of sojourn or residence)
which the particular individual would have to fulfil for the enjoyment of the right in question,
if he were not a stateless person, must be fulfilled by him, with the exception of requirements
which by their nature a stateless person is incapable of fulfilling.

Article 7. – Exemption from reciprocity

1 Except where this Convention contains more favourable provisions, a Contracting State
shall accord to stateless persons the same treatment as is accorded to aliens generally.
2 After a period of three years’ residence, all stateless persons shall enjoy exemption from
legislative reciprocity in the territory of the Contracting States.
3 Each Contracting State shall continue to accord to stateless persons the rights and
benefits to which they were already entitled, in the absence of reciprocity, at the date of
entry into force of this Convention for that State.
4 The Contracting States shall consider favourably the possibility of according to
stateless persons, in the absence of reciprocity, rights and benefits beyond those to
which they are entitled according to paragraphs 2 and 3, and to extending exemption
from reciprocity to stateless persons who do not fulfil the conditions provided for in
paragraphs 2 and 3.
496 | REFUGEES AND STATELESS PERSONS

Article 8. – Exemption from exceptional measures

With regard to exceptional measures which may be taken against the person, property or
interests of nationals or former nationals of a foreign State, the Contracting States shall not
apply such measures to a stateless person solely on account of his having previously possessed
the nationality of the foreign State in question. Contracting States which, under their legislation,
are prevented from applying the general principle expressed in this article shall, in appropriate
cases, grant exemptions in favour of such stateless persons.

Article 9. – Provisional measures

Nothing in this Convention shall prevent a Contracting State, in time of war or other grave
and exceptional circumstances, from taking provisionally measures which it considers to be
essential to the national security in the case of a particular person, pending a determination by
the Contracting State that that person is in fact a stateless person and that the continuance of
such measures is necessary in his case in the interests of national security.

Article 10. – Continuity of residence

1 Where a stateless person has been forcibly displaced during the Second World War and
removed to the territory of a Contracting State, and is resident there, the period of such
enforced sojourn shall be considered to have been lawful residence within that territory.
2 Where a stateless person has been forcibly displaced during the Second World War from
the territory of a Contracting State and has, prior to the date of entry into force of this
Convention, returned there for the purpose of taking up residence, the period of residence
before and after such enforced displacement shall be regarded as one uninterrupted
period for any purposes for which uninterrupted residence is required.

Article 11. – Stateless seamen

In the case of stateless persons regularly serving as crew members on board a ship flying
the flag of a Contracting State, that State shall give sympathetic consideration to their
establishment on its territory and the issue of travel documents to them or their temporary
admission to its territory particularly with a view to facilitating their establishment in another
country.

A full range of rights and freedoms is ascribed to stateless persons in terms of the convention. As
with refugees, the standard of care commences at the level of that to be accorded to aliens. A full
range of juridical and administrative rights ensue to ensure that the stateless person may be pro-
tected in the same manner as a national. These rights are very similar to those relating to refugees –
discussed earlier – hence are not reproduced in full.

CONVENTION RELATING TO THE STATUS OF STATELESS PERSONS 1954

Article 12. – Personal status

1 The personal status of a stateless person shall be governed by the law of the country of
his domicile or, if he has no domicile, by the law of the country of his residence.
2 Rights previously acquired by a stateless person and dependent on personal status,
more particularly rights attaching to marriage, shall be respected by a Contracting State,
subject to compliance, if this be necessary, with the formalities required by the law of that
State, provided that the right in question is one which would have been recognized by the
law of that State had he not become stateless.

Economic, social and cultural rights are also ascribed to stateless persons. Again the requisite stan-
dard is that accorded to aliens. States must clearly attempt to help stateless persons enjoy a spectrum
 REFUGEES AND STATELESS PERSONS | 497

of fundamental rights and contribute to their own existence and that of the State in which they
find themselves. These are again similar to the rights in the Convention on refugees (see Section
13.5.1). They are to be treated on a basis of non-discrimination vis-a-vis aliens and nationals, as
appropriate.
Stateless persons obviously may encounter problems leaving the State in which they find
themselves and thereafter entering other States. Accordingly, provision had to be made in the
convention to facilitate freedom of movement. A means of establishing identity is a clear precursor
to international travel. During the 1993 International Year of Indigenous People, and the ensuing
decades, the issue of establishing identity and nationality for indigenous peoples was acute. Itiner-
ant, nomadic and border peoples frequently had no clear nationality and no identity papers, thus
precluding international travel and participation in the global and even regional events scheduled
for their benefit. Travel documents are a particular issue for stateless persons as, without nationality
documents, there is no potential for legal trans-frontier travel in most of the world.
The following provisions address administrative matters, providing for acquisition of identity
and travel papers, and, ultimately, nationality.

CONVENTION RELATING TO THE STATUS OF STATELESS PERSONS 1954

Article 26. – Freedom of movement

Each Contracting State shall accord to stateless persons lawfully in its territory the right to
choose their place of residence and to move freely within its territory, subject to any regulations
applicable to aliens generally in the same circumstances.

Article 27. – Identity papers

The Contracting States shall issue identity papers to any stateless person in their territory who
does not possess a valid travel document.

Article 28. – Travel documents

The Contracting States shall issue to stateless persons lawfully staying in their territory travel
documents for the purpose of travel outside their territory, unless compelling reasons of
national security or public order otherwise require, and the provisions of the schedule to this
Convention shall apply with respect to such documents. The Contracting States may issue such
a travel document to any other stateless person in their territory; they shall in particular give
sympathetic consideration to the issue of such a travel document to stateless persons in their
territory who are unable to obtain a travel document from the country of their lawful residence.

Similar provisions to that of refugees apply to expulsion. However, with respect to stateless per-
sons, there is a further issue to consider: those who are stateless may have no State with which they
have an affiliation and thus their removal will effectively have to be to another State in which they
will also be stateless.

CONVENTION RELATING TO THE STATUS OF STATELESS PERSONS 1954

Article 31. – Expulsion

1 The Contracting States shall not expel a stateless person lawfully in their territory save on
grounds of national security or public order.
2 The expulsion of such a stateless person shall be only in pursuance of a decision reached
in accordance with due process of law. Except where compelling reasons of national
security otherwise require, the stateless person shall be allowed to submit evidence to
clear himself, and to appeal to and be represented for the purpose before competent
authority or a person or persons specially designated by the competent authority.
498 | REFUGEES AND STATELESS PERSONS

3 The Contracting States shall allow such a stateless person a reasonable period within
which to seek legal admission into another country. The Contracting States reserve the
right to apply during that period such internal measures as they may deem necessary.

Article 32. – Naturalization

The Contracting States shall as far as possible facilitate the assimilation and naturalization
of stateless persons. They shall in particular make every effort to expedite naturalization
proceedings and to reduce as far as possible the charges and costs of such proceedings.

Having established the parameters of treatment for stateless persons, the United Nations then
focused on attempts to effect a cultural change by reducing statelessness – General Assembly Reso-
lution 896 (IX) of 4 December 1954. The 1961 Convention on the Reduction of Statelessness
aims at ensuring a nationality to all those born within a contracting State. Moreover, the conven-
tion seeks to establish a framework for regulating the circumstances in which a State may remove
nationality, thereby rendering a person stateless.

CONVENTION ON THE REDUCTION OF STATELESSNESS 1961

Article 1

1 A Contracting State shall grant its nationality to a person born in its territory who would
otherwise be stateless. Such nationality shall be granted:

(a) At birth, by operation of law, or

(b) Upon an application being lodged with the appropriate authority, by or on behalf of
the person concerned, in the manner prescribed by the national law. Subject to the
provisions of paragraph 2 of this article, no such application may be rejected.

A Contracting State which provides for the grant of its nationality in accordance with
subparagraph (b) of this paragraph may also provide for the grant of its nationality by
operation of law at such age and subject to such conditions as may be prescribed by the
national law.
2 A Contracting State may make the grant of its nationality in accordance with subparagraph
(b) of paragraph 1 of this article subject to one or more of the following conditions:

(a) That the application is lodged during a period, fixed by the Contracting State,
beginning not later than at the age of eighteen years and ending not earlier than at
the age of twenty-one years, so, however, that the person concerned shall be allowed
at least one year during which he may himself make the application without having to
obtain legal authorization to do so;
(b) That the person concerned has habitually resided in the territory of the Contracting
State for such period as may be fixed by that State, not exceeding five years
immediately preceding the lodging of the application nor ten years in all;
(c) That the person concerned has neither been convicted of an offence against national
security nor has been sentenced to imprisonment for a term of five years or more on
a criminal charge;
(d) That the person concerned has always been stateless.

3 Notwithstanding the provisions of paragraphs 1(b) and 2 of this article, a child born in
wedlock in the territory of a Contracting State, whose mother has the nationality of that
State, shall acquire at birth that nationality if it otherwise would be stateless.
4 A Contracting State shall grant its nationality to a person who would otherwise be
stateless and who is unable to acquire the nationality of the Contracting State in whose
territory he was born because he has passed the age for lodging his application or has not
 REFUGEES AND STATELESS PERSONS | 499

fulfilled the required residence conditions, if the nationality of one of his parents at the
time of the person’s birth was that of the Contracting State first above-mentioned. If his
parents did not possess the same nationality at the time of his birth, the question whether
the nationality of the person concerned should follow that of the father or that of the
mother shall be determined by the national law of such Contracting State. If application
for such nationality is required, the application shall be made to the appropriate authority
by or on behalf of the applicant in the manner prescribed by the national law. Subject to
the provisions of paragraph 5 of this article, such application shall not be refused.
5 The Contracting State may make the grant of its nationality in accordance with the
provisions of paragraph 4 of this article subject to one or more of the following conditions:

(a) That the application is lodged before the applicant reaches an age, being not less
than twenty-three years, fixed by the Contracting State;
(b) That the person concerned has habitually resided in the territory of the Contracting
State for such period immediately preceding the lodging of the application, not
exceeding three years, as may be fixed by that State;
(c) That the person concerned has always been stateless.

Article 2

A foundling found in the territory of a Contracting State shall, in the absence of proof to the
contrary, be considered to have been born within that territory of parents possessing the
nationality of that State.

Article 3

For the purpose of determining the obligations of Contracting States under this Convention,
birth on a ship or in an aircraft shall be deemed to have taken place in the territory of the State
whose flag the ship flies or in the territory of the State in which the aircraft is registered, as
the case may be.

Article 4

1 A Contracting State shall grant its nationality to a person, not born in the territory of a
Contracting State, who would otherwise be stateless, if the nationality of one of his parents
at the time of the person’s birth was that of that State. If his parents did not possess the
same nationality at the time of his birth, the question whether the nationality of the person
concerned should follow that of the father or that of the mother shall be determined by
the national law of such Contracting State. Nationality granted in accordance with the
provisions of this paragraph shall be granted:

(a) At birth, by operation of law, or

(b) Upon an application being lodged with the appropriate authority, by or on behalf of
the person concerned, in the manner prescribed by the national law. Subject to the
provisions of paragraph 2 of this article, no such application may be rejected.

2 A Contracting State may make the grant of its nationality in accordance with the provisions
of paragraph 1 of this article subject to one or more of the following conditions:

(a) That the application is lodged before the applicant reaches an age, being not less
than twenty-three years, fixed by the Contracting State;
(b) That the person concerned has habitually resided in the territory of the Contracting
State for such period immediately preceding the lodging of the application, not
exceeding three years, as may be fixed by that State;
(c) That the person concerned has not been convicted of an offence against national
security;
500 | REFUGEES AND STATELESS PERSONS

(d) That the person concerned has always been stateless.

Article 5

1 If the law of a Contracting State entails loss of nationality as a consequence of any change
in the personal status of a person such as marriage, termination of marriage, legitimation,
recognition or adoption, such loss shall be conditional upon possession or acquisition of
another nationality.
2 If, under the law of a Contracting State, a child born out of wedlock loses the nationality of
that State in consequence of a recognition of affiliation, he shall be given an opportunity
to recover that nationality by written application to the appropriate authority, and the
conditions governing such application shall not be more rigorous than those laid down in
paragraph 2 of article 1 of this Convention.

Article 6

If the law of a Contracting State provides for loss of its nationality by a person’s spouse or
children as a consequence of that person losing or being deprived of that nationality, such loss
shall be conditional upon their possession or acquisition of another nationality.

Article 7

1. (a) If the law of a Contracting State entails loss or renunciation of nationality, such
renunciation shall not result in loss of nationality unless the person concerned
possesses or acquires another nationality;
(b) The provisions of subparagraph (a) of this paragraph shall not apply where their
application would be inconsistent with the principles stated in articles 13 and 14 of
the Universal Declaration of Human Rights approved on 10 December 1948 by the
General Assembly of the United Nations.
2 A national of a Contracting State who seeks naturalization in a foreign country shall not
lose his nationality unless he acquires or has been accorded assurance of acquiring the
nationality of that foreign country.
3 Subject to the provisions of paragraphs 4 and 5 of this article, a national of a Contracting
State shall not lose his nationality, so as to become stateless, on the ground of departure,
residence abroad, failure to register or on any similar ground.
4 A naturalized person may lose his nationality on account of residence abroad for a period, not
less than seven consecutive years, specified by the law of the Contracting State concerned if
he fails to declare to the appropriate authority his intention to retain his nationality.
5 In the case of a national of a Contracting State, born outside its territory, the law of
that State may make the retention of its nationality after the expiry of one year from his
attaining his majority conditional upon residence at that time in the territory of the State
or registration with the appropriate authority.
6 Except in the circumstances mentioned in this article, a person shall not lose the nationality
of a Contracting State, if such loss would render him stateless, notwithstanding that such
loss is not expressly prohibited by any other provision of this Convention.

Article 8

1 A Contracting State shall not deprive a person of his nationality if such deprivation would
render him stateless.
2 Notwithstanding the provisions of paragraph 1 of this article, a person may be deprived of
the nationality of a Contracting State:

(a) In the circumstances in which, under paragraphs 4 and 5 of article 7, it is permissible

that a person should lose his nationality;
(b) Where the nationality has been obtained by misrepresentation or fraud.
 REFUGEES AND STATELESS PERSONS | 501

3 Notwithstanding the provision of paragraph 1 of this article, a Contracting State may retain
the right to deprive a person of his nationality, if at the time of signature, ratification or
accession it specifies its retention of such right on one or more of the following grounds,
being grounds existing in its national law at that time:

(a) That, inconsistently with his duty of loyalty to the Contracting State, the person:

(i) Has, in disregard of an express prohibition by the Contracting State rendered or

continued to render services to, or received or continued to receive emoluments
from, another State, or
(ii) Has conducted himself in a manner seriously prejudicial to the vital interests of
the State;

(b) That the person has taken an oath, or made a formal declaration, of allegiance
to another State, or given definite evidence of his determination to repudiate his
allegiance to the Contracting State.

4 A Contracting State shall not exercise a power of deprivation permitted by paragraphs

2 or 3 of this article except in accordance with law, which shall provide for the person
concerned the right to a fair hearing by a court or other independent body.

Article 9

A Contracting State may not deprive any person or group of persons of their nationality on
racial, ethnic, religious or political grounds.

Article 10

1 Every treaty between Contracting States providing for the transfer of territory shall include
provisions designed to secure that no person shall become stateless as a result of the
transfer. A Contracting State shall use its best endeavours to secure that any such treaty
made by it with a State which is not a Party to this Convention includes such provisions.
2 In the absence of such provisions a Contracting State to which territory is transferred or
which otherwise acquires territory shall confer its nationality on such persons as would
otherwise become stateless as a result of the transfer or acquisition.

Article 11

The Contracting States shall promote the establishment within the framework of the United
Nations, as soon as may be after the deposit of the sixth instrument of ratification or accession
of a body to which a person claiming the benefit of this Convention may apply for the examination
of his claim and for assistance in presenting it to the appropriate authority.

Article 12

1 In relation to a Contracting State which does not, in accordance with the provision of
paragraph 1 of article 1 or of article 4 of this Convention, grant its nationality at birth by
operation of law, the provisions of paragraph 1 of article 1, or of article 4, as the case may
be, shall apply to persons born before as well as to persons born after the entry into force
of this Convention.
2 The provisions of paragraph 4 of article 1 of this Convention shall apply to persons born
before as well as to persons born after its entry into force.
3 The provision of article 2 of this Convention shall apply only to foundlings found in the
territory of a Contracting State after the entry into force of the Convention for that State.

From a human rights perspective, statelessness is inherently problematic. From an international

law standpoint (respect for national law), there is no easy answer, as it is difficult for States to be
502 | REFUGEES AND STATELESS PERSONS

forced to accept individuals as nationals in some situations. Appropriate birth registration systems
can help identify a State of origin. However, the lack of documentation is often a major obstacle.
For others, non-recognition of the claimed State of nationality is the key problem.

Question
What differences are there, in terms of legal status and entitlements, between stateless persons, refugees and
internally displaced persons?

Further reading
Bianchini, K., Protecting Stateless Persons: The Implementation of the Convention Relating to the Sta-
tus of Stateless Persons across EU States, 2018, Leiden; Boston: Brill Nijhoff.
Byrne, R., Noll, G., and Vedsted-Hansen, J. (eds), New Asylum Countries? Migration Control and
Refugee Protection in an Enlarged European Union, 2002, The Hague: Kluwer.
Chimni, B. (ed.), International Refugee Law: A Reader, 2000, New Delhi: Sage.
Corinne, L., UNHCR and International Refugee Law: From Treaties to Innovation, 2012, Abington,
Oxon; New York: Routledge.
De Weck, F., Non-Refoulement Under the European Convention on Human Rights and the UN Conven-
tion Against Torture: The Assessment of Individual Complaints by the European Court of Human
Rights under Article 3 ECHR and the United Nations Committee Against Torture, 2017, Leiden;
Boston: Brill Nijhoff.
Feller, E., Türk, V., and Nicholson, F. (eds), Refugee Protection in International Law: UNHCR’s Global
Consultations on International Protection, 2003, Oxford: OUP.
Fine, S., and Ypi, L., Migration in Political Theory: The Ethics of Movement and Membership, 2016,
Oxford: OUP.
Foster, M., and Lambert, H., International Refugee Law and the Protection of Stateless Persons, 2019,
Oxford: OUP.
Goodwin-Gill, G., and Lambert, H. (eds), The Limits of Transnational Law: Refugee Law, Policy Har-
monization and Judicial Dialogue in the European Union, 2013, Cambridge: OUP.
Goodwin-Gill, G., and McAdam, J., The Refugee in International Law, 3rd edn, 2007, Oxford: OUP.
Hathaway, J., The Rights of Refugees under International Law, 2005, Cambridge: CUP.
Kneebone, S. (ed.), The Refugee Convention 50 Years On, 2003, Aldershot: Ashgate.
Lewis, C., UNHCR and International Refugee Law: From Treaties to Innovation, 2012, Abingdon:
Routledge.
Newman, E., and van Selm, J. (eds), Refugees and Forced Displacement, 2003, Tokyo: UN University
Press.
Phuong, C., The International Protection of Internally Displaced Persons, 2010, Cambridge: CUP.
Pobjoy, J.M., The Child in International Refugee Law, 2017, United Kingdom: CUP.
Simeon, J. (ed.), The UNHCR and the Supervision of International Refugee Law, 2013, Cambridge:
CUP.
United Nations Office of the High Commissioner for Human Rights, Human Rights and Refugees,
Fact Sheet No. 20, Geneva: OHCHR.

Websites
www.unhcr.org: UN Refugee Agency
www.unhcr.org/figures-at-a-glance.html: UNHCR statistics and operational data, including the
annual Global Trends report published on 20 June each year
www.nanseninitiative.org: Nansen Initiative Agenda for the Protection of Cross-Border Displaced
Persons in the Context of Disasters and Climate Change
www.refworld.org: Refworld UNHCR
Chapter 14

Women 

Chapter contents

14.1 Leading the way: the International Labour

Organisation 504
14.2 Equality 506
14.3 Tabulating women’s rights 521
14.4 Protection from persecution: trafficking,
exploitation 524
14.5 Violence against women 530
14.6 Family rights: marriage and children 544
14.7 Regional instruments and approaches to
women’s rights  549
504 | WOMEN 

Although a major group in terms of numbers, the plight of women has long been identified as an
area of concern for the international community. Statistically, women may seem to be in a strong
position; however, a closer perusal of the statistics reveals that more women than men are illiterate,
women have lower earnings, are affected by reproductive health issues, do not participate in the
political process, etc. This chapter will consider the following:

• Evolution of women’s rights.

• The Convention on Discrimination against Women.
• Domestic violence.
• Beijing Platform for Action aimed at empowering women.
• Gender mainstreaming.

The third of the Millennium Development Goals (www.un.org/millenniumgoals) promoted

gender equality and empowering women. As a first stage, gender disparities in primary and sec-
ondary education were to be eliminated by 2005 if possible, and eliminated at all levels by 2015.
Clearly the target for 2005 was not universally achieved, although considerable progress was made.
Accordingly a new commitment is made towards gender equality and empowering women in the
UN sustainable development goals in furtherance of Agenda 2030.
International attention has long focussed on women and girl children, as the following extract
indicates:

VIENNA WORLD CONFERENCE ON HUMAN RIGHTS DECLARATION 1993, para 18

The human rights of women and of the girl-child are an inalienable, integral and indivisible
part of universal human rights. The full and equal participation of women in political, civil,
economic, social and cultural life, at the national, regional and international levels, and the
eradication of all forms of discrimination on grounds of sex are priority objectives of the
international community.
Gender-based violence and all forms of sexual harassment and exploitation, including
those resulting from cultural prejudice and international trafficking, are incompatible with the
dignity and worth of the human person, and must be eliminated. This can be achieved by legal
measures and through national action and international cooperation in such fields as economic
and social development, education, safe maternity and health care, and social support.
The human rights of women should form an integral part of the United Nations human
rights activities, including the promotion of all human rights instruments relating to women.
The World Conference on Human Rights urges Governments, institutions, intergovern-
mental and non-governmental organizations to intensify their efforts for the protection and
promotion of human rights of women and the girl-child.

Women seem rarely to enjoy all the rights and freedoms articulated in international human rights
instruments on a true parity with men. Indeed, in 2010, the UN established UN Women to promote
gender equality and empowerment of women within and outwith the United Nations. The materials in
this section seek to focus on women’s rights: their needs, the specific legal regimes which have evolved
to address these needs and the progress to date. To better provide a flavour of the rights of women,
gender equality, trafficking, violence against women and family rights will be considered. These allow
many of the problems with women’s rights to be addressed. There have been notable contributions to
the tabulation of women’s rights in all three major regions. Such developments will also be considered.

14.1 Leading the way: the International Labour Organisation

The evolution of women’s rights has been mired in controversy. ‘Chivalry’, in the form of pro-
tectionist, patronising legal measures did little to advance women’s rights in the early days. Even
 WOMEN  | 505

today, one of the biggest problems faced by proponents of women’s rights is the need for gender
mainstreaming, for recognition of equality.
The International Labour Organisation was an early advocate of women’s rights. It recognised
that women required protection, particularly in vulnerable employment situations such as during
maternity periods and in hazardous working environments. Even now, almost a century later,
the International Labour Organisation has been instrumental in creating the global framework of
women’s rights. In 1919 it adopted Convention No. 3 on Maternity Protection and Convention
No. 4 on Night Work of Women.
Compare and contrast the provisions on maternity protection in these two International
Labour Organisation conventions.

ILO CONVENTION 3, MATERNITY PROTECTION 1919

Article 3

In any public or private industrial or commercial undertaking, or in any branch thereof, other
than an undertaking in which only members of the same family are employed, a woman –

(a) shall not be permitted to work during the six weeks following her confinement;
(b) shall have the right to leave her work if she produces a medical certificate stating that her
confinement will probably take place within six weeks;
(c) shall, while she is absent from her work in pursuance of paragraphs (a) and (b), be paid
benefits sufficient for the full and healthy maintenance of herself and her child, provided
either out of public funds or by means of a system of insurance, the exact amount of which
shall be determined by the competent authority in each country, and as an additional
benefit shall be entitled to free attendance by a doctor or certified midwife; no mistake of
the medical adviser in estimating the date of confinement shall preclude a woman from
receiving these benefits from the date of the medical certificate up to the date on which
the confinement actually takes place;
(d) shall in any case, if she is nursing her child, be allowed half an hour twice a day during her
working hours for this purpose.

Article 4

Where a woman is absent from her work in accordance with paragraph (a) or (b) of Article 3 of this
Convention, or remains absent from her work for a longer period as a result of illness medically
certified to arise out of pregnancy or confinement and rendering her unfit for work, it shall not
be lawful, until her absence shall have exceeded a maximum period to be fixed by the competent
authority in each country, for her employer to give her notice of dismissal during such absence,
nor to give her notice of dismissal at such a time that the notice would expire during such absence.

ILO CONVENTION 103, MATERNITY PROTECTION (REVISED) 1952

Article 3

1 A woman to whom this Convention applies shall, on the production of a medical certificate
stating the presumed date of her confinement, be entitled to a period of maternity leave.
2 The period of maternity leave shall be at least twelve weeks, and shall include a period of
compulsory leave after confinement.
3 The period of compulsory leave after confinement shall be prescribed by national laws
or regulations, but shall in no case be less than six weeks; the remainder of the total
period of maternity leave may be provided before the presumed date of confinement or
following expiration of the compulsory leave period or partly before the presumed date of
confinement and partly following the expiration of the compulsory leave period as may be
prescribed by national laws or regulations.
506 | WOMEN 

4 The leave before the presumed date of confinement shall be extended by any period
elapsing between the presumed date of confinement and the actual date of confinement
and the period of compulsory leave to be taken after confinement shall not be reduced on
that account.
5 In case of illness medically certified arising out of pregnancy, national laws or regulations
shall provide for additional leave before confinement, the maximum duration of which
may be fixed by the competent authority.
6 In case of illness medically certified arising out of confinement, the woman shall be
entitled to an extension of the leave after confinement, the maximum duration of which
may be fixed by the competent authority.

Article 4

1 While absent from work on maternity leave in accordance with the provisions of Article 3,
the woman shall be entitled to receive cash and medical benefits.
2 The rates of cash benefit shall be fixed by national laws or regulations so as to ensure
benefits sufficient for the full and healthy maintenance of herself and her child in
accordance with a suitable standard of living.
3 Medical benefits shall include pre-natal confinement and post-natal care by qualified
midwives or medical practitioners as well as hospitalisation care where necessary;
freedom of choice of doctor and freedom of choice between a public and private hospital
shall be respected.
4 The cash and medical benefits shall be provided either by means of compulsory social
insurance or by means of public funds; in either case they shall be provided as a matter of
right to all women who comply with the prescribed conditions.
5 Women who fail to qualify for benefits provided as a matter of right shall be entitled,
subject to the means test required for social assistance, to adequate benefits out of social
assistance funds.

Question
What reasons are there for the differences between the two instruments? Which approach is acceptable today?

Employment law has produced possibly the most substantive advance in women’s rights. While
the International Labour Organisation forged ahead with tabulating women’s rights in the work-
place, the European Economic Community (now subsumed by the European Union) made simi-
lar dramatic inroads within its small territorial jurisdiction in Europe. In all instances, the balance
between promotion of equality and protection of rights has proven tricky to achieve. Protection of
women is obviously necessary as everyone is entitled to the protection of their human rights. For
women’s rights often it is not the State itself but other individuals who threaten equality.

Question
Should women be protected in a manner which implies they need special protection solely on account of being
female?

14.2 Equality
Equality is clearly a lynchpin of the United Nations itself. From the tentative statements in the
Charter to its reiteration over the intervening six decades, it is clear that equality between men and
women is meant to be a cornerstone of the new world order.
 WOMEN  | 507

Preamble to the United Nations Charter 1945

WE THE PEOPLES OF THE UNITED NATIONS DETERMINED

to save succeeding generations from the scourge of war, which twice In our lifetime has
brought untold sorrow to mankind, and
to reaffirm faith in fundamental human rights, in the dignity and worth of the human
person, in the equal rights of men and women and of nations large and small.

Gender mainstreaming is now fundamental to the ongoing development of the United Nations.
For the working definition, see ECOSOC’s viewpoint.

Economic and Social Council Agreed Conclusions 1997/2 (1997)

. . . the process of assessing the implications for women and men of any planned action,
including legislation, policies or programmes, in all areas and at all levels. It is a strategy
for making women’s as well as men’s concerns and experiences an integral dimension
of the design, implementation, monitoring and evaluation of policies and programmes in
all political, economic and societal spheres so that women and men benefit equally and
inequality is not perpetuated. The ultimate goal is to achieve gender equality.

Salient policies characterise the work of the United Nations Development Programme, UNESCO,
the European Union, UNIFEM and indeed the United Nations as a whole. Gender mainstream-
ing is viewed as an essential element of securing the objectives of the Beijing Platform for Action.

Question
Throughout this chapter, consider whether women’s rights in general represent simply a retabulation of human
rights articulated in the Universal Declaration, albeit with a focus on their application to women.

Equality between men and women, rooted as it is in the United Nations Charter, is a major
foundation for women’s rights. As the preamble to the Convention on the Elimination of Dis-
crimination against Women notes, a change in the traditional role of men as well as the role of
women in society and in the family is needed to achieve full equality between men and women.
Irrespective of changes in attitude, there can perhaps never be true equality between the sexes,
at least not in the sense of absolute similarity of treatment. What is required is recognition of the
entitlement of women to equal enjoyment of all rights and freedoms. This was encapsulated in the
preamble to the Charter of the United Nations (see Section 14.2).
Men and women should thus be able to benefit from their rights and freedoms as
enshrined in the various tabulations of rights without differentiation. Equality of enjoyment
of all rights and freedoms, however, also demands recognition of equality of status before
the law. For many women realisation of this has been a major issue impeding the progress of
equality between the sexes. In extreme situations, it can also impede the progressive develop-
ment of women’s rights.

14.2.1 Non-discrimination
A related concept is that of non-discrimination. Non-discrimination in the exercise of rights is a
common theme which pervades most instruments. Although the grounds may expand (see Chap-
ter 2), the prohibition on discrimination on gender is a constant. The United Nations adopted
an instrument specifically to reinforce the prohibition on discrimination against women: the
508 | WOMEN 

Convention on the Elimination of All Forms of Discrimination against Women 1979. Article 1
provides a definition:

CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN

1979, Article 1

For the purposes of the present Convention, the term ‘discrimination against women’
shall mean any distinction, exclusion or restriction made on the basis of sex which has
the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by
women, irrespective of their marital status, on a basis of equality of men and women, of
human rights and fundamental freedoms in the political, economic, social, cultural, civil
or any other field.

Note three important aspects of this definition: discrimination may be intentional or uninten-
tional; women may be directly or indirectly disadvantaged; and the convention applies to rights in
public and private spheres. The effect of the measure, not its prescribed aim is thus the important
element to discern. This broadens the potential impact of the Convention but is clearly crucial:
distinguishing appropriate and inappropriate legislative measures solely on account of the pre-
scribed aim of the law would permit too wide a discretion to States and totally negate the aim
of the Convention. Furthermore, the extension of the prohibition to public and private spheres
implies a positive obligation on the part of States to protect women from certain actions, even
where the proscribed act is undertaken by a private body. This is particularly apparent with respect
to employment law, and awareness raising initiatives are often required.

CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN

Article 2(e) and (f)

States Parties condemn discrimination against women in all its forms, agree to pursue by all
appropriate means and without delay a policy of eliminating discrimination against women
and, to this end, undertake:
...
(e) To take all appropriate measures to eliminate discrimination against women by any
person, organization or enterprise;
(f) To take all appropriate measures, including legislation, to modify or abolish existing laws,
regulations, customs and practices which constitute discrimination against women.

Question
What problems may there be for States in ensuring that individuals conform to the standards of national law? What
impact may this have on States when the issue of ratification/accession to the Convention is under discussion?

Much of the Convention on the Elimination of All Forms of Discrimination against Women
reaffirms the rights of women to enjoy universal rights and freedoms on the basis of equality with
men. There is little in the way of novel rights. The emphasis is firmly on non-discrimination
against women in the exercise of universal rights.

14.2.2 Equality in law – litigating the right

Individual (and group) communications can be lodged with the Committee on the Elimination
of Discrimination against Women against those States which have ratified the Optional Protocol
to the Convention on the Elimination of All Forms of Discrimination against Women 1999. As a
remedy, this suffers from the deficiencies noted in Chapter 7. However, as a method of generating
 WOMEN  | 509

awareness and prompting a State to rethink its policies and laws, the individual petition system
has considerable merit. Petitions under the Convention are still in their infancy, the Protocol only
entered into force in late December 2000 and very few communications have been considered.
Note also that the Protocol permits the Committee to investigate incidences of systematic viola-
tions of the Convention.

OPTIONAL PROTOCOL ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST

WOMEN 1999 Article 8

1 If the Committee receives reliable information indicating grave or systematic violations

by a State Party of rights set forth in the Convention, the Committee shall invite that
State Party to cooperate in the examination of the information and to this end to submit
observations with regard to the information concerned.
2 Taking into account any observations that may have been submitted by the State Party
concerned as well as any other reliable information available to it, the Committee may
designate one or more of its members to conduct an inquiry and to report urgently to the
Committee. Where warranted and with the consent of the State Party, the inquiry may
include a visit to its territory.
3 After examining the findings of such an inquiry, the Committee shall transmit these
findings to the State Party concerned together with any comments and recommendations.
4 The State Party concerned shall, within six months of receiving the findings, comments
and recommendations transmitted by the Committee, submit its observations to the
Committee.
5 Such an inquiry shall be conducted confidentially and the cooperation of the State Party
shall be sought at all stages of the proceedings.

The first communication, Ms B-J v Germany, Communication 1/2003 was declared inadmissible
in July 2004 on account of non-exhaustion of domestic remedies and the fact that the events
complained of occurred before the entry into force of the Optional Protocol. The second com-
munication proceeded to merits (Ms A-T v Hungary, Communication 2/2003, decision January
2005, discussed in the following section on violence against women).
Note particularly that complaints concerning discriminatory treatment can be brought before
a variety of treaty monitoring bodies. This is an inevitable consequence of the evolution of the
concept of equality between men and women under the auspices of the United Nations, and,
indeed, of the interdependence and indivisibility of universal human rights. For the victims, it
is a positive development as many women thus have avenues of complaint open to them at the
regional and international level, irrespective of whether their State has ratified the Convention on
the Elimination of all Forms of Discrimination against Women and its Optional Protocol. The
following list details the principal non-discrimination on gender provisions which the main treaty
bodies consider. Note that additional rights may be engaged, these suggestions are not summative.

Human Rights Committee – Articles 2, 3 + 26 International Covenant on Civil and

Political Rights prohibit discrimination in enjoyment of civil and political rights
European Court of Human Rights – Article 14 European Convention on Human Rights
in conjunction with another right
European Court of Justice – Article 157 Treaty on the functioning of the European Union
and related directives, also actionable under national laws of European Union member
States
Inter-American Court of Human Rights – Articles 1, 24 American Convention on Human
Rights
African Court/Commission on Human and Peoples’ Rights – African Charter
and Protocol
510 | WOMEN 

To illustrate the potential for bringing complaints concerning inequality before alternative bodies,
consider the following communications.

14.2.2.1 Human Rights Committee – Communications

Ato del Avellanal v Peru, Communication 202/1986, Human Rights Committee, 1988 UN Doc.
CCPR/C/34/D/202/1986 (1988)

Under Article 168 of the Peruvian Civil Code law, married women wishing to enforce or action
proceedings in respect of matrimonial property must be represented by the husband in court.
Ms Ato del Avellanal was wishing to reclaim unpaid rent from apartment blocks which she
owned. The decision of the court that the property issues must be represented by the husband
was upheld by the Supreme Court despite a provision of the Peruvian Constitution requiring
equality of rights. Article 14 of the International Covenant on Civil and Political Rights makes
the following guarantee.

International Covenant on Civil and Political Rights Article 14(1)

All persons shall be equal before the courts and tribunals. In the determination of any
criminal charge against him, or of his rights and obligations in a suit at law, everyone
shall be entitled to a fair and public hearing by a competent, independent and impartial
tribunal established by law. The press and the public may be excluded from all or part of a
trial for reasons of morals, public order (ordre public) or national security in a democratic
society, or when the interest of the private lives of the parties so requires, or to the extent
strictly necessary in the opinion of the court in special circumstances where publicity
would prejudice the interests of justice; but any judgement rendered in a criminal case
or in a suit at law shall be made public except where the interest of juvenile persons
otherwise requires or the proceedings concern matrimonial disputes or the guardianship
of children.

Peruvian Law permits appeals to the Human Rights Committee of the United Nations for citizens
who have exhausted domestic remedies and feel their constitutional rights have been infringed.

9.2 In formulating its views, the Committee takes into account the failure of the State party
to furnish certain information and clarifications, in particular with regard to the allegations
of discrimination of which the author has complained. It is not sufficient to forward the text
of the relevant laws and decisions, without specifically addressing the issues raised in the
communication. It is implicit in Article 4, paragraph 2, of the Optional Protocol that the State
party has the duty to investigate in good faith all allegations of violation of the Covenant made
against it and its authorities, and to furnish to the Committee all relevant information. In the
circumstances, due weight must be given to the author’s allegations.

10.1 With respect to the requirement set forth in Article 14, paragraph 1, of the Covenant that
‘all persons shall be equal before the courts and tribunals’, the committee notes that the court
of first instance decided in favour of the author, but the Superior Court reversed that decision
on the sole ground that according to Article 168 of the Peruvian Civil Code only the husband is
entitled to represent matrimonial property, i.e. that the wife was not equal to her husband for
purposes of suing in Court.

10.2 With regard to discrimination on the ground of sex the Committee notes further that under
Article 3 of the Covenant State parties 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’ and that
Article 26 provides that all persons are equal before the law and are entitled to the equal
protection of the law. The Committee finds that the facts before it reveal that the application of
 WOMEN  | 511

Article 168 of the Peruvian Civil Code to the author resulted in denying her equality before the
courts and constituted discrimination on the ground of sex.

11. The Human Rights Committee, acting under Article 5, paragraph 4, of the Optional Protocol
to the International Covenant on Civil and Political Rights, is of the view that the events of this
case, in so far as they continued or occurred after 3 January 1981 (the date of entry into force
of the Optional Protocol for Peru), disclose violations of Articles 3, 14, paragraph 1, and 26 of
the Covenant.

Similar issues were raised before the Inter-American Commission on Human Rights in Morales de
Sierra v Guatemala, Case 11.625 (2001) Report No. 4/01 (2001). The Guatemalan Civil Code con-
ferred the primary power to represent the marital union, the children and marital property, on the
husband. Moreover, the Code provided that wives had special obligations to care for children and
the home and could not work outside the home if such work was prejudicial to her role as mother
and housewife. The Commission considered the equality and marriage provisions of the Convention
infringed.

Aumeeruddy-Cziffra and Others v Mauritius, Communication 35/1978, Human Rights

Committee 1981, UN Doc. CCPR/C/12/D/35/1978 (1981)

Twenty Mauritian women complained of discrimination with respect to immigration and

deportation practices. Under new Mauritian laws (of 1977), the alien (that is, non-Mauritian)
husband of a Mauritian woman must apply for a residence permit and may be subjected to
deportation. Alien women married to Mauritian men retain their right to residency. The women
claimed infringements of Articles 2–4, 17, 23, 25 and 26 of the Covenant on Civil and Political
Rights. Clearly the application of the right had the potential to impact on their right to a home
life and to found a family in Mauritius. For example, over three years had elapsed since Mrs
Aumeeruddy-Cziffra’s husband had applied to the Mauritian authorities for a residence permit
without any formal decision.

9.2 (b) 2 (i) 2 The Committee takes the view that the common residence of husband and wife
has to be considered as the normal behaviour of a family. Hence, and as the State party has
admitted, the exclusion of a person from a country where close members of his family are
living can amount to an interference within the meaning of Article 17. In principle, Article 17
(1) applies also when one of the spouses is an alien. Whether the existence and application of
immigration laws affecting the residence of a family member is compatible with the Covenant
depends on whether such interference is either ‘arbitrary or unlawful’ as stated in Article 17
(1), or conflicts in any other way with the State party’s obligations under the Covenant.

9.2 (b) 2 (i) 3 In the present cases, not only the future possibility of deportation, but the existing
precarious residence situation of foreign husbands in Mauritius represents, in the opinion of
the Committee, an interference by the authorities of the State party with the family life of the
Mauritian wives and their husbands. The statutes in question have rendered it uncertain for
the families concerned whether and for how long it will be possible for them to continue their
family life by residing together in Mauritius. Moreover, as described above (para. 7.4) in one of
the cases, even the delay for years, and the absence of a positive decision granting a residence
permit, must be seen as a considerable inconvenience, among other reasons because the
granting of a work permit, and hence the possibility of the husband to contribute to supporting
the family, depends on the residence permit, and because deportation without judicial review
is possible at any time.

9.2 (b) 2 (i) 4 Since, however, this situation results from the legislation itself, there can be no
question of regarding this interference as ‘unlawful’ within the meaning of Article 17 (1) in the
512 | WOMEN 

present cases. It remains to be considered whether it is ‘arbitrary’ or conflicts in any other way
with the Covenant.

9.2 (b) 2 (i) 5 The protection owed to individuals in this respect is subject to the principle of
equal treatment of the sexes which follows from several provisions of the Covenant. It is an
obligation of the State parties under Article 2 (1) generally to respect and ensure the rights of
the Covenant ‘without distinction of any kind, such as . . . (inter alia) sex’, and more particularly
under Article 3 ‘to ensure the equal right of men and women to the enjoyment’ of all these
rights, as well as under Article 26 to provide ‘without any discrimination’ for ‘the equal
protection of the law’.

9.2 (b) 2 (i) 6 The authors who are married to foreign nationals are suffering from the adverse
consequences of the statutes discussed above only because they are women. The precarious
residence status of their husbands, affecting their family life as described, results from the
1977 laws which do not apply the same measures of control to foreign wives. In this connection
the Committee has noted that under section 16 of the Constitution of Mauritius sex is not one
of the grounds on which discrimination is prohibited.

9.2 (b) 2 (i) 7 In these circumstances, it is not necessary for the Committee to decide in the
present cases how far such or other restrictions on the residence of foreign spouses might
conflict with the Covenant if applied without discrimination of any kind.

9.2 (b) 2 (i) 8 The Committee considers that it is also unnecessary to say whether the existing
discrimination should be called an ‘arbitrary’ interference with the family within the meaning
of Article 17. Whether or not the particular interference could as such be justified if it were
applied without discrimination does not matter here. Whenever restrictions are placed on a
right guaranteed by the Covenant, this has to be done without discrimination on the ground
of sex. Whether the restriction in itself would be in breach of that right regarded in isolation,
is not decisive in this respect. It is the enjoyment of the rights which must be secured without
discrimination. Here it is sufficient, therefore, to note that in the present position an adverse
distinction based on sex is made, affecting the alleged victims in their enjoyment of one of their
rights. No sufficient justification for this difference has been given. The Committee must then
find that there is a violation of Articles 2 (1) and 3 of the Covenant, in conjunction with Article
17 (1).

The issues in this case are comparable to Abdulaziz, Cabales & Balkandali v United Kingdom, Series A,
No. 94 (1985). The European Court of Human Rights considered that the applicants’ rights under
Article 8 of the European Convention (right to private and family life, home and correspondence)
in conjunction with the prohibition on discrimination on grounds of gender (Article 14) had been
infringed.
However, compare Broeks v Netherlands, Communication 172/1984 with Vos v Netherlands,
Communication 218/1986, both opinions of the Human Rights Committee applying the Inter-
national Covenant on Civil and Political Rights. Discrimination was only found in the former.

Question
Can women ever be equal in law with men? To what extent can the concept of equality of rights truly make
a difference to the plight of women?

14.2.2.2 European Court of Justice – preliminary rulings

Obviously, childbirth and breast-feeding are restricted to women. This has caused problems with
respect to discrimination and equality law, as there are no male equivalents. The Court of Justice of
the European Union (an organ of the European Union) has regularly considered the issue of maternity
 WOMEN  | 513

rights and discrimination. Brown v Rentokil is a Scottish case which illustrates its approach. The
House of Lords (the highest UK Civil Court) referred various questions concerning dismissal of a
woman for illness during pregnancy to the then European Court of Justice under its preliminary
ruling system (now Article 234 of the Consolidated Version of the Treaty Establishing the European
Union). The final application of the law, in light of the view of the European Court, to the facts,
is left to the national court.

Case C-394/96, Brown v Rentokil [1998] ECR 1–4185

Brown’s employment contract specified that prolonged absence (26 weeks continuous illness)
would justify dismissal. She became pregnant and endured various complications which
caused her to be off work. Her employer notified her that 13 weeks had elapsed and if she
did not return to work by the end of the 26-week period (following an independent medical
examination), then her employment would be terminated. Her contract was terminated and
her baby born a few weeks later. Brown’s prolonged absence meant that she fell outwith the
provisions of the national Employment Protection (Consolidation) Act 1978 as she was not in
work for two years prior to the 11th week before the expected period of confinement.

16 According to settled case law of the Court of Justice, the dismissal of a female worker
on account of pregnancy, or essentially on account of pregnancy, can affect only women
and therefore constitutes direct discrimination on grounds of sex (see Case C-177/88
Dekker v Stichting Vormingscentrum voor Jong Volwassenen (VJVCentrum) Plus 1990
ECR 1–3941, paragraph 12; Hertz, paragraph 13; Case C-421/92 Habermann-Beltermann v
Arbeiterwohlfahrt Bezirksverband 1994 ECR 1–1657, paragraph 15; and Case C-32/93 Webb v
EMO Air Cargo 1994 ECR 1–3567, paragraph 19).

17 As the Court pointed out in paragraph 20 of its judgment in Webb, ‘by reserving to Member
States the right to retain or introduce provisions which are intended to protect women in
connection with pregnancy and maternity’, Article 2(3) of Directive 76/207 recognises the
legitimacy, in terms of the principle of equal treatment, first, of protecting a woman’s biological
condition during and after pregnancy and, second, of protecting the special relationship
between a woman and her child over the period which follows pregnancy and childbirth.

18 It was precisely in view of the harmful effects which the risk of dismissal may have on the
physical and mental state of women who are pregnant, women who have recently given birth
or women who are breastfeeding, including the particularly serious risk that pregnant women
may be prompted voluntarily to terminate their pregnancy, that the Community legislature,
pursuant to Article 10 of Council Directive 92/85/EEC of 19 October 1992 on the introduction
of measures to encourage improvements in the safety and health at work of pregnant workers
and workers who have recently given birth or are breastfeeding (tenth individual Directive
adopted within the meaning of Article 16(1) of Directive 89/391/EEC) (OJ 1992 L 348, p.  1),
which was to be transposed into the laws of the Member States no later than two years after
its adoption, provided for special protection to be given to women, by prohibiting dismissal
during the period from the beginning of their pregnancy to the end of their maternity leave.
Article 10 of Directive 92/85 provides that there is to be no exception to, or derogation from,
the prohibition of dismissal of pregnant women during that period, save in exceptional cases
not connected with their condition (see, in this regard, paragraphs 21 and 22 of the judgment
in Webb).

Pregnancy has been variously treated as equivalent to a male illness and a disability. The view of the
European Court appears to be that any measure affecting only pregnant women constitutes direct
discrimination by reason of the fact it only affects women. The ECJ has continually advanced the
law in this field.
514 | WOMEN 

14.2.3 Towards equality of rights between men and women

Achieving equality is an ongoing process and clearly a goal for the United Nations. The Beijing
Fourth World Conference on Women notes equality and non-discrimination in practice and fact
as one of its strategic objectives. The following recommendations were made.

Beijing Platform for Action 1995, Strategic objective 1.2. Ensure equality and non-
discrimination under the law and in practice

Actions to be taken

232. By Governments:

(a) Give priority to promoting and protecting the full and equal enjoyment by women and
men of all human rights and fundamental freedoms without distinction of any kind as to
race, colour, sex, language, religion, political or other opinions, national or social origins,
property, birth or other status;
(b) Provide constitutional guarantees and/or enact appropriate legislation to prohibit
discrimination on the basis of sex for all women and girls of all ages and assure women
of all ages equal rights and their full enjoyment;
(c) Embody the principle of the equality of men and women in their legislation and ensure,
through law and other appropriate means, the practical realization of this principle;
(d) Review national laws, including customary laws and legal practices in the areas of
family, civil, penal, labour and commercial law in order to ensure the implementation of
the principles and procedures of all relevant international human rights instruments by
means of national legislation, revoke any remaining laws that discriminate on the basis of
sex and remove gender bias in the administration of justice;
(e) Strengthen and encourage the development of programmes to protect the human rights
of women in the national institutions on human rights that carry out programmes, such
as human rights commissions or ombudspersons, according them appropriate status,
resources and access to the Government to assist individuals, in particular women, and
ensure that these institutions pay adequate attention to problems involving the violation
of the human rights of women;
(f) Take action to ensure that the human rights of women, including the rights referred to in
paragraphs 94 to 96 above, are fully respected and protected;
(g) Take urgent action to combat and eliminate violence against women, which is a human
rights violation, resulting from harmful traditional or customary practices, cultural
prejudices and extremism;
(h) Prohibit female genital mutilation wherever it exists and give vigorous support to efforts
among non-governmental and community organizations and religious institutions to
eliminate such practices;
(i) Provide gender-sensitive human rights education and training to public officials, including,
inter alia, police and military personnel, corrections officers, health and medical personnel,
and social workers, including people who deal with migration and refugee issues, and
teachers at all levels of the educational system, and make available such education and
training also to the judiciary and members of parliament in order to enable them to better
exercise their public responsibilities;
(j) Promote the equal right of women to be members of trade unions and other professional
and social organizations;
(k) Establish effective mechanisms for investigating violations of the human rights of women
perpetrated by any public official and take the necessary punitive legal measures in
accordance with national laws;
(l) Review and amend criminal laws and procedures, as necessary, to eliminate any
 WOMEN  | 515

discrimination against women in order to ensure that criminal law and procedures
guarantee women effective protection against, and prosecution of, crimes directed
at or disproportionately affecting women, regardless of the relationship between the
perpetrator and the victim, and ensure that women defendants, victims and/or witnesses
are not revictimized or discriminated against in the investigation and prosecution of
crimes;
(m) Ensure that women have the same right as men to be judges, advocates or other officers
of the court, as well as police officers and prison and detention officers, among other
things;
(n) Strengthen existing or establish readily available and free or affordable alternative
administrative mechanisms and legal aid programmes to assist disadvantaged women
seeking redress for violations of their rights;
(o) Ensure that all women and non-governmental organizations and their members in the
field of protection and promotion of all human rights – civil, cultural, economic, political
and social rights, including the right to development – enjoy fully all human rights and
freedoms in accordance with the Universal Declaration of Human Rights and all other
human rights instruments and the protection of national laws;
(p) Strengthen and encourage the implementation of the recommendations contained in the
Standard Rules on the Equalization of Opportunities for Persons with Disabilities, paying
special attention to ensure non-discrimination and equal enjoyment of all human rights
and fundamental freedoms by women and girls with disabilities, including their access
to information and services in the field of violence against women, as well as their active
participation in and economic contribution to all aspects of society;
(q) Encourage the development of gender-sensitive human rights programmes.

Much remains to be done: more women than men suffer from a lack of educational opportunities;
more women than men suffer from the effects of famine, pandemic diseases, etc. Interestingly, the
Beijing Platform for Action also mentions achieving legal literacy as a strategic objective.

BEIJING PLATFORM FOR ACTION 1995, para 227

While women are increasingly using the legal system to exercise their rights, in many countries
lack of awareness of the existence of these rights is an obstacle that prevents women from fully
enjoying their human rights and attaining equality. Experience in many countries has shown
that women can be empowered and motivated to assert their rights, regardless of their level
of education or socio-economic status. Legal literacy programmes and media strategies have
been effective in helping women to understand the link between their rights and other aspects
of their lives and in demonstrating that cost-effective initiatives can be undertaken to help
women obtain those rights. Provision of human rights education is essential for promoting an
understanding of the human rights of women, including knowledge of recourse mechanisms
to redress violations of their rights. It is necessary for all individuals, especially women in
vulnerable circumstances, to have full knowledge of their rights and access to legal recourse
against violations of their rights.

14.2.4 Affirmative action/positive discrimination

Note, however, that equality of treatment does not necessarily denote equality in fact. If a woman
and a man were in unequal positions to begin with then treating them with total equality will
simply perpetuate the difference between them. Consider the following hypothetical example. A
man and woman are employed in the same law firm. Each has identical experience and qualifica-
tions and both commence work at the same time.
516 | WOMEN 

This diagram demonstrates the perpetuation of a difference in salary between a man and
woman. The male salary increases more than that of the female in the first ten years. Obviously the
gulf between the salaries increases. In 1995 equality legislation is enacted in the State so, thereafter,
remedial action is taken to redress the imbalance and both the male and female salaries increase
by the same amount each year. Note, however, that the gap between the two remains constant.
Salaries increase by the same amount each year for both the sexes and thus there is actual equal-
ity. This problem has given rise to demands for affirmative action/positive discrimination/special
temporary measures to redress this imbalance.
Positive discrimination means that measures intended to redress the gender imbalance are
permissible even although the result may technically be discrimination against men.

CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN

1979, Article 4

1 Adoption by States Parties of temporary special measures aimed at accelerating de facto

equality between men and women shall not be considered discrimination as defined in
the present Convention, but shall in no way entail as a consequence the maintenance of
unequal or separate standards; these measures shall be discontinued when the objectives
of equality of opportunity and treatment have been achieved.
2 Adoption by States Parties of special measures, including those measures contained in the
present Convention, aimed at protecting maternity shall not be considered discriminatory.

Question
Consider the circumstances in which such measures may be justified. List the major advantages and disadvan-
tages encountered by a policy maker introducing temporary special measures.

14.2.4.1 European Court of Justice – case law

The European Union, with its strong focus on social equality, has considered several cases on tem-
porary special measures and their compatibility with EU law and policy.

Case C-450/93, Kalanke v Freie Hansestadt Bremen [1995] ECR 1–3051

A male and female employee worked for the city of Bremen as gardeners. Both were shortlisted
for a promoted position. As the applicants were equally well qualified for the position, preference
was given to the woman in accordance with the positive action provisions of the local law on
equal treatment of men and women in public service. Herr Kalanke brought proceedings in the
national courts which upheld his rejection for the post. However, as the Federal Labour Court
 WOMEN  | 517

considered there may be a conflict with the European Community (now Union) provisions on
equal treatment (Directive 76/207/EEC, ‘the Equal Treatment Directive’), reference was made
to the European Court of Justice. (Note that such preliminary rulings on issues of EU law are
permissible in accordance with the now Article 234 of the Consolidated Version of the Treaty
Establishing the European Community.)

14 In its order for reference, the national court points out that a quota system such as that
in issue may help to overcome in the future the disadvantages which women currently face
and which perpetuate past inequalities, inasmuch as it accustoms people to seeing women
also filling certain more senior posts. The traditional assignment of certain tasks to women
and the concentration of women at the lower end of the scale are contrary to the equal rights
criteria applicable today. In that connection, the national court cites figures illustrating the
low proportion of women in the higher career brackets among city employees in Bremen,
particularly if sectors, such as education, where the presence of women in higher posts is now
established are excluded.

15 The purpose of the Directive is, as stated in Article 1(1), to put into effect in the Member
States the principle of equal treatment for men and women as regards, inter alia, access to
employment, including promotion. Article 2(1) states that the principle of equal treatment
means that ‘there shall be no discrimination whatsoever on grounds of sex either directly or
indirectly’.

16 A national rule that, where men and women who are candidates for the same promotion
are equally qualified, women are automatically to be given priority in sectors where they are
underrepresented, involves discrimination on grounds of sex.

17 It must, however, be considered whether such a national rule is permissible under Article
2(4), which provides that the Directive ‘shall be without prejudice to measures to promote equal
opportunity for men and women, in particular by removing existing inequalities which affect
women’s opportunities’.

18 That provision is specifically and exclusively designed to allow measures which, although
discriminatory in appearance, are in fact intended to eliminate or reduce actual instances of
inequality which may exist in the reality of social life (see Case 312/86 Commission v France
1988 ECR 6315, paragraph 15).

19 It thus permits national measures relating to access to employment, including promotion,

which give a specific advantage to women with a view to improving their ability to compete on
the labour market and to pursue a career on an equal footing with men.

. . .

21 Nevertheless, as a derogation from an individual right laid down in the Directive, Article 2(4)
must be interpreted strictly (see Case 222/84 Johnston v Chief Constable of the Royal Ulster
Constabulary 1986 ECR 1651, paragraph 36).

22 National rules which guarantee women absolute and unconditional priority for appointment
or promotion go beyond promoting equal opportunities and overstep the limits of the exception
in Article 2(4) of the Directive.

. . .

On those grounds, THE COURT, in answer to the questions referred to it by the

Bundesarbeitsgericht by order of 22 June 1993, hereby rules:

Article 2(1) and (4) of Council Directive 76/207/EEC of 9 February 1976 on the
implementation of the principle of equal treatment for men and women as regards
518 | WOMEN 

access to employment, vocational training and promotion, and working conditions

precludes national rules such as those in the present case which, where candidates of
different sexes shortlisted for promotion are equally qualified, automatically give priority
to women in sectors where they are under-represented, under-representation being
deemed to exist when women do not make up at least half of the staff in the individual
pay brackets in the relevant personnel group or in the function levels provided for in the
organization chart.

In accordance with the European Community Law system, each case is considered before an
Advocate General who renders a detailed opinion on the legal issues prior to the Court’s delibera-
tions. The opinion of the Advocate General is not binding on the Court but may prove influential.
In the instant case, the Advocate General provides a detailed discussion of the concept of affirma-
tive action/positive discrimination.

Opinion of Mr Advocate General Tesauro delivered on 6 April 1995

13 Next, in order to establish what positive actions are authorized by Article 2(4), it is necessary
to define the concept of equal opportunities, more specifically in order to clarify whether that
expression means equality with respect to starting points or with respect to points of arrival. To
my mind, giving equal opportunities can only mean putting people in a position to attain equal
results and hence restoring conditions of equality as between members of the two sexes as
regards starting points. In order to achieve such a result, it is obviously necessary to removing
the existing barriers standing in the way of the attainment of equal opportunities as between
men and women in the field of employment: it will therefore be necessary first to identify the
barriers and then remove them, using the most suitable instruments for the purpose.
It seems to me to be all too obvious that the national legislation at issue in this case is not
designed to guarantee equality as regards starting points. The very fact that two candidates of
different sex have equivalent qualifications implies in fact by definition that the two candidates
have had and continue to have equal opportunities: they are therefore on an equal footing at
the starting block. By giving priority to women, the national legislation at issue therefore aims
to achieve equality as regards the result or, better, fair job distribution simply in numerical
terms between men and women. This does not seem to me to fall within either the scope or the
rationale of Article 2(4) of the directive.

14 That having been said, it should not be overlooked that the ultimate objective of equal
opportunities is to promote the employment of women and attain substantive equality, and that
equality as regards starting points alone will not in itself guarantee equal results, which, apart
from depending on the merits of the persons concerned and the individual efforts which they
make, (12) may also be influenced by a particular social structure which penalizes women, in
particular because of their dual role, on account of past discrimination, which causes their
presence in some sectors, particularly at management level, to be marginal.
Accordingly, it remains to be considered whether Article 2(4) of the directive can be
interpreted in such a way as to encompass also actions entailing the predetermination of
‘results’ through the imposition of quotas, be they strict or, as in this case, dependent on the
fulfilment of specific conditions.

15 On the only occasion on which the Court has ruled on the interpretation of Article 2(4), it
held that the exception provided for in that provision is ‘specifically and exclusively designed to
allow measures which, although discriminatory in appearance, are in fact intended to eliminate
or reduce actual instances of inequality which may exist in the reality of social life’. (13) As
a result, the Court held that the derogating provision contained in Article 2(4) did not cover
special rights for women, such as shortening of working hours, advancement of the retirement
 WOMEN  | 519

age, obtaining leave when a child is ill, granting additional days of annual leave in respect of
each child, payment of an allowance to mothers who have to meet the cost of nurseries and
the like, and so on.
The Court therefore considered that Article 2(4) authorizes treatment which is only
discriminatory in appearance but designed in practice to remove existing obstacles standing in
the way of equal opportunities for women. (14) This confirms that the objective is substantive
equality; but, in my view, it also confirms that that objective may be pursued only through
measures designed to achieve an actual situation of equal opportunities, with the result that
the only inequalities authorized are those necessary to eliminate the obstacles or inequalities
which prevent women from pursuing the same results as men on equal terms. Indeed, it is from
that point of view that the measures specifically intended for women are only discriminatory
in appearance; and it is only in this way that real and effective substantive equality will be
achieved.

16 The principle of substantive equality necessitates taking account of the existing inequalities
which arise because a person belongs to a particular class of persons or to a particular social
group; it enables and requires the unequal, detrimental effects which those inequalities have
on the members of the group in question to be eliminated or, in any event, neutralized by means
of specific measures.
Unlike the principle of formal equality, which precludes basing unequal treatment of
individuals on certain differentiating factors, such as sex, the principle of substantive equality
refers to a positive concept by basing itself precisely on the relevance of those different
factors themselves in order to legitimize an unequal right, which is to be used in order to
achieve equality as between persons who are regarded not as neutral but having regard to
their differences. In the final analysis, the principal of substantive equality complements the
principle of formal equality and authorizes only such deviations from that principle as are
justified by the end which they seek to achieve, that of securing actual equality. The ultimate
objective is therefore the same: securing equality as between persons.

Question
Such scenarios are often sensitive for States.Balance positive discrimination and ascertain whether the advantage
(achieving true equality) outweighs the discrimination against men which is a necessary consequence.

14.2.5 Case study: women and political participation

Women’s right to political participation was established early in the evolution of the United
Nations, yet women traditionally are under-represented in local, national and international politics.

CONVENTION ON THE POLITICAL RIGHTS OF WOMEN 1952

Article I

Women shall be entitled to vote in all elections on equal terms with men, without any
discrimination.

Article II

Women shall be eligible for election to all publicly elected bodies, established by national law,
on equal terms with men, without any discrimination.

Article III

Women shall be entitled to hold public office and to exercise all public functions, established by
national law, on equal terms with men, without any discrimination.
520 | WOMEN 

Note also Articles 7 and 8 of the Convention on the Elimination of All Forms of Discrimination
against Women which seek to advance political empowerment.

CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST

WOMEN 1979

Article 7

States Parties shall take all appropriate measures to eliminate discrimination against women
in the political and public life of the country and, in particular, shall ensure to women, on equal
terms with men, the right:

(a) To vote in all elections and public referenda and to be eligible for election to all publicly
elected bodies;
(b) To participate in the formulation of government policy and the implementation thereof
and to hold public office and perform all public functions at all levels of government;
(c) To participate in non-governmental organizations and associations concerned with the
public and political life of the country.

Article 8

States Parties shall take all appropriate measures to ensure to women, on equal terms with
men and without any discrimination, the opportunity to represent their Governments at the
international level and to participate in the work of international organizations.

Consider the following statistics on women in high political decision-making positions.

The following graph illustrates the percentage of women involved in national parliaments
in the world’s regions. Overall, 20 per cent of members of both houses of global parliaments are
women. Figures are taken from the website of the Inter-Parliamentary Union, Women in Politics
2019 (www.ipu.org).

45

40

35
Nordic countries
30
Europe-other
25 Americas

20 Sub-Saharn Africa
Asia
15
MENA
10 Pacific

0
Single or lower house Upper house combined

The Nordic countries have long had a positive record of women in Parliament. Note, how-
ever, that many other countries have had female presidents/heads of State/heads of government.
However, the rest of the Parliamentary body has not necessarily reflected equal representation.
 WOMEN  | 521

Question
To remedy the imbalance, can States reform electoral procedures to ensure more women are appointed to politi-
cal office?

14.3 Tabulating women’s rights

Some commentators contend that rather than be accorded distinctive rights, the emphasis in the
international community should be in ensuring that women enjoy the full range of universal
human rights on a parity with men.

Question
Is there merit in this argument? Should women be accorded specific rights?

Despite universal human rights, women appear still to be more vulnerable than men. They suffer
more from infringements of their rights and are more commonly discriminated against than for.
Perhaps at least partially the answer should lie in strengthening the existing mechanisms for enforc-
ing human rights and ensuring that women are in a position to advance their rights. That women
required additional protection became increasingly apparent. The international community has to
date convened four major international conferences on women. The first was in Mexico 1975,
the second in Denmark (Copenhagen) 1980, a third in Kenya (Nairobi) 1985 and most recently
the Fourth World Conference was held in China (Beijing) in 1995. The Fourth World Confer-
ence on Women represented a watershed for women’s rights and indeed for international human
rights. It adopted a Declaration and a Programme of Action for achieving the goals in the declara-
tion. Enhancing and promoting women’s rights is the principal goal. Discussions on a fifth world
conference are ongoing.

FOURTH WORLD CONFERENCE ON WOMEN BEIJING DECLARATION 1995

We reaffirm our commitment to:

8. The equal rights and inherent human dignity of women and men and other purposes and
principles enshrined in the Charter of the United Nations, to the Universal Declaration of
Human Rights and other international human rights instruments, in particular the Convention
on the Elimination of All Forms of Discrimination against Women and the Convention on the
Rights of the Child, as well as the Declaration on the Elimination of Violence against Women
and the Declaration on the Right to Development;
9. Ensure the full implementation of the human rights of women and of the girl child as
an inalienable, integral and indivisible part of all human rights and fundamental freedoms;
10. Build on consensus and progress made at previous United Nations conferences and
summits – on women in Nairobi in 1985, on children in New York in 1990, on environment
and development in Rio de Janeiro in 1992, on human rights in Vienna in 1993, on population
and development in Cairo in 1994 and on social development in Copenhagen in 1995 with the
objective of achieving equality, development and peace;
11. Achieve the full and effective implementation of the Nairobi Forward-looking Strategies
for the Advancement of Women;
12. The empowerment and advancement of women, including the right to freedom of
thought, conscience, religion and belief, thus contributing to the moral, ethical, spiritual and
intellectual needs of women and men, individually or in community with others and thereby
guaranteeing them the possibility of realizing their full potential in society and shaping their
lives in accordance with their own aspirations.
522 | WOMEN 

A Platform for Action was concluded to provide a blueprint to advancing women’s rights towards
the twenty-first century. Extracts have already been considered.
Twelve areas of critical concern were identified: Women and Poverty; Education and Training
of Women; Women and Health; Violence against Women; Women and Armed Conflict; Women
and the Economy; Women in Power and Decision-Making; Institutional Mechanisms for the
Advancement of Women; Human Rights of Women; Women and the Media; Women and the
Environment; and the Girl Child. The process and plan was as follows:

FOURTH WORLD CONFERENCE ON WOMEN’S RIGHTS PLATFORM FOR ACTION 1995

45. In each critical area of concern, the problem is diagnosed and strategic objectives
are proposed with concrete actions to be taken by various actors in order to achieve those
objectives. The strategic objectives are derived from the critical areas of concern and specific
actions to be taken to achieve them cut across the boundaries of equality, development and
peace – the goals of the Nairobi Forward-looking Strategies for the Advancement of Women –
and reflect their interdependence. The objectives and actions are interlinked, of high priority
and mutually reinforcing. The Platform for Action is intended to improve the situation of all
women, without exception, who often face similar barriers, while special attention should be
given to groups that are the most disadvantaged.
46. The Platform for Action recognizes that women face barriers to full equality and
advancement because of such factors as their race, age, language, ethnicity, culture, religion
or disability, because they are indigenous women or because of other status. Many women
encounter specific obstacles related to their family status, particularly as single parents; and to
their socio-economic status, including their living conditions in rural, isolated or impoverished
areas. Additional barriers also exist for refugee women, other displaced women, including
internally displaced women as well as for immigrant women and migrant women, including
women migrant workers. Many women are also particularly affected by environmental
disasters, serious and infectious diseases and various forms of violence against women.

Question
To what extent is the approach indicated conducive to advancing women’s rights and realistic for States? Does
this impact on women’s rights?

14.3.1 Monitoring progress towards the Beijing goals and UN women

Progress towards the goals articulated in Beijing is monitored by the United Nations. Women
2000: Gender Equality, Development and Peace for the Twenty-first Century was the Special
Session of the United Nations General Assembly in 2000. This setting is also referred to as Bei-
jing +5. Commitment to the Beijing Platform for Action was reaffirmed by the members of the
General Assembly (UN Doc. A/RES/S – 23–3 (2000)). In Beijing +10 (2005), the UN Com-
mission reviewed progress once again. While welcoming the progress to date, the Commission
called on States and the wider community to further advance the Platform for Action (UN Doc.
E/CN.6/2005/L.1). Plans are now being discussed for another major international conference on
women to mark Beijing +25 in 2020.
Several aspects of the Beijing platform for action now fall within the monitoring of UN
Women, the UN’s dedicated entity for gender equality and the empowerment of women.

General Assembly Resolution 64/289, 21 July 2010 System-wide coherence

51. Decides that:

(a) The Charter of the United Nations, the Beijing Declaration and Platform for Action, including
its twelve critical areas of concern, the outcome of the twenty-third special session of the
 WOMEN  | 523

General Assembly and applicable United Nations instruments, standards and resolutions
that support, address and contribute to gender equality and the empowerment and the
advancement of women will provide a framework for the work of the Entity;
(b) Based on the principle of universality, the Entity shall provide, through its normative
support functions and operational activities, guidance and technical support to all
Member States, across all levels of development and in all regions, at their request, on
gender equality, the empowerment and rights of women and gender mainstreaming;
(c) The Entity shall operate on the basis of principles agreed to through the process of the
comprehensive policy review of its operational activities, in particular by responding to the
needs of and priorities determined by Member States, upon their request;
(d) The Entity shall work in consultation with the respective national machineries for women
and/or the focal points designated by the Member States;
(e) Data used by the Entity, including information provided by national official sources, must
be verifiable, accurate, reliable and disaggregated by age and sex;

52. Also decides that the establishment of the Entity and the conduct of its work should lead to more
effective coordination, coherence and gender mainstreaming across the United Nations system;

UN Women has nine focus areas: leadership and political participation, economic empowerment,
ending violence against women, peace and security, humanitarian action, youth, governance and
national planning, sustainable development agenda, and HIV and AIDS (see further at https://
www.unwomen.org/en/what-we-do). It works with existing UN agencies and develops capacity
within States through training and awareness-raising. It also works within the UN organisation
itself in furtherance of the gender mainstreaming agenda.
The current focus is on the UN Sustainable Development Goals. Several of these fall directly
within UN Women’s portfolio of responsibility.

UN Sustainable Development Goal 5

Achieve gender equality and empower all women and girls 

Target 5.1 End all forms of discrimination against all women and girls everywhere
Indicator(s) 5.1.1 Whether or not legal frameworks are in place to promote, enforce and monitor
equality and non-discrimination on the basis of sex
Target 5.2 Eliminate all forms of violence against all women and girls in the public and
private spheres, including trafficking and sexual and other types of exploitation
Indicator(s) 5.2.1 Proportion of ever-partnered women and girls aged 15 years and older subjected
to physical, sexual or psychological violence by a current or former intimate partner in
the previous 12 months, by form of violence and by age
5.2.2 Proportion of women and girls aged 15 years and older subjected to sexual
violence by persons other than an intimate partner in the previous 12 months, by age
and place of occurrence
Target 5.3 Eliminate all harmful practices, such as child, early and forced marriage and
female genital mutilation 
Indicator(s) 5.3.1 Proportion of women aged 20–24 years who were married or in a union before age
15 and before age 18
5.3.2 Proportion of girls and women aged 15–49 years who have undergone female
genital mutilation/cutting, by age
Target 5.4 Recognize and value unpaid care and domestic work through the provision of
public services, infrastructure and social protection policies and the promotion of
shared responsibility within the household and the family as nationally appropriate
524 | WOMEN 

Indicator(s) 5.4.1 Proportion of time spent on unpaid domestic and care work, by sex, age and
location
Target 5.5 Ensure women’s full and effective participation and equal opportunities for
leadership at all levels of decision-making in political, economic and public life
Indicator(s) 5.5.1 Proportion of seats held by women in national parliaments and local governments
5.5.2 Proportion of women in managerial positions
Target 5.6 Ensure universal access to sexual and reproductive health and reproductive
rights as agreed in accordance with the Programme of Action of the International
Conference on Population and Development and the Beijing Platform for Action and
the outcome documents of their review conferences
Indicator(s) 5.6.1 Proportion of women aged 15–49 years who make their own informed decisions
regarding sexual relations, contraceptive use and reproductive health care
5.6.2 Number of countries with laws and regulations that guarantee women aged 15–49
years access to sexual and reproductive health care, information and education
Target 5.a Undertake reforms to give women equal rights to economic resources, as well
as access to ownership and control over land and other forms of property, financial
services, inheritance and natural resources, in accordance with national laws
Indicator(s) 5.a.1 (a) Proportion of total agricultural population with ownership or secure rights over
agricultural land, by sex; and (b) share of women among owners or rights-bearers of
agricultural land, by type of tenure
5.a.2 Proportion of countries where the legal framework (including customary law)
guarantees women’s equal rights to land ownership and/or control
Target 5.b Enhance the use of enabling technology, in particular information and
communications technology, to promote the empowerment of women
Indicator(s) 5.b.1 Proportion of individuals who own a mobile telephone, by sex
Target 5.c Adopt and strengthen sound policies and enforceable legislation for the promotion
of gender equality and the empowerment of all women and girls at all levels
Indicator(s) 5.c.1 Proportion of countries with systems to track and make public allocations for
gender equality and women’s empowerment

14.3.2 A positive obligation on States?

Many women’s rights require positive intervention on the part of the State. (The nature of the
duties on States is discussed in more detail in Chapter 2.) Protecting women from domestic
and other violence, for example, may require a revision of criminal law. For example, marital
rape has only recently been recognised as a crime in many States yet clearly involves violence
against women and is degrading and aimed at subjugation and assertion of male power and
dominance. To eradicate the practice, national legislatures are required to enact legislation
which punishes the perpetrators adequately and renders prosecution effective as a remedy and
a deterrent.

14.4 Protection from persecution: trafficking, exploitation

Persecution of women may occur for a variety of reasons. Cultural traditions may account for
some elements. The issue of trafficking continues to affect more women and girl-children than
men. Europe is one of the principal destinations of trafficked women. There they frequently
enter the sex trade and can end up using drugs. The vicious cycle of poverty is rarely broken and
women find themselves unable to repay the bond money and thus subjected to working for their
 WOMEN  | 525

controller. The Convention on the Elimination of All Forms of Discrimination against Women is
unequivocal in its prohibition of such activities.

CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN

1979, Article 6

States Parties shall take all appropriate measures, including legislation, to suppress all forms
of traffic in women and exploitation or prostitution of women.

Trafficking, by definition, is a transnational problem. As the Beijing Platform for Action notes at
para 122, ‘the effective suppression of trafficking in women and girls for the sex trade is a matter
of pressing international concern’. A concerted global response is thus the only approach likely to
succeed in eliminating trafficking. This becomes apparent as more research emerges.

CONVENTION FOR THE SUPPRESSION OF THE TRAFFIC IN PERSONS AND OF THE

EXPLOITATION OF THE PROSTITUTION OF OTHERS 1949

The Contracting parties

Hereby agree as hereinafter provided:

Article 1

The Parties to the present Convention agree to punish any person who, to gratify the passions
of another:

(1) Procures, entices or leads away, for purposes of prostitution, another person, even with
the consent of that person;
(2) Exploits the prostitution of another person, even with the consent of that person.

Article 2

The Parties to the present Convention further agree to punish any person who:

(1) Keeps or manages, or knowingly finances or takes part in the financing of a brothel;
(2) Knowingly lets or rents a building or other place or any part thereof for the purpose of the
prostitution of others.

Article 3

To the extent permitted by domestic law, attempts to commit any of the offences referred to in
articles 1 and 2, and acts preparatory to the commission thereof, shall also be punished.

Article 4

To the extent permitted by domestic law, intentional participation in the acts referred to in
articles 1 and 2 above shall also be punishable.
To the extent permitted by domestic law, acts of participation shall be treated as separate
offences whenever this is necessary to prevent impunity.

This Convention continues by addressing penal matters to ensure that all perpetrators can be tried
and punished for engaging in such activities. Further attempts to regulate the area have been made
by the General Assembly. Given that much trafficking occurs through organised crime linked
activity, a Protocol to the United Nations Convention against Transnational Organised Crime has
been adopted. It indicates the approach of the United Nations to the subject. According to the
preamble, combating trafficking in persons, especially women and children, requires a comprehen-
sive international approach in the countries of origin, transit and destination that includes measures
to prevent such trafficking, to punish the traffickers and to protect the victims of such trafficking.
526 | WOMEN 

Existing law was found inadequate and the lack of a single international instrument was decried,
being a barrier to protection of women.

Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and
Children, supplementing the United Nations Convention against Transnational Organized
Crime 2000

Article 3

Use of terms

For the purposes of this Protocol:

(a) ‘Trafficking in persons’ shall mean the recruitment, transportation, transfer, harbouring
or receipt of persons, by means of the threat or use of force or other forms of coercion, of
abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or
of the giving or receiving of payments or benefits to achieve the consent of a person having
control over another person, for the purpose of exploitation. Exploitation shall include,
at a minimum, the exploitation of the prostitution of others or other forms of sexual
exploitation, forced labour or services, slavery or practices similar to slavery, servitude or
the removal of organs;
(b) The consent of a victim of trafficking in persons to the intended exploitation set forth in
subparagraph (a) of this article shall be irrelevant where any of the means set forth in
subparagraph (a) have been used;
(c) The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose
of exploitation shall be considered ‘trafficking in persons’ even if this does not involve any
of the means set forth in subparagraph (a) of this article;
(d) ‘Child’ shall mean any person under eighteen years of age.

Article 4

Scope of application

This Protocol shall apply, except as otherwise stated herein, to the prevention, investigation
and prosecution of the offences established in accordance with article 5 of this Protocol, where
those offences are transnational in nature and involve an organized criminal group, as well as
to the protection of victims of such offences. . .

Article 9

Prevention of trafficking in persons

1 States Parties shall establish comprehensive policies, programmes and other measures:
(a) To prevent and combat trafficking in persons; and
(b) To protect victims of trafficking in persons, especially women and children, from
revictimization.

2 States Parties shall endeavour to undertake measures such as research, information

and mass media campaigns and social and economic initiatives to prevent and combat
trafficking in persons.
3 Policies, programmes and other measures established in accordance with this article
shall, as appropriate, include cooperation with non-governmental organizations, other
relevant organizations and other elements of civil society.
4 States Parties shall take or strengthen measures, including through bilateral or
multilateral cooperation, to alleviate the factors that make persons, especially women
 WOMEN  | 527

and children, vulnerable to trafficking, such as poverty, underdevelopment and lack of

equal opportunity.
5 States Parties shall adopt or strengthen legislative or other measures, such as educational,
social or cultural measures, including through bilateral and multilateral cooperation, to
discourage the demand that fosters all forms of exploitation of persons, especially women
and children, that leads to trafficking.

As occurred in the principal convention, the emphasis is on creating criminal liability for traf-
fickers. Given the transnational nature of trafficking, this can only be established by international
agreement. Article 5 provides the details.
The need for protecting the victims of trafficking is also recognised.

Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially

Women and Children, supplementing the United Nations Convention
against Transnational Organized Crime 2000

Article 6

Assistance to and protection of victims of trafficking in persons

1 In appropriate cases and to the extent possible under its domestic law, each State Party
shall protect the privacy and identity of victims of trafficking in persons, including, inter
alia, by making legal proceedings relating to such trafficking confidential.
2 Each State Party shall ensure that its domestic legal or administrative system contains
measures that provide to victims of trafficking in persons, in appropriate cases:

(a) Information on relevant court and administrative proceedings;

(b) Assistance to enable their views and concerns to be presented and considered
at appropriate stages of criminal proceedings against offenders, in a manner not
prejudicial to the rights of the defence.

3 Each State Party shall consider implementing measures to provide for the physical,
psychological and social recovery of victims of trafficking in persons, including, in
appropriate cases, in cooperation with non-governmental organizations, other relevant
organizations and other elements of civil society, and, in particular, the provision of:

(a) Appropriate housing;

(b) Counselling and information, in particular as regards their legal rights, in a
language that the victims of trafficking in persons can understand;
(c) Medical, psychological and material assistance; and
(d) Employment, educational and training opportunities.

4 Each State Party shall take into account, in applying the provisions of this article, the age,
gender and special needs of victims of trafficking in persons, in particular the special
needs of children, including appropriate housing, education and care.
5 Each State Party shall endeavour to provide for the physical safety of victims of trafficking
in persons while they are within its territory.
6 Each State Party shall ensure that its domestic legal system contains measures that offer
victims of trafficking in persons the possibility of obtaining compensation for damage suffered.

Given the transnational nature of trafficking, it is also important that regard be had to the need to
repatriate many victims. The Protocol protects individual victims by facilitating their residence in
the State to which they were trafficked (Article 7) and their repatriation (Article 8).
528 | WOMEN 

Note also the provisions of the 2000 Protocol against the Smuggling of Migrants by Land, Sea
and Air, supplementing the United Nations Convention against Transnational Organized Crime.
It has relevance to the issue of trafficking as it addresses the related issue of people smuggling. Arti-
cle 3(a) notes ‘“Smuggling of migrants” shall mean the procurement, in order to obtain, directly or
indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of
which the person is not a national or a permanent resident’. There are correlations between traf-
ficking and people smuggling. While men may often be willing migrants, women are sometimes
sold to smugglers to be taken to another country for financial gain. Many of these women end up
involved in prostitution and other aspects of the sex trade. They lack the financial independence
to return home.
The Council of Europe’s Convention on Action against Trafficking in Human Beings 2005
includes specific measures on discouraging the demand for trafficked persons (Article 6) and
ensuring adequate safeguards are in place at borders (Article 7), something especially relevant in a
European Union with limited border controls.

Convention on Action against Trafficking 2005 Article 6 – Measures to discourage

the demand

To discourage the demand that fosters all forms of exploitation of persons, especially women
and children, that leads to trafficking, each Party shall adopt or strengthen legislative,
administrative, educational, social, cultural or other measures including:

a research on best practices, methods and strategies;

b raising awareness of the responsibility and important role of media and civil society in
identifying the demand as one of the root causes of trafficking in human beings;
c target information campaigns involving, as appropriate, inter alia, public authorities and
policy makers;
d preventive measures, including educational programmes for boys and girls during their
schooling, which stress the unacceptable nature of discrimination based on sex, and its
disastrous consequences, the importance of gender equality and the dignity and integrity
of every human being.

As this article demonstrates, education and awareness-raising activities are intended to combat
demand for trafficked persons. Changing the culture is always a slow option, but is something
which is frequently used in human rights. The chapter including human rights education provides
more examples of this.
An emergent focus area is the criminalisation of women and children who have been
trafficked. Often such individuals have entered the country illegally and may be working
illegally. They thus run the risk of being prosecuted should they escape their captors and
go to the police. To compound the problem, trafficked persons usually have no identifica-
tion documentation or, if they do possess passports, these are kept by their captors. Thus
trafficked women can find it difficult to prove their identity and access the legal system as a
defensive mechanism (as opposed to prosecutorial system). A number of systems are now in
place around the world to assist with the rehabilitation of trafficked persons and their rein-
tegration into society. These often include their return to their home State though in some
circumstances, trafficked persons stay on in the ‘receiving’ State, especially when a return to
their home State would result in alienation and persecution (for example, if the woman was
involved in the sex industry in the destination State and thus may have brought shame on her
family and will be prosecuted on her return home). The United Kingdom provides a useful
example of efforts that States have taken and the potential for reform and development of the
domestic legal system.
 WOMEN  | 529

Concluding observations on the eighth periodic report of the United Kingdom

of Great Britain and Northern Ireland, 14 March 2019

. . .

Trafficking and exploitation of prostitution

33. The Committee welcomes the adoption in 2015 of the Modern Slavery Act, the Human
Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland)
and the Human Trafficking and Exploitation (Scotland) Act, which introduce new criminal
offences for trafficking in persons, slavery, servitude and forced and compulsory labour.
However, the Committee is concerned that the definition of trafficking as set out in the Modern
Slavery Act is conditioned on travel of the victim. While appreciating the ongoing reforms
to improve the national referral mechanism, the Committee remains concerned that many
victims of trafficking and modern forms of slavery remain unidentified and that the support
provided to victims is inadequate, putting victims at risk of homelessness, destitution and
further exploitation.
34. The Committee recommends that the State party:

(a) Ensure that the definition of trafficking in persons in its national legislation is in line with
the internationally agreed definition set out in the Protocol to Prevent, Suppress and
Punish Trafficking in Persons, Especially Women and Children, supplementing the United
Nations Convention against Transnational Organized Crime;
(b) Adopt a comprehensive national strategy to combat trafficking in women and girls, as
previously recommended;
(c) Continue to improve the national referral mechanism, including by implementing the
reform package announced in October 2017, to ensure that victims of trafficking are
properly identified and adequately protected and supported.

35. The Committee expresses concern about reports of the increasing number of women
who are turning to prostitution due to poverty and of the practice of male landlords offering
accommodations to women in return for sex (known as ‘sex for rent’). It is also concerned
that existing services provided to women in prostitution are focused on harm reduction, rather
than on exiting prostitution, which may have the effect of prolonging the exploitation of women
in prostitution. While noting that it is an offence to pay for the sexual services of a child, the
Committee is concerned that the prosecution is required to prove that the accused believed the
child to be under 18 years old, rather than the burden of proof being placed on the accused,
which contributes to impunity for exploitation of child prostitution.
36. The Committee recommends that the State party:

(a) Take effective measures to ensure that women in vulnerable situations have effective
access to employment opportunities, housing and social security so that they do not need
to resort to prostitution or ‘sex for rent’;
(b) Take effective measures to reduce demand for commercial sex, including by carrying out
educational and awareness-raising measures targeted at men and boys and focused on
combating all notions of the subordination and objectification of women;
(c) Revise legislation to decriminalize prostitution and clear the criminal records of women
who have been convicted for offences related to prostitution to enable them to seek
alternative forms of employment;
(d) Ensure the availability of specialist services that are adequately funded, inclusive and
accessible to assist women and girls in exiting prostitution;
(e) Create educational and employment opportunities for women who wish to exit
prostitution;
530 | WOMEN 

(f) Undertake research into the prevalence and nature of prostitution in Northern Ireland and
Scotland, in addition to the research that is currently under way in England and Wales, to
identify the necessary changes to be made to legislation and policy;
(g) Revise its legislation to shift the burden of proof from the prosecution to the purchaser of
sexual services for cases involving minors, as previously recommended (CEDAW/C/GBR/
CO/7, para. 41).

14.5 Violence against women

Women can be subject to violence, in the home or outwith it. More women are at risk from assault
and even death within the home at the hands of someone they know than outside. Domestic
violence is prevalent in all parts of the world, and is sometimes part of the ingrained culture. Latin
America, Asia and the Pacific all produce evidence of cultures which condone (even passively)
some domestic violence. One of the most significant problems with violence against women is the
lack of public (official) awareness. Many women do not report domestic violence to the authori-
ties and, even if they do, frequently they will not press charges. See Economic and Social Council
Resolution 1990/15 (1990) per the last paragraph.
Many different instruments impact on the rights of women to be protected from domestic
violence and implementing policies of systematic rape can constitute genocide. Therefore, per-
petrators of systematic rape of an ethnic group will be tried in accordance with the principles of
international criminal law. However, domestic violence was omitted from the provisions of the
Convention on the Elimination of All Forms of Discrimination against Women. This was partially
ameliorated by the Committee on the Elimination of Discrimination against Women, which
adopted a General Recommendation on the subject.

General Recommendation No. 19, 1992 (CEDAW)

Background

1. Gender-based violence is a form of discrimination that seriously inhibits women’s ability

to enjoy rights and freedoms on a basis of equality with men.
...

General comments

6. The Convention in article 1 defines discrimination against women. The definition of

discrimination includes gender-based violence, that is, violence that is directed against a
woman because she is a woman or that affects women disproportionately. It includes acts
that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and
other deprivations of liberty. Gender-based violence may breach specific provisions of the
Convention, regardless of whether those provisions expressly mention violence.
7. Gender-based violence, which impairs or nullifies the enjoyment by women of human
rights and fundamental freedoms under general international law or under human rights
conventions, is discrimination within the meaning of article 1 of the Convention. These rights
and freedoms include:

(a) The right to life;

(b) The right not to be subject to torture or to cruel, inhuman or degrading treatment or
punishment;
(c) The right to equal protection according to humanitarian norms in time of international or
internal armed conflict;
(d) The right to liberty and security of person;
 WOMEN  | 531

(e) The right to equal protection under the law;

(f) The right to equality in the family;
(g) The right to the highest standard attainable of physical and mental health;
(h) The right to just and favourable conditions of work. . . .

9. It is emphasized, however, that discrimination under the Convention is not restricted

to action by or on behalf of Governments (see articles 2(e), 2(f) and 5). For example, under
article 2(e) the Convention calls on States parties to take all appropriate measures to eliminate
discrimination against women by any person, organization or enterprise. Under general
international law and specific human rights covenants, States may also be responsible for
private acts if they fail to act with due diligence to prevent violations of rights or to investigate
and punish acts of violence, and for providing compensation.

Comments on specific articles of the Convention

Articles 2 and 3

10. Articles 2 and 3 establish a comprehensive obligation to eliminate discrimination in all its
forms in addition to the specific obligations under articles 5–16.

Articles 2(f), 5 and 10(c)

11. Traditional attitudes by which women are regarded as subordinate to men or as having
stereotyped roles perpetuate widespread practices involving violence or coercion, such as
family violence and abuse, forced marriage, dowry deaths, acid attacks and female circumcision.
Such prejudices and practices may justify gender-based violence as a form of protection or
control of women. The effect of such violence on the physical and mental integrity of women
is to deprive them of the equal enjoyment, exercise and knowledge of human rights and
fundamental freedoms. While this comment addresses mainly actual or threatened violence
the underlying consequences of these forms of gender-based violence help to maintain women
in subordinate roles and contribute to the low level of political participation and to their lower
level of education, skills and work opportunities.
12. These attitudes also contribute to the propagation of pornography and the depiction
and other commercial exploitation of women as sexual objects, rather than as individuals. This
in turn contributes to gender-based violence.

Article 6

13. States parties are required by article 6 to take measures to suppress all forms of traffic in
women and exploitation of the prostitution of women.
14. Poverty and unemployment increase opportunities for trafficking in women. In addition
to established forms of trafficking there are new forms of sexual exploitation, such as sex
tourism, the recruitment of domestic labour from developing countries to work in developed
countries and organized marriages between women from developing countries and foreign
nationals. These practices are incompatible with the equal enjoyment of rights by women and
with respect for their rights and dignity. They put women at special risk of violence and abuse.
15. Poverty and unemployment force many women, including young girls, into prostitution.
Prostitutes are especially vulnerable to violence because their status, which may be unlawful,
tends to marginalize them. They need the equal protection of laws against rape and other
forms of violence.
16. Wars, armed conflicts and the occupation of territories often lead to increased
prostitution, trafficking in women and sexual assault of women, which require specific
protective and punitive measures.
532 | WOMEN 

Article 11

17. Equality in employment can be seriously impaired when women are subjected to gender-
specific violence, such as sexual harassment in the workplace.
18. Sexual harassment includes such unwelcome sexually determined behaviour as
physical contact and advances, sexually coloured remarks, showing pornography and sexual
demand, whether by words or actions. Such conduct can be humiliating and may constitute
a health and safety problem; it is discriminatory when the woman has reasonable grounds
to believe that her objection would disadvantage her in connection with her employment,
including recruitment or promotion, or when it creates a hostile working environment.

Article 12

19. States parties are required by article 12 to take measures to ensure equal access to health
care. Violence against women puts their health and lives at risk.
20. In some States there are traditional practices perpetuated by culture and tradition
that are harmful to the health of women and children. These practices include dietary
restrictions for pregnant women, preference for male children and female circumcision or
genital mutilation.

Article 14

21. Rural women are at risk of gender-based violence because of traditional attitudes
regarding the subordinate role of women that persist in many rural communities. Girls from
rural communities are at special risk of violence and sexual exploitation when they leave the
rural community to seek employment in towns.

Article 16 (and article 5)

22. Compulsory sterilization or abortion adversely affects women’s physical and mental health,
and infringes the right of women to decide on the number and spacing of their children.
23. Family violence is one of the most insidious forms of violence against women. It is
prevalent in all societies. Within family relationships women of all ages are subjected to violence
of all kinds, including battering, rape, other forms of sexual assault, mental and other forms of
violence, which are perpetuated by traditional attitudes. Lack of economic independence forces
many women to stay in violent relationships. The abrogation of their family responsibilities by
men can be a form of violence, and coercion. These forms of violence put women’s health at
risk and impair their ability to participate in family life and public life on a basis of equality.

Question
Note the range of pre-existing rights which can be invoked to create a body of laws prohibiting domestic vio-
lence. Does this indicate that there is no need for a discrete instrument on violence against women? Could such
an instrument be effective?

The Committee made a number of recommendations. Following this, the General Assembly
adopted a Declaration on Eliminating Violence Against Women in 1993 in light of the aspirations
voiced in the Vienna World Conference and the earlier recommendation of the Economic and
Social Council (Resolution 1991/18) on the development of a framework for an international
instrument aimed at preventing violence against women.

DECLARATION ON THE ELIMINATION OF VIOLENCE AGAINST WOMEN, GENERAL ASSEMBLY

RESOLUTION 48/104 OF 20 DECEMBER 1993

Article 1

For the purposes of this Declaration, the term ‘violence against women’ means any act of
gender-based violence that results in, or is likely to result in, physical, sexual or psychological
 WOMEN  | 533

harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of
liberty, whether occurring in public or in private life.

Article 2

Violence against women shall be understood to encompass, but not be limited to, the following:

(a) Physical, sexual and psychological violence occurring in the family, including battering,
sexual abuse of female children in the household, dowry-related violence, marital rape,
female genital mutilation and other traditional practices harmful to women, non-spousal
violence and violence related to exploitation;
(b) Physical, sexual and psychological violence occurring within the general community,
including rape, sexual abuse, sexual harassment and intimidation at work, in educational
institutions and elsewhere, trafficking in women and forced prostitution;
(c) Physical, sexual and psychological violence perpetrated or condoned by the State,
wherever it occurs.

Article 4

States should condemn violence against women and should not invoke any custom, tradition or
religious consideration to avoid their obligations with respect to its elimination. States should
pursue by all appropriate means and without delay a policy of eliminating violence against
women and, to this end, should:

(a) Consider, where they have not yet done so, ratifying or acceding to the Convention on the
Elimination of All Forms of Discrimination against Women or withdrawing reservations to
that Convention;
(b) Refrain from engaging in violence against women;
(c) Exercise due diligence to prevent, investigate and, in accordance with national legislation,
punish acts of violence against women, whether those acts are perpetrated by the State
or by private persons;
(d) Develop penal, civil, labour and administrative sanctions in domestic legislation to punish
and redress the wrongs caused to women who are subjected to violence;
women who are subjected to violence should be provided with access to the
mechanisms of justice and, as provided for by national legislation, to just and effective
remedies for the harm that they have suffered; States should also inform women of their
rights in seeking redress through such mechanisms;
(e) Consider the possibility of developing national plans of action to promote the protection
of women against any form of violence, or to include provisions for that purpose in plans
already existing, taking into account, as appropriate, such cooperation as can be provided
by non-governmental organizations, particularly those concerned with the issue of
violence against women;
(f) Develop, in a comprehensive way, preventive approaches and all those measures of a
legal, political, administrative and cultural nature that promote the protection of women
against any form of violence, and ensure that the re-victimization of women does not
occur because of laws insensitive to gender considerations, enforcement practices or
other interventions;
(g) Work to ensure, to the maximum extent feasible in the light of their available resources
and, where needed, within the framework of international cooperation, that women
subjected to violence and, where appropriate, their children have specialized assistance,
such as rehabilitation, assistance in child care and maintenance, treatment, counselling,
and health and social services, facilities and programmes, as well as support structures,
and should take all other appropriate measures to promote their safety and physical and
psychological rehabilitation;
(h) Include in government budgets adequate resources for their activities related to the
elimination of violence against women;
534 | WOMEN 

(i) Take measures to ensure that law enforcement officers and public officials responsible
for implementing policies to prevent, investigate and punish violence against women
receive training to sensitize them to the needs of women;
(j) Adopt all appropriate measures, especially in the field of education, to modify the social
and cultural patterns of conduct of men and women and to eliminate prejudices, customary
practices and all other practices based on the idea of the inferiority or superiority of either
of the sexes and on stereotyped roles for men and women;
(k) Promote research, collect data and compile statistics, especially concerning domestic
violence, relating to the prevalence of different forms of violence against women and
encourage research on the causes, nature, seriousness and consequences of violence
against women and on the effectiveness of measures implemented to prevent and redress
violence against women; those statistics and findings of the research will be made public;
(l) Adopt measures directed towards the elimination of violence against women who are
especially vulnerable to violence;
(m) Include, in submitting reports as required under relevant human rights instruments of the
United Nations, information pertaining to violence against women and measures taken to
implement the present Declaration;
(n) Encourage the development of appropriate guidelines to assist in the implementation of
the principles set forth in the present Declaration;
(o) Recognize the important role of the women’s movement and non-governmental
organizations worldwide in raising awareness and alleviating the problem of violence
against women;
(p) Facilitate and enhance the work of the women’s movement and non-governmental
organizations and cooperate with them at local, national and regional levels;
(q) Encourage intergovernmental regional organizations of which they are members to
include the elimination of violence against women in their programmes, as appropriate.

Question
Does the definition in Articles 1/2 include all permutations of domestic violence? Look carefully at Article
2(a) – there are clear implications for cultural relativity. Is the correct balance of rights reached?

Domestic violence was the subject matter of the first merits opinion of the Committee on the
Elimination of Discrimination against Women (opinion issued January 2005).
UN Women have violence against women as a key focus area. It also coordinates the Secretary-
General’s UNiTE campaign to end violence against women. This was introduced following the
Secretary-General’s in-depth study of all forms of violence against women – UN Doc. A/61/122/
Add. 1 (2006). Nevertheless domestic violence remains a global scourge.

14.5.1 Committee on elimination of discrimination against

women – communications
The following communication was the first to raise violence against women issues.

Ms A-T v Hungary, Communication 2/2003, decision January 2005

The author of the communication, Ms A-T, claimed that she had been subject to regular
domestic violence and threats of violence by her common law husband. Despite threats to her
and their children, she has not been able to flee to a women’s refuge as none offer the essential
support for her brain-damaged child. The man in question left the family home but continued
physical and ‘financial’ abuse. Interim measures of protection were requested and stipulated.
Moreover, the State instituted a comprehensive action plan against domestic violence. Some of
 WOMEN  | 535

the facts were disputed in the case, particularly those concerning national legal proceedings.
The Committee recalled its general recommendation No. 19 on domestic violence and then
adopted a positive approach to the obligations imposed on the State.

9.3 With regard to article 2 (a), (b), and (e), the Committee notes that the State party has
admitted that the remedies pursued by the author, were not capable of providing immediate
protection to her against ill-treatment by her former partner and, furthermore, that legal and
institutional arrangements in the State party are not yet ready to ensure the internationally
expected, coordinated, comprehensive and effective protection and support for the victims of
domestic violence. While appreciating the State party’s efforts at instituting a comprehensive
action programme against domestic violence and the legal and other measures envisaged, the
Committee believes that these have yet to benefit the author and address her persistent situation
of insecurity. The Committee further notes the State party’s general assessment that domestic
violence cases as such do not enjoy high priority in court proceedings. The Committee is of the
opinion that the description provided of the proceedings resorted to in the present case, both the
civil and criminal proceedings, coincides with this general assessment. Women’s human rights
to life and to physical and mental integrity cannot be superseded by other rights, including the
right to property and the right to privacy. The Committee also takes note that the State party
does not offer information as to the existence of alternative avenues that the author may have
pursued that would have provided sufficient protection or security from the danger of continued
violence. In this connection, the Committee recalls its concluding comments from August 2002
on the State party’s combined fourth and fifth periodic report that states ‘. . . [T]he Committee
is concerned about the prevalence of violence against women and girls, including domestic
violence. It is particularly concerned that no specific legislation has been enacted to combat
domestic violence and sexual harassment and that no protection or exclusion orders or shelters
exist for the immediate protection of women victims of domestic violence’. Bearing this in mind,
the Committee concludes that the obligations of the State party that are set out in article 2 (a), (b)
and (e) of the Convention extend to the prevention of, and protection from violence against women
and, in the instant case, remain unfulfilled and constitute a violation of the author’s human rights
and fundamental freedoms, particularly her right to security of person.

9.4 The Committee addressed articles 5 and 16 together in its general recommendation No. 19
in dealing with family violence. In its general recommendation No. 21, the Committee stressed
that ‘the provisions of General Recommendation 19 . . . concerning violence against women
have great significance for women’s abilities to enjoy rights and freedoms on an equal basis with
men’. It has stated on many occasions that traditional attitudes by which women are regarded
as subordinate to men contribute to violence against them. The Committee recognized those
very attitudes when it considered the combined fourth and fifth periodic report of Hungary
in 2002, and was concerned about the ‘persistence of entrenched traditional stereotypes
regarding the role and responsibilities of women and men in the family .  .  .’. In respect of
the instant case before the Committee, the facts of the communication reveal aspects of the
relationships between the sexes and attitudes towards women that the Committee recognized
vis-à-vis the country as a whole. For four years and continuing to the present day, the author
has felt threatened by her former common law husband – the father of her two children. The
author has been battered by the same man, i.e. her former common law husband. She has
been unsuccessful, either through civil or criminal proceedings, to temporarily or permanently
bar L.F. from the apartment where she and her children have continued to reside. The author
could not have asked for a restraining or protection order since neither option currently exists
in the State party. She has been unable to flee to a shelter because none are equipped to take
her in together with her children, one of whom is fully disabled. None of these facts have been
disputed by the State party and, considered together, they indicate that the rights of the author
under articles 5 (a) and 16 of the Convention have been violated.
536 | WOMEN 

9.5 The Committee also notes that the lack of effective legal and other measures prevented
the State party from dealing in a satisfactory manner with the Committee’s request for interim
measures.

9.6 Acting under article 7, paragraph 3, of the Optional Protocol to the Convention on the
Elimination of All Forms of Discrimination against Women, the Committee is of the view that
the State party has failed to fulfil its obligations and has thereby violated the rights of the author
under article 2 (a), (b) and (e) and article 5(a) in conjunction with article 16 of the Convention
on the Elimination of All Forms of Discrimination against Women, and makes the following
recommendations to the State party:

I. concerning the author of the communication

i. take immediate and effective measures to guarantee the physical and mental
integrity of A.T. and her family; and
ii. ensure that A.T. is given a safe home in which to live with her children, receives
appropriate child support and legal assistance and that she receives reparation
proportionate to the physical and mental harm undergone and to the gravity of the
violations of her rights;

II. general
i. respect, protect, promote and fulfil women’s human rights, including their right to
be free from all forms of domestic violence, including intimidation and threats of
violence;
ii. assure victims of domestic violence the maximum protection of the law by acting
with due diligence to prevent and respond to such violence against women;
iii. take all necessary measures to ensure that the national strategy for the prevention
and effective treatment of violence within the family is promptly implemented and
evaluated;
iv. take all necessary measures to provide regular training on the Convention on
the Elimination of All Forms of Discrimination against Women and the Optional
Protocol thereto to judges, lawyers and law enforcement officials;
v. implement expeditiously and without delay the Committee’s concluding comments
of August 2002 on the combined fourth and fifth periodic report of Hungary
in respect of violence against women and girls, in particular the Committee’s
recommendation that a specific law be introduced prohibiting domestic violence
against women, which would provide for protection and exclusion orders as well as
support services, including shelters;
vi. investigate promptly, thoroughly, impartially and seriously all allegations
of domestic violence and bring the offenders to justice in accordance with
international standards;
vii. provide victims of domestic violence with safe and prompt access to justice,
including free legal aid where necessary, to ensure them available, effective and
sufficient remedies and rehabilitation; and
viii. provide offenders with rehabilitation programmes and programmes on non-violent
conflict resolution methods.

See also JI v Finland communication 103//2016 and the González Carreño case with its
extensive compensation outlined in Chapter 7.

Question
Does this communication turn on its own merits or are there principles which can be extracted for use more
generally?
 WOMEN  | 537

14.5.2 Regional provision in the Americas

Within the Americas, violence against women has been regarded as a particular problem. The
traditional balance of power was deemed to leave women more vulnerable to violence. A spe-
cific convention was thus adopted on the topic. The instrument carefully defines the scope of its
application in Article 1. Note the breadth of the definition and also the caveat ‘based on gender’.
Clearly the focus of this instrument is on violence against women and thus it represents a form of
affirmative action, redressing the historic imbalance in power perceived to exist between men and
women, the abuse of which may result in violence. Domestic violence is explicitly included in
Article 2 as, it appears, is marital rape.

INTER-AMERICAN CONVENTION ON THE PREVENTION, PUNISHMENT AND ERADICATION

OF VIOLENCE AGAINST WOMEN 1994

Article 1

For the purposes of this Convention, violence against women shall be understood as any act
or conduct, based on gender, which causes death or physical, sexual or psychological harm or
suffering to women, whether in the public or the private sphere.

Article 2

Violence against women shall be understood to include physical, sexual and psychological violence:

that occurs within the family or domestic unit or within any other interpersonal
relationship, whether or not the perpetrator shares or has shared the same residence
with the woman, including, among others, rape, battery and sexual abuse;
that occurs in the community and is perpetrated by any person, including, among others,
rape, sexual abuse, torture, trafficking in persons, forced prostitution, kidnapping and
sexual harassment in the workplace, as well as in educational institutions, health
facilities or any other place; and
that is perpetrated or condoned by the state or its agents regardless of where it occurs.

Question
Is the Inter-American Convention’s definition similar to that advanced by the General Assembly? Are any
differences important?

A list of rights of women follow in the American Convention. Note the interrelationship between
the prohibition on violence and the fundamental civil and political rights of women.

INTER-AMERICAN CONVENTION ON THE PREVENTION, PUNISHMENT AND ERADICATION OF

VIOLENCE AGAINST WOMEN 1994

Article 3

Every woman has the right to be free from violence in both the public and private spheres.

Article 4

Every woman has the right to the recognition, enjoyment, exercise and protection of all human
rights and freedoms embodied in regional and international human rights instruments. These
rights include, among others:

The right to have her life respected;

The right to have her physical, mental and moral integrity respected;
The right to personal liberty and security;
538 | WOMEN 

The right not to be subjected to torture;

The right to have the inherent dignity of her person respected and her family protected;
The right to equal protection before the law and of the law;
The right to simple and prompt recourse to a competent court for protection against acts
that violate her rights;
The right to associate freely;
The right of freedom to profess her religion and beliefs within the law; and
The right to have equal access to the public service of her country and to take part in the
conduct of public affairs, including decision-making.

Article 5

Every woman is entitled to the free and full exercise of her civil, political, economic, social and
cultural rights, and may rely on the full protection of those rights as embodied in regional and
international instruments on human rights. The States Parties recognize that violence against
women prevents and nullifies the exercise of these rights.

Article 6

The right of every woman to be free from violence includes, among others:
The right of women to be free from all forms of discrimination; and
The right of women to be valued and educated free of stereotyped patterns of behavior and
social and cultural practices based on concepts of inferiority or subordination.

Perhaps of particular note is the associated duties on States. Not only are there reporting duties
(Chapter IV of the Convention), there are also duties in respect of ensuring appropriate penal leg-
islation, and of particular note, duties in respect of education aimed at effecting a cultural change
(Article 8). This latter is of fundamental importance to the Convention and represents a brave con-
temporary approach to an historic issue. As with so many areas of human rights, education is key.

INTER-AMERICAN CONVENTION ON THE PREVENTION, PUNISHMENT AND ERADICATION

OF VIOLENCE AGAINST WOMEN 1994

Article 7

The States Parties condemn all forms of violence against women and agree to pursue, by all
appropriate means and without delay, policies to prevent, punish and eradicate such violence
and undertake to:

refrain from engaging in any act or practice of violence against women and to ensure that
their authorities, officials, personnel, agents, and institutions act in conformity with this
obligation; apply due diligence to prevent, investigate and impose penalties for violence
against women;
include in their domestic legislation penal, civil, administrative and any other type of
provisions that may be needed to prevent, punish and eradicate violence against women
and to adopt appropriate administrative measures where necessary;
adopt legal measures to require the perpetrator to refrain from harassing, intimidating
or threatening the woman or using any method that harms or endangers her life or
integrity, or damages her property;
take all appropriate measures, including legislative measures, to amend or repeal
existing laws and regulations or to modify legal or customary practices which sustain
the persistence and tolerance of violence against women;
establish fair and effective legal procedures for women who have been subjected to violence
which include, among others, protective measures, a timely hearing and effective access
to such procedures;
 WOMEN  | 539

establish the necessary legal and administrative mechanisms to ensure that women
subjected
to violence have effective access to restitution, reparations or other just and effective
remedies; and
adopt such legislative or other measures as may be necessary to give effect to this
Convention.

Article 8

The States Parties agree to undertake progressively specific measures, including programs:
to promote awareness and observance of the right of women to be free from violence, and
the right of women to have their human rights respected and protected;
to modify social and cultural patterns of conduct of men and women, including the
development of formal and informal educational programs appropriate to every level
of the educational process, to counteract prejudices, customs and all other practices
which are based on the idea of the inferiority or superiority of either of the sexes or
on the stereotyped roles for men and women which legitimize or exacerbate violence
against women;
to promote the education and training of all those involved in the administration of justice,
police and other law enforcement officers as well as other personnel responsible for
implementing policies for the prevention, punishment and eradication of violence
against women;
to provide appropriate specialized services for women who have been subjected to violence,
through public and private sector agencies, including shelters, counselling services for
all family members where appropriate, and care and custody of the affected children;
to promote and support governmental and private sector education designed to raise the
awareness of the public with respect to the problems of and remedies for violence
against women;
to provide women who are subjected to violence access to effective readjustment and
training programs to enable them to fully participate in public, private and social life;
to encourage the communications media to develop appropriate media guidelines in
order to contribute to the eradication of violence against women in all its forms, and to
enhance respect for the dignity of women;
to ensure research and the gathering of statistics and other relevant information relating
to the causes, consequences and frequency of violence against women, in order to
assess the effectiveness of measures to prevent, punish and eradicate violence against
women and to formulate and implement the necessary changes; and
to foster international cooperation for the exchange of ideas and experiences and the
execution of programs aimed at protecting women who are subjected to violence.

Article 9

With respect to the adoption of the measures in this Chapter, the States Parties shall take
special account of the vulnerability of women to violence by reason of, among others, their
race or ethnic background or their status as migrants, refugees or displaced persons. Similar
consideration shall be given to women subjected to violence while pregnant or who are
disabled, of minor age, elderly, socio-economically disadvantaged, affected by armed conflict
or deprived of their freedom.

No comparable binding measure exists in other jurisdictions. This convention thus is an important
indicator of the potential for legislation in this area. Great potential appears in its approach to the
subject with the range of duties on State Parties.
540 | WOMEN 

Perhaps emulating this in other instruments is one way forward for the international com-
munity. However, as usual, the rhetoric may be good, but the reality depends on what approach
the State adopts when giving effect to the provisions.

Question
Most States have criminal codes and/or laws which proscribe physical violence. However, domestic violence
remains a problem. What can States do to render the existing law more effective and protect the rights of women?

14.5.3 The European agenda

The Council of Europe has also adopted a Convention on the topic and swiftly sufficient ratifica-
tions to enter into force. This Convention makes a number of proposals to combat violence against
women.

Council of Europe Convention on preventing and combating violence against women and
domestic violence 2011

Article 1

1 The purposes of this Convention are to:

a protect women against all forms of violence, and prevent, prosecute and eliminate
violence against women and domestic violence;
b contribute to the elimination of all forms of discrimination against women and
promote substantive equality between women and men, including by empowering
women;
c design a comprehensive framework, policies and measures for the protection of
and assistance to all victims of violence against women and domestic violence;
d promote international co-operation with a view to eliminating violence against
women and domestic violence;
e provide support and assistance to organisations and law enforcement agencies
to effectively co-operate in order to adopt an integrated approach to eliminating
violence against women and domestic violence.

2 In order to ensure effective implementation of its provisions by the Parties, this

Convention establishes a specific monitoring mechanism.

Article 13 – Awareness-raising

1 Parties shall promote or conduct, on a regular basis and at all levels, awareness-raising
campaigns or programmes, including in co-operation with national human rights institutions
and equality bodies, civil society and non-governmental organisations, especially women’s
organisations, where appropriate, to increase awareness and understanding among the
general public of the different manifestations of all forms of violence covered by the scope
of this Convention, their consequences on children and the need to prevent such violence.
2 Parties shall ensure the wide dissemination among the general public of information on
measures available to prevent acts of violence covered by the scope of this Convention.

Article 14 – Education

1 Parties shall take, where appropriate, the necessary steps to include teaching material
on issues such as equality between women and men, non-stereotyped gender roles,
mutual respect, non-violent conflict resolution in interpersonal relationships, gender-
based violence against women and the right to personal integrity, adapted to the evolving
capacity of learners, in formal curricula and at all levels of education.
2 Parties shall take the necessary steps to promote the principles referred to in paragraph 1 in
informal educational facilities, as well as in sports, cultural and leisure facilities and the media.
 WOMEN  | 541

Article 15 – Training of professionals

1 Parties shall provide or strengthen appropriate training for the relevant professionals
dealing with victims or perpetrators of all acts of violence covered by the scope of this
Convention, on the prevention and detection of such violence, equality between women and
men, the needs and rights of victims, as well as on how to prevent secondary victimisation.
2 Parties shall encourage that the training referred to in paragraph 1 includes training on
co-ordinated multi-agency co-operation to allow for a comprehensive and appropriate
handling of referrals in cases of violence covered by the scope of this Convention.

Article 16 – Preventive intervention and treatment programmes

1 Parties shall take the necessary legislative or other measures to set up or support
programmes aimed at teaching perpetrators of domestic violence to adopt non-violent
behaviour in interpersonal relationships with a view to preventing further violence and
changing violent behavioural patterns.
2 Parties shall take the necessary legislative or other measures to set up or support
treatment programmes aimed at preventing perpetrators, in particular sex offenders,
from re-offending.
3 In taking the measures referred to in paragraphs 1 and 2, Parties shall ensure that the
safety of, support for and the human rights of victims are of primary concern and that,
where appropriate, these programmes are set up and implemented in close co-ordination
with specialist support services for victims.

The Convention provides for detailed statistical information to be compiled and maintained.
This will allow States to ascertain the seriousness of the problem and shape policies to
combat the practice. Twenty-four-hour telephone helplines, refuge centres and systems of
civil remedies and compensation are all required by the Convention. Article 34 requires State
parties to introduce laws against stalking. Criminalising stalking practices is still problematic
in many States, partly through problems of proof. However, the Convention is clear in relating
stalking to violence against women and thus requiring its criminalisation.
A group of experts will monitor State compliance with this, perhaps the most comprehensive
treaty on violence against women. Obviously, it is necessary to secure the requisite ratifications
to enable the treaty to enter into force and thus for the vision of the drafters, of a protective
legal web around women, to become reality.

14.5.4 Investigating the problem – recent UN developments

The Fourth World Conference on Women focused on violence against women and identified it as
one of the key areas of concern. Three strategic objectives were identified: take integrated measures
to prevent and eliminate violence against women; study the causes and consequences of violence
against women and the effectiveness of preventive measures; eliminate trafficking in women and
assist victims of violence due to prostitution and trafficking. UN Women are active in the educa-
tion arena and in gender sensitisation training for, for example, law enforcement officers. Education
and training is imperative to effect the necessary cultural shift and generate awareness of the issues.

Question
Consider the financial and political implications for States – what barriers may there be to their eliminating
violence against women, particularly given the apparent cultural acceptability of violence against women in
some regions of the world?

The Beijing Conference noted the need for a detailed study of the causes and consequences of
violence against women and the effectiveness of preventive measures. Paragraphs 129 et seq. of
542 | WOMEN 

the Platform for Action address this matter. A comprehensive study should enable the root causes
to be identified and thus target remedial measures more effectively; indeed the general raising of
awareness is in itself a positive step to changing the culture.
The General Assembly requested the Secretary-General to conduct an in-depth study on all
forms of violence against women.

GENERAL ASSEMBLY RESOLUTION 58/185

Requests the Secretary-General:

(a) To conduct an in-depth study, from existing available resources and, if necessary,
supplemented by voluntary contributions, on all forms and manifestations of violence
against women, as identified in the Beijing Declaration and Platform for Action adopted
at the Fourth World Conference on Women and the outcome of the twenty-third special
session of the General Assembly entitled ‘Women 2000: gender equality, development
and peace for the twenty-first century’, and relevant documents, disaggregated by type of
violence, and based on research undertaken and data collected at the national, regional
and international levels, in particular in the following fields:

(i) A statistical overview on all forms of violence against women, in order to better
evaluate the scale of such violence, while identifying gaps in data collection and
formulating proposals for assessing the extent of the problem;
(ii) The causes of violence against women, including its root causes and other
contributing factors;
(iii) The medium and long-term consequences of violence against women;
(iv) The health, social and economic costs of violence against women;
(v) The identification of best practice examples in areas including legislation, policies,
programmes and effective remedies, and the efficiency of such mechanisms to the
end of combating and eliminating violence against women;

(b) To cooperate closely with all relevant United Nations bodies, as well as with the Special
Rapporteur of the Commission on Human Rights on violence against women, its causes
and consequences, when preparing the study;
(c) To solicit information, including on strategies, policies, programmes and best practices,
from Member States as well as relevant non-governmental organizations in the
preparation of the study.

The objective of the report is simple: to determine the scale of violence against women and its
prevalence, reinforce and raise awareness of the unacceptability of such violence and identify poli-
cies and mechanisms for better realising and implementing the rights of women thereby eradicat-
ing violence. Disseminating examples of ‘good practice’ may assist in the creation of societies free
from violence. Work undertaken in preparation of the report complements the ongoing project
on children’s rights concerning violence against children.
The key rights of women which are related to the eradication of violence are represented
in the diagram opposite. As with all individuals and groups requiring the protection of human
rights, the full range of international human rights are open to victims. Therefore it is appropriate
to recap the range of rights which may be of benefit to women seeking protection from domestic
violence.
This report was submitted to the General Assembly’s 60th session in December 2005. The
views of Member States will then be solicited to facilitate a broader discussion of the topic. In
 WOMEN  | 543

December 2008, the General Assembly adopted two resolutions: Resolution 63/155 on the inten-
sification of efforts to eliminate all forms of violence against women and Resolution 63/156 on
trafficking women and girls. A report on good legislative practices to combat violence against
women has also been adopted. As part of the review of violence against women, the Secretary-
General’s database on violence against women was launched in March 2009 (http://evaw-global-
database.unwomen.org/en).

14.5.4.1 World Health Organisation report

The World Health Organisation completed and published its first study on domestic violence
towards the end of 2005. It is based on interviews with women across ten countries (Bangladesh,
Brazil, Ethiopia, Japan, Namibia, Peru, Samoa, Serbia and Montenegro, Thailand and the United
Republic of Tanzania). The study identified major health implications for domestic violence. The
following definitions were used:

• Physical violence: being slapped, pushed, hit with fist or other object which could hurt,
kicked, beaten up, choked, burnt on purpose, threatened with or attacked with gun, knife or
other weapon or having something thrown with intent to injure.
• Sexual violence: being physically forced to have sexual intercourse; having intercourse out
of fear of what the partner would do otherwise; being forced to engage in sexual practices the
woman found degrading or humiliating.

The study found that abused women are twice as likely to have physical and mental health prob-
lems as non-abused women. Sexual and reproductive health can also be affected – the spread of
sexually transmitted diseases often occurs and pregnant women were also found to be subjected
to violence.
544 | WOMEN 

The World Health Organisation report recommends education and violence prevention pro-
gramming. Further information can be found on the website of the Organisation: www.who.int.

14.6 Family rights: marriage and children

Inevitably, family rights affect women. In many societies, women undertake much responsibility
for homemaking and child-rearing (see, for example, the Guatemalan code, discussed in Morales
de Sierra v Guatemala). However, in some instances, particularly in subsistence societies, they also
have to work outwith the home. Other women may choose to work alongside undertaking family
responsibilities. Marriage itself is often open to abuse; women can be exploited by being sold into
marriage and treated as domestic and sex slaves.
As is indicated earlier, women are entitled to full equality of rights and to equal protection of
the law. As a consequence, even when married, women should still retain their individual rights
and legal equality. The Committee on Elimination of Discrimination against Women adopted
General Recommendation 21 (1994) on Equality in Marriage and Family Relations. This was
adopted in the designated Year of the Family. The following extract relates to the implications of
marriage on a woman’s legal status.

CEDAW General Recommendation 21 (1994), extract in respect of Article 15 of the

Convention on the Elimination of All Forms of Discrimination against Women

7. When a woman cannot enter into a contract at all, or have access to financial credit, or can
do so only with her husband’s or a male relative’s concurrence or guarantee, she is denied
legal autonomy. Any such restriction prevents her from holding property as the sole owner and
precludes her from the legal management of her own business or from entering into any other
form of contract. Such restrictions seriously limit the woman’s ability to provide for herself and
her dependents (sic).
8. A woman’s right to bring litigation is limited in some countries by law or by her access to
legal advice and her ability to seek redress from the courts. In others, her status as a witness
or her evidence is accorded less respect or weight than that of a man. Such laws or customs
limit the woman’s right effectively to pursue or retain her equal share of property and diminish
her standing as an independent, responsible and valued member of her community. When
countries limit a woman’s legal capacity by their laws, or permit individuals or institutions to do
the same, they are denying women their rights to be equal with men and restricting women’s
ability to provide for themselves and their dependents [sic].

14.6.1 The right to enter freely into marriage

Marriage is a proclaimed right under several international and regional instruments. Note
that the scope of marriage rights is under examination in several States with respect to post-
operative transsexuals and homosexuals. See, for example, Goodwin and I v United Kingdom,
Application 28957/95, decision 11 July 2002 before the European Court of Human Rights
re post-operative transsexuals, and the ongoing challenges to civil partnership arrangements
(as applied to same-sex partnerships) in North America and elsewhere. Note also, the Human
Rights Committee in Joslin v New Zealand, Communication 902/1999, UN Doc. CCPR/
C/75/D/902 at para 8.2, confirming the International Covenant on Civil and Political Rights
being explicit re men and women in respect of the right to marry. A New Zealand refusal to
condone a lesbian marriage was thus not an infringement of the Covenant. These issues, while
important, fall outwith the scope of the present text. The focus here is on marriage freely
entered into by a man and a woman.
 WOMEN  | 545

CEDAW General Recommendation 21 (1994), extract in respect of Article 16 of the

Convention on the Elimination of All Forms of Discrimination against Women

13. The form and concept of the family can vary from State to State, and even between regions
within a State. Whatever form it takes, and whatever the legal system, religion, custom or
tradition within the country, the treatment of women in the family both at law and in private
must accord with the principles of equality and justice for all people, as article 2 of the
Convention requires.
14. States parties’ reports also disclose that polygamy is practised in a number of
countries. Polygamous marriage contravenes a woman’s right to equality with men, and can
have such serious emotional and financial consequences for her and her dependents [sic] that
such marriages ought to be discouraged and prohibited. The Committee notes with concern
that some States parties, whose constitutions guarantee equal rights, permit polygamous
marriage in accordance with personal or customary law. This violates the constitutional rights
of women, and breaches the provisions of article 5 (a) of the Convention.
15. While most countries report that national constitutions and laws comply with the
Convention, custom, tradition and failure to enforce these laws in reality contravene the Convention.
16. A woman’s right to choose a spouse and enter freely into marriage is central to her
life and to her dignity and equality as a human being. An examination of States parties’ reports
discloses that there are countries which, on the basis of custom, religious beliefs or the ethnic
origins of particular groups of people, permit forced marriages or remarriages. Other countries
allow a woman’s marriage to be arranged for payment or preferment and in others women’s
poverty forces them to marry foreign nationals for financial security. Subject to reasonable
restrictions based for example on woman’s youth or consanguinity with her partner, a woman’s
right to choose when, if, and whom she will marry must be protected and enforced at law.

One of the key instruments on this is the Convention on Consent to Marry, Minimum Age for
Marriage and Registration for Marriages 1962.

14.6.1.1 The right to marry

The right to marry is guaranteed as a fundamental right in most major instruments.

EUROPEAN CONVENTION ON HUMAN RIGHTS 1950, Article 6

Men and women of marriageable age have the right to marry and to found a family, according
to the national laws governing the exercise of this right.

Contrast this with the provision in the Protocol to the African Charter.

Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in
Africa 2000

Article 6

Marriage

States Parties shall ensure that women and men enjoy equal rights and are regarded as equal
partners in marriage. They shall enact appropriate national legislative measures to guarantee
that:

a) no marriage shall take place without the free and full consent of both parties;
b) the minimum age of marriage for women shall be 18 years;
c) monogamy is encouraged as the preferred form of marriage and that the rights of women
in marriage and family, including in polygamous marital relationships, are promoted and
protected;
546 | WOMEN 

d) every marriage shall be recorded in writing and registered in accordance with national
laws, in order to be legally recognised;
e) the husband and wife shall, by mutual agreement, choose their matrimonial regime and
place of residence;
f) a married woman shall have the right to retain her maiden name, to use it as she pleases,
jointly or separately with her husband’s surname;
g) a woman shall have the right to retain her nationality or to acquire the nationality of her
husband;
h) a woman and a man shall have equal rights, with respect to the nationality of their children
except where this is contrary to a provision in national legislation or is contrary to national
security interests;
i) a woman and a man shall jointly contribute to safeguarding the interests of the family,
protecting and educating their children;
j) during her marriage, a woman shall have the right to acquire her own property and to
administer and manage it freely.

The emphasis tends to be on marriage in accordance with national laws. National laws may
prescribe formalities of marriage and make specific requirements of the parties concerned. The
criteria employed for determining who is a woman, and thus the plight of transsexuals and inter-
sexuals, is one example of a matter left to national law. Similarly, the number of marriages a party
may enter into is determined by national law. Polygamous and polygynous arrangements do not
ipso facto infringe international human rights law.

Question
Marriage formalities and procedures may be prescribed by religious texts, cultural beliefs and/or the State. Do
the provisions on marriage reflect the need to take into account cultural differences? Should marriage reflect all
cultures?

The age of the individuals involved is often left to national law. The provisions of the African
Protocol are a notable exception but are not yet a reality in that region.

14.6.1.2 Minimum age for marriage

While the right to marry is widely accepted, there is controversy surrounding the age at which
marriage is permissible, as noted previously.

CONVENTION ON CONSENT TO MARRY, MINIMUM AGE FOR MARRIAGE AND REGISTRATION FOR
MARRIAGES 1962, Article 2

States Parties to the present Convention shall take legislative action to specify a minimum age
for marriage. No marriage shall be legally entered into by any person under this age, except
where a competent authority has granted a dispensation as to age, for serious reasons, in the
interest of the intending spouses.

14.6.1.3 Consent to marriage

CONVENTION ON CONSENT TO MARRY, MINIMUM AGE FOR MARRIAGE AND REGISTRATION

FOR MARRIAGES 1962, Article 1

1. No marriage shall be legally entered into without the full and free consent of both parties,
such consent to be expressed by them in person after due publicity and in the presence of
the authority competent to solemnize the marriage and of witnesses, as prescribed by law.
 WOMEN  | 547

2. Notwithstanding anything in paragraph 1 above, it shall not be necessary for one of the
parties to be present when the competent authority is satisfied that the circumstances are
exceptional and that the party has, before a competent authority and in such manner as
may be prescribed by law, expressed and not withdrawn consent.

A distinction must be drawn between arranged marriages and forced marriages. Where the parties
freely agree to enter into a marriage, is it immaterial whether they have met in advance? Many
societies advocate arranged marriages and many young people elect to opt into such schemes.
When the law must intervene is if one or both parties are being coerced into agreeing to marriage
or when one party has no choice: this infringes the rights of the parties.

14.6.2 A correlative right to divorce and remarry?

An interesting question which arises is whether the right to marry is a once-only right, and
similarly whether people have the right to separate and divorce (obviously a precursor to a non-
polygamous/polygynous remarriage). Note the decisions of the European Court of Human
Rights in F v Switzerland, Series A, No. 128 (1987) concerning national prohibitions on remar-
riage within a specified time after divorce, and Johnston v Ireland, Series A, No. 112 (1986) on the
affect of Article 12 of the European Convention on legal separation and divorce. Most States have
distinct regulations on remarriage, separation and, as noted previously, marriage. The African Pro-
tocol, once more, is the notable international provision.

Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in
Africa 2000, Article 7

Separation, Divorce and Annulment of Marriage

States Parties shall enact appropriate legislation to ensure that women and men enjoy the
same rights in case of separation, divorce or annulment of marriage. In this regard, they shall
ensure that:

a) separation, divorce or annulment of a marriage shall be effected by judicial order;

b) women and men shall have the same rights to seek separation, divorce or annulment of a
marriage;
c) in case of separation, divorce or annulment of marriage, women and men shall have
reciprocal rights and responsibilities towards their children. In any case, the interests of
the children shall be given paramount importance;
d) in case of separation, divorce or annulment of marriage, women and men shall have the
right to an equitable sharing of the joint property deriving from the marriage.

14.6.3 Reproductive rights

Frequently rights to marry and found a family are linked. Obviously childbearing is primarily the
role of the woman, although child-rearing may be shared with a partner, family and friends. Of
fundamental importance is freedom of choice in reproduction and sexual health.

14.6.3.1 Children and women – rights intertwined?

Particularly with regard to health, the rights of women and children are interrelated. A malnour-
ished mother may produce insufficient milk for her baby, and a mother with HIV/AIDS who
is not offered the necessary anti-viral treatment is more likely to pass the virus on to her baby.
Maternal health is linked to infant health and survival.
548 | WOMEN 

Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in
Africa 2000

Article 14

Health and Reproductive Rights

1. States Parties shall ensure that the right to health of women, including sexual and
reproductive health is respected and promoted. This includes:

a) the right to control their fertility;

b) the right to decide whether to have children, the number of children and the spacing
of children;
c) the right to choose any method of contraception;
d) the right to self protection and to be protected against sexually transmitted infections,
including HIV/AIDS;
e) the right to be informed on one’s health status and on the health status of one’s
partner, particularly if affected with sexually transmitted infections, including HIV/
AIDS, in accordance with internationally recognised standards and best practices;
f) the right to have family planning education.

2. States Parties shall take all appropriate measures to:

a) provide adequate, affordable and accessible health services, including information,

education and communication programmes to women especially those in rural areas;
b) establish and strengthen existing pre-natal, delivery and post-natal health and
nutritional services for women during pregnancy and while they are breastfeeding;
c) protect the reproductive rights of women by authorising medical abortion in cases
of sexual assault, rape, incest, and where the continued pregnancy endangers the
mental and physical health of the mother or the life of the mother or the foetus.

14.6.3.2 A right to abortion?

Perhaps the topic is just too controversial, but the issue of abortion has long been avoided in inter-
national instruments. Rights to terminate a pregnancy clearly have the potential to involve the
conflicting rights of the mother and the unborn child. Abortion by choice may respect the right
of the mother to choose what to do with her body. Forced abortions and forced sterilisations are
another issue entirely.
The issue of abortions is rarely raised before the international and regional bodies. The case of
Paton v United Kingdom [1981] 3 EHRR 408 is one of the few examples to have reached an inter-
national body – the European Commission on Human Rights. The matter was effectively avoided,
there being no breach of Article 2 (right to life). What was not discussed was whether the foetus was
not entitled to a right to life or whether the prevailing consideration was the qualification in Article
8(2) in respect of the mother. See also Vo v France (2004) (Application 53924/00) on foetal rights.
However, in the Protocol to the African Charter on Women’s Rights, the pro-choice move-
ment seems to have scored a considerable victory.

Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women
2000, Article 14(c)

States Parties take all appropriate measures to protect the reproductive rights of women by
authorising medical abortion in cases of sexual assault, rape, incest, and where the continued
pregnancy endangers the mental and physical health of the mother or the life of the mother
or the foetus.

Admittedly the right is somewhat qualified by the circumstances in which such a medical abortion
is justified. It is not a freedom of reproductive choice for women. However, women do have the
 WOMEN  | 549

right to control their fertility, to choose any method of contraception and to decide on the number
and spacing of any children they wish to have. These provisions are in themselves quite novel and
may be viewed as significantly empowering for women.

Question
Can Article 14(c) of the Airicm Protocol be reconciled with the rights of the child, another major issue of
concern in Africa? Interestingly human rights in terms of the Inter-American instrument commences at birth
(Article 4(1) American Convention on Human Rights). Can the apparent differences between these regional
instruments be explained in cultural terms?

14.7 Regional instruments and approaches to

women’s rights
Within Europe, the European Union has been most proactive in fostering an environment in
which women’s rights in the workplace can be protected and promoted. A number of promi-
nent decisions of the European Court of Justice have contributed significantly to the law in this
area. All European Union cases can be accessed through the website of the European Court of
Justice (https://curia.europa.eu/jcms/jcms/j_6/en/). Note also that due to the nature of the
European Union and the principles of direct effect and direct applicability, a number of promi-
nent decisions on this area have also been taken by the national courts of the various Member
States. The European Court of Human Rights, Council of Europe, however found a violation
of the right to family life when a mother was prevented from having a home birth due to the
threat of legal proceedings against the midwife – Ternovszky Hungary. Application 67545/09, 14
December 2010.

14.7.1 Africa
The most progressive instrument on women’s rights is undoubtedly the most recent: the Protocol
to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa. The
Protocol was adopted by the second ordinary session of the Assembly of the Union at Maputo
in July 2003 and, as such, is one of the first human rights instruments to be adopted by the new
African Union. The range of rights enshrined therein is remarkable. Given the interrelationship
of economic, social, civil, political and cultural rights which characterised the African Charter on
Human and Peoples’ Rights, it is perhaps not surprising that the Protocol on Women’s Rights is
one of the most comprehensive instruments in the area, hence being extracted herein.
While arguably reflecting a truly African view of rights, the influence of the Beijing Platform
for Action appears to permeate throughout.
Many of the rights reflect universal rights: non-discrimination; rights to life, integrity and
security of person; prohibition on exploitation and cruel, inhuman or degrading treatment or
punishment; access to justice and equal protection before the law; political participation; education
and training; adequate housing, food, culture.
The right to a healthy and sustainable environment is also included. The following rights of
particular interest appear in the instrument:

Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in
Africa 2000

Article 3

Right to Dignity

1. Every woman shall have the right to dignity inherent in a human being and to the
recognition and protection of her human and legal rights;
550 | WOMEN 

2. Every woman shall have the right to respect as a person and to the free development of
her personality;
3. States Parties shall adopt and implement appropriate measures to prohibit any
exploitation or degradation of women;
4. States Parties shall adopt and implement appropriate measures to ensure the protection
of every woman’s right to respect for her dignity and protection of women from all forms
of violence, particularly sexual and verbal violence.

Article 5

Elimination of Harmful Practices

States Parties shall prohibit and condemn all forms of harmful practices which negatively affect the
human rights of women and which are contrary to recognised international standards. States Parties
shall take all necessary legislative and other measures to eliminate such practices, including:

a) creation of public awareness in all sectors of society regarding harmful practices through
information, formal and informal education and outreach programmes;
b) prohibition, through legislative measures backed by sanctions, of all forms of female
genital mutilation, scarification, medicalisation and para-medicalisation of female genital
mutilation and all other practices in order to eradicate them;
c) provision of necessary support to victims of harmful practices through basic services such
as health services, legal and judicial support, emotional and psychological counselling as
well as vocational training to make them self-supporting;
d) protection of women who are at risk of being subjected to harmful practices or all other
forms of violence, abuse and intolerance.

Article 10

Right to Peace

1. Women have the right to a peaceful existence and the right to participate in the promotion
and maintenance of peace.
2. States Parties shall take all appropriate measures to ensure the increased participation
of women:

a) in programmes of education for peace and a culture of peace;

b) in the structures and processes for conflict prevention, management and resolution
at local, national, regional, continental and international levels;
c) in the local, national, regional, continental and international decision making
structures to ensure physical, psychological, social and legal protection of asylum
seekers, refugees, returnees and displaced persons, in particular women;
d) in all levels of the structures established for the management of camps and
settlements for asylum seekers, refugees, returnees and displaced persons, in
particular, women;
e) in all aspects of planning, formulation and implementation of post conflict
reconstruction and rehabilitation.

3. States Parties shall take the necessary measures to reduce military expenditure
significantly in favour of spending on social development in general, and the promotion of
women in particular.

Article 13

Economic and Social Welfare Rights

States Parties shall adopt and enforce legislative and other measures to guarantee women
equal opportunities in work and career advancement and other economic opportunities. In this
respect, they shall:
 WOMEN  | 551

a) promote equality of access to employment;

b) promote the right to equal remuneration for jobs of equal value for women and men;
c) ensure transparency in recruitment, promotion and dismissal of women and combat and
punish sexual harassment in the workplace;
d) guarantee women the freedom to choose their occupation, and protect them from
exploitation by their employers violating and exploiting their fundamental rights as
recognised and guaranteed by conventions, laws and regulations in force;
e) create conditions to promote and support the occupations and economic activities of
women, in particular, within the informal sector;
f) establish a system of protection and social insurance for women working in the informal
sector and sensitise them to adhere to it;
g) introduce a minimum age for work and prohibit the employment of children below that
age, and prohibit, combat and punish all forms of exploitation of children, especially the
girl-child;
h) take the necessary measures to recognise the economic value of the work of women in
the home;
i) guarantee adequate and paid pre- and post-natal maternity leave in both the private and
public sectors;
j) ensure the equal application of taxation laws to women and men;
k) recognise and enforce the right of salaried women to the same allowances and
entitlements as those granted to salaried men for their spouses and children;
l) recognise that both parents bear the primary responsibility for the upbringing and
development of children and that this is a social function for which the State and the
private sector have secondary responsibility;
m) take effective legislative and administrative measures to prevent the exploitation and
abuse of women in advertising and pornography.

Another unusual feature is specific protection of certain women. Widows, the elderly, women
with disabilities and women in distress are singled out – see Articles 20, 22–24.

Questions
To what extent is the realisation of these rights a reasonable aspiration within the African region? What pur-
pose does the adoption of such a wide-ranging instrument serve?

Further reading
Amirthalingm, K., ‘Women’s Rights, International Norms, and Domestic Violence: Asian Perspec-
tive’ (2005) 27 Human Rights Quarterly 653.
Askin, K., and Koenig, D., Women and International Human Rights Law, 1999–2000, New York: Trans-
national Press.
Banda, F., ‘Blazing a Trail: The African Protocol on Women’s Rights Comes into Force’ (2006) 50.1
Journal of African Law 72–84.
Bayefsky, A., ‘The Principle of Equality or Non-Discrimination in International Law’ (1990) 11
Human Rights Law Journal 1.
Benedek, W., Kisaakye, M., and Oberleitner, G. (eds), The Human Rights of Women: International
Instruments and African Experiences, 2002, New York: Zed Books.
Byrnes, A., ‘The Committee on the Elimination of Discrimination Against Women’ in P. Alston (ed.),
The United Nations and Human Rights: A Critical Appraisal, 1992, Oxford: Clarendon.
Charlesworth, H., ‘Not Waving but Drowning: Gender Mainstreaming and Human Rights in the
United Nations’ (2001) 18 Harvard Human Rights Journal 1.
Charlesworth, H., Chinkin, C., and Wright, K., ‘Feminist Approaches to International Law’ (1991) 85
American Journal of International Law 613.
552 | WOMEN 

Clark, B., ‘The Vienna Convention Reservations Regime and the Convention on Discrimination
against Women’ (1991) 85 American Journal of International Law 281.
Cook, R., ‘Women’s International Human Rights Law: The Way Forward’ (1993) 15 Human Rights
Quarterly 230.
Cook, R. (ed.), Human Rights of Women, National and International Perspectives, 1994, Philadelphia:
University of Pennsylvania Press.
Emerton, R., Adams, K., Byrnes, A., and Connors, J., International Women’s Rights Cases, 2005,
London: Cavendish Publishing.
Evans, E., ‘Intersectionality as Feminist Praxis in the UK’ (2016) 59 Women’s Studies International
Forum 67–75.
Galati, A.J., ‘Onward to 2030: Sexual and Reproductive Health and Rights in the Context of the Sus-
tainable Development Goals’ (2015) 18.4 Guttmacher Policy Review.
Jalal, P.I., Law for Pacific Women: A Legal Rights Handbook, 1998, Suva, Fiji: Women’s Rights
Movement.
Landau, E., From ILO Standards to EU Law: The Case of Equality of Men and Women at Work, 2008,
The Hague: Hotei.
McColgan, A., Equality and Discrimination, 2013, Oxford: Hart.
Reanda, L., ‘Human Rights and Women’s Rights: the UN Approach’ (1981) 3 Human Rights Quarterly 11.
Reanda, L., ‘The Commission on the Status of Women’ in P. Alston (ed.), The United Nations and
Human Rights: A Critical Appraisal, 1992, Oxford: OUP.
Tomasevski, K., Women and Human Rights, 1993, London: Zed Books.
Van Leeuwen, F., Women’s Rights Are Human Rights: The Practice of the United Nations Human Rights
Committee and the Committee on Economic, Social and Cultural Rights, 2009, Antwerp/Oxford/
Portland: Intersentia.

Websites
https://www.unwomen.org/en : United Nations Inter-Agency Network on Women and Gender equality
www.un.org/womenwatch/daw/cedaw : Convention on the Elimination of All Forms of Discrimina-
tion against Women; it also contains relevant information and associated documents on the
Committee which monitors the Convention.
www.un.org/womenwatch/daw/csw : United Nations Commission on the Status of Women
https://www.interpol.int/en/Crimes/Human-trafficking/Types-of-human-trafficking
www.catwinternational.org : NGO Coalition against Trafficking in Women
https://library.law.utoronto.ca/womens-human-rights-resources-programme-whrr : the University
of Toronto’s Women’s Human Rights Resources Database, part of its DIANA project
www.womenslinkworldwide.org : Women’s Link Worldwide Network
Chapter 15

Emerging issues and challenges 

Chapter contents

15.1 Human rights and the sustainable

development goals 554
15.2 Resource mobilisation, human rights
and the SDGs 565
15.3 Human rights and climate change 572
 
554 | EMERGING ISSUES AND CHALLENGES 

The preceding chapters have sought to provide a snapshot of rights and freedoms pertaining to
particular groups. In addition, each has deployed treaties, jurisprudence, other instruments and
commentaries to try to demonstrate how international human rights law can be used in practice.
This final chapter seeks to highlight some emerging issues and key challenges which are shaping
the landscape of international human rights. Inevitably, given the space constraints, only a few
examples can be used.

15.1 Human rights and the sustainable development

goals
15.1.1 The UN Millennium Development Goals
The Millennium Development Goals (MDGs) came about as a result of the World Summit held
by the General Assembly to mark the new millennium.

General Assembly resolution 55/2 (2000)

6. We consider certain fundamental values to be essential to international relations in the

twenty-first century. These include:

• Freedom. Men and women have the right to live their lives and raise their children in
dignity, free from hunger and from the fear of violence, oppression or injustice. Democratic
and participatory governance based on the will of the people best assures these rights.
• Equality. No individual and no nation must be denied the opportunity to benefit from
development. The equal rights and opportunities of women and men must be assured.
• Solidarity. Global challenges must be managed in a way that distributes the costs and
burdens fairly in accordance with basic principles of equity and social justice. Those who
suffer or who benefit least deserve help from those who benefit most.
• Tolerance. Human beings must respect one other, in all their diversity of belief, culture
and language. Differences within and between societies should be neither feared nor
repressed, but cherished as a precious asset of humanity.
• Respect for nature. Prudence must be shown in the management of all living species and
natural resources, in accordance with the precepts of sustainable development. Only in
this way can the immeasurable riches provided to us by nature be preserved and passed
on to our descendants. The current unsustainable patterns of production and consumption
must be changed in the interest of our future welfare and that of our descendants.
• Shared responsibility. Responsibility for managing worldwide economic and social
development, as well as threats to international peace and security, must be shared
among the nations of the world and should be exercised multilaterally. As the most
universal and most representative organization in the world, the United Nations must
play the central role.

To further these aims, the General Assembly identified key objectives in specific areas. For exam-
ple, in terms of human rights:

General Assembly resolution 55/2 (2000)

V. Human rights, democracy and good governance

24. We will spare no effort to promote democracy and strengthen the rule of law, as well as
respect for all internationally recognized human rights and fundamental freedoms, including
the right to development.
 EMERGING ISSUES AND CHALLENGES  | 555

25. We resolve therefore:

• To respect fully and uphold the Universal Declaration of Human Rights.

• To strive for the full protection and promotion in all our countries of civil, political,
economic, social and cultural rights for all.
• To strengthen the capacity of all our countries to implement the principles and practices
of democracy and respect for human rights, including minority rights.
• To combat all forms of violence against women and to implement the Convention on the
Elimination of All Forms of Discrimination against Women.
• To take measures to ensure respect for and protection of the human rights of migrants,
migrant workers and their families, to eliminate the increasing acts of racism and
xenophobia in many societies and to promote greater harmony and tolerance in all
societies.
• To work collectively for more inclusive political processes, allowing genuine participation
by all citizens in all our countries.
• To ensure the freedom of the media to perform their essential role and the right of the
public to have access to information.

The then UN Secretary-General highlighted the importance of having goals with targets and time
deadlines, in otherwise something like SMART objectives. This was novel for international law
and also meant that different countries had different challenges.

UN Secretary-General Ban Ki-Moon, available www.un.org/millenniumgoals/bkgd.shtml

Eradicating extreme poverty continues to be one of the main challenges of our time, and is a
major concern of the international community. Ending this scourge will require the combined
efforts of all, governments, civil society organizations and the private sector, in the context of a
stronger and more effective global partnership for development. The Millennium Development
Goals set timebound targets, by which progress in reducing income poverty, hunger, disease,
lack of adequate shelter and exclusion – while promoting gender equality, health, education
and environmental sustainability – can be measured. They also embody basic human rights –
the rights of each person on the planet to health, education, shelter and security. The Goals
are ambitious but feasible and, together with the comprehensive United Nations development
agenda, set the course for the world’s efforts to alleviate extreme poverty by 2015.

Eight goals were agreed. It should be noted that some countries added a voluntary ninth, on
removing remnants of war and unexploded ordinance. Each goal has targets and indicators. The
ambitious project aimed at reducing poverty dramatically and improving development of all.

The UN Millennium Development Goals

1. Eradicate extreme poverty and hunger

2. Achieve universal primary education
3. Promote gender equality and empower women
4. Reduce child mortality
5. Improve maternal health
6. Combat HIV/AIDS, malaria and other diseases
7. Ensure environmental sustainability
8. Develop a global partnership for development

These goals were to be achieved over a fifteen year period, so by 2015. Progress was reviewed
annually and with major discussions. For wealthier states, their development efforts tended to
556 | EMERGING ISSUES AND CHALLENGES 

cluster around the MDGs. So too for some NGOs and for institutions such as the UN and its enti-
ties and bodies. The final report in 2015 notes that substantial progress was made, though much
remained to be done. According to the report, the number of people living in extreme poverty
had halved between 1990 and 2015, as had the mortality rate of children, the proportion of under-
nourished persons in the developing countries and the number of children of primary age leaving
school. Antiretroviral therapy was extensively used, almost a twentyfold increase between 2003 and
2014 alone. Almost three quarters of countries met the target on access to clean drinking water
and half the world had secured basic sanitation. However, poverty, education, health, hunger and
gender equality remained challenges in many countries.

Question
Reports, including country reports, are available online – www.un.org/millenniumgoals/reports.shtml. Choose
any report and consider the extent to which the progress made has benefitted everyone everywhere. Also consider
the global partnerships and funding or technical assistance which contributed to the achievement of the goal (or
the problems with so doing).

Having witnessed the benefits of harnessing development to ensure that a wide number of people
could benefit and having reflected on the advantages of targets and indicators with timelines,
the member States embarked on an even more ambitious programme to accelerate development
around the world – the sustainable development goals.

15.1.2 Towards the UN Sustainable Development Goals

Other chapters have referred briefly to the Sustainable Development Goals (SDGs). In September
2015, 170 world leaders gathered at the UN Sustainable Development Summit in New York, in
which they adopted the 2030 Agenda for Sustainable Development. In doing so, they commit-
ted to ‘build upon the achievements of the Millennium Development Goals and seek to address
their unfinished business’. The 2030 Agenda covers a broad set of 17 SDGs and 169 targets to be
achieved by 2030. Again, some countries, such as Lao PDR and Cambodia, added an additional
voluntary goal on remnants of war and unexploded ordinance. Inspired by two projects – the
MDGs and Agenda 21 – the SDGs can be grouped under five themes: protecting people, the
planet, prosperity and peace, and promoting partnership to achieve these.

The 17 Sustainable Goals

Goal 1: No poverty
Goal 2: Zero hunger
Goal 3: Good health and well-being for people
Goal 4: Quality education
Goal 5: Gender equality
Goal 6: Clean water and sanitation
Goal 7: Affordable and clean energy
Goal 8: Decent work and economic growth
Goal 9: Industry, Innovation, and Infrastructure
Goal 10: Reducing inequalities
Goal 11: Sustainable cities and communities
Goal 12: Responsible consumption and production
Goal 13: Climate action
Goal 14: Life below water
 EMERGING ISSUES AND CHALLENGES  | 557

Goal 15: Life on land

Goal 16: Peace, justice and strong institutions
Goal 17: Partnerships for the goals 

From the beginning, human rights were central to the SDG discussion owing in part from
the involvement of the international human rights community in the process of formulating the
SDGs.

Inga T. Winkler & Carmel Williams, ‘The Sustainable Development Goals and Human Rights: A
Critical Early Review’ (2017) 21.8 The International Journal of Human Rights 1023–1028

In the lead-up to the SDGs, the human rights community, along with civil society more generally,
had engaged in the negotiations for the new development agenda at an unprecedented level,
especially when compared to the Millennium Development Goals (MDGs). The MDGs were
developed at a technocratic level extracted from previous commitments, and the human rights
community was a late-comer to the discussion. By the time human rights advocates engaged,
they were left with the role of largely criticizing the MDGs for prioritising progress at an aggregate
level without targeting the most marginalised populations and without addressing inequalities.
For the SDGs, human rights NGOs and researchers, and other stakeholders sought to
engage meaningfully throughout the process of developing, discussing and deliberating on
the goals for a new more rights-based development era. There was plenty of opportunity
for such engagement during a broad and long process including early thematic and country
consultations, the Rio+20 negotiations, and the Open Working Group on the SDGs. Many NGOs
were deeply engaged in the process, National Human Rights Institutions outlined what their
position and role might be, and UN treaty bodies and Special Rapporteurs sought to influence
the process to keep human rights at the centre.

The UN Human Rights Council, special procedures and treaty bodies, as well as the High Com-
missioner for Human Rights and the Office of the UN High Commissioner for Human Rights
(OHCHR) have been leading these efforts. In 2012, in its resolution on the right to safe drinking
water and sanitation, the Human Rights Council for the first time called upon States ‘to build the
post-2015 framework on the values outlined in the Millennium Declaration around the funda-
mental principles of respect for human rights, equality and sustainability’.

Human Rights Council resolution 21/2 The human right to safe drinking water and sanitation,
20 September 2012

The Human Rights Council

Recalling in particular paragraph 5 (f) of Human Rights Council resolution 16/2, in which the
Council encouraged the Special Rapporteur on the human right to safe drinking water and
sanitation, in fulfilling her mandate, to make recommendations for goals beyond the 2015
Millennium Development Goals process with special regard to the full realization of the human
right to safe drinking water and sanitation, and also to continue to make more recommendations
that could help the realization of the Millennium Development Goals, in particular of Goal 7,
as appropriate,

11. Calls upon States:

14. Encourages the Special Rapporteur to continue to make contributions to the discussions
on the United Nations development agenda beyond 2015, in particular on the integration of
the human right to safe drinking water and sanitation and, in this regard, calls upon States
558 | EMERGING ISSUES AND CHALLENGES 

to build the post-2015 framework on the values outlined in the Millennium Declaration
around the fundamental principles of respect for human rights, equality and sustainability,
and to integrate the human right to safe drinking water and sanitation into the international
development agenda beyond 2015;

In 2014, the then UN Special Rapporteur on minority issues, Rita Izsák-Ndiaye, advocated for
the inclusion of minority issues in the post-2015 agenda, and the then UN Special Rapporteur
on the human rights of migrants, François Crépeau, called for the inclusion of the human rights
of migrants. In 2015, three mandate holders – the Special Rapporteurs on the rights of persons
with disabilities and on the right to food, and the Independent Expert on the enjoyment of all
human rights by older persons – called for the inclusion of the rights of persons with disabilities
in the post-2015 development agenda. Various human rights treaty bodies have also issued state-
ments underlying the stressing the importance of basing the new development agenda in human
rights (see box).

Report of the Independent Expert on minority issues, Rita Izsák, 6 January 2014

Ensuring the inclusion of minority issues in post-2015 development agendas

Introduction
30. The following thematic discussion forms part of an ongoing programme of work by the
Independent Expert to ensure that minority issues are given appropriate attention in the
context of the post-2015 development agenda. She will continue to consult widely on this issue
with all relevant stakeholders at the global and national level to achieve this objective.
31. There are compelling arguments for giving greater attention to disadvantaged
minorities in post-2015 development agenda and future development goals. Foremost amongst
these is that globally minorities remain among the poorest and most socially and economically
excluded and marginalized communities. Tens of millions of people belonging to national,
ethnic, religious and linguistic minorities worldwide are trapped in a cycle of discrimination,
exclusion, poverty and underdevelopment from which they cannot break free without targeted
attention being given to their situations. The relationship between inequality, discrimination and
poverty and its impact on disadvantaged minority groups cannot be ignored or underestimated.
32. As highlighted by the former Independent Expert, poverty within minority communities
is both a cause and a manifestation of the diminished rights, opportunities and social
advancement available to the members of minority communities. Their poverty involves more
than just a lack of income or a daily struggle for basic sustenance and is frequently based
on structural inequality and long-standing discrimination and social exclusion which defy
‘one-size-fits-all’ solutions. Poor minority communities are less able to participate effectively
in political decision-making. They suffer from unequal access to education, health care,
employment and land. Minorities are more likely to lack citizenship and be stateless, often
resulting in their total exclusion from development and human rights initiatives.
33. In fact, as 2015 approaches, many persons belonging to minorities are at risk of
backsliding in development and human rights terms. For example, the impact of the global
financial crisis is most deeply felt by the poorest in society, including minorities, who may lack
secure employment and face shrinking social welfare platforms. Recent or ongoing conflicts
have had a devastating impact on minorities in numerous countries. Religious minorities are
under threat in countries where conflict or political and social unrest has emerged, including
the ‘Arab Spring’ States, leading many to flee their homes or become refugees in neighbouring
States.
34. An emerging message underlying the consultations around the post 2015 development
agendas has been ‘leave no one behind’. This message is a welcome one that indicates a growing
global awareness that inequality greatly hampers development progress for those affected. The
 EMERGING ISSUES AND CHALLENGES  | 559

Independent Expert considers that a real risk exists that millions of disadvantaged minorities
globally will be ‘left behind’ if there is not a clear commitment at the global and national
levels to address the development needs and human rights of disadvantaged minorities.
New development goals for the post-2015 period provide an important opportunity to refocus
development agendas on inequality and put minority issues at the heart of these efforts.

Statements by human rights treaty bodies and Special

Rapporteurs
2019 sees a significant number of UN Special Procedures focussing on SDGs in their
annual thematic or country reports. This is nothing new, as the following list demon-
strates. Most treaty bodies and special procedures engaged in the process of determining
the SDGs.

Joint Statement of the Chairpersons of the UN Human Rights Treaty Bodies on the
Post-2015 Development Agenda, 18 January 2015
Statement by the Special Rapporteurs on the Rights of Persons with Disabilities
and on the Right to Food, and the Independent Expert on the Rights of Older
Persons, Rights Persons with Disabilities Must be Fully Included in the New
Development Framework, 20 February 2015
Statement of the Chairperson of the CEDAW Committee to the 8th session of the
UNGA Open Working Group on the SDGs, Promoting Equality, Including
Social Equity, Gender Equality and Women’s Empowerment, 5 February 2014
Statement by 17 UN special procedures mandate-holders of the Human Rights
Council (HRC) on the Post-2015 Development Agenda, 21 May 2013
Joint Statement of the Chairpersons of the UN Human Rights Treaty Bodies on the
Post-2015 Development Agenda, May 2013
Letter on the Post-2015 Development Agenda sent by the Chairperson of the
CESCR to State Parties to the ICESCR, 30 November 2012 

Report of the Special Rapporteur on the human rights of migrants, 11 August 2014

III. Human rights of migrants in the post-2015 development agenda

A. Achievements and constraints of the Millennium Development Goals

9. In 2000, States adopted the United Nations Millennium Declaration, thereby committing
themselves to a new global partnership to reduce extreme poverty, which led to a series of time-
bound targets known as the Millennium Development Goals. The Goals provided clear direction
for Governments and international actors to focus and work together on achieving specific
development issues. The Goal framework supported the development of national statistical
capacity and improved statistical system coordination at the national and international
levels. This resulted in effective generation and collection of data for the Goals, which in turn
influenced and shaped national and international policies on human development. The Goals
stimulated global and national development efforts, notably towards eradicating poverty and
improving access to primary education.
10. In the United Nations Millennium Declaration, Governments pledged to strive for
the protection and promotion of all human rights, but the Goal framework failed to live up
to that pledge. This state of affairs has demonstrated that issues left out of a universally
560 | EMERGING ISSUES AND CHALLENGES 

agreed agenda are not effectively monitored and reported on and are easily overlooked when
priorities are set, policies defined or budgets allocated. The Goals have been viewed by some
as an economic growth agenda, not explicitly aligned with human rights. Yet, human rights are
essential for sustainable development: Governments’ legal obligations regarding international
human rights standards must be reflected in current development policy in order to enhance
effectiveness and accountability. By delinking the Goals from human rights, State obligations
were reduced to mere policy options, for example on the issue of free primary education. In
addition, given that international human rights standards did not form the basis on which
the Goals were developed, the targets created were sometimes unambitious or inadequate.
Research shows that the Goals were also often seen as donor driven because organizations
based in the North focused more on the goals than on human rights, whereas those based in
the South engaged more on human rights and hardly on the Goals.
11. Although equality was one of the core values of the United Nations Millennium
Declaration, the Goals did not adequately tackle issues of discrimination, equality and equity,
resulting in increases in inequalities within and between countries. The Goals placed emphasis
on overall progress as the main indicator, thereby overlooking slower progress or the growing
exclusion of marginalized groups, including migrants living and working in precarious
circumstances.
12. The Goals encouraged technical fixes and focused on the low-hanging fruit, rather than
targeting the root causes of development problems. Consequently, they monitored progress
and success through a one-size-fits-all lens, focusing only on what was easily measurable
and not on what was important, such as the empowerment of marginalized groups. The lack of
proper monitoring meant that it was difficult to hold Governments accountable at the global,
national and local levels.
13. In addition, the targets did not sufficiently address inequalities, which made it
possible to achieve them without properly addressing marginalized groups. Instead of being
transformative, the Goals were technocratic.

Following on from the outcome of the 2010 High-level Plenary Meeting of the General Assembly
on the Millennium Development Goals, the United Nations Secretary-General established the
UN System Task Team in September 2011 to support UN system-wide preparations for the post-
2015 UN development agenda, in consultation with all stakeholders. The Task Team is led by the
Department of Economic and Social Affairs and the United Nations Development Programme
and brings together senior experts from over 50 UN entities and international organisations to
provide system-wide support to the post-2015 consultation process, including analytical input,
expertise and outreach.

15.1.3 The Sustainable Development Goals – SDGs

The SDGs were born out of the 2030 Agenda for Sustainable Development (General Assembly
resolution A/RES/70/1, 2015), the outcome document of the United Nations summit for the
adoption of the post-2015 development agenda.

2030 Agenda for Sustainable Development, General Assembly resolution A/RES/70/1, 2015

Preamble

This Agenda is a plan of action for people, planet and prosperity. It also seeks to strengthen
universal peace in larger freedom. We recognize that eradicating poverty in all its forms and
dimensions, including extreme poverty, is the greatest global challenge and an indispensable
requirement for sustainable development.
All countries and all stakeholders, acting in collaborative partnership, will implement this
plan. We are resolved to free the human race from the tyranny of poverty and want and to heal
 EMERGING ISSUES AND CHALLENGES  | 561

and secure our planet. We are determined to take the bold and transformative steps which are
urgently needed to shift the world on to a sustainable and resilient path. As we embark on this
collective journey, we pledge that no one will be left behind.
The 17 Sustainable Development Goals and 169 targets which we are announcing today
demonstrate the scale and ambition of this new universal Agenda.
They seek to build on the Millennium Development Goals and complete what they did not
achieve. They seek to realize the human rights of all and to achieve gender equality and the
empowerment of all women and girls. They are integrated and indivisible and balance the three
dimensions of sustainable development: the economic, social and environmental.
The Goals and targets will stimulate action over the next 15 years in areas of critical
importance for humanity and the planet
The 17 Sustainable Development Goals and 169 targets which we are announcing today
demonstrate the scale and ambition of this new universal Agenda. They seek to build on the
Millennium Development Goals and complete what these did not achieve. They seek to realize
the human rights of all and to achieve gender equality and the empowerment of all women
and girls. They are integrated and indivisible and balance the three dimensions of sustainable
development: the economic, social and environmental.

The resolution goes on to make a number of key announcements, including those related to the
principal goals. Of particular note, the States commit to ensuring that no one is left behind in ‘this
great collective journey’ (para 4). The goals apply to everyone everywhere so the Agenda is of
‘unprecedented scope and significance’ (para 5).

Question
Think of your own country, who, or which sectors of the population are at risk, in your opinion, of being left
behind?

The vision for the goals is clear and ambitious.

2030 Agenda for Sustainable Development, General Assembly resolution A/RES/70/1, 2015

7. In these Goals and targets, we are setting out a supremely ambitious and transformational
vision. We envisage a world free of poverty, hunger, disease and want, where all life can thrive.
We envisage a world free of fear and violence.
A world with universal literacy. A world with equitable and universal access to quality
education at all levels, to health care and social protection, where physical, mental and
social well-being are assured. A world where we reaffirm our commitments regarding the
human right to safe drinking water and sanitation and where there is improved hygiene; and
where food is sufficient, safe, affordable and nutritious. A world where human habitats are
safe, resilient and sustainable and where there is universal access to affordable, reliable and
sustainable energy.
8. We envisage a world of universal respect for human rights and human dignity, the
rule of law, justice, equality and non-discrimination; of respect for race, ethnicity and cultural
diversity; and of equal opportunity permitting the full realization of human potential and
contributing to shared prosperity. A world which invests in its children and in which every child
grows up free from violence and exploitation. A world in which every woman and girl enjoys full
gender equality and all legal, social and economic barriers to their empowerment have been
removed.
A just, equitable, tolerant, open and socially inclusive world in which the needs of the most
vulnerable are met.
9. We envisage a world in which every country enjoys sustained, inclusive and sustainable
economic growth and decent work for all. A world in which consumption and production
562 | EMERGING ISSUES AND CHALLENGES 

patterns and use of all natural resources – from air to land, from rivers, lakes and aquifers to
oceans and seas – are sustainable. One in which democracy, good governance and the rule of
law, as well as an enabling environment at the national and international levels, are essential
for sustainable development, including sustained and inclusive economic growth, social
development, environmental protection and the eradication of poverty and hunger.
One in which development and the application of technology are climate-sensitive, respect
biodiversity and are resilient. One in which humanity lives in harmony with nature and in which
wildlife and other living species are protected.

As is evident the vision links to the three underpinning dimensions of development – economic,
social and environmental. Accordingly it draws on the Universal Declaration of Human Rights,
international human rights treaties, the Millennium Declaration (see Chapter 2, Section9 2.1) and
the 2005 World Summit Outcome. Inevitably the Declaration on the Right to Development is
also relevant.

15.1.4 Human rights and the SDGs

Efforts made by UN human rights mechanisms to secure a human rights-based post-2015 agenda
and goals have produced significant results. This is exemplified in the human rights commitments
in the 2030 Agenda for Sustainable Development.

Transforming our world: the 2030 Agenda for Sustainable Development

3. We resolve, between now and 2030, to end poverty and hunger everywhere; to combat
inequalities within and among countries; to build peaceful, just and inclusive societies; to
protect human rights and promote gender equality and the empowerment of women and
girls; and to ensure the lasting protection of the planet and its natural resources. We resolve
also to create conditions for sustainable, inclusive and sustained economic growth, shared
prosperity and decent work for all, taking into account different levels of national development
and capacities.

. . .
8. We envisage a world of universal respect for human rights and human dignity, the
rule of law, justice, equality and non-discrimination; of respect for race, ethnicity and cultural
diversity; and of equal opportunity permitting the full realization of human potential and
contributing to shared prosperity. A world which invests in its children and in which every child
grows up free from violence and exploitation. A world in which every woman and girl enjoys full
gender equality and all legal, social and economic barriers to their empowerment have been
removed. A just, equitable, tolerant, open and socially inclusive world in which the needs of the
most vulnerable are met.
. . .

Our shared principles and commitments

10. The new Agenda is guided by the purposes and principles of the Charter of the United
Nations, including full respect for international law. It is grounded in the Universal Declaration
of Human Rights, international human rights treaties, the Millennium Declaration and the 2005
World Summit Outcome Document. It is informed by other instruments such as the Declaration
on the Right to Development.
. . .
19. We reaffirm the importance of the Universal Declaration of Human Rights, as well as
other international instruments relating to human rights and international law. We emphasize
 EMERGING ISSUES AND CHALLENGES  | 563

the responsibilities of all States, in conformity with the Charter of the United Nations, to respect,
protect and promote human rights and fundamental freedoms for all, without distinction of any
kind as to race, colour, sex, language, religion, political or other opinion, national or social
origin, property, birth, disability or other status.
20. Realizing gender equality and the empowerment of women and girls will make a
crucial contribution to progress across all the Goals and targets. The achievement of full human
potential and of sustainable development is not possible if one half of humanity continues to
be denied its full human rights and opportunities. Women and girls must enjoy equal access to
quality education, economic resources and political participation as well as equal opportunities
with men and boys for employment, leadership and decision-making at all levels. We will work
for a significant increase in investments to close the gender gap and strengthen support
for institutions in relation to gender equality and the empowerment of women at the global,
regional and national levels. All forms of discrimination and violence against women and
girls will be eliminated, including through the engagement of men and boys. The systematic
mainstreaming of a gender perspective in the implementation of the Agenda is crucial.
. . .
29. We recognize the positive contribution of migrants for inclusive growth and sustainable
development. We also recognize that international migration is a multi-dimensional reality
of major relevance for the development of countries of origin, transit and destination, which
requires coherent and comprehensive responses. We will cooperate internationally to ensure
safe, orderly and regular migration involving full respect for human rights and the humane
treatment of migrants regardless of migration status, of refugees and of displaced persons.
Such cooperation should also strengthen the resilience of communities hosting refugees,
particularly in developing countries. We underline the right of migrants to return to their
country of citizenship, and recall that States must ensure that their returning nationals are
duly received.
. . .
35. Sustainable development cannot be realized without peace and security; and peace
and security will be at risk without sustainable development. The new Agenda recognizes the
need to build peaceful, just and inclusive societies that provide equal access to justice and that
are based on respect for human rights (including the right to development), on effective rule of
law and good governance at all levels and on transparent, effective and accountable institutions.
Factors which give rise to violence, insecurity and injustice, such as inequality, corruption,
poor governance and illicit financial and arms flows, are addressed in the Agenda. We must
redouble our efforts to resolve or prevent conflict and to support post-conflict countries,
including through ensuring that women have a role in peace-building and state-building. We
call for further effective measures and actions to be taken, in conformity with international law,
to remove the obstacles to the full realization of the right of self-determination of peoples living
under colonial and foreign occupation, which continue to adversely affect their economic and
social development as well as their environment.

Alongside specific references to human rights in the 2030 Agenda, others have examined the
connections between the SDGs and human rights. The Danish Institute of Human Rights, for
example, has developed the Human Rights Guide to the Sustainable Development Goals. (http://
sdg.humanrights.dk). Amongst other things, the Guide illustrates the human rights anchorage
of the 17 Sustainable Development Goals (SDGs) by making concrete links between the 169
targets and the relevant range of: international and regional human rights instruments, interna-
tional labour standards, and key environmental instruments – some of which have human rights
dimensions. The following table provides a flavour of the relationship between the SDG goals and
human rights.
564 | EMERGING ISSUES AND CHALLENGES 

SDG Goal Examples of relevant IHRL standards

1: End poverty in all its • Right to an adequate standard of living [UDHR art. 25; ICESCR art. 11; CRC
forms everywhere art. 27]
• Right to social security [UDHR art. 22; ICESCR art. 9; CRPD art. 28; CRC
art. 26]
• Equal rights of women in economic life [CEDAW arts. 11, 13, 14(2)(g), 15(2),
16(1)]
4: Ensure inclusive • Right to education [UDHR art. 26; ICESCR art. 13], particularly in relation to
and equitable quality children [CRC arts. 28, 29], persons with disabilities [CRC art. 23(3), CRPD
education and art. 24], and indigenous peoples [UNDRIP art. 14]
promote life-long • Equal rights of women and girls in the field of education [CEDAW art. 10]
learning opportunities • Right to work, including technical and vocational training [ICESCR art. 6];
for all International cooperation [UDHR art. 28; DRtD arts. 3–4], particularly in
relation to children [CRC arts. 23(4), 28(3)], persons with disabilities [CRPD
art. 32], and indigenous peoples [UNDRIP art. 39]
5: Achieve gender • Elimination of all forms of discrimination against women [CEDAW arts. 1–5]
equality and empower and girls [CRC art. 2], particularly in legislation, political and public life (art.
all women and girls 7), economic and social life (arts. 11, 13), and family relations (art. 16)]
• Right to decide the number and spacing of children [CEDAW arts. 12, 16(1)
(e); CRC art. 24(2)(f)]
• Special protection for mothers and children [ICESCR art. 10]
• Elimination of violence against women and girls [CEDAW arts. 1–6; DEVAW
arts. 1–4; CRC arts. 24(3), 35]
• Right to just and favourable conditions of work [ICESCR art. 7; CEDAW
art. 11]
16: Promote peaceful • Right to life, liberty and security of the person [UDHR art. 3; ICCPR arts.
and inclusive societies 6(1), 9(1); ICPED art. 1] including freedom from torture [UDHR art. 5; ICCPR
for sustainable art. 7; CAT art. 2; CRC art. 37(a)]
development, provide • Protection of children from all forms of violence, abuse or exploitation [CRC
access to justice for arts. 19, 37(a)), including trafficking (CRC arts. 34–36; CRC – OP1)]
all and build effective, • Right to access to justice and due process [UDHR arts. 8, 10; ICCPR arts.
accountable and 2(3), 14–15; CEDAW art. 2(c)]
inclusive institutions • Right to legal personality [UDHR art. 6; ICCPR art. 16; CRPD art. 12]
at all levels • Right to participate in public affairs [UDHR art. 21; ICCPR art. 25]
• Right to access to information [UDHR art. 19; ICCPR art. 19(1)]

Question
The Danish Institute also maps recommendations of human rights mechanisms to the SDGs – see www.
humanrights.dk/tools/sdg-human-rights-data-explorer. Choose any State and examine the linkages between
recommendations, concluding observations and goals. Are there any startling omissions, if so, what reason may
there be for this? Note checking the dates for UPR and scheduled sessions for treaty body reports from that
country may help explain some gaps.

Human rights monitoring and enforcement mechanisms are particularly important for ensuring
that States advance the SDGs and in particular human rights as they relate to development. The
following section examines different ways in which these bodies are already playing such a role
through exploring the concept of resource mobilisation.
 EMERGING ISSUES AND CHALLENGES  | 565

15.2 Resource mobilisation, human rights and the SDGs

Resource mobilisation, at its most basic, refers to the efforts and obligations of State’s to take active
steps to mobilise resources necessary to ensure that rights are respected, protected, promoted and
fulfilled. The International Bar Association’s Human Rights Institute report on the obligation to
mobilise resources underlines its importance in the context of a discussion on human rights and
the SDGs in a 2017 report:

Obligation to Mobilise Resources: Bridging Human Rights, Sustainable Development Goals,

and Economic and Fiscal Policies December 2017,
A report of the International Bar Association’s Human Rights Institute, 9–10

The focus on resource mobilisation for compliance with human rights is particularly timely,
given the renewed emphasis on this question by the international community, as reaffirmed in
the 2030 Agenda for Sustainable Development (the ’2030 Agenda’), adopted in September 2015
by 193 countries.
With its 17 SDGs, the 2030 Agenda covers a comprehensive set of issues across the three
dimensions of sustainable development: economic, social and environmental. The 2030 Agenda
is explicitly anchored in human rights norms and principles and recognises that a rights-based
approach should underpin all poverty reduction efforts (2030 Agenda, paragraphs 18–20).
SDG 17, on means of implementation and global partnership, calls on all stakeholders to
‘strengthen domestic resource mobilization, including through international support to developing
countries, to improve domestic capacity for tax and other revenue collection’ (SDG 17.1).
It also calls on developed countries to implement fully their official development
assistance commitments (SDG 17.2) and mobilise additional financial resources for developing
countries from multiple sources (SDG 17.3).
In the same vein, SDG 16, on peace and justice, calls on all stakeholders to ‘significantly
reduce illicit financial flows’ by 2030 (SDG 16.4) and ‘substantially reduce corruption and
bribery in all their forms’ (SDG 16.5). This is to be done through adherence to the rule of law,
which is the essential precondition for achieving the SDGs. These are critical tools to enhance
resources available for human rights compliance.
While attention to the issue of mobilisation of resources has been driven mainly by those
human rights bodies whose mandates include economic, social and cultural rights, the issue
of resource mobilisation is at the core of the realisation of all human rights (civil, political,
economic, social and cultural).

Resource mobilisation, as a concept, encompasses a number of steps that states are already
required to undertake according to international law:

Article 2(2) ICCPR:

‘[E]ach 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 recognised in the present Covenant.’

Article 2(1) ICESCR:

‘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
566 | EMERGING ISSUES AND CHALLENGES 

realisation of the rights recognised in the present Covenant by all appropriate means,
including particularly the adoption of legislative measures.’

Article 4 CRC:

‘States Parties shall undertake all appropriate legislative, administrative, and other
measures for the implementation of the rights recognised in the present Convention.
With regard to economic, social and cultural rights, States Parties shall undertake such
measures to the maximum extent of their available resources and, where needed, within
the framework of international co-operation.’

Article 4(2) CRPD:

‘With regard to economic, social and cultural rights, each State Party undertakes to
take measures to the maximum of its available resources and, where needed, within the
framework of international cooperation, with a view to achieving progressively the full
realisation of these rights, without prejudice to those obligations contained in the present
Convention that are immediately applicable according to international law.’

The aforementioned provisions help to frame a number of central aspects of resource mobilisation.
These include the obligation to take steps and progressive realisation, resources and the duty to use
the maximum available level of resources, and non-retrogression.

15.2.1 The ‘obligation to take steps’ and ‘progressive realisation’

There is nothing new in the obligation to take steps towards realising human rights and the goals
as well as the concept of progressive realisation. These find expression in the UN human rights
treaties, not least the International Covenant on Economic, Social and Cultural Rights.

International Covenant on Economic, Social and Cultural Rights 1966, Article 2

1 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.

The nature of State’s obligations is further elaborated on by the Committee in a general comment:

CESCR General Comment No. 3: The Nature of States Parties’ Obligations

(Art 2, Para 1, of the Covenant)

1 Article 2 is of particular importance to a full understanding of the Covenant and must be

seen as having a dynamic relationship with all of the other provisions of the Covenant.
It describes the nature of the general legal obligations undertaken by States parties to
the Covenant. Those obligations include both what may be termed (following the work
of the International Law Commission) obligations of conduct and obligations of result.
 EMERGING ISSUES AND CHALLENGES  | 567

While great emphasis has sometimes been placed on the difference between the
formulations used in this provision and that contained in the equivalent article 2 of the
International Covenant on Civil and Political Rights, it is not always recognized that there
are also significant similarities. In particular, while the Covenant provides for progressive
realization and acknowledges the constraints due to the limits of available resources,
it also imposes various obligations which are of immediate effect. Of these, two are of
particular importance in understanding the precise nature of States parties obligations.
One of these, which is dealt with in a separate general comment, and which is to be
considered by the Committee at its sixth session, is the ‘undertaking to guarantee’ that
relevant rights ‘will be exercised without discrimination . . . ‘.
2 The other is the undertaking in article 2 (1) ‘to take steps’, which in itself, is not qualified
or limited by other considerations. The full meaning of the phrase can also be gauged by
noting some of the different language versions. In English the undertaking is ‘to take steps’,
in French it is ‘to act’ (‘s’engage à agir’) and in Spanish it is ‘to adopt measures’ (‘a adoptar
medidas’). Thus while the full realization of the relevant rights may be achieved progressively,
steps towards that goal must be taken within a reasonably short time after the Covenant’s
entry into force for the States concerned. Such steps should be deliberate, concrete and
targeted as clearly as possible towards meeting the obligations recognized in the Covenant.
3 The means which should be used in order to satisfy the obligation to take steps are
stated in article 2 (1) to be ‘all appropriate means, including particularly the adoption
of legislative measures’. The Committee recognizes that in many instances legislation
is highly desirable and in some cases may even be indispensable. For example, it may
be difficult to combat discrimination effectively in the absence of a sound legislative
foundation for the necessary measures. In fields such as health, the protection of children
and mothers, and education, as well as in respect of the matters dealt with in articles 6 to 9,
legislation may also be an indispensable element for many purposes.
5 Among the measures which might be considered appropriate, in addition to legislation, is
the provision of judicial remedies with respect to rights which may, in accordance with the
national legal system, be considered justiciable. The Committee notes, for example, that
the enjoyment of the rights recognized, without discrimination, will often be appropriately
promoted, in part, through the provision of judicial or other effective remedies. Indeed, those
States parties which are also parties to the International Covenant on Civil and Political
Rights are already obligated (by virtue of articles 2 (paras. 1 and 3), 3 and 26) of that Covenant
to ensure that any person whose rights or freedoms (including the right to equality and non-
discrimination) recognized in that Covenant are violated, ‘shall have an effective remedy’ (art.
2 (3) (a)). In addition, there are a number of other provisions in the International Covenant
on Economic, Social and Cultural Rights, including articles 3, 7 (a) (i), 8, 10 (3), 13 (2) (a), (3)
and (4) and 15 (3) which would seem to be capable of immediate application by judicial and
other organs in many national legal systems. Any suggestion that the provisions indicated
are inherently non-self-executing would seem to be difficult to sustain.

15.2.2 What does this mean for States?

States generally view their fiscal resources as something well within their national sovereign
domain. In many States, the financial viability of the State may also be sensitive. Recall the incred-
ible extent of corruption in public administration and governments around the world, corruption
in all its manifestations. Realising economic and social rights take money, action plans and strate-
gies. Most economic and social rights require positive action by the State. This contrasts with civil
and political rights, some of which require inaction – freedoms of assembly, association expression
and religion, for example. Note that some civil and political rights are expensive, establishing
access to justice, and safe places of detention can be very costly, time-consuming and require
568 | EMERGING ISSUES AND CHALLENGES 

extensive technical assistance. Perhaps the best example of this is Iraq, which rebuilt its justice
system almost from scratch in the early years of this century after the 2003 USA/UK invasion. A
quick look online reveals the estimates of billions to rebuild the war-ravaged country.

Radhika Balakrishnan, Diane Elson, James Heintz and Nicholas Lusiani, ‘Maximum Available
Resources & Human Rights’, Center for Women’s Global Leadership, Rutgers University, 2011

1. Resources are critical to the realisation of economic and social rights. Article 2.1 of the
International Covenant on Economic, Social and Cultural Rights (ICESCR) states that
‘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’ (page 2).
2. There are many ways that governments can access financial resources in order to support
the principle of using the maximum available resources (MAR), as first introduced in the
Covenant. The mobilisation of resources extends to consideration of debt financing,
monetary policy, financial reform, and taxation (page 23).

15.2.2.1 What are ‘resources’?

The Obligation to Mobilise Resources: Bridging Human Rights, Sustainable Development Goals,
and Economic and Fiscal Policies December 2017 A report of the
International Bar Association’s Human Rights Institute

1. In the six years since this conclusion was reached – and maybe even triggered by this
same assessment – treaty bodies and special procedures have increasingly adopted a
broader interpretation of the notion of resources. Though they have not provided a clear
definition, monitoring bodies seem now to assume that not all resources are monetary.
Resources they name as relevant to human rights realisation include natural, human,
technological, organisational, informational and administrative. This broad interpretation
is even in line with the ICESCR’s drafting history. During the drafting process, the Lebanese
representative noted ‘it must be made clear that the reference [to resources] was to the
real resources of the country and not to budgetary appropriations’.
2. In line with the Limburg Principles on the Implementation of the International Covenant
on Economic, Social and Cultural Rights (the ‘Limburg Principles’), which indicate that
States have an obligation to develop societal resources as a way of increasing their
available resources, human rights monitoring bodies have also suggested that States’
investment in employment, education, training and health care should be increased for
resource mobilisation. Investing in accessible and quality education is an example that
has been put forward as a measure that has strong medium- and long-term effects – both
as a right in itself and as a means of expanding a State’s assets – and therefore on the
resources available to support human rights in the long term. Along the same lines, the
importance of systematically supporting ‘parents and families which are among the most
important “available resources” for children’ has been highlighted.
3. While the current interpretation of human rights monitoring bodies of the notion of
resources encompasses financial and non-financial, some questions remain as to
the nature of the resources. Special procedures and treaty bodies should strengthen
the interpretation of resources as a dynamic concept, and States as active agents in the
mobilisation of resources. In addition, they should emphasise that adherence to the rule
of law is an essential concomitant to this. Regardless of the nature of the resources, if
they are being corruptly diverted, their potential will be lost.
 EMERGING ISSUES AND CHALLENGES  | 569

15.2.2.3 The obligation to devote maximum available resources

In order for a State to be able to attribute its failure to meet its minimum core obligations to a
lack of available resources, it must demonstrate that every effort has been made to use all resources
that are at its disposition in an effort to satisfy, as a matter of priority, those minimum obligations.

AN EVALUATION OF THE OBLIGATION TO TAKE STEPS TO THE ‘MAXIMUM OF AVAILABLE

RESOURCES’ UNDER AN OPTIONAL PROTOCOL TO THE COVENANT

1 The ‘availability of resources’, although an important qualifier to the obligation to take steps, does
not alter the immediacy of the obligation, nor can resource constraints alone justify inaction.
Where the available resources are demonstrably inadequate, the obligation remains for a State
party to ensure the widest possible enjoyment of economic, social and cultural rights under the
prevailing circumstances. The Committee has already emphasized that, even in times of severe
resource constraints, States parties must protect the most disadvantaged and marginalized
members or groups of society by adopting relatively low-cost targeted programmes.
2 The undertaking by a State party to use ‘the maximum’ of its available resources towards
fully realizing the provisions of the Covenant entitles it to receive resources offered by
the international community. In this regard, the phrase ‘to the maximum of its available
resources’ refers to both the resources existing within a State as well as those available
from the international community through international cooperation and assistance.
3 As regards the core obligations of States parties in relation to each of the Covenant rights,
General Comment No. 3 states that, in order for a State party to be able to attribute its
failure to meet its core obligations to a lack of available resources, it must demonstrate
that every effort has been made to use all resources that are at its disposal in an effort to
satisfy, as a matter of priority, those core obligations.
4 Apart from the obligation to take steps (art. 2.1), States parties have an immediate
obligation to ‘guarantee that the rights enunciated in the Covenant will be exercised without
discrimination of any kind’ (art. 2.2). This obligation frequently requires the adoption and
implementation of appropriate legislation and does not necessarily require significant
resource allocations. Similarly, the obligation to respect requires States to refrain from
interfering directly or indirectly with the enjoyment of Covenant rights and does not
necessarily require significant State involvement. For example, the right of women to an
equal salary for equal work should be implemented immediately. The obligation to protect
and, to a greater extent, the obligation to fulfil, on the other hand, often require positive
budgetary measures in order to prevent third parties from interfering with the rights
recognized in the Covenant (obligation to protect) or to facilitate, provide and promote the
enjoyment of these rights (obligation to fulfil).

15.2.2.4 The non-retrogression obligation

In addition to meeting core obligations, maximum available resources must be fully used to pro-
gressively realise all levels of human rights in a way that guards against retrogressive steps or impacts
and maintains the status quo for the broader range of human rights obligations.

United Nations High Commissioner for Human Rights, Report on austerity measures and economic
and social rights, www.ohchr.org/Documents/Issues/Development/RightsCrisis/E-2013-82_en.pdf

The duty to progressively fulfil economic, social and cultural rights implies a prohibition of
measures that would diminish realization of the rights guaranteed by the Covenant, except
when justified by certain strict criteria.
A retrogressive measure is one that, directly or indirectly, leads to backward movement
in the enjoyment of the rights recognized in the Covenant. For example, to ensure progressive
realization and avoid retrogression, States must ensure that their policies and actions do
570 | EMERGING ISSUES AND CHALLENGES 

not reduce access to social security benefits. This includes, for instance, not restricting the
eligibility criteria or the amount of social benefits.

According to the CESCR:

[A]ny deliberately retrogressive measures. . . would require the most careful consideration and
would need to be fully justified by reference to the totality of the rights provided for in the
Covenant and in the context of the full use of the maximum available resources. (see CESCR
General Comment No 4 on the Right to Adequate Housing)
(Art 11 (1)) (1991) UN Doc E/1992/23, para 11;
General Comment No 13, para 45; General Comment No 14, para 32)

Several other general comments issued by the Committee on Economic, Social and Cultural
Rights apply this notion to concrete rights included in the Covenant, and consider that the adop-
tion of deliberately retrogressive measures constitutes a prima facie violation of the Covenant.

• General comment No. 4 (1991) on the right to adequate housing, para 11

• General comment No. 12 (1999) on the right to adequate food, para 19
• General comment No. 13 (1999) on the right to education, paras 45 and 49
• General comment No. 14 (2000) on the right to the highest attainable standard of health,
paras 32, 48 and 50
• General comment No. 15 (2002) on the right to water, paras 19, 21 and 42
• General comment No. 17 (2005) on the right of everyone to benefit from the protection of
the moral and material interests resulting from any scientific, literary or artistic production of
which he or she is the author, paras 27 and 42
• General comment No. 18 (2005) on the right to work; paras 21 and 34
• General comment No. 19 (2008) on the right to social security, paras 42 and 64
• General comment No. 21 (2009) on the right of everyone to take part in cultural life, para 65

To this end, the Independent Expert on the effects of foreign debt and other related international
financial obligations of States on the full enjoyment of human rights, particularly economic, social
and cultural rights, in 2019, issued a set of guiding principles on human rights impact assessments
of economic reforms which set out the human rights principles and standards that apply to States,
international financial institutions and creditors when designing, formulating or proposing eco-
nomic reforms. Based on the existing human rights obligations and responsibilities of States and
other actors, the guiding principles underline the importance of systematically assessing the impact
of economic reforms on the enjoyment of all human rights before decisions are taken to imple-
ment such reforms, as well as during and after their implementation. In addressing a range of issues,
from the duty to progressively realise rights to obligations against retrogression, the guidelines are
particularly useful in helping to articulate human rights obligations of States to help realise the
SDGs.

Guiding principles on human rights impact assessments of economic reform, 2019

I. Scope and purpose

Principle 1 – Scope and purpose of the guiding principles

The present principles provide guidance for economic policymaking, in compliance with
international human rights obligations to respect, protect and fulfil all human rights. They
apply whenever economic reform policies may foreseeably result in impairment of human
rights. These principles are likely to be most relevant in the context of acute economic and
financial crises (reactive function) but will also be relevant in less challenging economic times
 EMERGING ISSUES AND CHALLENGES  | 571

in the course of the design and implementation of short-, medium- and long-term economic
reform policies considered or/and implemented (preventive function).

II. Obligations of States

Principle 2 – Obligations of States with respect to economic policies and human rights
States are obliged to manage their fiscal affairs and to adopt economic policies to ensure that
they respect, protect and fulfil all human rights. Economic choices made by States, whether
acting alone or as members of international financial institutions, must comply with their
international human rights obligations at all times, including during times of economic crisis.

Principle 3 – Burden of proof and obligation to conduct human rights impact assessments
States and other creditors, including international financial institutions, should demonstrate
that their proposed economic reform measures will realize, and not undermine, States’
human rights obligations. This implies a duty to carry out human rights impact assessments
to evaluate and address any foreseeable effects of their economic policies on human rights.
Consulting on, and making public in adequate formats the results of, human rights impact
assessments are important components of complying with this obligation.

Principle 4 – Obligations of local and subnational governments

Economic and financial crises should not be used to justify a reduction of the policy and fiscal
space necessary at local and subnational government levels to ensure the protection of human
rights. In turn, although all levels of government have human rights obligations, the central
Government can in no circumstances circumvent its responsibilities for the human rights
impacts of its policies by delegating economic reform-related powers or functions to local
governments.

Principle 9 – Progressive realization and maximum available resources

In relation to economic, social and cultural rights in particular, States are obliged to
progressively realize such rights by all appropriate means, which requires States to:

(a) Design and implement fiscal, tax, debt, trade, aid, monetary and environmental policies
in conjunction with other measures, so that they are deliberately directed towards the
realization of human rights;
(b) Demonstrate that every effort has been made to mobilize all available resources, even
in times of economic crisis. In particular, States must generate, adequately allocate and
make use of the maximum of their available resources to move as expeditiously and
effectively as possible towards the achievement of the full realization of economic, social
and cultural rights.

Principle 10 – Prohibition of retrogression

Any proposed economic reform that may result in impermissible retrogression in terms of the
realization of economic, social and cultural rights is considered a prima facie violation of such
rights. Measures that would result in backward steps in terms of the achievement of these
rights is permissible only if States can prove that such retrogressive measures are:

(a) Temporary, in nature and effect, and limited to the duration of the crisis;
(b) Legitimate, with the ultimate aim of protecting the totality of human rights;
(c) Reasonable, in that the means chosen are the most suitable and capable of achieving the
legitimate aim;
(d) Necessary, in that the adoption of any other policy alternatives or the failure to act would
be more detrimental to the enjoyment of economic, social and cultural rights, especially
if there are less harmful alternative financing mechanisms;
572 | EMERGING ISSUES AND CHALLENGES 

(e) Proportionate, in that the measures chosen do not unduly restrict human rights and their
costs do not outweigh their benefits;
(f) Non-discriminatory, and have the ability to prevent or mitigate the inequalities that
can emerge in times of crisis and they ensure that the rights of disadvantaged and
marginalized individuals and groups are not disproportionately affected;
(g) Protective of the minimum core content of economic, social and cultural rights at all times;
(h) Based on transparency and the genuine participation of affected groups in examining the
proposed measures and alternatives;
(i) Subject to meaningful review and accountability procedures, including human rights
impact assessments.

15.3 Human rights and climate change

Climate change, or the climate crisis, has attracted extensive publicity over recent years. Small
Pacific and Indian Ocean Island States are disappearing, fresh water is unavailable and a wide
enough range of produce cannot grow in salinated sand. Developing and developed countries
continue to spew chemicals into the atmosphere, scientists continue to find evidence of damage to
the atmosphere around the world. Extreme weather events become more normalised and appear
less extreme. Think of the last time you experienced abnormal drought, rainfall, snowfalls, winds,
storms and so on. Almost everyone can think of some examples.
Plastic, especially single-use plastic, is a scourge of development. Less developed States can
afford little plastic, using recyclable (or rather reusable) and natural products to carry water, wrap
produce and so on. As States develop, ever more plastic encroaches, in imports, in production and
for convenience. However, as States develop further, the challenges of waste plastic become more
apparent. It is also changing the face of the planet and impacting on its environment.

15.3.1 Linking human rights and climate change

Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment
of a safe, clean, healthy and sustainable environment, 1 February 2016

III. Effects of climate change on the enjoyment of human rights

23. Mary Robinson, who previously served as the President of Ireland and the United Nations
High Commissioner for Human Rights and who is now the Special Envoy of the Secretary-
General on Climate Change, has called climate change the greatest threat to human rights in
the twenty-first century. The effects of climate change on human rights have been described
in detail many times. In short, climate change threatens the full enjoyment of a wide range
of rights, including the rights to life, health, water, food, housing, development and self-
determination. The following brief description is by no means exhaustive.
24. As average global temperatures rise, deaths, injuries and displacement of persons
from climate-related disasters such as tropical cyclones increase, as do mortality and illness
from heat waves, drought, disease and malnutrition. In general, the greater the increase in
average temperature, the greater the effects on the rights to life and health as well as other
human rights. The foreseeable consequences of even a 2°C rise in average global temperature
are dramatic. According to the Intergovernmental Panel on Climate Change, they include an
increasing probability of ‘declining work productivity, morbidity (e.g., dehydration, heat stroke,
and heat exhaustion), and mortality from exposure to heat waves. Particularly at risk are
agricultural and construction workers as well as children, homeless people, the elderly, and
women who have to walk long hours to collect water’.
 EMERGING ISSUES AND CHALLENGES  | 573

25. Climate change will compound the problem of access to safe drinking water, currently
denied to about 1.1 billion people. It has been estimated that about 8 per cent of the global
population will see a severe reduction in water resources with a 1°C rise in the global mean
temperature, rising to 14 per cent at 2°C. More generally, as a result of reduced rainfall and
snowpack, increased evaporation, and contaminated freshwater resources due to rising sea
levels, climate change is projected to reduce the availability of water in most dry subtropical
regions and to increase the frequency of droughts in many already-dry areas.
26. With respect to the right to food, climate change is already impairing the ability of
some communities to feed themselves, and the number affected will grow as temperatures
rise. The Intergovernmental Panel on Climate Change states that ‘all aspects of food security
are potentially affected by climate change, including food access, utilization, and price stability’.
It is very likely that climate change will adversely impact the production of major crops, such as
wheat, rice and maize, in both tropical and temperate regions.
27. As the Human Rights Council has recognized, the worst effects of climate change are
felt by those who are already vulnerable because of factors such as geography, poverty, gender,
age, indigenous or minority status, national or social origin, birth or other status and disability.
In the words of the Intergovernmental Panel on Climate Change, ‘People who are socially,
economically, culturally, politically, institutionally or otherwise marginalized are especially
vulnerable to climate change and also to some adaptation and mitigation responses’. The
Panel states that ‘future impacts of climate change, extending from the near term to the long
term, mostly expecting 2°C scenarios, will slow down economic growth and poverty reduction,
further erode food security, and trigger new poverty traps, the latter particularly in urban areas
and emerging hotspots of hunger’.
28. Climate change will contribute to forced migration, but the ability to migrate often
depends on mobility and resources. As a result, those who are most vulnerable may be unable
to migrate, instead remaining in locations that are subject to the harms caused by climate
change. Those who do migrate may be particularly vulnerable to human rights abuses, since
they may often be doing so in an irregular process (see A/67/299, para. 36).
29. Climate change threatens the very existence of some small island States. Global
warming expands ocean waters and melts land-based ice, causing sea levels to rise. Long
before islands are inundated, climate change may make them uninhabitable by increasing the
frequency and severity of storm surges or by causing sea water to invade their freshwater
resources. If the residents of small island States are forced to evacuate and find other
homes, the effects on their human rights, including their rights to self-determination and to
development, will be devastating.
30. Climate change also threatens to devastate the other forms of life that share this
planet with us. As the world warms, increasingly disastrous consequences will ensue. One

15.3.2 Responding to human rights and climate change

In November 2007, the Small Island Developing States (SIDS) adopted the Male Declaration on
the Human Dimension of Global Climate Change. The Male Declaration was the first interna-
tional agreement to explicitly recognise that ‘climate change has clear and immediate implications
for the full enjoyment of human rights’.

Male Declaration on the Human Dimension of Global Climate Change 2007

We the representatives of the Small Island Developing States having met in Male from 13
to 14 November 2007,
Aware that the environment provides the infrastructure for human civilization and that life
depends on the uninterrupted functioning of natural systems;
574 | EMERGING ISSUES AND CHALLENGES 

Accepting the conclusions of the WMO/UNEP Intergovernmental Panel on Climate Change

(IPCC) including, inter alia, that climate change is unequivocal and accelerating, and
that mitigation of emissions and adaptation to climate change impacts is physically and
economically feasible if urgent action is taken;
Persuaded that the impacts of climate change pose the most immediate, fundamental
and far-reaching threat to the environment, individuals and communities around the
planet, and that these impacts have been observed to be intensifying in frequency and
magnitude;
Emphasizing that small island, low-lying coastal, and atoll states are particularly
vulnerable to even small changes to the global climate and are already adversely
affected by alterations in ecosystems, changes in precipitation, rising sea-levels and
increased incidence of natural disasters;
Convinced that immediate and effective action to mitigate and adapt to climate change
presents the greatest opportunity to preserve the prospects for future prosperity, and
that further delay risks irreparable harm and jeopardizes sustainable development;
Reaffirming the United Nations Charter and the Universal Declaration of Human Rights;
Recalling the relevant provisions of declarations, resolutions and programmes of action
adopted by major United Nations conferences, summits and special sessions and their
follow-up meetings, in particular the Declaration of the United Nations Conference on
the Human Environment of 1972 (Stockholm Declaration), the 1992 Rio Declaration on
Environment and Development and Agenda, and the 2002 Johannesburg Declaration
on Sustainable Development and Plan of Implementation of the World Summit on
Sustainable Development;
Noting that the fundamental right to an environment capable of supporting human
society and the full enjoyment of human rights is recognized, in varying formulations,
in the constitutions of over one hundred states and directly or indirectly in several
international instruments;
Recognizing the leadership of the Alliance of Small Island States in promoting and
organizing international responses to climate change for the benefit of their citizens
and humanity through inter alia the Male’ Declaration on Sea Level Rises, the Barbados
Programme of Action, and the Mauritius Strategy;
Acknowledging the United Nations Framework Convention on Climate Change (UNFCCC)
and its Kyoto Protocol as important initial multilateral efforts to address climate change
through global legal instruments, and the primacy of the United Nations process as the
means to address climate change;
Anticipating the publication of the United Nations Development Programme’s (UNDP)
Human Development Report and the meeting of Commonwealth Heads of Government
in Uganda, both of which will emphasise the human aspects of sustainable development;
Concerned that climate change has clear and immediate implications for the full enjoyment
of human rights including inter alia the right to life, the right to take part in cultural life,
the right to use and enjoy property, the right to an adequate standard of living, the right
to food, and the right to the highest attainable standard of physical and mental health;

Do solemnly request:

1 The international community to commit in Bali to a formal process that will ensure a
post-2012 consensus to protect people, planet and prosperity by taking urgent action to
stabilize the global climate and ensure that temperature rises fall well below 2°C above
pre-industrial averages, and that greenhouse gas concentrations are less than 450ppm,
consistent with the principles of common but differentiated responsibilities.
2 The members of AOSIS in New York to consider including the human dimension of global
climate change as one of the agenda items for the meeting of AOSIS Ministers in Bali, and
 EMERGING ISSUES AND CHALLENGES  | 575

to explore possible alternatives for advancing this initiative in Bali in order to stress the
moral and ethical imperatives for action;.
3 The Conference of the Parties of the United Nations Framework Convention on Climate
Change, with the help of the Secretariat, under article 7.2(l), to seek the cooperation of the
Office of the United Nations High Commissioner for Human Rights and the United Nations
Human Rights Council in assessing the human rights implications of climate change.
The Office of the United Nations High Commissioner for Human Rights to conduct a
detailed study into the effects of climate change on the full enjoyment of human rights,
which includes relevant conclusions and recommendations thereon, to be submitted prior
to the tenth session of the Human Rights Council.
5 The United Nations Human Rights Council to convene, in March 2009, a debate on human
rights and climate change.
Committed to an inclusive process that puts people, their prosperity, homes, survival and
rights at the centre of the climate change debate, other AOSIS members not present in
Male’ are invited to endorse this Declaration;

That same month, OHCHR issued a public statement for the Bali Climate Change Conference
(COP-13) acknowledging that ‘climate change can adversely affect the fundamental human rights
of present and future generations’ and reminding the COP that governments have both moral and
legal obligations to protect and promote basic human rights when tackling climate change.
In 2009, OHCHR released a report describing how the observed and projected impacts of
climate change have implications for the enjoyment of human rights and for the obligations of
States under international human rights law.

UNHRC Res. 7/23, Human rights and climate change, UN Doc. A/HRC/Res/7/23 (28 March 2008)

The Human Rights Council,

Concerned that climate change poses an immediate and far-reaching threat to people and
communities around the world and has implications for the full enjoyment of human rights,
Recognizing that climate change is a global problem and that it requires a global solution,
Reaffirming the Charter of the United Nations, the Universal Declaration of Human Rights,
the International Covenant on Economic, Social and Cultural Rights, the International Covenant
on Civil and Political Rights and the Vienna Declaration and Programme of Action,
Noting the findings of the fourth assessment report of the Intergovernmental Panel on
Climate Change, including that the warming of the climate system is unequivocal and that
most of the observed increase in global average temperatures since the mid-twentieth century
is very likely human-induced,
Recognizing that the United Nations Framework Convention on Climate Change remains
the comprehensive global framework to deal with climate change issues, reaffirming the
principles of the Framework Convention as contained in article 3 thereof, and welcoming
the decisions of the United Nations Climate Change Conference held in Bali, Indonesia, in
December 2007, and in particular the adoption of the Bali Action Plan,
Recalling that the Vienna Declaration and Programme of Action reaffirmed the right to
development, as established in the Declaration on the Right to Development, as a universal and
inalienable right and as an integral part of fundamental human rights,
Recognizing that human beings are at the centre of concerns for sustainable development
and that the right to development must be fulfilled so as to equitably meet the development and
environmental needs of present and future generations,
Recognizing also that the world’s poor are especially vulnerable to the effects of climate
change, in particular those concentrated in high-risk areas, and also tend to have more limited
adaptation capacities,
Recognizing further that low-lying and other small island countries, countries with low-
lying coastal, arid and semi-arid areas or areas liable to floods, drought and desertification,
576 | EMERGING ISSUES AND CHALLENGES 

and developing countries with fragile mountainous ecosystems are particularly vulnerable to
the adverse effects of climate change,
Recalling the relevant provisions of declarations, resolutions and programmes of action
adopted by major United Nations conferences, summits and special sessions and their follow-up
meetings, in particular Agenda 21 and the Rio Declaration on Environment and Development,
and the Johannesburg Declaration on Sustainable Development and the Johannesburg Plan of
Implementation,
Recalling also Commission on Human Rights resolution 2005/60 of 20 April 2005 on
human rights and the environment as part of sustainable development,
Recalling further Council resolution 6/27 of 14 December 2007 on adequate housing as a
component of the right to an adequate standard of living and in particular paragraph 3 thereof,
and Council decision 2/104 of 27 November 2006 on human rights and access to water,
Taking note of the contribution provided by special procedures of the Council in examining
and advancing the understanding of the link between the enjoyment of human rights and the
protection of environment,
Taking note also of the conclusions and recommendations contained in the report of the
Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard
of physical and mental health to the General Assembly (A/62/214), which include a call for the
Council to study the impact of climate change on human rights,

1 Decides to request the Office of the United Nations High Commissioner for Human Rights,
in consultation with and taking into account the views of States, other relevant international
organizations and intergovernmental bodies including the Intergovernmental Panel on
Climate Change and the secretariat of the United Nations Framework Convention on
Climate Change, and other stakeholders, to conduct, within existing resources, a detailed
analytical study on the relationship between climate change and human rights, to be
submitted to the Council prior to its tenth session;
2 Encourages States to contribute to the study conducted by the Office of the High
Commissioner;
3 Decides to consider the issue at its tenth session under agenda item 3, and thereafter
to make available the study, together with a summary of the debate held during its tenth
session, to the Conference of Parties to the United Nations Framework Convention on
Climate Change for its consideration.

Since the issuance of this report, UN Human Rights Council has issued five resolutions recogniz-
ing the linkages between climate change and human rights. These include:

• Resolution 10/4 (2009), which recognized that international cooperation would be ‘neces-
sary’ to enable implementation of the United Nations Framework Convention on Climate
Change (UNFCCC).
• Resolution 18/22 (2011), which affirmed that “human rights obligations, standards and prin-
ciples have the potential to inform and strengthen international and national policymaking
in the area of climate change, promoting policy coherence, legitimacy, and sustainable out-
comes” and that “in no case may a people be deprived of its own means of subsistence” as a
result of climate change.
• Resolution 18/22 also called for additional dialogue on how to address the adverse impacts of
climate change on the full enjoyment of human rights.
• Resolution 26/27 (2014), which explicitly noted the ‘urgent importance of continuing to
address, as they relate to States’ human rights obligations, the adverse consequences of climate
change for all, particularly in developing countries and its people whose situation is most vul-
nerable to climate change, especially those in a situation of extreme poverty, and deteriorating
livelihood conditions.’
 EMERGING ISSUES AND CHALLENGES  | 577

• Resolution 29/15 (2015), which contained effectively the same language on ‘States’ human
rights obligations’ as Resolution 26/27, and called for new study on the relationship between
climate change and the human right to the highest attainable standard of physical and mental
health.

The Geneva Pledge for Human Rights in Climate Action, 13 February 2015

‘All human beings are born free and equal in dignity and rights.’
We, the undersigned, note that climate change-related impacts have a range of
implications, both direct and indirect, for the effective enjoyment of human rights, and
recognize that while these implications affect individuals and communities around the world,
the effects of climate change will be felt most acutely by those segments of the population who
are already in vulnerable situations owing to factors such as geography, poverty, gender, age,
indigenous or minority status and disability.
We also note that human rights obligations and commitments have the potential to
inform and strengthen international and national policymaking in the area of climate change,
promoting policy coherence, legitimacy and sustainable outcomes.
We recall that this relationship between climate change and human rights has been
recognised by both the Conference of Parties to the United Nations Framework Convention
on Climate Change (UNFCCC) and by the Human Rights Council (HRC), and can be further
strengthened.
As a diverse group of national governments engaged with both the United Nations
Framework Convention on Climate Change and the processes of the Human Rights Council,
we work on behalf of our people in defence of a climate system that is safe for all humanity, and
allows for the benefits of development to be reaped by all.
On the occasion of the meeting of the Ad Hoc Working Group for the Durban Platform
for Enhanced Action in February 2015, we, the undersigned, pledge to enable meaningful
collaboration between our national representatives in these two processes to increase our
understanding of how human rights obligations inform better climate action.
We will facilitate the exchange of expertise and best practice between our human rights
and climate experts to build our collective capacity to deliver responses to climate change
that are good for people and the planet. To realise this we will strive to include human rights
knowledge in our delegations to the UNFCCC and where applicable, climate change expertise
in the HRC. We cannot overlook the injustice faced by the poorest and most vulnerable people
who are disproportionately affected by the impacts of climate change. In a transition to a low
carbon economy we want to ensure that no one is left behind. We will promote and respect
human rights in our climate actions.

On 1 March 2015, a group of experts in international law, human rights law, environmental law,
and other law adopted the Oslo Principles on Global Obligations to Reduce Climate Change.
The experts came from national and international courts, universities and organisations located in
every region of the world.

Oslo Principles on Global Obligations to Reduce Climate Change 2015

Preamble

. . .
International law entails obligations to act cooperatively to protect and advance fundamental
human rights, including in the context of climate change and its effects on people’s ability to
exercise such rights. Threatened human rights include, but are not limited to, the right to life,
the rights to health, water, food, a clean environment, and other social, economic and cultural
rights, and the rights of children, women, minorities and indigenous peoples.
578 | EMERGING ISSUES AND CHALLENGES 

. . .
These Principles set out the legal obligations of States and enterprises to take the urgent
measures necessary to avert climate change and its catastrophic effects. They do not claim to
address all action that humanity will need to take to respond to the dangers climate change
poses to human life and the biosphere. Additional crucial initiatives include:

• action by international, national and local actors to adapt to inevitable climate-change

effects in ways that minimize harm to human and other forms of life and to the exercise of
human rights;

. . .
No single source of law alone requires States and enterprises to fulfil these Principles.
Rather, a network of intersecting sources provides States and enterprises with obligations to
respond urgently and effectively to climate change in a manner that respects, protects, and
fulfils the basic dignity and human rights of the world’s people and the safety and integrity of
the biosphere. These sources are local, national, regional, and international and derive from
diverse substantive canons, including, inter alia, international human rights law, environmental
law and tort law.

One of the most detailed overviews of obligations as they relate to human rights and climate
change has been provided by the Special Rapporteur on the issue of human rights obligations
relating to the enjoyment of a safe, clean, healthy and sustainable environment.

Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment
of a safe, clean, healthy and sustainable environment, 1 February 2016

B. Procedural obligations

1 Duties to assess environmental impacts and make information public

30. The Universal Declaration of Human Rights (art. 19) and the International Covenant on
Civil and Political Rights (art. 19) state that the right to freedom of expression includes
the freedom ‘to seek, receive and impart information’. The right to information is also
critical to the exercise of other rights, including rights of participation. In the words
of the then Special Rapporteur on the adverse effects of the illicit movement and
dumping of toxic and dangerous products and wastes on the enjoyment of human
rights, the rights to information and participation are ‘both rights in themselves and
essential tools for the exercise of other rights, such as the right to life, the right to
the highest attainable standard of health, the right to adequate housing and others’
(A/HRC/7/21, p. 2).
...

2 Facilitating public participation

56. The obligation to facilitate public participation in environmental decision-making

has strong roots in human rights law. The Universal Declaration of Human Rights
and the International Covenant on Civil and Political Rights recognize the baseline
rights of everyone to take part in the government of their country and in the
conduct of public affairs. Again, human rights bodies have built on this baseline
in the environmental context, clarifying the duty to facilitate public participation in
environmental decision-making in order to safeguard a wide spectrum of rights from
environmental harm.
. . .
 EMERGING ISSUES AND CHALLENGES  | 579

3 Providing for effective remedies

62. From the Universal Declaration of Human Rights onward, human rights agreements
have reflected the principle that States should provide for an effective remedy for
violations of their protected rights. Human rights bodies have applied that principle
to human rights infringed by environmental harm, and there is no reason to doubt
that the requirement to provide for an effective remedy applies to violations of human
rights relating to climate change.

B. Substantive obligations

1 Obligation to adopt and implement legal framework

47. States have obligations to adopt legal and institutional frameworks that protect
against, and respond to, environmental harm that may or does interfere with the
enjoyment of human rights. These obligations have been derived from a number of
human rights, including the rights to life and health.

2 Obligations to protect against environmental harm from private actors

58. As the then Special Representative of the Secretary-General on business and human
rights explained, ‘the State duty to protect against non-State abuses is part of the
very foundation of the international human rights regime. The duty requires States to
play a key role in regulating and adjudicating abuse by business enterprises, or risk
breaching their international obligations’ (A/HRC/4/35, para. 18). Such abuses can
include environmental harm that infringes human rights. The Special Representative
reviewed 320 cases of alleged corporate-related human rights abuses and found
that nearly one third of the cases alleged environmental harm that affected human
rights, including the rights to life, health, food and housing. Most of the cases of
direct harm to communities involved environmental impacts (A/HRC/8/5/Add.2,
para. 67).

3 Obligations relating to transboundary environmental harm

62. Many grave threats to the enjoyment of human rights are due to transboundary
environmental harm, including problems of global scope such as ozone depletion
and climate change. This raises the question of whether States have obligations to
protect human rights against the extraterritorial environmental effects of actions
taken within their territory.
The report also draws attention to state obligations relating to members of groups
in vulnerable situations including women, children and indigenous peoples.

Whilst the aforementioned instruments do not fully explore the issue of the climate crisis, they
do focus on the human rights implications. There is no doubt that the future of our children and
the world is linked to what happens now and what has happened over the last few decades and
centuries as development, particularly industrialisation, has reshaped the world in which we live.
As fossil fuels run out and attention turns to renewable energy sources to quench the never-ending
global demands for energy, something has to be done. All human rights everywhere depend on
the response to this crisis.

Further reading
Bach, T., ‘Human Rights in a Climate Changed World: The Impact of COP21, Nationally Determined
Contributions, and National Courts’ (2016) 40.1 Vermont Law Review 561–595.
580 | EMERGING ISSUES AND CHALLENGES 

Balakrishnan, R., et al., ‘Maximum Available Resources & Human Rights: Analytical Report’, 2011,
Center for Women’s Global Leadership.
Centre for Economic and Social Rights, ‘Assessing Austerity Monitoring the Human Rights Impacts
of Fiscal Consolidation’ (2018) www.cesr.org/sites/default/files/Austerity-Report-Online2018.
FINAL_.pdf.
Donald, K., and Way, S.-A., ‘Accountability for the Sustainable Development Goals: A Lost Opportu-
nity?’(2016) 30.2 Ethics & International Affairs 201–213, 207 et seq.
Dudai, R, ‘Climate Change and Human Rights Practice: Observations on and around the Report of
the Office of the High Commissioner for Human Rights on the Relationship between Climate
Change and Human Rights’ (2009) 1.2 Journal of Human Rights Practice 294–307.
Elliott, D., and Fielder Cook, L., ‘Climate Justice and the Use of Human Rights Law in Reducing
Greenhouse Gas Emissions’ 2016, Quaker United Nations Office.
Filskov, N., ‘SDGs and Human Rights Monitoring, Guidance for National Implementation’ 2015,
Danish Institute for Human Rights.
Freistein, K., and Mahlert, B., ‘The Potential for Tackling Inequality in the Sustainable Development
Goals’ (2016) 37.12 Third World Quarterly 2139–2155.
Graham, A., ‘National Debt versus the Right to Social Security: How Should States’ Obligations
during a Financial Crisis Be Interpreted?’ (2016) PhD thesis, Lancaster University.
Halle, M., and Wolfe, R., ‘Follow-Up and Review for the 2030 Agenda: Bringing Coherence to the
Work of the HLPF’ 2016, International Institute for Sustainable Development.
Jensen, S., Corkery, A., and Donald, K., ‘Realizing Rights through the Sustainable Development
Goals: The Role of National Human Rights Institutions’, briefing paper about the Sustainable
Development Goals and human rights – and the role of national human rights institutions,
2015, Danish Institute for Human Rights.
Knox, J.H., ‘Linking Human Rights and Climate Change at the United Nations’ (2009) 33.2 Harvard
Environmental Law Review 477–498.
Langford, M., ‘Lost in Transformation? The Politics of the Sustainable Development Goals’ (2016)
30.2 Ethics & International Affairs 167–176; for a more in-depth discussion, G. Long, ‘The Idea
of Universality in the Sustainable Development Goals’ (2015) 29.2 Ethics & International Affairs
203–222.
OHCHR, 2015. ‘Understanding Human Rights and Climate Change: Submission of the Office of the
High Commissioner for Human Rights to the 21st Conference of the Parties to the UFCCC’,
26 November 2015.
OHCHR, 2015, ‘Key Messages on Human Rights and Climate Change’. This OHCHR brief outlines
the essential obligations and responsibilities of States and other duty bearers concerning cli-
mate change and its impact on human rights.
Robertson, R.E., ‘Measuring State Compliance with the Obligation to Devote the “Maximum Avail-
able Resources” to Realising Economic, Social, and Cultural Rights’ (1994) 16.4 Human Rights
Quarterly 693.
Skogly, S., ‘The Requirement of Using the “Maximum of Available Resources” for Human Rights
Realisation: A Question of Quality as Well as Quantity?’ (2012) 12 Human Rights Law Review 393.
United Nations Office of the High Commissioner for Human Rights, Report on austerity measures
and economic and social rights (2012) www.ohchr.org/Documents/Issues/Development/
RightsCrisis/E-2013-82_en.pdf.
Index

A B
abduction of children 310–11 Bahrain 230
Abebe, Allehone Mulugeta 152 Ban Ki-Moon 555
aboriginal people see indigenous peoples Bayefsky, Anne F. 27, 66, 67, 68, 74
abortion 548–9 Beijing Platform for Action
academic commentaries 27 women’s rights, and 514–15
access to court 469 Bennett, Gordon 367
accused person, trial of see Trial bribery
ad hoc international criminal tribunals 175–6 UN Global Compact (1999) and 275
adoption of children 309 Brownlie, Ian 37
affirmative action 515–19 businesses and corporations 251–77
African Commission on Human and Peoples’ case study: Alien Tort Statute 258–60
Rights 226–8 case study: UK Modern Slavery Act
African Court of Justice 144, 228 260–2
African Union 144, 345 multinational corporations 251
agenda 21 556 OECD Guidelines 276–7
aliens UN Global Compact (1999) 275
refugees as 483–4 UN guiding principles on business and
Alston, Philip 67, 68, 100 human rights 251–4
Amnesty International 241
Andean Indian Programme 350
C
Cambodia
Annan, Kofi 33, 107, 108, 125, 161, 181, 275
mixed tribunal in 180–1
Arab Court of Human Rights 230
Canada
Arab League 144
indigenous peoples 373–6
arbitrary detention 162
capital punishment 52, 448–54
arrest 398–401
abolition 452–4
International Criminal Court arrest
‘death row phenomenon’ 451–2
warrants 183–4
case law 26
recording detainees 400–1
child labour 265, 268, 275, 317–20
use of force 420–1
children
association
abduction 310–11
freedom of 265
adoption 309
Association of South-East Asian Nations
African Charter on the Rights and Welfare
(ASEAN) 144–6, 228–9
of the Child 321
asylum 489–90
best interests of the child 301–2
Australia
child labour 317–20
indigenous peoples 372–3
corporal punishment 27, 223
refugees in 461–3
in criminal justice system 315
autonomy
case study: child killers 446–8
indigenous peoples 371–2
582 | INDEX

cultural sensitivity and 43 Côte d’Ivoire 203

definition of ‘child’ 299–300 Council of Europe 126–31, 240, 342
detention 443–8 Crawford, J. 370
education right 279–82 criminal law 53, 58, 175
family rights 307–10 ad hoc international criminal tribunals
as human beings 286–94 175–6
military, in 300 children and 315
participation in decision-making 302–5 case study: child killers 446–8
protection from harm 311–20 equality before the law 396–7
reason for separate rights 288–93 fair trial right 423–34
refugees 466–7 access to court 426–9
safe environment and basic needs 305–11 independent and fair judiciary 429–33
secondary violation of rights 293–4 trial in absentia 433–4
sexual exploitation 292 genocide 182
tabulation of children’s rights 294–8 International Criminal Court 119, 181–4
UN Convention on the Rights of the arrest warrants 183–4
Child 298–300 mixed courts and tribunals 176–81
China 82, 152 cultural genocide 392
Chinkin, Christine 80 cultural rights
circumcision indigenous peoples 376, 391–2
female 43 cultural sensitivity 40–53
climate change 572–9 celebrating cultural diversity 41–2
linking human rights and 572–3 children, and 43
responding to 573–9 female genital mutilation 43–4
cold war 60 reconciling traditional culture with human
collective bargaining 263, 275, 485 rights 43–4
Commission on the Status of Women 105 regional organisations and 44–52
Committee Against Torture (UN) 204, 213, Africa 48–51
328–9 Americas 51–2
Committee on Economic, Social and Cultural Europe 45–8
Rights (UN) 195, 214, 231, 256 state’s margin of appreciation 45–8
Committee on the Elimination of Discrimination reservations/declarations from treaties and
against Women (UN) 197, 534 52
Committee on the Elimination of Racial customary international law 12–16
Discrimination (UN) 201, 203, 230, altering and rejecting emergent customs 14
249 case study: UN Convention on the Rights
Committee on the Rights of the Child 15, 19, of the Child 15–16
67, 68, 215 jus cogens 16
Commonwealth of Independent States 144 opinion juris 13
compensation torture/slavery and 14–15
indigenous peoples’ land rights and 389–91 cyprus
conflict situations disappearances in 413–14
recording detainees 400–1 D
refugees in 486–9 death penalty see capital punishment
consent to marriage 546–7 deaths in custody 422–3
consumerism 282 declarations on treaties 82–4
convicts see prisoners case study 82–4
corporal punishment of children 27, 223 criteria 13
corporations see businesses and corporations cultural sensitivity and 52
corruption as reservations 82
UN Global Compact (1999) and 275 decolonisation 16
 INDEX | 583

denunciation of treaties 92–6 education, lawyers and individuals 277–82

case study 95–6 Egypt
individual petitions and 95 reservations from treaties and 79
Jamaica 96 emergency situations
Netherlands 96 derogations from treaties and 83
regional treaties 95 see also conflict situations
terminating treaty obligations 93 employment
UN human rights treaties 94–5 equality in 251
deportation maternity protection 505–6
‘death row phenomenon’ and 53–4, 451 environmental issues
derogations from treaties 84–92 UN Global Compact (1999) and 275
case study: UK 87–9 equal pay 482
European Court of Human Rights and equality
90–2 before the law 396–8
examples of derogation clauses 84–5, 86–7 Human Rights Committee 510–11
Human Rights Committee and 85–6 in employment 251
non-derogable provisions 89–90 refugees 484–6
detention 414–17 women 506–21
arbitrary 162 affirmative action/positive discrimination
disappearance of detainees see 515–19
disappearances case study: women and political
juveniles 443–8 participation 519–21
pending trial 414–18 litigating the right 508–13
disappearances 401–14 non-discrimination principle 507–8
Americas 409–10 European Commissioner on Human Rights
case study: Honduras 410–412 128–9
Cyprus 413–414 European Court of Human Rights 220–2
duty to investigate 402–6 derogations from treaties and 90–2
extraordinary rendition 406–9 European Torture Committee 220–3
international prohibition 401–2 European Union 139–42
displaced people 491 Fundamental Rights Agency 140–2
divorce 547 refugees in 464–6
Djibouti evolving and developing rights 62–3
reservations from treaties and 80 extradition
Domestic violence see violence against ‘death row phenomenon’ and 53–5
women extraordinary rendition 406–9
Drugs F
children and 294 fair trial right 423–34
E access to court 426–9
East Timor independent and fair judiciary 429–33
Special Panels 180 trial in absentia 433–4
Economic and Social Council of the UN family rights 544–9
(ECOSOC) 103–7 marriage 544–6
Committee on Economic, Social and consent 546–7
Cultural Rights 195, 214, 231, 256 divorce and remarriage 547
economic development minimum age 546
indigenous peoples’ land rights and 388–9 reproductive rights 547–9
education 279–82 right to marry 544–6
higher education 281–2 female genital mutilation 43–4
in human rights 279–82 force, use of
refugees 485 on arrest 420–1
584 | INDEX

forced labour 264–5 functions 325–7

France international protection framework 335–42
refugees in 475–6 Latin America 343–5
Freedom of association 265 Organization of American States 343
G rights 330–3
General Assembly of the UN 101–3 risks and dangers 328–30
Declarations 16 Special Rapporteur on 335–9
genital mutilation 43–4 treaty bodies, and 339–42
genocide 182 who are 324–5
cultural 392 human rights education and training 240–3
reservations to Genocide Convention Hungary
71–2 violence against women in 534–6
Rwanda 170 I
Global Compact (1999) 275 Implementation of human rights law
globalisation 251, 276 Inter-American Commission on Human
Goodman, R. 100 Rights 184–7
Greece 85, 223 international courts and tribunals 175–84
group rights 37–40 ad hoc international criminal
Guyana tribunals175–6
denunciation of treaties by 95 International Criminal Court 181–4
racial discrimination in 249 mixed courts and tribunals 176–81
H non-governmental organisations (NGOs)
Hammarberg, T. 298, 302 and 250–1
hierarchy of rights 59–60 regional systems 220–9
High Commissioner for Human Rights African Commission and Court of
196–7, 250 Human and Peoples’ Rights 226–8
High Commissioner for National Minorities ASEAN 228–9
137–9 European Court of Human Rights
High Commissioner for Refugees 491–2 220–2
higher education 279 European Torture Committee 223–4
homosexual people Inter-American Court and Commission
marriage/civil partnerships 544 of Human Rights 223–6
Honduras remedies for individuals 230–7
disappearances in 410–12 UN Human Rights Council and 150–65
Human Rights Committee of the UN 191, complaint procedure 155–9
192–4, 197 special sessions 159–61
derogations from treaties and 85–6 thematic and country rapporteurs 161–5
reservations from treaties and 70–1, 72–4 universal periodic review 150
Human Rights Council of the UN 107–13, UN Security Council and 170–4
150–65 UN Treaty Monitoring Bodies 191–220
complaint procedure 155–9 administrative, secretarial and research
special sessions 159–61 support 196–7
thematic and country rapporteurs 161–5 creation of committees 192–6
universal periodic review 150 follow–up mechanisms to ensure
human rights defenders 324–46 compliance 338
Africa 345–6 General Comments 214–17
Caribbean 343–5 independent enquiries by committees
case study: business and human rights 328 212–14
duties 334–5 individual communications 207–13
Europe 342–3 inter-state complaints 204–7
 INDEX | 585

on-site visits 217–20 International Criminal Court 181–4

powers of committees 197 mixed courts and tribunals 176–81
UNESCO and 120, 165–9 International Criminal Court 117–19, 181–4
indigenous peoples 347–94 arrest warrants 183–4
Australia 372–3 International Labour Organisation (ILO)
autonomy for 371–2 119–22, 263–5
Canada 373–6 indigenous peoples’ rights and 349–51
cultural genocide 392 women’s rights and 504–6
cultural rights 376, 391–2 International organisations 99
definition of ‘indigenous people’ 367–8 regional 124–5
ILO successes 350–1 see also individual organisations
International Decade of the World’s Iraq 181
Indigenous People 362–6 sanctions on 172–4
invoking minority rights 351–66 Ireland
land rights 376–91 reservations from treaties and 80
case study: New Zealand 381–3 Islam 52
conflicting land rights 381 J
establishing native title 383–8 Jamaica
natural resources and development denunciation of treaties by 96
388–9 Jennings, Ivor 370
restitution or compensation 389–91 Jordan
language rights 358–60 reservations from treaties and 81
Namibia 358–60 judiciary
New Zealand 381–3 appointment and termination 433
regional initiatives 366 independent and fair 429–33
religious rights 360–1 jurisprudence 18–22, 25–7
self-determination right 369–76 case law 26
Sweden 356–7 interpretative and guiding comments 25
towards recognition of rights of 348–51 NGOs’ and other bodies’ reports 27
United States of America 389–91 as source of international human rights
individuals 18–22, 25–7
complaints 156 case study: corporal punishment of
duties to protect and respect human rights children 18–22
277–82 Treaty Monitoring Bodies reports 25–6
implementation of human rights law and virtual libraries 27
230–6 jus cogens 16
individual petitions and denunciation of juveniles
treaties 84 detention and court 443–8
United Nations Treaty Monitoring Bodies
and communication with 207–13
K
indivisibility and interdependence of rights Kosovo 181
59–62 Kuwait
Inter-American Commission on Human reservations from treaties and 81
Rights 184–7 L
Inter-American Court of Human Rights Labour issues
223–6 child labour 265, 268, 275, 317–20
internally displaced people 491 equality in employment 251
International Court of Justice (ICJ) 114–16 forced labour 264–5
reservations from treaties and 71–2 freedom of association 265
international courts and tribunals 175–84 International Labour Organisation (ILO)
ad hoc international criminal tribunals 175–6 119–22, 263–5
586 | INDEX

migrant workers military

rights of 39–40 children in 300
refugees 485–6 see also conflict situations
UN Global Compact (1999) and 275 minority protection 351–66
women’s rights and 504–6 see also indigenous peoples
land rights mixed courts and tribunals 176–81
indigenous peoples 376–91 multinational corporations 251
case study: New Zealand 381–3 OECD Guidelines 276–7
conflicting land rights 381 murder
establishing native title 383–8 case study: child killers 446–8
natural resources and development Myanmar
388–9 Unocal operations in 258–9
restitution or compensation 389–91 N
language rights 358–60 Namibia
law language rights 358–60
equality before the law 396–8 nationality
law enforcement officials stateless people 493–502
arrest 398–401 nations see states
International Criminal Court arrest native peoples see Indigenous peoples
warrants 183–4 natural resources
use of force 420–1 indigenous peoples’ land rights and 388–9
duties to protect and respect human rights Netherlands
278–9 denunciation of treaties and 96
lawyers New Zealand
access to legal advice 467–9 indigenous peoples 381–3
duties to protect and respect human rights Nigeria
277–9 Shell in 259
League of Arab States 144 non-derogable rights and freedoms 89
League of Nations non-governmental organisations (NGOs)
minority protection and 34–7 243–51
Lebanon 181 case study: anti-slavery 244–5
legal advice case study: CERD 249
access to 467–9 contribution to human rights 245–51
Leiris, Michael 391–2 contributing to international
Leone, Alexander 409 standardsetting 248
Libya 171–2 contributing to work of treaty
life, right to 2, 61–2 monitoring bodies 249
M generating awareness of human rights 248
Mansell, Michael 372 prompting implementation of human
marriage 544–8 rights 250–1
consent 546–7 universal periodic review and 249–50
divorce and remarriage 547 definitions 244–5
minimum age 546 examples 244–5
reproductive rights 547–9 universal periodic review 249–50
right to marry 544–6 Norway 245
Martinez-Cobo, Jose 368 reservations from treaties and 80
maternity protection 505–6 Nowak, M. 133, 281
Mauritius O
women’s rights in 511–12 ombudsmen 128–9, 231, 334
migrant workers opinio juris
rights of 39–40 customary international law and 13
 INDEX | 587

Organisation for Economic Cooperation and rights of 481–9

Development (OECD) 276–7 conflict situations 486–9
Organisation of Security and Cooperation in equality of treatment and need for
Europe 131–7 subsistence 484–6
Organisation of American States 142–3 refugees as aliens 483–4
P termination of refugee status 469–76
Paris Principles on national institutions 153, UN High Commissioner for Refugees
154, 157, 338 491–3
pay regional organisations 124–5
equal 482 religion 45–6
peremptory norms ( jus cogens) 16 indigenous peoples 360–1
Peru remarriage 547
women’s rights in 510–11 rendition
Philippines extraordinary 406–9
ASEAN, and 145 reproductive rights 547–9
philosophy 2 reservations from treaties 69–81
political participation case study: CEDAW 52–3
women 520 cultural sensitivity and 52
positive discrimination 515–19 effect of 72–6
positive obligations to conform to human Genocide Convention 71–2
rights 53–9 ICCPR and 76–7
pregnancy ICJ’s approach to 71–2
abortion 548–9 nature and scope 70–1
maternity protection 505–6 UN pressure to remove 81
prisoners 396–454 World Conference on Women
abuse see torture 77–81
deaths in custody 422 resource mobilisation 565–72
detention pending trial 414–18 non-retrogression obligation 569–72
right to vote 440–3 obligation to devote maximum available
resources 569
R obligation to take steps 566–7
Racial discrimination 37, 137–8, 267 progressive realisation 566–7
Committee on the Elimination of Racial resources, meaning 568
Discrimination (UN) 201, 203, 204, restitution
230–1 indigenous peoples’ land rights and
World Conference against Racism 248 389–91
Rapporteurs 163 Ruggie, John 251–3, 256, 263, 266–7,
recognition as person before the law 396–7 268–9
refugees Rwanda
children 466–7 genocide in 170
definition of refugees 458–63 international tribunal for 175
European Union, and 464–6
France, in 475–6 S
granting asylum 489–91 sanctions 118
increasing vulnerability 486–9 sanitation
internally displaced people 491 right to 61
labour issues 485–6 Saudi Arabia
procedures for determining refugee status discrimination against women in 52–3
463–9 sectoral and group rights 37–9
children 466–7 Security Council of the UN 170–4
procedural safeguards 467–9 self-determination right
regional criteria 476–81 indigenous peoples 369–76
588 | INDEX

sex discrimination 38 statements by human rights treaty bodies

Committee on the Elimination of and Special Rapporteurs 559
Discrimination against Women UN Millenium Development Goals 554–6
(UN) 197, 534 Sweden
employment 251 indigenous peoples 356–7
Islamic states 52 Swepston, Lee 120
sexual exploitation Syria 181
children 292 T
women 526 terra nullius 376, 381
Shell 259 territorial application of international law 56
Sierra Leone terrorism
Special Court 177–80 detention pending trial and 417–19
slavery Tomuschat, Christian 2
customary guarantees against 14–15 torture 419–22
Smith, R. 12, 14, 396 Committee Against Torture (UN) 204,
socioeconomic rights 213, 328–9
protection by constitutional courts 60–1 customary guarantees against 14–15
soft law 13, 16, 164 effective investigation of allegations of
sources of international human rights 2–28 421–2
academic commentaries 27 European Torture Committee 222–3
case study: corporal punishment of children Uruguay 232
18–22 trade unions 271, 331, 482
customary international law 12–16 trafficking
jurisprudence 18–22, 25–7 women 524–30
case study: corporal punishment of travaux préparatoires 25, 93
children 18–22 treaties 4–12, 23–5
other international and regional instruments amendments and additions 9
16–22 concluded in foreign language 8–9
practical guide 22–7 declarations on 82–4
treaties 4–12, 23–5 case study 82–4
South Africa 156, 171 cultural sensitivity and 52
standard-setting as reservations 82
non-governmental organisations (NGOs) definition 4–5
and 119–21, 245 denunciation 92–6
state agent authority and control 56–7 case study 95–6
stateless people 493–502 individual petitions and 95
states regional treaties 95
new states 7 terminating treaty obligations 93
treaties between see treaties UN human rights treaties 94–5
UN Treaty Monitoring Bodies and derogations from 84–92
inter-state complaints 204–7 case study: UK 87–9
reports by states to 197–204 European Court of Human Rights and
Steiner, H. 100, 192 90–2
Sub-Commission on the Protection and examples of derogation clauses 84–5, 86–7
Promotion of Human Rights 111 Human Rights Committee and 85–6
Subsistence non-derogable provisions 89–90
refugees 484–6 how states agree to treaties 5–7
Sudan 184 impact on national law 25
sustainable development goals 554–64 in force, whether 24
human rights, and 562–4 legally binding, when 7–8
origin 560–2 obligations 53–9
overlapping 10–12
 INDEX | 589

principal human rights treaties 9–10 U

ratification 24 Uganda 183–4
reservations from 69–81 United Kingdom
case study: CEDAW 52–3 corporal punishment of children in 18
cultural sensitivity and 52 derogations from treaties by 87–9
effect of reservations 72–6 lawyers and human rights in 279
Genocide Convention 71–2 terrorism suspect detention 417–19
ICCPR and 76–7 women’s rights in 513
ICJ’s approach to 71–2 United Nations 99–113
nature and scope 70–1 Commission on the Status of Women 105
UN pressure to remove reservations 81 Committee Against Torture 204, 213,
World Conference on Women 77–81 328–9
rights and obligations contained 24 Committee on the Elimination of
signature and ratification 6 Discrimination against Women 197,
subsequent amendments 9 534
Treaty Monitoring Bodies 191–220 Committee on the Elimination of Racial
administrative, secretarial and research Discrimination 201, 203, 230, 249
support 196–7 Committee on the Rights of the Child 15,
creation of committees 192–6 19, 67, 68, 215
General Comments 214–17 Economic and Social Council (ECOSOC)
independent enquiries by committees 103–7
213–14 Committee on Economic, Social and
individual communications 207–13 Cultural Rights 195, 214, 231, 256
inter-state complaints 204–7 Education, Scientific and Cultural
non-governmental organisations (NGOs) Organisation (UNESCO) 165–9
and 249 General Assembly 101–3
on-site visits 217–20 Declarations 16
powers of committees 197 Global Compact (1999) 275
remedies for individuals 230–7 guiding principles on business and human
reports by states 197–204 rights 251–4
universal human rights and 66–9 High Commissioner for Human Rights
critical viewpoint 66–7 196–7, 250
position of Convention on the Rights of High Commissioner for Refugees 491–2
the Child 68–9 Human Rights Committee 191, 192–4,
UN support of universalism 67–8 197
when they become legally binding 7–8 declarations 66
Trial derogations from treaties and 85–6
detention pending trial 414–18 reservations from treaties and 70–1,
fair trial right 423–34 72–4
access to court 426–9 Human Rights Council 107–13, 150–65
independent and fair judiciary 429–33 complaint procedure 155–9
trial in absentia 433–4 special sessions 159–61
tribal populations see indigenous peoples thematic and country rapporteurs 161–5
Trinidad & Tobago universal periodic review 150
denunciation of treaties by 95–6 purpose 99–101
truth-finding initiatives 184 Security Council 170–4
Turkey structure 101
derogation from treaties by 90–2 Sub-Commission on the Protection and
minority protection in 35–7 Promotion of Human Rights 111
Turpel, M. 371, 376 support of universalism 67–8
Treaty Monitoring Bodies 191–220
590 | INDEX

administrative, secretarial and research women 503–52

support 196–7 discrimination against 38
creation of committees 192–6 Committee on the Elimination of
General Comments 214–17 Discrimination against Women (UN)
independent enquiries by committees 197, 534
213–14 employment 251
individual communications 207–13 Islamic states 52
inter-state complaints 204–7 equality 506–21
non-governmental organisations (NGOs) affirmative action/positive discrimination
and 249 515–19
on-site visits 217–20 case study: women and political
powers of committees 197 participation 519–21
reports by states 197–204 litigating the right 508–13
United States of America non-discrimination principle 507–8
business organisations 251 towards equality of rights between men
human rights treaties and and women 514–15
Convention on the Rights of the Child genital mutilation 43–4
15–16 International Labour Organisation and
indigenous peoples 389–91 504–6
Inter-American Commission on Human maternity protection 505–6
Rights and 184–7 Mauritius 511–12
terrorism suspect detention 417–18 monitoring progress towards Beijing goals
Universality 30–40 522–4
change in emphasis: universal rights 37 Peru 510–11
developing sectoral and group rights 37–40 political participation 520
minority protection 34 protection from exploitation 524–30
non-discrimination in application of human regional approaches to women’s rights
rights 34 549–51
treaties and 66–9 reproductive rights 547–9
critical viewpoint 66–7 sexual exploitation 526
position of Convention on the Rights of tabulating women’s rights 521–4
the Child 68–9 trafficking 524–30
return to minority rights 37 United Kingdom 513
UN support of universalism 67–8 violence against 530–44
Unocal 288–90 Beijing Platform for Action 514–15
Myanmar, and 258–9 communication 534–6
Uruguay European agenda 540–1
torture in 232 regional provision in Americas 537–40
V UN investigations 541–4
Van Beuren, G. 301 World Health Organisation Report
Van der Mei, A. 228 543–4
violence against women 530–44 see also family rights
Beijing Platform for Action 514–15 World Conference against Racism (2001)
European agenda 540–1 248
regional provision in Americas 537–40 World Health Organisation 543
UN investigations 541–4 Y
World Health Organisation Report 543–4 Yugoslavia
virtual libraries 26, 27 genocide in 170
W international tribunal for 176
war see conflict situations
Z
water
Zimbabwe 156
right to clean water 61