Human Rights

C O U R S E AU T H O R

Jessica C. Lawrence, J.D.

U P E AC E C O U R S E C O O R D I N ATO R

Dina Rodríguez, MEd.

S E R I E S E D I TO R

Harvey J. Langholtz, Ph.D.

Human Rights

C O U R S E AU T H O R

Jessica C. Lawrence, J.D.

U P E AC E C O U R S E C O O R D I N ATO R

Dina Rodríguez, MEd.

S E R I E S E D I TO R

Harvey J. Langholtz, Ph.D.

© 2012 Peace Operations Training Institute. All rights reserved.

Peace Operations Training Institute

1309 Jamestown Road, Suite 202
Williamsburg, VA 23185 USA
www.peaceopstraining.org

First edition: February 2012

Cover: UN Photo #428063 by Olivier Chassot

The material contained herein does not necessarily reflect the views of the Peace Operations Training Institute, the Course
Author(s), or any United Nations organs or affiliated organizations. Although every effort has been made to verify the
contents of this course, the Peace Operations Training Institute and the Course Author(s) disclaim any and all responsibility
for facts and opinions contained in the text, which have been assimilated largely from open media and other independent
sources. This course was written to be a pedagogical and teaching document, consistent with existing UN policy and
doctrine, but this course does not establish or promulgate doctrine. Only officially vetted and approved UN documents may
establish or promulgate UN policy or doctrine. Information with diametrically opposing views is sometimes provided on given
topics, in order to stimulate scholarly interest, and is in keeping with the norms of pure and free academic pursuit.
 Human Rights

FOREWORD. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii

METHOD OF STUDY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii

LESSON 1: HISTORY AND PHILOSOPHICAL FOUNDATIONS OF

HUMAN RIGHTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
1.1 Human Rights: Conceptual and Philosophical Foundations. . . . . . . . . . . 11
1.2 Human Rights Before World War II. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
1.3 The Universal Declaration and the Age of Norm-Setting
and Codification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Annex A: Universal Declaration of Human Rights. . . . . . . . . . . . . . . . . . . . . . . . . 25

LESSON 2: DEVELOPING LEGALLY BINDING HUMAN RIGHTS

TREATIES I: THE ICCPR. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
2.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
2.2 The International Covenant on Civil and Political Rights (ICCPR) . . . . . . 37
2.3 Other Instruments dealing with Civil and Political Rights. . . . . . . . . . . . . 44
. . . . . . . . . . . . . . . 47
Annex A: International Covenant on Civil and Political Rights

LESSON 3: DEVELOPING LEGALLY BINDING HUMAN RIGHTS

TREATIES II: THE ICESCR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
3.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
3.2 Economic, Social, and Cultural Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
3.3 Other Instruments dealing with Economic, Social, and Cultural Rights. . . 68
3.4 Theoretical and Practical Issues. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Annex A: International Covenant on Economic, Social, and Cultural Rights. . . . . 73
LESSON 4: ENFORCEMENT MECHANISMS I: THE UN SYSTEM. . . . 83
4.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
4.2 Charter Bodies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
4.3 Treaty Bodies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95

LESSON 5: ENFORCEMENT MECHANISMS II: REGIONAL

AND OTHER ACTORS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
5.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
5.2 The European System. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
5.3 The Inter-American System. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
5.4 The African System. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
5.5 Other Regional Efforts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
5.6 Other Actors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120

LESSON 6: COLLECTIVE RIGHTS I: THEORETICAL PERSPECTIVES

AND THE RIGHT TO SELF-DETERMINATION. . . . . . . . . . . . . . . . . . . 127
6.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199
6.2 Theoretical Perspectives. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
6.3 The Right to Self-Determination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133

LESSON 7: COLLECTIVE RIGHTS II: THE RIGHTS TO DEVELOPMENT,

ENVIRONMENT, AND PEACE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143
7.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145
7.2 The Right to Development . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145
7.3 The Right to a Healthy Environment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
7.4 The Right to Peace . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157

LESSON 8: HUMAN RIGHTS OF VULNERABLE PERSONS AND

GROUPS I: WOMEN’S RIGHTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165
8.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167
8.2 Theoretical Perspectives. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168
8.3 Women’s Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
Annex A: Convention on the Elimination of All Forms of Discrimination
Against Women. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182
LESSON 9: HUMAN RIGHTS OF VULNERABLE PERSONS AND
GROUPS II: CHILDREN’S RIGHTS AND THE RIGHTS OF PERSONS
WITH DISABILITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193
9.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195
9.2 Children’s Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195
9.3 The Rights of Persons with Disabilities. . . . . . . . . . . . . . . . . . . . . . . . . . 201
Annex A: Convention on the Rights of Persons with Disabilities. . . . . . . . . . . . . 208

LESSON 10: HUMAN RIGHTS OF VULNERABLE PERSONS AND

GROUPS III: THE RIGHTS OF MINORITIES, INDIGENOUS PEOPLES,
AND REFUGEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217
10.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219
10.2 The Rights of Ethnic, Religious, and Linguistic Minorities. . . . . . . . . . . . 219
10.3 Indigenous Peoples’ Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224
10.4 The Protection of Refugees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229

LESSON 11: HUMAN RIGHTS DURING ARMED CONFLICT I: .

JUS AD BELLUM AND THE RESPONSIBILITY TO PROTECT. . . . . . . 239
11.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 241
11.2 Jus ad Bellum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 244

LESSON 12: HUMAN RIGHTS DURING ARMED CONFLICT II:

INTERNATIONAL HUMANITARIAN LAW. . . . . . . . . . . . . . . . . . . . . . . 257
12.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259
12.2 International Humanitarian Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259
12. 3 Law and War. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 269

LESSON 13: HUMAN RIGHTS DURING ARMED CONFLICT III:

INTERNATIONAL CRIMINAL LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . 275
13.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 277
13.2 International Criminal Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 277
Annex A: Rome Statute of the International Criminal Court . . . . . . . . . . . . . . . . 290
LESSON 14: CONTEMPORARY DEBATES ON HUMAN RIGHTS I: .
NON-STATE ACTORS AND TERRORISM. . . . . . . . . . . . . . . . . . . . . . . 305
14.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 307
14.2 Non-State Actors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 308
14.3 Human Rights and Terrorism. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 316

LESSON 15: CONTEMPORARY DEBATES ON HUMAN RIGHTS II:

LGBT RIGHTS, TECHNOLOGY, AND EFFECTIVENESS. . . . . . . . . . . 327
15.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 329
15.2 LGBT Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 329
15.3 Human Rights and Technology. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 334
15.4 Effectiveness. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 343

APPENDIX A: TABLE OF ACRONYMS. . . . . . . . . . . . . . . . . . . . . . . . . 349

APPENDIX B: LIST OF UN PEACEKEEPING OPERATIONS . . . . . . . 352

END-OF-COURSE EXAM INSTRUCTIONS. . . . . . . . . . . . . . . . . . . . . . 355

ABOUT THE AUTHOR. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 356

Foreword

Over a mere 60 years, the international human rights system has become an important part of the
legal, moral, and political landscape. Human rights talk is everywhere: it is the language we use to
express our needs, our desires, and what we see as our entitlements. It provides a way for us to think
about tragic events, a lens through which to view and critique our society, and a set of aspirations
that make up the core of liberal ideology.

This course is intended to be a short guide through the “babble of international instruments”
that make up the text of human rights theory and practice.1 We will cover the main international
legal events, a little history, a little philosophy, and examine the ways in which human rights have
and have not been used for the protection of individuals and groups. We will focus primarily on
international materials, but will also look at some regional practice. Domestic systems of human
rights protection, despite their importance, will not be covered here.

Along the way, we will explore multiple perspectives on human rights (liberal, feminist,
post-colonial), and ask critical questions about how the international human rights movement has
articulated and pursued its goals.

Throughout the course, students are encouraged to think of themselves “not as novices within an
established, even frozen framework of ideas and institutions, but rather as moulders and architects
of the movement’s ongoing development.”2

The international system for the protection of human rights continues to grow and change, and
there are important new developments every year. As such, it is important that students take the
initiative to keep up with their research, and seek to use the background and critical thinking skills
that they gain in this course to analyse events in the coming years.

Jessica C. Lawrence
February 2012

1 Patrick Thornberry, “An Unfinished Story of Minority Rights”, in Diversity in Action, A.M. Bíró and P. Kovács, eds.
(Budapest, Central European University Press, 2001), p. 47.
2 Henry J. Steiner, Philip Alston, and Ryan Goodman, International Human Rights in Context: Law, Politics, Morals
(Third Edition) (Oxford, Oxford University Press, 2007), preface.

To view a video introduction of this course by

the course author Jessica C. Lawrence, you can
either log in to your virtual classroom, go to www.
peaceopstraining.org/users/media_page/373/
introduction, or use your mobile device to scan the
QR code to the left.

HUMAN RIGHTS | vii

Method of Study

The following are suggestions for how to proceed with this course. Though the student may have alternate
approaches that are effective, the following hints have worked for many.

• Before you begin actual studies, first browse
through the overall course material. Notice the
lesson outlines, which give you an idea of what
will be involved as you proceed.
• The material should be logical and
straightforward. Instead of memorizing
individual details, strive to understand concepts
and overall perspectives in regard to the United
Nations system.
• Set up guidelines regarding how you want to
schedule your time.
• Study the lesson content and the learning
objectives. At the beginning of each lesson,
orient yourself to the main points. If you are able
to, read the material twice to ensure maximum
understanding and retention, and let time elapse
between readings.
• When you finish a lesson, take the
End-of-Lesson Quiz. For any error, go back to
the lesson section and re-read it. Before you
go on, be aware of the discrepancy in your
understanding that led to the error.
• After you complete all of the lessons, take time
to review the main points of each lesson. Then,
while the material is fresh in your mind, take the
End-of-Course Examination in one sitting.
• Your exam will be scored, and if you acheive
a passing grade of 75 per cent or higher, you
will be awarded a Certificate of Completion. If
you score below 75 per cent, you will be given
one opportunity to take a second version of the
End-of-Course Examination.
• One note about spelling is in order. This course
was written in English as it is used in the United
Kingdom.

Key features of your course classroom:

• Access to all of your courses;
• A secure testing environment in which to
complete your training;

• Access to additional training resources, including

Multimedia course supplements;

• The ability to download your Certificate of

Completion for any completed course; and

• Student fora where you can communicate with

other students about any number of subjects.

Access your course classroom here:

http://www.peaceopstraining.org/users/user_login

viii | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
LESSON 1
HISTORY AND PHILOSOPHICAL
FOUNDATIONS OF HUMAN RIGHTS
 LESSON
1

LESSON OBJECTIVES
By the end of Lesson 1, the student should be able to meet the following
1.1 Conceptual and objectives:
Philosophical
Foundations
• Define the term “human rights”;
1.2 Human Rights Before
• Discuss the conceptual and philosophical foundations of human rights;
World War II
• Describe the historical background of the international human rights
1.3 The Universal system;
Declaration and the • Discuss the role played by state sovereignty in the history of human
Age of Norm-Setting rights; and
and Codification • Understand which rights are contained in the Universal Declaration of
Human Rights.
Annex A
The Universal
Declaration of Human
Rights

To view a video introduction of this lesson by the

course author Jessica C. Lawrence, you can
either log in to your virtual classroom, go to www.
peaceopstraining.org/users/media_page/374/
lesson-1, or use your mobile device to scan the
QR code to the left.
1.1 Human Rights: Conceptual and
Philosophical Foundations
Introduction
Human rights are discussed everywhere. On any
given day, we read news stories about people
fighting for human rights around the world; we
argue about free speech and religious tolerance;
we make claims about what our governments
should and should not be allowed to do. Human
rights is a language we use to express our needs,
our goals, and what we see as our entitlements. It
provides a way for us to think about tragic events
– a lens through which to view and critique our
society – and is a set of aspirations that make up
the core of liberal ideology. Human rights have
become, in Richard Rorty’s words, “a fact of the
world.”1
But human rights is not just a way of thinking, it is
also a set of legal and political doctrines. These
doctrines limit government power and shape
individual expectations. They privilege certain
behaviors and prohibit others. Their structure
reflects the particular historical context out of
which they evolved, and their contours have
stretched and changed with the shifting landscape
of global society.
In this introductory lesson, we will define human
rights and discuss the evolution of the concept
from its modern origins to the adoption of the
Universal Declaration of Human Rights (UDHR)
in 1948. We will explore how and why the human
rights system developed as it did, and encounter
some alternative perspectives on what it has meant
for various groups of people.
As you read through this lesson, and through the
rest of the course, try to think critically about the
“story” that it tells. Ask yourself:
1 Richard Rorty, “Human Rights, Rationality,
and Sentimentality”, in On Human Rights: The
Oxford Amnesty Lectures 1993, Stephen Shute
and Susan Hurley, eds. (New York, BasicBooks,
1993), p. 134.
HUMAN RIGHTS
• Who gains and who loses?
• Who makes the rules?
• Who and what is left out?
• Could things have happened differently? How?
• Could the story be told in another way?
Definition
The term human rights describes rights or
entitlements that inherently belong to every human
being by virtue of their personhood. Human rights
are the set of fundamental moral rights that are
considered necessary for a life of human dignity,
and are premised on respect for the equality and
autonomy of individuals. Human rights are:
• Universal: they are held by every person,
everywhere, regardless of race, sex, nationality,
religion, language, class, or any other status;
• Inalienable: they cannot be renounced, lost, or
forfeited; and
• Indivisible, interdependent, and interrelated:
they are intrinsically connected and must not be
viewed in isolation from one another.2
All human beings hold human rights equally. In
practice, however, all people may not enjoy the
protection of their rights at all times. For example,
although all persons have a right to be free from
inhuman or degrading treatment, there are people
all over the world who are suffering in overcrowded
and unsanitary prisons, subjected to humiliating
punishment, and tortured. These people have not
lost their rights, but their rights have been violated.
It is important to distinguish between moral rights
and legal rights. Not all things that are desirable,
or “right” in the sense of “good”, are legal human
rights. For example, it would be wonderful if
everyone were given the opportunity to learn to
play a musical instrument. This would be a moral
good, and we may use the language of rights to
2 See: A/CONF.32/41, Proclamation of Teheran,
Final Act of the International Conference on
Human Rights, para. 13; and A/CONF.157/23,
Vienna Declaration and Programme of Action,
para. 5.
| 11
express this desire (a “right” to learn to play), but
there is no legal human right that protects this
desirable good.
Human rights structure relationships between
people and the state, and, indirectly, between one
person and another. Human rights protect the
dignity of human beings against intrusions. They
privilege some actions, and prohibit others. In this
way, they help to define the boundaries between
individual persons and the state, and also between
one individual and another. As Karl E. Klare wrote,
“the human rights project is to erect barriers
between the individual and the State, so as to
protect human autonomy and self-determination
from being violated or crushed by governmental
power.”3
Rights are attached conversely to duties. If a
person has the right to freedom from torture,
then the state has a corresponding duty not to
torture her.
Human rights set rules for behavior that “trump” or
outrank the everyday rules established by political
bodies like state and local governments.4 However,
rights are not absolute. They must be balanced
against one another. For example, suppose Johan
wants to walk across Angela’s lawn to get to a
party. Angela, though, has just planted new grass,
and does not want Johan to walk across it. In
this case, Johan’s right to freedom of movement
must be balanced against Angela’s right to own
and protect her property. This balancing is highly
contextual, and depends to a large extent on the
factors of each specific case (for example, if Johan
were trying to get to the hospital instead of a party,
we might be more sympathetic to his desire to walk
across Angela’s lawn). In addition, governments
may be allowed to infringe on or restrict some
human rights for compelling reasons, or during
periods of emergency.5
3 Karl E. Klare, “Legal Theory and Democratic
Reconstruction: Reflections on 1989”, University
of British Columbia Law Review, vol. 25, No. 97
(1991).
4 Ronald Dworkin, “Rights as Trumps”, in
Theories of Rights, Jeremy Waldron, ed. (Oxford,
Oxford University Press, 1984), p. 153.
5 The ability to limit or derogate from certain
12 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
International human rights law is a set of rules
about how governments must act, or refrain from
acting, in order to protect and promote the rights
and fundamental freedoms of individuals and
groups. It is the formal legal codification of human
rights at the international level.
Under international human rights law, rights:
• Belong to a right-holder (the person who has the
right);
• Have an object (what the right-holder has a right
to); and
• Impose an obligation on an addressee (the
party that is obliged to do or not do something
to provide the right-holder with the object of the
right).6
For example, with respect to “the right to life”,
the right-holders are all individuals, the object
is “life”, and the addressee is the state, which is
responsible for ensuring that the individual’s life is
protected.
Now that we know what human rights are, we
will turn to a second question: Where did human
rights come from? Who made the rules? How did
they become universal obligations that apply to
everyone, everywhere, all the time?
On the Complexity of
Human Rights
“There is no more ambiguous word in legal
and juristic literature than the word right.”
Roscoe Pound
from Volume IV of Jurisprudence
human rights will be discussed in subsequent
lessons (e.g., Lessons 2, 3, and 12).
6 James W. Nickel and David A. Reidy,
“Philosophical Foundations of Human Rights”, in
International Human Rights Law, Daniel Moeckli et
al., eds. (Oxford, Oxford University Press, 2009),
pp. 39–63.
Philosophical Foundations
While the human rights norms – rules, standards,
and principles – that we speak of today are modern
creations, their philosophical origins can be
traced back all the way back to ancient Greece,
and some say even further.7 An oft-used starting
point is Sophocles’s Antigone, which was written
in the fifth century B.C. In that play, Antigone’s
brother has been killed while traitorously fighting
against her kingdom. The king tells Antigone that
her brother must remain unburied as punishment
for his treachery, but she defies the commands of
her king, and claims the right to give her brother a
proper funeral:
Your edict, King, was strong,
But all your strength is weakness itself against
The immortal unrecorded laws of God.
They are not merely now: they were, and shall be,
Operative forever, beyond man utterly.8
Antigone’s argument is significant because it
appeals to a natural law – a law of the gods or
of nature – that must prevail over the orders of
the king. This natural law addresses all people
everywhere, and trumps all man-made rules
and customs.
The idea of natural law persisted through the
next several centuries, waxing and waning in
importance with the changing political times.
During the European Enlightenment of the
seventeenth and eighteenth centuries, however,
it assumed a central role. The ideas of rights
and constitutionalism that infused the philosophies
of Locke, Montesquieu, and Rousseau drew
heavily on this idea of a natural law that
protected individual rights against the whims
of the sovereign.
7 For an excellent selection of early secular and
religious writings on liberty, tolerance, and codes
of justice, see Micheline Ishay’s The Human Rights
Reader (2007).
8 Sophocles, “Antigone”, in The Oedipus Cycle:
An English Version, Dudley Fitts and Robert
Fitzgerald, trans. (New York, Harcourt, Brace &
World, 1949).
HUMAN RIGHTS
This new liberal Enlightenment philosophy inspired
a number of national movements that sought to
enforce the rights of individuals against the power
of the state: the Glorious Revolution in England,
the establishment of a constitutional government
in the United States, and the French Declaration
of the Rights of Man and of the Citizen are all
examples of Enlightenment-inspired movements.
Documents like the American Declaration of
Independence and Bill of Rights, the French
Declaration of the Rights of Man and of the Citizen,
and the national constitutions of Mexico9 and Gran
Colombia10 placed individual rights at the center of
the political order, establishing that each person
has inalienable natural rights and that the primary
purpose of a government is to secure those rights
for its people.
Today, our idea of human rights is still tied to the
ideas of natural law and liberal individualism.
“Human rights” is premised on the notion that there
are certain limits to government power based on a
set of higher principles that protect the individual.
Modern philosophers disagree, however, about
where these natural laws came from, how they
were discovered, and whether they are really “law”
or just a set of pragmatic principles by which we
have all agreed to abide. In other words, there is
a lot of disagreement about why we have rights.
Different theorists locate the origins or moral
foundations of human rights in:
• God: the equal creation of human beings by
God;
• Nature: the equal creation of human beings in
nature;
• Human dignity: the protection of individuals
from threats to their dignity;11
• Human agency: the protection of human beings
as purposive moral agents;12
9 The Political Constitution of the Mexican United
States (1824).
10 Constitution of Cúcuta (1821).
11 See: Jack Donnelly, Universal Human Rights in
Theory and Practice (1989).
12 See: James Griffin, On Human Rights (2008),
pp. 33–56; and Alan Gerwith, Human Rights
(1983).
| 13
• Human needs: the protection of those things
that human beings need to survive; or
• Collective prosperity: the need for all people
to follow certain rules in order to prosper as a
group.13
None of these foundations has ever been
universally accepted across all cultures. This
inexhaustive list of moral groundings ranges
widely across the philosophical spectrum, and
even people from similar philosophical traditions
disagree strongly about which of these foundations
should serve as the basis for human rights.
Jeremy Bentham, for example, famously rejected
the idea that rights were grounded in natural
law in favour of a pragmatic utilitarian vision:
“Natural rights is simple nonsense: natural and
imprescriptible rights, rhetorical nonsense –
nonsense upon stilts.”14
Disagreements about the moral foundations
of human rights are important because these
foundations can have an impact on both the scope
of human rights and its claims to universality.
These disagreements can lead to conflict about the
scope or content of human rights. For example, if
“human rights” means “things that human beings
need to survive”, then protecting a “right to culture”
might seem superfluous. However, if “human
rights” means “the things people need to prosper”,
then the “right to culture” becomes much more
fundamental.
The lack of a consensus with respect to the
moral foundations of human rights also calls
the universality of human rights into question.
Because the current system of international
human rights law grew out of Western European
Enlightenment philosophy, some people argue
that human rights is a Eurocentric idea that
is biased against non-Western countries and
cultures. These “cultural relativists” believe that
far from being universal, liberal individualism and
human rights are philosophies drawn exclusively
13 See: John Rawls, The Law of Peoples (1999).
14 Jeremy Bentham, “Anarchical Fallacies”,
in Nonsense Upon Stilts: Bentham, Burke and
Marx on the Rights of Man, Jeremy Waldron, ed.
(London, Methuen Publishing, 1987), p. 53.
14 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
from the European experience. They argue that
human rights doctrine ignores alternative forms of
knowledge, such as those developed by collectivist
or hierarchical cultures, and question why some
rights, but not others, have been included in
international human rights law. Others see human
rights as a means for capitalist states to paper over
the dark side of liberal individualism and hide the
reality of class struggle behind a false screen of
egalitarianism.
Agreement on a single moral foundation, however,
is not necessarily indispensable for the practice
and application of human rights. Indeed, many
scholars argue that having plural groundings
actually makes the system more legitimate by
allowing it to appeal to a broader range of
groups than insistence on a single foundation
would permit.15
Foundations of Human Rights
“People may not agree why we have rights,
but they can agree that they need them.”
Michael Ignatieff
from Human Rights as Politics and Idolatry (2003)
One thing is certain: whether their foundations
are single or plural, questionable or not, human
rights are now indisputably a global political
phenomenon. States all over the world, from the
most democratic to the most oppressive, feel
compelled to express their support for human
rights, and many incorporate human rights
principles as integral parts of their national
ideologies. As scholar John Tasioulas notes:
“discourse of human rights in recent times
[has been elevated] to the status of an ethical
lingua franca.”16
15 Michael Ignatieff, Human Rights as Politics and
Idolatry, Amy Gutmann, ed. (Princeton, Princeton
University Press, 2003).
16 John Tasioulas, “The Moral Reality of Human
Rights,” in Freedom from Poverty As a Human
Right: Who Owes What to the Very Poor? Thomas
Pogge, ed. (Oxford, Oxford University Press, 2007),
How, though, did this concept of individual rights
move from the national to the international sphere?
How and when did it become the responsibility
of the international community to ensure the
protection of individual human rights?
1.2 Human Rights Before World
War II
Human Rights, the State, and International Law
The history of human rights is inextricably bound
up with the history of the modern state. On the one
hand, the state is the organization best suited to,
and primarily responsible for, protecting the human
rights and fundamental freedoms of its citizens.
Indeed, protections for individual freedoms were
first introduced and codified in the context of the
state. On the other hand, states have often been
the perpetrators of human rights abuses, and are
frequently the very organizations against which
individual rights must be protected.
Human rights mediate this distinction between the
state as protector and the state as abuser. They set
the boundary between legitimate and illegitimate
intrusions by the state on individual dignity and
autonomy, drawing the line between acceptable
and unacceptable exercises of state power. In
other words, they are a way for individuals to
enforce their own power against their government
and its laws and actions.
In an open society with an established and
independent judiciary system, individuals can
enforce their human rights against the state by
bringing claims before national courts. The court
hears the case and makes a judgment on whether
the state’s action was permissible or not. This
judgment is then enforceable against the state
p. 75. See also: Jürgen Habermas, Religion and
Rationality: Essays on Reason, God, and Modernity,
Eduardo Menieta, ed. (Cambridge, The MIT Press,
2002), p. 153–4.: “Notwithstanding their European
origins, … in Asia, Africa, and South America,
[human rights now] constitute the only language
in which the opponents and victims of murderous
regimes and civil wars can raise their voices against
violence, repression, and persecution, against
injuries to their human dignity.”
HUMAN RIGHTS
and the individual. For example, if the state of
Arcadia imposes a law that prevents blonde-haired
people from voting, those affected can bring a case
against the government in Arcadia’s courts, and
get a judgment saying that they must be allowed to
vote. The police of Arcadia would then be obliged
to enforce this ruling.
Unfortunately, not every country has strong police
and judiciary systems. Laws may be unclear
or inadequate; police and judges may lack the
resources to act; officials may demand bribes
before proceedings can begin; or the courts
may not be independent from the legislative and
executive branches of government. Even when the
police and judiciary are strong, state governments
may ignore their responsibility to protect the human
rights of individuals. When this happens, how can
human rights be enforced?
One way is through intervention by other states or
by the international community under the aegis of
international law.
Traditionally, international law was defined as the
law that governed relations between and among
sovereign states. Sovereignty, in this context,
referred to the idea that states are autonomous
political units that recognize no higher authority.
Under this system, sovereign states had total
control of what happened within their borders, and
other states had an obligation not to intervene
in their domestic affairs (known as the principle
of nonintervention). The states imagined by this
system are sometimes compared to billiard balls:
solid, opaque and impenetrable spheres that
interact with one another only as unified wholes.
This international order based on the principles of
sovereignty and nonintervention is known as the
Westphalian system, because many scholars trace
its origins to the 1648 Peace of Westphalia, which
ended the Thirty Years’ War in Europe.
The “Billiard Ball” Model:
State B
State A State C
| 15
Under this system of state sovereignty, only states,
not individuals, could be the subjects of, or the
right-holders under, international law. Individuals
existed only as objects of international law: any
obligations owed to them were deemed to be
obligations to their state of nationality. A state
could bring a claim against another state on behalf
of its own mistreated citizens, but these claims
were made under the legal theory that an injury
done to a citizen of a state was an injury done to
that state, not under any theory of direct protection
of individuals. How a state treated its own nationals
or stateless persons was neither the business of
international law nor of other states. The veil of
sovereignty was largely impermeable. Under this
system, human rights were a domestic political
matter, and the international community had no
right to intervene. As one scholar put it:
Until World War II, most legal scholars and
governments affirmed the general proposition,
albeit not in so many words, that international law
did not impede the natural right of each equal
sovereign to be monstrous to his or her subjects.17
It may seem surprising that it was only very
recently that international law began to apply to
individuals as well as to states, and that human
rights became a subject of international concern
and regulation. In fact, there were exceptions to the
hard-and-fast rule of state sovereignty that gave
nations total control within their borders. These
exceptions, though, were limited by the nature of
the system of sovereign states to a very narrow
range of issues that could be said to “directly
concern” foreign states in the sense of infringing on
their political or economic interests.
International human rights law represented a
major change from this traditional pattern. In the
eighteenth and nineteenth centuries, concern
for the rights of individuals and groups began to
appear in international law, and states began to
acknowledge that certain human rights situations
were legitimate targets for international action.
17 Tom J. Farer and Felice Gaer, “The UN and
Human Rights: At the End of the Beginning”, in
United Nations, Divided World (Second Edition),
Adam Roberts and Benedict Kingsbury, eds.
(Oxford, Oxford University Press, 1993), p. 240.
16 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
One of the earliest human rights movements was
the effort to abolish the slave trade, and later the
holding of slaves, in Europe and the Americas.
Beginning with the 1815 Congress of Vienna, the
major powers of Europe18 worked together to draft
treaties that called for an end to the international
slave trade. Even with respect to slavery, however,
the early treaties dealt only with the international
trade of slaves – that is, the transportation of
slaves between states – and not with slavery per
se, or the treatment of slaves within states. It would
take more than a hundred years before a major
international treaty abolished slavery altogether.19
Modern international human rights law is
grounded in a number of historical legal doctrines
and institutions dating from the period before
World War II. In particular, early international
laws governing the protection of minorities,
state responsibility for injuries to aliens, and
humanitarian intervention formed the backbone of
pre-WWII international human rights practice.
Protection of Minorities and the League of
Nations
Some of the earliest international human rights
treaties were designed to protect minority rights.
For example, following the “liberation” of the
Balkans from Turkish domination in nineteenth
century, nations signed international agreements
to protect Christian minorities in the Ottoman
Empire.20 These treaties were selective in their
application and, some have argued, could be said
to have imperialistic rather than altruistic aims.
Nevertheless, they represented an internation-
alization of certain human rights issues, allowing
states to intervene in other states’ affairs on behalf
of protected populations.
18 The “Great Powers” of Europe at the time were
Austria, France, Russia, the United Kingdom, and
Prussia.
19 Paul Gordon Lauren, The Evolution of
International Human Rights: Visions Seen
(Philadelphia, University of Pennsylvania Press,
2003), pp. 37–45.
20 These agreements included the Treaty of Paris
(30 March 1856) and the Treaty of Berlin (13 July
1878).

The medallion of the British Society for Abolition of the
Slave Trade. (Source: Josiah Wedgwood, 1795)
Following World War I there was renewed interest
in protecting the rights of minorities. In his
“Fourteen Points” and elsewhere, then-United
States President Woodrow Wilson stressed the
ideals of freeing minorities and self-determination
of peoples as key components of liberal
nationalism. He went so far as to propose the
inclusion of generalized norms of minority
protection in the 1920 Covenant of the League
of Nations, but the other major powers rejected
this approach. 21 In the end, the Covenant of the
League of Nations did not include any general
provisions on human rights. It did, however,
contain two articles establishing protections for
certain groups:
• Article 22 transformed colonies held by states
that lost World War I into “League Mandates”
to be administered by the victorious powers
pursuant to “the principle that the well-being and
development of [native] peoples form a sacred
trust of civilisation … ”
21 Henry J. Steiner, Philip Alston, and Ryan
Goodman, International Human Rights in Context:
Law, Politics, Morals (Third Edition) (Oxford,
Oxford University Press, 2007), p. 98.
HUMAN RIGHTS
• Article 23 obliged states, amongst other things,
to “endeavour to secure and maintain fair and
humane conditions of labour for men, women,
and children, both in their own countries and
in all countries to which their commercial and
industrial relations extend.” It also called for the
establishment of an international organization
to promote this objective, which led to the
establishment of the International Labour Office
(now the International Labour Organization).
In addition to these two articles, the League of
Nations served as guarantor for the system of
so-called Minorities Treaties that were imposed
on the states of Central and Eastern Europe.
This “minorities system” was established by a
series of post-World War I treaties that included
provisions for the protection of ethnic and religious
minorities.22 Under these treaties, nations agreed
not to discriminate against protected minorities,
and also to grant certain special protections
necessary for the preservation of minority religious,
ethnic and linguistic traditions. The League of
Nations helped to ensure compliance with these
provisions by developing a system for reviewing
petitions alleging violations of minority rights.
According to this system, a Committee of Three of
the League Council would hear the petition as well
as arguments by the states, and give its opinion on
the complaint.
This early protection of group rights was a
significant development.23 Though it faded
quickly and was ultimately incapable of halting
the tragic events of World War II, it represented
a clear incursion on the state’s absolute internal
control over its citizens.24 These advances were
not made in a purely altruistic spirit, nor did they
represent a complete shift from the earlier phase
of intervention only on the grounds of potential
damage to a state’s political or economic interest.
In fact, minority rights were promoted by the
victorious states following World War I largely as
a strategy to preserve international peace, and
22 Treaty of Versailles, 28 June 1919.
23 For more on group rights, see Lessons 6 and 7
on “collective” rights and Lesson 10 on the rights of
minorities.
24 Henry J. Steiner, Philip Alston, and Ryan
Goodman, p. 106.
| 17
were enforced only within the borders of recently
defeated or newly created nation-states, not
within the territories or colonies of the victors.
Nevertheless, they formed one of the early pillars
of human rights law, and one that paved the way
for innovations to come.
State Responsibility for Injuries to Aliens
As noted in Section 1.2, while individuals were
not directly granted any rights under international
law, states could bring claims against other states
on behalf of their own nationals. When and how
states could do this was governed by the doctrine
of state responsibility for injuries to aliens.
Basically, the doctrine applied in situations where
a citizen of state X was directly injured by the
government of state Y – if state Y, for example,
imprisoned the foreign citizen without a trial,
or seized her property without due process or
adequate compensation. After suffering such
an injury in contravention of so-called “minimum
standards of treatment”, under international law,
the citizen of state X would first be required to
exhaust local remedies by bringing suit in the
courts of state Y, and then, if the courts of state
Y were unavailable or refused to help, the citizen
of state X could turn to international law and ask
for the diplomatic protection of state X. At that
point, the dispute would be transformed into a
dispute between states X and Y. It remained up
to state X, however, to decide whether or not and
to what extent it would intervene. Depending on
the circumstances, it could commence informal
talks with state Y; make a formal diplomatic
protest; exert economic, political, or even military
pressure against state Y; bring the case before an
international tribunal; or do nothing.25
The doctrine of state responsibility grew out of a
number of different channels, including diplomatic
protests, arbitral decisions, inter-state negotiations,
and scholarly writings. It reflected the increasing
identification of the individual with the state and
the rise of the age of nationalism. It was also
partially a product of Western colonialism and
imperialism, and the desire to protect the corporate
and individual nationals of Western states against
25 Ibid., pp. 86–7.
18 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
actions taken by Third World or developing
states.26 Nevertheless, it represented an important
step in the creation of an international norm that
individuals should enjoy some basic protection of
their rights irrespective of their national origin.
International Humanitarian Law
International humanitarian law (IHL), known as jus
in bello or “law of war”, governs the protection of
rights during armed conflict (not to be confused
with jus ad bellum, the law that governs whether
a given war is just, or legally begun). This branch
of international law developed out of states’ desire
to reduce the horrors of war for their own citizens.
Modern international humanitarian law stretches
back to the First Geneva Convention of 1864: the
Convention for the Amelioration of the Condition
of the Wounded in Armies in the Field.27 Adopted
as part of the establishment of the International
Committee of the Red Cross (ICRC), this
Convention sought to protect medical personnel,
hospital installations, non-combatants giving aid to
the wounded, and sick and wounded combatants
during combat situations.
After the adoption of the First Geneva Convention,
nations came together on a frequent basis to codify
the laws of war in international treaties. Several
more humanitarian law conventions with human
rights aspects were agreed upon prior to World
War II. For example, the Hague Convention III of
1899 established humanitarian rules during naval
warfare,28 and the 1929 Geneva Convention set
rules for the treatment of prisoners of war.29 We
will return to the topic of international humanitarian
26 Ibid., pp. 87–8.
27 The full Convention for the Amelioration of
the Condition of the Wounded in Armies of the
Field can be found at <http://www.icrc.org/ihl.nsf/
FULL/120?OpenDocument>.
28 The full Convention (III) for the Adaptation
to Maritime Warfare of the Principles of
the Geneva Convention of 22 August 1864
can be found at <http://www.icrc.org/ihl.nsf/
FULL/155?OpenDocument>.
29 The text of the Convention relative
to the Treatment of Prisoners of War can
be found at <http://www.icrc.org/ ihl.nsf/
FULL/305?OpenDocument>.
law and discuss the four Geneva Conventions of
1949 and other post-World War II IHL instruments
in Lesson 12.
Even these humanitarian treaties, however,
failed to pierce the veil of state sovereignty. None
addressed the relationship between a state and its
own citizens, or provided protections against acts
of the home state during times of war.
As evidenced by all of these treaties, the idea that
the rights of persons could be protected under
international law was gradually gaining favour
and becoming an established principle. The
majority of nations, however, had still not accepted
the idea of generally applicable international
guarantees on human rights, and the sovereignty
of states continued to be the guiding principle of
international law. Human rights remained, for the
most part, a domestic concern.
1.3 The Universal Declaration
and the Age of Norm-Setting and
Codification
World War II and the UN Charter
The Holocaust was the catalyzing event that sparked
the modern human rights movement and indelibly
altered the relationship between the individual, the
state, and international law. During World War II,
millions of civilians were imprisoned and murdered
by the Nazi regime on the basis of their religion,
ethnicity, political affiliation, disability, or sexual
orientation. Six million Jews, half a million Gypsies,
and tens of thousands of Communists, homosexuals,
church activists, and others were killed during this
reign of terror. The Allied governments, though they
were the eventual victors, failed to intervene to halt the
genocide or rescue the victims of Nazi death camps
until the war was coming to an end.
Horrified at the barbarism that had taken
place during the war, the Allies established the
Nuremberg and Tokyo War Crimes Tribunals to
prosecute German and Japanese leaders for war
crimes and crimes against peace. The Nuremberg
and Tokyo Trials have been criticized as legally
unjust, because they punished the accused for
HUMAN RIGHTS
wrongs that were moral but not legal crimes at
the time of commission, and as “victor’s justice”
because members of the Allied governments were
never scrutinized by the Tribunal. Nevertheless,
the Trials represented an important step in the
internationalization of human rights law, and
promoted the idea that individuals could be held
legally responsible for violations of international
human rights and humanitarian law – even when
those violations victimized the state’s own people.
After World War II, the international community
came together to form a new international
organization for the primary purpose of maintaining
international peace and security: the United
Nations (UN). It was in the Charter of the United
Nations that the general protection of human
rights was first given formal status as a part of
international law.
The first session of the United Nations General Assembly opened on 10
January 1946 at Central Hall in London, United Kingdom. (UN Photo #71052)
The term “human rights” is mentioned seven times
in the Charter.30 Most importantly, the preamble
sets out the determination of Member States “to
reaffirm faith in fundamental human rights, in the
dignity and worth of the human person, in the
equal rights of men and women of nations large
and small.” Article 1 lists “encouraging respect for
human rights and for fundamental freedoms for
all without distinction as to race, sex, language, or
religion” as one of the UN’s primary purposes.
The affirmation of human rights in the UN Charter
cemented the protection of individual rights as part
of the international agenda. However, the human
30 The Preamble and Arts. 1, 13, 55, 62, 68, and 76.
| 19
 rights guaranteed in the Charter remained vague
and aspirational in tone, and were dwarfed by the
overall emphasis on security issues. Nowhere
does the Charter define human rights, or assign
states any concrete responsibilities with respect to
protecting, enforcing, or otherwise realizing them.
If human rights were to become enforceable legal
obligations, then these norms would need to be
spelled out and codified.31
The Universal Declaration of Human Rights
(UDHR)
Mrs. Eleanor Roosevelt of the United States holding a Declaration of
Human Rights poster in English. (UN Photo #1292, November 1949)
In order to enumerate and codify the content of
human rights, the UN Economic and Social Council
(ECOSOC) established the 1946 Commission
on Human Rights.32 The Commission – whose
members included such distinguished founders
of the human rights movement as René Cassin of
France, Charles Malik of Lebanon, and Eleanor
Roosevelt of the United States – was tasked with
preparing “a preliminary draft International Bill of
Human Rights” that would define the human rights
and fundamental freedoms of all human beings.
31 Henry J. Steiner, Philip Alston, and Ryan
Goodman, p. 115.
32 E/RES/9 (II), 21 June 1946.
20 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
Even at this early stage, the draft International Bill
of Human Rights was controversial. Some states
wanted the draft to take the form of a declaration:
a recommendation by the General Assembly to
UN Member States that would have moral and
political – but no legal – force. Others urged the
Commission to prepare a draft convention: a
legally binding document that would be submitted
to the states for ratification.
Ultimately, the Commission took the former path,
and their Universal Declaration for Human Rights
(UDHR) was adopted by the UN General Assembly
on 10 December 1948, with 48 states voting in
favour and eight abstaining. In commemoration of
this historic event, December 10 is celebrated as
Human Rights Day.
It was in this landmark document that human rights
were first codified at the global level.33 The UDHR
consists of a Preamble and 30 articles defining the
human rights and fundamental freedoms to which
all people are entitled. It begins with the statement
that the “recognition of the inherent dignity and of
the equal and inalienable rights of all members
of the human family is the foundation of freedom,
justice and peace in the world” and that “the advent
of a world in which human beings shall enjoy
freedom of speech and belief and freedom from
fear and want has been proclaimed as the highest
aspiration of the common people.”34 It therefore
calls on all states to “promote respect for these
rights and freedoms and by progressive measures,
national and international, to secure their universal
and effective recognition and observance …”35
 Take a moment now to read through
the UDHR, attached as Annex A.
33 It should be noted that the UDHR was actually
the second international human rights document
to be adopted. The American Declaration on the
Rights and Duties of Man dates from several
months earlier, in April 1948. The American
Declaration, however, applied only in the region of
the Americas, whereas the UDHR was global in
scope. See Lesson 5 for further discussion on the
Inter-American human rights system.
34 UDHR, Preamble.
35 Ibid.
Recall the preceding discussion of the
philosophical foundations of human rights. Article
1 of the UDHR describes the Declaration’s
ideological bases thus:
All human beings are born free and equal in
dignity and rights. They are endowed with
reason and conscience and should act toward
one another in a spirit of brotherhood.36
In this programmatic statement it is possible to
identify a number of different moral groundings of
human rights. The phrases “born free and equal”
and “a spirit of brotherhood” could imply that the
human rights contained in the UDHR stem from
the equal creation of human beings by God, or in
nature. The phrase “equal in dignity and rights”
could imply that human rights have their origin in
the dignity of persons, and the phrase “endowed
with reason and conscience” could signal that
these rights grow out of the agency of persons.
There is something in this statement for persons
from many different philosophical traditions.
36 Ibid., Art. 1.
HUMAN RIGHTS
Writing Exercise 1: Updating the UDHR
You are a member of a UN committee that
is tasked with reviewing the UDHR for the
new millennium. The General Assembly has
asked you to make recommendations on the
continuing relevance of the Declaration and to
suggest changes where you think they may be
necessary.
Consider the following questions and write a
brief report:
• Do any of the rights contained in
the UDHR seem “old-fashioned” or
unnecessary? Is something missing
that you would like to see included in a
revised Declaration?
• What moral foundation are your
recommendations based on? Would
your answer to the previous question
be different if you recognized a different
moral foundation for human rights?
• Do you think that the states would agree
with your proposals? Why or why not?
What might the points of contention be?
Despite this attempt to ground human rights in a
broad range of cultural traditions, there remain
objections from some cultural relativists. Because
of their colonial status, which barred them from
being independent members of the UN, many
African and Asian countries could not participate
in the drafting of the UDHR. Their ideas were
therefore not incorporated into this founding human
rights document. Because of this, as we will see
in Lesson 5, many people have argued that the
UDHR and the international human rights system
that is founded upon it favour individual civil and
political rights over collective solidarity rights, and
that the universal system is therefore not truly
universal at all.
For example, compare the two passages in the box
below, arguing for and against a position that might
be termed “cultural relativist.” What does each
scholar argue? Why? Do you agree?
| 21
 Cultural Relativism: The Debate

“Sanctimonious to a fault, the UDHR underscored its arrogance by proclaiming itself the common standard of
achievement for all peoples and nations. The fact that a half-century later human rights have become a central
norm of global civilization does not vindicate their universality … Non-Western philosophies and traditions
particularly on the nature of man and the purposes of political society were either unrepresented or marginalized
during the early formation of human rights …

“There is no doubt that the current human rights corpus is well-meaning. But that is beside the point … International
human rights fall within the historical continuum of the European colonial project in which whites pose as saviors
of a benighted and savage non-European world. The white human rights zealot joins the unbroken chain that
connects her to the colonial administrator, the Bible-wielding missionary, and the merchant of free enterprise …”

Makau Mutua
from “The Complexity of Universalism in Human Rights” (2004)

“It is sometimes suggested that there can be no fully universal concept of human rights, for it is necessary to take
into account the diverse cultures and political systems of the world. In my view this is a point advanced mostly by
states, and by liberal scholars anxious not to impose the Western view of things on others. It is rarely advanced
by the oppressed, who are only too anxious to benefit from perceived universal standards. The non-universal,
relativist view of human rights is in fact a very state-centered view and loses sight of the fact that human rights are
human rights and not dependent on the fact that states, or groupings of states, may behave differently from each
other so far as their politics, economic policy, and culture are concerned. I believe, profoundly, in the universality
of the human spirit. Individuals everywhere want the same essential things: to have sufficient food and shelter; to
be able to speak freely; to practise their own religion or to abstain from religious belief; to feel that their person is
not threatened by the state; to know that they will not be tortured, or detained without charge, and that, if charged,
they will have a fair trial. I believe there is nothing in these aspirations that is dependent upon culture, or religion,
or stage of development. They are as keenly felt by the African tribesman as by the European city dweller, by the
inhabitant of a Latin American shanty-town as by the resident of a Manhattan apartment.”

Rosalyn Higgins
from Problems & Progress: International Law and How We Use It (1994)

The UDHR is classifiable as a “recommendation”,
and therefore lacks legal enforceability (although
many argue that over time it has become, at least
in part, enforceable as customary international
law). In fact, Professor Michael Ignatieff has
pointed out that the parties to the UDHR “never
actually believed that it would constrain their
behavior” since it “lacked any enforcement
mechanism,” such as a court that could impose
penalties on violators.
Despite the fact that declarations by the UN
General Assembly are non-binding, however, they
can have great moral and persuasive force. The
UDHR established a common understanding of the
human rights and fundamental freedoms referred
to in the UN Charter. In principle, it signified that
the relationship between states and individuals
was no longer a matter of purely domestic law,
absolutely exempt by interference from third states
or the institutions of the international community.
It represented a major break with the Westphalian
system: from now on, it would be hard for states
to argue that the sovereign had the right to be
“monstrous to his or her subjects.”37
37 Tom J. Farer and Felice Gaer, p. 240.

22 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E

Customary International Law
When we say a something is customary
international law, what does this mean?
Customary law is the general practice of
states that is accepted as law. In order for
something to become a part of customary
international law, there must be evidence of:
• Acts amounting to “settled practice”
of States, which may include:
• National legislation;
• National policy documents;
• Judgments of national courts;
• Actions by state agents
(domestically or internationally);
• Voting patterns in international
organizations (according to
some); and
• Opinio juris, the belief that a practice
is rendered obligatory by the
existence of a rule of law requiring it.
Customary law is binding on all states,
whether or not they express their consent
to be bound, and even in the absence of
individual state practice. The only exception
is for “persistent objectors”: states that
objected to a customary rule during its
formation, and continue voicing their
objection in a persistent manner.
Human Rights in the UDHR
The UDHR contains two broad categories of rights:
• Civil and political rights; and
• Economic, social, and cultural rights.
HUMAN RIGHTS
Civil and political rights are rights that protect the
personal freedoms and civil liberties of individuals.
Most of these are so-called negative rights: rights
that prevent a government from interfering with
individual freedoms (as opposed to requiring a
government to do something to fulfil human rights).
In other words, negative rights are the right to
freedom from something. Civil and political rights
were the first set of rights to be protected within the
state, and have become a standard part of national
constitutions under the classical liberal model. For
this reason, they are also sometimes known as
first-generation rights. The civil and political rights
recognized in the UDHR are contained in Articles 3
through 20. They include:
• The right to life, liberty, and security of person;
• The right to freedom from slavery;
• The right to freedom from torture and cruel,
inhuman or degrading treatment;
• The right not to be subjected to arbitrary arrest,
detention or exile;
• The right to a fair trial by a competent tribunal,
presumption of innocence, and freedom from the
application of ex post facto laws;
• The right to privacy;
• The right to own property;
• The right to freedom of speech, religion, and
assembly; and
• The right to freedom of movement.
Economic, social, and cultural rights are rights that
protect the socio-economic dignity of persons.
Many of these rights are so-called positive rights:
rights that require a government to do something to
fulfil them (as opposed to preventing a government
from interfering with them). In other words, positive
rights are a right to something. Economic, social,
and cultural rights appeared much later than civil
and political rights, and are largely a creation
of the twentieth century. For this reason, they
are sometimes known as second-generation
rights. The economic, social, and cultural rights
recognized in the UDHR are contained in Articles
22 through 27. They include:
| 23
• The right to social security, work, protection
against unemployment, and equal pay;
• The right to rest and leisure;
• The right to an adequate living standard;
• The right to education; and
• The right to participate in the cultural life of the
community.
The split between civil and political rights and
economic, social, and cultural rights was in part
a result of a similar split within the United Nations
itself. During the period after World War II and
for several decades to come, the UN was divided
between a group of Western states, on the one
hand, and socialist states, on the other. The
Western states were keen to restrict the rights
contained in the UDHR to the types of civil and
political rights that had been codified in their national
constitutions over the past century. The socialist
states, by contrast, favoured the inclusion of economic,
social, and cultural rights in the text of the Declaration.
In order to conclude the drafting phase with the
support of both political camps, the UDHR had to be
a compromise between the two positions and thus
included some aspects of both sets of protections.
The divisions between negative and positive rights,
and between first-, second-, and the emerging
third-generation rights (which we will encounter in
later lessons), are quite controversial, and many
people object strongly to dividing up rights into these
categories. While these distinctions can be useful
tools when thinking about human rights, it is important
to remember that they are rough and imprecise, and
leave out many subtleties. Relying too heavily on such
categories can therefore be misleading.
For example, with respect to the distinction between
negative rights and positive rights, it is not entirely
true that negative rights require that a government
refrain from acting, while positive rights require
a government to act. In order for the government
to respect and uphold the human right “to own
property”, for instance, it must not only refrain from
preventing individuals from holding property, but
also establish a complicated system of law that
defines rights and ownership as well as a system of
enforcement that polices and protects the property
rights of citizens.38
38 See: Henry Shue, Basic Rights: Subsistence,
24 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
Similarly, a number of scholars and activists
criticize the distinction between first-, second-, and
third-generation rights because it unfairly implies
a hierarchy of rights. These critics worry that the
distinction creates the impression that civil and
political rights are somehow more important, or
must come prior to, economic, social, and cultural
rights. These issues are important, and we will return
to them in later lessons.
The rights set out in the UDHR are not absolute.
Article 29(2) permits states to limit the rights of citizens
“for the purpose of securing due recognition and
respect for the rights and freedoms of others and of
meeting the just requirements of morality, public order
and the general welfare in a democratic society.”
However, the government is constrained in its ability
to impose limitations on rights by Article 30, which
states that “nothing in this Declaration may be
interpreted as implying for any State, group or
person any right to engage in any activity or to
perform any act aimed at the destruction of any
of the rights and freedoms” proclaimed in the
Declaration. In other words, a government may
limit the rights it affords to its citizens, but only for
the reasons stated, and when the limitation is not
merely a pretext for the denial of rights.
Conclusion
Once the UDHR had defined the content of
international human rights law, the international
community embarked on the effort of translating
the Declaration into legally binding and enforceable
treaties and creating international bodies that could
carry out this enforcement work. This is the subject
of our next several lessons.
Further Reading
Andrew Clapham, Human Rights: A Very Short
Introduction (2007); James Griffin, On Human Rights
(2008); Lynn Hunt, Inventing Human Rights: A History
(2007); Michael Ignatieff, Human Rights as Politics
and Idolatry (2003).
Websites for Further Information
UN website: www.un.org
Affluence, and US Foreign Policy (Second Edition)
(Princeton, Princeton University Press, 1996), p. 52.
Annex A: Universal Declaration of Human Rights

Universal Declaration of Human Rights

PREAMBLE
Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the
human family is the foundation of freedom, justice and peace in the world,

Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged
the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of
speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the
common people,

Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against
tyranny and oppression, that human rights should be protected by the rule of law,

Whereas it is essential to promote the development of friendly relations between nations,

Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental
human rights, in the dignity and worth of the human person and in the equal rights of men and women and
have determined to promote social progress and better standards of life in larger freedom,

Whereas Member States have pledged themselves to achieve, in cooperation with the United Nations, the
promotion of universal respect for and observance of human rights and fundamental freedoms,

Whereas a common understanding of these rights and freedoms is of the greatest importance for the full
realization of this pledge,

Now, therefore,

The General Assembly

Proclaims this Universal Declaration of Human Rights as a common standard of achievement for
all peoples and all nations, to the end that every individual and every organ of society, keeping this
Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights
and freedoms and by progressive measures, national and international, to secure their universal and
effective recognition and observance, both among the peoples of Member States themselves and among
the peoples of territories under their jurisdiction.

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.

Article 2
Everyone is entitled to all the 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.

HUMAN RIGHTS | 25
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.

Article 3
Everyone has the right to life, liberty and security of person.

Article 4
No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their
forms.

Article 5
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Article 6
Everyone has the right to recognition everywhere as a person before the law.

Article 7
All are equal before the law and are entitled without any discrimination to equal protection of the law. All
are entitled to equal protection against any discrimination in violation of this Declaration and against any
incitement to such discrimination.

Article 8
Everyone has the right to an effective remedy by the competent national tribunals for acts violating the
fundamental rights granted him by the constitution or by law.

Article 9
No one shall be subjected to arbitrary arrest, detention or exile.

Article 10
Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in
the determination of his rights and obligations and of any criminal charge against him.

Article 11
(1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty
according to law in a public trial at which he has had all the guarantees necessary for his defence.

(2) No one shall be held guilty of any penal offence on account of any act or omission which did not
constitute a penal 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 the penal offence was
committed.

Article 12
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor
to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such
interference or attacks.

26 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
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 to 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 non-political crimes or
from acts contrary to the purposes and principles of the United Nations.

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.

Article 16
(1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to
marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its
dissolution.

(2) Marriage shall be entered into only with the free and full consent of the intending spouses.

(3) The family is the natural and fundamental group unit of society and is entitled to protection by society
and the State.

Article 17
(1) Everyone has the right to own property alone as well as in association with others.

(2) No one shall be arbitrarily deprived of his property.

Article 18
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to
change his religion or belief, and freedom, either alone or in community with others and in public or
private, to manifest his religion or belief in teaching, practice, worship and observance.

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.

HUMAN RIGHTS | 27
Article 21
(1) Everyone has the right to take part in the government of his country, directly or through freely chosen
representatives.

(2) Everyone has the right to equal access to public service in his country.

(3) The will of the people shall be the basis of the authority of government; this will shall be expressed in
periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret
vote or by equivalent free voting procedures.

Article 22
Everyone, as a member of society, has the right to social security and is entitled to realization, through
national effort and international co-operation and in accordance with the organization and resources
of each State, of the economic, social and cultural rights indispensable for his dignity and the free
development of his personality.

Article 23
(1) Everyone has the right to work, to free choice of employment, to just and favourable conditions of work
and to protection against unemployment.

(2) Everyone, without any discrimination, has the right to equal pay for equal work.

(3) Everyone who works has the right to just and favourable remuneration ensuring for himself and his
family an existence worthy of human dignity, and supplemented, if necessary, by other means of social
protection.

(4) Everyone has the right to form and to join trade unions for the protection of his interests.

Article 24
Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic
holidays with pay.

Article 25
(1) Everyone has the right to a standard of living adequate for the health and well-being of himself and
of his family, including food, clothing, housing and medical care and necessary social services, and the
right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of
livelihood in circumstances beyond his control.

(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.

Article 26
(1) 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.

28 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
(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.

(3) Parents have a prior right to choose the kind of education that shall be given to their children.

Article 27
(1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to
share in scientific advancement and its benefits.

(2) Everyone has the right to the protection of the moral and material interests resulting from any scientific,
literary or artistic production of which he is the author.

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.

Article 29
(1) Everyone has duties to the community in which alone the free and full development of his personality is
possible.

(2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are
determined by law solely for the purpose of securing due recognition and respect for the rights and
freedoms of others and of meeting the just requirements of morality, public order and the general welfare
in a democratic society.

(3) These rights and freedoms may in no case be exercised contrary to the purposes and principles of the
United Nations.

Article 30
Nothing in this Declaration may be interpreted as implying for any State, group or person any right to
engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set
forth herein.

G.A. res. 217A (III), U.N. Doc A/810 (1948)

Adopted on December 10, 1948

by the General Assembly of the United Nations (without dissent)

HUMAN RIGHTS | 29
End-of-Lesson Quiz

1. Human rights protect: 6. The modern human rights system emerged

A. The individual; following which conflict:
B. The state; A. The Iraq war;
C. The international community; B. World War II;
D. No one. C. World War I;
D. The Cold War.
2. ___________________ are rights that
come from God or nature. 7. The primary aim of the United Nations is:
A. To end discrimination against women;
3. The moral foundations of human rights are: B. To enact human rights laws;
A. Ideas about why we have human rights; C. To maintain international peace and security;
B. The references to human rights that appear in D. To abolish the slave trade.
national constitutions;
C. Ideas about whether or not it is necessary to 8. Eleanor Roosevelt was a key player in
have human rights; drafting the ____________________.
D. Legal documents that bind states to uphold
human rights.
9. The Universal Declaration of Human Rights
was adopted in:
4. The “billiard ball model” describes a world A. 1948;
in which:
B. 1918;
A. States are divided into a bipolar world like the
C. 1989;
two opposing sides in a billiards game;
D. 1966.
B. States are solid, opaque, and impenetrable
spheres similar to billiard balls;
C. States are manipulable by the “cue” of 10. Customary International Law is:
international law; A. Not really law;
D. States are like a pool table, and the individuals B. Law that was created prior to World War II;
within them react against one another when C. The general practice of states that is accepted
pushed by outside forces. as law;
D. Better than “normal” or “treaty-made” law.
5. One of the earliest human rights movements
was:
A. The effort to abolish the death penalty;
B. The struggle to ban nuclear weapons;
C. The fight to abolish the slave trade;
D. The protection of the rights of lesbian, gay,
bisexual, and transgender persons.

30 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
 ANSWER KEY
1A, 2 Natural rights, 3A, 4B, 5C, 6B, 7C,
8 Universal Declaration of Human Rights
(UDHR), 9A, 10C

HUMAN RIGHTS | 31
LESSON 2
DEVELOPING LEGALLY BINDING
HUMAN RIGHTS TREATIES I:
THE ICCPR
 LESSON
2

LESSON OBJECTIVES

2.1 Introduction By the end of Lesson 2, the student should be able to meet the
following objectives:
2.2 The International
Covenant on Civil
• Identify the components of the International Bill of Human Rights;
and Political Rights
(ICCPR) • Appreciate the consequences of dividing civil and political from
economic, social, and cultural rights;
2.3 Other Instruments
• Describe the types of rights found in the ICCPR;
Dealing with Civil and
• Explain states’ obligations in protecting civil and political human
Political Rights rights; and
Annex A • Identify the narrow grounds on which states may limit or derogate
The International from civil and political human rights.
Covenant on Civil
and Political Rights
(ICCPR)

To view a video introduction of this lesson by the

course author Jessica C. Lawrence, you can
either log in to your virtual classroom, go to www.
peaceopstraining.org/users/media_page/375/
lesson-2, or use your mobile device to scan the
QR code to the left.
2.1 Introduction
The International Bill of Human Rights
The UDHR was drafted as “a common standard of
achievement for all peoples and nations,” and set
out the basic civil, political, economic, social, and
cultural rights that all people enjoy.1 As we learned
in Lesson 1, however, at the time of its adoption the
UDHR was a resolution with great moral standing,
but no binding legal enforceability. In order to give
human rights legal force under international law
and “make human rights an instrument effectively
shaping the lives of individuals and nations, more
than just a political proclamation was needed.”2 It
would now be necessary to translate the UDHR
into “the hard legal form of an international treaty”
under which states could be held accountable for
violations of individual rights.3
The Commission on Human Rights began the
work of developing a legally binding treaty shortly
after the adoption of the UDHR in 1948. Its work
continued until 1966, when the UN Member States
finally adopted the International Covenant on Civil
and Political Rights (ICCPR) 4 and the International
Covenant on Economic, Social and Cultural Rights
(ICESCR).5 These two treaties transformed the
human rights provisions of the UDHR into legally
binding obligations, and together with the UDHR
make up what is sometimes called the International
Bill of Human Rights.
1 UDHR, Preamble.
2 Christian Tomuschat, “International Covenant
on Civil and Political Rights” (2008), p. 1. Available
from <http://untreaty.un.org/cod/avl/pdf/ha/iccpr/
iccpr_e.pdf>.
3 Ibid.
4 See: A6316 (Dec. 16, 1966), International
Covenant on Civil and Political Rights, G.A. Res.
2200A (XXI), U.N. GAOR, 21st Sess., Supp. No.
16, at 52, 999 U.N.T.S. 171 (entered into force 23
March 1976).
5 See: A/6316 (16 December 1966), International
Covenant on Economic, Social and Cultural Rights,
G.A. Res. 2200A (XXI), U.N. GAOR, 21st Sess.,
Supp. No. 16, at 49, 993 U.N.T.S. 3 (entered into
force 3 January 1976).
HUMAN RIGHTS
Together, the three documents that make up
the International Bill of Human Rights form
the cornerstone of an elaborate structure of
international human rights agreements covering a
broad range of issues. These treaties define and
give content to the human rights and fundamental
freedoms held by all people, and set basic
standards for protecting human dignity. They
have inspired and served as the background for
all subsequent international and regional human
rights treaties, conventions, declarations, rules, and
principles.
In addition to the UDHR, ICCPR, and ICESCR,
there are six other so-called “core” United Nations
human rights treaties:
• The International Convention on the Elimination
of All Forms of Racial Discrimination (CERD)
(1965);
• The Convention on the Elimination of All Forms
of Discrimination Against Women (CEDAW)
(1979);
• The Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment
(CAT) (1984);
• The Convention on the Rights of the Child (CRC)
(1989);
• The International Convention on the Protection of
the Rights of All Migrant Workers and Members
of Their Families (ICRMW) (1990);
• The Convention on the Rights of Persons with
Disabilities (CRPD) (2006).
We will discuss these other six agreements in our
lessons on the rights of vulnerable groups and the
protection of human rights during armed conflict.
In this lesson, we will take an in-depth look at the
ICCPR. We will examine the ICESCR in Lesson 3.
Before we examine these documents, it is
important to deal with a preliminary issue: why are
human rights divided up among multiple human
rights treaties? Would it not have been easier to
put them all into one single document? Doesn’t this
contradict what we learned in Lesson 1 about the
indivisibility of human rights?
| 35
Interdependence versus the Division of Rights
As we learned in Lesson 1, one of the primary
characteristics of human rights is that they are
indivisible, interdependent, and interrelated, and
therefore must be viewed as intrinsically connected
and inseparable from one another. But if all rights
are indivisible, interdependent, and interrelated,
why were the rights contained in the UDHR
subdivided into two separate treaties?
The answer is partially political. To a certain extent,
the roots of the division between civil and political
rights and economic, social, and cultural rights lies
in the deep and enduring disagreement between
the Western and socialist states over the proper
role of economic, social, and cultural rights. During
the early stages of drafting, the Commission on
Human Rights was working on a single draft that
contained both categories of rights. But in 1951, the
General Assembly decided to split the draft into two
separate covenants, largely as a result of pressure
from Western states.
The Western capitalist states argued that two
separate conventions were appropriate because
economic, social, and cultural rights and civil and
political rights were different in kind and should
therefore be implemented in different ways.
Civil and political rights, they claimed, should
be respected strictly, immediately, and without
reservations. Economic, social, and cultural rights,
on the other hand, were “programme rights” or
“goals” that states should strive for:
Those in favour of drafting two separate
covenants argued that civil and political rights
were enforceable, or justiciable, or of an
“absolute” character, while economic, social and
cultural rights were not or might not be; that the
former were immediately applicable, while the
latter were to be progressively implemented;
and that, generally speaking, the former were
rights of the individual “against” the State, that
36 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
is, against unlawful and unjust action of the
State, while the latter were rights which the State
would have to take positive action to promote.
Since the nature of civil and political rights and
that of economic, social and cultural rights, and
the obligations of the State in respect thereof,
were different, it was desirable that two separate
instruments should be prepared.6
The Soviet Union and other states fought to
maintain a single treaty.7 They argued that all rights
should be viewed as interdependent and should
be protected at the same time, that human rights
could not be easily divided into different categories,
and that the two-treaty solution implied that civil
and political rights were hierarchically superior to
economic, social, and cultural rights.8 In the end,
however, those who argued for separate covenants
won the day, and civil and political rights and
economic, social, and cultural rights were codified
in two different treaties.9
This division has had real consequences for the
protection and enforcement of human rights. It
undermines the idea that all human rights are
indivisible, interconnected, and equally important.
As we shall see in Lesson 3, the separation of civil
and political from economic, social, and cultural
rights resulted in the advancement of the former
and the long stagnation (until recently) of the latter
– a situation that has been problematic for the full
protection of human rights.
6 A/2929 (1955), Annotations on the text of the
Draft International Covenants on Human Rights.
7 For a good overview of this process, see:
Kitty Arambulo, Strengthening the Supervision of
the International Covenant on Economic, Social
and Cultural Rights: Theoretical and Procedural
Aspects (Antwerp, Intersentia, 1999), pp. 15–8.
8 A/2929 (1955), p. 7. See discussion in Lesson 1.
9 See ibid. for more information on the drafting of
the ICESCR and ICCPR.
2.2 The International Covenant on
Civil and Political Rights (ICCPR)
As we learned in Lesson 1, civil and political
rights are human rights that protect the personal
freedoms and civil liberties of individuals. Civil and
political rights include rights related to life, liberty,
and personal security; the judicial process and fair
trial; fundamental freedoms like right to privacy and
freedom of speech; the right to form a family; and
the right to participate in the political process. They
are the types of rights that have traditionally been
included in national constitutions.10
Civil and political rights are important both in and
of themselves, and because they are indivisible
from, and essential for, the protection of other types
of rights, such as economic, social, and cultural
rights:
Civil and political rights empower poor people
to claim their economic and social rights – to
food, to housing, to education, to health care,
to decent work and to social security. These
rights empower them to demand accountability
– for good public services, for pro-poor public
policies, for a transparent participatory process
open to hearing their views.11
Nobel prize-winning economist Amartya Sen, for
example, famously argued for the interdependence
of civil and political rights with economic,
social, and cultural rights by demonstrating that
democratic accountability is essential to ensuring
food security:
Indeed, the working of democracy and of
political rights can even help to prevent famines
and other economic disasters. Authoritarian
rulers, who are themselves rarely affected by
famines (or other such economic calamities),
tend to lack the incentive to take timely
preventive measures. Democratic governments,
in contrast, have to win elections and face
10 For early examples, see: the First Ten
Amendments to the Constitution of the United
States (1789/1791) and the French Déclaration des
droits de l’homme et du citoyen (1789).
11 United Nations Development Programme,
“Human Rights and Development”, Human
Development Report 2000, p. 85.
HUMAN RIGHTS
public criticism, and have strong incentives to
undertake measures to avert famines and other
such catastrophes. It is not surprising that no
famine has ever taken place in the history of
the world in a functioning democracy – be it
economically rich (as in contemporary Western
Europe or North America) or relatively poor (as
in postindependence India, or Botswana, or
Zimbabwe).12
The ICCPR was adopted by the UN General
Assembly in 1966. It took another 10 years,
however, before the necessary number of states
had become parties, and it did not formally enter
into force (become binding) until 1976. Currently,
167 states are party to the ICCPR.13
 Take a moment now to read through
the ICCPR, attached as Annex A.
The first and second parts of the ICCPR list
several structural or overarching guarantees.
Part I contains a guarantee of the right of
self-determination of peoples, which is also
contained in the ICESCR.14 The meaning of
this provision remains controversial, and will be
discussed in more detail in Lesson 6.
The provisions contained in Part II forbid
discrimination of any kind in the application of
the rights of the treaty, and require State Parties
to provide remedies to those whose rights under
the ICCPR are breached. The prohibition of
discrimination on the basis of “race, colour, sex,
language, religion, political or other opinion,
national or social origin, property, birth or other
status” assures the protection of civil and political
rights for all people, and permeates every other
provision of the treaty.15
12 Amartya Sen, Development as Freedom
(Oxford, Oxford University Press, 1999), p. 16.
13 This number is current as of September
2011. An updated list of all state parties to
the ICCPR can be found on the UN Treaty
Collection website: <http://treaties.un.org/Pages/
ViewDetails.aspx?src=TREATY&mtdsg_no=IV
-4&chapter=4&lang=en>.
14 ICCPR, Art. 1; ICESCR, Art. 1.
15 ICCPR, Art. 2.
| 37
 Part III – the “backbone” of the treaty – lists
the substantive civil and political human rights
protected under international law. The ICCPR
covers all of the civil and political rights outlined
in the UDHR, with two exceptions: (1) the right
to own property, which was omitted altogether;16
and (2) the right to asylum, which was covered in
the 1951 Convention on the Status of Refugees
(see discussion in Lesson 10). It also expands on
the original list, including additional rights for the
protection of detainees and minorities.
The rights protected in the ICCPR can be divided
roughly into the following categories:
Jubilant crowds listening to the speech of President Nelson Mandela.
(UN Photo #46658 by Sattleberger, May 1994)
16 The omission of a right to property from both the
ICCPR and the ICESCR was due to disagreement
about the scope of the right. For a detailed
discussion of the drafting process of the Covenants
and the decision not to include the right to property,
see: Theo R.G. van Banning, The Human Right to
Property (Antwerp, Intersentia, 2001), pp. 43–7.
It should also be noted that property was one
area in which international law already contained
substantial protections for individual rights – already
in the nineteenth century, expropriation of private
property by a foreign state was seen as just cause
for initiating a claim under the doctrine of state
responsibility for injury to aliens. Ibid., pp. 34–5.
38 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
• Life, Liberty and Physical Security (Articles
6–13): including the right to life and limitations
on the use of the death penalty; the right to be
free from torture or cruel, inhuman, or degrading
treatment; the right to be free of slavery and
other forms of compulsory labour; the right to
freedom from arbitrary arrest or detention; the
right to respectful treatment while incarcerated;
the right to freedom of movement; and protection
for aliens facing expulsion;
• Judicial Process (Articles 14–16, 26):
including the right to a fair trial; the prohibition
of retroactive punishment; the right to be
recognized as a person before the law; and
the right to equality before the law and equal
protection;
• Fundamental Freedoms (Articles 17–22):
including the right to privacy; the right to freedom
of thought and religion; the right to freedom of
opinion and expression; the right to freedom of
peaceful assembly; and the right to freedom of
association, including through trade unions;
• Family (Articles 23–24): including the right to
marry and form a family; and children’s rights
to be free from discrimination and to be given a
name and nationality;
• Political Participation (Article 25): including
the right to take part in public affairs; the right to
vote; and the right to access public services; and
• Minorities (Article 27): including the rights
of ethnic, religious, or linguistic minorities to
enjoy and practice their own culture, religion, or
language.17
These substantive rights are followed by a number
of administrative and enforcement provisions, the
nature of which we will discuss in Lesson 4.
In addition, the ICCPR is supplemented by two
Optional Protocols. Optional Protocols provide
further substantive rights or monitoring procedures
that expand on the primary treaty. States may
choose to sign them in addition to the treaty or they
may choose not to. The two Optional Protocols to
the ICCPR are:
17 For more on the application and importance of
Article 27, see Lesson 10.
 How State Becomes Legally Bound

When we say a state is legally bound under international law, what does this mean?

There are two ways in which a state can become legally bound under international law. The first is through an
express statement of its consent, for example by signing and/or ratifying a treaty, or by making a unilateral
declaration that it considers itself bound by a rule. The second way is through its practice. If one can deduce from
the practice of a state that it considers itself bound by a particular international rule, then it is bound by custom.

With respect to treaties, there are various ways in which a state can give its consent, such as through signature,
ratification, or accession. States can sometimes consent to a treaty partially or with reservations (see discussion in
Lesson 8). However, generally speaking, once a state has given some form of consent, it is bound not to act against
the object and purpose of the treaty, whether or not it has made reservations, failed to ratify the treaty, etc.

Customary international law refers to the aggregate of the practice of all states (see box on Customary
International Law in Lesson 1). It allows for the possibility that states can be bound by obligations despite the
absence of express consent, and even in the absence of individual state practice. In such a situation, if a state does
not consider itself bound it is required to object to the rule in a persistent manner. If a state is silent on the matter, it
is considered to have acquiesced to the binding nature of that obligation. Things that count as practice are: national
legislation, national policy documents, judgments of national courts, actions by state agents (both domestically as
well as internationally), and, according to some, voting patterns in international organizations.

• The Optional Protocol to the ICCPR (1966),
which sets up a quasi-judicial complaints
procedure for the treaty (see Lesson 4);
• The Second Optional Protocol to the ICCPR,
aiming at the abolition of the death penalty
(1989), which, as its name suggests, moves
toward abolishing the death penalty.
Currently, about two-thirds of the countries that
are party to the ICCPR have also ratified the first
optional protocol. Less than half have ratified the
second optional protocol.18
The ICCPR sets out the primary civil and political
rights that are held by all individuals. The list is
extensive, and covers a wide range of aspects of
human life. But it is far from obvious what each
of these rights means. For example, what exactly
does it mean to have a “right to privacy”? Does
it mean that you have a right to an individual
bedroom? To marry whomever you choose?
To keep a secret diary? To prevent police from
entering your home? What are governments
expected to do in furtherance of this right?
Giving Content to Civil and Political Rights

While the meaning of some civil and political

18 As of September 2011, there were 114
parties to the first Optional Protocol to the
ICCPR, and 73 parties to the Second Optional
Protocol to the ICCPR. An updated list of all
state parties can be found on the UN Treaty
Collection website, at: <http://treaties.un.org/
Pages/ViewDetails.aspx?src=TREATY&mtdsg_
no=IV-5&chapter=4&lang=en>
and <http://treaties.un.org/Pages/
ViewDetails.aspx?src=TREATY&mtdsg_
no=IV-12&chapter=4&lang=en>, respectively.
rights may seem easy to define – for example, the
right to be free from torture might appear fairly
straightforward19 – many of the rights listed in the
19 Although given recent arguments in the
United States over whether so-called “enhanced
interrogation techniques” such as “waterboarding”
constitute torture, this provision is also obviously not
as straightforward as it appears. See: Office of Legal
Counsel, “Memorandum for Alberto R. Gonzales,
Counsel to the President”, 1 August 2002, available
from <http://news.findlaw.com/nytimes/docs/doj/
bybee80102mem.pdf>.

HUMAN RIGHTS | 39
ICCPR are quite difficult to flesh out. Giving content
to these human rights is a tricky task, and our
understanding of their meaning is continually being
revised. Who, then, defines what constitutes the
“right to take part in public affairs” or the “right to a
fair trial”?
One source for giving content to these rights is the
general comments issued by the Human Rights
Committee. We will learn a lot more about the
Human Rights Committee and its powers in Lesson
4. For now, it is enough to know that this is the
international body that oversees the implementation
of the ICCPR. From time to time, the Human Rights
Committee issues general comments that give
additional detail on how to define and implement
the civil and political human rights contained in the
ICCPR. There is some discussion about whether
or not these general comments are in fact legally
binding. But whether or not they have legal force,
they exert great persuasive authority, are elaborate
and detailed, and provide a wealth of information
on how we should understand these civil and
political rights.
For example, the Human Rights Committee’s
general comment No. 22 explains that the right to
freedom of thought, conscience, and religion “is
far-reaching and profound” and “encompasses
freedom of thought on all matters, personal
conviction and the commitment to religion or belief,
whether manifested individually or in community
with others.”20 On one aspect of this right, the
freedom to manifest religion or belief, the general
comment elaborates that:
The freedom to manifest religion or belief may
be exercised “either individually or in community
with others and in public or private”. The
freedom to manifest religion or belief in worship,
observance, practice and teaching encompasses
a broad range of acts. The concept of worship
extends to ritual and ceremonial acts giving
direct expression to belief, as well as various
practices integral to such acts, including the
building of places of worship, the use of ritual
formulae and objects, the display of symbols,
and the observance of holidays and days of
20 Human Rights Committee, “General Comment
No. 22” (1993), para. 1.
40 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
rest. The observance and practice of religion
or belief may include not only ceremonial acts
but also such customs as the observance of
dietary regulations, the wearing of distinctive
clothing or headcoverings, participation in rituals
associated with certain stages of life, and the
use of a particular language customarily spoken
by a group. In addition, the practice and teaching
of religion or belief includes acts integral to the
conduct by religious groups of their basic affairs,
such as the freedom to choose their religious
leaders, priests and teachers, the freedom to
establish seminaries or religious schools and the
freedom to prepare and distribute religious texts
or publications.21
As you can see, explaining the content of even just
this one specific aspect of the right to freedom of
thought, conscience, and religion is quite a difficult
proposition. The detail provided by the Human
Rights Committee may seem to overcomplicate the
treaty, but from a legal and practical perspective
it lets states and other actors know exactly
what things are protected by the ICCPR. This is
especially important when it is not obvious whether
each of the details listed in the general comment
would be part of the right.
Another source for giving content to civil and
political rights is the decisions of international and
regional judicial and semi-judicial bodies. When
judges or arbitrators make decisions in particular
cases, they help to draw the boundaries between
individual rights and state power and flesh out the
content of particular human rights. Each decision
helps to map out the borders of the rights under
scrutiny, and subsequent disputes will take all of
these prior decisions into account. There are many
international and regional judicial and semi-judicial
courts, including everything from the International
Court of Justice (ICJ), to the European Court
of Human Rights (ECtHR), to the quasi-judicial
individual complaints mechanism of the Committee
on the Elimination of Discrimination Against
Women (CEDAW Committee). We will talk more
about the role of these global and regional judicial
and semi-judicial bodies in Lessons 4 and 5.
21 Ibid., para. 4.
Writing Exercise 2: A Violation of Human Rights?
You are working in a small community in a
country that is party to the ICCPR. One day, you
notice that Mr. M, the man who normally sells
fruit outside of your building, is not standing
in his usual spot. Mr. M is missing for several
days, then returns. You ask him where he was
the past few days, and he responds that he was
arrested and detained by the local police. He
explains that he was held without charge for
four days in an overcrowded jail cell. He was
not allowed to see a judge or a lawyer, and was
never told why the police had arrested him. Mr.
M tells you that he thinks this was a violation
of his human rights, and wants to know if you
agree.
Consider the following questions and write a
brief report:
• Read through the substantive
provisions of the ICCPR, reprinted as
Appendix A at the end of this lesson.
Which of the rights in the ICCPR might
apply in this case?
• How do you know whether what
happened to Mr. M does or does not
violate his rights? Is it easy to tell?
• Where would you look to find out more
information about whether the actions
of the police violated Mr. M’s human
rights?
Additionally, the practices of states themselves
can also play a role in helping to elaborate
the meanings of the various human rights. For
example, when a national court in a state like South
Africa makes a ruling about the right to a fair trial,
this becomes part of international practice with
regard to that right. Decisions made by courts
in individual states do not automatically change
or define the content of human rights in other
countries or under international law. But judges,
arbitrators, politicians, and other decision-makers
in both international and other national courts may
look to these decisions as evidence of international
trends.
HUMAN RIGHTS
Other sources of information about human
rights, such as reports by non-governmental
organizations (NGOs) or civil society groups
like faith-based organizations; lobbying groups;
community organizations; business advocates;
books by international legal scholars; and websites
maintained by international monitoring groups can
also be helpful for learning about human rights.
However, these are not official sources, and should
not be relied on as definitive legal statements about
the content of human rights.
Defining the content of rights is very important, and
the process of elaborating this content continues
as states and individuals work towards the full
realization of human rights.
Once individuals and states know the content of
their rights, however, a second important question
emerges: what are states obliged to do to enforce
them?
The Obligations of the State
Each state has an obligation to respect, protect,
and fulfil each of the rights guaranteed in the
ICCPR. The three-part “respect, protect, fulfil”
formulation (sometimes expanded to the four-part
“respect, protect, promote, fulfil”) was coined in the
1980s by scholar Asbjørn Eide in his work on the
right to food:
The obligations of states under the human rights
system … [exist] under these three concepts:
to respect, to protect, and to fulfil. In regard
to the right to food, states (1) should have the
obligation to respect the necessary freedom
and the resource base controlled by peoples or
individuals; (2) they should protect the freedom
and the resource base against others who
encroach on them; and (3) the state should when
necessary assist when individuals or groups by
themselves, for various reasons, cannot take
care of their own needs.22
22 Philip Alston and Asbjørn Eide, “Advancing
the Right to Food in International Law”, in Food as
a Human Right, Asbjørn Eide ed. (Tokyo, United
Nations University, 1984), p. 251.
| 41
Today, this three-part framework has become the
internationally accepted idea of the human rights
obligations of the state.23
The obligation to respect a person’s civil and
political rights requires governments to refrain from
directly violating human rights. This is sometimes
called a negative obligation, because it requires the
government not to do something. For example, a
state respects the right to freedom from torture by
not torturing people, and respects the right to vote
by not preventing people from voting.
The obligation to protect civil and political rights
goes further than the obligation to respect.
Protection of human rights means that the
government must not only refrain from certain acts,
but that it must also take steps to prevent other
actors – such as individuals or corporations – from
violating rights as well. In order to do this, the
state may have to establish an appropriate policy
framework, write laws, and actively enforce them.
Because protecting rights requires action on the
part of the government, it is known as a positive
obligation. For example, a state may protect the
right to freedom from torture by prohibiting the
deportation of persons to states in which they might
23 The above graphic illustrating the three-part
framework was taken from: Office of the United
Nations High Commissioner for Human Rights,
Fact Sheet No. 33, “Frequently Asked Questions on
Economic, Social and Cultural Rights”, (2008), p. 16.
42 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
be tortured, and protect the right to vote by passing
laws that criminalize private interference with the
voting process.
The obligation to fulfil human rights goes still
further. In order to fulfil a person’s civil and political
rights, the government must take steps to create
an environment in which each person’s rights can
be fully realized. This, too, is a positive obligation,
and it may require a government to take significant
action and allocate resources to the fulfilment of
civil and political rights. For example, fulfilling the
ICCPR’s provision mandating humane conditions of
detention for prisoners may require a government
to build additional prisons to prevent overcrowding,
and fulfilling the right to vote may involve setting up
additional polling stations, translating ballots into
multiple languages, and adding wheelchair access
in order to give everyone a real ability to exercise
their right.
A fourth obligation to “promote” human rights is
also sometimes included in this list. Governments
promote human rights by establishing and
supporting human rights education programmes
and encouraging respect for human rights.
States must begin to respect, protect, and fulfil the
rights contained in the ICCPR immediately upon
becoming legally bound by the terms of the treaty.
Limitations and Derogations from the ICCPR
States may limit (apply with restrictions) or derogate
from (legally suspend the application of) some of
the rights provided in the ICCPR in very narrow
circumstances. A few of the rights in the ICCPR
contain specific limitation provisions that allow
restrictions to be placed on individual rights for
the sake of ensuring the general welfare. This was
meant to allow states a sort of reasonable regulatory
power with respect to certain rights. These include:
• The right to freedom of movement (Article 12);
• The right to freedom of thought, conscience and
religion (Article 18);
• The right to freedom of expression (Article 19);
• The right to peaceful assembly (Article 21); and
• The right to freedom of association (Article 22).
Limitations placed on these rights must not
interfere with the core protections that the right is
meant to afford: states may reasonably limit rights,
not extinguish them. For example, a state may
limit the right to peaceable assembly by requiring
a group of protesters to notify the police before a
planned manifestation, but should not deny their
right to assemble altogether.
In addition to these specific limitation provisions,
the ICCPR also contains a general derogation
provision that allows covenant rights to be
suspended during times of public emergency. This
means that states may cease protecting certain
rights for a time. It does not mean that the rights
are lost: individuals continue to hold their human
rights, even if they are temporarily not being
fulfilled. As specified in Article 4:
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.24
24 ICCPR, Art. 4.
HUMAN RIGHTS
Under this article, before any derogation of rights
can be imposed, a state must be in a situation that
amounts to a public emergency that threatens the
life of the nation (so only extreme emergencies
qualify). It must also officially declare itself to be
in a state of emergency. As noted by the ICCPR
Committee in general comment No. 29:
Not every disturbance or catastrophe qualifies
as a public emergency which threatens the
life of the nation … During armed conflict,
whether international or non-international,
rules of international humanitarian law become
applicable and help … 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.25
Any derogations from civil and political rights made
during a state of emergency must be limited to the
extent strictly required by the situation. This means
that such derogations must be limited in duration,
geographical coverage, and material scope. In
other words, they must apply no longer and no
further than is strictly necessary.
Even this provision for the derogation of rights
in times of public emergency may not be applied
across the board. The covenant specifies a number
of absolute or non-derogable rights – sometimes
known as the “hard core of human rights” – that
may never be derogated from, even in emergency
situations:
• The right to life and limitations on the death
penalty (Article 6);
• The right to be free from torture and cruel,
inhuman, or degrading treatment (Article 7);
• The right to be free from slavery and servitude
(Articles 8(1) and 8(2));
• The prohibition of imprisonment for debt (Article
11);
• The prohibition of retrospective punishment
(Article 15);
• The right to recognition as a person before the
law (Article 16); and
• The right to freedom of thought, conscience, and
religion (Article 18).
25 Human Rights Committee, “General Comment
No. 29” (2001), para. 3.
| 43
Note that Article 18, on the right to freedom of
thought, conscience, and religion, is listed both
as a right which may be limited for the sake of
ensuring the general welfare as well as in the list
of non-derogable rights that states may never
suspend, even in situations of emergency. This
demonstrates the difference between the two
provisions: while it is never acceptable to deny a
person the right to freedom of thought, conscience,
and religion, it is acceptable to place reasonable
restrictions on its exercise.
The strict rules governing the limitation of and
derogation from civil and political rights reflect
the extreme importance of protecting individuals
at all times, particularly in situations of conflict or
emergency, when their rights may be especially
imperiled. Fortunately, the ICCPR does not have to
handle this task alone – a number of overlapping
agreements provide additional protection for civil
and political rights, including some that we will
return to in later lessons.
Man exercises his right to vote (protected by ICCPR
Article 25) during first DR Congo Elections in 40 Years
(UN Photo #122808 by Kevin Jordan, July 2006)
44 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
2.3 Other Instruments dealing with
Civil and Political Rights
In addition to the UDHR and the ICCPR, several
other international and regional human rights
treaties include protections for civil and political
rights. These include, at the international level:
• The Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment
(CAT);
• The International Convention on the Elimination
of All Forms of Racial Discrimination (CERD);
• The Convention on the Elimination of All Forms
of Discrimination Against Women (CEDAW);
• The Convention on the Rights of the Child (CRC);
• The International Convention on the Protection of
the Rights of All Migrant Workers and Members
of Their Families (ICRMW);
• The Convention on the Rights of Persons with
Disabilities (CRPD);
• The Convention on the Prevention and
Punishment of the Crime of Genocide (Genocide
Convention);
• The Geneva Conventions I, II, III, and IV and
Protocols I and II;
• The International Convention for the Protection
of All Persons from Enforced Disappearance;
• The Declaration on the Rights of Indigenous
Peoples.
And at the regional level:
• Europe: the European Convention for the
Protection of Human Rights and Fundamental
Freedoms, its Sixth and Thirteenth Protocols;
the European Convention for the Prevention of
Torture and Inhuman and Degrading Treatment
or Punishment; and the Charter of Fundamental
Rights of the European Union;
• Americas: the American Convention on Human
Rights, the Second Protocol to the American
Convention on Human Rights to Abolish the
Death Penalty; the Inter-American Convention
on the Forced Disappearance of Persons;
the American Declaration on the Rights and
Duties of Man; the Inter-American Convention
 to Prevent and Punish Torture; the Inter-
American Convention on the Prevention,
Punishment and Eradication of Violence
Against Women;
• Africa: the African Charter on Human and
Peoples’ Rights; the African Charter on the
Rights and Welfare of the Child; the Protocol
to the African Charter on Human and Peoples’
Rights on the Rights of Women in Africa; and
• Arab League: the Arab Charter on Human Rights.
Generally speaking, each regional treaty protects
rights similar to those contained in the ICCPR.
Many of them have their own peculiarities, and
some go into a lot of detail with regard to certain
rights that are addressed only cursorily in other
treaties. One striking example is the African
Charter on Human and Peoples’ Rights, which
has a section on duties as well as being the only
major human rights convention that explicitly
recognizes peoples’ rights. We will return to the
subject of regional agreements and look more
closely at their particular structures in Lesson 5.
In addition, non-state actors such as NGOs,
social movements, community-based
organizations, professional associations, trade
unions, the media, private businesses, and other
institutions also contribute to the protection
of civil and political rights. These types of
organizations may educate people about their
rights, investigate violations, hold governments
accountable, or work with individuals and groups
to provide basic goods and services and assist
people in the realization of their rights.
The ICCPR has also been highly influential
at the national level. As scholar and former
member of the Human Rights Committee
Christian Tomuschat notes: “When today
anywhere in the world a national constitution
is framed, the ICCPR serves as the natural
yardstick for the drafting of a section on
fundamental rights.”26 Many states have made
the ICCPR a direct part of their national legal
order, and others have incorporated these civil
and political rights separately into their domestic
constitutions and legislation.27
26 Christian Tomuschat, p. 3.
27 Though a thorough investigation of the
topic is outside the scope of this lesson, a brief
HUMAN RIGHTS
Conclusion
In this lesson we learned how the basic set of
principles outlined in the UDHR was translated
into two covenants containing legally binding
obligations. We explored the reasons for the
separation of civil and political from economic,
social, and cultural rights, and noted that
this separation has had consequences for
the enforcement of the latter group, a topic
to which we will return in Lesson 3. We then
took an in-depth look at the rights contained
in the ICCPR and explored how they are given
content. We discovered that states are required
to respect, protect, and fulfil these rights and
outlined the ways in which states can limit or
derogate from some civil and political rights.
Finally, we took a brief look at the many other
international instruments that protect the
civil and political rights of individuals. In the
next lesson, we will turn to the third piece of
the International Bill of Human Rights: the
International Covenant on Economic, Social and
Cultural Rights (ICESCR).
aside on the place of international law (including
international human rights law) in domestic
legal systems is in order. For now, it is sufficient
to note that national legal systems have many
different ways of dealing with international
law. Some incorporate it directly into their
national legal order, some require the passage
of domestic laws restating the international
rules, some may ignore it altogether, and face
whatever consequences may come from this
decision, and many fall somewhere in between
these options. The relationship, in other words,
is highly context-specific, and it is important to
know that it may work very differently from one
country to the next.
| 45
Further Reading

The International Bill of Rights (Louis Henkin ed.,

1981); Sarah Joseph et al. eds., The International
Covenant on Civil and Political Rights: Cases,
Materials, and Commentary (2004); Dominic
McGoldrick, The Human Rights Committee. Its Role
in the Development of the International Covenant
on Civil and Political Rights (Second Edition, 1994);
Manfred Nowak, UN Covenant on Civil and Political
Rights: CCPR Commentary (Second Edition, 2005).

Websites for Further Information

General Comments of the Human Rights Committee:

www2.ohchr.org/english/bodies/hrc/comments.
htm

The Office of the High Commissioner for Human

Rights’ Human Rights Committee Page:
www2.ohchr.org/english/bodies/hrc/

Nimba county prison inmate looks through a window of a cell during a tour of the overcrowded
facility by Henrietta Mensa-Bonsu, Deputy Special Representative of the Secretary-General for the
United Nations Mission in Liberia (UNMIL) for Rule of Law.
(UN Photo #234114 by Christopher Herwig, December 2008)

46 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
Annex A: International Covenant on Civil and Political Rights

International Covenant on Civil and Political Rights

(Substantive Provisions)

PREAMBLE

The States Parties to the present Covenant,

Considering that, in accordance with the principles proclaimed in the Charter of the United Nations,
recognition of the inherent dignity and of the equal and inalienable rights of all members of the human
family is the foundation of freedom, justice and peace in the world,

Recognizing that these rights derive from the inherent dignity of the human person,

Recognizing 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 only be achieved if
conditions are created whereby everyone may enjoy his civil and political rights, as well as his economic,
social and cultural rights,

Considering the obligation of States under the Charter of the United Nations to promote universal respect
for, and observance of, human rights and freedoms,

Realizing that the individual, having duties to other individuals and to the community to which he belongs,
is under a responsibility to strive for the promotion and observance of the rights recognized in the present
Covenant,

Agree upon the following articles:

PART I
Article 1

1. All peoples have the right of self-determination. By virtue of that right they freely determine their political
status and freely pursue their economic, social and cultural development.

2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without
prejudice to any obligations arising out of international economic co-operation, based upon the principle
of mutual benefit, and international law. In no case may a people be deprived of its own means of
subsistence.

3. The States Parties to the present Covenant, including those having responsibility for the administration
of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination,
and shall respect that right, in conformity with the provisions of the Charter of the United Nations.

HUMAN RIGHTS | 47
PART II
Article 2
1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within
its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction
of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin,
property, birth or other status.

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

3. Each State Party to the present Covenant undertakes:

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

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

(c) To ensure that the competent authorities shall enforce such remedies when granted.

Article 3

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

Article 4

1. In time of public emergency which threatens the life of the nation and the existence of which is officially
proclaimed, the States Parties to the present Covenant may take measures derogating from their
obligations under the present Covenant to the extent strictly required by the exigencies of the situation,
provided that such measures are not inconsistent with their other obligations under international law and
do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.

2. No derogation from articles 6, 7, 8 (paragraphs I 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.

48 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
Article 5

1. Nothing in the present Covenant may be interpreted as implying for any State, group or person any right
to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms
recognized herein or at their limitation to a greater extent than is provided for in the present Covenant.

2. There shall be no restriction upon or derogation from any of the fundamental human rights recognized
or existing in any State Party to the present Covenant pursuant to law, conventions, regulations or custom
on the pretext that the present Covenant does not recognize such rights or that it recognizes them to a
lesser extent.

PART III
Article 6

1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be
arbitrarily deprived of his life.

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.

3. When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article
shall authorize any State Party to the present Covenant to derogate in any way from any obligation
assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of
Genocide.

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.

Article 7

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

particular, no one shall be subjected without his free consent to medical or scientific experimentation.

HUMAN RIGHTS | 49
Article 8

1. No one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited.

2. No one shall be held in servitude.

3.

(a) No one shall be required to perform forced or compulsory labour;

(b) Paragraph 3 (a) shall not be held to preclude, in countries where imprisonment with hard labour
may be imposed as a punishment for a crime, the performance of hard labour in pursuance of a
sentence to such punishment by a competent court;

(c) For the purpose of this paragraph the term “forced or compulsory labour” shall not include:

(i) Any work or service, not referred to in subparagraph (b), normally required of a person who is under
detention in consequence of a lawful order of a court, or of a person during conditional release from such
detention;

(ii) Any service of a military character and, in countries where conscientious objection is recognized, any
national service required by law of conscientious objectors;

(iii) Any service exacted in cases of emergency or calamity threatening the life or well-being of the community;

(iv) Any work or service which forms part of normal civil obligations.

Article 9

1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest
or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such
procedure as are established by law.

2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be
promptly informed of any charges against him.

3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other
officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time
or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but
release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings,
and, should occasion arise, for execution of the judgement.

4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before
a court, in order that court may decide without delay on the lawfulness of his detention and order his
release if the detention is not lawful.

5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to
compensation.

50 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
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.

Article 11

No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation.

Article 12

1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of
movement and freedom to choose his residence.

2. Everyone shall be free to leave any country, including his own.

3. The above-mentioned rights shall not be subject to any restrictions except those which are provided by
law, are necessary to protect national security, public order (ordre public), public health or morals or the
rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.

4. No one shall be arbitrarily deprived of the right to enter his own country.

Article 13

An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom 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 against his expulsion and to have
his case reviewed by, and be represented for the purpose before, the competent authority or a person or
persons especially designated by the competent authority.

HUMAN RIGHTS | 51
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, 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.

52 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
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.

Article 16
Everyone shall have the right to recognition everywhere as a person before the law.

Article 17
1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or
correspondence, nor to unlawful attacks on his honour and reputation.

2. Everyone has the right to the protection of the law against such interference or attacks.

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, 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.

HUMAN RIGHTS | 53
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 20
1. Any propaganda for war shall be prohibited by law.

2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility
or violence shall be prohibited by law.

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 Organization Convention
of 1948 concerning Freedom of Association and Protection of the 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.

54 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
Article 23
1. The family is the natural and fundamental group unit of society and is entitled to protection by society and
the State.

2. The right of men and women of marriageable age to marry and to found a family shall be recognized.

3. No marriage shall be entered into without the free and full consent of the intending spouses.

4. States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and
responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution,
provision shall be made for the necessary protection of any children.

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.

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.

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.

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.

G.A. res. 2200A (XXI), UN Doc A/6316 (1966)

HUMAN RIGHTS | 55
End-of-Lesson Quiz
1. The Universal Declaration of Human
Rights (UDHR), International Covenant
on Civil and Political Rights (ICCPR),
and the International Covenant on
Economic, Social and Cultural Rights
(ICESCR) together make up the
___________________.
2. Civil and political rights are contained in
a separate treaty from economic, social,
and cultural rights because:
A. Civil and political rights are more important than
economic, social, and cultural rights;
B. Civil and political rights are NOT “real” rights,
whereas economic, social, and cultural rights are;
C. Groups of nations disagreed over the role that
economic, social, and cultural rights should play,
and saw the two groups as being qualitatively
different;
D. Civil and political rights apply to some countries,
while economic, social, and cultural rights apply to
others.
3. The International Covenant on Civil and
Political Rights (ICCPR) was adopted in:
A. 1918;
B. 1948;
C. 1955;
D. 1966.
4. Which of the following rights is NOT
protected by the International Covenant
on Civil and Political Rights (ICCPR)?
A. The right to respect for traditional culture;
B. The right to a fair trial;
C. The right to vote;
D. The right to be free from torture or cruel,
inhuman, or degrading treatment.
56 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
5. ___________________ of the Human
Rights Committee are helpful in
determining the legal meaning of human
rights provisions in the International
Covenant on Civil and Political Rights
(ICCPR).
6. Human rights obligations that require
action on the part of a government are
known as:
A. No human rights obligations require action on
the part of governments;
B. Positive obligations;
C. Marginal obligations;
D. Negative obligations.
7. On which of the following rights may
states place limitations for the sake of
ensuring the general welfare:
A. The right to life;
B. The right to freedom from torture;
C. The right to recognition as a person before
the law;
D. The right to peaceful assembly.
8. Which of the following rights may
NEVER be derogated from, even during a
state of emergency:
A. The right to freedom from slavery;
B. The right to freedom of movement;
C. The right to freedom of expression;
D. The right to freedom of association.
9. States have an obligation to
___________________,
___________________, and
___________________ the human rights
in the International Covenant on Civil and
Political Rights (ICCPR).

10. Protections for civil and political rights are

contained:
A. Only in the International Covenant on Civil
and Political Rights (ICCPR);
B. Nowhere;
C. In a wide variety of international and
regional human rights instruments;
D. Only at the state level.

ANSWER KEY
1 International Bill of Human Rights, 2C, 3D, 4A,
5 General Comments, 6B, 7D, 8A, 9 Respect,
Protect, Fulfil, 10C

HUMAN RIGHTS | 57
LESSON 3
DEVELOPING LEGALLY BINDING
HUMAN RIGHTS TREATIES II:
THE ICESCR
 LESSON
3

LESSON OBJECTIVES

3.1 Introduction By the end of Lesson 3, the student should be able to meet the
following objectives:
3.2 The International
Covenant on
• Identify the differences between the ICCPR and the ICESCR;
Economic, Social
and Cultural Rights • Describe the types of rights found in the ICESCR;

(ICESCR) • Explain states’ obligations in protecting economic, social, and

cultural human rights;
3.3 Other Instruments
• Understand the continued application of economic, social, and
Dealing with cultural rights during conflict; and
Economic, Social, and
• Understand the historical neglect of economic, social, and cultural
Cultural Rights rights.
3.4 Theoretical and
Practical Issues
Annex A
The International
Covenant on
Economic, Social
and Cultural Rights
(ICESCR)

To view a video introduction of this lesson by the

course author Jessica C. Lawrence, you can
either log in to your virtual classroom, go to www.
peaceopstraining.org/users/media_page/376/
lesson-3, or use your mobile device to scan the
QR code to the left.
3.1 Introduction
So far, we have examined two of the three parts
of the International Bill of Human Rights: the
Universal Declaration of Human Rights (UDHR)
and the International Covenant on Civil and Political
Rights (ICCPR). In this lesson, we will turn to the
third part: the International Covenant on Economic,
Social and Cultural Rights (ICESCR).
Like the ICCPR, the ICESCR was drawn up for
the purpose of transforming the UDHR’s “common
standard of achievement for all peoples and
nations” into binding legal obligations.1 Together,
the ICCPR and the ICESCR cover the full range
of rights that were included in the UDHR (with the
exception of the rights to property and to asylum),
as well as some additional protections that were
added during the drafting period.
As you read through this lesson, keep in mind the
reasons for the separation of civil and political
rights from economic, social, and cultural rights,
and try to imagine what effects the division of rights
has had. Would the human rights landscape look
any different if the Commission on Human Rights
had been able to include all of the civil, political,
economic, social, and cultural rights in a single
treaty? If so, how?
3.2 Economic, Social, and Cultural
Rights
The International Covenant on Economic,
Social and Cultural Rights (ICESCR)
As discussed in Lesson 1, economic, social,
and cultural rights are human rights that protect
individuals’ socio-economic and cultural needs.
These are rights related to the workplace, family,
cultural life, and social security, as well as
access to food, water, housing, health care, and
education. Economic, social, and cultural rights are
important for the well-being of individuals. Their
denial can have serious consequences, including
homelessness, death, oppression, and starvation.
1 UDHR, Preamble.
HUMAN RIGHTS
Economic, social, and cultural rights are also
important because they are indivisible from, and
essential for, the protection of civil and political
rights. For example, a person might find it difficult
or impossible to exercise her right to take part in
political activity or to freedom of expression if her
basic needs of food and shelter have not been met
or if she cannot read or write.
We learned in Lesson 1 that Articles 22 through 28
of the UDHR set out a number of economic, social,
and cultural rights, including:
• The right to social security;
• The right to desirable work and to join trade
unions;
• The right to rest and leisure;
• The right to an adequate standard of living;
• The right to education;
• The right to participate in the cultural life of the
community; and
• The right to a social order that articulates the
UDHR.
The ICESCR, which gives these rights binding
legal force, was adopted by the General Assembly
in 1966, the same year as the ICCPR. As with the
ICCPR, it took another 10 years for the necessary
number of states to become parties to the treaty;
both the ICCPR and ICESCR entered into force
in 1976. Currently, 160 states are party to the
ICESCR.2
The structure of the ICESCR is fairly similar to
that of its sister treaty, the ICCPR. Parts I and II of
both treaties list several structural or overarching
guarantees. Part I of the ICESCR contains a
guarantee of the right of self-determination
of peoples, with wording identical to that in
the ICCPR. We will discuss the evolution and
application of this right in Lesson 6.
2 This number was current as of September
2011. An updated list of all state parties to
the ICESCR can be found in the UN Treaty
Collection website: <http://treaties.un.org/
Pages/ViewDetails.aspx?src=TREATY&mtdsg_
no=IV-3&chapter=4&lang=en>.
| 61
Part II prohibits discrimination of any kind in
the application of the rights of the treaty. The
prohibition of discrimination on the basis of “race,
colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or
other status” assures the protection of economic,
social, and cultural rights for all people, and applies
to every provision of the treaty.3 Additionally, Part II
requires State Parties to progressively implement
the guarantees contained in the ICESCR. We will
return to this provision shortly.
Part III – the “backbone” of the ICESCR – lists the
substantive economic, social, and cultural rights
protected under international law. The ICESCR
protects all of the economic, social, and cultural
rights contained in the UDHR, plus a host of
additional rights.
 Take a moment now to read through and oversee the implementation of the ICESCR.
the ICESCR, attached as Annex A.
The rights protected by the ICESCR might be
roughly divided into the following categories:
• Work (Articles 6–8): including the right to gain
a living through freely chosen or accepted work;
the right to earn a fair wage and equal pay for
equal work; the right to safe and healthy working
conditions; the right to equal opportunity for
advancement; the right to rest, leisure, and
reasonable working hours; and the right to form
trade unions and participate in strikes;
• Social security and social protection (Article 9):
including the right to social security and protection;
• Protection and assistance of the family (Article
10): including the right to marriage by free consent;
the right to maternity benefits; and the right of
children to be free from economic and social
exploitation;
• Adequate standard of living (Article 11):
including the right to food and to be free from
hunger, to clothing, and to housing;
• Health (Article 12): including the right to access
health facilities and services; the right to healthy
occupational and environmental conditions;
and the right to be protected against epidemic
diseases;
3 ICESCR, Art. 2.
62 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
• Education (Articles 13 and 14): including the
right to free and compulsory primary education;
available and accessible secondary and higher
education, to be made progressively free of
charge; and the right of parents to choose
schools for their children; and
• Cultural Life (Article 15): including the right to take
part in cultural life; the right to enjoy the benefits of
scientific advancement; and the right of authors to
protection of their moral and material interests from
scientific, literary, or artistic production.
These substantive rights are followed by a number
of administrative and enforcement provisions, the
nature of which we will discuss in Lesson 4.
In contrast with the ICCPR, which is overseen
by the Human Rights Committee, states initially
declined to establish a treaty body to monitor
The lack of an independent enforcement body
contributed to the stagnation of economic, social,
and cultural rights in comparison with civil and
political rights. As Professor Beth Lyon of Villanova
Law School writes:
Although economic, social and cultural
rights formed a significant part of the original
post-war body of human rights doctrine,
they were casualties of ideologically based
Cold War politics, remaining unenforced and
underdeveloped until the creation of the UN
Committee on Economic, Social and Cultural
Rights … in the late 1980s.4
Frustration with the ineffective monitoring of the
ICESCR ultimately led states to establish the
Committee on Economic, Social and Cultural Rights
in 1985.5 Since then, economic, social, and cultural
rights have begun to make a comeback, and have
gained renewed importance over the last few
decades.
4 Beth Lyon, “Discourse in Development:
A Post-Colonial Theory ‘Agenda’ for the UN
Committee on Economic, Social and Cultural
Rights”, Journal of Gender, Social Policy & the Law,
vol. 10, No. 3 (September 2002), p. 536.
5 Phillip Alston, “Out of the Abyss: The Challenges
Confronting the New U.N. Committee on Economic,
Social and Cultural Rights”, Human Rights Quarterly,
vol. 9, No. 3 (August 1987), pp. 340–2.
The ICESCR, like the ICCPR, is supplemented by
an Optional Protocol to the International Covenant
on Economic, Social and Cultural Rights. This
Optional Protocol, which was adopted in December
2008, will set up an individual complaints procedure
(see discussion in Lesson 4) to be administered by
the Committee on Economic, Social and Cultural
Rights. The Optional Protocol is not yet in force, but
was opened for signature beginning in September
2009 and has so far been signed by 38 states.6 The
Optional Protocol will enter into force three months
after the tenth state has ratified or acceded to the
agreement.7
These several articles of the ICESCR set out a
list of economic, social, and cultural rights that are
held by all human beings. The list is extensive, and
covers a wide range of aspects of human life. But,
as was the case with civil and political rights, it is
far from obvious what each of these rights means.
For example, what exactly does it entail to have a
“right to adequate housing”? Does it mean a right to
basic shelter? A right to shelter with heating and an
indoor toilet? A right to a separate home for each
family? What are governments expected to do in
furtherance of this right?
Since 1985, one source for giving content to these
rights has been the general comments issued by
the Committee on Economic, Social and Cultural
Rights. We will learn a lot more about the Committee
on Economic, Social and Cultural Rights and its
powers in Lesson 4. For now, it is enough to know
that this is the international body that oversees the
implementation of the ICESCR, just as the Human
Rights Committee is charged with overseeing
the ICCPR. From time to time, the Committee on
Economic, Social and Cultural Rights issues general
comments articulating the essential features of some
of the rights contained in the treaty. These comments
are quite elaborate and enumerate the details of
each of the rights they address. As with the general
comments issued by the Human Rights Committee,
there is some discussion about whether, and to what
extent, these general comments are legally binding.
But whether or not they have legal force, they exert
great persuasive authority, and provide a wealth of
information on how we should understand economic,
social, and cultural rights.

Giving Content to Rights

As was the case with civil and political rights,

the content of economic, social, and cultural
rights is not always obvious. The right to free
and compulsory primary education, for example,
may seem fairly straightforward. But what does it
mean to have a right to take part in cultural life?
Giving content to economic, social, and cultural
rights is an important and difficult task, and our
understanding of these rights is – and may perhaps
always be – continually under revision. Who, then,
Young refugee girl with a food ration at the temporary housing facility in
defines what the “right to maternity benefits” or the
Karlovac, Croatia. (UN Photo #31361 by John Isaac, August 1992)
“right to rest and leisure” means?
For example, the Committee on Economic, Social
6 When information on signatories to and Cultural Rights general comment No. 13 sets
the Option Protocol becomes available, it out the core content of the right to education:
will be listed on the UN Treaty Collection
While the precise and appropriate application
website: <http://treaties.un.org/Pages/
of the terms will depend upon the conditions
ViewDetails.aspx?src=TREATY&mtdsg_
prevailing in a particular State party, education
no=IV-3-a&chapter=4&lang=en>.
in all its forms and at all levels shall exhibit the
7 Optional Protocol to the International Covenant
following interrelated and essential features:
on Economic, Social and Cultural Rights, Art. 18.

HUMAN RIGHTS | 63
(a) Availability – functioning educational
institutions and programmes have to be
available in sufficient quantity within the
jurisdiction of the state party. What they
require to function depends upon numerous
factors, including the developmental
context within which they operate; for
example, all institutions and programmes
are likely to require buildings or other
protection from the elements, sanitation
facilities for both sexes, safe drinking water,
trained teachers receiving domestically
competitive salaries, teaching materials,
and so on; while some will also require
facilities such as a library, computer
facilities and information technology;
(b) Accessibility – educational institutions
and programmes have to be accessible to
everyone, without discrimination, within the
jurisdiction of the State party. Accessibility
has three overlapping dimensions:
• Non-discrimination – education must
be accessible to all, especially the
most vulnerable groups, in law and
fact, without discrimination ... ;
• Physical accessibility – education
has to be within safe physical
reach, either by attendance at some
reasonably convenient geographic
location (e.g. a neighbourhood school)
or via modern technology (e.g. access
to a “distance learning” programme);
• Economic accessibility – education
has to be affordable to all ... : whereas
primary education shall be available
“free to all”, States parties are required
to progressively introduce free
secondary and higher education;
(c) Acceptability – the form and substance of
education, including curricula and teaching
methods, have to be acceptable (e.g.
relevant, culturally appropriate and of good
quality) to students and, in appropriate
cases, parents … ;
64 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
(d) Adaptability – education has to be flexible
so it can adapt to the needs of changing
societies and communities and respond to
the needs of students within their diverse
social and cultural settings.
When considering the appropriate application of
these “interrelated and essential features,” the
best interests of the student shall be the primary
consideration.8
As we saw in Lesson 2, explaining the content of
even just this one right is a difficult thing to do. All
of these details may seem like overkill, but they are
important because they let states, individuals, and
other groups know exactly what is expected under
the ICESCR.
The content of the ICESCR, like the ICCPR, is also
elaborated through the decisions of international
judicial and semi-judicial bodies, and the practice
of states themselves. Further helpful (though not
generally authoritative) commentary can be gleaned
from the writings of international scholars, NGOs,
and other civil society and advocacy groups.
Defining the content of rights is only the first step in
determining what is required by the ICESCR. Once
individuals and states are aware of the content of
their rights, the next important question is: what
must states do to enforce them?
The Obligations of the State
As was the case with the ICCPR, states have an
obligation to respect, protect, and fulfil individual’s
economic, social, and cultural rights. Recall that
the obligation to respect is a negative obligation
that requires states to refrain from interfering with
the enjoyment of a right; the obligation to protect
is a positive obligation that requires states to
prevent others from interfering with the enjoyment
of the right; and the obligation to fulfil is a positive
obligation that requires states to adopt appropriate
measures towards the full realization of the right.
For example, a state’s duty to respect, protect, and
fulfil the right to health may include the following
types of obligations:
8 Committee on Economic, Social and Cultural
Rights, “General Comment No. 13” (1999), paras. 6–7.
• Respect: the state must not prevent individuals
from accessing health services, or discriminate
against certain groups in terms of access or
distribution of services;
• Protect: the state must regulate and control the
quality of pharmaceutical drugs manufactured
and sold in its territory, and not allow private
suppliers to market unsafe medicines; and
• Fulfil: the state must help facilitate individuals’
access to the right to health, for example by
building clinics in rural areas, subsidizing
doctors’ visits, providing prenatal care, or
establishing vaccination programmes.
States violate their obligations under the ICESCR
when they fail to ensure that these rights are
enjoyed without discrimination or do not respect,
protect, and fulfil them.
The ICESCR differs from the ICCPR in that
it mandates the “progressive realization” of
economic, social, and cultural rights, rather
than their immediate fulfilment. The concept of
“progressive realization” was included in the
ICESCR in recognition of the fact that the full
implementation of these rights could be very
costly, particularly for developing states. Instead of
insisting that these rights be immediately fulfilled,
therefore, the ICESCR requires only that states
take appropriate measures towards the realization
of economic, social, and cultural rights, to the
maximum of their available resources.
This does not mean that states may wait until they
become wealthy before starting to protect these
rights, but rather allows them to move towards the
full realization of economic, social, and cultural
rights progressively, a bit at a time. States are still
required to demonstrate that they are making an
effort to realize these rights, even at times when
resources are scarce, and must not decrease the
levels of protection currently afforded to individuals
in their territory.
While the majority of economic, social, and cultural
rights are to be progressively realized, there are
five areas in which states must nevertheless take
immediate action:9
9 See: Office of the High Commissioner for
HUMAN RIGHTS
1. Eliminating discrimination: states
must immediately act to begin prohibiting
discrimination in the enjoyment of economic,
social, and cultural rights;
2. Ensuring the protection of economic,
social, and cultural rights that may be
immediately implemented: the Committee
on Economic, Social and Cultural Rights has
clarified that there are some economic, social,
and cultural rights that do not require significant
resource investments and should therefore be
immediately implemented.10 These include:
• Equal pay for equal work;
• The right to form and join trade unions and to
strike;
• The obligation to protect children from
economic and social exploitation;
• The provision of free and compulsory primary
education;
• The obligation to respect the liberty of parents
to choose schools other than those established
by public authorities, so long as they conform
to minimum educational standards;
• The obligation to protect the liberty of
individuals and bodies to establish and direct
educational institutions so long as they conform
to minimum standards; and
• The obligation to respect the freedom
indispensable for scientific research and
creative activity.
3. “Taking steps” to begin the progressive
realization of rights: as noted by the
Committee on Economic, Social and Cultural
Rights, “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.”11
Human Rights, “Frequently Asked Questions on
Economic, Social and Cultural Rights”, Fact Sheet
No. 33 (2008), pp. 15–7, available from <http://
www.ohchr.org/EN/PublicationsResources/Pages/
FactSheets.aspx>.
10 Committee on Economic, Social and Cultural
Rights, “General Comment No. 3” (1990), para. 5.
11 Ibid., para. 2.
| 65
4. Ensuring that no retrogressive measures
are taken: Article 5 mandates that states must
not allow existing economic, social, and cultural
rights to deteriorate by taking retrogressive
measures unless there are strong and
compelling reasons for doing so. For example,
a state may not begin to charge fees for primary
school attendance where none were previously
charged.
5. Meeting minimum core obligations: certain
of the obligations under the ICESCR are
considered to be of immediate effect in order to
meet states’ minimum core obligations. These
are the set of obligations that constitute the
minimum essential levels of each economic,
social, and cultural right. In its general
comments, the Committee on Economic, Social
and Cultural Rights has highlighted a number of
minimum core obligations, including:
• The obligation to ensure the right of access
to employment;12
• The obligation to ensure access to the
minimum essential amount of food; 13
• The obligation to ensure access to basic
shelter, housing and sanitation, and an
adequate supply of water;14
• The obligation to provide essential drugs;15
and
• The obligation to ensure free and
compulsory primary education.16
12 Committee on Economic, Social and Cultural
Rights, “General Comment No. 18” (2005), para. 31.
13 Committee on Economic, Social and Cultural
Rights, “General Comment No. 12” (1999), paras. 6
and 8.
14 Committee on Economic, Social and Cultural
Rights, “General Comment No. 15” (2002), para. 37;
Committee on Economic, Social and Cultural Rights,
“General Comment No. 14“ (2000), para. 43.
15 Committee on Economic, Social and Cultural
Rights, “General Comment No. 14” (2000), para. 43.
16 Committee on Economic, Social and Cultural
Rights, “General Comment No. 13” (1999), para. 57.
66 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
It is important to note that while states have many
obligations under the ICESCR, the government
is not required to provide free health care,
education, water, food, and other goods and
services. The government is required (generally
progressively, but in some cases immediately)
to ensure that the facilities, goods, and services
that are required for the enjoyment of economic,
social, and cultural rights are available and
accessible at affordable prices.17
In some cases, ensuring availability and access
may require that the government provide
subsidized or free services to certain groups of
people who – for example because of severe
poverty or in the event of conflict or natural
disaster – would otherwise not be able to enjoy
their rights.18 And certain services such as
primary education must be provided free of
charge in accordance with the provisions of the
ICESCR. Nevertheless, in the vast majority of
cases, governments are not required to provide
free services to individuals.
In addition, the ICESCR does not dictate that the
government itself must directly provide services
to individuals. The facilities, goods, and services
necessary for the enjoyment of economic,
social, and cultural rights may be dispensed by
either public or private service providers, or any
combination thereof, so long as they remain
available and accessible at an affordable price.
States are responsible for ensuring that these
services meet the criteria laid out in the ICESCR
and elaborated by the general comments, and
therefore must regulate providers or provide
services themselves if no other options are
available. However, government provision is only
one available option for ensuring that persons
receive the goods and services necessary for
enjoying their rights.
17 See: Office of the High Commissioner for
Human Rights, “Frequently Asked Questions on
Economic, Social and Cultural Rights”, Fact Sheet
No. 33 (2008), p. 20, available from <http://www.
ohchr.org/EN/PublicationsResources/Pages/
FactSheets.aspx>.
18 Ibid.
Writing Exercise 3: Food as a Right

You are working in a small country that is

party to the ICESCR. The national government
is running short of funds due to recent global
economic difficulties. In an effort to cut costs and
survive the economic downturn, the president
has decided to eliminate several social welfare
programmes, including the Hungry Families
Initiative, which for the last five years has
provided basic food supplies such as rice and
dried beans to families that fall below a certain
income threshold. Following the elimination of
the programme, people from local villages begin
to march in protest against what they see as a
violation of their right to food.
The United Republic of Tanzania has developed a system of primary
Consider the following questions and write a health care to serve the needs of its more than 19.3 million people. A
brief report (maximum one page). number of health care workers have been trained to provide basic health
services in rural areas. At a mobile clinic near Singida, a health worker
immunizes a child against major childhood diseases.
• Has the state violated the right to food (UN Photo #317544 by Sean Sprague, January 1984)
in this case? Is it easy to tell?

• What factors are relevant in making this
determination?
• What are the possible long-term
implications of your answer? Do
governments ever have a responsibility
to provide food? Do they always have
this responsibility? If so, why?
Limitations and Derogations from the ICESCR
Any attempts to suspend the rights included in
the convention are therefore subject to several
conditions: (1) that they are lawful; (2) that they are
compatible with the nature of the rights; and (3) that
they have been enacted for the purpose of ensuring
the general welfare. For example, a state may limit
the right to strike by requiring workers to first inform
the local police of their intentions, but must not
prevent them from doing so if they proceed in an
orderly fashion.

As was the case with the ICCPR, governments
may limit (apply with restrictions) the rights listed
in the ICESCR in order to facilitate the orderly
functioning of society, but this can be done only in
very narrow circumstances, and only to the extent
necessary. As explained by Article 4:
The States Parties to the present Covenant
recognize that, in the enjoyment of those rights
provided by the State in conformity with the present
Covenant, the State may subject such rights only
to such limitations as are determined by law only in
so far as this may be compatible with the nature of
these rights and solely for the purpose of promoting
the general welfare in a democratic society.19
Unlike the ICCPR, the ICESCR contains no general
derogation clause. This means that the rights
contained in the ICESCR continue to apply even
in times of public emergency, and states are never
allowed to suspend them altogether. However,
because most of the provisions in the ICESCR are
to be implemented progressively and only to the
maximum extent permitted by available resources,
a state may argue that in times of conflict it simply
has fewer resources to devote to the fulfillment of
these rights.
We will return to this issue of the protection of
human rights during armed conflict in Lesson 12.

19 ICESCR, Art. 4.

HUMAN RIGHTS | 67
3.3 Other Instruments dealing with
Economic, Social, and Cultural Rights
In addition to the UDHR and the ICESCR, there are
many other international and regional human rights
treaties that include economic, social, and cultural
rights. Many of these pertain to specific groups or
subject matters, and also contain civil and political
rights. Treaties with economic, social, and cultural
rights include, at the international level:
• The International Convention on the Elimination
of All Forms of Racial Discrimination (CERD): for
example the elimination of racial discrimination in
the enjoyment of the rights to work, education, and
housing;
• The Convention on the Elimination of All Forms
of Discrimination Against Women (CEDAW): for
example the elimination of gender discrimination in
the enjoyment of the rights to work and education
and appropriate health care;
• The Convention on the Rights of the Child (CRC):
for example the right of every child to education and
health care;
• The International Convention on the Protection of
the Rights of All Migrant Workers and Members
of Their Families (ICRMW): for example the right
to equal working conditions, and the provision of
emergency medical care;
• The Convention on the Rights of Persons with
Disabilities (CRPD): for example the right to be
included in the community and to an education; and
• The Declaration on the Rights of Indigenous
Peoples: for example the right to practice cultural
traditions and the right to control their own
educational institutions.
And at the regional level:
• Europe: the European Convention for the Protection
of Human Rights and Fundamental Freedoms, its
First Protocol, the European Social Charter, and the
Revised European Social Charter; and the Charter
of Fundamental Rights of the European Union;
• Americas: the American Convention on Human
Rights, and the Additional Protocol to the
American Convention on Human Rights in the
Area of Economic, Social and Cultural Rights
(Protocol of San Salvador);
68 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
• Africa: the African Charter on Human and
Peoples’ Rights, the African Charter on the
Rights and Welfare of the Child, and the Protocol
to the African Charter on Human and Peoples’
Rights on the Rights of Women in Africa; and
• Arab League: the Arab Charter on Human Rights.
Generally speaking, each of these regional treaties
protects rights similar to those contained in the
ICESCR. But each also has its own peculiarities,
and some focus on different aspects of economic,
social, and cultural rights than others. We will return
to the subject of regional agreements and look more
closely at their particular structures in Lesson 5.
In addition, several different international
organizations assist in protecting economic,
social, and cultural rights. The International
Labour Organization (ILO) and the World Health
Organization (WHO), for example, began working
on labour and health issues long before the
development of binding international human rights
treaties. The Food and Agriculture Organization
(FAO), International Organization for Migration
(IOM), United Nations Human Settlements
Programme (UN-Habitat), and United Nations
Educational, Scientific and Cultural Organization
(UNESCO) all assist countries and individuals in
respecting, protecting, and fulfilling economic,
social, and cultural human rights.
As was the case with civil and political rights,
non-state actors such as NGOs, social movements,
community-based organizations, professional
associations, trade unions, the media, private
businesses, and other institutions may also
contribute to the protection of economic, social,
and cultural rights.
Finally, national governments have a particularly
important role to play. States like Mexico
recognized early on that human rights such as
the right to an education, the right to work, and
the right to health were part of the law of the land,
and included these economic, social, and cultural
rights in its national constitution long before the
signing of the ICESCR. Other states, like South
Africa and India, have also made economic, social,
and cultural rights a major part of their national
constitutions, and have been leading players in
fleshing out the content and limits of these rights.
3.4 Theoretical and Practical Issues
Explaining the Underdevelopment of
Economic, Social, and Cultural Rights
As noted in Lesson 2, despite the indivisibility,
interdependence, and interrelatedness of rights,
economic, social, and cultural rights have proven
more controversial and difficult to enforce than
civil and political rights. Until a recent revival,
economic, social, and cultural rights were long
a relatively neglected area on the international
human rights agenda, afforded “second-class
status” in comparison with the rights contained in
the ICCPR. As the Committee on Economic, Social
and Cultural rights noted at the World Conference
on Human Rights in Vienna:
Woman collects water from a deep well in Tomboberi,
Niger. (The right to water is protected by ICESCR Articles
11 and 12, according to the Committee on Economic,
Social and Cultural Rights’ general comment 15).
(UN Photo #84098 by Jeffrey Foxx, January 1983)
HUMAN RIGHTS
Denial of the right to vote or of the right to
freedom of speech, solely on the grounds of
race or sex, is loudly and rightly condemned by
the international community. Yet deep-rooted
forms of discrimination in the enjoyment of
economic, social and cultural rights against
women, the elderly, the disabled and other
vulnerable and disadvantaged groups are all too
often tolerated as unfortunate realities. Thus, for
example, many human rights advocates have
little to say in response to the fact that women
in many countries “are generally rewarded [for
the disproportionate work burden they bear]
with less food, less health care, less education,
less training, less leisure, less income, less
rights and less protection.” Statistical indicators
of the extent of deprivation, or breaches, of
economic, social and cultural rights have been
cited so often that they tended to lose their
impact. The magnitude, severity and constancy
of that deprivation have provoked attitudes
of resignation, feelings of helplessness and
compassion fatigue.20
There are many reasons for this relative
underdevelopment of economic, social, and cultural
rights. To begin with, as discussed in the previous
two lessons, the split between civil and political
rights and economic, social, and cultural rights
was entrenched when it became intertwined with
Cold War politics. Western states continued to
argue that economic and social rights were “goods
[that] the government ought to encourage over
the long term,” while civil and political rights were
“rights [that] the government has an absolute duty
to respect at any time.”21 This strict separation of
civil and political rights from economic, social, and
cultural rights has been increasingly abandoned
in recent years, and newer treaties such as the
Convention on the Rights of the Child (CRC) and
the Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW) have
integrated the two types of rights into a unitary
whole.
20 A/CONF.157/PC/62/Add.5, annex 1, paras. 6–7.
21 Hearing Before the House Subcommittee on
Human Rights and International Organizations,
“Review of State Department Country Reports on
Human Rights Practices for 1981”, 28 April 1982,
97th Congress, 2nd Session, pp.13–7.
| 69
 The Importance of Economic, Social, and Cultural Rights

“The importance of economic, social and cultural rights cannot be overstated. Poverty and exclusion lie behind
many of the security threats that we continue to face both within and across borders and can thus place at risk
the promotion and protection of all human rights. Even in the most prosperous economies, poverty and gross
inequalities persist and many individuals and groups live under conditions that amount to a denial of economic,
social, civil, political and cultural human rights. Social and economic inequalities affect access to public life and to
justice. Globalization has generated higher rates of economic growth, but too many of its benefits have been enjoyed
unequally, within and across different societies. Such fundamental challenges to human security require action at
home as well as international cooperation.”

Louise Arbour, then-United Nations High Commissioner for Human Rights

(Geneva, 14 January 2005)

Second, many argued that the content of economic,
social, and cultural rights was insufficiently defined.
Rights like “the right to health” were seen as vague
and unclear when compared with civil and political
rights. This lack of clarity, it was thought, made
them difficult to apply and enforce. The fact that
these rights were “vaguely worded” was used by
some to argue that economic, social, and cultural
rights were not justiciable – that is, that they could
not be subject to judicial enforcement – because
judges would not be able to tell whether violations
had occurred.
Opponents of this view, however, pointed out
that while it is true that some economic, social,
and cultural rights are more clearly defined than
others, this is equally the case with civil and
political rights. For example, the “right to take part
in cultural life” in the ICESCR is defined no more
or less clearly than “the right to take part in the
conduct of public affairs” in the ICCPR. Moreover,
judges have had to deal with a lack of clear
definitions in many circumstances, for example
in defining what constitutes a “fair trial” or an
“arbitrary or unlawful interference with privacy.”
Indeed, judges at the national level have already
been dealing with this issue for a number of
years. In countries such as India, South Africa,
and Colombia, judges have developed a growing
jurisprudence on issues of economic, social, and
cultural rights, hearing cases on issues such
as the rights to housing, food, education, and
health.22
22 See: Government of RSA and others v.
Third, some nations protested against being held
accountable for violations of economic, social, and
cultural rights because they saw them as far too
difficult and costly to respect, protect, and fulfil.
Because economic, social, and cultural rights
were regarded as positive rights that required
government action, in contrast with civil and
political rights, which were seen as negative rights
that merely required a government not to interfere,
some thought the rights protected by the ICESCR
would require much greater investment on the part
of governments.
It is indeed true that the protection of economic,
social, and cultural rights may sometimes require
high degrees of investment. However, as defenders
of economic, social, and cultural rights pointed
out, civil and political rights often require similar
investments. As noted in Lesson 1, enforcing
“negative” civil and political rights like the right to
vote requires a huge governmental investment in
the system of electoral rules and facilities, laws
to promote and protect voters, and provisions to
guarantee access to minority, disabled, rural, and
other citizens.
Grootboom and others, Constitutional Court,
1995(1) SA46 (CC) (interpreting the South African
Constitutional provision on the right of access
to housing as granting limited housing rights to
displaced people).

70 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
Economic, Social, and Cultural Rights and
Women
The asymmetry between economic, social, and
cultural rights and civil and political rights has also
had important consequences for women’s rights.
Economic, social, and cultural rights are particularly
significant for women due to the disproportionate
effects of poverty and social marginalization on
their lives.23 Despite making up half of the world’s
population, women represent around 70 per cent of
the 1.2 billion people living in poverty and own only
1 per cent of the worlds’ wealth,24 a situation that
has sometimes been referred to as the feminization
of poverty. Women are frequently disadvantaged
in areas such as literacy, education, skills,
employment opportunities, mobility, and political
representation, and are often the first to be denied
food and other essentials in times of hardship.25
In a classic 1990 essay, Nobel Prize-winning
economist Amartya Sen wrote: “More than
100 million women are missing.”26 In normal
circumstances, he noted, women live longer than
men, so in a typical population there should be
slightly more females than males. In places where
women and girls suffer from unequal status,
however, they begin to vanish. Girls are denied
health care and food, are vaccinated at lower
rates, and are selectively aborted by parents who
prefer male children. As a result, many countries
have skewed populations in which men outnumber
women. China, for example, has 107 males for
every 100 females in its overall population, and
in India, girls between the ages of one and five
are 50 per cent more likely to die than boys in
the same age range.27 This economic and social
23 Barbara J. Stark, “Women’s Rights”, in
Encyclopedia of Human Rights, David P. Forsythe,
ed. (Oxford, Oxford University Press, 2009).
24 Amnesty International, “Economic, Social and
Cultural Rights (ESCR) and Women: A Fact Sheet”
(2005), p. 1.
25 Ibid.
26 Amartya Sen, “More than 100 Million Women
are Missing”, New York Review of Books, vol. 37,
No. 20 (20 December 1990).
27 Nicholas D. Kristof and Sheryl WuDunn, “The
Women’s Crusade”, New York Times Magazine (17
August 2009).
HUMAN RIGHTS
subordination contributes to a cycle of oppression
in which women are disproportionately subject to
violence and exploitation.28
Political philosophers frequently speak of a divide
between the “public” sphere of political life as
opposed to a “private” sphere of the home and family.
Feminist scholars have pointed out that this divide
between public and private life also lines up with the
traditional gender divide between men and women.
Historically, men have had privileged access to the
public sphere of government and economics, while
women have been relegated to the private sphere of
family and unpaid work in the home.
Public Private
• Men/Masculinity • Women/Femininity
• Politics • Family
• Paid work outside • Unpaid work inside
the home the home
With respect to the international bill of human rights,
some feminist scholars have argued that one may
view the ICCPR – with its provisions on political
participation, judicial rights, and expressive freedoms
– as intended to protect individual rights in the public
sphere that are traditionally associated with men.
The ICESCR, on the other hand, with its focus on fair
work, social security, family, health, and education,
is designed to protect individual rights in the private
sphere that are traditionally associated with women.
From this perspective, the emphasis on “public” civil
and political rights comes at the expense of rights
in the “private” world, and thus also at the expense
of issues of concern to “privatized” women, which
are reflected in economic, social, and cultural rights.
As feminst and international law professor Hilary
Charlesworth wrote:
International law accords priority to civil and
political rights, rights that may have very little
to offer women generally. The major forms
of oppression of women operate within the
economic, social and cultural realms. Economic,
social and cultural rights are traditionally
regarded as a lesser form of international right
and as much more difficult to implement.29
28 See Lesson 8 for a more thorough discussion
of women’s rights and what has been done to
protect women in international human rights law.
29 Hilary Charlesworth, Christine Chinkin,
| 71
The asymmetry between civil and political and Further Reading
economic, social, and cultural rights can thus also
be seen as reflecting the asymmetry between men Asbjørn Eide, Economic, Social and Cultural Rights
and women in terms of political, economic, and (2001); Isfahan Merali and Valerie Oosterveld eds.,
social power. Similarly, the subordination of the Giving Meaning to Economic, Social and Cultural
ICESCR reflects and contributes to the continued Rights (2001).
subordination of women.
Websites for Further Information
In the past decade, the gap between civil and
political and economic, social, and cultural rights General Comments of the Committee on Economic,
has begun, slowly, to narrow. In particular, the Social and Cultural Rights:
newly adopted Optional Protocol to the ICESCR, www2.ohchr.org/english/bodies/cescr/comments.
the provisions of which we will discuss in Lesson htm
4, represents “a milestone in the history of the
universal human rights system,” one that “will mark The Office of the High Commissioner for Human
a high point of the gradual trend towards a greater Rights’ Committee on Economic, Social and Cultural
recognition of the indivisibility and interrelatedness Rights page:
of all human rights.”30 The adoption of the Optional www2.ohchr.org/english/bodies/cescr/
Protocol is a recognition that economic, social, and
cultural rights are justiciable and that states can
and should be held accountable for their failures to
sufficiently comply with their obligations under the
ICESCR. It is the culmination of over two decades
of advocacy on the part of the Committee on
Economic, Social and Cultural Rights as well as
NGOs and civil society groups.

Conclusion

In Lessons 2 and 3 we learned how the basic set of

human rights principles outlined in the UDHR was
translated into covenants containing legally binding
obligations. We have seen how these rights were
given content, and what states are required to do
to enforce them. However, we are still missing one
piece of the puzzle: How are these rights enforced?
Who monitors whether states are meeting their
obligations? Where can individuals go with
complaints about violations of their human rights?
When and how can the international community act
to protect individual rights? This will be the subject
of Lesson 4.

and Shelley Wright, “Feminist Approaches

to International Law”, American Journal of
International Law, vol. 85 (1991), p. 635.
30 Statement by Louise Arbour, High
Commissioner for Human Rights to the
Open-ended Working Group on an optional
protocol to the International Covenant on
Economic, Social and Cultural Rights, Fifth
session, 31 March 2008.

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Annex A: International Covenant on Economic, Social
and Cultural Rights

International Covenant on Economic, Social and Cultural Rights

(Substantive Provisions)

PREAMBLE

The States Parties to the present Covenant,

Considering that, in accordance with the principles proclaimed in the Charter of the United Nations,
recognition of the inherent dignity and of the equal and inalienable rights of all members of the human
family is the foundation of freedom, justice and peace in the world,

Recognizing that these rights derive from the inherent dignity of the human person,

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

Considering the obligation of States under the Charter of the United Nations to promote universal respect
for, and observance of, human rights and freedoms,

Realizing that the individual, having duties to other individuals and to the community to which he belongs,
is under a responsibility to strive for the promotion and observance of the rights recognized in the present
Covenant,

Agree upon the following articles:

PART I
Article 1

1. All peoples have the right of self-determination. By virtue of that right they freely determine their political
status and freely pursue their economic, social and cultural development.

2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without
prejudice to any obligations arising out of international economic co-operation, based upon the principle
of mutual benefit, and international law. In no case may a people be deprived of its own means of
subsistence.

3. The States Parties to the present Covenant, including those having responsibility for the administration
of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination,
and shall respect that right, in conformity with the provisions of the Charter of the United Nations.

HUMAN RIGHTS | 73
PART II
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.

Article 3

The States Parties to the present Covenant undertake to ensure the equal right of men and women to the
enjoyment of all economic, social and cultural rights set forth in the present Covenant.

Article 4

The States Parties to the present Covenant recognize that, in the enjoyment of those rights provided
by the State in conformity with the present Covenant, the State may subject such rights only to such
limitations as are determined by law only in so far as this may be compatible with the nature of these rights
and solely for the purpose of promoting the general welfare in a democratic society.

Article 5

1. Nothing in the present Covenant may be interpreted as implying for any State, group or person any right
to engage in any activity or to perform any act aimed at the destruction of any of the rights or freedoms
recognized herein, or at their limitation to a greater extent than is provided for in the present Covenant.

2. No restriction upon or derogation from any of the fundamental human rights recognized or existing in
any country in virtue of law, conventions, regulations or custom shall be admitted on the pretext that the
present Covenant does not recognize such rights or that it recognizes them to a lesser extent.

74 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
PART III
Article 6

1. The States Parties to the present Covenant recognize the right to work, which includes the right of
everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take
appropriate steps to safeguard this right.

2. The steps to be taken by a State Party to the present Covenant to achieve the full realization of this
right shall include technical and vocational guidance and training programmes, policies and techniques
to achieve steady economic, social and cultural development and full and productive employment under
conditions safeguarding fundamental political and economic freedoms to the individual.

Article 7

The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and
favourable conditions of work which ensure, in particular:

(a) Remuneration which provides all workers, as a minimum, with:

(i) 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;

(ii) A decent living for themselves and their families in accordance with the provisions of the
present Covenant;

(b) Safe and healthy working conditions;

(c) Equal opportunity for everyone to be promoted in his employment to an appropriate higher level,
subject to no considerations other than those of seniority and competence;

(d ) Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as
remuneration for public holidays

Article 8

1. The States Parties to the present Covenant undertake to ensure:

(a) The right of everyone to form trade unions and join the trade union of his choice, subject only to the
rules of the organization concerned, for the promotion and protection of his economic and social interests.
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;

HUMAN RIGHTS | 75
 (b) The right of trade unions to establish national federations or confederations and the right of the
latter to form or join international trade-union organizations;

(c) The right of trade unions to function freely subject to no limitations 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;

(d) The right to strike, provided that it is exercised in conformity with the laws of the particular country.

2. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by
members of the armed forces or of the police or of the administration of the State.

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 Right to Organize to take legislative
measures which would prejudice, or apply the law in such a manner as would prejudice, the guarantees
provided for in that Convention.

Article 9

The States Parties to the present Covenant recognize the right of everyone to social security, including
social insurance.

Article 10

The States Parties to the present Covenant recognize that:

1. The widest possible protection and assistance should be accorded to the family, which is the natural
and fundamental group unit of society, particularly for its establishment and while it is responsible for the
care and education of dependent children. Marriage must be entered into with the free consent of the
intending spouses.

2. Special protection should be accorded to mothers during a reasonable period before and after
childbirth. During such period working mothers should be accorded paid leave or leave with adequate
social security benefits.

3. Special measures of protection and assistance should be taken on behalf of all children and young
persons without any discrimination for reasons of parentage or other conditions. Children and young
persons should be protected from economic and social exploitation. Their employment in work harmful
to their morals or health or dangerous to life or likely to hamper their normal development should be
punishable by law. States should also set age limits below which the paid employment of child labour
should be prohibited and punishable by law.

76 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
Article 11

1. The States Parties to the present Covenant recognize the right of everyone to an adequate standard
of living for himself and his family, including adequate food, clothing and housing, and to the continuous
improvement of living conditions. The States Parties will take appropriate steps to ensure the realization
of this right, recognizing to this effect the essential importance of international co-operation based on free
consent.

2. The States Parties to the present Covenant, recognizing the fundamental right of everyone to be free
from hunger, shall take, individually and through international co-operation, the measures, including
specific programmes, which are needed:

(a) To improve methods of production, conservation and distribution of food by making full use of
technical and scientific knowledge, by disseminating knowledge of the principles of nutrition and by
developing or reforming agrarian systems in such a way as to achieve the most efficient development
and utilization of natural resources;

(b) Taking into account the problems of both food-importing and food-exporting countries, to ensure an
equitable distribution of world food supplies in relation to need.

Article 12

1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the
highest attainable standard of physical and mental health.

2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this
right shall include those necessary for:

(a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy
development of the child;

(b) The improvement of all aspects of environmental and industrial hygiene;

(c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases;

(d) The creation of conditions which would assure to all medical service and medical attention in the
event of sickness.

Article 13

1. The States Parties to the present Covenant recognize the right of everyone to education. They agree
that education shall be directed to the full development of the human personality and the sense of its
dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree

HUMAN RIGHTS | 77
that education shall enable all persons to participate effectively in a free society, promote understanding,
tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the
activities of the United Nations for the maintenance of peace.

2. The States Parties to the present Covenant recognize that, with a view to achieving the full realization of
this right:

(a) Primary education shall be compulsory and available free to all;

(b) Secondary education in its different forms, including technical and vocational secondary education,
shall be made generally available and accessible to all by every appropriate means, and in particular
by the progressive introduction of free education;

(c) Higher education shall be made equally accessible to all, on the basis of capacity, by every
appropriate means, and in particular by the progressive introduction of free education;

(d) Fundamental education shall be encouraged or intensified as far as possible for those persons
who have not received or completed the whole period of their primary education;

(e) The development of a system of schools at all levels shall be actively pursued, an adequate
fellowship system shall be established, and the material conditions of teaching staff shall be
continuously improved.

3. The States Parties to the present Covenant undertake to have respect for the liberty of parents and,
when applicable, legal guardians to choose for their children schools, other than those established by
the public authorities, which conform to such minimum educational standards as may be laid down or
approved by the State and to ensure the religious and moral education of their children in conformity with
their own convictions.

4. No part of this article 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 principles set forth in
paragraph I of this article and to the requirement that the education given in such institutions shall conform
to such minimum standards as may be laid down by the State.

Article 14

Each State Party to the present Covenant which, at the time of becoming a Party, has not been able to
secure in its metropolitan territory or other territories under its jurisdiction compulsory primary education,
free of charge, undertakes, within two years, to work out and adopt a detailed plan of action for the
progressive implementation, within a reasonable number of years, to be fixed in the plan, of the principle
of compulsory education free of charge for all.

78 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
Article 15

1. The States Parties to the present Covenant recognize the right of everyone:

(a) To take part in cultural life;

(b) To enjoy the benefits of scientific progress and its applications;

(c) 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.

2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this
right shall include those necessary for the conservation, the development and the diffusion of science and
culture.

3. The States Parties to the present Covenant undertake to respect the freedom indispensable for
scientific research and creative activity.

4. The States Parties to the present Covenant recognize the benefits to be derived from the
encouragement and development of international contacts and co-operation in the scientific and cultural
fields.

G.A. res. 2200A (XXI), U.N. Doc A/6316 (1966)

HUMAN RIGHTS | 79
End-of-Lesson Quiz
1. The ___________________, the
___________________, and the
___________________ make up the
three parts of the International Bill of
Human Rights.
2. The prohibition of discrimination in
Article 2 of the International Covenant
on Economic, Social and Cultural Rights
(ICESCR) applies to:
A. All rights in the treaty;
B. Only the provisions relating to work;
C. Only the provisions relating to health;
D. Nothing. It is merely a suggestion.
3. Which of the following rights is NOT
protected by the International Covenant
on Economic, Social and Cultural Rights
(ICESCR)?
A. The right to access to health facilities and
services;
B. The right to free and compulsory primary
education;
C. The right to be free from torture;
D. The right to take part in cultural life.
4. The Optional Protocol to the International
Covenant on Economic, Social and
Cultural Rights (ICESCR) was adopted
in:
A. 1918;
B. 1948;
C. 1966;
D. 2008.
80 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
5. General comments of the Committee on
Economic, Social and Cultural Rights are
helpful for:
A. Understanding the voting patterns of states
at the United Nations;
B. Determining the legal meaning of human
rights provisions in the International
Covenant on Economic, Social and Cultural
Rights (ICESCR);
C. Adding new rights to the International
Covenant on Economic, Social and Cultural
Rights (ICESCR);
D. Eliminating rights from the International
Covenant on Economic, Social and Cultural
Rights (ICESCR).
6. Which of the following does NOT
describe a state’s obligations under the
International Covenant on Economic,
Social and Cultural Rights:
A. States must respect economic, social,
and cultural rights;
B. States must protect economic, social,
and cultural rights;
C. States must fulfil economic, social, and
cultural rights;
D. States must guarantee economic, social,
and cultural rights.
7. The concept of progressive realization
means:
A. States can ignore economic, social, and
cultural rights;
B. States must implement all economic, social,
and cultural rights immediately;
C. States must implement economic, social,
and cultural rights over time, to the maximum
of their available resources;
D. States may choose which economic, social,
and cultural rights they want to recognize.
8. The prohibition on taking retrogressive
measures means:
A. States may not allow existing economic,
social, and cultural rights to deteriorate;
B. States may not imprison people for newly
invented crimes;
C. States must ensure that they do not
discriminate when protecting economic,
social, and cultural rights;
D. States must immediately implement the right
to free and compulsory primary education.

9. The obligations under the International

Covenant on Economic, Social and
Cultural Rights (ICESCR) that
constitute the minimum essential
levels of each right are known as the
___________________.

10. The International Covenant on Economic,

Social and Cultural Rights (ICESCR)
requires states to:
A. Provide free health care, education, water,
food, and other goods and services to
everyone;
B. Ensure that the facilities, goods, and
services that are required for the enjoyment
of economic, social, and cultural rights
are available and accessible at affordable
prices, from either public or private sources;
C. Eliminate private providers of goods and
services necessary for the enjoyment of
economic, social, and cultural rights;
D. Privatize all goods and services necessary
for the enjoyment of economic, social, and
cultural rights. ANSWER KEY
1 Universal Declaration of Human Rights (UDHR),
International Covenant on Civil and Political Rights
(ICCPR), International Covenant on Economic,
Social and Cultural Rights (ICESCR), 2A, 3C, 4D,
5B, 6D, 7C, 8A, 9 Minimum Core Obligations, 10B

HUMAN RIGHTS | 81
LESSON 4
ENFORCEMENT MECHANISMS I:
THE UN SYSTEM
 LESSON
4

LESSON OBJECTIVES

4.1 Introduction By the end of Lesson 4, the student should be able to meet the
following objectives:
4.2 Charter Bodies
4.3 Treaty Bodies • Explain the need for enforcement mechanisms;
• Identify who holds the primary responsibility for enforcing human
rights;
• Describe the UN system of human rights protection;
• Identify the primary Charter-based bodies for the protection of
human rights; and
• Understand the powers of treaty bodies for enforcing human rights
norms.

To view a video introduction of this lesson by the

course author Jessica C. Lawrence, you can
either log in to your virtual classroom, go to www.
peaceopstraining.org/users/media_page/377/
lesson-4, or use your mobile device to scan the
QR code to the left.
4.1 Introduction
The Need for International Enforcement
Mechanisms
In the previous two lessons we learned how the
human rights set out in the UDHR were translated
into binding legal obligations through the ICCPR
and the ICESCR. We looked at what the rights
in these documents mean, how their content is
developed, and what states are required to do
to ensure that they are protected. In Lessons 4
and 5 we move on to examine another important
question: how are human rights enforced?
As we saw in Lessons 2 and 3, the ICCPR and
ICESCR place the primary obligation to respect,
protect, and fulfil human rights on the shoulders of
states. By becoming party to these treaties, a state
agrees to take on the responsibility to ensure that
civil, political, economic, social, and cultural rights
can be fully enjoyed by all. States are tasked with
enforcing human rights both between one individual
and another, and between individuals and the
state itself. In short, states are the principal entities
responsible for enforcing human rights.
Countries can fulfil their obligation to enforce
human rights in several ways, with different state
organs playing a variety of roles. Governments
protect rights by passing human rights legislation
that sets clear rules and establishes mechanisms
for enforcement. They may establish a national
human rights institution (NHRI) to oversee the
implementation of human rights in the country.1
They can work to ensure the presence of an
independent judiciary, which is essential for
individuals to bring claims and seek justice when
their rights are violated, and they can establish
educational programmes and campaigns to provide
cultural- and context-sensitive information to
individuals about what rights they have and what
they can do to enforce them.
1 A growing number of countries have established
NHRIs in recent years. For an unofficial list, visit the
National Human Rights Institutions Forum’s global
directory at <http://nhri.ohchr.org/EN/National/
DirectoryOfInstitutions/Pages/Global.aspx>.
HUMAN RIGHTS
Perhaps in a perfect world, all states would take
their human rights obligations seriously, rigorously
enforcing their treaty obligations through legislative
and judicial action. Unfortunately, this is not always
the case. Even when states know the content of
human rights and are aware of their obligations to
respect, protect, and fulfil them, they may sometimes
still fail to do so.
Failure to protect human rights happens in many
circumstances – a government may be going through
a difficult transition period, may be spending its budget
and political capital in other areas, or it simply may not
care, or think it expedient to ignore the human rights of
citizens and others in its territory. The national judiciary
may be inadequate, partial, corrupt, or otherwise
unwilling or unable to deal with complaints. In some
cases, a government may even begin to commit gross
and systematic human rights abuses, for example
against minority groups or political opponents.
In cases like these, how can individuals and the
international community ensure that the state
continues to fulfil its human rights obligations?
On the Importance of Enforcement
Mechanisms
“Covenants, without the sword, are but words
and of no strength to secure a man at all.”
Thomas Hobbes
Issues in Developing International Enforcement
Mechanisms
This problem of international enforcement is a
difficult one. As discussed in Lesson 1, the principle
of sovereignty generally prevents states and the
international community from interfering in the internal
affairs of other states. Because of the preeminence
of state sovereignty, the very concept of international
“enforcement” is strongly resisted by many national
governments. This means that under international
law, one country cannot simply send its army or
police force into another state to stop it from violating
human rights, and there is no world court with armies
at its disposal that could try a state for violations and
then force it to comply with a judgment.
| 85
Moreover, individual states have little incentive (at
least in the traditional material sense) to act against
violators. After all, a state that violates human rights
norms is generally acting against its own citizens,
not those under the protection of other states. A
country may legitimately question why it should
invest its limited monetary and military resources in
assisting persons in another state who have been
wrongfully imprisoned by their own government.
In addition, debate over which human rights
norms are “enforceable” continues. As we have
learned, the Cold War and its division of states into
Western and socialist blocs had a major influence
on the development of human rights treaties
and initiatives. Although tensions between East
and West faded during the 1990s, new tensions
between the global North and global South have
manifested. These newer disagreements involve
questions such as whether emphasis should be
placed on specific violations of human rights or
more general trends; the importance that should
be given to economic, social, and cultural rights
as compared with civil and political rights and
emerging “third generation” rights like the right to
development (which we will examine in Lesson 7);
and how much power should be granted to human
rights “experts” in comparison with the direct
political representatives of states.2
Overcoming these obstacles to international
enforcement of human rights norms has been
a difficult process. Balancing the traditional
inviolability of sovereign states against the modern
“globalization” of human rights issues has required
a great deal of legal contortion, and states continue
to contest the application of particular standards
and enforcement mechanisms. Consequently,
legally binding human rights treaties have not
developed in a standard or comprehensive way,
but rather have blossomed in fits and starts, taking
opportunities as they arose. The particular historical,
cultural, regional, and institutional context in which
each human rights treaty originated has had a
tremendous impact on the enforcement mechanisms
that are available in each situation. As a result, the
2 Henry J. Steiner, Philip Alston, and Ryan
Goodman, International Human Rights in Context:
Law, Politics, Morals (Third Edition) (Oxford, Oxford
University Press, 2007), p. 741.
86 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
map of international human rights enforcement is, to
put it mildly, complex.
In the end, we have been left with a hodgepodge
of various overlapping and complementary
enforcement mechanisms that work together to
encourage states to respect, protect, and fulfil
international human rights. These enforcement
mechanisms have developed over time, in
response to specific needs and capabilities. They
serve a number of functions, ranging from advice
and assistance, to supervision and reporting, to
correction and remedy, to prevention – and they rely
on a number of methods, including combinations of:
• Standard-setting;
• Monitoring and reporting;
• Moral pressure;
• Practical assistance;
• Litigation; and
• Direct intervention.
We will approach the topic of human rights
enforcement mechanisms by examining several
“systems” of protection. First, in this lesson, we will
examine the United Nations, or “global”, system.
The UN’s machinery for the enforcement of human
rights consists of two different types of organs:
• Charter-based organs: these include UN bodies
that were either directly mandated by the UN
Charter or authorized by a body that was directly
created by the Charter. Because they draw their
legitimacy from the UN Charter and its human
rights provisions, these organs have a broad
mandate to promote awareness, encourage
respect, and respond to violations of international
human rights norms. They can focus on a diverse
range of issues, respond flexibly to the needs
of the moment, and address themselves to any
Member State of the UN.
• Treaty-based organs: these include bodies that
were created by human rights treaties originating
in UN processes. Because they draw their
legitimacy from a specific treaty, these organs
are much more limited in their mandates than
Charter-based organs. Their jurisdiction (what and
who they are allowed to address) is limited by the
terms and subject of the treaty under which they
were formed, and extends only to those states
that are parties to that particular treaty.
We will discuss each of these types of enforcement
mechanisms in turn.
In Lesson 5, we will examine each of the major
regional systems for enforcing human rights,
and then take a look at the scattered set of
international organizations, expert bodies, and
non-governmental organizations (NGOs) that
contribute to the enforcement of international
human rights norms in various other ways.
As you read through Lessons 4 and 5, keep in
mind the fragmented and context-specific origins
of the various enforcement mechanisms. Has this
fragmentation affected the system of human rights
protection? How?
Each of these Charter bodies has played an
important role in the promotion and protection of
human rights, and all have contributed to the UN
system of human rights enforcement in different
ways.
The Trusteeship Council
The Trusteeship Council was originally responsible
for overseeing the administration of a number of
territories during their transition from colonial to
independent rule. It has been suspended since
1994, when its work in overseeing the post-War
decolonization process was successfully completed
following the independence of Palau.3
The Economic and Social Council

4.2 Charter Bodies The Economic and Social Council (ECOSOC)

studies, coordinates, and makes recommendations
As noted in the introduction to this lesson, UN
on economic and social issues at the UN.4
Charter bodies are organs established by the UN
ECOSOC supervises and oversees several
under the authority of the UN Charter. The UN
important specialized human rights bodies,
Charter of 1945 originally created six so-called
including:
principal organs to carry out the work of the UN.
These organs, and the major human rights bodies • The Commission on the Status of Women
resulting from them, are: (CSW): Established in 1946, this body consists
of 45 government representatives who monitor,
protect, and promote women’s rights. As we will
Principal Organs Human Rights Bodies
see in Lesson 8, the CSW’s work was critical
to the development of the Convention on the
General Human Rights Human Rights
Assembly Council Council Advisory Elimination of Discrimination Against Women
Committee (CEDAW).5
Special Procedures
Office of the High (Special Rapporteurs • The Permanent Forum on Indigenous Issues
Secretariat Commissioner for
Human Rights
and working groups) (PFII): Established in 2000, this body is charged
with advising ECOSOC and other UN agencies
Economic and Commission on the on indigenous issues related to economic and
Social Council Status of Women social development, culture, the environment,
Permanent Forum education, health, and human rights. The 15
on Indigenous independent experts of the PFII have been
Trusteeship Issues
Council meeting for two weeks annually since 2002.6

Security 3 For more information on the work of the

Council Trusteeship Council, visit <http://www.un.org/en/
mainbodies/trusteeship/>.
International
4 UN Charter, Chapter X.
Court of Justice 5 See Lesson 8 for a discussion of the history
and work of the Commission on the Status of
Women.
6 See Lesson 10 for a discussion of the history and
work of the Permanent Forum on Indigenous Issues.

HUMAN RIGHTS | 87
ECOSOC also has the responsibility for granting
“consultative status” with the UN to NGOs.7
Attaining consultative status allows an NGO to
participate in some UN agency discussions and
submit materials to relevant bodies.
The Security Council
The primary responsibility of the Security Council
(SC) is to maintain international peace and security.
Under the UN Charter, the use of force (war or
aggression) by any country is prohibited except
in the case of self-defence or where authorized
by the Security Council.8 The Security Council’s
work focuses on trying to prevent breaches of
international peace in violation of this provision of
the Charter. In this capacity, it has the authority to:
• Investigate any dispute or situation that may lead
to a breach of international peace;
• Make recommendations for avoiding or
mitigating such disputes;
• Formulate plans for the establishment of a
system to regulate armaments;
• Determine the existence of a threat or act of
aggression and recommend appropriate action;
• Call on Members to apply economic sanctions
and other measures not involving the use of
force to prevent or stop aggression; and
• Use force against an aggressor (initiate
peacekeeping operations, humanitarian
intervention, or military action by a coalition of
states).9
The Security Council is made up of 15 member
states of the UN. There are five permanent
members – China, France, Russian Federation,
the United Kingdom (UK), and the United States
(US) – and 10 non-permanent members elected for
two-year terms and distributed across the various
regions.10 Decisions taken by the Security Council
7 UN Charter, Art. 71.
8 See Lesson 11 for a discussion of the role of
the Security Council in the laws of just war, jus ad
bellum.
9 UN Charter, Chapter VII.
10 UN Charter, Art. 23. For a list of current
non-permanent members of the Security Council,
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create binding obligations for UN Member States.11
In order for a resolution to be passed, nine of the
15 Member States must vote affirmatively, and all
five permanent members must concur in the vote
(with “concur” meaning either an affirmative vote
or an abstention).12 This means that China, France,
Russia, the UK, and the US effectively have a veto
that gives them the power to block the adoption of
any measure under discussion.
With respect to human rights protection, the
Security Council has played an increasingly
important role in recent years. It has ensured the
inclusion of human rights provisions in peace
agreements, assisted in efforts to eliminate the use
of child soldiers, and required the consideration of
human rights principles by the Counter-Terrorism
Committee established after the 9/11 attacks in
the United States.13 It has assigned peacekeeping
forces human rights mandates and authorized
humanitarian intervention operations. It has
considered gross violations of human rights that
threaten international peace and security and
recommended enforcement measures, and has
established international criminal tribunals for the
prosecution of individuals responsible for serious
violations of international humanitarian law during
conflicts. These international criminal tribunals
include the International Criminal Tribunal for
the Former Yugoslavia (ICTY), the International
Criminal Tribunal for Rwanda (ICTR), and the
International Criminal Court (ICC).14
Since the 1990s, one of the biggest challenges
for the Security Council has been responding to
the debate over humanitarian intervention and
the responsibility to protect (R2P). “Responsibility
to protect” refers to the idea that, despite the
prohibition on the use of force contained in the
UN Charter, there may be a sort of humanitarian
exception that could justify the use of force by
one state against another – even in the absence
visit the “members” page of the Security Council
website at <http://www.un.org/sc/members.asp>.
11 UN Charter, Art. 25.
12 UN Charter, Art. 27.
13 See Lesson 14 for a discussion of human rights
and terrorism.
14 See Lesson 13 for a discussion of international
criminal law and courts.
 Security Council Reform
Over the past two decades, a vigorous debate has arisen over whether the Security Council’s structure and voting
rules are outdated and in need of reform. Opponents of the current Security Council set-up argue that despite the
dramatic changes in geopolitics that have taken place since 1945, the Security Council still reflects the world order
that was in place just after WWII, when the victors of that conflict were rewarded with permanent veto-wielding seats.
Now, they contend, the Security Council should be reformed, and its working methods updated to reflect a more
modern worldview.
Reform proposals have included taking the veto away from some of the current permanent members and bestowing
it on other, newly powerful states; expanding the number of permanent and/or non-permanent seats in the Security
Council; making the Council more representative by shifting the regional balance of power; and eliminating the
permanent seats and veto altogether.
Implementing large-scale changes in the Security Council, however, is politically challenging. The current permanent
Member States are reluctant to give up their authority. Expanding the Council – though it might make it more
democratic and regionally representative – could slow down voting and prevent the institution from being able to act
quickly and decisively in the face of international crises.
What do you think? Is the Security Council in need of reform?

of a threat to international peace and security – in
order to protect individuals from gross violations of
their human rights. The concept of R2P, developed
most elaborately by the Canadian-sponsored
International Commission on Intervention and State
Sovereignty in 2001,15 was in large part a response
to the failure of the international community to
intervene to stop ongoing mass atrocities such as
those that took place in Rwanda and Kosovo.
Proponents of a humanitarian intervention
exception or the R2P paradigm argue that while
“the primary responsibility for the protection of
its people lies with the state itself,” where a state
is “unwilling or unable” to prevent serious and
systematic harm to its population, “the principle
of non-intervention yields to the international
responsibility to protect.”16 Officially recognizing
a humanitarian exception to the principle of
non-intervention – which, as we learned in Lesson
1, is one of the key components of the Westphalian
system of sovereign states – is a significant
departure from the traditional law of international
relations. Moreover, the idea raises a number of
15 International Commission on Intervention
and State Sovereignty, Responsibility to Protect
(2001), available at <http://www.iciss.ca/pdf/
Commission-Report.pdf>.
16 Ibid.
old questions: How and when would this exception
be exercised? Under whose authority? Would it
ever be exercised against powerful states? We will
return to this topic in Lesson 11.
The International Court of Justice
The International Court of Justice (ICJ) is
responsible for settling legal disputes between
States and advising the UN on legal matters.17
In addition to several important early cases on
human rights issues such as self-determination
and genocide, the ICJ has made a number of
judgments of high importance for international
human rights law since the mid-1990s.
The primary importance of the ICJ for human
rights lies in its ability to define and give content
to standards in international human rights law.
By providing its opinion on whether a violation of
human rights has occurred in a given situation, the
ICJ can help to elaborate the boundaries between
individual and state rights. The ICJ can issue
both formal decisions, which are binding on the
parties to the dispute, and advisory opinions that
are non-binding, but highly persuasive in terms of
defining the law in a given situation.
17 UN Charter, Chapter XIV.

HUMAN RIGHTS | 89
The Secretariat

The Secretariat is the chief administrative body of

the UN, and is led by the Secretary-General (SG).
The Secretariat assists the other principal organs of
the United Nations in numerous ways, administering
the programme and policies that they create.18

In order to promote their agendas, Secretaries-General

have several powers at their disposal. With respect to
human rights, three functions stand out. First, the SG
administers peacekeeping missions, and can ensure
that these missions include a human rights mandate.

Second, the SG can act as a spokesperson and

leader on human rights issues, supporting the High
Commissioner for Human Rights (see discussion
below) in disseminating and publicizing human
rights information and campaigns.

Finally, the SG can bring urgent human rights

problems directly to governments (in confidence)
using the good offices mechanism.

In recent years, the SG has taken on a greater role

in the area of human rights. Previous Secretaries-
General such as Dag Hammarskjöld and Boutros
Boutros-Ghali were reluctant to press the human
rights agenda for fear of alienating governments
and jeopardizing their role in the promotion of
international peace. By contrast, recent secretaries
such as Kofi Annan have taken a more activist
stance, overseeing the process of human rights
mainstreaming (in which UN agencies are
encouraged to address human rights throughout
their work) at the UN.19 The current SG, Ban
Ki-moon, has made the prevention of and response
to mass atrocities a particular priority, and has
collaborated with members of the R2P movement
in championing the cause of UN action in this
area.20 His term in office is not yet over, however,
and it remains to be seen what place he will occupy
in the history of human rights protection.
18 UN Charter, Chapter XV. For additional
information on the Secretariat, visit the UN website
at <http://www.un.org/en/mainbodies/secretariat/>.
19 Henry J. Steiner, Philip Alston, and Ryan
Goodman, p. 738.
20 Andrew Clapham, “United Nations
Charter-Based Protection of Human Rights”,
in International Protection of Human Rights: A
Textbook, Catarina Krause and Martin Scheinin,
eds. (Turku, Finland, Åbo Akademi University
Institute for Human Rights, 2009).
Secretary-General Ban Ki-moon briefs the media following
a meeting of the Security Council on the situation in
Myanmar. (UN Photo #403911 by Evan Schneider, July 2009)
The Office of the High Commissioner for
Human Rights
Positioned under the Secretary-General, the
Office of the High Commissioner for Human
Rights (OHCHR) is one of the most important
Charter bodies acting in the field of human rights.
The OHCHR plays a central role in coordinating,
monitoring, studying, and promoting human
rights throughout the UN system, and designs
and implements human rights programmes to be
carried out by the Secretariat.21 The current High
Commissioner for Human Rights, Navanethem
Pillay, took up her post on 1 September 2008. As of
April 2007, the OHCHR employed more than 850
staff in Geneva, New York, 11 country offices, and
seven regional offices around the world.22
21 For additional information on the OHCHR, see
<http://www.ohchr.org/EN/Pages/WelcomePage.aspx>.
22 OHCHR, “Who We Are”, available from <http://
www.ohchr.org/EN/AboutUs/Pages/WhoWeAre.aspx>.

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 Technical Assistance

Technical assistance or cooperation programmes offer practical assistance to states so that they can better respect,
protect, and fulfil the human rights of their citizens. Technical assistance projects can be critical for states seeking
help in applying international human rights norms and translating them into laws and actions. Independent experts
providing technical assistance can also play a role in examining and making recommendations on human rights
situations.

Special UN funds and programmes like the Voluntary Fund for Advisory Services and Technical Assistance in the
Field of Human Rights and the High Commissioner for Human Rights’ Technical Cooperation Programme assist
countries in applying human rights norms at the national level. These programmes may provide practical assistance
to national parliaments and other state organs in:

• Institution-building in the legislature;

• Implementing specific projects;
• Developing human rights action plans;
• Reviewing human rights legislation;
• Human rights education;
• Designing national human rights institutions; and
• Training judges, lawyers, prosecutors, police officers, and prison personnel in human rights.

The OHCHR has no power to issue declarations
or make decisions that will be binding on states.
Instead, the High Commissioner has the power
to develop programmes and focus attention on
human rights priorities of her choice. The OHCHR
implements its policies both through publicity
campaigns and through field operations that carry
out technical assistance and investigative and
monitoring functions.
The General Assembly
The General Assembly (GA), the principal
deliberative organ of the UN, performs a number
of important functions with respect to human
rights. The GA is empowered to discuss any
matters within the scope of the UN Charter and
to “initiate studies and make recommendations
for the purpose of … assisting in the realization of
human rights.”23 The GA is an extremely important
body in terms of standard setting – the process of
developing and explaining the content of human
rights norms.
The particular importance of the GA arises from
the fact that it is composed of all Member States of
the UN, each of which has an equal right to speak
and vote regardless of size, population, level of
development, wealth, or any other consideration.
Though it cannot pass legally binding rules (except
in the realm of budgetary matters), it does have the
power to issue resolutions, which have important
moral and political force. It can also create new UN
bodies to carry out various functions.24
Because of its “one country, one vote” setup, the
GA has a special claim to universal representation,
so the resolutions, declarations, principles, codes
of conduct, and other actions it takes have a strong
claim to international normative legitimacy. Though
non-binding, instruments adopted by the GA are
important elements in the creation of international
human rights law – as statements of international
opinion, platforms from which international
treaties can be constructed, and expressions of
international customary law (see box in Lesson 1).

23 UN Charter, Art. 13. 24 UN Charter, Chapter IV.

HUMAN RIGHTS | 91
 The Human Rights Council
The Human Rights Council (HRC) (not to be
confused with the Human Rights Committee, the
body that oversees implementation of the ICCPR)
is an intergovernmental body that was created by
the UN GA in 2006. The Human Rights Council
replaces the Commission on Human Rights,
which functioned from 1946 to 2006. The old
Commission, which had become a hotbed for
criticism among human rights advocates, was
scrapped due to allegations that it had become too
political, and was therefore discredited as a human
rights enforcement body.
Participants of the tenth special session of the Human Rights Council.
(UN Photo #326166 by Jean-Marc Ferré, September 2009)
Much of the debate about the old Commission
revolved around the question of its composition.
Commentators alleged that the UN was conferring
legitimacy on human rights-abusing states by
permitting them to be members of the Commission
on Human Rights. Indeed, the Commission did
include a number of members (such as Sudan)
that were themselves considered to be major
human rights violators. Using their influence as
Commission members, these countries were
able to weaken or side-track resolutions on the
situations taking place within their borders, and
prevent censure of their political allies. As the
popular adage had it, the foxes seemed to be
guarding the henhouse.25
25 For more on the composition debate, see Philip
Alston, “Reconceiving the Human Rights Regime:
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Second, many have argued that the Commission
had become politicized in its process of selecting which
situations and states should be singled out for review.
The Commission had long been criticized for its failure
to condemn countries with track records of human
rights abuses. As Jeane J. Kirkpatrick, head of the
US delegation, complained in 2003, the Commission
had never agreed to any statement “condemning
repression in Chechnya, or slavery and repression in
Sudan, or murder and violation of rights in Zimbabwe,
or the continued victimization of the Falun Gong in
China.”26 From another angle, some states alleged
that the Commission was being used only against
the developing world, providing, as Cuba put it, an
“inquisition tribunal for the rich” against the global
South.27 Particularly in the 1990s and early 2000s,
these accusations that the Commission had become
partial and selective led to a serious credibility problem.
Many hoped that the transformation from Commission
to Council would help solve these problems and give
the body a new lease on life. But during the creation
of the new body it proved difficult to reconcile the
“almost completely contradictory diagnoses put
forward by different groups of states, and the radically
different expectations that they hold for the outcome
of the reform process,” and in the end “the General
Assembly resolution proclaiming the new order
resolved only the most basic structural issues as to
the Council’s composition and election procedure, and
only laid down rather broad guidelines governing the
procedures and institutional arrangements which the
Council should adopt in order to carry out the wide
ranging tasks assigned to it.”28
The new Human Rights Council is made up of 47
member governments that are “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
Challenges Confronting the New UN Human Rights
Council”, Melbourne Journal of International Law,
vol. 7 (2006).
26 Jeane J. Kirkpatrick, “UN Human Rights Panel
Needs Some Entry Standards”, International Herald
Tribune, 14 May 2003.
27 UN Doc. HR/CN/1107 (14 March 2005).
28 Philip Alston, “Reconceiving the Human Rights
Regime: Challenges Confronting the New UN
Human Rights Council”, pp. 2 and 37.
 Challenges Facing the Special Procedures
“The Special Procedures are at the core of the UN human rights machinery. As independent and objective experts
who are able to monitor and rapidly respond to situations and allegations of violations against individuals or groups
occurring anywhere in the world, they play a critical and often unique role in promoting and protecting human rights.
This poses a dilemma when it comes to reviewing their effectiveness and identifying ways to strengthen them.
The Special Procedures have evolved haphazardly and without any overall institutional framework. Over a period
of nearly forty years, they have been undermined by chronic under-funding, a lack of co-operation from states,
marginalization by the Commission in its political decision-making processes, and the variable quality of work of
the mandate-holders. At the same time, there is the suspicion that some governments would like to use efforts to
enhance the Special Procedures in order to emasculate them by imposing unnecessary restrictions on their working
methods. As the Special Procedures were never conceived as a ‘system’, there are recurring difficulties associated
with co-ordination, consistency and overlap … ”
Amnesty International
from United Nations Special Procedures: Building on a Cornerstone of Human Rights Protection (2005)

equal manner.”29 The primary purpose of the HRC
is to address situations of widespread and systemic
human rights violations and make recommendations
on them. In order to fulfil this function, the Council
has a number of tools at its disposal:
• Universal Periodic Review: the Human Rights
Council is empowered to conduct a universal
periodic review (UPR) of the human rights
records of all 192 UN Member States once every
four years. The universal periodic review is, in
part, intended to avoid the problem of selectivity
that led to charges of political bias against the
old Human Rights Commission. The fact that
every state is to be reviewed with respect to
the full range of human rights is supposed to
ensure objectivity. The Council has completed
conducting its first such review in October 2011.
Already there have been complaints that the
reviews are “too genteel and diplomatic”, but it
remains too early to tell whether the process will
ultimately be effective in promoting compliance.30
• Advisory Body: the Human Rights Council
is supported in its work by the Human Rights
Council Advisory Body, an expert commission
that functions as a think tank for the Council.
The Advisory Body, which met for the first time in
August 2008, is composed of 18 experts whose
aim is to provide studies and research-based
advice on the Council’s request. This Body
29 A/Res/60/251, General Assembly Resolution
Establishing the Human Rights Council, (3 April 2006).
30 Andrew Clapham, p. 19.
replaces the Sub-Committee on Promotion and
Protection of Human Rights (known from 1947
to 1999 as the Sub-Committee on Prevention
of Discrimination and Protection of Minorities31),
which functioned as an expert advisory body to
the old Commission on Human Rights.
• Special Procedures: special procedures
is a general term for all of the mechanisms
established by the Human Rights Council to
examine, monitor, advise, and publicly report
on either country-specific or thematic issues in
human rights protection. As of 2008, there were
38 special procedures in place: 30 thematic
mandates (for example, on adequate housing,
education, and foreign debt), and eight country
mandates (for example, on Cambodia, Haiti,
and Sudan).32 Special procedures can come
in the form of either an individual, known as
a Special Rapporteur, or a working group.
Special procedures may also be known as
Independent Experts, Representatives, or
Special Representatives. Special procedures
are limited in their mandate by the terms of the
31 See: Lesson 10 for more information on the
work of the Sub-Committee on the Promotion and
Protection of Minorities.
32 A complete list of current country mandates is
available on the Human Rights Council’s website at
<http://www2.ohchr.org/english/bodies/chr/special/
countries.htm> and a complete list of current
thematic mandates is available at <http://www2.
ohchr.org/english/bodies/chr/special/themes.htm>.

HUMAN RIGHTS | 93
 Human Rights Council resolution that created
them, are unpaid, and are supported by the
OHCHR in terms of personnel, logistics, and
research assistance. In addition to investigating
and reporting on situations, special procedures
may carry out country visits (with the consent of
the state), send appeals for urgent action asking
governments to take immediate action to prevent
or mitigate a violation, or send allegation letters
requesting governments to clarify an alleged
human rights abuse.33 Sometimes, urgent
appeals may be sent in response to individual
communications. The special procedures
have been generally successful in generating
human rights information, analysis, and
recommendations, although the effectiveness
of a given special procedure depends to a
large extent on the quality, dedication, and
independence of the mandate holder or holders.
• Complaints Procedure: the Human Rights
Council has the ability to receive complaints from
individuals or groups of individuals who believe
that they have suffered a human rights violation.
The complaints mechanism is known as the 1503
procedure, after ECOSOC resolution 1503, which
authorized the Commission on Human Rights to
examine communications on “situations which
appear to reveal a consistent pattern of gross
and reliably attested violations of human rights
requiring consideration by the Commission.”34
The 1503 procedure came about largely as the
result of a push by Third World countries for a
means to pursue the struggle against racist and
colonialist practices.35 The procedure takes place
in confidence, with the only public record being a
statement of the names of those countries that are
currently under consideration and those cases that
have been discontinued. Under the Commission
on Human Rights, the 1503 procedure was the
subject of a great deal of criticism, with reports of its
ineffectual proceedings and failure to act in cases of
grave abuses causing anger among rights groups.
33 Governments respond to these urgent appeals
and letters of allegation about a third of the time.
OHCHR 2007 Report: Activities and Results (2008),
p. 27 (documenting a 32 per cent response rate).
34 Economic and Social Council resolution 1503
(XLVIII) (1970).
35 Henry J. Steiner, Philip Alston, and Ryan
Goodman, p. 754.
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The Human Rights Council is in the process of
reforming the procedure, and it remains to be seen
how complaints will proceed in the new body.
• Other mechanisms: In addition to these
mechanisms, the Human Rights Council also
receives advice from a Social Forum made up of
UN and civil society groups that meet once a year
to discuss a set thematic topic; a Forum on Minority
Issues that provides advice and research on minority
issues; an Expert Mechanism on the Rights of
Indigenous Peoples that provides thematic expertise
on indigenous issues; and a number of working
groups and committees dedicated to implementing
the Durban Declaration and Programme of
Action, which seeks to eradicate racism, racial
discrimination, xenophobia, and intolerance.
Writing Exercise 4: Improving the Human Rights
Council
If you have access to the Internet, this would
be an especially good exercise to write about
online in conversation with other learners
taking this Peace Operations Training Institute
course. Consider writing your thoughts on the
Student Forum by logging into your classroom
and clicking on “Student Forum” link on the
left-hand menu.
Because of your expertise in human rights, you
have been contacted by the United Nations to
help with the continued reform of the Human
Rights Council. A UN representative tells you
that it will be difficult to make drastic changes
to the organization so soon after the last major
reform in 2006, but believes there is enough
political will to make at least a few small changes
to the HRC’s mandate.
Consider the following questions and write a
brief report (maximum one page).
• What seem to be the biggest problems
facing the Human Rights Council?
• What types of changes would you
suggest?
• Does it seem likely that governments
would accept your proposed changes?
Why, or why not?
Despite its controversial status, the Human Rights Council
remains one of the most important UN Charter-based
organs for human rights.36 And though some states have
already begun to complain that the credibility problems of
the Commission have carried over to the new body, the
Council remains relatively new, and the ultimate effects of
the reform process remain to be seen.
Together, the six principal organs of the UN and their
subsidiary human rights bodies form one of the two sets
of bodies responsible for overseeing the enforcement
of human rights at the UN level. We will now turn to the
second set of UN mechanisms: the treaty-based organs.
4.3 Treaty Bodies
The treaty bodies are the other important set of
UN institutions for the promotion and protection
of human rights. Treaty bodies are international
committees of independent experts created in
accordance with the provisions of international
human rights treaties. They function as control
mechanisms that can review and assess the
progress made and difficulties encountered during
treaty implementation.37
overseen by
Treaty Treaty Body
There are nine human rights treaty bodies in the
UN system. We already encountered two of these:
the Human Rights Committee and the Committee
on Economic, Social and Cultural Rights. There are
seven additional treaty bodies attached to each of
the other major international human rights treaties:
• Committee on the Elimination of
Discrimination Against Women, which
oversees the implementation of the Convention
on the Elimination of All Forms of Discrimination
Against Women (CEDAW);
36 For additional information on the functions of the
Human Rights Council and related bodies, see the
Human Rights Council website at <http://www2.ohchr.
org/english/bodies/hrcouncil/>.
37 For a comparative assessment of the work
of the various UN treaty bodies, see: Anne F.
Bayefsky, The UN Human Rights Treaty System:
Universality at the Crossroads (2001).
HUMAN RIGHTS
• Committee on the Elimination of Racial
Discrimination, which oversees the
implementation of the International Convention
on the Elimination of All Forms of Racial
Discrimination (CERD);
• Committee Against Torture, which oversees
the implementation of the Convention Against
Torture (CAT) (additionally, the Optional Protocol
to the Convention against Torture (OPCAT) has
a Subcommittee on Prevention of Torture);
• Committee on the Rights of the Child, which
oversees the implementation of the Convention
on the Rights of the Child (CRC);
• Committee on Migrant Workers, which oversees
the implementation of the International Convention
on the Protection of the Rights of All Migrant
Workers and Members of Their Families (ICRMW);
• Committee on the Rights of Persons with
Disabilities, which oversees the implementation
of the Convention on the Rights of Persons with
Disabilities (CRPD); and
• Committee on Enforced Disappearances,
which oversees the International Convention
for the Protection of All Persons from Enforced
Disappearance.
The treaty bodies perform a number of different
functions, as permitted by the treaty under which
they were created. These functions include:
• Issuing general comments: treaty bodies
are empowered to issue general comments
that clarify and interpret the content of human
rights provisions. We saw how these general
comments are used to elaborate the content of
rights in Lessons 2 and 3.
• Considering state parties’ reports: when a
state becomes a party to a legally binding treaty,
it takes on the responsibility to respect, protect,
and fulfil the rights therein. In order to monitor
whether states are fulfilling this obligation, the
core human rights treaties all require states to
submit periodic reports on the state of human
rights in their territory. These reports are given
to the treaty bodies, which read them and
comment on the states’ compliance with the
treaty. In addition to the state party’s report, the
treaty body may also consider information on
the country’s human rights situation received
| 95
 Monitoring and Reporting

Human rights monitoring and reporting is the practice of assessing and documenting the extent of human rights violations in a
given country or situation.

The process of monitoring and reporting involves fact-finding in order to identify and clarify specific human rights violations, series
of violations, or patterns of abuse. Fact-finding requires meticulous attention to and verification of details. In order to be credible, it
must be done in a politically and procedurally independent and impartial manner, and in accordance with accepted standards.

Even when carefully done, fact-finding can prove difficult. As explained in the US Department of State’s Country Reports on
Human Rights Practices – 2005 (2006):

Evaluating the credibility of reports of human rights abuses is often difficult. With the exception of some terrorist
organizations, most opposition groups and certainly most governments deny that they commit human rights abuses and
sometimes go to great lengths to conceal any evidence of such acts. There are often few eyewitnesses to specific abuses,
and they frequently are intimidated or otherwise prevented from reporting what they know. On the other hand, individuals
and groups opposed to a government sometimes have powerful incentives to exaggerate or fabricate abuses, and some
governments similarly distort or exaggerate abuses attributed to opposition groups.

Human rights monitoring and reporting can be carried out by UN organs, international organizations, individual states, NGOs, or
other concerned persons or groups. Although human rights monitoring and reporting is a standard practice today, it is important to
remember that not long ago, the rules of state sovereignty would have prevented international institutions from second-guessing a
state’s assertion of facts.

from other sources, such as non-governmental indications of serious or systematic violations

organizations (NGOs), UN agencies, other
intergovernmental organizations, academic
institutions, or the media. After examining all
of the available information, the treaty body
discusses the report with representatives from
the state concerned. Based on this dialogue, it
publishes a set of concluding observations, a
list of concerns and recommendations. These
concluding observations are public, and can
generally be found on each treaty body’s
website. Recently, the human rights treaty
bodies have also begun to introduce follow-up
procedures that ask countries to report back
to the Commission within an agreed-upon time
frame on the measures taken in response to
specific recommendations.
• Conducting inquiries: Several of the treaty
bodies (including the CEDAW Committee, the
CAT Committee, the CPRD Committee, and
the Committee on Enforced Disappearances)
can make inquiries into suspected cases of
grave human rights abuses. Under the terms
of their respective treaties, these bodies
may conduct inquiries if they have received
reliable information containing well-founded
of the conventions. After conducting an inquiry,
the treaty body’s findings, comments, and
recommendations are transmitted to the state
for action and/or response. The findings of
the inquiry procedure are confidential. The
power to make inquiries can only be exercised
within the territories of those states that have
recognized the competence of the treaty bodies
to do so. State parties may also opt out of this
provision, removing the treaty bodies’ power
to conduct inquiries in that state. In addition,
the Subcommittee on the Prevention of Torture
also has the special power to conduct visits to
locations where persons are deprived of their
liberty (such as prisons and detention centres)
in order to ensure that no torture is being
committed.
• Receiving individual communications: Most
of the human rights treaty bodies (The Human
Rights Committee, Committee on Economic,
Social and Cultural Rights,38 CERD Committee,
38 An Optional Protocol to the ICESCR that
will allow for individual communications to the
Committee on Economic, Social and Cultural

96 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
 CAT Committee, CEDAW Committee, CMW
Committee, CRPD Committee, and the
Committee on Enforced Disappearances) can
receive and consider individual complaints,
known as communications, by or on behalf
of individuals who claim that their rights have
been violated. These treaty bodies perform a
quasi-judicial function (“quasi-judicial” because
the treaty bodies are not traditional courts, and
their judgments are non-binding, though they
do have significant political force and states
frequently comply). The complaints procedure
allows treaty bodies to give additional content
to rights, specifying how they apply in certain
circumstances, as well as give some relief
to individuals who have been the victims of
human rights violations. Most treaty bodies are
empowered to adopt interim measures in urgent
cases to stabilize a situation while they come to
a final decision.

• Receiving state-to-state complaints: Several

of the treaties (including the ICCPR, CERD, CAT,
CEDAW, and the CMW) also make provision for
states to lodge human rights complaints against
other states. As of 2011, however, this procedure
had never been used.
Ishmael Beah, former child soldier and UNICEF Goodwill
Ambassador, speaks at UNICEF’s 20th Anniversary
Commemoration of the Convention on the Rights of
the Child. (UN Photo #420890 by Eskinder Debebe,
November 2009)

Treaty Body Powers

Considering Receiving Receiving
Committee Issuing general state parties’ Conducting individual state-to-state
comments reports inquiries complaints complaints
ICCPR X X X X
ICESCR X X X X
CEDAW X X X X X
CERD X X X X
CRC X X
CAT X X X X X
CMW X X X X
CRPD X X X X

rights was adopted in December 2008, but has not

yet entered into force. As noted in Lesson 3, the
Optional Protocol has been opened for signature
beginning in September 2009.

HUMAN RIGHTS | 97
 Individual Complaints Mechanisms

Any individual who claims that his or her human rights have been violated can submit a communication to a treaty
body, special procedure, or the Human Rights Council provided that it meets the requisite criteria for doing so.

Under the treaty bodies:

Conditions:
• The right that was violated must be covered by the treaty;
• The treaty must allow for individual complaints;
• The complaint must be against a State party (not an individual);
• The State must be a party to the treaty and recognize the competence of the treaty body to receive individual
complaints;
• Domestic remedies must have been exhausted (domestic courts cannot or will not help); and
• The case must not already be under consideration by another international or regional complaints procedure
(with the exception of special procedures).
• Additional restrictions under some treaties (for example, under CERD a complaint must be lodged within six
months of the final decision by a national authority).
Advantages: Treaty bodies can order interim measures in urgent cases; if the complaint is successful, the state is
required to comply with its obligations under the treaty, including the obligation to provide an effective
remedy for the breach.
Disadvantages: 2–3 years before a treaty body reaches a decision; decisions are non-binding.

Under the special procedures:

Conditions:

• The right that was violated must be covered by the country or thematic mandate.
Advantages: It is not necessary to exhaust all domestic remedies before bringing a case; the state does not need
to be a party to a particular treaty or allow complaints; and the urgent appeals mechanism can provide
immediate assistance.
Disadvantages: The urgent appeals or recommendations of a special procedure are non-binding – the state complies
at its discretion.

Under the Human Rights Council’s 1503 Procedure:

Conditions:

• The claim must be about a consistent pattern of gross and reliably attested violations; and
• Domestic remedies must have been exhausted.
Advantages: Few obstacles to submission; Council has jurisdiction over all human rights.
Disadvantages: No guarantee that the Council will do anything about the complaint; if they decide to act, “decisions”
can take a long time; there are no provisions for urgent action; the process is confidential; and
the Council deals only with consistent patterns of gross human rights violations, and neither
compensates victims nor seeks remedies for individual cases.

98 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
Conclusion
In this lesson, we took our first look at how the
legally binding human rights contained in the
ICCPR and ICESCR, as well as the other core
international human rights treaties, are enforced.
We examined the two sets of mechanisms
established for this purpose by the UN: the
Charter-based bodies and the treaty-based bodies,
and we explored the different types of enforcement
strategies available under these organs. In Lesson
5 we will examine a few other sets of human rights
enforcement mechanisms: the regional bodies set
up in Europe, the Americas, and Africa, as well
as the nascent human rights systems that are
emerging in other parts of the world, and the role
played by other international organizations and
NGOs.
HUMAN RIGHTS
Further Reading
Philip Alston, “Promoting the Accountability of
Members of the New UN Human Rights Council”,
Journal of Transnational Law and Policy, vol. 15
(2005); Philip Alston, “Reconceiving the Human
Rights Regime: Challenges Confronting the New
UN Human Rights Council”, Melbourne Journal
of International Law, vol. 7 (2006); Amnesty
International, United Nations Special Procedures:
Building on a Cornerstone of Human Rights
Protection (2005); Andrew Clapham, “United
Nations Charter-Based Protection of Human Rights”,
in International Protection of Human Rights (2009);
International Commission on Intervention and
State Sovereignty, Responsibility to Protect (2001);
Manual of Operations of the Special Procedures of
the Human Rights Council (2008).
Websites for Further Information
OHCHR website:
www.ohchr.org/EN/Pages/WelcomePage.aspx
Global Policy Forum page on Security Council
Reform: www.globalpolicy.org/security-council/
security-council-reform.html
| 99
End-of-Lesson Quiz

1. Who has the primary responsibility for
enforcing human rights?
A. Individuals;
B. States;
C. The International Community;
D. The Security Council.
2. ___________________ bodies are UN
bodies that were either directly mandated by
the UN Charter or authorized by a body that
was directly created by the Charter.
3. ___________________ bodies are organs
that were created by human rights treaties
originating in UN processes.
4. The “Responsibility to Protect” is:
A. The idea that individuals must intervene to stop
other individuals from committing human rights
abuses in everyday life;
B. The idea that the Security Council must enter
into a conflict to protect states against invasion;
C. The idea that the most powerful states must
create an international fund to assist the victims
of natural disasters;
D. The idea that where a state is unwilling or
unable to prevent serious and systematic harm
to its population, the international community
can intervene to protect individuals from gross
harm.

The Peace Palace, seat of the International Court of Justice. The Court is the principal
body of the United Nations. (UN Photo #110330 by Andrea Brizzi, January 1993)

100 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
For questions 5–10, match the following organs with their descriptions:

A. Originally responsible for overseeing

5. The General Assembly the administration of the decolonization
process; now suspended.

B. Responsible for maintaining

6. The Secretariat
international peace and security.

7. The Security Council C. Principal deliberative organ of the UN.

8. The Economic and Social Council D. Chief administrative body of the UN.

E. Responsible for settling legal disputes

9. The Trusteeship Council between States and advising the UN on
legal matters.

F. Studies, coordinates and makes

10. The ICJ recommendations on economic and
social issues at the UN.

ANSWER KEY
1B, 2 Charter or Charter-based, 3 Treaty or
Treaty-based, 4D, 5C, 6D, 7B, 8F, 9A, 10E

HUMAN RIGHTS | 101

LESSON 5
ENFORCEMENT MECHANISMS II:
REGIONAL AND OTHER ACTORS
 LESSON
5

LESSON OBJECTIVES

5.1 Introduction By the end of Lesson 5, the student should be able to meet the
following objectives:
5.2 The European System
5.3 The Inter-American • Understand the relationship between the regional and global
System human rights systems;
5.4 The African System • Identify the major components of the European system;
5.5 Other Regional • Identify the major components of the Inter-American system;
Efforts • Identify the major components of the African system;
5.6 Other Actors • Appreciate the similarities and differences among the three major
regional systems;
• Identify other regional mechanisms;
• Describe the role played by other international organizations in the
promotion and protection of human rights; and
• Explain the importance of NGOs in the protection of human rights.

To view a video introduction of this lesson by the

course author Jessica C. Lawrence, you can
either log in to your virtual classroom, go to www.
peaceopstraining.org/users/media_page/378/
lesson-5, or use your mobile device to scan the
QR code to the left.
5.1 Introduction
In Lesson 4, we discussed the UN Charter-based and
treaty-based systems for human rights enforcement.
In this lesson, we take a look at two additional types of
actors that play an important role in the international
human rights enforcement system: regional bodies
and non-governmental organizations (NGOs) and
other international organizations.
This lesson will begin by taking an in-depth look
at the three major regional systems: the European
system, the Inter-American system, and the African
system. When reading about these regional
groupings, you will notice many similarities with the
UN mechanisms that we studied in Lesson 4. At
the same time, however, each of the major regional
human rights enforcement systems also has its
own unique set of structures and norms.
Next, we will take a brief look at some less
developed regional systems, including the largely
dormant Arab regional system, the proposed Asian
system, and a few other efforts. Finally, we will turn
to a discussion of intergovernmental organizations
and NGOs and how their efforts contribute to the
enforcement of international human rights law.
The mechanisms discussed in this lesson are
extremely important parts of the international human
rights enforcement system. Regional and other
organizations work alongside the UN system in the
promotion and protection of human rights. They fill
gaps in global enforcement and create their own
contextualized systems of human rights norms.
However, there have also been conflicts and rivalries
among the various systems of rights protection.
Universalism vs. Regionalism
One of the most interesting and long-running of
these conflicts is the debate over whether global
(UN-sponsored) or regional systems are superior
for the protection of human rights.
This conflict dates back to the very beginning of
the international human rights system. The first
regional systems were developed partially as a
result of the long delay between the adoption of
HUMAN RIGHTS
the UDHR in 1948 and the creation of enforceable
treaties that would make civil, political, economic,
social, and cultural rights legally binding. Not willing
to wait, Europe and the Americas developed their
own treaties and human rights enforcement bodies
in the 1940s, 50s, and 60s. In the beginning,
the UN was suspicious of these regional bodies,
regarding them as potentially fractious and
damaging to the idea of the universality of rights.1
Over time (and following the passage of the ICCPR
and ICESCR in 1966), this attitude faded, and from
the 1970s on, the UN began to actively encourage
the formation of regional bodies.
Even following the rapprochement of the UN
and the European and Inter-American systems,
however, the exact relationship between
international and regional mechanisms remains
unclear. Should the UN instruments be seen as
“higher” on the ladder of rights protection than
the regional instruments, or are the regional
bodies and their standards more appropriate and
responsive in local cases? Do the regional bodies
and tailored regional human rights norms detract
from the universality of rights, or do they instead
allow human rights to be adapted to specific
geographical, cultural, and historical contexts?
If standards differ between global and regional
instruments, which should prevail? Are regional
and universal bodies complementary or in conflict
with one another?
Another important question is where the lines
between systems should be drawn. The current
regional divisions – Europe, the Americas, Africa,
Asia, and the Arab States – may be inappropriate,
shifting, or work for certain subjects but not others.
The lack of easy and consistent boundary-lines
may make universalism seem more appealing.
As Dr. Inis L. Claude Jr., a scholar of international
politics, writes:
The world does not in fact break easily
along neatly perforated lines. Rational
regional divisions are difficult to establish,
boundaries determined for one purpose are
not necessarily appropriate for other purposes,
and the most carefully chosen dividing lines
1 Henry J. Steiner, Philip Alston, and Ryan
Goodman, p. 926.
| 105
 have a perverse way of changing or coming to
require change, and of overlapping. It is true
that brave universalist experiments tend to give
way to sober regionalist afterthoughts, but it is
equally true that carefully cut regional patterns
tend to lose their shape through persistent
stretching in the direction of universalism. In a
sense, the adoption of the universal approach
is the line of least resistance, since it obviates
the difficulties of defining regions and keeping
them defined.2
On the other hand, regional agreements have
in some cases proven easier to implement than
universal ones. Because of the need for broad
international consensus, UN treaties are often
forced to define human rights narrowly. Countries
have different values, and consensus among
states with widely divergent religious, cultural,
and economic backgrounds has sometimes been
difficult to attain. By contrast, the member states
of regional human rights systems may be more
similarly situated in terms of economic, social,
cultural, or political history, so they are sometimes
able to include broader and stricter protections for
human rights. For example, the European system
has been able to implement a strong human rights
court with successful compliance mechanisms,
whereas the UN system has no “world court”
for human rights, but rather only a network of
quasi-judicial bodies and courts with some human
rights competence.
It is clear that regional and global approaches
each have their advantages and disadvantages,
their similarities and differences. As you read
through this lesson, try to compare and contrast
the regional systems with each other and with the
global systems we discussed in Lesson 4. How
do the regional and UN systems differ? How are
they the same? Are they complementary? Do they
conflict with one another? Which mechanisms are
best for enforcing human rights? Are there certain
problems which lend themselves to regional action,
and others to global action?
2 Inis L. Claude Jr., Swords into Plowshares
(Fourth Edition) (New York, Random House, 1984),
p. 102.
106 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
5.2 The European System
The European System is the most extensive of the
three major regional systems, and its enforcement
mechanisms are even older than their UN
counterparts. After the devastation of World War
II, the European continent struggled to rebuild,
and sought ways to prevent such conflicts from
happening again. At the same time, the European
states were becoming increasingly concerned with
the threat of Soviet expansion, and were looking
for a way to shore up their defences against the
Eastern bloc. Promoting the economic, social, and
political integration of the European states was the
key strategy chosen for accomplishing these goals.
To this end, the European countries formed several
institutions:
• The Council of Europe (1949): responsible for
promoting the rule of law, human rights, and
democracy;
• The European Coal and Steel Community
[which would eventually evolve into the
European Union (EU)] (1952): responsible for
economic integration; and
• The Conference on Security and Cooperation
in Europe [which would eventually become the
Organization for Security and Cooperation
in Europe (OSCE)] (1975): responsible for
maintaining peace and military security in
Europe.
Each of these institutions is made up of a
different set of states and has a different set of
competences. None of the three is concerned
exclusively with human rights, but all play a role in
the promotion and protection of human rights and
fundamental freedoms in Europe.
Council of Europe
The Council of Europe was formed in 1949 by a
group of 10 states. Its purpose was the promotion
of democracy, the rule of law, and greater unity
in Western Europe. Today, the purpose of the
Council has changed. Its membership expanded
greatly after the fall of the Soviet Union, and the
Council now counts 47 member states, including
nearly all of Western and Eastern Europe, much
of the former Soviet Union (including Russia), and
 European Union
(EU)
Membership:
Council of Europe
Most of Western and
Eastern Europe
Membership:
Western and Eastern
Europe, much of the
former USSR (including
Russia), Turkey
Turkey.3 In keeping with its new formation, the
Council of Europe developed a new set of principal
aims, among which is the protection and promotion
of human rights in Europe.
The primary human rights document of the Council
of Europe, and the European system in general,
is the European Convention for the Protection of
Human Rights and Fundamental Freedoms [more
commonly known as the European Convention on
Human Rights (ECHR)].4 The ECHR was adopted
in 1950. It is particularly significant to human
rights law because it was the first comprehensive,
legally binding human rights document to enter into
force.5 It established the first international court
3 A complete list of current members of the
Council of Europe can be found on the Council of
Europe’s website at <http://www.coe.int/lportal/
web/coe-portal/home/country>.
4 See: Convention for the Protection of Human
Rights and Fundamental Freedoms, Nov. 4, 1950,
213 U.N.T.S. 222 (1953) (as amended by protocols
Nos. 3, 5, 8, and 11 which entered into force on 21
September 1970, 20 December 1971, 1 January
1990, and 1 November 1998, respectively).
5 The American Declaration on the Rights and
Duties of Man was the earliest comprehensive
human rights agreement, but was, like the UDHR, a
declaration without legal enforcement mechanisms.
HUMAN RIGHTS
Organization for
Security and
Cooperation in
Europe (OSCE)
Membership:
Western and Eastern
Europe, the former
USSR, Turkey, the
United States, and
Canada
and complaints procedure for hearing human rights
disputes. Since that time, the European system has
generated an extensive jurisprudence, and remains
the most highly developed of the regional human
rights systems.
The ECHR focuses primarily on civil and political
rights, and is modeled on the civil and political rights
provisions of the UDHR. The text of the ECHR is
similar to that of the ICCPR, with a few notable
differences: (1) the ECHR contains no provisions
relating to self-determination or minorities; (2) the
ECHR requires limitations on rights to be “necessary
in a democratic society”; and (3) the ECHR contains
a different set of non-derogable rights.6
Although economic, social, and cultural rights were
included in the post-war constitutions of Western
European states like France, Germany, and Italy,
they were not included in the ECHR. This was
because the drafters felt that it was first necessary
“to guarantee political democracy in the European
Union and then to co-ordinate our economies, before
undertaking the generalisation of social democracy.”7
6 Full text of the European Convention on Human
Rights available on the Council of Europe’s website
at <http://www.eycb.coe.int/compass/en/pdf/6_8.
pdf>.
7 Pierre-Henri Teitgen, one of the key drafters
| 107
Instead, states agreed to deal with economic, social,
and cultural rights and other outstanding issues
through optional protocols and separate agreements
containing additional provisions.
They have not been shy in doing so: since 1952, a
further 14 optional protocols to the ECHR have been
adopted. The majority of these deal with procedural
matters. A few, however, grant additional protections
for human rights. These include:
• Protocol 1 (1952): protecting the right to property;
the right to education; and the obligation to hold
free elections;
• Protocol 4 (1963): ensuring freedom from
imprisonment for civil debts; freedom of
movement and residence; freedom to leave any
country; freedom from exile; the right to enter
the country of which one is a national; and the
prohibition of collective expulsion of aliens;
• Protocol 6 (1983): mandating the abolition of the
death penalty;
• Protocol 7 (1984): affirming the right of an alien
not to be expelled without due process; the
right to appeal; the right to compensation for
a miscarriage of justice; immunity from double
prosecution for the same offence; and quality of
rights and responsibility of spouses; and
• Protocol 12 (2000): elaborating on the prohibition
of discrimination.
The ECHR assigns the primary responsibility
for enforcing member states’ obligations to the
European Court of Human Rights (ECtHR),
established in 1959. The Court can give advisory
opinions (an assessment of the legality of a law or
action given in response to a request rather than
as part of a contentious case) and hear individual
complaints (brought by an individual against the
state) 8 as well as inter-state complaints (by one
state against another), although the latter type of
proceeding has rarely been used. The European
Court is sometimes called the “jewel in the crown”
of the European Convention, quoted in Henry J.
Steiner, Philip Alston, and Ryan Goodman, p. 1018.
8 The right of victims to bring cases to the court
was originally optional for states, but following
the adoption of Protocol 11 the right of individual
petition is compulsory. See Protocol No. 11 (1998).
108 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
of the European human rights system, because its
decisions are binding on all 47 current parties to
the ECHR.
One notable aspect of the European Court’s
jurisprudence is its tendency to look to the actual
practice of the European states in defining the
limits of the human rights guarantees in the
ECHR. With respect to issues such as public
morality, values may differ greatly from one state
to another. In recognition of this, the European
Court has developed what is known as the
margin of appreciation, a doctrine that permits
states a measure of discretion in interpreting and
implementing some human rights norms.
The European Court of Human Rights is
considered to be among the most effective
international human rights enforcement bodies.
Its decisions have a fairly high rate of compliance
among Member States, with the Committee of
Ministers of the Council of Europe supervising the
execution of its judgments. While the Committee
of Ministers cannot impose sanctions for
non-compliance, political pressure has thus far
been a fairly successful means of ensuring that
states comply with the Court’s judgments.9
Perhaps the biggest challenge facing the European
Court of Human Rights is the explosion in the
number of cases that are brought before it each
year. In the early years of the Court, the number
of complaints was relatively small. Beginning in
the 1980s, however, the Court’s caseload began
to outstrip its capacity. With the addition of two
dozen new state parties to the ECHR since 1990,
the number of cases has skyrocketed. From 1981,
when 404 applications were filed annually, to 1997,
when 4,750 were filed in one year, the complaints
continued to mount.10 As of January 2010, the Court
reported a backlog of almost 120,000 complaints.11
9 See: Laurence R. Helfer and Anne-Marie
Slaughter, “Toward a Theory of Effective
Supranational Adjudication”, Yale Law Journal, vol.
107, No. 2 (1997).
10 European Court of Human Rights, “The
European Court of Human Rights: Some Facts and
Figures: 1998-2008” (2008), available from <http://
www.echr.coe.int/NR/rdonlyres/65172EB7-DE1C-
4BB8-93B1-B28676C2C844/0/FactsAndFigure-
sENG10ansNov.pdf>.
11 Joop Meijnen, “European court could succumb
to deluge of cases”, NRC Handelsblad (Rotterdam),
With the ever-increasing backlog, the time between
filing and decision has grown, and the need for
reform has become manifest. Recognizing this
problem, the Member States adopted a new Protocol
14, which entered into force on 1 June 2010. Protocol
14 streamlines the procedures for handling cases
(in particular allowing for judges to deal quickly with
the simplest cases, and imposing a new admissibility
requirement of “significant disadvantage”), leading to
a more efficient and effective European Court.
The second human rights treaty adopted by the
Council of Europe is the European Social Charter
(adopted in 1961, revised in 1996), which protects
economic, social, and cultural rights in Europe.
The European Social Charter is administered by
the European Committee of Social Rights, which
functions like many of the UN treaty bodies discussed
in Lesson 4. It is charged with carrying out advisory
and monitoring functions, reviewing state reports
and issuing conclusions, and deciding on collective
complaints from organizations (but not individuals).
Despite the existence of the European Social
Charter and the European Committee of Social
Rights, the protection of economic, social, and
cultural rights in Europe is much weaker than that
afforded to civil and political rights. For example,
while applicants for membership in the Council of
Europe are required to ratify the ECHR, they are not
required to give similar assurances with respect to
the European Social Charter.12 In Europe, as in the
international system, the sequestering of economic,
social, and cultural rights in a separate treaty has led
to a situation of asymmetrical enforcement.
A number of other treaties provide additional
protection for human rights in Europe. Of particular
significance among these is the European
Convention for the Prevention of Torture and
Other Cruel, Inhuman or Degrading Treatment
or Punishment, which was agreed upon in
1987.13 The Convention established a Committee
24 Feb. 2010.
12 Henry J. Steiner, Philip Alston, and Ryan
Goodman, p. 280.
13 The full text of the Convention for the
Prevention of Torture and Inhuman or Degrading
Treatment or Punishment is available on the
Council of Europe website at <http://www.cpt.coe.
HUMAN RIGHTS
for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment (CPT), which
is empowered to conduct visits to all “places of
detention” in the member states of the Council
and Europe. CPT visits may take place at any
time, and governments are required to give the
CPT unlimited access to any place where persons
are deprived of their liberty. The CPT uses these
visits to inspect and report on conditions of
confinement and treatment of detainees with the
aim of preventing torture and other forms of cruel,
inhuman, or degrading treatment. CPT reports are
confidential and rely on the cooperation of national
governments to protect persons deprived of their
liberty. However, if a country fails to cooperate with
the CPT, the Committee may decide to make a
public statement on the matter.
In addition, in 1999 the Council of Europe
established a Commissioner for Human Rights.
The Commissioner promotes the observance
of human rights, assists member states in the
implementation of Council of Europe standards,
promotes human rights education, identifies
potential shortcomings in human rights law and
practice, assists national human rights bodies,
and provides advice and information concerning
human rights to all countries in the region. The
Commissioner also conducts country visits and
engages in dialogue with member states, makes
thematic recommendations on various human
rights issues, and organizes assistance for national
human rights structures.
Organization for Security and Cooperation in
Europe (OSCE)
The Organization for Security and Cooperation in
Europe (OSCE) also plays a role in the protection
and promotion of human rights. The Conference
on Security and Cooperation in Europe (CSCE),
predecessor to the OSCE, opened in 1973.
Convened for the purpose of promoting improved
security and cooperative East–West relations,
the CSCE brought together 35 states including
all of the European countries except Albania,
Canada, the United States, and the Soviet Union.
Following the end of the Cold War, in 1994 the
CSCE evolved into the OSCE, an organization with
int/en/documents/ecpt.htm>.
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a mission to further democracy, protect human
and minority rights, and encourage military reform.
Its 56 participating states span “from Vancouver
to Vladivostok,” incorporating Canada, the United
States, Eastern and Western Europe, Russia
and the former Soviet Republics, and Turkey.14
It deals with “three dimensions of security” –
the politico-military dimension, the economic
and environmental dimension, and the human
dimension.15
Under the rubric of the “human dimension” the
OSCE engages in a number of human rights
activities, including monitoring the human rights
situation in member states, providing human
rights training and education, and contributing
to the development of human rights content by
issuing non-binding standards. Its activities in
recent years have focused on issues of human
trafficking, democratization, education, elections,
gender equality, media freedom, minority rights,
the rule of law, and non-discrimination.16 It has
developed several mechanisms for promoting and
protecting human rights, including the creation of
an Office for Democratic Institutions and Human
Rights, a Representative on Freedom of the Media,
and an Office of the Special Representative and
Coordinator for Combating Trafficking in Human
Beings, and it has deployed field missions to
perform a range of activities, including monitoring
borders, observing elections, and supporting
schools.17
One of the most prominent human rights
mechanisms developed by the OSCE is its
High Commissioner on National Minorities. The
OSCE is unique in its concentrated focus on the
status of national minorities. It recognized early
on that many of Europe’s modern conflicts have
arisen out of situations of ethnic tension, and
14 For a list of current members of the
Organization for Security and Cooperation in
Europe, see the OSCE participating states page at
<http://www.osce.org/who/83>.
15 OSCE, “The three OSCE dimensions”,
available from <http://www.osce.org/item/44318>.
16 OSCE, “What we do”, available from <http://
www.osce.org/what>.
17 David J. Galbreath, The Organization for
Security and Cooperation in Europe (London,
Routledge, 2007), p. 2.
110 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
the High Commissioner’s mandate is to seek
early resolution of any such tensions that might
endanger peace, stability, or friendly relations
among the OSCE participating states.18 The High
Commissioner cannot receive individual or state
communications, and performs a diplomatic, rather
than a quasi-judicial, function. To this end, the
High Commissioner for National Minorities has
been particularly influential in developing the “quiet
diplomacy” method, in which the OSCE acts as a
neutral broker between opposing political actors.19
European Union (EU)
The third of the three major institutions in the
European system is the European Union (EU). The
origins of the EU lie in the Treaty of Paris of 1952,
which established the European Coal and Steel
Community, a six-nation agreement that sought
to integrate the economies of France and West
Germany. Despite its economic face, the aim of
this integration was also political: Robert Schuman,
one of the architects of the system, declared that
its goal was to “make war not only unthinkable but
materially impossible.”20 From this beginning, the
project of European economic integration continued
to steadily expand, and now covers a broad range
of competences and stretches to 27 nations in
Western and Eastern Europe.21
The adoption of a European bill of human rights
was proposed in the early 1950s, but it was not
until 2000 that any subsequent treaties included
18 For more information, see the website of the
High Commissioner for National Minorities at
<http://www.osce.org/hcnm>.
19 David J. Galbreath, p. 4.
20 Robert Schuman, “Declaration of 9 May
1950”, available from <http://europa.eu/abc/
symbols/9-may/decl_en.htm>.
21 The current EU members are: Austria,
Belgium, Bulgaria, Cyprus, Czech Republic,
Denmark, Estonia, Finland, France, Germany,
Greece, Hungary, Ireland, Italy, Latvia, Lithuania,
Luxembourg, Malta, Netherlands, Poland, Portugal,
Romania, Slovakia, Slovenia, Spain, Sweden, and
the United Kingdom. For an updated list, see the
Member States page of the EU website at <http://
europa.eu/abc/european_countries/index_en.htm>.
any such bill or list of rights.22 Nevertheless, during
the first 50 years of the EU, the European Court of
Justice (the EU’s judicial body) developed some
jurisprudence on human rights, particularly in the
context of violations by the EU governing bodies.
The EU promotes human rights outside the region
by engaging in dialogue and providing technical
and financial assistance to third states. Various
monitoring and advising experts assist the EU
bodies on human rights topics.23 All members of the
EU are also parties to the ECHR.
A Charter of Fundamental Rights of the European
Union that enshrines all of the rights contained
in the ECHR and the Social Charter into the
governing documents of the EU was adopted by
the EU governing bodies in 2000, and entered
into force in December 2009. The Charter makes
a broad set of civil, political, economic, and social
rights – including some novel rights like “the
prohibition of the reproductive cloning of human
beings”24 – a legally binding feature of the European
Union. Because the Charter is a new human rights
treaty, it remains to be seen how exactly it will
function in practice.
5.3 The Inter-American System
The Inter-American system of human rights
protection is the second long-standing regional
system for the monitoring and enforcement
of human rights. The architecture of the
Inter-American system – in both its institutional
structure and its substantive provisions – is quite
similar to that of the European and international
systems. It is primarily based around two treaties
– the American Declaration on the Rights and
Duties of Man and the American Convention on
Human Rights25 – administered by the Organization
of American States (OAS), the Inter-American
Commission on Human Rights, and the
Inter-American Court of Human Rights (IACtHR).
22 Henry J. Steiner, Philip Alston, and Ryan
Goodman, pp. 1014–5.
23 Ibid., p. 1016.
24 Charter of Fundamental Rights of the European
Union, Art. 3(2).
25 See: Organization of American States,
American Convention on Human Rights, Nov. 22,
1969, O.A.S.T.S. No. 36, 1144 U.N.T.S. 123 (1978).
HUMAN RIGHTS
The Inter-American system arose out of a
particular historical and political context that
differs greatly from other human rights regimes.
Unlike the European system, which has overseen
a group of predominantly democratic countries
with independent judiciaries, and has grappled
with issues such as freedom of expression and
the right to privacy, the primary challenges in the
Americas have been the presence of authoritarian
governments, the abuse of states of emergency,
weak and corrupt judiciaries, and practices of
torture, disappearances, and executions.26 As a
result of its genesis in this different context, the
Inter-American institutions have focused intently on
gross, rather than “ordinary”, violations of human
rights.
In the last few decades, as the history of
dictatorship has begun to fade, the Inter-American
system has begun to confront issues of freedom
of expression, due process and impunity, and
increasingly the focus is turning to issues of
inequality, exclusion, and poverty. However, it
continues to hear a high number of cases related to
severe violations.
Additionally, although the American system
theoretically applies to the whole region of
North, Central, and South America, it has been
predominantly a Latin American system, with the
United States and Canada making only occasional
appearances.27
The Organization of American States (OAS)
was established in May 1948 for the purposes of
strengthening peace and security in the Americas,
promoting democracy, settling inter-state disputes,
and supporting development. Currently, the OAS
has 35 Member States, covering all independent
countries of the Americas.28
26 David J. Harris, “Regional Protection of Human
Rights: The Inter-American Achievement”, in The
Inter-American System of Human Rights, David
J. Harris and Stephen Livingstone, eds. (Oxford,
Oxford University Press, 1998), p. 1.
27 David J. Harris, p. 4.
28 For a list of current members of the OAS as well
as information on suspensions, see the membership
page of the OAS website, available at <http://www.
oas.org/documents/eng/memberstates.asp>.
| 111
The establishment of the OAS in 1948 was preceded
by the adoption of the American Declaration on the
Rights and Duties of Man, the founding human rights
document in the American system, and the oldest
general international human rights treaty (predating
the UDHR by several months). The rights contained
in the Declaration are similar to those in the UDHR,
and include civil and political as well as economic,
social, and cultural provisions. It is unique, however,
in that it includes ten “duties of the citizen” in addition
to rights:
• The duty of the individual to conduct himself in
relation to others that each and every one may
fully form and develop his personality;
• The duty to aid, support, educate, and protect
children and to honor, aid, support, and protect
parents;
• The duty to receive education;
• The duty to vote;
• The duty to obey the law;
• The duty to serve the community and the nation;
• The duty to respect social security and welfare;
• The duty to pay taxes;
• The duty to work; and
• The duty to refrain from political activities in a
foreign country.29
Like the UDHR, this early treaty had significant
moral and political force, but at the time of its
adoption was not a binding legal document and
contained no enforcement mechanisms.
The American Convention on Human Rights,
which translated the American Declaration into a
binding legal document, was adopted in 1969 and
entered into force in 1978. Currently, 24 of the 35
members of the OAS are party to the Convention.30
The American Convention is similar in structure
to the ICCPR, and focuses primarily on civil and
29 American Declaration of the Rights and Duties
of Man (1948), Arts. 29–38.
30 For an updated list of State Parties to the
American Convention, visit the website of the OAS
Department of International Law at <http://www.
oas.org/juridico/english/sigs/b-32.html>.
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political rights. It differs somewhat from the ICCPR,
however, in that it contains no protection for
minorities, and includes five additional protections
for the rights of reply, the right to property, freedom
from exile, the right to asylum, and the prohibition
of the collective expulsion of aliens.31
Rather than creating a separate treaty for
economic, social, and cultural rights, the American
Convention includes a general provision instructing
state parties to implement them:
The States Parties undertake to adopt measures,
both internally and through international
cooperation, especially those of an economic
and technical nature, with a view to achieving
progressively, by legislation or other appropriate
means, the full realization of the rights implicit in
the economic, social, educational, scientific, and
cultural standards set forth in the Charter of the
Organization of American States ... 32
An Additional Protocol to the American Convention
on Human Rights in the Area of Economic, Social
and Cultural Rights (the Protocol of San Salvador)
was adopted in 1988 and went into effect in 1999.
The Protocol obliges parties to adopt measures
for the progressive achievement of a list of
rights similar to those in the ICESCR, and a few
additional rights such as the right to a healthy
environment (which we will discuss in Lesson 7),
the right to special protection in old age, and the
rights of persons with disabilities (which we will
discuss in Lesson 10). Currently, 14 states are
party to the Protocol of San Salvador.33
Specific rights and groups are granted further
protection under several additional conventions,
including:
• Inter-American Convention on the Granting of
Civil Rights to Women (1948);
• Inter-American Convention on the Granting of
Political Rights to Women (1948);
31 American Convention on Human Rights, Arts.
14, 21, and 22.
32 Ibid., Art. 26.
33 For an updated list of state parties, see the
list on the website of the OAS Department of
International Law, available at <http://www.oas.org/
juridico/English/sigs/a-52.html>.
 American
Declaration on
the Rights and
Duties of Man
Inter-American
Commission on
Human Rights
American
Convention on
Human Rights
• Inter-American Convention to Prevent and
Punish Torture (1985);
• Inter-American Convention on International
Traffic in Minors (1994);
• Inter-American Convention on the Forced
Disappearance of Persons (1994);
• Inter-American Convention on the Prevention,
Punishment and Eradication of Violence against
Women (the Convention of Belém do Pará)
(1994); and
• Inter-American Convention on the Elimination of
All Forms of Discrimination against Persons with
Disabilities (1999).
These treaties are supported by a number of
inter-American organizations that address human
rights issues, including the Inter-American
Commission of Women, the Inter-American Children’s
Institute, the Inter-American Indian Institute, and the
Inter-American Institute of Human Rights.
Two bodies have been given the primary
responsibility for overseeing the implementation of
the American Declaration and American Convention:
the Inter-American Commission on Human Rights
and the Inter-American Court of Human Rights.
The first of these two, the Inter-American
Commission on Human Rights, is a treaty body set
HUMAN RIGHTS
Inter-American
Court of
Human Rights
up in 1959 to oversee the implementation of the
American Declaration on the Rights and Duties of
Man. The Inter-American Commission monitors and
investigates human rights situations, receives and
comments on country reports, makes country visits
(an important power that has no equivalent in the
European system), and serves as the first destination
for all individual complaints, some of which it sends
on to the Inter-American Court of Human Rights
(below). Today the Commission also serves as the
treaty body for the American Convention.
The Commission can hear individual complaints
as well as inter-state complaints under both the
Declaration and the Convention. The number of
individual complaints received by the Commission
has increased substantially over the past decade:
from 435 complaints received in 1997, to 658 in
2000, to 1050 in 2003, and between 1315 and
1330 complaints received in 2004, 2005, 2006,
and 2008.34 Of these, over the past decade it has
sent between two and 15 cases per year to the
Inter-American Court.35
Though they have substantial persuasive force, the
Commission’s recommendations on these individual
complaints are not binding. As a result, ensuring
compliance is an ongoing issue – of the 116
34 Inter-American Commission on Human Rights,
Annual Report 2008 (2009), Chapter III, part B.
35 Ibid.
| 113
recommendations to the state that the Commission
issued between 2000–2007, full compliance has
been achieved in only 12 cases. Partial compliance
of some form is recorded in 84 cases, and in 20
cases the state has entirely failed to comply.36
The Commission can also request that states
adopt precautionary measures in order to prevent
irreparable harm to human rights in urgent cases.
For example, the Commission may request that a
state take special measures to guarantee the life
and physical integrity of a person under threat of
violence. The Commission annually receives several
hundred requests for precautionary measures,
and over the past decade has granted between 28
and 91 each year. As with its recommendations on
individual petitions, the Commission’s requests for
precautionary measures are not binding on states,
and they do not always comply.37
The Inter-American Court of Human Rights
(IACtHR) was established in 1979 to enforce the
Convention. It is empowered to issue advisory
opinions (legal opinions not connected with
contentious cases) and hear individual complaints.
The IACtHR differs from the European Court in that
individual complaints may not be made directly, but
must be forwarded by the Commission or the state
party to the complaint. The IACtHR has jurisdiction
only over those 24 countries that have ratified the
American Convention. Complaints against states
that have ratified only the Declaration must be
addressed to the Inter-American Commission
instead. Decisions of the IACtHR, unlike those of
the Commission, are legally binding on states.
The IACtHR has been somewhat less active
than its equivalent in the European system. It has
received and adjudicated a fairly small number of
cases, issuing less than 200 judgments and around
20 advisory opinions in its first 30 years.38 One of
the reasons for this is that unlike the European
36 Ibid., Chapter III, part D.
37 For a recent example of state non-compliance
with a request for precautionary measures, see the
discussion of the Commission’s request that the
United States determine the status of detainees
held at Guantánamo Bay, Cuba in Lesson 14.
38 Inter-American Court of Human Rights, Annual
Report 2008 (2009), p. 58.
114 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
Court, the IACtHR is not a permanent body, but
meets several times a year to hear complaints.
Several of its cases, however, have made a
relatively significant impact on international human
rights law. In particular, the IACtHR has been
a pioneer in defending the rights of indigenous
peoples and in ordering states to pay reparations to
victims of human rights abuses.39
The OAS Charter also created an Inter-American
Council for Education, Science and Culture and an
Economic and Social Council to set standards and
make recommendations with respect to economic,
social, and cultural rights. These organizations,
however, have remained fairly weak.40
5.4 The African System
The protection of human rights has a long history
in Africa, which has struggled for much of recent
history against colonialism and apartheid, repressive
post-colonial regimes, conflict, and poverty. The
legal structure of the African system, however, is
the newest of the three major regional systems for
the promotion and protection of human rights. It is
the least developed, the most distinctive, and the
most controversial of the three, and is currently in
a state of major change. Because of its youth, a
perpetual lack of resources, and the limited political
will of some of its member states, the African system
has yet to produce a broad jurisprudence or have
a major impact on the state of human rights on the
continent. With reforms ongoing, and increasing
support for human rights among governments,
however, its future remains to be seen.
The Organization of African Unity (OAU) was
established in 1963 to serve as the regional
governing body for the African states. It was set
up in the wake of the anti-colonial struggle of the
1950s, and its agenda focused primarily on ending
colonialism. As such, the OAU Charter recognized
the “inalienable right of all people to control their own
destiny” and listed as one of its primary purposes
the defence of the sovereignty, territorial integrity
and independence of African states.41 This emphasis
39 Henry J. Steiner, Philip Alston, and Ryan
Goodman, p. 1048.
40 Ibid., p. 1023.
41 Charter of the Organization of African Unity (1953).
 Duties in the African Charter
International human rights treaties such as the UDHR and ICCPR are written in the language of rights. For many,
“rights” language is the natural way of talking about human dignity and the treatment of individuals by governments.
But for others, “rights” language seems divisive, overly individualistic, and disruptive of traditional social structures.
For the latter group, the language of duties may better serve to protect and promote the values of community.
As mentioned in Lesson 1, for every right, there is a corresponding duty. An individual’s right to be free from torture
implies a corresponding duty on the state not to torture. In that sense, duties are already present in every system
of human rights protection. The African Charter on Human and Peoples’ Rights, though, imposes duties not just
on the state, but also on the individual. These duties, contained in Articles 27–29 of the Charter, include respecting
the rights of parents, the state, and others without discrimination; serving the national community; paying taxes;
preserving African cultural values; and refraining from compromising the security of the state.
The drafters of the African Charter hoped that these duties would assist in rebuilding a pre-colonial sense of community,
enshrining African values in human rights treaties, and ensuring the smooth functioning of society in Africa.
The reliance on duties has been subject to criticism, however. Some worry that it gives too much power to states and
may serve as an excuse for countries to violate human rights. Others disagree that there is a permanent or static
African culture that could or should be protected by law, and still others fear that the emphasis on duties could serve
to recreate and enshrine hierarchies and work against achieving distributive justice.

on sovereignty led the OAU to resist intervening in
the internal affairs of African states, even for the
purpose of ending gross human rights abuses. But
this reluctance to intervene soon led to charges that
the OAU was “largely irrelevant,” “bureaucratic and
toothless,” and a “dictators’ club” that was “unwilling
to hold its members accountable.”42
As part of a major reform effort, the OAU was
succeeded by the African Union (AU) in 2002.
The AU has a much broader human rights agenda
than its predecessor. The founding document of
the new body provides that the AU shall operate in
accordance with human rights principles, and lists the
promotion and protection of human rights as one of
its key objectives. While some have criticized the AU
for being slow to act against human rights violators,
there have been indications that the OAU’s legacy of
zealous protection of state sovereignty may be fading
into the background. For example, when Sudanese
President Omar al-Bashir attempted to assume the
Chairmanship of the AU, other countries blocked the
42 Marc Lacey, “New Name, Similar Struggles
for Group of African Nations”, New York Times, 5
February 2003; Marc Lacey, “African Union Rebuffs
Attempt by a Sudanese to Lead It”, New York
Times, 24 January 2006.
appointment due to concerns over the human rights
situation in Darfur.43 The AU has sanctioned Member
States such as Togo44 and Mauritania45 for their failure
to hold democratic elections, and it has deployed
peacekeeping forces in Burundi, Somalia, and Sudan.
Today, 53 of the 54 African states (with the exception
of Morocco, which withdrew when the AU recognized
Western Sahara in 1984) are members of the AU.46
The OAU adopted the African Charter on Human
and Peoples’ Rights (also known as the Banjul
Charter) in 1981.47 All 53 Member States of the AU
43 Marc Lacey, “African Union Rebuffs Attempt
by a Sudanese to Lead It,” New York Times, 24
January 2006.
44 Lydia Polgreen, “African Nations to Step Up
Pressure on New Togo Ruler”, New York Times,
21 February 21 2005; Lydia Polgreen, “Togo Ruler,
Surrendering to Pressure, Steps Down”, New York
Times, 26 February 2005.
45 “Sanctions put on Mauritania Junta,” BBC
News, 6 February 2009.
46 A current list of Member States of the AU is
available on the African Union’s website at <http://
www.africa-union.org/root/au/memberstates/map.
htm>.
47 See: Organization of African Unity, African

HUMAN RIGHTS | 115

are party to the African Charter.48 The Charter is the
founding document of the African system, and has
a number of unique aspects. It recognizes a broad
range of civil, political, economic, social, and cultural
rights, as well as a number of group rights that
are not recognized by other regional bodies.49 For
example, the African Charter recognizes the right of
peoples to equality; existence; self-determination;
control over natural resources; economic, social,
and cultural development; international peace and
security; and a generally satisfactory environment.50
Additionally, the African Charter is much more
duty-oriented than either the UN human rights
system or the other regional systems.
In the years since the signing of the African
Charter, several additional human rights
instruments have been adopted. Notable among
these are the 1990 African Charter on the Rights
and Welfare of the Child and the 2003 Protocol to
the African Charter on Human and Peoples’ Rights
on the Rights of Women in Africa. Currently, 45
of the 53 states in the AU are party to the African
Charter on the Rights and Welfare of the Child and
27 states are party to the Protocol on the Rights
Women in Africa.51 The Protocol on the Rights
of Women in Africa is particularly far-reaching,
broadly defining discrimination as “any distinction,
exclusion or restriction or any differential treatment
based on sex and whose objectives or effects
compromise or destroy the recognition, enjoyment
or the exercise by women, regardless of their
[Banjul] Charter on Human and Peoples’ Rights, 17
June 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M.
58 (1982) (entered into force 21 October 1986).
48 For a list of current ratifications, see the
website of the African Commission on Human and
Peoples’ Rights at <http://www.achpr.org/english/
ratifications/ratification_african%20charter.pdf>.
49 We will discuss the content of group rights in
Lessons 6 and 7.
50 African Charter on Human and Peoples’ Rights,
Arts. 19–24.
51 Numbers current as of July 2009. For a
complete list of current state parties to the African
Charter on the Rights and Welfare of the Child and
Protocol on the Rights of Women in Africa, see the
treaty page of the African Union website at <http://
www.africa-union.org/root/au/Documents/Treaties/
treaties.htm>.
116 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
marital status, of human rights and fundamental
freedoms in all spheres of life.”52
The enforcement mechanisms of the African
system are currently undergoing a period of major
change. As a result, the current manifestation of
the African system, as one scholar put it, “is a truly
post-modern judicial landscape.”53
The African Charter establishes an African
Commission on Human and Peoples’ Rights to
oversee the implementation of the treaty. The
Commission has been in operation since 1987,
and is headquartered in Banjul, The Gambia.
The African Commission receives and comments
on state reports, conducts on-site visits, issues
resolutions, appoints special Rapporteurs and
working groups, and acts as a quasi-judicial body,
empowered to hear individual complaints and
inter-state complaints, and to issue non-binding
recommendations. In addition, the Commission’s
rules of procedure allow it to issue requests for
provisional measures to prevent imminent harm to
human rights.54 The African Commission’s broad
mandate has allowed it develop some leading
decisions on economic, social, and cultural rights.55
Despite its innovative jurisprudence, the
Commission has been subject to criticism due
to its lack of resources, the uneven quality of its
52 Protocol to the African Charter on Human and
Peoples’ Rights on the Rights of Women in Africa
(2003), Art. 1.
53 Frans Viljoen, International Human Rights Law
in Africa (Oxford, Oxford University Press, 2007), p.
459.
54 Christof Heyns and Magnus Killander,
“The African Regional Human Rights System”,
in International Protection of Human Rights:
Achievements and Challenges, F. Gomez Isa and
K. de Feyter, eds. (Bilbao, University of Deusto,
2006). For example, the Commission issued
an interim measure asking Nigeria to halt the
executions of Ken Saro-Wiwa and other Ogoni
activists, but the request was ignored.
55 See: The Social and Economic Rights Action
Center for Economic and Social Rights and the
Center for Economic and Social Rights v. Nigeria,
African Commission on Human and Peoples’
Rights, Communication No. 155/96 (2001).
decisions, and the questionable independence
of its members, who in the past had sometimes
served concurrently as government ministers or
ambassadors.56 Consequently, the Commission’s
recommendations are often ignored: a recent study
found that full compliance with recommendations
by the African Commission had been achieved
in only six of the 44 cases in which a violation
was found.57 Though recent years have brought
improvements, its failures provided impetus for
reform.
In 1998, the OAU adopted a Protocol to the African
Charter that created an African Court on Human
and Peoples’ Rights to complement and reinforce
the work of the Commission. The Protocol entered
into force in 2004, and the Court opened its doors
in Arusha, Tanzania in 2006. The Court issued
its first decision in December 2009, in which it
dismissed an individual complaint against Senegal
for lack of jurisdiction.58
An African Court of Justice that was intended to
be the principal judicial organ of the African Union
(parallel to the European Court of Justice, which
is the principal judicial organ of the EU) was also
established in 2003. This Court was to hear cases
between states, organs of the African system
(including the Commission), and, in some cases,
third parties.
Despite the fact that the African Court on Human
and Peoples’ Rights and the African Court of
Justice had yet to hear their first cases, African
leaders voted in mid-2008 to establish an African
Court of Justice and Human Rights to serve as the
main judicial organ of the African Union.59 This new
56 Christof Heyns and Magnus Killander. Since
2005, AU guidelines exclude senior civil servants
and diplomatic representatives from holding posts
on the Commission.
57 Ibid.
58 See: Michelot Yogogombaye v. Republic
of Senegal, African Court of Human Rights (15
December 2009).
59 Protocol on the Statute of the African Court
of Justice and Human Rights, 1 July 2008,
available from <http://www.africa-union.org/root/
au/documents/treaties/text/Protocol%20on%20
the%20Merged%20Court%20-%20EN.pdf>.
HUMAN RIGHTS
Court will merge the African Court on Human and
Peoples’ Rights and the African Court of Justice
into one African Court of Justice and Human Rights.
The new Court will have two sections: one of which
will be devoted to disputes over matters such as
the powers of the AU or breaches of AU treaties
(replacing the Court of Justice), and the other
to human rights (replacing the Court on Human
and Peoples Rights). Some members of the AU
protested this move, arguing that the two Courts
should remain separate due to their essentially
different mandates, but in the end arguments that
the merger would cut costs, prevent duplication of
effort, and enhance efficiency prevailed.
Secretary-General of the UN Ban Ki-moon (center) meets with Jakaya
Mrisho Kikwete (left), President of the United Republic of Tanzania, and
current Chairperson of the African Union; and Jean Ping, Chairperson of
the African Union Commission.
(UN Photo #224126 by Evan Schneider, November 2008)
The new African Court of Justice and Human
Rights will be empowered to issue binding
judgments and award compensation and other
remedies, and will also be able to issue advisory
opinions. Judgments will be legally binding, and in
the event that states fail to comply, the AU will be
authorized to take action, including by imposing
sanctions on the non-compliant state.
Like other institutions and treaties in the African
system, the African Court will differ from its
Inter-American and European counterparts. On
the one hand, it will have the jurisdiction to hear
a greater variety of human rights cases than
either the European or Inter-American Courts.
For example, in addition to hearing cases related
| 117
to abuses of civil and political rights, the African
Court, like the Commission, will have the authority to
adjudicate violations of economic, social, and cultural
rights, as well as collective rights. Additionally, the
African Court will have the power to hear complaints
involving not just the African Charter, but also the
African Charter on the Rights and Welfare of the Child,
the Protocol to the African Charter on Human and
Peoples’ Rights on the Rights of Women in Africa, and
“any other legal instrument relating to human rights,”
including international human rights treaties that have
been ratified by the state concerned.60
On the other hand, the African Court will be
hampered by lack of access, as individuals and
NGOs will not be able to bring cases before the
Court without a signed declaration by each state
allowing the Court to hear this type of case. Many
commentators are skeptical that governments will
be willing to make such declarations; the Protocol
establishing the African Court on Human and
Peoples’ Rights contains a similar provision, and only
two of the 24 states that have ratified the Protocol
to date have made a declaration allowing suits by
individuals.61 In the event that individual complaints
are blocked, the burden of bringing cases will rest on
states, the African Commission, and African National
Human Rights Institutions.
The treaty establishing the new Court is currently
open for signature and ratification, but signatures
are slow in coming, and the Court is therefore not
expected to become operational for several years.
In the meantime, the African Court on Human and
Peoples’ Rights will continue to operate.
In addition to these major human rights institutions,
there are also various courts of justice in Africa’s
several regional economic communities that have
human rights mandates. The Court of Justice of the
East African Community, the Court of Justice of West
African States, the Court of Justice of the Common
Market of East and Southern Africa, and the Tribunal
of the Southern African Development Community
may all have some competence over certain human
rights issues.
60 Ibid.
61 See: Sonya Sceats, “Africa’s New Human Rights
Court: Whistling in the Wind?” Chatham House
International Law Briefing Paper (2009), p. 10.
118 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
5.5 Other Regional Efforts
Asian Initiatives
Although regional human rights mechanisms were
developed in Europe, Africa, and the Americas,
a similar system has not emerged in Asia. One
reason for this is that during much of the twentieth
century the Asian and Pacific countries argued
that their states were too dissimilar and their region
too heterogeneous to support a regional body.
Moreover, some Asian states argued that human
rights were too individualistic and anti-communal
for Asia or were incompatible with the teachings
of Confucianism, Buddhism, and Islam, a position
that generated an entire literature on the so-called
“Asian values debate.”62 As a result, when the
UN organized a seminar in 1982 to consider
establishing an Asian Human Rights Convention,
leaders of the Asian countries rejected the idea.
This situation has changed somewhat in recent
years, and the former objections to creating a
regional system seem to be crumbling. In 1989,
the Association of Southeast Asian Nations
(ASEAN) formed a Regional Council on Human
Rights in Asia and drafted a Pacific Island Human
Rights Charter. In 1993, a non-binding Bangkok
Declaration on Human Rights presented the human
rights aspirations of the region, and an Asian
Charter on Human Rights calling on all states to
establish national human rights institutions (NHRIs)
was concluded in 1997.
Currently, Southeast Asian states are collaborating
through ASEAN to create a human rights
enforcement mechanism for their region. The
Southeast Asian Nations formally began the
process of establishing a human rights body in
July 2009, when it adopted preliminary Terms
of Reference for an ASEAN Intergovernmental
Commission on Human Rights (AICHR). This
proposed AICHR would be consultative only,
advising Member States on issues, encouraging
ratification of human rights treaties, and assisting
62 For a useful overview of the Asian values
debate, see: Randall Peerenboom, “Beyond
Universalism and Relativism: The Evolving Debates
about ‘Values in Asia’”, Indiana International and
Comparative Law Review, vol. 14, No. 1 (2003).
in the implementation of human rights obligations.
Observers have already criticized the proposed
AICHR for its weakness and lack of compliance
mechanisms; the Wall Street Journal, for example,
called it “the world’s most toothless human-rights
body.”63 However, this new regional effort is still at
a very early stage, and it remains to be seen how
much of an impact it will have on the human rights
situation in Asia.
Writing Exercise 5: Human Rights in Asia
Because of your expertise in regional systems,
ASEAN has asked for your help in designing
the new Asian human rights mechanism. Due
to ongoing opposition to the proposed AICHR,
ASEAN has given you a free hand to develop an
entirely new plan.
Consider the following questions and write a
brief report (maximum one page).
• How would you construct an Asian
human rights system? What types of
treaties would it have? What types of
enforcement mechanisms?
• Why have you chosen these types of
treaties and enforcement mechanisms?
What makes them better or worse than
other choices?
• Do you think that governments will
support your plan? Why, or why not?
Arab States
Several human rights documents have emerged
from the Islamic world, although none have been
successful in setting up a human rights system
similar to those in the other regions.
The League of Arab States (Arab League) was
founded in March 1945 in order to strengthen the
relations among Member States and advance the
interests of Arab countries. From seven founding
states, it has grown to 22 members, including
most Arab states in the Middle East and North
63 “Asean’s Toothless Council”, Wall Street
Journal, 22 July 2009.
HUMAN RIGHTS
Africa. The Pact of the League of Arab States, the
founding document of the organization, makes
no mention of human rights.64 The Arab League
established a Permanent Arab Commission on
Human Rights in 1968, which was made up of
government representatives who were empowered
to submit recommendations to the League, but it
has been largely inactive.
In 1994, the League adopted the Arab Charter of
Human Rights, which reaffirmed the principals
of the Cairo Declaration. The Arab Charter
invokes “the eternal principles of brotherhood
and equality among all human beings which were
firmly established by the Islamic Shari’a and the
other divinely-revealed religions” and reaffirms the
principles of the UDHR, ICCPR, and ICESCR.65
The Arab Charter is the only legally binding human
rights instrument specifically addressed to the
Islamic world. It does not, however, contain any
enforcement mechanisms. Although the text of the
Arab Charter was approved by consensus in the
League of Arab States, many countries have failed
to ratify it, and it has not yet entered into force. An
updated version of the Arab Charter was adopted
in 2004, but it, too, lacks the ratifications needed to
enter into force. The new Arab Charter sets up an
Arab Human Rights Committee that is empowered
to monitor compliance and receive reports from
state parties. However, it still does not contain any
mechanism for reviewing individual complaints.
Another regional body, the Organization of the
Islamic Conference (OIC), was established in 1969
for the purpose of promoting Islamic solidarity
among Member States.66 Currently, 57 states are
members of the OIC.67 The OIC adopted its major
human rights document, the Cairo Declaration
on Human Rights in Islam, in 1990. The Cairo
Declaration, which is non-binding, outlines human
64 See: Pact of the League of Arab States.
65 Arab Charter, Preamble.
66 For more information on the Organization of the
Islamic Conference, see the OIC website at <http://
www.oic-oci.org/>.
67 Numbers current as of July 2009. For
a complete list of current members of the
Organization of the Islamic Conference, see the
OIC Member States page at <http://www.oic-oci.
org/member_states.asp>.
| 119
rights and fundamental freedoms in the context of
the Shari’a, and limits protections for rights such as
the right to life, regulation of punishment, and the
right to assume public office in keeping with Islamic
law.68 In 2004, the OIC adopted a binding Covenant
on the Rights of the Child in Islam. The Covenant
will enter into force once 20 OIC member states
have ratified it, but none have yet done so.
Thus far, neither the Arab League nor the OIC
instruments have contributed significantly to the
improvement of human rights in the Arab world.69
Commonwealth of Independent States
States of the former Soviet Union came together
in 1991 to form the Commonwealth of Independent
States (CIS). The CIS adopted a Commonwealth of
Independent States Convention on Human Rights
in 1995, and gave the duty for enforcing it to the
CIS Human Rights Commission, established two
years earlier. The Convention has been criticized
and has not had much practical effect, and there
is debate as to whether or not it is fully established
and functioning. In any case, now that many of the
central European countries have become members
of the European Union, and even more have been
brought under the jurisdiction of the European
Court of Human Rights, the reach of the European
system has extended to cover this area.
5.6 Other Actors
Intergovernmental Organizations
A huge number of additional UN agencies,
partners, and other intergovernmental groups
also contribute to the promotion and protection
of human rights. These agencies are known
generally as intergovernmental organizations,
and when they are affiliated with the UN they are
sometimes known as specialized agencies. These
organizations are established by governments
either through the UN or via a separate treaty in
order to monitor, commission studies on, report on,
and administer agreements related to a specific
issue. The UN specialized agencies and other
68 Cairo Declaration on Human Rights in Islam, 5
Aug. 1990, at Arts. 2, 19, 23, and 24.
69 Frans Viljoen, p. 15.
120 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
intergovernmental organizations form a critical
part of the international structure of human rights
governance, and their work complements that of
the UN Charter-based and treaty-based bodies.
These intergovernmental organizations include,
among many others:70
• Department of Economic and Social Affairs
(DESA)
• Food and Agricultural Organization of the United
Nations (FAO)
• Inter-Agency Internal Displacement Division
(IDD)
• Inter-Agency Standing Committee (IASC)
• International Labour Organization (ILO)
• Joint United Nations Programme on HIV/AIDS
(UNAIDS)
• Office for the Coordination of Humanitarian
Affairs (OCHA)
• United Nations Children’s Fund (UNICEF)
• United Nations Development Programme
(UNDP)
• United Nations Entity for Gender Equality and
the Empowerment of Women (UN Women)
• United Nations High Commissioner for Refugees
(UNHCR)
• United Nations Human Settlement Programme
(HABITAT)
• United Nations Mine Action (UNMAS)
• United Nations Population Fund (UNFPA)
• United Nations, Educational, Scientific and
Cultural Organization (UNESCO)
• World Health Organization (WHO)
Intergovernmental organizations like these are
generally empowered to act upon a limited set of
issues. With respect to the promotion of human
rights, they may be able to perform a range of
enforcement activities, from standard-setting
70 For a full list of UN and associated agencies,
view the UN’s organization chart (2007): <http://
www.un.org/en/aboutun/structure/pdfs/un_system_
chart_colour_sm.pdf>.
to monitoring, reporting, providing technical
assistance, or even receiving communications from
individuals, businesses, or NGOs.
For example, one of the specialized agencies with the
most effective and well-developed mechanisms for
the protection and promotion of human rights is the
ILO. The ILO was founded in 1919 for the purpose of
improving labour conditions throughout the world. It
is unique in that it has a tripartite structure wherein
each country is represented by delegations from the
government, labour, and employers. It has adopted
a wide variety of international conventions and
recommendations, many of which deal with human
rights issues. Because its mandate focuses on labour
issues, the primary human rights targets of the ILO (as
codified in the Declaration of Fundamental Rights and
Principles at Work) are:
• Freedom of association and the right to
collective bargaining;
• Freedom from slavery and forced labour;
• Freedom from child labour; and
• Freedom from discrimination.
In pursuit of these aims, it examines country
reports, receives input from NGOs, conducts
technical and political reviews of national policies,
and is even empowered to receive complaints
about violations of labour rights. It provides
technical assistance to Member States, and aids
in the drafting and promotion of human rights
standards at the national level.
Another specialized agency with a long-standing
history of promoting and protecting human rights
is UNESCO. Founded in 1945, UNESCO has
the obligation “to further universal respect for
justice, for the rule of law and for 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.”71 UNESCO focuses on issues
related to education, science, and culture, as well
as information and communication. In order to
promote rights in these areas, UNESCO acts as a
forum for discussion, provides technical assistance,
assists in standard setting, performs research
into trends and violations of rights, promotes
71 UNESCO Constitution, Art. 1(1).
HUMAN RIGHTS
awareness, and funds schools and educational
programmes. Like the ILO, UNESCO has also
established a complaints procedure and receives
communications from individuals and NGOs.
International organs like the ILO and UNESCO
exercise a range of human rights implementation
and enforcement mechanisms, and have greatly
varying power and influence, depending on their
membership and constitution. Some of these
bodies – like UNHCR and UNICEF – will be
discussed in later lessons. There are far too many
variations to study in detail during this course.
Fortunately, most intergovernmental organizations
maintain up-to-date websites, and students are
encouraged to visit some of them in order to
expand their knowledge of how intergovernmental
organizations contribute to the promotion and
protection of human rights.
Non-Governmental Organizations
Human rights NGOs are civil society organizations
formed by private individuals or groups (not
governments) for the purpose of promoting and
protecting human rights. They may focus either
on human rights in general or on a specific human
rights issue, such as landmines or the right to
health. They may be local, national, regional, or
international both in terms of their focus as well as
in their structure and presence.72
Human rights NGOs have become an indispensable
part of international and regional human rights
enforcement systems. Their work and dedication
to the cause have been widely praised – they have
been called “the mouthpiece of world conscience.”73
There are many ways in which NGOs and other civil
society groups engage with and support other global,
regional, and national human rights monitoring and
enforcement systems. These include:
• Promoting the development, adoption, and
ratification of treaties;
• Lobbying states to implement their treaty
obligations;
72 H. Victor Condé, Handbook of International
Human Rights Terminology (Second Edition)
(Lincoln, University of Nebraska Press, 2004), p. 175.
73 Antonio Cassese, Human Rights in a Changing
World (Philadelphia, Temple University Press,
1990), p. 173.
| 121
 • Monitoring states’ compliance with their
obligations;
• Submitting information and written reports to
international and regional charter and treaty
bodies;
• Attending and contributing to sessions of
international and regional charter and treaty
bodies, where possible;
• Submitting individual complaints to treaty bodies,
the Human Rights Council, and regional human
rights courts;
• Educating individuals about their human rights;
• Drawing attention to human rights violations and
“shaming” states into action; and
• Mobilizing support for human rights enforcement.
UN/NGO compound where the American Red Cross, Turkish Red Crescent,
World Food Program, World Health Organization, EC Humanitarian Aid
Office, United Nations Office for the Coordination of Human Affairs and
others share space to coordinate the humanitarian effort for earthquake
victims in Pakistan. (UN Photo #99575 by Evan Schneider, October 2005)
NGOs operate under diverse mandates and focus
on a huge range of different issues. They vary
in size from a few people to major international
operations and employ many different types
of professionals. They may operate on an
international, regional, national, or local level.
Because they are decentralized and diverse, they
can gather, organize, and distribute information
quickly and reach areas where international
and regional bodies are unwilling or unable to
go. Particularly with respect to gathering and
distributing information, NGOs are vital to human
rights enforcement.
122 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
Over the past several decades, NGOs have gained
in power and reputation, and are now an official
part of many national and international human
rights delegations. Large-scale international NGOs
like Amnesty International, Oxfam, Doctors Without
Borders, and Human Rights Watch have become
staple presences at intergovernmental meetings.
They have been given key responsibilities in
the delivery of humanitarian and development
assistance, and partner with governments and
international organizations on education and
monitoring activities. They have scored major
victories – the 2006 Convention on the Rights of
Persons with Disabilities (CRPD), for example,
came about largely the result of NGO lobbying.74
This enormous increase in the power and presence
of NGOs has led observers to speak of the last
two decades as the beginning of an “advocacy
revolution.”75
Along with their increasing power and influence,
however, has come increasing concern about the
role of NGOs (as well as other non-state actors76)
in the international human rights architecture. Many
have criticized influential NGOs for their lack of
transparency and accountability, arguing that they are,
in effect, unelected special interest groups that have
been given important powers within the international
system.77 As The Economist wrote in 2000:
74 For more about the Convention on the Rights of
Persons with Disabilities, see Lesson 9.
75 Michael Ignatieff, “Human Rights as Politics”, in
Human Rights as Politics and Idolatry (2001), at 8.
76 For further discussion of the role of non-state
actors in international human rights law, see
Lesson 14.
77 See: Kenneth Anderson, “The Ottowa
Convention Banning Landmines: the Role of
International Non-Governmental Organizations
and the Idea of International Civil Society”,
European Journal of International Law, vol. 11, No.
1 (2000); Robert Charles Blitt, “Who Will Watch
the Watchdogs? Human Rights Nongovernmental
Organizations and the Case for Regulation”, Buffalo
Human Rights Law Review, vol. 10, (2004). For
more neutral assessments of the debate, see:
Steve Charnovitz, “Nongovernmental Organizations
and International Law”, American Journal of
International Law, vol. 100, No. 2 (April 2006); Peter
J. Spiro, “Accounting for NGOs”, Chicago Journal of
International Law, vol. 3, No. 1 (Spring 2002).
 Who elected Oxfam … ? Bodies such as these
are, to varying degrees, extorting admissions of
fault from law-abiding companies and changes in
policy from democratically-elected governments.
They may claim to be acting in the interests
of the people – but then so do the objects of
their criticism, governments and the despised
international institutions. In the West, governments
and their agencies are, in the end, accountable to
voters. Who holds the activists accountable?78
Some have also questioned whether NGOs
have the right to speak for those they purport to
represent. Because they are not elected, and may
come from entirely different backgrounds, NGOs’
viewpoints and values may not correspond with
those of their ostensible clientele, and attempts by
human rights professionals to speak “for” others
can marginalize and silence victims’ experiences.79
Relatedly, some have pointed to the danger that
(Western, Judeo-Christian) human rights NGOs
may be seen as the exclusive representatives
of the world’s conscience, to the exclusion of
perspectives and peoples from alternative cultural,
religious, or philosophical backgrounds.80
Conclusion
In Lessons 4 and 5 we have learned how the
legally binding human rights contained in human
rights treaties are enforced. We have examined
the mechanisms established by the international
community through the UN; the regional bodies
set up in Europe, the Americas, and Africa, as
well as the nascent human rights systems that are
emerging in other parts of the world; and the role
played by intergovernmental organizations and
NGOs. Now that we have become familiar with how
the human rights system works, we will move on to
some issues facing the system today. In particular,
78 “Angry and Effective,” The Economist, 23
September 2000.
79 David Kennedy, “The International Human
Rights Movement: Part of the Problem?” European
Human Rights Law Review, vol. 3 (2001), p. 121.
80 Makau Mutua, “Human Rights International
NGOs: A Critical Evaluation”, in NGOs and
Human Rights: Promise and Performance, Claude
E. Welch Jr., ed. (Philadelphia, University of
Pennsylvania Press, 2001).
HUMAN RIGHTS
we will turn to a subject that has already appeared
a number of times throughout the previous lessons:
the so-called “third generation” or “collective”
human rights. What are these rights? Are they part
of the international human rights system? And how
do they differ from the traditional set of “individual”
rights that we have learned about so far? This will
be the subject of Lesson 6.
Further Reading
The EU and Human Rights (Philip Alston et al., eds.,
1999); Tom Farer, “The Rise of the Inter-American
Human Rights Regime: No Longer a Unicorn,
Not Yet an Ox”, in The Inter-American System
of Human Rights (David J. Harris and Stephen
Livingstone, eds., 1998); Claudio Grossman,
“The Inter-American System of Human Rights:
Challenges for the Future”, Indiana Law Journal, vol.
83 (2008); David J. Harris, “Regional Protection of
Human Rights: The Inter-American Achievement”, in
The Inter-American System of Human Rights (David
J. Harris and Stephen Livingstone, eds., 1998);
Christof Heyns and Magnus Killander, “The African
Regional Human Rights System”, in International
Protection of Human Rights: Achievements and
Challenges (F. Gomez Isa and K. de Feyter, eds.,
2006); Margaret E. Keck and Kathryn Sikkink,
Activists Beyond Borders: Advocacy Networks in
International Politics (1998); Diana Shelton, “The
Promise of Regional Human Rights Systems”, in
The Future of International Human Rights (Burns
H. Weston and Stephen P. Marks, eds., 1999), at
351; P. Van Dyke and G.J.H. Van Hoof, Theory and
Practice of the European Convention on Human
Rights (1984); Frans Viljoen, International Human
Rights Law in Africa (2007).
Websites for Further Information
European Court of Human Rights:
www.echr.coe.int/echr/Homepage_EN
Organization of American States:
www.oas.org/en/default.asp
African Union: www.africa-union.org
Amnesty International: www.amnesty.org
Human Rights Watch: www.hrw.org
| 123
End-of-Lesson Quiz
1. Which of the following best describes the
relationship between regional and global
mechanisms for the enforcement of human
rights?
A. Regional mechanisms are hierarchically
superior;
B. Global mechanisms are hierarchically superior;
C. Regional and global mechanisms are
complementary;
D. Regional and global mechanisms have nothing
to do with one another.
2. Which of the following is NOT one of
the three primary organizations in the
European system:
A. The Organization for Security and Cooperation
in Europe;
B. The International Organization for Europe;
C. The European Union;
D. The Council of Europe.
3. The ___________________ is a judicial
body that serves as the primary enforcement
mechanism for the European Convention on
Human Rights (ECHR).
4. The European Union (EU) is primarily
concerned with:
A. Protecting human rights in Europe;
B. Economic integration in Europe;
C. Organizing an annual song festival called the
“Eurovision”;
D. Establishing a European Self-Defence Force.
124 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
5. The American Declaration on the Rights and
Duties of Man was adopted in:
A. 1948;
B. 1969;
C. 1981;
D. 1993.
6. Which of the following is NOT a human
rights treaty in the Inter-American system?
A. The American Declaration on the Rights and
Duties of Man;
B. The American Convention on Human Rights;
C. The Inter-American Convention to Prevent and
Punish Torture;
D. The Inter-American Convention on the
Prosecution of Human Rights Violators.
7. The ___________________ is the treaty
body that oversees the American Declaration
on the Rights and Duties of Man and the
American Convention on Human Rights.
8. Although their form is similar, the European
and Inter-American systems differ in that:
A. The European system has been primarily
concerned with economic, social, and cultural
rights, whereas the Inter-American system has
been concerned with civil and political rights;
B. The European system is far younger than the
Inter-American system;
C. The European system does not have a human
rights Court, whereas the Inter-American
system does;
D. The European system has dealt primarily
with ordinary violations of human rights
committed by democratic governments, while
the Inter-American system has dealt with
gross violations committed by authoritarian
governments.
9. The Organization of African Unity (OAU)
received criticism because:
A. It was far too active in condemning and
sanctioning states for human rights violations;
B. Its emphasis on sovereignty led it to resist
intervening in the affairs of Member States;
C. It was never able to produce a human rights
treaty;
D. Its strong concern with discrimination against
women led it to reject male delegates.

10. The ___________________ replaced the

Organization of African Unity (OAU) as
the regional governing body of the African
states in 2002.

ANSWER KEY
1C, 2B, 3 European Court of Human Rights, 4B,
5A, 6D, 7 Inter-American Commission of Human
Rights, 8D, 9B, 10 African Union (AU)

HUMAN RIGHTS | 125

LESSON 6
COLLECTIVE RIGHTS I:
THEORETICAL PERSPECTIVES AND
THE RIGHT TO SELF-DETERMINATION
 LESSON
6

LESSON OBJECTIVES

6.1 Introduction By the end of Lesson 6, the student should be able to meet the
following objectives:
6.2 Theoretical
Perspectives
• Define the term “collective rights”;
6.3 The Right to
• Appreciate the theoretical difficulties in articulating collective
Self-Determination human rights;
• Understand the history of the right to self-determination;
• Describe the content of the right to self-determination; and
• Explain the controversy over efforts at expanding the right to
self-determination.

To view a video introduction of this lesson by the

course author Jessica C. Lawrence, you can
either log in to your virtual classroom, go to www.
peaceopstraining.org/users/media_page/379/
lesson-6, or use your mobile device to scan the
QR code to the left.
6.1 Introduction
Collective Rights
Throughout the previous five lessons, we have
spoken of human rights as individual rights – rights
that protect the individual from abuse by the state
and, indirectly, other individuals. The UDHR,
ICCPR, ICESCR, and most of the other key
human rights treaties deal almost exclusively with
individual rights. Indeed, with the exception of the
right to self-determination, which we will discuss
in this lesson, all of the rights contained in the
UDHR are phrased as individual rights: “Everyone
is entitled … ”, “Every human being … ”, “Everyone
has the right … ”, etc.
In addition to individual rights, however, there
exists another category of rights known as
collective rights. Collective rights – also known
as peoples’ rights, group rights, solidarity rights,
or third-generation rights – are rights that are
addressed to and exercised by a people or
collectivity rather than an individual. Group rights
are not just the sum total of the rights of individual
group members.1 They protect the rights of a
people as such.
Group rights are often advanced as the “solution”
to the “problem” that the traditional liberal vision of
human rights is too individualistic. They are held
out as a response to the “Asian values argument”
that we discussed in Lesson 5, and they are
prominent in the African Charter on Human and
Peoples’ Rights, which protects:
• The equality of peoples;
• The right to existence and self-determination;
• The right to dispose of wealth and natural
resources;
• The right to development;
• The right to peace and security; and
• The right to a healthy environment.
1 For more on this notion, see the discussion
of irreducible social goods in: Charles Taylor,
Philosophical Arguments (Cambridge, Harvard
University Press, 1995), pp. 127–45.
HUMAN RIGHTS
But what are collective rights, exactly? Why
and how do they differ from the individual rights
discussed in Lessons 1 through 5?
The concept of “third-generation human rights”
was coined by French legal scholar Karel Vasak.
In a 1977 speech, Vasak drew a parallel between
the French Revolution’s motto, “liberté, egalité,
fraternité”, and what he saw as the “themes”
of human rights. First-generation rights were
those that corresponded with “liberty”, protecting
individuals against state abuses: civil and political
rights. Second-generation rights were those that
corresponded with “equality”, making the state
responsible for improving well-being: economic,
social, and cultural rights. Third-generation rights
were those that corresponded with “fraternity”,
promoting solidarity among peoples: collective
rights. Vasak outlined five different rights that he
believed should be included in this category of
solidarity rights:
• The right to development;
• The right to peace;
• The right to a healthy environment;
• The right to ownership of the “common heritage
of mankind”; and
• The right to communication.2
Just as many scholars and activists resist dividing
civil and political rights from economic, social,
and cultural rights and reject the “first-generation”
and “second-generation” tags that are frequently
applied to them, many commentators also object
to labeling collective rights as “third-generation.”
Primarily, this is because they feel that
“third-generation” implies a hierarchy among
rights and indicates that group rights can or should
be protected only after first generation civil and
political rights and second-generation economic,
social, and cultural rights have been fulfilled.3
2 Karel Vasak, “For the Third Generation of
Human Rights: The Rights of Solidarity”, Inaugural
Lecture, Tenth Study Session, International Institute
of Human Rights (July 1979), p. 3.
3 For more on this debate, see: Carl Wellman,
The Proliferation of Rights: Moral Progress or Empty
Rhetoric? (Boulder, Westview Press, 1999) at 29–38
(arguing in favour of the term “third generation”);
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Nevertheless, this terminology has become part of
the human rights landscape, and can be useful for
signifying a particular package of rights claims.
The first three of Vasak’s solidarity rights – the
right to development, the right to peace, and
the right to environment – along with the right to
self-determination, have taken hold in international
law. The rights of indigenous peoples and minority
groups, which are sometimes seen as species
of collective rights, have also been recognized
as protected by international human rights
agreements.4
Despite the growing recognition and influence of
group rights, however, the concept – as well as
the content and implications of specific rights –
remains controversial.
6.2 Theoretical Perspectives
Before we dive into an exploration of each of the
collective rights, it is important to take a brief
detour into the theory behind them. As you read
through this discussion of theoretical perspectives
on collective rights, think about how the different
arguments impact your idea of what human rights
are, and what they should be. Do you agree with
any of the critiques offered below? Why, or why
not? Does it matter whether collective rights are
theoretically sound?
Conflict over Philosophical Foundations
One reason why collective rights are seen as much
more controversial than individual rights is that
some of the philosophical foundations that we use
to justify individual rights (see discussion in Lesson
1) cannot easily be extended to justify group rights.
While individual rights are traceable to the liberal
enlightenment notion of the individual and the desire
to protect the sphere of individual liberty against
intrusion by the state, the basis for collective rights
and Philip Alston, “A Third Generation of Solidarity
Rights: Progressive Development or Obfuscation
of International Human Rights Law?” Netherlands
International Law Review, vol. 29, No. 3 (1982)
(arguing against the term “third generation”).
4 We will examine the rights of indigenous
peoples and minorities in Lesson 10.
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must be sought elsewhere. As prominent human
rights scholar Jack Donnelly argues:
If human rights derive from the inherent dignity
of the human person, collective human rights
are logically possible only if we see social
membership as an inherent part of human
personality, and if we argue that as part of a
nation or people, persons hold human rights
substantively different from, and in no way
reducible to, individual human rights. This last
proposition is extremely controversial …
The very concept of human rights, as it has
heretofore been understood, rests on a view
of the individual person as separate from, and
endowed with inalienable rights held primarily
in relation to society and especially the state.
Furthermore, within the area defined by these
rights, the individual is superior to society in
the sense that ordinarily, in cases of conflict
between individual human rights and social
goals or interests, individual rights must prevail.
The idea of collective human rights represents
a major, and at best confusing, conceptual
deviation.5
In other words:
If human rights are the rights that one has simply
as a human being, then only human beings
have human rights; if one is not a human being,
by definition one cannot have human rights.
Because only individual persons are human
beings, it would seem that only individuals can
have human rights.6
If only individuals can have rights, as Donnelly
argues, then what does this mean for collective
rights? Do they cease to exist? Are they protected,
instead, as aggregates of individual rights? As
“needs” rather than “rights”? Can group rights ever
be human rights?
5 Jack Donnelly, “In Search of the Unicorn:
the Jurisprudence and Politics of the Right to
Development”, California Western International Law
Journal, vol. 15 (1985), p. 482.
6 Jack Donnelly, Universal Human Rights in
Theory and Practice (Ithaca, Cornell University
Press, 2003), p. 25.
Some have questioned whether group rights exist
at all as a separate moral or ethical entity from
individual human rights. Instead, they argue, things
we refer to as “group rights” are really either (1)
not rights at all, but merely justice claims that can
be excluded from the legal category of “rights”, or
(2) reducible to aggregations of individual human
rights. Because of this lack of determinacy and
clear moral distinction, scholars like James Griffin
question whether the label “group rights” has any
content at all:
After the combined workings of exclusion and
reduction, are there any compelling examples left
in the class of moral group rights? When putative
moral group rights seem to have the status of
rights, is it not because they are reducible to
human rights? Can we attach sufficiently clear
criteria to the term “group rights” to make it a
helpful, non-redundant addition to our moral
vocabulary? Are we not better off without the
third generation of rights?7
If, as James Griffin argues, group rights are really
just aggregations of other individual rights already
enacted in human rights instruments, what is
their added value? Does assigning these rights a
special status as “collective rights” merely serve to
confuse the situation? Why is it important to create
a separate category of group rights that are not
reducible to individual human rights?
Whose rights? Whose duties?
A second challenge in the application of collective
human rights relates to identifying who is the
right-holder and who is the addressee with the
corresponding duty to respect, protect, and fulfil.
With individual rights, the right-holder is an individual
person, and the addressee is the state. An individual
has a right to life, and the state has a dutiy not to
infringe on that right, and to try to prevent others
from doing so. With collective rights, however,
the right-holder is harder to pinpoint. Ostensibly,
collective rights are addressed to “groups” or
“peoples.” But what constitutes a group or a people?
A nation? A linguistic community? An ethnic group?
A school? A church? How do we know?
7 James Griffin, On Human Rights (Oxford,
Oxford University Press, 2008), p. 276.
HUMAN RIGHTS
A related question, once a group is identified, is
who is empowered to exercise the right on the
group’s behalf? An elected spokesperson? A
traditional representative or ruler? The state? While
a group like a school, a church, or an indigenous
community may be able to achieve a fairly complex
level of internal organization that could allow it to
act as a unit, larger or more nebulous groups like
women, children, or migrants cannot. Can anyone
really speak on behalf of all the disabled persons
in the world? Should they? Here again, Jack
Donnelly’s arguments are provocative:
A further problem with collective human rights
is determining who is to exercise the right; the
right-holder is not a physical person, and thus an
institutional “person” must exercise it. In the case
of a right held by a people, or by a society as a
whole, the most plausible “person” to exercise
the right is, unfortunately, the state. Again this
represents a radical reconceptualization of human
rights – and an especially dangerous one.8
The issue of who holds the duty to respect, protect,
and fulfil the human rights of groups is equally
difficult. If the right-holder is a subnational group
defined by ethnic, historical, or linguistic ties,
then presumably the corresponding duty may be
held by the state or states in which the subgroup
exists. For example, if the right-holder is the
Māori people, then the duty-holder might be the
state of New Zealand. However, if the state itself
is the right-holder, or if the state is empowered
to exercise the right on behalf of a group of
citizens, on whom does the corresponding duty
fall? Neighbours of the state? The international
community? The developed world? Through what
organ can a duty-holder like the international
community act to uphold these rights? Through
what mechanism can rights be enforced against
the international community?
The accepted definitions of right- and duty-holder
may differ from one right to another, and from one
context to another. How does this lack of clarity and
consistency affect the legitimacy of group rights? Is
it important?
8 Ibid.
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 East vs. West, North vs. South
A third challenge for collective human rights
springs from their political-historical positioning
as anti-Western. During the Cold War, individual
and collective rights were divided along the line
that separated Western and socialist states.
Individual rights – particularly of the civil and
political kind – were associated with the European
liberal enlightenment and focused on protecting
the private individual, free markets, and choice.
Collective rights, on the other hand, were
associated with group identity and utilitarian
ethics.9 The Cold War split had a profound effect on
human rights protection; because of the East/West
division, many projects proved to be unfeasible
due to opposition from one side or the other, and
those that succeeded did so because they were
able to find a point of consensus between the two
major blocs, or enlist sufficient support from the
non-aligned world.
Likewise, in today’s debates, individual rights
continue to be associated with the “developed
world,” the “West”, or the “global North”, while
collective rights are associated with the
“developing world”, “Third World”, “global South”,
Celebration of the 1974 act of self-determination by the Niuean people,
inhabitants of the isolated South Pacific island of Niue.
(UN Photo #136526 by NJ, September 1974)
9 See: Philip Alston, “Revitalizing United Nations
Work on Human Rights and Development”,
Melbourne University Law Review, vol. 18 (1991),
pp. 218–9.
132 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
or “majority world.”10 According to this
interpretation, developing countries favour
collective rights like the right to development that
promote their economic growth and protect their
rights vis-à-vis the developed world, and some
argue that promoting these rights requires material
assistance from wealthy Western states. Countries
of the global North, on the other hand, favour rights
that protect individual liberty and put the major
burden on developing states to help themselves.
As with other distinctions between categories
of rights, the socialist/West, North/South, and
collective/individual characterizations should be
taken with a grain – perhaps better a tablespoon –
of salt. Individual rights are held by, and important
to, people from all parts of the world. Group
rights, whoever their champions may be, are also
important for the citizens of industrialized states,
who are not immune to the consequences of
environmental degradation, poverty, and conflict.
Moreover, the line between individual and
collective rights is far from clear. Many of the rights
addressed to individuals that protect autonomy and
choice, such as the right to freedom of religion or
the right to participate in associations, only make
sense from a social perspective. These rights
have an inherently collective character, because
protecting the right of the individual necessarily
entails protecting the right of the group to exist. For
example, if Pauline wishes to exercise her right to
freedom of religion by joining the Catholic Church,
the state is required to refrain from interfering
with her choice. But in order to respect Pauline’s
individual right to freedom of religion, the state is
also required to refrain from active suppression
of the Catholic Church or placing discriminatory
restrictions on Catholics, and must allow Catholic
people to meet and worship together – in other
words, to protect Catholics as a group.
10 These terms are, themselves, controversial, and
there is a great deal of debate regarding the proper
usage and semantic implications of each. They will
be used interchangeably here, but students should
be conscious of the different conceptual frameworks
evoked by each of these terms. Does “global South”
mean something different than “developing world”?
Does “third world” imply a different status than
“majority world”? Why?
Group Rights and Liberal Democracy
A number of scholars have pointed to the
paradoxical position of group rights as both
protectors of and threats to individual liberty.
Because of this conflict, some have argued that
collective rights are difficult to reconcile with the
traditional conception of human rights.
Groups can help contribute to individual freedom
and autonomy, which are crucial for liberal
democracies to function. They are key players
in the formation and maintenance of individual
beliefs and identity. They help to buffer the
individual against the extensive reach of national
governments, and they help to provide order in our
lives, preventing us from finding ourselves “adrift
in a social chaos, bereft of personal meaning and
exposed to abuse by the state.”11
At the same time, however, the idea of group rights
poses challenges for liberal democracy. There is,
to begin with, an issue of consent. Do individuals
choose their group membership, or does society
or the group itself conscript people into affiliation?
Once a person is a member of a group, they may
become exposed to coercion, forced to comply
with group desires or face marginalization or
expulsion. Additionally, groups may threaten liberal
democracy by asserting their special status as a
defence against state intrusion – including “good”
intrusion by the state in the name of protecting
human rights or preventing discrimination. For
example, when a recognized religious group uses
its special rights to prevent women from joining the
clergy, this runs afoul of the human rights principle
of non-discrimination. Should the group right or the
individual right trump in this circumstance?
This is the “paradox of groups”: “They are
simultaneously instruments of individual liberty
and individual oppression.”12 Feminist scholars
in particular have grappled with this question,
and have been quick to point out that the group
is a place of safety as well as danger for the
individual and her human rights. For example, at
11 Frederick Mark Gedicks, “The Recurring
Paradox of Groups in the Liberal State”, Utah Law
Review, vol. 2010, No. 1 (9 July 2010), p. 51.
12 Ibid., p. 52.
HUMAN RIGHTS
the micro level, state protection of the family as a
“private” group out of the reach of “public” law has
created a space within which loving relationships
can flourish unimpeded by the reach of state
regulation.13 But it has also created a space in
which domestic violence and marital rape have
historically been shielded from intervention and
legal recourse.14
Despite these difficulties, collective rights such
as the right to self-determination, the right to
development, the right to a healthy environment,
and the right to peace have become a part of the
international human rights canon.15
We will now take a look at each of these rights in
turn. While reading, keep in mind the theoretical
perspectives discussed in this section, and try to
see how they have impacted the development and
implementation of these third-generation rights. Do
these theoretical debates matter for the practical
application of group rights? Why, or why not?
6.3 The Right to Self-Determination
What is the Right to Self-Determination?
The right to self-determination is “the single most
important and most frequently invoked” of the
collective rights recognized under international
human rights law.16 People all over the world have
laid claim to a right to self-determination: including
groups of people in Palestine, Tibet, Kashmir,
Chechnya, Quebec, Abkhazia, Kosovo, and South
Sudan; the Kurds; the Basques; the indigenous
peoples of Australia, the United States, Guatemala,
and Canada; and the inhabitants of Gibraltar and
the Falkland/Malvinas Islands, to name only a few
of the most famous cases.
13 For a discussion of the public/private distinction
in relation to gender, see Lesson 3.
14 See: Katherine T. Bartlett, “Feminism and
Family Law”, Family Law Quarterly, vol. 33. (1999).
15 See: James Crawford, “Some Conclusions”,
in The Rights of Peoples, James Crawford, ed.
(Oxford, Oxford University Press, 1988).
16 Philip Alston, “Introduction”, in Peoples’ Rights,
Philip Alston, ed. (Oxford, Oxford University Press,
2001).
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The right to self-determination is very difficult
to define, partially as a result of its extreme
political sensitivity. As you read through this
section, it is important to keep in mind that
many of the inconsistencies and differences of
opinion regarding the right to self-determination
have developed as a result of geopolitical power
struggles. States are often resistant to giving up
their authority, no matter how strong a peoples’
claim to autonomy may be, and countries may
support or oppose particular independence or
self-rule movements based solely on international
political considerations. One need only mention
prominent examples such as the long-standing
dispute over the status of Taiwan to see how
politics and self-determination go hand in hand.
On Self-Determination
“The proposition (to begin by using a perfectly
neutral word) that every people should freely
determine its own political status and freely
pursue its economic, social and cultural
development has long been one of which
poets have sung and for which patriots have
been ready to lay down their lives.”
John P. Humphrey
from “Political and Related Rights” (1984)
Article 1 of the UN Charter states that one of the
purposes of the UN is to “develop friendly relations
among nations based on respect for the principle
of equal rights and self-determination of peoples.”17
The African Charter on Human and Peoples’ Rights
and the Helsinki Final Act of the Conference on
Security and Cooperation in Europe (CSCE, now
the OSCE) also recognize self-determination as a
right of all peoples.18 And, as mentioned in Lessons
2 and 3, Article 1 of both the ICCPR and ICESCR
sets out a “right to self-determination”:
17 Charter of the United Nations, Art. 1.
18 African Charter on Human and Peoples’ Rights
(1981), Art. 20; Final Act of the Conference on
Security and Cooperation in Europe (Helsinki)
(1975), Principle 8.
134 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
1. All peoples have the right of self-determination.
By virtue of the right they freely determine their
political status and freely pursue their economic,
social and cultural development.
2. All peoples may, for their own ends, freely
dispose of their natural wealth and resources
without prejudice to any obligations arising out
of international economic cooperation, based on
the principle of mutual benefit, and international
law. In no case may a people be deprived of its
own means of subsistence.
3. The State Parties to the present Covenant,
including those having responsibility for the
administration of Non-Self-Governing and Trust
Territories, shall promote the realization of
self-determination, and shall respect that right, in
conformity with the provisions of the Charter of
the United Nations.19
The fact that the right to self-determination appears
as Article 1 of both of the major Covenants
suggests its importance to the human rights
system. Indeed, the Human Rights Committee’s
General Comment 12 notes that the right to
self-determination is of “particular importance
because its realization is an essential condition
for the effective guarantee and observance of
individual human rights and for the promotion and
strengthening of those rights.”20 In other words,
self-determination is important because without a
government that is responsive to the needs of the
people, individual civil, political, economic, social,
and cultural rights are jeopardized.
The right to self-determination is based on the
twin values of self-government and democratic
representation, and has both an “external” and an
“internal” component. On the one hand, the idea
of self-determination means self-government, and
is related to the question of sovereignty that we
discussed in Lesson 1: the notion that states must
be able to manage their affairs free from external
control or interference. On the other hand, the
idea of self-determination also means democratic
19 International Covenant on Civil and Political
Rights, Art. 1; International Covenant on Economic,
Social and Cultural Rights, Art. 1.
20 Human Rights Committee, General Comment
12 (1984), para. 1.
representation, and is related to the legitimacy of
governments: the notion that governments must
be answerable to their citizens. Consequently,
scholars have come to speak of:
• External self-determination: the right to
independence as a people, the right to self-rule,
the right to be free of colonialism, the right to form
an autonomous state. In this sense, external self-
determination is a “one-time” right that expires
once independence has been achieved; and
• Internal self-determination: the right to authentic
self-government, the right to a representative and
freely chosen political and economic regime, the
right to democratic rule, the right to a government
responsive to the will of the people. In this sense,
internal self-determination is a “continuous” right
that exists for all peoples at all times.21
Reflecting this multifaceted definition, claims for
self-determination can range along a spectrum from
full secession or independent statehood, to formal
autonomous self-rule, to greater autonomy within an
existing state, to increased internal representation.
To further complicate the picture, the types of
groups or peoples laying claim to self-determination
vary greatly. Professors Halperin and Scheffer
famously identified several categories of groups
that may make self-determination claims:
• anti-colonial: in which a colony generally seeks
independence (external self-determination) from
a colonial state (e.g. India in the 1940s);
21 For a contrasting view, see S. James Anaya,
Indigenous Peoples in International Law (Third
Edition) (New York, Oxford University Press, 2004),
pp. 104–6, arguing that “the internal/external
dichotomy effectively is premised on the conception,
rejected earlier, of a limited universe of ‘peoples’
comprising mutually exclusive spheres of community.”
He proposes instead an alternative framework based
on “constitutive” and “ongoing” self-determination
which requires that “the governing institutional order
be substantially the creation of processes guided by
the will of the people, or peoples, governed” and that
“the governing institutional order, independently of the
processes leading to its creation or alteration, be one
under which people may live and develop freely on a
continuous basis.”
HUMAN RIGHTS
• sub-state: in which an identifiable group within a
state seeks either a greater share of power within
(internal self-determination) or independence
from (external self-determination) a state (e.g.
the Basques in Spain, South Sudan);
• trans-state: in which a people spread throughout
more than one state seeks either internal or
external self-determination (e.g. the Kurds in
Iraq, Iran, Syria, and Turkey);
• indigenous: in which indigenous peoples seek
either independence (external self-determination)
or self-rule (internal self-determination) within an
existing state (e.g. the Sami people in Norway).22
Despite its leading position as Article 1 of the
ICCPR and ICESCR and its absolutist language,
the right to self-determination (at least since the
end of formal decolonization) is “perhaps the
most controversial and contested of the many
controversial and contested terms in the vocabulary
of international law.”23 The precise scope and
nature of this right have been the subject of
heated debate, both academic and political, and it
remains unclear exactly how far the boundaries of
self-determination should extend. As scholar Hurst
Hannum wrote:
Perhaps no contemporary norm of international
law has been so vigorously promoted or
widely accepted as the right of all peoples to
self-determination. Yet the meaning and content
of that right remain as vague and imprecise as
when they were [first] enunciated … 24
22 Morton H. Halperin and David J. Scheffer,
Self-Determination in the New World Order
(Washington, DC, Brookings Institute Press, 1992),
pp. 49–52. Halperin and Scheffer also speak of
“dispersed people” and “representative” claims.
23 James Crawford, “The Right to
Self-Determination in International Law: Its
Development and Future”, in Peoples’ Rights,
Philip Alston, ed. (New York, Oxford University
Press, 2001), p. 7.
24 Hurst Hannum, Autonomy, Sovereignty,
and Self-Determination: The Accommodation of
Conflicting Rights (Second Edition) (Philadelphia,
University of Pennsylvania Press, 1996), p. 27.
| 135
 As one observer shrewdly noted: “Generally,
self-determination grants certain groups of people
some level of autonomy. The problems arise when
attempting to determine which people and how
much autonomy.”25
What is this right to self-determination? How did it
develop, and what does it mean today?
History of the Right to Self-Determination
The right to self-determination has a deep historical
significance, and understanding the context in
which it developed is critical to understanding its
contested status today.
The modern origin of the principle can be traced
back to the American Declaration of Independence
in 1776 and the French Revolution of 1789, “which
marked the demise of the notion that individuals
and peoples, as subjects of the King, were objects
to be transferred, alienated, ceded, or protected
in accordance with the whims of the monarch.”26
These revolutionary movements, and the explosion
of independence claims that followed, stood for the
liberal democratic principle that a government must
be responsive to its people.
Security Council votes in support of self-determination plan for Western
Sahara (UN Photo #31189 by Sophia Paris, April 2004)
25 Cherylyn Brandt Ahrens, Note, “Chechnya and
the Right of Self-Determination”, Columbia Journal
of Transnational Law, vol. 42 (2004), p. 576.
26 Antonio Cassese, Self-Determination of
Peoples: A Legal Reappraisal (Cambridge,
Cambridge University Press, 1995), p. 11.
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Following World War I, the idea of self-determination
was espoused by both U.S. President Woodrow
Wilson, who saw it as the “key to lasting peace in
Europe”, and V.I. Lenin, for whom it was “a means
of realizing the dream of world-wide socialism.”27
In practice, the concept was used to legitimate the
victorious powers’ redrawing of national boundaries
in Europe. The allied leaders created independent
states out of the “nations” that existed within the
broken territories of the Austro-Hungarian and
Ottoman empires, although the “peoples” chosen for
liberation were selected more for their geo-political
value than on the basis of any claims to nationhood.
While ostensibly the right to self-determination
was a formal manifestation of the right of nations
to self-government, little concern was given to
the desires of the people themselves; the primary
motivation was strategic value.28
Self-determination was first articulated as a
principle of international law in 1945, as Articles
1(2) and 55 of the UN Charter. Although it was
not included as a right in the UDHR, the growing
movement to put an end to colonialism sparked
a revival of self-determination as a concept,
and resulted in its prominent inclusion in the
ICCPR and ICESCR. 29 Throughout the sixties
and seventies, the right to self-determination was
synonymous with the struggle for decolonization.
It was for, and about, securing independence for
non-self-governing states. However, it applied
only in instances where a dependent colony or
trust territory sought autonomy from an ethnically
and geographically distinct governing state
(a condition sometimes known as “salt water
colonialism” 30).
27 Ibid.
28 Hurst Hannum, 27–9.
29 Interestingly, the Human Rights Committee
has held that it may not hear complaints alleging
a violation of the right to self-determination
because it is empowered only to hear individual
communications. See: Lubicon Lake v. Canada,
CCPR/C/38/D/167/1984 (26 March 1990), paras.
31–2. Does this put the right on a different footing
than the other rights in the ICCPR?
30 A reference to rule by a country across
the ocean. Hurst Hannum, “Rethinking
Self-Determination”, Virginia Journal of
International Law, vol. 34 (1993), p. 13.
This understanding of the right was reflected
in the General Assembly’s 1960 Declaration
on the Granting of Independence to Colonial
Countries and Peoples (Declaration on Colonial
Independence), which asserted “the necessity
of bringing to a speedy and unconditional end
colonialism in all its forms and manifestations” as
the primary goal of the right of self-determination.31
The Declaration on Colonial Independence also
explicitly prohibited the disruption of a state’s
“territorial integrity”, further cementing the idea
that the right self-determination was limited to the
colonial context.32
The definition of peoples implicit in this sanction of
decolonization remained closely linked to territory,
rather than “nationhood.” Cultural, political, or
linguistic homogeneity among a colonial “people”
was irrelevant to the exercise of the right to
self-determination; the only criterion that mattered
was the existence of a dependent colonial
relationship with a distant state. During the 1960s,
then, the right to self-determination could be seen
as an affirmation and extension of the principle of
Westphalian sovereignty.
Ten years later, the UN General Assembly’s
Declaration on Principles of International Law
Concerning Friendly Relations and Cooperation
Among States in Accordance with the Charter
of the United Nations (Declaration on Friendly
Relations) brought the internal dimension of
the right to self-determination – the importance
of representative democracy – to the fore.
The Declaration on Friendly Relations, like the
Declaration on Colonial Independence, reaffirms
the right to self-determination, links it with the
struggle against colonialism, and notes that the
right is limited by a prohibition on interference with
territorial integrity. The Declaration on Friendly
Relations, however, goes on to add:
Nothing in the foregoing paragraphs [affirming
the right to self-determination] shall be construed
as authorizing or encouraging any action which
would dismember or impair, totally or in part,
31 United Nations General Assembly, Declaration
on the Granting of Independence to Colonial
Countries and Peoples (1960).
32 Ibid.
HUMAN RIGHTS
The Limits of the Right to
Self-Determination
“Does self-determination mean the right
of secession? Does self-determination
constitute a right of fragmentation or a
justification for the fragmentation of nations?
Does self-determination mean the right of
people to sever association with another
power regardless of the economic effect
upon both parties, regardless of the effect
upon their internal stability and their external
security, regardless of the effect upon their
neighbors or the international community?
Obviously not.”
Eleanor Roosevelt
from “The Universal Validity of Man’s
Right to Self-Determination” (1952)
the territorial integrity or political unity of
sovereign and independent States conducting
themselves in compliance with the principle of
equal rights and self-determination of peoples
as described above and thus possessed of a
government representing the whole people
belonging to the territory without distinction as to
race, creed or colour.33
This paragraph reiterates the importance of
maintaining territorial sovereignty and national
unity. However, it conditions its support of
sovereign unity on whether a state has conducted
itself “in compliance with the principle of equal
rights and self-determination of peoples” and
whether it is “thus possessed of a government
representing the whole people belonging to the
territory without distinction as to race, creed or
colour.”34 The two conditions added at the end
of the paragraph highlight the importance of
democratic governance in the exercise of the right
to self-determination and shift the focus of the
debate away from sovereignty and territory and
33 United Nations General Assembly, Declaration
on Principles of International Law Concerning
Friendly Relations and Cooperation Among States
in Accordance with the Charter of the United
Nations (1970), Principle 5, para. 7.
34 Ibid.
| 137
towards lack of representation. In other words, the
Declaration on Friendly Relations represented a
shift away from the self-determination of states and
towards the self-determination of peoples.
This formulation expanded the scope of
self-determination to include its application not
only to territorially separate colonies, but also
to peoples so repressed within their state that
they must be deemed “unrepresented” by the
national government. It was on this rationale, for
example, that the UN condemned the apartheid
system in South Africa as violating the right to
self-determination.35 This suggested that the
exercise of the right to self-determination was
meant not just to promote sovereignty and
self-government of territories, but also to ensure
that colonial (and, perhaps, severely repressed)
peoples could form states that would be
democratically accountable to the people – all of
the people – under their rule.
The Right to Self-Determination Today
In the years since decolonization, the boundaries
of the right to self-determination have shifted
again. Over the last few decades, there has been
a push to expand the content of the right even
further, allowing its application in many more cases
of internal repression and sub-state, trans-state,
and indigenous claims. Specifically, advocates
have sought to use the right to self-determination
to legitimate a broader range of struggles for
(external) secession from or (internal) self-rule
within existing states. The notion has been
particularly popular among advocates of
indigenous and minority autonomy. This expanded
idea of self-determination, however, is quite
controversial. It shifts the notion of “peoples”
from a territorial to an ethnic, cultural, or linguistic
community, and, at its most extreme, potentially
authorizes secession or independence from a
functional state.
Arguments on all sides of this definitional debate
are forceful, and the contours of the right to
self-determination remain unclear. As Professor
Gregory Fox wrote, self-determination is “a concept
35 See: S. James Anaya, p. 99.
138 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
increasingly at war with itself.”36 Many important
questions remain unanswered:
1. What constitutes a people? Only colonial
populations, currently existing states, historical
states, and those “entitled to be states” as a
result of ethnonationalist homogeneity?37 Any
group marked by linguistic, religious, or ethnic
similarity? “All those spheres of community,
marked by elements of identity and collective
consciousness, within which people’s lives
unfold – independently of considerations of
historical or postulated sovereignty”?38
2. When can the right to self-determination
be exercised? Only in cases of colonial
domination? Only in non-democratic states?
Only where minorities are formally excluded
from participation in government? In any state
where a people feels a lack of influence? Any
time a people desires autonomy?
3. How can the right to self-determination be
reconciled with support for territorial integrity
and Westphalian sovereignty? Where should
the line between “self-determination” and
“political unity” be drawn?
4. When can a lack of political representation
be solved by an exercise of “internal” self-
determination? When is “external” self-
determination appropriate?
So far, the right to external self-determination
via secession has been recognized as absolute
only in the very limited context of colonialism,
and perhaps in reclaiming territory that is subject
to unjust military occupation.39 A limited right to
self-determination has also been recognized in
some cases where a people wishes independence
from a state in which they are denied participation
in the democratic process, or in which their human
rights have been consistently and systematically
violated.40 And the right to increased internal
36 Gregory H. Fox, “Self-Determination in the
Post-Cold War Era: A New Internal Focus?”,
Michigan Journal of International Law, vol. 16
(1995), p. 733.
37 S. James Anaya, pp. 100–1, 117–8, fns 26–30.
38 Ibid., p. 103.
39 Antonio Cassese, pp. 37–8.
40 See: Loizidou v. Turkey (Merits), European
self-determination has been recognized in
cases of national minorities and other sub-state,
trans-state, and indigenous claims.41 Extending
external self-determination to allow secession or
independence from an existing and ostensibly
functional state, however, has been largely (though
certainly not unanimously) rejected.42 As the
Supreme Court of Canada describe the current
state of the law in Reference re Secession of
Quebec:
The recognized sources of international law
establish that the right to self-determination of
a people is normally fulfilled through internal
self-determination – a people’s pursuit of
its political, economic, social and cultural
development within the framework of an existing
state. A right to external self-determination
(which in this case potentially takes the
form of the assertion of a right to unilateral
secession) arises in only the most extreme of
cases and, even then, under carefully defined
circumstances.
[…]
A state whose government represents the
whole of the people or peoples resident within
its territory, on a basis of equality and without
discrimination, and respects the principles
of self-determination in its own internal
arrangements is entitled to the protection under
international law of its territorial integrity.43
Court of Human Rights, 18 December 1996, in
Human Rights Law Journal, vol. 18 (1997), p. 59.
41 Robert D. Sloane, “The Policies of State
Succession: Harmonizing Self-Determination and
Global Order in the Twenty-First Century”, Fordham
International Law Journal, vol. 20 (2007), p. 1306.
42 See: T. Franck, R. Higgins, A. Pellet, M.
Shaw and C. Tomuschat, “L’intégrité territoriale
du Québec dans l’hypothèse de l’accession à
la souveraineté,” in Commission d’étude des
questions afferents à l’accession du Québec
à la souverainetè, Les attributes d’un Québec
souverain, Esposés et etudes, vol. 1 (1992), pp.
377–461.
43 Reference re Secession of Quebec, 37 I.L.M.
1340 (1998), paras. 126 and 130.
HUMAN RIGHTS
Writing Exercise 6: Are You a People?
If you have access to the Internet, this would
be an especially good exercise to write about
online in conversation with other learners
taking this Peace Operations Training Institute
course. Consider writing your thoughts on the
POTI forum by logging into your classroom and
clicking on the “Student Forum” link.
You are a member of a national minority
in a country that is party to the ICCPR and
ICESCR. You speak a different language and
have a different culture than the majority of
people in your state, but have never formed an
independent nation. Your minority group has
long suffered oppression at the hands of the
national government, including discrimination in
employment and lack of political representation.
Leading members of your minority community
have come together to decide what to do about
this situation, and have asked you for your input.
Consider the following questions and write a
brief report (maximum one page).
• Does your minority group qualify as a
“people” for the purpose of exercising
a right to discrimination? Why, or why
not? What factors are important for
making this determination?
• Do you believe that making a
self-determination claim would be
valuable to your minority group? Why, or
why not? If so, what type of claim would
you make?
• Does it seem likely that your
government would accept your claim to
self-determination? What factors might
influence your government’s decision?
• What response do you expect from the
international community?
.
| 139
Further Questions Conclusion

But on what basis can the line between legitimate
and illegitimate self-determination claims be drawn?
The International Bill of Human Rights contains no
direct limitations of the right to self-determination.
Many scholars and supporters of autonomy and
independence movements argue that some form of
the right (whether secession, self-rule, or increased
autonomy within the existing state) should be
recognized in all cases where a group of individuals
has decided that it is, in fact, a “people” and can
demonstrate that its government is not adequately
representative in either an internal or external sense.
In this lesson, we introduced the concept of
collective rights. We examined several theoretical
issues relating to their form and function, and
began our exploration of content with an in-depth
discussion of the right to self-determination.
In Lesson 7, we will take a look at three other
collective rights currently recognized under
international human rights law: the right to
development, the right to a healthy environment,
and the right to peace.
Further Reading

Philip Alston, ed., Peoples’ Rights (2001); Antonio

On the Perils
of Self-Determination
“Why don’t we just draw a circle around our
own two feet and call it Selfistan?”
Salman Rushdie
from Shalimar the Clown (2005)
Moreover, if it is true that human rights can be
protected only in the context of a representative
self-governing state, should self-determination not
be encouraged in all cases?
Some observers have worried that increasing use
of the right to self-determination would merely
result in the creation of ever-smaller splinter
states based on increasingly fine divisions among
“peoples.”44 Would this be a bad thing? What do
you think?
Cassese, Self-Determination of Peoples: A
Legal Reappraisal (1995); James Crawford,
ed., The Human Rights of Peoples (1988); Jack
Donnelly, Universal Human Rights in Theory and
Practice (2003); James Griffin, On Human Rights
(2008); Hurst Hannum, Autonomy, Sovereignty,
and Self-Determination: the Accommodation
of Conflicting Rights (Second Edition) (1996);
Karen Knop, Diversity and Self-Determination in
International Law (2008).
Websites for Further Information
Unrepresented Nations and Peoples Organization’s
self-determination page:
www.unpo.org/content/view/4957/72/

The answers to these questions are not simple

ones. As of yet, the scope of the right to
self-determination remains fairly limited. But as
theory and practice with respect to the principle
of self-determination continue to develop, and
new groups attempt to exercise this right to
justify their battles, the contours of the right to
self-determination will no doubt continue to shift.

44 Michael J. Kelly, “Political Downsizing: The

Re-Emergence of Self-Determination, and the
Movement Toward Smaller, Ethnically Homogenous
States”, Drake Law Review, vol. 474 (1999).

140 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
End-of-Lesson Quiz

1. Which of the following was NOT a collective
right outlined by Karel Vasak in his 1997
speech:
A. The right to development;
B. The right to peace;
C. The right to freedom of religion;
D. The right to a healthy environment.
2. Which of the following regional systems
recognizes collective rights such as the
right to self-determination and the right to
development?
A. The Inter-American system;
B. The African system;
C. The European system;
D. The Asian system.
3. Collective or group rights are also known as
_________________ generation rights.
4. Which of the following best describes the
theoretical debate over the philosophical
foundations of collective human rights?
A. Scholars disagree about whether it is possible
for groups to have human rights, or whether
this privilege is limited to individual human
beings;
B. Scholars all agree that group rights exist and
can be exercised collectively;
C. Scholars all agree that group rights do not
exist;
D. Scholars disagree about whether it is possible
for individuals to form groups.
6. The right to self-determination is recognized
by:
A. The ICCPR and the ICESCR;
B. Neither the ICCPR nor the ICESCR;
C. Only the ICCPR;
D. Only the ICESCR.
7. Which group of states has historically been
associated with promoting individual rights
and skepticism about group rights?
A. The Soviet Union;
B. The developing world;
C. The global south;
D. The West.
8. _________________ self-determination
involves a claim for independence from
outside rule or control.
9. _________________ self-determination
involves the right to authentic
self-government, the right to a
representative and freely chosen political
and economic regime.
10. Which of the following is NOT a type of
group that can make a self-determination
claim, as identified by Professors Halperin
and Scheffer?
A. Anti-colonial;
B. Sub-state;
C. Universal;
D. Indigenous.

5. With collective rights, the right-holder is:

A. An individual;
B. Everyone; ANSWER KEY
C. A group or people; 1C, 2B, 3 Third, 4A, 5C, 6A, 7D, 8 External,
D. No one. 9 Internal, 10C

HUMAN RIGHTS | 141

LESSON 7
COLLECTIVE RIGHTS II:
THE RIGHTS TO DEVELOPMENT,
ENVIRONMENT, AND PEACE
 LESSON
7
7.1 Introduction
7.2 The Right to Development
7.3 The Right to a Healthy
Environment
7.4 The Right to Peace
LESSON OBJECTIVES
By the end of Lesson 7, the student should be able to meet the
following objectives:
• Describe the content of the right to development;
• Describe the content of the right to healthy environment;
• Describe the content of the right to peace;
• Understand the difficulties associated with enforcing and
implementing these rights; and
• Appreciate the impact of the theoretical perspectives discussed in
Lesson 6 on the rights to development, a healthy environment, and
peace.
To view a video introduction of this lesson by the
course author Jessica C. Lawrence, you can
either log in to your virtual classroom, go to www.
peaceopstraining.org/users/media_page/380/
lesson-7, or use your mobile device to scan the
QR code to the left.
7.1 Introduction
In Lesson 6, we introduced the concept of
collective rights and examined the content of
the only group right that is formally included in
the international bill of human rights: the right
to self-determination. In this lesson, we will
discuss three other collective rights: the right to
development, the right to a healthy environment,
and the right to peace.
Each of these third-generation rights has received
some recognition under international law. The
African Charter on Human and Peoples’ Rights,
for example, recognizes all three. But none are
included in a binding treaty at the UN level, and
many observers still question whether they are or
should be rights at all:
Economic development, the protection of the
environment, the common heritage of mankind
and peace: are these concepts “rights” in any
meaningful sense? They can, and should, be
objectives of social policy. They may be items
in a political programme. However, they are
certainly not legally enforceable claims. Most
people no doubt prefer peace. But if one’s
country is at war, it is certain that there is no
legally enforceable “right to peace.” Naturally,
it would be possible to define “rights” in such
a way as to include all desirable objectives
of social policy, and in that event, the “new
human rights” would become “rights” by virtue
of that definition. But this would be to distort
the ordinary meaning given to the term “human
rights” and, more seriously, would run together
goals which enlightened humanity ought to
pursue with claims which are already protected
by international law … If one wishes to see
some objective achieved – a clean and healthy
environment, for example – it is tempting to say
that this is a right to which we are all entitled. But
it is not a good idea to take wishes for reality.1
1 A.H. Robertson, Human Rights in the World,
J.G. Merrills, ed. (Third Edition) (Manchester,
Manchester University Press, 1989), p. 255–9.
HUMAN RIGHTS
As you read through this lesson, try to keep in
mind the issues raised in Lesson 6’s discussion
of theoretical perspectives on group rights. Ask
yourself in each case why proponents might believe
that recognizing a group right is the best way to
protect these important values. What is added by
the use of rights language? Why are individual
rights not enough? Why have these rights not been
included in a binding UN treaty? Are they “desirable
objectives of social policy” rather than “rights”, as
the author quoted above argues?
7.2 The Right to Development
Development and Human Rights
The right to development is among the most widely
discussed, promoted, defended, and criticized of
the collective rights. It has functioned as one of
the primary hinges in the conflict between global
North and global South, and its content and
implications have been the subject of extensive
– and sometimes quite heated – debate. While
suggestions of the important linkages between
human rights and development have been
around for some time, it is only fairly recently that
the international community has recognized a
full-fledged collective right to development. It is this
notion that development is a legally enforceable
right that has stirred up such a storm.
“Development”, in this context, refers broadly to the
process of economic, social, and cultural growth,
and can occur on an individual, group, national,
regional, or international level (although generally
speaking, the term is used in reference to states).
Historically the concept of development was
viewed almost exclusively in economic terms, with
“progress” measured by increased income or Gross
Domestic Product (GDP). In recent years, however,
the notion has expanded to include non-economic
dimensions such as health, education,
environmental protection, and gender equality. This
shift is partially reflected in the move from speaking
of development to speaking of sustainable
development – the idea that development cannot
focus solely on achieving greater levels of
income, but must also be respectful of human and
environmental well-being and be maintainable over
long periods of time.
| 145
Human rights and development are linked in many
ways, and are often mutually reinforcing. From a
human rights perspective, development is important
because increased collective capacity – economic,
social, and political – can lead to increased rights
protection. Maintaining a well-functioning economy,
eradicating poverty, promoting education, and
improving the health and welfare of the people
– all components of development – are essential
for fulfilling individual human rights. Without a
certain degree of material security and collective
development, a state will not be in a position to aid
individuals and protect their human rights. Indeed,
as the first World Conference on human rights
put it: “The achievement of lasting progress in the
implementation of human rights is dependent upon
sound and effective national and international
policies of economic and social development.”2
Conversely, from a development perspective,
human rights is important because increased
individual capacity (economic, social, and political)
is correlated with increased development. Promoting
each individual’s economic security, education, civil,
and political engagement, and health and well-being
– all goals of human rights – is essential for national
development. Without ensuring the material,
physical, and political security of individuals, a
society will find it difficult to prosper.
Nobel Prize–winning economist Amartya Sen
famously described the linkages between
development and human rights by characterizing
development as both the means and ends of
freedom:
[My approach] is mainly an attempt to see
development as a process of expanding the real
freedoms that people enjoy. In this approach,
expansion of freedom is viewed as both (1)
the primary end and (2) the principal means of
development. They can be called respectively
the “constitutive role” and the “instrumental role”
of freedom in development. The constitutive
role of freedom relates to the importance of
substantive freedom in enriching human life.
The substantive freedoms include elementary
2 The Proclamation of Teheran, para. 13, in Final
Act of the International Conference on Human
Rights, UN Doc. A/CONF.32/41 (1968).
146 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
capabilities like being able to avoid such
deprivations as starvation, under-nourishment,
escapable morbidity and premature mortality,
as well as the freedoms that are associated with
being literate and numerate, enjoying political
participation and uncensored speech and so
on. In this constitutive perspective, development
involves expansion of these and other basic
freedoms. Development, in this view, is the
process of expanding human freedoms, and the
assessment of development has to be informed
by this consideration.3
Of course, not everyone agrees that development
and human rights are complementary. Among
the “major criticisms directed at human rights by
development specialists” are “the claim that human
rights are political, that they are unrealistic, that they
are abstract and incapable of practical application,
that they cannot cope with notions of change over
time, and that an emphasis on law does little to
help the poor.”4 Human rights advocates have been
equally critical of development work, charging that it
focuses much too heavily on economic growth at the
expense of social and community work, and that the
lack of an integrated human rights perspective can
lead development experts to solve one problem by
creating others.
Development and human rights are closely linked.
And it is clear that, in spite of their tensions, they
are often complementary. But how did development
become a right in and of itself?
History of the Right to Development
The roots of the right to development can be traced
back to the founding documents of the international
human rights system. Under the UN Charter,
member states agreed to “promote social progress
and better standards of life in larger freedom” and
3 Amartya Sen, Development as Freedom (New
York, Knopf, 1999), p. 35.
4 Philip Alston and Mary Robinson, “The
Challenges of Ensuring the Mutuality of Human
Rights and Development Endeavours,” in Human
Rights and Development: Towards Mutual
Reinforcement, Philip Alston and Mary Robinson
eds. (New York, Oxford University Press, 2005), p. 5
(describing criticisms by development specialists).
“to achieve international cooperation 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.”5 The UDHR,
too, contains a number of provisions that pertain
to the right to development, such as the right to
an adequate standard of living and the right to a
social and international order in which human rights
and fundamental freedoms can be fully realized.6
These provisions implied from the outset that
development was important for achieving human
rights protection. However, they never explicitly
guaranteed a right to development as such.
Only very recently has a right to development
emerged out of the blending of human rights and
development practice. The first explicit mention
of such a right came during the 1970s in the
context of the New International Economic Order
(NIEO), a set of policies advocated by a coalition of
third-world states. The NIEO called for all countries
to eliminate injustice and inequality among nations,
and sought to enact a number of policies that
would aid in the development of the global South
(including programmes intended to redistribute
wealth unfairly concentrated in the global North and
mandating reparations for the evils of colonialism7).
In some sense, the NIEO positioned the right to
development as the economic dimension of the
right to self-determination: the former colonies
had attained political independence, but were still
bound to their past by dependency, poverty, and
exploitative economic relationships.
The Commission on Human Rights’ Resolution
4 of 1977 was the first official document to
formally recognize the right to development at
the international level.8 The first legally binding
5 Charter of the United Nations.
6 Universal Declaration of Human Rights, Art. 28.
7 See: E/CN.4/1334 (1978), Report of the
Secretary General, “The International Dimensions
of the Right to Development as a Human Right
in Relation with Other Human Rights Based on
International Cooperation, Including the Right to
Peace, Taking Into Account the Requirements of
the New International Economic Order and the
Fundamental Human Needs.”
8 Commission on Human Rights Resolution 4
(XXXIII) (21 Feb. 1977).
HUMAN RIGHTS
document to recognize the right was the African
Charter on Human and Peoples’ Rights of 1981.
The key UN instrument on the subject – the UN
Declaration on the Right to Development – was
adopted in 1986.
The birth of the right to development in the NIEO,
and its early inclusion in the African Charter
demonstrate its importance for the global South.
Lack of support – or outright opposition – by the
global North is evident in the voting record of the
General Assembly (GA): the Declaration on the
Right to Development was adopted with 146 votes
in favour, eight abstentions (mainly from Western
industrialized states), and only one country – the
United States – opposed.9
In the following years, the right to development
has become a part of the human rights system –
although it remains controversial, as we shall see
– and the last two decades have seen increasing
amounts of activity surrounding its implementation.
In 1993, a unanimous GA finally brought
international consensus on the existence of the
right to development when it adopted the Vienna
Declaration and Programme of Action, which
reaffirmed the “right to development as established
in the Declaration, as a universal and inalienable
right and an integral part of fundamental rights.”10
The Commission on Human Rights (now Human
Rights Council) established an Intergovernmental
Working Group on the Right to Development in
1998, which since that time has continued to
monitor, review, and advise the Council on the
promotion and implementation of the right to
development. In 2004, the Commission established
a High-Level Task Force on the Implementation
of the Right to Development, an expert body that
assists the Working Group and provides advice
and information to other relevant actors, including
the Council.
9 The eight abstaining countries were: Denmark,
Finland, Federal Republic of Germany, Iceland,
Israel, Japan, Sweden, and the United Kingdom.
The voting record can be found at: <http://unbisnet.
un.org:8080/ipac20/ipac.js p?profile=voting&index=.
VM&term=ares41128>.
10 A/CONF.157/23 (1993), Vienna Declaration and
Programme of Action.
| 147
 From its birth in the NIEO to its current status as
quasi-international law, the fortunes of the right to
development have risen and fallen with changing
political times. As is evident from states’ shifting
support for the right and their disagreements about
what it should entail, material and geopolitical
concerns have often dominated the debate. In
particular, arguments over the role of redistribution
of wealth and foreign aid in the development
process have been front and centre. As you read
through the rest of this lesson, keep in mind the
international political implications of recognizing the
right to development. Why might states support or
oppose it at a given time in world history? What do
these explicitly political machinations tell us about
human rights?
In Manatuto, Timor-Leste, a farmer uses a shovel to prepare field to later
plough with buffalo before planting the rice crop.
(UN Photo #389868 by Martine Perret, April 2009)
The collective right to development has now been
recognized as a part of the international human
rights system – although it has yet to be included
in a legally enforceable treaty at the UN level. But
what is the “right to development”, exactly? What is
its content? Who can enforce it? What duties does
it entail?
Content of the Right to Development
Despite all of the recent conferences, publications,
and expert committee reports, the scope of the
right to development remains murky. As Professor
Makau Mutua wrote, “the Declaration on the Right
148 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
to Development has been mired in a normative
swamp, unable to claim a definitive jurisprudence
or an academic consensus on its meaning and
contours.”11 So what do we know about the right to
development?
According to Article 1 of the Declaration on the
Right to Development:
The right to development is an inalienable
human right by virtue of which every human
person and all peoples are entitled to participate
in, contribute to, and enjoy economic, social,
cultural and political development, in which all
human rights and fundamental freedoms can be
fully realized.12
Notice that Article 1 addresses the right to
development both to individuals (“every human
person”) and to groups (“all peoples”), creating a
sort of two-tiered right with application at both the
individual and collective level. Recalling the right
to self-determination, these two tiers might be
seen as the “internal” and “external” dimensions of
the right to development – the internal dimension
focusing on the rights of individuals within the state,
and the external dimension focusing on the rights
of states within the international community.13
This definition is supplemented by the preamble,
which emphasizes the idea of development as a
process:
Development is a comprehensive economic,
social, cultural and political process, which aims
at the constant improvement of the well-being
of the entire population and of all individuals on
the basis of their active, free and meaningful
participation in development and in the fair
distribution of benefits resulting therefrom.14
11 Makau Mutua, “Standard Setting in Human
Rights: Critique and Prognosis”, Human Rights
Quarterly, vol. 29 (2007), p. 563.
12 A/RES/41/128 (1986), Declaration on the Right
to Development, Art. 1.
13 Margot E. Salomon, London School of
Economics Law, Society and Economy Working
Papers 16/2008, “Legal Cosmopolitanism and
the Normative Contribution of the Right to
Development” (2008), p. 2.
14 A/RES/41/128 (1986), Preamble.
According to the preamble, simple economic
development is not enough – “development” here
is a comprehensive social, cultural, economic,
and political process. Likewise, development that
benefits only the wealthy while widening the gap
between rich and poor is not adequate – it must
aim at constantly improving the well-being of the
entire population.
Development, then, is addressed to both
individuals and groups, is a process, and includes
economic, social, cultural, and political aspects.
But what does the right to development actually
entail? According to the Declaration on the Right
to Development, it includes:
• Full sovereignty over natural resources;
• Self-determination;
• Popular participation in development;
• Equality of opportunity; and
• The creation of favourable conditions for the
enjoyment of other civil, political, economic,
social, and cultural rights.15
Interestingly, most of the “rights” contained in the
Declaration are framed as duties of the state,
rather than as rights of an individual or group.
This construction makes the positive content of
the right difficult to identify. The primary thrust
of these duties involves ensuring that all people
have access to the conditions necessary for the
full enjoyment of their civil, political, economic,
social, and cultural rights. But this is an extremely
open-ended list that could be interpreted as a
“right to everything.”16 Indeed, it is easy to imagine
an expansive inventory of obligations that could
be defended as “necessary for development.” At
the “internal” level, support for development might
come in the form of providing education, safety
from crime, food, shelter, and phone and Internet
lines; promoting government transparency and
accountability; and eliminating corruption. At the
“external” level, support for development could
range from developing cooperative professional
15 Ibid., Arts. 1–6, 8.
16 Felix Kirchmeier, “The Right to Development
– Where do we stand?” (Geneva, Friederich Ebert
Stiftung, 2006), p. 4.
HUMAN RIGHTS
On the Content of the Right
to Development
“The 1986 Declaration … specifies that
the nature of the right that is claimed as
a human right in Article 1, is a particular
process of development. There may be
many different ways that a country can
develop – a sharp increase in GDP or rapid
industrialization or export-led growth –
which may result in growing inequalities,
regional or international disparity, fluctuating
employment with little social security,
together with a concentration of wealth and
economic power, without a commensurate
reduction in poverty or improvement in
social indicators of education, health, gender
development or environmental protection.
More importantly, it is possible for a country
to grow in conventional terms with no
improvement in the fulfillment of civil and
political rights or of equity and social justice.
These processes of development would
not be regarded as part of the process
of development protected by the 1986
Declaration, as objects of claim as a human
right. It is only that process of development
in which all human rights and fundamental
freedoms can be fully realized which can be
the entitlement of every human person as
universal human right.”
Second Report of the Independent Expert
(Arjun Sengupta) to the Human Rights
Commission, A/55/306, 17 August 2000,
para. 15.
training programmes; to providing monetary or
technical assistance; to reforming the system of
international economic governance to be more
development friendly.
The most recent attempt to define specific content
for the right to development came from the United
Nations Millennium Declaration of 2000, which
outlined a list of eight Millennium Development
Goals (MDGs). The Millennium Declaration
expressed the commitment of the UN “to making
| 149
the right to development a reality for everyone and
to freeing the human race from want.”17 Its eight
goals, which set a target date of 2015, are:
• Ending poverty and hunger;
• Universal education;
• Gender equality;
• Child health;
• Maternal health;
• Combating HIV/AIDS;
• Environmental sustainability; and
• Global Partnership for development.
While they help to define the right to development
by focusing attention on a more limited set of
factors, the MDGs remain extremely open-ended.
Furthermore, the MDGs were not intended to
be an exhaustive list of everything necessary to
fulfil the right to development. So the problem of
theoretically unlimited obligations remains.
Because of the potentially far-reaching implications
of the right to development, discussions have
focused on articulating its limits and narrowing
and specifying the types of rights and duties that
it entails. The battle over what duties it might
contain, and to whom they might be addressed, is
far from over.
The two-tiered formulation of the right to
development – which is held by “every human
person” as well as “all peoples” – implies a
corresponding division of responsibilities among
multiple duty-holders. In situations where
the right-holder is an individual or a group of
individuals, then the state holds the duty to respect,
protect, and fulfil the right. The burden is on each
national government to create and maintain the
internal conditions necessary for growth. This
relatively uncontroversial reading parallels the
standard rights/duties framework of individual
human rights.
However, in situations where the right-holder is
the state itself, as representative of the people,
the duty to respect, protect, and fulfil the right
17 A/RES/55/2 (2000).
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to development must fall on the international
community, or some subset thereof. Reading the
right to development as a right between states, in
which wealthier nations and/or the international
community as a whole have a duty to assist their
poorer neighbours, is much more controversial.
The Declaration lends support to the idea that
the right to development creates duties between
states; Article 6(1), for example, calls on states to
“co-operate with a view to promoting, encouraging,
and strengthening universal respect for and
observance of all human rights and fundamental
freedoms.”18 Calling on states to cooperate, though,
is a far cry from mandating direct intervention
and assistance. Developed states have fought to
contain the more expansive reading, arguing
that the right to development does not necessarily
entail a “right to development assistance” that
would require industrialized countries to provide
financial and technical assistance to the less
developed world.19
On the other side, a group of African states has
insisted that rewriting international trade rules and
debt forgiveness are a crucial part of implementing
the right to development.20 Cuba, on behalf of the
Non-Aligned Movement, has argued that foreign
aid and technology transfer to developing states
are a necessary piece of the puzzle.21 Scholars
like Margot Salomon have argued that the right to
development implies that wealthy states have a
responsibility “to demonstrate prima facie that their
policies and decisions – whether taken individually
or collectively – are not hurting the world’s poor.”22
18 Declaration on the Right to Development, Art.
6(1).
19 Henry J. Steiner, Ryan Goodman, and Philip
Alston, International Human Rights in Context: Law,
Politics, Morals (Third Edition) (New York, Oxford
University Press, 2007), p. 1453.
20 A/HRC/4/47, UN Human Rights Council,
“Report of the Working Group on the Right to
Development on its Eighth Session,” (Geneva, 26
February – 2 March 2007).
21 Ibid.
22 Margot E. Salomon, London School of
Economics Law, Society and Economy Working
Papers 16/2008, “Legal Cosmopolitanism and
the Normative Contribution of the Right to
Development” (2008), p. 9.

The Importance of the Right
to Development
“The right to development is a fundamental
right, the precondition of liberty, progress,
justice and creativity. It is the alpha and
omega of human rights, the first and last
human right, the beginning and the end, the
means and the goal of human rights, in short
it is the core right from which all the others
stem ...
In reality the international dimension of
the right to development is nothing other
than the right to an equitable share in the
economic and social well-being of the world.
It reflects an essential demand of our time
since four fifths of the world’s population no
longer accept that the remaining fifth should
continue to build its wealth on their poverty.”
Mohammed Bedjaoui
from “The Right to Development”
As it stands, these issues have not yet been
resolved, and the debate over whether the
obligations of the international community (in
reality, the obligations of the wealthy developed
states) should be framed broadly or narrowly is
likely to continue. In the meantime, “the murky
status of the right to development has ensured that
it is not likely to be encoded in a binding treaty any
time soon.”23
7.3 The Right to a Healthy
Environment
The Environment and Human Rights
The right to a clean and healthy environment is
the third example of a collective human right that
has been recognized in some international treaties
and other instruments. As we will see, however, its
recognition and enforcement under international
law remains patchy at best.
23 Makau Mutua, p. 574.
HUMAN RIGHTS
From a human rights perspective, a clean and
healthy environment is important because
ecological degradation can have a profoundly
negative effect on human health and welfare.
Ensuring a healthy environment is critical for
individuals and groups to survive and to thrive.
Many civil, political, economic, social, and cultural
rights can be imperiled by a toxic or unhealthy
environment, including:
• The right to life;
• The right to health;
• The right to water;
• The right to food;
• The right to development;
• The right to housing and shelter;
• The right to culture; and
• The right to work.24
Conversely, from an environmental perspective,
human rights are important because they give
individuals the power to prevent environmental
degradation. Without the right to participate
in decision-making processes, freedom of
association, freedom of speech, and access to
justice, people cannot protect their environment
from powerful polluters or self-interested
actors. Political freedom, access to information,
development, economic security, and physical
health enable individuals and groups to speak, to
act, and to think beyond their immediate needs.
Human rights and the environment are also
related from a distributional or equity perspective.
Both on an “external” (inter-state) and “internal”
(inter-community) level, minorities, indigenous
populations, and the poor are often dispropor-
tionately saddled with the effects of environmental
pollution.25 Distribution is also problematic from
24 See: A/HRC/10/61 (15 January 2009), OHCHR,
“Report of the Office of the United Nations
High Commissioner for Human Rights on the
Relationship between Climate change and Human
Rights.”
25 See: Clifford Rechtschaffen and Eileen Gauna,
Environmental Justice: Law, Policy & Regulation
(Durham, Carolina Academic Press, 2003).
| 151
an inter-generational perspective. A depleted
environment harms not only the people of today,
but future generations as well. Species, resources,
and ecosystems, once gone, are gone for good.
The relationship between environmental
protection and human rights can also be
antagonistic. Protecting human rights may require
environmentally destructive activity. For example,
fulfilling the right to food may entail destroying
forest to create farmland. Likewise, protecting
the environment may require action that infringes
on human rights. For example, safeguarding the
ecological diversity of a wetland may involve
prohibiting the use of pesticides that kill mosquitoes
in the name of malaria prevention, and protecting
an endangered species may involve prohibiting
hunting activities that are crucial for the cultural or
economic survival of rural communities.
More fundamentally, some observers worry
that seeing environmental protection through a
human rights lens will lead to the subordination of
environmental values to human needs, and vice
versa. As a result, some scholars have rejected
the linkages between environmental protection
and human rights, seeing the two regimes as
fundamentally incompatible.
More common than the “always complementary”
and “always in conflict” perspectives is a third
view, described by Professor Dinah Shelton as the
dominant one in current law and policy:
[This view] sees human rights and environmental
protection as representing different, but
overlapping, societal values. The two fields share
a core of common interests and objectives,
although obviously not all human rights
violations are necessarily linked to environmental
degradation. Likewise, environmental issues
cannot always be addressed effectively within
the human rights framework, and any attempt
to force all such issues into a human rights
rubric may fundamentally distort the concept of
human rights. This approach thus recognizes
the potential conflicts between environmental
protection and human rights, but also the
contribution each field can make to achieving
their common objectives.26
26 Dinah Shelton, “Human Rights, Environmental
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Strong support for this view of the interconnections
between the environment and human rights has led
to a burgeoning movement to add a new human
right – a “right to environment” or “right to a healthy
environment” – to the catalogue of international
human rights law.
History of the Right to Environment
Contemporary international environmental law
emerged in the late 1960s, and over the past
half-century, international and regional treaties
have created a growing network of international
environmental norms and enforcement
mechanisms. International conventions regulate
the depletion of the ozone layer; marine, river, and
air pollution; trade in endangered species; disposal
of hazardous wastes; depletion of fisheries;
biodiversity; and many other topics of concern
to the international community. However, in all of
these treaties, human rights are mentioned only in
passing, if at all.
Likewise, environmental rights were not explicitly
mentioned anywhere in the international bill of
human rights. The ICESCR does contain some
implicit references to environmental issues – Article
1 protects the “right of peoples to self-determination
and to freely dispose of their natural wealth and
resources”; Article 11 mandates that countries
must develop “programmes to improve methods
of production, conservation and distribution of
food; disseminating knowledge of principles of
nutrition; measures to achieve the most efficient
development and utilization of natural resources;
equitable distribution of world food supplies”; and
Article 12 calls for “steps to be taken for the …
improvement of all aspects of environmental and
industrial hygiene.” The Committee on Economic,
Social and Cultural Rights has also issued a
general comment finding a “right to water” as a
derivative of Articles 11 and 12.27 But nowhere was
a clean and healthy environment given the status of
an independent human right.
Rights, and the Right to Environment”, Stanford
Journal of International Law, vol. 28 (1991), p. 105.
27 E/C.12/2002/11 (2002), Committee on
Economic, Social and Cultural Rights, “General
Comment No. 15.”

Linking Environment and
Human Rights
“The protection of the environment is
… a vital part of contemporary human
rights doctrine, for it is a sine qua non for
numerous human rights such as the right
to health and the right to life itself. It is
scarcely necessary to elaborate on this, as
damage to the environment can impair and
undermine all the human rights spoken of in
the Universal Declaration and other human
rights instruments.”
Judge Weeramantry
International Court of Justice
The links between human rights and environmental
protection first began to be recognized in the 1960s
and 1970s.28 At that time, environmental awareness
experienced an international renaissance, and
people began to see ecological health as important
both for its own sake as well as for the realization
of human rights and fundamental freedoms.
Since that time, international instruments have
taken several different approaches to linking
the environment and human rights.29 First,
many instruments have focused on the effects
of environmental damage on human health.
Environmental health is seen as important
because of its impact on human rights: pollution
and other forms of ecological damage should be
prevented because they might negatively affect
human well-being. This view was reflected in the
28 The publication of Rachel Carson’s The Silent
Spring in 1962 is frequently cited as a landmark
in bringing environmental concerns into the public
eye, and a forerunner to the first Earth Day, which
took place in 1970.
29 For more discussion of the evolution of
approaches to human rights and environmental
protection, see: Dinah Shelton, “Environmental
Rights”, in Peoples’ Rights, Philip Alston, ed. (New
York, Oxford University Press, 2001), pp. 187–9;
and Right to Environment, “Changes in Approach”,
available from <http://www.righttoenvironment.org/
default.asp?pid=80>.
HUMAN RIGHTS
Stockholm Declaration on the Human Environment
in 1972, the first international document that
articulated the right to a healthy environment:
Man has the fundamental right to freedom,
equality and adequate conditions of life, in an
environment of a quality that permits a life of
dignity and well-being, and he bears a solemn
responsibility to protect and improve the
environment for present and future generations.30
The “environmental health for human health”
approach can also be seen in other treaties from
this period. The 1989 Convention on the Rights
of the Child, for example, refers to the need to
consider environmental protection in respecting
children’s right to health.31 The African Charter
on Human and Peoples’ Rights proclaims that “all
peoples have the right to a general satisfactory
environment favorable to their development.”32 The
Additional Protocol to the American Convention
on Human Rights in the Area of Economic, Social
and Cultural Rights declares that “everyone shall
have the right to live in a healthy environment.”33 A
1990 General Assembly resolution reaffirmed the
link between environmental protection and human
rights by asserting that “all individuals are entitled
to live in an environment adequate for their health
and well-being.”34 Recently, this approach has also
crept into the realm of international humanitarian
law, with the Rome Statute establishing the
International Criminal Court (ICC) listing wanton
destruction of the environment as a war crime
subject to individual international criminal liability.35
30 United Nations Environment Programme,
Stockholm Declaration on the Human Environment
(1972), Principle 1.
31 Convention on the Rights of the Child (1989),
Art. 24.
32 African Charter on Human and Peoples’ Rights,
Art. 27.
33 Additional Protocol to the American Convention
on Human Rights in the Area of Economic, Social
and Cultural Rights (1988), Art. 11.Z AQ`
34 A/45/40 (1990), The Need to Ensure a Healthy
Environment for the Well-Being of Individuals, G.A.
Res. 45/94, U.N. GAOR, 45th Sess., Supp. No.
49A, at 178, Art. 1.
35 A/CONF.183/9. Rome Statute of the
International Criminal Court, Art. 8(2)(b)(iv), July
| 153

Protected from external dangers, an elephant family roam peacefully in
the Mikumi National Park in Tanzania.
(UN Photo #149107 by B Wolff, January 1980)
A second approach to linking human rights and
environmental protection proceeds from the
environmental perspective. According to this
view, sometimes known as the “rights-based
approach to environmental protection”, human
rights – particularly procedural rights like the right
to information and access to justice – are crucial
because without them people cannot take action to
protect the environment. On the other hand, where
people are empowered with adequate information,
opportunities to participate in decision-making
processes, and access to justice, they can use
these tools to improve their environment and
prevent its exploitation. The 1992 Rio Declaration
on Environment and Development is illustrative:
Environmental issues are best handled with
participation of all concerned citizens, at
the relevant level. At the national level, each
individual shall have appropriate access to
information concerning the environment that is
held by public authorities, including information
on hazardous materials and activities in their
communities, and the opportunity to participate
in decision-making processes. States shall
facilitate and encourage public awareness
17, 1998. See: Jessica C. Lawrence and Kevin Jon
Heller, “The First Ecocentric Environmental War
Crime: The Limits of Article 8(2)(b)(iv) of the Rome
Statute”, Georgetown International Environmental
Law Review, vol. 20 (2007). For further discussion
of international humanitarian and criminal law, see
Lessons 12 and 13.
154 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
and participation by making information widely
available. Effective access to judicial and
administrative proceedings, including redress
and remedy, shall be provided.36
The rights-based approach to environmental
protection was also taken in Agenda 21, adopted
in 1992;37 the 1998 United Nations Economic
Commission for Europe’s Convention on Access
to Information, Public Participation in
Decision-making and Access to Justice in
Environmental Matters, more commonly known
as the Aarhus Convention; ILO Convention No.
169 concerning Indigenous and Tribal Peoples in
Independent Countries;38 and in environmental
treaties like the Protocol on Environmental
Protection on the Conservation of Antarctic Fauna
and Flora,39 the Framework Convention on Climate
Change,40 and the Convention on Biological
Diversity,41 to name a few.42
A third approach to linking the environment
and human rights is to view human rights and
environmental protection as interdependent and
indivisible, and thus reposition environmental
well-being as an independent human right of its
own. Here environmental protection is seen as a
right in and of itself, as well as a precondition for
the exercise of other human rights like the right to
health. This approach was taken by the 1994 UN
Draft Declaration of Principles on Human Rights and
36 Rio Declaration on Environment and
Development (1992), Principle 10.
37 Agenda 21, Chapter 23 (1992).
38 ILO Convention No. 169 concerning Indigenous
and Tribal Peoples in Independent Countries
(Geneva, June 27, 1989), Arts. 2, 4, 6, 7, 12, 15,
and 30.
39 Protocol on Environmental Protection on the
Conservation of Antarctic Fauna and Flora (1991),
Annex II.
40 Framework Convention on Climate Change
(1992), Arts. 4 and 6.
41 Convention on Biological Diversity, Arts. 13
and 15.
42 See: United Nations Environment Programme
and Office of the High Commissioner for
Human Rights, “Background Paper No. 1”, Joint
UNEP-OHCHR Expert Seminar on Human Rights
and the Environment (2002), available from <http://
www.unhchr.ch/environment/bp1.html>.
the Environment, which states that: “Human rights,
an ecologically sound environment, sustainable
development and peace are interdependent and
indivisible.”43 It has become fully evident in treaties
like the 2007 UN Declaration on the Rights of
Indigenous Peoples, which proclaims: “Indigenous
peoples have the right to the conservation and
protection of the environment.”44
Content of the Right to Environment
The Draft Declaration of Principles on Human
Rights and the Environment sets out an extensive
list of concrete rights contained within the
framework of the right to environment. These
include rights intended to protect human health and
well-being, rights intended to promote procedural
justice, and rights that protect the environment for
its own sake. For example:
• The right to “freedom from pollution,
environmental degradation and activities that
adversely affect the environment, threaten life,
health, livelihood, well-being or sustainable
development within, across or outside national
boundaries”;
• The right to “protection and preservation of the
air, soil, water, sea-ice, flora and fauna, and the
essential processes and areas necessary to
maintain biological diversity and ecosystems”;
• The right to “the highest attainable standard of
health”;
• The right to “safe and healthy food and water”;
• The right to “a safe and healthy working
environment”;
• The right to “adequate housing, land tenure and
living conditions”;
• The right to “information concerning the
environment”;
• The right to “hold and express opinions and
disseminate ideas and information regarding the
environment”;
• The right to “environmental and human rights
education”; and
43 Draft Declaration of Principles on Human
Rights and the Environment, Principle 1.
44 United Nations Declaration on the rights of
Indigenous Peoples, Art. 29.
HUMAN RIGHTS
On the Importance of
the Right to Environment
“The environment is man’s first right.”
Ken Saro-Wiwa
from “Stand by Me and the Ogoni People”
Saro-Wiwa and eight other activists were
hanged in Nigeria in 1995, ostensibly for
incitement to murder. However, many
believe that they were executed for raising
environmental concerns about Royal Dutch
Petroleum’s oil development activities in
their ancestral Ogoni lands. For more, see:
Ike Okonta and Oronto Douglas, Where
Vultures Feast: Shell Human Rights and Oil
in the Niger Delta (2003).
• The right to “effective remedies and redress
in administrative or judicial proceedings for
environmental harm or the threat of such harm.”45
The Draft Declaration is still a draft – it has not yet
been adopted, and has no legal force.
International and regional human rights bodies
have further elaborated the content of the right to
environment. While the right to environment is not
contained in any of the major UN human rights
documents, treaty bodies like the Human Rights
Commission and the Committee on Economic,
Social and Cultural Rights46 have recognized the
environmental dimensions of rights such as the
right to livelihood, control over natural resources,
culture, and water. Regional bodies like the
European Court of Human Rights,47 the African
45 Draft Declaration of Principles on Human
Rights and the Environment, Arts. 5–20.
46 See: Committee on Economic, Social and
Cultural Rights General Comments Nos. 12
and 14, clarifying that the rights to food and health
imply state responsibility to maintain appropriate
environmental policies.
47 The Council of Europe, however, has rejected
proposals to codify an explicit right to a healthy
environment in the European Convention on
Human Rights. For a recent example, see <http://
assembly.coe.int/Main.asp?link=/Documents/
WorkingDocs/Doc10/EDOC12298.htm>
| 155
Commission on Human and Peoples’ Rights, and
the Inter-American Court of Human Rights have
begun to develop an international jurisprudence
linking human rights and the environment. In one
famous decision, the African Commission declared
in 2001 that Nigeria had violated the African
Charter’s right to a satisfactory environment:
The right to a general satisfactory environment
… imposes clear obligations upon a government.
It requires the State to take reasonable and other
measures to prevent pollution and ecological
degradation, to promote conservation, and to
secure an ecologically sustainable development
and use of natural resources …
Government compliance … must also include
ordering or at least permitting independent
scientific monitoring of threatened environments,
requiring and publicizing environmental
and social impact studies prior to any major
industrial development, undertaking appropriate
monitoring and providing information to those
communities exposed to hazardous materials
and activities and providing meaningful
opportunities for individuals to be heard and
to participate in the development decisions
affecting their communities.48
Despite these materials that affirm – directly or
indirectly – the existence of a right to a clean and
healthy environment, there remains a great deal
of uncertainty as whether it can truly be supported
as a freestanding collective human right. There is
no mention of a right to environment in any of the
legally binding human rights treaties at the global
level. As a result, supporters must derive the right
to environment from an amalgamation of articles in
regional agreements and non-binding declarations,
along with the implications of individual rights like
the right to health.
Moreover, many argue that the right to environment
is not a collective right because it is reducible to its
individual rights components. Procedural justice
and health, the two most commonly cited
48 The Social and Economic Rights Action Center
and the Center for Economic and Social Rights v.
Nigeria, African Commission on Human and Peoples’
Rights, Comm. No. 155/96 (2001), paras. 52–3.
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components of the right to environment, are not
group-based rights. As Philip Alston notes:
It is not surprising then that the vast majority of
scholarly assessments of the right to environment
reach a negative conclusion as to both the
existence and the potential significance of such
a right. Instead, their focus is consistently on
the synergies which can be achieved by linking
the two subject areas in creative ways and by
using existing human rights provisions in both
substantive and procedural ways to promote
different parts of the environmental agenda.49
If the right to environment is not a right of its
own, but merely a shorthand for describing how
environmental values fit into the human rights
agenda, and vice versa, what does this mean for
the movements to link the two areas together?
What value is lost by re-imagining the right to
environment as a right of individuals, attached
to their rights to health, life, and political access,
rather than as a right of peoples?
Writing Exercise 7: Environmental Planning
You have been hired as a consultant for a new
NGO called Environmental Rights Now (ERN).
ERN’s goal is to get the peoples’ right to a healthy
environment included in a binding human rights
treaty at the global level. They have asked you
to assist them in developing a strategic plan for
their work.
Consider the following questions and write a
brief report (maximum one page).
• What do you think are the biggest
obstacles to including the right to a
healthy environment in a binding and
legally enforceable treaty at the global
level?
• Do you think that these obstacles can be
overcome? Why, or why not?
• How do you think your NGO should spend
its available time and resources?
49 Philip Alston, “Peoples’ Rights: Their Rise and
Fall”, in Peoples’ Rights, Philip Alston, ed. (New
York, Oxford University Press, 2001), pp. 282–3.
These questions about the existence and nature
of the collective right to environment are unlikely to
find definitive answers in the near future. Confusion
over the right’s legal and conceptual status will not
aid its implementation. However, as we saw with
the right to development and will discuss further
below, the right to environment is not the only
collective right with definitional and ontological
problems.
7.4 The Right to Peace
Peace and Human Rights
It is easy to draw connections between peace
and the protection of human rights. In times of
conflict, the civil, political, economic, social, and
cultural rights of individuals are often compromised.
Resources that would otherwise go to the fulfilment
of rights are redirected. Freedom is subordinated
to security. As former Director-General Federico
Mayor of the United Nations Educational, Scientific,
and Cultural Organization (UNESCO) wrote:
Lasting peace is a prerequisite for the exercise
of all human rights and duties. It is not the
peace of silence, of men and women who by
choice or constraint remain silent. It is the peace
of freedom – and therefore of just laws – of
happiness, equality, and solidarity, in which all
citizens count, live together and share.50
Likewise, human rights promote international peace
and security. Respect for human rights can help
to create an environment in which people are able
to exercise their rights, in which governments are
respectful of individuals, and in which different
racial, ethnic, linguistic, gender, and religious
groups enjoy conditions of equality: an environment
in which external and internal conflict are less
likely. As the Preamble to the UDHR states: “The
recognition of the inherent dignity and the equal
and inalienable rights of all members of the human
family is the foundation of freedom, justice and
peace in the world.”51
50 Federico Mayor, former Director-General of the
United Nations Educational, Scientific and Cultural
Organization, “The Human Right to Peace”,
UNESCO Doc. SHS-97/WS/6 (1997).
51 Universal Declaration of Human Rights,
HUMAN RIGHTS
Peace in this context includes both negative
aspects (the absence of war, conflict, and
instability) that will prevent the violation of human
rights, and positive aspects (the creation of
conditions of equality, social justice, and human
rights protection) that will prevent violence and
recourse to the use of force.
The UN system is dedicated to protecting and
preserving international peace, and the prohibition
of the use of force contained in the UN Charter
contributes directly to this end. As with some of
the other collective rights discussed in this lesson,
however, the intimate relationship between human
rights and peace does not necessarily translate into
the existence of a collective right to peace as such.
Whether such a right exists and the significance of
its impact, continue to be matters of debate.
History of the Right to Peace
The idea of a “right to peace” has been around for
some time. The earliest mention of such a right
can be found in the preamble of the Japanese
Constitution of 1946, which recognizes “that all
peoples of the world have the right to live in peace,
free from fear and want” and binds Japan to
“forever renounce war as a sovereign right of the
nation and the threat or use of force as means of
settling international disputes.”52
The first mention of a collective right to peace in
the UN system is found in the Commission on
Human Rights Resolution 5 of 1976. As with other
group rights, this early assertion of the right to
peace was pressed by a coalition of socialist and
developing states and formed a part of the NIEO
movement (see discussion in Lesson 6). Following
the adoption of Resolution 5, there was a push for
the recognition of a right to peace by the General
Assembly. The effort succeeded in 1978, when the
UN GA adopted the Declaration on the Preparation
of Societies for Life in Peace, affirming that: “Every
nation and every human being, regardless of race,
Preamble.
52 Djacoba Liva Tehindrazanarivelo and Robert
Kolb, “International Protection of the Right to
Peace”, Max Planck Encyclopedia of Public
International Law (2009).
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conscience, language or sex, has the inherent
right to life in peace.”53 This Declaration focused
primarily on urging governments to prepare future
generations for life in peace by discouraging racial
hatred and the advocacy of violence and war, but
did little in the way of standard setting.
The next official recognition of the collective right
to peace came in 1981 in the African Charter on
Human and Peoples’ Rights, Article 23 of which
specifies: “all people shall have the right to national
and international peace and security.”54
Fast on the heels of the African Charter came the
UN Declaration on the Right of Peoples to Peace,
which solemnly proclaimed that “the peoples of
our planet have a sacred right to peace” and “that
the preservation of the right of peoples to peace
and the promotion of its implementation constitute
a fundamental obligation of each State.”55 The
Declaration’s adoption was bound up with concerns
over nuclear conflict, and the idea that nuclear
disarmament may form a part of the content of the
right to peace is supported by the Preamble, which
states: “the will and the aspirations of all peoples to
eradicate war from the life of mankind and, above
all, to avert a world-wide nuclear catastrophe.”
The Declaration on the Right of Peoples to Peace
contains no specific obligations or rights other
than this broad programmatic statement, and the
exhortation that states should “do their utmost to
assist in implementing the right of peoples to peace
through the adoption of appropriate measures at
both the national and international level.”
During the 1990s, the fight for recognition
of a human right to peace was taken up by
then-Director General of UNESCO Federico Mayor.
Largely through UNESCO’s efforts, discussions
on the right to peace began again, and several
conferences and expert discussions were held.
In 1997 Mayor issued a Declaration of a Human
Right to Peace in his capacity as Director General
of UNESCO, calling on nations to eliminate the
root causes of conflict and focus on education as
means of achieving international peace, and in
53 A/Res/33/73 (1978), Principle 1.
54 African Charter on Human and Peoples’ Rights
(1981), Art. 23.
55 A/RES/39/11 (1984), Arts. 1–2.
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1998, a UNESCO-convened expert group received
a draft Declaration on the Human Right to Peace
as the Foundation of the Culture of Peace, which
had been prepared by the Norwegian Institute for
Human Rights. This draft Declaration consisted of
a number of provisions notable for their ambition
and lack of specificity, for example:
Every human being has the right to peace, which
is inherent in the nature of the human person; it
must be recognized, respected and implemented
without any discrimination in either internal or
international contexts by all states and other
members of the international community.
Violence in all its forms is intrinsically
incompatible with the right of every human
being to peace; since inequalities, exclusion
and poverty are liable to lead to violations of
international peace and internal peace, the right
of every human being to peace requires the
promotion of social justice through appropriate
national and international policies aimed at
sustainable human development.56
At the meeting of experts, there was a heated
debate over the draft Declaration, which Canadian
Senator Douglas Roche describes as a battle
between North and South:
One European country after another either
attacked or expressed reservations about
the right to peace and accused Mayor of
overstepping his mandate. Countries from
the South struck back, accusing the North of
wanting to protect their arms industries. At the
end, Paraguay stated, “this rich discussion
shows that the culture of peace is the central
issue … and that the Human Right to Peace is
needed for individuals and states.” Noting that
the debate split North and South, Paraguay
added, “Perhaps peace is a greater concern in
the South where scarce resources are being
diverted to war.” 57
In the end, the government experts significantly
56 UNESCO Doc. 154 EX/40 (1998), Annex II,
paras. 3 and 4.
57 Douglas Roche, The Human Right to Peace
(Toronto, Novalis Press, 2003), pp. 122–44.
altered the original draft, removing all mention of
the right to peace from its operative provisions.
The UN General Assembly adopted the resulting
watered-down Declaration and Programme of
Action on a Culture of Peace on September 13,
1999. This Declaration spoke of “culture” rather
than “right”, and defined eight areas of action for
developing an international culture of peace:
• Education;
• Sustainable economic and social development;
• Respect for human rights;
• Equality between men and women;
• Democratic participation;
• Understanding, tolerance and solidarity;
• Participatory communication and the free flow of
information and knowledge; and
• International peace and Security.
In 2002, the GA adopted a Resolution on the
Promotion of the Right of Peoples to Peace, which
reaffirmed the 1984 Right to Peace Declaration and
calls on states to promote international peace and
security through disarmament.58 Similarly, in 2003
and 2005 the GA adopted a series of resolutions
on the Promotion of Peace as a Vital Requirement
for the Full Enjoyment of All Human Rights by All.59
The 2003 Protocol to the African Charter on
Human And Peoples’ Rights on the Rights of
Women in Africa affirms the right of all women “to
a peaceful existence and the right to participate in
the promotion and maintenance of peace.”60
In the end, despite the linkages between peace
and human rights, and the frequent reaffirmation of
the existence of a right to peace by the UN General
Assembly, the right has not been included in any
binding legal document at the UN level. Moreover,
statements of the right to peace continue to be
largely aspirational, and little work has been done
to clearly define its content.
58 UNGA Res. 57/216 (2002).
59 UNGA Res. 58/192 (2003); UNGA Res. 60/163
(2005).
60 OAU Doc. CAB/LEG/66.6 (2003), Protocol to
the African Charter on Human and Peoples’ Rights
on the Rights of Women in Africa.
HUMAN RIGHTS
Residents participate in the observance of the International Day of
Peace, organized by the Southern Sudanese Peace Commission, United
Nations Mission in Sudan, and the War Child Holland.
(UN Photo #198163 by Tim McKulka, September 2008)
Content of the Right to Peace
As mentioned above, there are suggestions that the
content of the right to peace includes disarmament,
prohibition of aggression, and the creation of
conditions that will prevent recourse to the use of
force. Perhaps the list of eight factors included
in the Declaration and Programme of Action
on a Culture of Peace can also be added to
the definition. The Spanish Society for the
Advancement of International Human Rights Law,
a group of Spanish scholars, goes much further
in their 2006 “Luarca Declaration on the Human
Rights to Peace”, and would incorporate into the
right to peace everything from development, to
employment, to protection of the environment and
civil rights.61
Ultimately, the content of the right will be a function
of the answer to the question: what is peace? If
the concept includes both a positive and negative
dimension, where do its boundaries lie? Political
scientist Johan Galtung has argued that peace
is the absence of “structural” as well as “direct”
violence, and defined structural violence as the
“way that surplus is extracted from the lower levels
61 Spanish Society for the Advancement of
Human Rights Law, Luarca Declaration on the
Human Right to Peace (2006), <http://www.
nodo50.org/csca/agenda09/misc/pdf/DerechoHu-
manoPazingles.pdf>.
| 159
 [of society] and transferred upwards, making the
higher levels richer at the expense of the lower
levels, producing the famous ‘gaps’ in development
[that result in] often highly differential morbidity and
mortality rates between rich and poor countries,
districts, and individuals.”62 If this is the case, is
peace just a code word for the fulfilment of all
human rights? Can it ever be legally enforceable?
Arms are destroyed by fire during the “Flame of Peace” ceremony to signify
the beginning of the country’s disarmament and reconciliation process in
Bouake, Côte d’Ivoire. (UN Photo #149796 by Basile Zoma, July 2007)
As a result of all this confusion, in recent years the
right to peace has dropped somewhat off the map
of international human rights law. As Professor
Philip Alston explains:
The collective (peoples’) right to peace … does
not have a clear legal meaning and cannot be
translated into meaningful action. However,
many individual rights can be exercised with the
view of defending peace … 63
Because of its lack of clarity and development, most
observers agree that the collective right to peace is
all but a dead letter; the right to peace may be
“a concept whose time had long since passed.”64
62 Johan Galtung, “Nonterritorial Actors and the
Problem of Peace”, in The Creation of a Just World
Order, Saul H. Mendlovitz, ed. (New York, The Free
Press, 1975), pp. 151–2.
63 Vojin Dimitrijevic, “Human Rights and
Peace”, in Human Rights: New Dimensions and
Challenges, J. Symonides, ed. (Brookfield, VT,
Ashgate Publishing, 1998), p. 64.
64 Philip Alston, p. 279.
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On the other hand, some – notably UNESCO under
former Director-General Federico Mayor, former
Pope John Paul II, Senator Douglas Roche of
Canada, and Judge Antônio A. Cançado Trindade
of the International Court of Justice – have
continued to champion the right to peace. As
Senator Roche wrote in 2005:
The work already accomplished in the UN
system to develop the concept of the human
right to peace is one of the world’s best-kept
secrets. The culture of war so pervades public
opinion that it has drowned out voices asserting
that the human right to peace is a fundamental
right of every human being and is, in fact, the
major precondition for all human rights. The time
has come to emphasize that the peoples of the
world have a sacred right to peace.65
In the end, whether the right to peace will become
a binding obligation with an effective mechanism
for enforcement, while unlikely, remains to be seen.
Conclusion
In this lesson we have examined the rights to
development, environment, and peace, each in
isolation. It should be evident, though, that these
collective rights are all connected with one another.
As Indian lawyer Clarence J. Dias wrote:
There is no peace where human rights are
systematically violated and where there is no
development to bring about poverty elimination.
The absence of peace creates conditions that
make development difficult and that breeds
massive and widespread violations of human
rights. Respect and promotion of human rights,
however, create an environment favorable to
both development and peace.66
These rights, though they remain mostly
aspirational in practice, protect important social
65 Douglas Roche, p. 122.
66 Clarence J. Dias, “Human Rights,
Development, and Environment”, in The Universal
Declaration of Human Rights: Fifty Years and
Beyond, Yael Danieli, Elsa Stamatopoulou, and
Clarence J. Dias, eds. (Amityville, NY, Baywood
Publishing Company, 1999), p. 395.
values and seek to maintain an environment in
which individual civil, political, economic, social,
and cultural rights can be exercised. All have
received some recognition under international law.
However, as we have seen, none are contained
in a binding treaty at the global level, and whether
and to what extent they exist as binding collective
human rights is open to debate.
Partially, their contested status is bound up with the
fact that each of these collective rights is the product
of larger geopolitical and ideological struggles. The
rights to development, a healthy environment, and
peace have arisen at particular historical moments
and out of particular social and political contexts.
As such, is has been much more difficult to ground
them in the same theoretical bases as first- and
second-generation rights. The future of these
rights, like their past, will likely be determined by the
geopolitical climate in which they stand.
In the next three lessons, we will turn to a set of
mixed group and individual rights regimes that
protect the human rights of “vulnerable groups” that
have traditionally suffered increased instances of
human rights abuses as a result of their belonging
to a group.
HUMAN RIGHTS
Further Reading
Georges Abi-Saab, “The Legal Formulation of a
Right to Development”, in The Right to Development
at the International Level (Hague Academy of
International Law, 1980); Philip Alston, ed., Peoples’
Rights (2001); Philip Alston and Mary Robinson,
eds., Human Rights and Development: Towards
Mutual Reinforcement (2005); Jack Donnelly, “In
Search of the Unicorn: the Jurisprudence and
Politics of the Right to Development”, California
Western International Law Journal, vol. 15 (1985);
Douglas Roche, The Human Right to Peace (2003);
Amartya Sen, Development as Freedom (1999);
Dinah Shelton, “Human Rights, Environmental
Rights, and the Right to Environment”, Stanford
Journal of International Law, vol. 28 (1991).
Websites for Further Information
OHCHR’s webpage: www2.ohchr.org/english/.
| 161
End-of-Lesson Quiz

1. Which of the following best defines the
concept of “development” as used in the
human rights field?
A. An increase in a country’s gross domestic
product (GDP);
B. An increase in the number of human rights
complaints brought by a country’s citizens;
C. An increase in cost of living;
D. An increase in a country’s overall economic,
social, and cultural capacity.
2. Which of the following best describes the
relationship between development and
human rights?
A. Development and human rights are
complementary;
B. Development and human rights are
contradictory;
C. Development is unrelated to human rights;
D. Development cannot happen until after all
human rights are achieved.
3. Which group of states has been the biggest
advocate of the right to development?
A. The developed countries;
B. The global South;
C. The West;
D. The global North.
4. The UN Declaration on the Right to
Development was adopted in:
A. 1948;
B. 1966;
C. 1986;
D. 1992.
5. Which of the following is NOT one of the UN
Millennium Development Goals (MDGs)?
A. Ending poverty and hunger;
B. Universal education;
C. Nuclear disarmament;
D. Gender equality.
6. Which of the following best describes how
human rights and environmental protection
are related?
A. Human rights and environmental protection are
always complementary;
B. Human rights and environmental protection are
always contradictory;
C. Human rights and environmental protection are
sometimes complementary and sometimes
contradictory;
D. Human rights and environmental protection are
unrelated.
7. Which of the following is NOT an approach
that has been used to link human rights and
environmental protection in international
treaties:
A. Using human rights as a justification for
destroying the environment;
B. Using human rights (particularly procedural
rights) to further environmental protection;
C. Using environmental protection to further
human rights;
D. Seeing environmental protection and human
rights as inextricably linked.

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8. The UN Draft Declaration of Principles on
Human Rights and the Environment is:
A. A binding treaty with strong enforcement
mechanisms;
B. A non-binding draft with no legal force;
C. A non-binding draft with strong legal force;
D. A binding treaty with no enforcement
mechanisms.

9. The right to a healthy environment:

A. Is firmly established at the global level, but not
in any regional treaties;
B. Does not exist;
C. Is firmly established at both the global and
regional level;
D. Is firmly established in some regional systems,
but not at the global level.

10. The “negative” aspect of the right to peace

is:
A. The fact that perpetual peace would be bad for
some countries;
B. The fact that some people do not believe a
human right to peace exists;
C. The absence of war, conflict, and instability;
D. The creation of conditions of equality, social
justice, and human rights protection.

ANSWER KEY
1D, 2A, 3B, 4C, 5C, 6C, 7A, 8B, 9D, 10C

HUMAN RIGHTS | 163

LESSON 8
HUMAN RIGHTS OF VULNERABLE
PERSONS AND GROUPS I:
WOMEN’S RIGHTS
 LESSON
8

LESSON OBJECTIVES

8.1 Introduction By the end of Lesson 8, the student should be able to meet the
following objectives:
8.2 Theoretical
Perspectives
• Define the meaning of “vulnerable group”;
8.3 Women’s Rights
• Identify a number of vulnerable groups that receive special
Annex A protection under international human rights law;
Convention on • Describe the reasons why vulnerable groups are in need of
the Elimination additional protection;
of All Forms of • Understand the issues raised by providing special protection to
Discrimination vulnerable groups; and

Against Women • Describe the global and regional systems in place for the protection
(CEDAW) of women’s rights.

To view a video introduction of this lesson by the

course author Jessica C. Lawrence, you can
either log in to your virtual classroom, go to www.
peaceopstraining.org/users/media_page/381/
lesson-8, or use your mobile device to scan the
QR code to the left.
8.1 Introduction
What is a vulnerable group?
As we learned in Lessons 1, 2, and 3, human rights
treaties like the UDHR, ICCPR, and ICESCR aim
to protect persons against violations of their human
rights and fundamental freedoms. They apply to
all persons equally, without regard for race, sex,
age, language, religion, national or social origin,
property, birth, or any other status. However, there
are some persons and groups who, for historical,
cultural, structural, or other reasons, are especially
vulnerable to victimization and human rights
abuses. Because they are more likely to suffer
violations of their human rights and fundamental
freedoms, some vulnerable groups are provided
with additional protections under international law.
These additional protections take the form of
conventions and standards protecting both
individuals and groups, and giving their needs
special consideration. These instruments directly
address the plight of vulnerable persons, providing
targeted support in areas that are overlooked or
underserved by more general human rights treaties.
Thematic human rights instruments are important
not only because of the protection they provide,
but also because they give status and visibility to
vulnerable groups, drawing international attention to
areas of particular concern.
In the next three lessons, we will focus on six
groups that have received additional protection
under international human rights law because they
are especially vulnerable to abuses of their human
rights and fundamental freedoms:
• Women;
• Children;
• Disabled Persons;
• Ethnic, Religious, and Linguistic Minorities;
• Indigenous Peoples; and
• Refugees.
These vulnerable groups have been selected for
study because the international legal regimes that
protect them are among the most well-established.
HUMAN RIGHTS
On the Need for
Thematic Instruments
“All human rights instruments are based
on the principle of equal protection
and non-discrimination, which are the
pre-eminent norms of the human rights
movement. [But] the existence of general
scope human rights documents, in which
everyone is protected … does not obviate the
need for a specific instrument targeted at a
particular class of people or problem. That is
why the female gender, which is guaranteed
by all the rights in the ICCPR, still needs its
own specific normative framework to address
the particular problems and conditions that
attach to it by virtue of its difference. The
same is true with racial groups, minorities,
indigenous peoples, workers, children, and
other classes, categories, or groups with
shared historical, ethnic, religious, social,
linguistic, cultural, or other characteristics. It
is only by recognizing these differences and
specifically addressing them that society can
ensure the victims equal protection.”
Makau Mutua
from “Standard Setting in Human Rights:
Critique and Prognosis”
However, it is important to remember that there are
many more groups that are considered especially
vulnerable for the purposes of international human
rights law, and still more that suffer discrimination
and oppression in their daily lives but have not yet
been recognized by the international human rights
movement. Internally displaced persons (IDPs);1
stateless persons;2 lesbian, gay, bisexual, and
transgender (LGBT) persons;3 migrant workers;4
1 Issues surrounding the protection of IDPs will
be discussed briefly in the context of refugee rights
in Lesson 10.
2 See: Convention on the Reduction of
Statelessness (1961); Convention Relating to the
Status of Stateless Persons (1954).
3 We will discuss the emerging regime for the
protection of LGBT persons in Lesson 15.
4 The International Convention on the Protection
| 167
the elderly; people living with HIV and AIDS; and rights is closely related to the protection of
people living in rural areas, for example, are all women’s rights. Before birth, a child’s health and
vulnerable groups that might have each received development are contingent on the security and
their own section in this lesson. well-being of her mother. After birth, women remain
the primary caregivers of young children in most
Human rights as overlapping and linked countries, and protecting caregivers is crucial to
the healthy development of the child. Ensuring the
One important thing to remember when reading rights of women is therefore strongly linked with
through this lesson is that the protections afforded ensuring the rights of their children.
to the various vulnerable groups are overlapping
and linked to one another.
8.2 Theoretical Perspectives
These human rights regimes are overlapping in
Establishing special protections for vulnerable
at least two ways: first, because every person in
groups can help to publicize their issues, provide
each vulnerable group has the same basic general
recognition for their struggles, promote equality,
human rights and is protected under the UDHR,
and ultimately prevent human rights abuses, but
ICCPR, and ICESCR, as well as under the special
it can also have divisive effects. In particular,
treaties that provide them with additional protection,
providing separate and special protection for
and second, because the same person may belong
vulnerable groups can cement perceptions of
to more than one vulnerable group.
difference between the vulnerable group and
others, and can lead to the marginalization of
For example, an eight-year-old girl who is a
their rights. Each of the regimes described in the
member of a national minority group is protected
next three lessons must navigate this difficult path
under the international bill of human rights as well
between inclusion and exclusion, between equality
as under the women’s conventions, children’s
and difference, and between universalism and
conventions, and minorities’ conventions all at
relativism. The development of international human
the same time. Multiple overlapping protections
rights law has been profoundly influenced by these
are particularly important in cases like these,
balancing acts. How can providing vulnerable
because persons who are members of more than
groups with special protections have these effects?
one vulnerable group may be subject to “double
discrimination” as a result of their intersectional
Reinforcing Divisions, Affirming Segregation
identities. Because rights overlap in this way,
a state that fails to uphold an individual’s rights
To begin with, special protections may reinforce
may be in violation of multiple conventions under
barriers, rather than breaking them down. In some
international human rights law. Similarly, a person
cases, this may be desirable. A minority group
who has been the victim of a human rights violation
with a different language, culture, or religion from
may have a number of different enforcement
the majority population may wish to prevent the
options to choose from.
dilution of their unique traditions by claiming special
protections for the group. In many cases, though,
The special human rights regimes are linked
reinforcing barriers will be undesirable. Providing
because the protections afforded by one regime
separate special regimes for women, children,
can be critical for upholding human rights in
minorities, and other vulnerable groups helps to
another. For example, the protection of children’s
reinforce the idea that they are “others” who are
of All Migrant Workers and Members of their different from “normal” people.
Families (ICRMW), overseen by the Committee on
Migrant Workers (CMW), is one of the nine “core” For example, one might ask why women should
human rights treaties in the UN system. For more receive additional help from the international
information, visit the CMW’s page on the OHCHR human rights community if they are exactly the
website at: <http://www2.ohchr.org/english/bodies/ same as men. Doesn’t this suggest that women
cmw/>. are different? Isn’t that suggestion contrary to

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the principle of equality that is so important for
human rights? In response, supporters of the
special protection regimes argue that differences
do exist – both with respect to physical capacity as
well as training, economic position, and social and
cultural roles – but these are differences in how
society treats and interprets men and women. They
are not differences between men and women as
moral agents, or as bearers of human rights. These
differences are not natural, but rather socially or
culturally constructed. The provision of additional
support is meant to correct for these culturally
constructed notions of difference.
Even when special protection regimes do not
reinforce the idea that the groups they protect
are different, they tend to compartmentalize their
needs. The special protections system implies that
the needs of each group are “taken care of” within
the regime organized for their protection, and that it
is therefore not necessary to consider “their” issues
in the context of general human rights treaties.
This ghettoization can be pernicious, leading to the
further marginalization of vulnerable groups and
their human rights.5
Equality in Law v. Equality in Fact
The ideals of equality and non-discrimination are at
the heart of the UN system. The UDHR is premised
on the idea that all people are born “free and equal
in dignity and rights,” and every one of the “core”
international human rights treaties includes a
non-discrimination clause. If the goal of providing
special protections for vulnerable groups is to
prevent discrimination against them, why aren’t
the protections contained in the international bill of
human rights enough? Discrimination and unequal
treatment are already prohibited under international
human rights law, so why do vulnerable groups
require more?
One answer to this question hinges on the
difference between de jure and de facto equality
– the difference between equality in law and
equality in fact, also known as formal equality
5 Some groups – notably women’s rights
activists – have attempted to use the tactic of
“mainstreaming” to counter this tendency. See
discussion below.
HUMAN RIGHTS
and substantive equality. Equality in law or formal
equality is an equality that treats everyone exactly
the same, regardless of their circumstances.
Equality in fact or substantive equality is an equality
that treats some people differently, depending on
the relevant social, historical, or cultural context.
While at first glance it may seem intuitive that
“equality” should mean treating everyone exactly
the same, in practice this does not always produce
the most “equal” results. Treating every person the
same by insuring a lack of discrimination in law
and practice will not necessarily result in equality
among peoples. If two people approach the law
from highly unequal positions, then ignoring these
initial differences and treating them equally will
cement the status quo. For example, suppose that
a national government passes a law declaring
that every person must pay a tax of $5,000 in
order to be eligible to vote. This law is “neutral”,
or formally equal, because it applies to all citizens
without distinction. Every person must pay the fee,
regardless of his or her race, sex, gender, age,
language, religion, birth, property, or other status.
However, it is substantively unequal, because
it affects some people much more than others.
The poor (who are also frequently made up of
a disproportionate number of women, national
minorities, indigenous people, and other vulnerable
groups) will be unable to pay the tax, and thus be
denied their right to vote.
In place of formal equality, therefore, some
argue that oppressed or disadvantaged groups
and individuals should receive special attention
and assistance to promote their full participation
and enjoyment of rights. Additional help can
compensate for historical inequality, and eventually
allow vulnerable groups to gain true substantive
equality.6 For example, a law requiring courts
to hire 50 per cent women as judges is formally
unequal because it makes a direct distinction
6 See: Martha Albertson Fineman, The Illusion
of Equality (1991); Committee on Economic, Social
and Cultural Rights, “General Comment No. 16”
(2005) (noting that gender-neutral laws “can fail to
address or even perpetuate inequality between men
and women because they do not take account of
existing economic, social and cultural inequalities,
particularly those experienced by women.”)
| 169
based on gender. However, it may promote
substantive equality because it helps women to
gain the proportion of seats they would hold if it
were not for the effects of historical and continuing
discrimination.
On the Perils of Formal Equality
“[The poor] must labour in the face of the
majestic equality of the laws, which forbid
rich and poor alike to sleep under the
bridges, to beg in the streets, and to steal
their bread.”
Anatole France
from The Red Lilly (1894)
The substantive equality approach is sometimes
used to justify affirmative action programmes that
provide special assistance to vulnerable groups,
as in the form of government subsidies or hiring
policies. However, affirmative action programmes
are controversial. They may lead to backlash and
charges of “reverse discrimination” by groups that
feel negatively affected by these policies.
This is the “equality paradox” in a nutshell:
achieving substantive equality may require different
formal treatment, but different formal treatment may
be discriminatory.
The formal versus substantive equality conundrum
reappears in many political debates, and people
often hold strong opinions about the issue. Most
protection regimes have attempted to broker a
compromise between the formal and substantive
positions, providing some special assistance to
vulnerable groups, but limiting it in order to avoid
charges of discrimination. Agreements like the
ICCPR and ICESCR might be said to take a
more “formal” approach, providing few targeted
protections, while agreements like the Convention
on the Rights of Persons with Disabilities (CRPD)
might be said to take a more “substantive” approach,
articulating protections specifically designed to
improve the lives of a particular vulnerable group.
Ultimately, however, there is no easy answer to
this question of where the line between formal and
substantive equality should be drawn.
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Individuals and Groups
Another difficulty with special protection regimes
is that the line dividing individual rights from group
rights in this context is somewhat murky. Women,
children, disabled persons, minorities, indigenous
people, and refugees all enjoy special protections
as individuals under international human rights
law. However, some also enjoy special protections
as groups. For example, minorities have the right
to exercise their culture in combination with other
members of their group, and indigenous persons
have the right to self-determination as peoples.
In Lesson 6, we discussed the many theoretical
difficulties that plague the category of collective
rights. All of these issues apply again in the context
of the rights of vulnerable groups. The question
of whether each right belongs to the individual or
to the group is front and centre. Keep the idea of
collective rights in mind when reading through the
next three lessons, and ask yourself whether each
set of rights should be categorized as “collective”
and, if so, why?
The Limitedness of Groups
One final theoretical difficulty attached to the
protection of groups stems from their limitedness.
Defining which groups are vulnerable for the
purpose of providing special protections is a
complex and value-laden affair. Boundaries
must be set and choices must be made about
which individuals and contexts deserve special
treatment and which do not. Women, children,
disabled persons, minorities, indigenous peoples,
and refugees have all suffered various forms of
discrimination and ill treatment at the hands of
society. However, the individuals within these
groups are extremely varied. Individual members
of vulnerable groups may be rich as well as poor,
socially privileged or unprivileged, culturally
connected or isolated. Similarly, individual
members of dominant groups may suffer from
poverty, marginalization, and inequality as well as
wealth and privilege. As feminist and international
law scholar Professor Martha Fineman puts it:
 From a political and policy perspective, the
current model of equality is further limited as
an anti-discrimination principle because its
protections do not appear to extend to everyone.
Politically, this limitedness is problematic
because it can and has resulted in significant
backlash. Even more significant in the long run
has been the fact that the goal of confronting
discrimination against certain groups has
largely eclipsed, even become a substitute for,
the goal of eliminating material, social, and
political inequalities that exist across groups.
In this regard, identity categories are both over
and under inclusive. The groups that traditional
equal protection analyses recognize include
some individuals who are relatively privileged
notwithstanding their membership in these
identity groups. Indeed, while race or gender
may complicate and compound disadvantage,
individual successes about across these and
other categories … At the same time, identity
categories are too narrow. Poverty, denial of
dignity, and deprivation of basic social goods
are “lack-of-opportunity categories” that the
current framework of identity groups does not
recognize; such disadvantage transcends group
boundaries.7
Writing in the context of United States equal
protection law, Professor Fineman suggests
replacing the system of vulnerable groups with a
system based on the concept of the “vulnerable
subject”, a “post-identity” inquiry focused on
discrimination and disempowerment in general,
rather than on particular group identities.8 Would
such a system be preferable? Would it overcome
the limitations of the vulnerable groups model?
Or would it merely reinstitute a policy of willful
blindness toward entrenched discrimination against
disadvantaged groups?
Despite these difficulties, special regimes for the
protection of vulnerable groups have become an
essential feature of the international human rights
landscape. We will now take a look at the rights of
7 Martha Albertson Fineman, “The Vulnerable
Subject: Anchoring Equality in the Human
Condition”, Yale Journal of Law and Feminism, vol.
20 (2008), p. 4.
8 Ibid.
HUMAN RIGHTS
several of these groups in turn, beginning in this
lesson with the rights of women. While reading,
keep in mind the theoretical perspectives discussed
in this section, and try to see what implications they
might have for the goals of increasing equality and
protecting human rights. Do the theoretical debates
matter? Why, or why not?
8.3 Women’s Rights
Women as a Vulnerable Group
Women make up at least half of the world’s
population, and enjoy the same basic protections
as men under the international bill of human rights.
Non-discrimination, including on the basis of
sex, is a cornerstone of the international human
rights system: the UN Charter reaffirms “faith in
fundamental human rights, in the dignity and worth
of the human person, in the equal rights of men
and women”; the UDHR proclaims that everyone –
without distinction on the basis of sex – is entitled
to equality before the law; and the ICCPR and
ICESCR confirm that the rights contained therein
apply to all persons regardless of sex.
With all of these protections against sex
discrimination in the international bill of human
rights, why is there a need for a separate rights
regime addressed specifically to women?
Supporters point broadly to two reasons:
First, as a practical matter, women in fact remain
second-class citizens, subordinated throughout
the world, despite their equal treatment in these
foundational human rights instruments. Second,
from a more theoretical perspective, focusing
on women’s rights exposes the gendered
assumptions of human rights discourse itself.
That is … human rights law incorporates a
gender perspective; it focuses on issues or
problems that affect men more than women, or
that affect men differently from women.9
Women have held, and in many places continue to
hold, a position inferior to that of men in the home,
9 Barbara J. Stark, “Women’s Rights”,
Encyclopedia of Human Rights, David P. Forsythe,
ed. (New York, Oxford University Press, 2009).
| 171
at school, at work, in religion, and in government.
As discussed in Lesson 3 in the context of
economic, social, and cultural rights, throughout
much of the past several centuries women were
sequestered in the private sphere of home, family,
and unpaid or low-wage work, and were denied
the right to participate in the public sphere of
politics. Women have also been disadvantaged
economically, and make up a majority of the world’s
poor – a situation known as the “feminization of
poverty.”
Women’s subordination was historically justified
on the basis of “natural” differences between
the sexes (categories based on the biological
characteristics of men and women) in terms of size,
strength, and reproductive capacity. It continues to
be justified on the basis of gender differences (the
socially constructed roles of men and women) in
perceived social and behavioral preferences.
Because of their historical and ongoing
subordination and lack of political and economic
power, women’s particular needs and experiences
were not taken into account in the establishment
of the UN or the drafting of the international
bill of human rights. The types of human rights
violations that particularly affect women – including
gender-based violence and economic and social
marginalization – were either left out of the major
international human rights covenants, or relegated
to a secondary status as “special interests”. As a
result, feminist scholars argued that the substance
of and institutions created by international human
rights institutions gave preference to male values
and perspectives: human rights were men’s rights.10
The women’s rights regime generally enjoys broad
support. But not everyone is convinced that a full
half of the human population should be granted
special protections as a group. Consider the
following passage by human rights scholar Jack
Donnelly:
10 See: Rebecca J. Cook, ed., Human Rights of
Women: National and International Perspectives
(Philadelphia, University of Pennsylvania Press,
1994); Julie Peters and Andrea Wolper, eds.,
Women’s Rights, Human Rights: International
Feminist Perspectives (New York, Routledge,
1995).
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Although women have a sad history of
near-universal, systematic suffering in virtually
every area of the globe, the idea of group
human rights for women is fatally undermined by
problems of collective agency for a diverse group
that includes half of humanity. It is also unclear
what rights women as a group might be held to
possess. Unless we accept gender roles that
postulate qualitative differences between men
and women, the obvious candidates for special
women’s rights seem to me best formulated in
gender-neutral terms.
For example, family rights, reproductive rights,
and protection against domestic violence are not
special rights of women. Although the majority
of adult victims of violence in the home are
women, this no more makes protection against
domestic violence a (group) right of women than
the fact that the majority of those exercising or
suffering violations of trade union rights are men
makes the right to bargain collectively a (group)
right of men. The principle in each case is
independent of sex or gender. No one should be
subject to violent assault by anyone, including a
domestic partner. Everyone is entitled to bargain
collectively.11
What Is Gender?
“The term ‘gender’ refers to the socially
constructed roles of women and men that
are ascribed to them on the basis of their
sex, in public and in private life. The term
‘sex’ refers to the biological and physical
characteristics of women and men …
Gender roles are learned and vary widely
within and between cultures. As social
constructs, they can change.”
Kofi Annan
from HRI/MC/1998/6 (1998)
11 Jack Donnelly, Universal Human Rights in
Theory and Practice (Ithaca, Cornell University
Press, 2003), pp. 211–2.
This debate echoes others that attempt to balance
equality and difference, and weigh the costs and
benefits of equality in law against equality in fact.
Should there be a special class of women’s rights?
Do such rights help to correct historical injustices
and promote equality? Or do they cement the idea
that men and women are different, and that women
are weaker and in need of extra help?
A Brief History of Women’s Rights in
International Law
The International Labour Organization (ILO)
was one of the first international organizations
to support special rights for women, adopting
Convention No. 3 on Maternity Protection and
Convention No. 4 on Night Work of Women
in 1919. These two treaties split international
women’s groups: although they were innovative
in introducing special protection for women at
the global level and sought to improve working
conditions by putting an end to long hours and
uncompensated maternity leave, they were also
uncomfortably paternalistic. Why, opponents asked,
should women be considered more vulnerable than
men to the rigours of night work?
Beginning in 1946, pressure from women’s groups
led to the formation of the Committee on the Status
of Women (CSW) within the UN system.12 Since its
establishment, the CSW has prepared numerous
recommendations on urgent problems in the field
of women’s rights, and has developed several
important declarations, proposals, and conventions
that protect and promote the human rights and
fundamental freedoms of women. Among these are:
• The Convention on the Political Rights of Women
(1952);13
• The Convention on the Nationality of Married
Women (1957);14
• The Convention on Consent to Marriage,
Minimum Age for Marriage and Registration of
Marriages (1962);15 and
12 For more on the Commission on the Status of
Women (CSW) in the context of the Economic and
Social Council (ECOSOC), see Lesson 4.
13 General Assembly Resolution 640 (VII).
14 General Assembly Resolution 1040 (XI).
15 General Assembly Resolution 1763 A (XVII).
HUMAN RIGHTS
• The Recommendation on Consent to Marriage,
Minimum Age for Marriage and Registration of
Marriages (1965).16
In an effort to consolidate these new standards, the
General Assembly asked the CSW to prepare a
draft Declaration on the Elimination of Discrimination
Against Women.17 The drafting process was plagued
by disagreement and entrenched cultural differences
on equality in marriage, the family, and employment.
Nevertheless, a non-binding Declaration was finally
completed, and was adopted by the UN General
Assembly in 1967.
As the decade progressed, however, it became
clear that this non-binding Declaration would be
insufficient for addressing women’s continued
subordination,18 and the CSW began the process
of drafting a binding convention in 1974. The
drafting process was given a boost when the
General Assembly designated 1975 as International
Women’s Year, and the accompanying World
Conference of the International Women’s Year in
Mexico City defined a World Plan of Action for the
Implementation of the Objectives of the International
Women’s Year that included a call for a convention
with effective implementation procedures.19
Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW)
The Convention on the Elimination of All Forms
of Discrimination Against Women (CEDAW) is
the premier international women’s rights treaty. It
was adopted by the UN General Assembly on 18
December 1979, by a vote of 130 to none, with 10
abstentions.20 Currently, 187 countries – over 90
per cent of the UN – are parties to CEDAW.21
16 General Assembly Resolution 2018 (XX).
17 A/Res/1921 (XVIII).
18 United Nations Blue Book Series, The
United Nations and the Advancement of
Women 1945–1996 (New York, United Nations
Publications, 1996), p. 30.
19 Ibid., p. 35.
20 The voting record of the UN GA can
be found at <http://unbisnet.un.org:8080/
ipac20/ipac.p?profile=voting& index=.
VM&term=ares34180>.
21 Numbers current as of October 2011. An
| 173
  Take a moment now to read through Under the principles of international law, states
CEDAW, attached as Annex A.
CEDAW expands on the list of women’s rights set
out in the international bill of human rights. It is
built around three related premises. First, CEDAW
requires the elimination of both de jure and de facto
discrimination, which it defines as:
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.22
Second, it authorizes affirmative action to reverse
historical patterns of discrimination. Third, it obliges
states to work towards the elimination of economic,
social, and cultural conditions that contribute to the
subordination of women, “to embody the principle
of equality of men and women in their national
constitutions or other appropriate legislation”,
and to adopt laws or other measures “including
sanctions where appropriate, prohibiting all
discrimination against women.”23
While CEDAW has been a milestone achievement
for women’s rights “on paper”, some argue that its
“goals – especially with respect to the protection of
women in the private sphere – have been foiled.”24
In significant part, CEDAW’s effectiveness has
been undermined because it “has the dubious
distinction of having the highest number of
reservations by the states party to it.”25
updated list of all state parties to CEDAW can
be found in the UN Treaty Collection website:
<http://treaties.un.org/Pages/ViewDetails.
aspx?src=TREATY&mtdsg_no=IV-8&cha
pter=4&lang=en>.
22 A/RES/34/180 (1979), Convention on the
Elimination of All Forms of Discrimination Against
Women, Art. 1.
23 Ibid., Art. 2.
24 Madhavi Sunder, “Piercing the Veil”, Yale Law
Journal, vol. 112 (2003), p. 1425.
25 Ibid.
174 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
can make reservations, or exceptions, to any
international treaty as long as these reservations do
not undermine the object and purpose (the primary
aim) of the agreement.26 Many states have taken
advantage of this rule, and have made reservations
to CEDAW seeking to preserve national laws and
religious or cultural traditions that would otherwise
be incompatible with the Convention. Despite
the prohibition of reservations that go against the
object and purpose of the treaty, some of these
reservations to CEDAW have been quite broad and
have the effect of diluting many of its protections.
Reservations to Articles 2 and 16, on state laws
and marriage and the family, have been particularly
pernicious. For example, a number of states have
indicated that they will only comply with CEDAW’s
rules eliminating discrimination against women –
particularly with respect to discrimination in laws on
marriage and the family – to the extent that these
do not conflict with the provisions of the Islamic
Shariah, or with current cultural practices.27 While
over the past several decades many states have
withdrawn their reservations to the treaty, a large
number still remain.
Religious and cultural reservations to CEDAW have
been particularly regressive. While some states
and the UN itself have challenged them as being
contrary to the object and purpose of the treaty,
activists have been “cowed into silence by charges
of religious intolerance and cultural imperialism”28
and “accusations that these were tantamount to
Western attacks on Islam and/or the Third World.”29
The problem of reservations thus raises the
recurring question of universalism versus cultural
relativism that we discussed in Lesson 1. Has the
26 For more on the effect of reservations, see box
“How a State Becomes Legally Bound” in Lesson 2.
27 A list of all reservations made by State
Parties to CEDAW can be found on the UN
Treaty Collection website: <http://treaties.un.org/
Pages/ViewDetails.aspx?src=TREATY&mtdsg_
no=IV-8&chapter=4&lang=en>.
28 Madhavi Sunder, “Piercing the Veil”, Yale Law
Journal, vol. 112 (2003), p. 1426.
29 Ann Elizabeth Mayer, “A ‘Benign’ Apartheid:
How Gender Apartheid Has Been Rationalized”,
UCLA Journal of International Law and Affairs, vol.
5 (2001), p. 271.
UN, as some scholars have argued, “acquiesced
to the cultural relativist position on human rights” in
failing to eliminate these reservations to CEDAW?30
Should states be forced to ignore their religious and
cultural traditions in the name of women’s rights?
Or is the choice “between religion and rights” a
false one, based on a simplistic view of religion and
culture that ignores reformist voices within these
communities?31
In addition to the problem of reservations, some
women’s rights activists have been critical of
CEDAW because it lacks a provision specifically
prohibiting domestic violence against women.
The CEDAW Committee has endeavoured
to address this issue by adopting a General
Recommendation on Violence Against Women,
which states that “Gender-based violence is a
form of discrimination which … impairs or nullifies
the enjoyment by women of human rights and
fundamental freedoms.”32 Violence against women
has also been gaining increased attention at the
UN. In 1993, the GA adopted a Declaration on
the Elimination of Violence Against Women; the
Fourth World Conference on Women in Beijing in
September 1995 declared that “violence against
women constitutes a violation of basic human
rights and is an obstacle to the achievement of the
objectives of equality, development and peace”;33
and an influential Secretary-General’s report on the
subject was released in 2006.34
CEDAW is overseen by the Committee on the
Elimination of Discrimination Against Women
(CEDAW Committee), which monitors and assists
states in implementing the treaty. The CEDAW
Committee is empowered to monitor the human
30 Ann Elizabeth Mayer, “Cultural Particularism
as a Bar to Women’s Rights: Reflections on the
Middle Eastern Experience”, WLUML Dossier 16
(November 1996), pp. 21–32.
31 Madhavi Sunder, p. 1412.
32 CEDAW Committee, General Recommendation
on Violence Against Women (1992).
33 A/CONF.177/20/Rev. 1, Report of the Fourth
World Conference on Women, Beijing, 4–15
September 1995.
34 A/61/122/Add.1 (2006), Report of the Secretary
General, “In-Depth Study on All Forms of Violence
Against Women.”
HUMAN RIGHTS
rights situation in member states, issue general
recommendations interpreting CEDAW, and
review state reports on “the legislative, judicial,
administrative or other measures they have adopted
to give effect to the provisions of the Convention.”35
Woman exercises her right to vote in parliamentary and presidential
elections in Erbil, in the Kurdistan region of Iraq.
(UN Photo #405133 by Rick Bajornas, July 2009)
In 2000, the CEDAW Committee’s powers expanded
with the entry into force of the Optional Protocol
to CEDAW.36 The Optional Protocol authorized
the CEDAW Committee to hear complaints from
individuals or groups who claim that a state
has violated their rights under the treaty. The
Committee hears complaints privately, and then
issues non-binding recommendations to the state
party against whom the complaint was made. If
necessary, the Committee can also request that
the state take urgent measures to prevent an
immediate and irreparable harm from being done
to the petitioner. After the state party receives the
recommendations of the Committee, it has six
months in which to consider the Committee’s views
and submit a reply detailing the measures it has
35 A/RES/34/180 (1979), Art. 18. For a detailed
discussion on the powers of treaty bodies like the
CEDAW Committee, see Lesson 4.
36 An updated list of all state parties
to the Optional Protocol to CEDAW can
be found in the UN Treaty Collection
website: <http://treaties.un.org/Pages/
ViewDetails.aspx?src=TREATY&mtdsg_
no=IV-8-b&chapter=4&lang=en>.
| 175
taken in response. If the CEDAW Committee is not
satisfied with the measures taken by the state, it
may request further information or additional reports,
or even undertake a confidential investigation of the
state if it has received reliable information regarding
grave or systematic violations of CEDAW.
CEDAW’s complaints mechanism has been
invoked less frequently than those of other treaties:
to date, the CEDAW Committee has heard only 18
cases, and dismissed six of these as inadmissible.37
By way of comparison, the Human Rights
Committee concluded 83 cases in 2010 alone.38
Women’s Rights at the Global Level
Over the past few decades, the global system
of women’s rights has continued to grow, and
there are now multiple specialized agencies,
programmes, and funds working together for the
protection and promotion of women’s human rights
and fundamental freedoms. In addition to the
CEDAW Committee and the CSW, which continues
its work as a commission under ECOSOC, there
is UN Women39 and the Inter-Agency Network on
Women and Gender Equality (IANWGE).40
The Human Rights Council (then Commission) has
also appointed a Special Rapporteur on Traditional
Practices affecting the Health of Women and the
Girl Child (through 2005); a Special Rapporteur
on Violence Against Women, its Causes and
Consequences; and a Special Rapporteur on
Trafficking in Persons.
A number of new protocols, conventions, and
declarations on women’s issues have also been
signed:
37 Current as of January 2012. For all
recommendations on individual complaints issued
so far, see the OHCHR’s CEDAW Committee
jurisprudence page at <http://www2.ohchr.org/
english/law/jurisprudence.htm>.
38 A/66/40 (Vol. I), Annual Report of the Human
Rights Committee (2011), p. 97.
39 More information on UN Women can be found
on their website: <www.unwomen.org>.
40 More information on IANWGE can be found
on their website: <http://www.un.org/womenwatch/
ianwge/>.
176 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
• Protocol to Prevent, Suppress and Punish
Trafficking in Persons, Especially Women and
Children, supplementing the United Nations
Convention against Transnational Organized
Crime (2000);41
• Declaration on the Elimination of Violence
Against Women (1994);42 and
• Declaration on the Protection of Women and
Children in Emergencies and Armed Conflicts
(1974).43
The ILO has also continued to be active in
concluding conventions for the protection of
women’s labour rights. These include conventions
on work by women in mines, equal pay, social
security, discrimination, and family responsibilities.
Moreover, the ILO has set up a Bureau for Gender
Equality; an International Programme on More and
Better Jobs for Women; and a Capacity-building
Programme on Gender, Poverty and Employment.
Another victory44 for advocates of special
protections for women’s international human rights
has been the increasing attention paid to violence
against women during wartime. Although rape
in war has long been illegal under international
humanitarian law, sexual atrocities were ignored
at the Nuremberg Tribunal and were raised only
in part at the Tokyo Trials.45 Women’s rights
41 A/Res/55/25 (2000, entry into force 2003).
42 A/Res/48/104 (1994).
43 A/9631 (1974).
44 For a more skeptical view of these
developments, see: Karen Engle, “Feminism and
Its (Dis)Contents: Criminalizing Wartime Rape in
Bosnia and Herzegovina”, American Journal of
International Law, vol. 99 (2005); Janet Halley et
al., “From the International to the Local in Feminist
Legal Responses to Rape, Prostitution/Sex Work
and Sex Trafficking: Four Studies in Contemporary
Governance Feminism”, Harvard Journal of Law
and Gender, vol. 29 (2006); Janet Halley, “Rape in
Berlin: Reconsidering the Criminalisation of Rape in
the International Law of Armed Conflict”, Melbourne
Journal of International Law, vol. 9 (2008).
45 Catharine A. MacKinnon, “Women’s September
11th: Rethinking the International Law of Conflict”,
Harvard International Law Journal, vol. 47 (2006),
p. 15.
activists successfully fought for the inclusion of
“rape, sexual slavery, enforced prostitution, forced
pregnancy, enforced sterilization, or any other
form of sexual violence of comparable gravity” as
crimes against humanity and war crimes under the
1998 Rome Statute establishing the International
Criminal Court,46 as well as under the Statutes of
the International Criminal Tribunals for Rwanda47
and Yugoslavia.48 As a result of this activism,
individuals who commit sexual violence during
wartime can now be held criminally responsible for
their acts under international criminal law.49
Gender Mainstreaming and the Beijing Platform
of Action
In recent years, concerns have arisen that
sequestering women’s issues into a separate
human rights regime – while it has promoted
awareness and provided a forum for advocacy,
monitoring, and enforcement – has also tended to
marginalize women’s concerns and experiences.
Women’s rights activists worry that governments
may conclude that it is not necessary to give
special attention to women when drafting
conventions because women are already “taken
care of” under CEDAW and other women’s rights
treaties. Instead of integration and equality, in
other words, in some instances the women’s rights
regime may have encouraged further segregation,
and pushed women out of other, supposedly
“universal” rights protection schemes. As Professor
Hilary Charlesworth describes it:
This dilemma pervades modern international
legal responses to the unequal position of
women: the attempt to improve women’s lives
through general laws can allow women’s
concerns to be submerged in what are deemed
more global issues; however the price of creating
46 A/CONF.183/9 (1998), Art. 7(1)(g) and Art. 8(2)
(b)(xxii).
47 Arts. 3(g) and 4(e).
48 Art. 5(g).
49 See Lessons 12 and 13 for additional
discussion of the International Criminal Court
(ICC), International Criminal Tribunal for Rwanda
(ICTR), International Criminal Tribunal for the
former Yugoslavia (ICTY), and the application of
international human rights law during wartime.
HUMAN RIGHTS
separate institutional mechanisms for women
has been the building of a ‘women’s ghetto’
with less power, resources, and priority than the
‘general’ human rights bodies.50
In order to combat this tendency toward
ghettoization, women’s groups began to advocate
gender mainstreaming. Gender mainstreaming
broadly refers to the process of bringing a gender
perspective into all policies and programmes at
their initial phases of development, so that women
and men are able to benefit equally:
Gender mainstreaming is the process of
assessing the implications for women and men
of any planned action, including legislation,
policies and programmes, in all areas and at all
levels, and as 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 social
spheres so that women and men benefit equally
and inequality is not perpetuated. The ultimate
goal is to achieve gender equality.51
In other words, “the idea behind gender
mainstreaming is that questions of gender must
be taken seriously in central, mainstream, ‘normal’
institutional activities and not simply left in a
marginalized, peripheral backwater of specialist
women’s institutions.”52
At the Fourth World Conference on Women
in Beijing in 1995, gender mainstreaming was
endorsed by the UN as a strategy for promoting
equality between men and women.53 Today, it
50 Hilary Charlesworth, “Not Waving but
Drowning: Gender Mainstreaming and Human
Rights in the United Nations”, Harvard Human
Rights Journal, vol. 18 (2005), p. 1.
51 ECOSOC 1997/2.
52 Hilary Charlesworth, p. 1.
53 A/CONF.177/20/Rev. 1 (1995), Report of the
Fourth World Conference on Women, Beijing, 4-15
September 1995, calling for “mainstreaming a
gender perspective … so that, before decisions are
taken, an analysis is made of the effects on women
and men, respectively.”
| 177
 is a part of all human rights policies at the UN.
Even the Security Council has begun to adopt a
gender perspective: In 2000, it adopted resolution
1325, which calls for, among other things,
increased participation by women in all aspects
of decision-making, monitoring, and conflict
resolution.54
Three young girls in the Bam Sarai village in Bamyan province prepare
for exams as part of an effort in which UNICEF and the Government of
Afghanistan aim to increase girls’ primary school attendance by
20 per cent by the end of 2008.
(UN Photo #167255 by Shehzad Noorani, November 2007)
Observers have been somewhat ambivalent about
the results of gender mainstreaming. Dr. Dianne
Otto, Director of the International Human Rights
Law Program of the Institute for International Law
and the Humanities, for example, celebrates the
fact that “feminist ideas have spread throughout
the UN system in the last decade, in the wake
of official commitments to system-wide gender
mainstreaming,” but laments that much of the
“emancipatory content” of feminist ideas has been
diluted in the process: “Stripped of its political
content, the gender mainstreaming project is a
long way from fundamentally changing women’s
inequality, let alone the gendered assumptions
that underpin the discipline of international law.”55
Similarly, Hilary Charlesworth, Director of the
Centre for International Governance and Justice
54 S/Res/1325 (21 October 2000).
55 Dianne Otto, “The Exile of Inclusion:
Reflections on Gender Issues in International Law
Over the Last Decade”, Melbourne Journal of
International Law, vol. 10 (2009).
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at the Australian National University, worries
that “the strategy of gender mainstreaming has
deployed the idea of gender in a very limited
way”, “has allowed the mainstream to tame and
deradicalize claims to equality”, and “has made
issues of inequality between women and men
harder to identify and to deal with.”56 She notes
that “almost a decade of gender mainstreaming
has revealed its limited impact,” and cautions that
true mainstreaming requires “more than allowing
women into international institutions; it must require
transforming the structures and assumptions of the
international order.”57
Women’s Rights at the Regional Level
All of the major regional human rights systems also
include special protections for the human rights
of women and girls. The regional women’s rights
systems echo the primary guarantees provided to
women at the global level, but each also adds its
own twist on the global system. This combination
of fidelity to a universal ideal and the freedom to
interpret and expand women’s rights in the regional
context has provided an opportunity to bridge
the “universalism/cultural relativism” divide. As
Stanford Law Professor Helen Stacy writes:
Regional human rights courts, commissions
and tribunals can play an important role in
interpreting the tension between universal
standards and cultural or group identity. They
can provide a moderated universalism and
moderated localism. Regional bodies can act
as a clearinghouse between the assumptions of
female homogeneity that underlie CEDAW, and
claims to cultural difference. Regional forums
can listen to both the universal claim of women’s
autonomy, and the local claim of group identity
and loyalty to local practice. Regional human
rights institutions are a vital part of developing
a women’s jurisprudence of human rights in a
globalized world.58
56 Hilary Charlesworth, p. 3.
57 Ibid., pp. 11 and 18.
58 Helen Stacy, “Equality and Difference: Regional
Courts and Women’s Human Rights”, Stanford
Public Law and Legal Theory Working Paper
Series (2004).
 Women’s Rights Are Human Rights

“I believe that, on the eve of a new millennium, it is time to break our silence. It is time for us to say here in Beijing,
and the world to hear, that it is no longer acceptable to discuss women’s rights as separate from human rights …

“It is a violation of human rights when babies are denied food, or drowned, or suffocated, or their spines broken,
simply because they are girls.

“It is a violation of human rights when women are doused with gasoline, set on fire and burned to death because
their marriage dowries are deemed too small.

“It is a violation of human rights when individual women are raped in their own communities and when thousands
of women are subjected to rape as a tactic or prize of war.

“It is a violation of human rights when a leading cause of death worldwide among women ages 14 to 44 is the
violence they are subjected to in their own homes.

“It is a violation of human rights when young girls are brutalized by the painful and degrading practice of genital
mutilation.

“It is a violation of human rights when women are denied the right to plan their own families, and that includes
being forced to have abortions or being sterilized against their will.

“If there is one message that echoes forth from this conference, it is that human rights are women’s rights …
And women’s rights are human rights.”

Hilllary Rodham Clinton

from “Statement at the United Nations Fourth World Conferenceon Women”
Beijing, China (5 September 1995)

Regional instruments for the protection of women’s
rights can provide increased legitimacy because
they are less likely to be seen as distant interlopers
than global bodies. They may be better placed to
resolve tensions between national and international
standards because they can better understand
cultural practices that are shared across the region.
In addition, regional systems may be able to attain
consensus on issues that remain divisive at the global
level. Regional initiatives can also be more targeted
than global bodies, focusing increased attention on
the specific harms that most affect their regions.59
In Europe, the ECHR does not explicitly mention
women’s rights, but does prohibit any distinction
based on grounds of sex, and Protocol No. 7
added the principle of equality between spouses
to the Convention. The European Social Charter
59 Ibid.
sets out a number of specific protections for
women, including equal pay, protection of mothers,
protection of working women, and social and
economic protection for women and children. The
1988 Additional Protocol to the European Social
Charter also includes the right to equal employment
treatment and opportunities. The European Court
of Human Rights has been active in promoting
women’s rights, hearing cases on topics ranging
from discrimination under social security schemes60
to immigration law,61 and the European Court of
Justice has also contributed to advancing the
cause of women’s rights.
60 Wessels Bergervoet v. The Netherlands, App.
34462/97, European Court of Human Rights (2002).
61 Jabari v. Turkey, No. 40035/98, European Court
of Human Rights (2000); Abdulaziz, Cabales and
Balkandali v. United Kingdom, 94 European Court
of Human Rights (ser. A) (1985).

HUMAN RIGHTS | 179

Writing Exercise 8: Water for Women
You are working for a small NGO called Water
For All (WFA) that focuses on advocating for
the right to water. The head of your organization
has decided to institute a new policy of gender
mainstreaming throughout all of WFA’s activities.
To that end, she has appointed you as the new
Special Adviser on Gender Mainstreaming. Your
job is to advise WFA and its employees about
how to mainstream gender in their work.
Consider the following questions and write a
brief report (maximum one page).
• What might it mean to mainstream
gender in this context?
• What kinds of policies would you
establish to help WFA implement its
gender mainstreaming initiative?
• How will gender mainstreaming change
the way the organization is run? How
will it affect the advocacy work of WFA’s
employees?
In Africa, the African Charter on Human and
Peoples’ Rights includes nondiscrimination
provisions and specifies that women, along with
children, have the right to “special measures of
protection.”62 The African Charter on the Rights and
Welfare of the Child includes important rights for
girls, including the prohibition of children marrying
under the age of 18.63 Africa’s primary treaty
relating to women’s rights is the 2003 Protocol to
the African Charter on Human and Peoples’ Rights
on the Rights of Women in Africa. As Frans Viljoen
describes:
As a supplement to the African Charter, the
Protocol Primarily brings into the open the
Charter’s shrouded premise that women are
included in its protective scope. Compared to
CEDAW, the Protocol speaks in a clearer voice
about issues of particular concern to African
62 African Charter on Human and Peoples’ Rights,
Arts. 2, 5, and 18.
63 African Charter on the Rights and Welfare of
the Child, Art. 21.
180 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
women, locates CEDAW in African reality, and
returns some casualties of quests for global
consensus into its fold.64
In some respects, the Protocol goes further in
its protection against harmful practices than
do the equivalent treaties in Europe and the
Americas or the regional instruments. Article 5,
for example, provides that states should adopt
criminal legislation in order to combat the practice
of female genital mutilation.65 It is the first treaty
to place medical abortion, HIV/AIDS, polygamy,
and domestic violence in a binding human rights
instrument. It provides additional specificity
with respect to concepts such as the protection
of women in armed conflict, harmful practices,
violence against women, and discrimination.66 It
contains special protections for rural women, and,
importantly, it includes within its purview violations
in the private sphere, such as domestic violence.67
In the Inter-American system, both the American
Declaration on the Rights and Duties of Man and
the American Convention on Human Rights prohibit
discrimination on the basis of sex and provide
additional protections in the area of family life,
trafficking, and marriage.68 Early treaties including
the Inter-American Convention on the Nationality of
Women (1933), the Inter-American Convention on
the Granting of Political Rights to Women (1948),
and the Inter-American Convention on the Granting
of Civil Rights to Women (1948), all directly address
women’s human rights issues. Most recently, the
Organization of American States has adopted the
Inter-American Convention on the Prevention,
Punishment and Eradication of Violence Against
Women (Convention of Belem do Para) (1995).
64 Frans Viljoen, International Human Rights Law
in Africa (Oxford, Oxford University Press, 2007),
p. 271.
65 Protocol to the African Charter on Human and
Peoples’ Rights on the Rights of Women in Africa,
Art. 5.
66 Ibid.
67 Protocol to the African Charter on Human and
Peoples’ Rights on the Rights of Women in Africa,
Art. 4.
68 American Declaration on the Rights and Duties
of Man, Arts. 5, 7, 9, and 30; American Convention
on Human Rights, Arts. 6, 11, 17, and 24.
The Convention of Belem do Para is particularly
significant because, like the African Protocol on
Women’s Rights, it addresses a woman’s right to
be free from violence in both the public and private
sphere.69 It is also more specific about the content
of rights than some global instruments, setting out
clear instructions for states on how they should
implement the Convention.
Conclusion
In this lesson we have introduced the concept
of vulnerable groups, discussed some of the
theoretical difficulties associated with their
protection, and taken a look at one such regime:
the global and regional systems for the special
protection of women’s human rights. In Lessons
9 and 10, we will continue our examination of
vulnerable groups and the systems designed to
protect them.
69 Inter-American Convention on the Prevention,
Punishment, and Eradication of Violence Against
Women, Art. 3.
HUMAN RIGHTS
Further Reading
Hilary Charlesworth, “Not Waving but Drowning:
Gender Mainstreaming and Human Rights in the
United Nations”, Harvard Human Rights Journal,
vol. 18 (2005); Rebecca J. Cook, ed. Human Rights
of Women: National and International Perspectives
(1994); Barbara J. Stark, “Women’s Rights”, in
Encyclopedia of Human Rights, David P. Forsythe,
ed. (2009); Madhavi Sunder, “Piercing the Veil”,
Yale Law Journal, vol. 112 (2003); Julie Peters and
Andrea Wolper, eds., Women’s Rights, Human
Rights: International Feminist Perspectives (1995).
Websites for Further Information
UN Committee on the Status of Women (CSW):
www.un.org/womenwatch/daw/csw/
CEDAW Committee: www2.ohchr.org/english/
bodies/cedaw/index.htm
University of Toronto Women’s Human Rights
Resources Database: www.law-lib.utoronto.ca/
diana/whrr/index.cfm?sister=utl&CFID=11926
7&CFTOKEN=48665950
| 181
Annex A: Convention on the Elimination of All Forms
of Discrimination Against Women

Convention on the Elimination of All Forms of Discrimination Against Women

(Substantive Provisions)

PREAMBLE

The States Parties to the present Covenant,

Noting that the Charter of the United Nations reaffirms faith in fundamental human rights, in the dignity and
worth of the human person and in the equal rights of men and women,

Noting that the Universal Declaration of Human Rights affirms the principle of the inadmissibility of
discrimination and 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 forth therein, without distinction of any kind, including
distinction based on sex,

Noting that the States Parties to the International Covenants on Human Rights have the obligation to
ensure the equal rights of men and women to enjoy all economic, social, cultural, civil and political rights,

Considering the international conventions concluded under the auspices of the United Nations and the
specialized agencies promoting equality of rights of men and women,

Noting also the resolutions, declarations and recommendations adopted by the United Nations and the
specialized agencies promoting equality of rights of men and women,

Concerned, however, that despite these various instruments extensive discrimination against women
continues to exist,

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,

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,

Emphasizing that the eradication of apartheid, all forms of racism, racial discrimination, colonialism, neo-
colonialism, aggression, foreign occupation and domination and interference in the internal affairs of
States is essential to the full enjoyment of the rights of men and women,

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Affirming that the strengthening of international peace and security, the relaxation of international tension,
mutual co-operation among all States irrespective of their social and economic systems, general and
complete disarmament, in particular nuclear disarmament under strict and effective international control,
the affirmation of the principles of justice, equality and mutual benefit in relations among countries and
the realization of the right of peoples under alien and colonial domination and foreign occupation to self-
determination and independence, as well as respect for national sovereignty and territorial integrity, will
promote social progress and development and as a consequence will contribute to the attainment of full
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,

Determined to implement the principles set forth in the Declaration on the Elimination of Discrimination
against Women and, for that purpose, to adopt the measures required for the elimination of such
discrimination in all its forms and manifestations,

Have agreed on the following:

PART I

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

HUMAN RIGHTS | 183

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;

(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 en sure 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;

184 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
 (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.

Article 6

States Parties shall take all appropriate measures, including legislation, to suppress all forms of traffic in
women and exploitation of prostitution of women.

PART II

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.

Article 9

1. States Parties shall grant women equal rights with men to acquire, change or retain their nationality.
They shall ensure in particular that neither marriage to an alien nor change of nationality by the husband
during marriage shall automatically change the nationality of the wife, render her stateless or force upon
her the nationality of the husband.

2. States Parties shall grant women equal rights with men with respect to the nationality of their children.

HUMAN RIGHTS | 185

PART III

Article 10

States Parties shall take all appropriate measures to eliminate discrimination against women in order to
ensure to them equal rights with men in the field of education and in particular to ensure, on a basis of
equality of men and women:

(a) The same conditions for career and vocational guidance, for access to studies and for the
achievement of diplomas in educational establishments of all categories in rural as well as in urban
areas; this equality shall be ensured in pre-school, general, technical, professional and higher
technical education, as well as in all types of vocational training;

(b) Access to the same curricula, the same examinations, teaching staff with qualifications of the same
standard and school premises and equipment of the same quality;

(c) The elimination of any stereotyped concept of the roles of men and women at all levels and in
all forms of education by encouraging coeducation and other types of education which will help to
achieve this aim and, in particular, by the revision of textbooks and school programmes and the
adaptation of teaching methods;

(d ) The same opportunities to benefit from scholarships and other study grants;

(e) The same opportunities for access to programmes of continuing education, including adult and
functional literacy programmes, particularly those aimed at reducing, at the earliest possible time, any
gap in education existing between men and women;

(f) The reduction of female student drop-out rates and the organization of programmes for girls and
women who have left school prematurely;

(g) The same Opportunities to participate actively in sports and physical education;

(h) Access to specific educational information to help to ensure the health and well-being of families,
including information and advice on family planning.

Article 11

1. States Parties shall take all appropriate measures to eliminate discrimination against women in the field
of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular:

(a) The right to work as an inalienable right of all human beings;

(b) The right to the same employment opportunities, including the application of the same criteria for
selection in matters of employment;

(c) The right to free choice of profession and employment, the right to promotion, job security and all
benefits and conditions of service and the right to receive vocational training and retraining, including

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 apprenticeships, advanced vocational training and recurrent training;

(d) The right to equal remuneration, including benefits, and to equal treatment in respect of work of
equal value, as well as equality of treatment in the evaluation of the quality of work;

(e) The right to social security, particularly in cases of retirement, unemployment, sickness, invalidity
and old age and other incapacity to work, as well as the right to paid leave;

(f) The right to protection of health and to safety in working conditions, including the safeguarding of
the function of reproduction.

2. In order to prevent discrimination against women on the grounds of marriage or maternity and to ensure
their effective right to work, States Parties shall take appropriate measures:

(a) To prohibit, subject to the imposition of sanctions, dismissal on the grounds of pregnancy or of
maternity leave and discrimination in dismissals on the basis of marital status;

(b) To introduce maternity leave with pay or with comparable social benefits without loss of former
employment, seniority or social allowances;

(c) To encourage the provision of the necessary supporting social services to enable parents to
combine family obligations with work responsibilities and participation in public life, in particular
through promoting the establishment and development of a network of child-care facilities;

(d) To provide special protection to women during pregnancy in types of work proved to be harmful to
them.

3. Protective legislation relating to matters covered in this article shall be reviewed periodically in the light
of scientific and technological knowledge and shall be revised, repealed or extended as necessary.

Article 12

1. States Parties shall take all appropriate measures to eliminate discrimination against women in the
field of health care in order to ensure, on a basis of equality of men and women, access to health care
services, including those related to family planning.

2. Notwithstanding the provisions of paragraph I of this article, States Parties shall ensure to women
appropriate services in connection with pregnancy, confinement and the post-natal period, granting free
services where necessary, as well as adequate nutrition during pregnancy and lactation.

Article 13

States Parties shall take all appropriate measures to eliminate discrimination against women in other
areas of economic and social life in order to ensure, on a basis of equality of men and women, the same
rights, in particular:

HUMAN RIGHTS | 187

 (a) The right to family benefits;

(b) The right to bank loans, mortgages and other forms of financial credit;

(c) The right to participate in recreational activities, sports and all aspects of cultural life.

Article 14

1. States Parties shall take into account the particular problems faced by rural women and the significant
roles which rural women play in the economic survival of their families, including their work in the non-
monetized sectors of the economy, and shall take all appropriate measures to ensure the application of
the provisions of the present Convention to women in rural areas.

2. States Parties shall take all appropriate measures to eliminate discrimination against women in rural
areas in order to ensure, on a basis of equality of men and women, that they participate in and benefit
from rural development and, in particular, shall ensure to such women the right:

(a) To participate in the elaboration and implementation of development planning at all levels;

(b) To have access to adequate health care facilities, including information, counselling and services in
family planning;

(c) To benefit directly from social security programmes;

(d) To obtain all types of training and education, formal and non-formal, including that relating to
functional literacy, as well as, inter alia, the benefit of all community and extension services, in order to
increase their technical proficiency;

(e) To organize self-help groups and co-operatives in order to obtain equal access to economic
opportunities through employment or self employment;

(f) To participate in all community activities;

(g) To have access to agricultural credit and loans, marketing facilities, appropriate technology and
equal treatment in land and agrarian reform as well as in land resettlement schemes;

(h) To enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and
water supply, transport and communications.

PART IV

Article 15

1. States Parties shall accord to women equality with men before the law.

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2. States Parties shall accord to women, in civil matters, a legal capacity identical to that of men and the
same opportunities to exercise that capacity. In particular, they shall give women equal rights to conclude
contracts and to administer property and shall treat them equally in all stages of procedure in courts and
tribunals.

3. States Parties agree that all contracts and all other private instruments of any kind with a legal effect
which is directed at restricting the legal capacity of women shall be deemed null and void.

4. States Parties shall accord to men and women the same rights with regard to the law relating to the
movement of persons and the freedom to choose their residence and domicile.

Article 16

1. States Parties shall take all appropriate measures to eliminate discrimination against women in all
matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of
men and women:

(a) The same right to enter into marriage;

(b) The same right freely to choose a spouse and to enter into marriage only with their free and full
consent;

(c) The same rights and responsibilities during marriage and at its dissolution;

(d) The same rights and responsibilities as parents, irrespective of their marital status, in matters
relating to their children; in all cases the interests of the children shall be paramount;

(e) The same rights to decide freely and responsibly on the number and spacing of their children and
to have access to the information, education and means to enable them to exercise these rights;

(f) The same rights and responsibilities with regard to guardianship, wardship, trusteeship and
adoption of children, or similar institutions where these concepts exist in national legislation; in all
cases the interests of the children shall be paramount;

(g) The same personal rights as husband and wife, including the right to choose a family name, a
profession and an occupation;

(h) The same rights for both spouses in respect of the ownership, acquisition, management,
administration, enjoyment and disposition of property, whether free of charge or for a valuable
consideration.

2. The betrothal and the marriage of a child shall have no legal effect, and all necessary action, including
legislation, shall be taken to specify a minimum age for marriage and to make the registration of marriages
in an official registry compulsory.

…
G.A. Res. 2200A (XXI), U.N. Doc A/6316 (1966)

HUMAN RIGHTS | 189

End-of-Lesson Quiz
1. Which of the following is NOT considered
a vulnerable group for the purposes of
providing special human rights protections?
A. Women;
B. Children;
C. Indigenous Peoples;
D. Democracies.
2. A 12-year-old girl is protected by:
A. The international bill of human rights only;
B. The international bill of human rights and the
children’s conventions;
C. The international bill of human rights, the
children’s conventions, and CEDAW;
D. The CEDAW only.
3. The Committee on the Status of Women
(CSW) is:
A. A UN body under ECOSOC that has been
instrumental in the development of women’s
rights treaties;
B. The treaty body that oversees the
implementation of the Convention on the
Elimination of All Forms of Discrimination
Against Women (CEDAW);
C. An NGO that lobbies for the advancement of
women;
D. A regional body set up to provide expert advice
on the status of women in the region.
190 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
4. Which of the following is NOT a goal of
the Convention on the Elimination of All
Forms of Discrimination Against Women
(CEDAW)?
A. The elimination of both de jure and de facto
discrimination;
B. Providing special assistance to women so that
they will become superior to men;
C. Authorizing affirmative action to reverse
historical patterns of discrimination;
D. Obliging states to work toward the elimination
of economic, social, and cultural conditions that
contribute to the subordination of women.
5. Which of the following best describes the
problem that state reservations have posed
for CEDAW?
A. No states have made reservations to the treaty,
which means that it will not enter into force;
B. A large number of states have made
reservations to the treaty, but it is not a
problem because the reservations are minor;
C. A large number of states have made
reservations to the treaty, which means that
states do not think that CEDAW goes far
enough in protecting women;
D. A large number of states have made
reservations to the treaty, and these
reservations undermine some of CEDAWs
crucial protections.
For questions 6–10, match the term with its definition:

A. An equality that treats some

people differently, depending on
6. Formal Equality
the relevant social, historical, or
cultural context.

B. Physical and biological differences

7. Substantive Equality
between women and men.

C. The process of bringing a gender

8. Sex perspective into the development of
all policies and programmes.

D. An equality that treats everyone

9. Gender exactly the same, regardless of
their circumstances.

E. The socially constructed roles

10. Gender Mainstreaming
assigned to women and men.

ANSWER KEY
1D, 2C, 3A, 4B, 5D, 6D, 7A, 8B, 9E, 10C

HUMAN RIGHTS | 191

LESSON 9
HUMAN RIGHTS OF VULNERABLE
PERSONS AND GROUPS II:
CHILDREN’S RIGHTS AND THE RIGHTS
OF PERSONS WITH DISABILITIES
 LESSON
9

LESSON OBJECTIVES

9.1 Introduction By the end of Lesson 9, the student should be able to meet the
following objectives:
9.2 Children’s Rights
9.3 The Rights of Persons • Understand the international system for protecting children’s rights;
with Disabilities
• Understand the international system for protecting the rights of
Annex A disabled persons;
Convention on the • Identify some theoretical issues with respect to the application of
Rights of Persons with these special rights regimes; and
Disabilities (CRPD) • Describe the additional protection for children and persons with
disabilities provided by the regional systems.

To view a video introduction of this lesson by the

course author Jessica C. Lawrence, you can
either log in to your virtual classroom, go to www.
peaceopstraining.org/users/media_page/382/
lesson-9, or use your mobile device to scan the
QR code to the left.
9.1 Introduction
In Lesson 8, we introduced the concept of
vulnerable groups and discussed one group that
receives additional protection at the global and
regional levels: women. In this lesson, we will
examine the special regimes that protect two more
vulnerable groups: children and disabled persons.
As you read through this lesson, keep in mind
the discussion of theoretical perspectives from
Lesson 8. The issues of reinforcing difference,
equality in law versus equality in fact, collective
rights, and the limitations of groups apply to both
of the groups that we will discuss in this lesson
as well. Additionally, try to compare each of the
special protection regimes described below with
the regime for the protection of women’s rights that
we discussed in Lesson 8. How do the systems
for the protection of children’s rights and the
rights of disabled persons resemble the system
for the protection of women’s rights? How do they
differ? What might explain the differences that you
observe?
9.2 Children’s Rights
Children as a Vulnerable Group
“Children” are defined in international law as “every
human being below the age of eighteen unless
under the law applicable to the child, majority
is attained earlier.”1 Children are considered a
vulnerable group and afforded special protection
under international law because, as stated in the
Declaration on the Rights of the Child and the
Convention on the Rights of the Child (CRC),
“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.”2 When young, children must
rely on others to provide them with food, shelter,
and clothing. Because they have no right to
vote, children must rely on adults to protect their
political and legal interests. Additionally, children’s
dependency on adults makes them especially
vulnerable to abuse and exploitation.
1 Convention on the Rights of the Child (20
November 1989), Art. 1.
2 CRC, Preamble; Declaration on the Rights of
the Child, resolution 1386 (1959), Preamble.
HUMAN RIGHTS
The CRC is the most universally accepted of all
human rights treaties under international law. But
this does not mean it is wholly uncontroversial.
To begin with, the ambiguous legal position of
children has caused disagreements among people
with different ideas about children’s autonomy
and dependency. Under international human
rights law, children are given extra protections in
some areas (education, labour, armed conflict,
sexual exploitation), and denied protection
in others (political participation, autonomous
decision-making). These distinctions are justified
on the basis of their immaturity and inability to act
rationally. However, if children really lack rationality
and autonomy in this sense, can they be holders
of rights at all? The CRC attempts a balancing
act, weighing children’s dependency against
their capacity for autonomy, their integration into
families and communities against their individuality.
However, not everyone agrees that it has been
successful in achieving a proper balance.
Some observers believe that the line has been
drawn too far toward the “autonomy” end of the
spectrum. They argue that assigning rights to
children corrodes parental rights and authority, and
is thus destructive of traditional family values.3
Others believe that the balance has been tipped
too far in the direction of “dependency”, and have
argued from a radical egalitarian perspective that
assigning children fewer rights than adults amounts
to oppression and age discrimination.4
Another point of contention is the CRC’s definition
of “children.” According to the Convention, a
“child” is anyone that falls below a temporal
age-based cut-off. Under this formulation, there
is no difference between a four-year-old and a
17-year-old, despite the fact that a 17-year-old
may consider herself an adult, and has far more
capacity for autonomy and rational decision-making
than a four-year-old. Advocates for a more nuanced
position propose a graduated approach taking
3 See: Christian Coalition, A Contract with the
American Family, Ralph Reed, ed. (New York,
Random House, 1994).
4 See: John Holt, Escape from Childhood (New
York, E. P. Dutton, 1973).
| 195
into account children’s differentiated capacities.
But others claim that this would be too difficult to
enforce, and disagreement among nations would
be too substantial.
Finally, a number of observers have made the
cultural relativist point that the CRC and other
global protection schemes rely exclusively on
Western notions of children and childhood, and do
not take into account practices in different cultures:
[The special protection system for children] has
been developed within a framework based on
middle-class Western ideals about childhood
as a time of dependency and innocence during
which children are socialized by adults and
become competent social actors. Economic and
social responsibilities are generally mediated
by adults so that the children can grow up
free from pressures of responsibilities such
as work and child care. Children who are not
raised in this way are considered “victims” who
have had their childhood stolen from them.
This framework views universal concern for
children as transcending political and social
divides; assumes a universally applicable model
of childhood development; presupposes a
consensus on what policies should be in place
to realize the best interest of the child; assumes
that child victims have universal needs (such
as a need for rehabilitation); and promotes a
therapeutic model of service provision.5
As you read through the following sections detailing
the children’s rights regime, keep in mind these
tensions between autonomy and dependency,
between universalism and cultural relativism. How
has the human rights system navigated these
debates? Has it been successful in doing so?
A Brief History of Children’s Rights in
International Law
The protection of children’s rights under
international law dates back to 1924, when the
League of Nations adopted the Geneva Declaration
on the Rights of the Child. This declaration
5 Elzbieta M. Gozdziak, “On Challenges,
Dilemmas, and Opportunities in Studying Trafficked
Children”, Anthropological Quarterly, vol. 81 (2008).
196 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
contained five basic principles granting special
protection to children, including:
• The right to development;
• The right to food and shelter;
• The right to relief in times of distress;
• The right to adequate preparation for earning a
livelihood; and
• The right to be “brought up in the consciousness
that its talents must be devoted to the service of
fellow men.”6
After the formation of the United Nations, the
General Assembly adopted a retooled Declaration
on the Rights of the Child in 1959. The United
Nations Children’s Fund (UNICEF), a UN
specialized agency, was established in 1946 to
provide European children with food, clothing, and
health care in the aftermath of World War II. From
these roots, UNICEF quickly expanded to become
a primary advocate of children’s rights at the
global level.
The treaties that make up the international bill of
human rights mention children in several different
contexts. The Universal Declaration of Human
Rights (UDHR) proclaims that childhood (along
with motherhood) is “entitled to special care and
assistance” and assures that “all children, whether
born in or out of wedlock, shall enjoy the same
social protection.”7 The International Covenant on
Civil and Political Rights (ICCPR) gives special
protection to children in the event of the dissolution
of the family,8 and declares that: “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”
including the right to a name, legal registration,
and a nationality.9 The International Covenant on
Economic, Social and Cultural Rights (ICESCR)
also makes special mention of children:
6 Geneva Declaration on the Rights of the Child
(1924), Principle 5.
7 Universal Declaration of Human Rights (1948),
Art. 25.
8 International Covenant on Civil and Political
Rights (1966), Art. 23.
9 ICCPR, Art. 24.
 Special measures of protection and assistance
should be taken on behalf of all children and
young persons without any discrimination
for reasons of parentage or other conditions.
Children and young persons should be protected
from economic and social exploitation. Their
employment in work harmful to their morals or
health or dangerous to life or likely to hamper
their normal development should be punishable
by law. States should also set age limits below
which the paid employment of child labour
should be prohibited and punishable by law.10
The UN General Assembly declared 1979 the
International Year of the Child. In recognition of
this event, the GA pressed the Commission on
Human Rights to begin drafting a new convention
that would put the rights of children into a separate
instrument. Though a Working Group on the issue
was immediately formed, it would be 10 years
before the resulting treaty was ready to be voted on
in the General Assembly.
Convention on the Rights of the Child (CRC)
The UN Convention on the Rights of the Child
(CRC) sets out all of the protected rights of children
in a single legally binding document. Unlike
other human rights treaties, the CRC specifically
addresses children and protects them as separate,
autonomous beings. It reformulates many civil and
political and economic, social, and cultural rights in
terms that focus on the special needs of children.
For example, the CRC explains that a child’s right
to health includes measures to diminish infant
mortality, the provision of prenatal and post-natal
care for mothers, access to education, and
access to knowledge of child health and nutrition,
breastfeeding, and hygiene.11
The CRC was adopted by the General Assembly
on 20 November 1989 and entered into force on
2 September 1990. Today, the Convention on the
Rights of the Child is one of the most widely ratified
treaties in the international system. Currently, 193
countries have ratified the CRC, representing every
member of the United Nations with the exception of
10 International Covenant on Economic, Social
and Cultural Rights (1966), Art. 10.
11 CRC, Art. 24.
HUMAN RIGHTS
Somalia and the United States of America.12
Under the Convention, children are entitled to an
extensive set of civil, political, economic, social,
and cultural rights. These rights have been
elaborated on the basis of four core “general
principles” (as identified by the Committee on the
Rights of the Child), which inform and structure all
of the other protections granted by the CRC:
• The principle of non-discrimination;
• Devotion to the best interests of the child;
• The right to life, survival, and development; and
• Respect for the views of the child.13
The multitude of protections afforded to children by
the treaty fall into four general categories of rights:
• Survival rights: including the right to adequate
living standards, and access to health services;
• Developmental rights: including the right to
an education, access to information, recreation,
cultural activities, and freedom of thought,
conscience, and religion;
• Protection rights: including the right to
protection against economic exploitation, sexual
exploitation, cruelty, arbitrary separation of
children from families, and abuses in the justice
system; and
• Participation rights: including the child’s right
to be involved in decisions on critical issues.
Additional protection and support is granted to
children who have been separated from their
parents, have been victims of abuse or exploitation,
are refugees, or have any kind of disability.14
The CRC created a treaty body – the Committee
on the Rights of the Child (CRC Committee) – to
oversee the implementation of the Convention. Like
CEDAW, the Convention on the Rights of the Child
12 Current as of October 2011. An updated list of
all state parties to the CRC can be found in the UN
Treaty Collection website: <http://treaties.un.org/
Pages/ViewDetails.aspx?src=TREATY&mtdsg_
no=IV-11&chapter= 4&lang=en>.
13 CRC, Arts. 2, 3, 6, and 12.
14 CRC, Arts. 20, 22, 23, and 30.
| 197
requires Member States to submit periodic reports
on measures they have taken to implement the
Convention. The primary duties of the Committee
are to review and comment on the periodic reports
submitted by Member States and to monitor state
compliance with the CRC. The CRC Committee
also interprets the Convention by issuing General
Comments.
Unlike the CEDAW Committee, the CRC
Committee has no power to receive individual or
inter-state complaints. However, because a number
of the children’s rights contained in the CRC are
also contained in the ICCPR and other international
human rights treaties, some children have been
able to bring their complaints before the Human
Rights Committee or another international human
rights body.
In 2000, the UN General Assembly adopted two
Optional Protocols to the Convention. The first
concerns the recruitment and involvement of
children in armed conflicts. Signatories to the
Optional Protocol on Children in Armed Conflict
agree to take all feasible measures to ensure
that persons under the age of 18 are not forced
to serve in the armed forces, and also to ensure
that any persons under age 18 who are a part of
the military do not directly take part in hostilities.
Interestingly, this Optional Protocol is one of the
few that directly addresses non-state actors: Article
4 unconditionally prohibits armed groups that are
not a part of the armed forces of the state from
recruiting or using persons under the age of 18
in hostilities.15 As of 2011, 143 of the CRC’s 193
signatories have ratified the Optional Protocol on
Children in Armed Conflict.16
The second is the Optional Protocol on the Sale of
Children, Child Prostitution and Child Pornography.
Under the second Optional Protocol, State
Parties must ensure that the sale of children, child
15 For more on the application of international law
to non-state actors, see the discussion in Lesson 14.
16 Current as of October 2011. An updated list
of all state parties to the Optional Protocol on
Children in Armed Conflict can be found in the UN
Treaty Collection website: <http://treaties.un.org/
Pages/ViewDetails.aspx?src= TREATY&mtdsg_
no=IV-11-b&chapter=4&lang=en>.
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prostitution, and child pornography are criminalized
both within and outside of their territories. It also
requires states to either prosecute or extradite
any offenders found within their borders, and
establishes extensive enforcement jurisdiction,
allowing State Parties to prosecute persons who
violate these laws whenever the offense was
committed in the state’s territory, by a national of
the state, or against a victim who is a national of
the state.17 The Optional Protocol also requires
the confiscation of materials and assets that were
involved in crimes against children and allows
for protective measures to be taken on behalf of
victims. As of 2011, 150 parties have ratified this
Optional Protocol.18
Children’s Rights at the Global Level
The United Nations Children’s Fund (UNICEF)
remains one of the key global organizations
concerned with children’s rights. Its mission has
expanded considerably since its early days in the
1940s, and it is now tasked with improving the
lives of children across the globe. Among its many
projects, UNICEF does advocacy work, provides
technical support and assistance to national
governments, and is one of the world’s foremost
vaccine suppliers.
Several other international organizations also have
programmes related to children’s rights, and some
of these provide even greater protection than is
mandated by the CRC. The ILO, for example, has
implemented strict rules on working conditions for
children as part of the fight to eliminate child labour.
Under the CRC’s “most favourable treatment”
rule, any rules that offer children extra protection
supersede less protective rules in the CRC for
those countries to which they apply. For example,
CRC Article 32 provides that:
17 For more on the topic of jurisdiction under
international law, see the discussion of universal
jurisdiction in Lesson 12.
18 Current as of October 2011. An updated
list of all state parties to the Optional Protocol
on the Sale of Children, Child Prostitution and
Child Pornography can be found in the UN
Treaty Collection website: <http://treaties.un. org/
Pages/ViewDetails.aspx?src=TREATY&mtdsg_
no=IV-11-c&chapter=4&lang=en>.
 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.
The Article goes on to require that State Parties
adequately regulate the conditions under which
children may work. It does not, however, state
a minimum age for employment. The ILO has
set much more specific regulations. The 1973
ILO Convention 138, Concerning Minimum Age
for Admission to Employment stipulates that the
minimum age for employment is to be no less than
15 years of age, except in developing countries,
which may initially specify a minimum age of
no less than 14 years. ILO 138 also provides
that for certain types of employment, such as
employment in hazardous industries, the minimum
age of employment shall be no less than 18
years. In addition, the 1999 ILO Convention 182,
Concerning the Prohibition and Immediate Action
for the Elimination of the Worst Forms of Child
Labour, calls on Member States to take immediate
measures to eliminate:
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;
the use, procuring or offering of a child for
prostitution, for the production of pornography
or for pornographic performances;
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;
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.
Because these ILO standards are stricter than
those in the CRC, states must abide by the higher
standard in the ILO Conventions, where applicable.
HUMAN RIGHTS
The Geneva Conventions also provide some
standards of protection that are higher than those
outlined in the CRC. For example, while the CRC
forbids the recruitment or use in hostilities of
children under the age of 15,19 Protocol I to the
Geneva Conventions of 1949 extends the period of
extra protection to children between the ages of 15
and 17.20
Periodic international conferences and summits
help to reaffirm the need for special protections of
children’s rights, and develop strategies for their
enforcement and implementation. For example, the
1990 World Summit for Children outlined numerous
commitments for attending governments that were
reaffirmed by the 2000 Millennium Development
Goals and the 24th special session of the United
Nations General Assembly on “A World Fit for
Children”, held in 2002.
A view of indigenous children from the Embera people, displaced by
armed conflict. There are over two million internally displaced persons
in Colombia and while forced displacement is always a very difficult
experience, it is doubly catastrophic for indigenous communities.
Indigenous culture is closely linked to the land and displacement often
leads to the total collapse of traditional authority and cultural patterns.
(UN Photo #138803 by Mark Garten, June 2006)
19 CRC, Art. 38. Countries that have become
party to the Option Protocol on Children in Armed
Conflict have agreed to raise this age to 18.
20 Protocol Additional (I) to the Geneva
Conventions of 12 August 1949, and Relating to
the Protection of Victims of International Armed
Conflicts (1977), Art. 77.
| 199
Children’s Rights at the Regional Level
Each of the major regional systems provides further
protections for the rights of children.
In Europe, children receive protection through
many different channels. The European Social
Charter mandates special protection for children in
employment,21 and the right of children and young
persons to social, legal, and economic protection.22
The 1967 European Convention on the Adoption
of Children, the 1975 European Convention on the
Legal Status of Children born out of Wedlock, and
the 1996 European Convention on the Exercise
of Children’s Rights provide additional protection
to children within the European system. Article 24
of the European Charter of Fundamental Rights
also specifically addresses the rights of children. In
addition to these treaties, hundreds of directives,
framework decisions, and green papers address
children’s issues.23 Furthermore, the European Court
of Human Rights and the European Court of Justice
have both heard a number of cases dealing with
children’s issues.
As Professor Frans Viljoen of the University
of Pretoria notes: “With some 44 percent of its
population under the age of 15, the adage that
‘children are the future’ rings more true in Africa than
anywhere else.”24 Recognizing the importance of
children’s rights, the Organization of African Unity
(now the African Union) adopted a Declaration
on the Rights and Welfare of the Child in 1979,
and translated this into the legally binding African
Charter on the Rights and Welfare of the Child in
1990.25 The African Children’s Charter goes farther
21 European Social Charter (1961, rev. 1996), Art. 7.
22 Ibid., Art. 17.
23 Over 30 of these initiatives were developed
just between 2000 and 2005. Sandy Ruxton,
European Children’s Network, What About Us?
Children’s Rights in the European Union: Next
Steps (Brussels, The European Children’s Network,
2005), p. 25.
24 Frans Viljoen, International Human Rights
Law in Africa (New York, Oxford University Press,
2007), p. 260.
25 For the text of the African Charter on the
Rights and Welfare of the Child and a list of current
ratifications, see the African Union website at
<http://www.africa-union.org/root/au/Documents/
Treaties/treaties.htm>.
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than the CRC in addressing issues of particular
importance to children in Africa, including the
situation of children living under apartheid, factors
disadvantaging the female child, harmful practices
such as female genital mutilation, illiteracy, child
soldiers, and the role of the community in bringing
up children.26 The African Children’s Charter is
overseen by the African Committee of Experts on
the Rights and Welfare of the Child, which examines
state reports, receives individual complaints, and
conducts on-site investigations. An African Youth
Charter that focuses on youth participation and
basic rights for young people was agreed upon by
the African Union in 2006, and came into force on 8
August 2009.27
There is no single instrument dealing specifically
with children’s rights in the Inter-American system.
However, a number of instruments include some
form of protection for children. The American
Convention on Human Rights mandates that
children have equal rights whether born in or out of
wedlock and that “every minor child has the right to
measures of protection … on the part of his family,
society, and the state.”28 The 1989 Inter-American
Convention on the International Return of Children,
the 1984 Inter-American Convention on the Conflict
of Laws Concerning the Adoption of Minors, and the
1994 Inter-American Convention on International
Traffic in Minors all offer specific protections for
children living in the Americas. A Special Rapporteur
on Child Rights appointed by the Commission can
receive communications and carry out on-site
investigations. Additionally, the Inter-American
Court of Human Rights has ruled on several cases
involving children’s rights, and has adopted an
Advisory Opinion establishing that the rights of
children included in the American Convention are to
be read in conjunction with the CRC.
From the most widely accepted regime for the
protection of vulnerable groups, we will now turn
to one of the newest: the rights of persons with
disabilities.
26 Frans Viljoen, p. 262.
27 For the text of the African Youth Charter and
a list of current ratifications, see the African Union
website at <http://www.africa-union.org/root/au/
Documents/Treaties/treaties.htm>.
28 American Convention on Human Rights, Arts.
17(5) and 19.
9.3 The Rights of Persons with
Disabilities
Persons with Disabilities as a Vulnerable Group
Over 600 million people – approximately 10
per cent of the world’s population – have some
form of disability. Over two-thirds of these live in
developing countries.29
Persons with disabilities have long suffered from
discriminatory and harmful treatment at the hands
of society. For much of modern history, persons
with disabilities were considered less than human
and denied their basic rights. Persons with
disabilities have been the victims of genocide,
eugenics, and discrimination.30 Even when not
subject to such gross abuses, they have suffered
forced institutionalization, denial of legal capacity,
and immobilization by barriers in the social,
educational, and built environments. They have
been denied the right to bear and rear children,
to marry, to inherit, to access insurance or loans,
and to own property. They have been segregated
in education, housing, and employment. To make
matters worse, “these abuses remain hidden,
normalized through widespread assumptions
that conflate disability with inability, even
incompetence.”31
Assistance for the disabled traditionally came in the
form of the medical model, an approach that views
people with disabilities as clinical objects rather
than subjects, as medical problems or curiosities
rather than rights-holders. Under this view, when
29 Gerard Quinn & Theresia Degener, Human
Rights and Disability: The Current Use and
Future Potential of United Nations Human Rights
Instruments in the Context of Disability (2002), at 1.
30 See Sally M. Rogow, “Persecution and
Genocide of Children and Young People with
Disabilities in Nazi Germany,” 26(2) Developmental
Disabilities Bulletin (1998); Disabled People and
the Right to Life: The Protection and Violation of
Disabled People’s Most Basic Human Rights (Luke
Clements & Janet Read eds. 2007).
31 Tara J. Melish, “The UN Disability Convention:
Historic Process, Strong Prospects, and Why the
U.S. Should Ratify,” 14(2) Human Rights Brief 1
(2007), at 7.
HUMAN RIGHTS
persons with disabilities experience difficulties, the
problem is located within the persons themselves,
and arises due to their specific impairments,
rather than in the way in which social, cultural,
and economic practices accommodate (or fail to
accommodate) their differences. Solutions under
the medical model frequently came in the form
of segregation and institutionalization. Disabled
persons themselves were largely invisible.
Gradually, the medical model of disability has
been replaced by a human rights model. The
human rights model focuses on the inherent
dignity and worth of the human being, and only
secondarily on specific limitations. It centres the
individual in decision-making (the goal of disability
rights activists’ “nothing about us without us”
campaign) and locates “problems” in society’s
lack of responsiveness, rather than solely in each
person’s difference. Following the “social model”,
it tends to view disability as a socially constructed
category: that is, as an idea that is not innate,
but rather applied to persons on the basis of their
deviation from what we think of as “normal.” The
human rights model recognizes the fact that the
social construct of disability sets people apart and
keeps them separated by refusing to accommodate
differences from the norm.32
The road from medical to human rights model, from
invisibility to visibility, however, has been long and
slow.
A Brief History of the Rights of Persons with
Disabilities in International Law
Although persons with disabilities are entitled to
all of the human rights and fundamental freedoms
protected by the international bill of human rights,
disability was not specifically mentioned anywhere
in the ICCPR or ICESCR.33 Nor does it appear
32 Gerard Quinn and Theresia Degener, Human
Rights and Disability: The Current Use and
Future Potential of United Nations Human Rights
Instruments in the Context of Disability (United
Nations publication, E.02.XIV.6), p. 15.
33 The Committee on Economic, Social and
Cultural Rights “General Comment No. 5”
(1994) on Persons with Disabilities attempts to
ameliorate this situation by explaining at length
| 201
in CEDAW,34 the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or
Punishment (CAT), the International Convention
on the Protection of All Migrant Workers and their
Families (ICRMW), or the International Convention
on the Elimination of All Forms of Racial
Discrimination (CERD). The UDHR mentions
disability only once – in the context of receiving
social security.35
On Disability and Human Rights
“Disability is a human rights issue! I repeat:
disability is a human rights issue.
“Those of us who happen to have a disability
are fed up with being treated by the society
and our fellow citizens as if we did not exist
or as if we were aliens from outer space. We
are human beings with equal value, claiming
equal rights …
“If asked, most people, including politicians
and other decision makers, agree with us.
The problem is that they do not realize the
consequences of this principle and they are
not ready to take action accordingly.”
Bengt Lindqvist
from “Speech at the 19th Congress of
Rehabilitation International” (2000)
states’ responsibilities with respect to persons with
disabilities under the ICESCR.
34 The Committee on the Elimination of
Discrimination against Women’s “General
Recommendation 18” (1991) on Disabled
women expresses particular concern about “the
situation of disabled women, who suffer from a
double discrimination linked to their special living
conditions,” and recommends that States include
information on the status of women with disabilities
in their periodic reports.
35 Universal Declaration of Human Rights, Art.
25(1).
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The CRC is the only one of the “core” human
rights treaties that includes specific protections
for persons with disabilities.36 The CRC explicitly
includes “the child’s or his or her parent’s or legal
guardian’s … disability” as a prohibited ground
of discrimination in Article 2.37 It also sets out
special protections for children with disabilities in
Article 23, based on the premise 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.”38
The lack of attention to disability in the general
human rights conventions is partially a result of the
virtual invisibility of persons with disabilities. The
historic marginalization and medicalization of the
disabled led to a situation in which governments
and the international community could turn a
blind eye to the particular needs of persons with
disabilities; their problems were seen as medical,
not social. As Frédéric Mégret of McGill University
explains:
What these international human rights treaties
have “missed” when it comes to persons with
disabilities is a variety of things. First, they have
been insufficiently alert to the fact that persons
with disabilities might be flatly denied their rights
and missed the obvious fact that it would help,
for example, to specify that disability can be a
ground for discrimination. Second, they have
been inattentive to the extent to which different
rights may mean different things for different
persons, so that certain rights can only be fully
realized if their content and the road to their
implementation are quite narrowly defined (in
the treaties themselves), bearing in mind the
particular circumstances of those they seek to
protect. Third, the existing international human
rights regime has historically badly understood
the fact that the state is not always the main
threat to the realization of human rights of some,
36 See: Committee on the Rights of the Child
“General Comment No. 9” (2006), providing
guidance and assistance to states in their efforts
to implement the CRC with respect to children with
disabilities.
37 Convention on the Rights of the Child, Art. 2(1).
38 Ibid., Art. 23(1).
 and the risk that social structures, prejudices,
the community or the family pose in processes
of exclusion, oppression, discrimination, or
violence. Fourth and at a deeper level, a
concept of human rights that presupposes that
all individuals are equal because they are all
fundamentally alike can become oblivious to the
fact that persons with disabilities, for example,
are not autonomous in the same way as persons
without disabilities.39
Little by little, recognition of these lacunae grew,
and the international community began to pay
more attention to the needs of disabled persons.
Some early signs of a shift away from the medical
and towards a human rights model came in the
1970s, when the UN General Assembly adopted
the Declaration on the Rights of Mentally Retarded
Persons (1971) and the Declaration on the Rights
of Disabled Persons (1975). These agreements
were significant because both state that disabled
persons enjoy the same civil and political rights as
other persons.
The 1980s marked “an irreversible shift” towards
the human rights model.40 To increase awareness,
the UN declared 1981 the International Year of
Disabled Persons, and then proclaimed the decade
from 1983 to 1992 the International Decade of
Disabled Persons. The GA adopted the World
Programme of Action Concerning Disabled
Persons in 1982,41 and the Standard Rules on the
Equalization of Opportunities for Persons with
Disabilities in 1993.42 Additionally, in 1994 the UN
appointed a Special Rapporteur on Disability.
At the beginning of the twenty-first century, a global
consensus had emerged that “the architecture
of the current human rights regime – despite its
universal application to persons with disabilities
39 Frédéric Mégret, “The Disabilities Convention:
Human Rights of Persons with Disabilities or
Disability Rights?” Human Rights Quarterly, vol. 30
(2008).
40 Gerard Quinn and Theresia Degener, p. 30.
41 A/37/351 (1982), World Programme of Action
Concerning Disabled Persons.
42 A/Res/48/96 (1993), Standard Rules on the
Equalization of Opportunities for Persons with
Disabilities.
HUMAN RIGHTS
and clear prohibitions of discrimination on the
basis of disability – [had] proved ineffective in
ensuring equal rights for persons with disabilities
in practice.”43 The determinative push to draft a
binding Disability Convention came in 2001, and
the UN GA established an Ad Hoc Committee
on a Comprehensive and Integral International
Convention on Protection and Promotion of the
Rights and Dignity of Persons with Disabilities
that was mandated “to consider proposals for
a comprehensive and integral international
convention to promote and protect the rights
and dignity of persons with disabilities, based
on the holistic approach in the work done in the
fields of social development, human rights and
non-discrimination.”
The drafting process was characterized by an
unprecedented level of NGO and civil society
input and engagement. Over the course of its
work, the Ad Hoc Committee consulted with
a broad spectrum of NGOs, disabled persons
organizations, academia, UN agencies,
intergovernmental organizations, and national
human rights institutions to draft the Convention
and its Optional Protocol.44 Civil society
participation was recognized as a necessity in all
stages of the treaty drafting and implementation
process: UN and state officials lacked specialized
expertise in disability issues, and therefore turned
to NGOs and disabled persons organizations for
assistance.
The Convention on the Rights of Persons with
Disabilities (CRPD)
The Convention on the Rights of Persons with
Disabilities (CRPD) is the newest comprehensive
convention for the protection of a vulnerable
group. The CRPD and its Optional Protocol were
unanimously adopted on December 13, 2006, and
opened for signature on March 30, 2007.45 On the
first day, the CRPD received signatures from a
43 Tara J. Melish, “The UN Disability Convention:
Historic Process, Strong Prospects, and Why the
U.S. Should Ratify”, Human Rights Brief, vol. 14,
No. 2 (2007), p. 7.
44 Ibid., p. 3.
45 A/61/611 (2006), Convention on the Rights of
Persons with Disabilities.
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record 81 states.46 The CRPD entered into force
on May 3, 2008, and currently boasts 106 state
parties.47
The goal of the CRPD is “to promote, protect
and ensure the full and equal enjoyment of all
human rights and fundamental freedoms by all
persons with disabilities, and to promote respect
for their inherent dignity.”48 It defines persons with
disabilities as “those who have long-term physical,
mental, intellectual or sensory impairments which
in interaction with various barriers may hinder
their full and effective participation in society on
an equal basis with others.”49 The CRPD protects
key rights such as the rights to make decisions, to
marry, to have a family, to work, and to education.
Article 3 lists eight “general principles” which
underlie the protections provided by the CRPD:
• Respect for inherent dignity, individual autonomy
including the freedom to make one’s own
choices, and independence of persons;
• Non-discrimination;
• Full and effective participation and inclusion in
society;
• Respect for difference and acceptance of
persons with disabilities as part of human
diversity and humanity;
• Equality of opportunity;
• Accessibility;
• Equality between men and women; and
• Respect for the evolving capacities of children
with disabilities and respect for the right of
children with disabilities to preserve their
identities.50
46 “Independent Rights Expert Calls for More
Support for UN Treaty on Disabilities,” UN News
Centre, 12 April 2007.
47 Current as of October 2011. For an updated
list of state parties to the CRPD, visit the UN
Treaty Service website at: <http://treaties.un.org/
Pages/ViewDetails.aspx?src=TREATY&mtdsg_
no=IV-15&chapter=4&lang=en>.
48 A/61/611 (2006), Convention on the Rights of
Persons with Disabilities, Art. 1.
49 Ibid.
50 CRPD, Art. 3.
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The CRPD attempts to do several things.51 First, it
restates the application of existing human rights to
persons with disabilities, reaffirming that disabled
persons are entitled to civil, political, economic,
social, and cultural human rights, and have the right
to enjoy them “on an equal basis with others.”52 This
affirmation that “the rights of disabled persons are
human rights” (to paraphrase the slogan used by
women’s rights activists) is particularly important
given the long history of dehumanization and
mistreatment of persons with disabilities.
Second, the CRPD reformulates and clarifies
how certain human rights apply in the context
of persons with disabilities. It instructs states to
adopt, modify or repeal laws, mainstream disability
issues, undertake research and development,
launch public awareness campaigns, build or
adapt infrastructures, train specialized personnel,
employ certain individuals, provide certain services
or assistance, and consult with disability rights
groups.53 For example, the CRPD explains that
for persons with disabilities, the right to equal
recognition before the law, protected by the ICCPR,
means having access to “the support they may
require in exercising their legal capacity” and being
protected by “appropriate and effective safeguards
to prevent abuse in accordance with international
human rights law.”54
“Where the ‘able-bodied’ may be in a position to
maximize their rights in a context of ‘laissez-faire’,
the disabled typically require a much more complex
social, political, economic and institutional set-up
to enjoy rights on an equal basis.”55 By specifying
51 See discussion in: Frédéric Mégret, “The
Disabilities Convention: Human Rights of Persons
with Disabilities or Disability Rights?” Human
Rights Quarterly, vol. 30 (2008).
52 Convention on the Rights of Persons With
Disabilities. The phrase “on an equal basis with
others” is repeated more than 30 times in the
CRPD.
53 CRPD, Arts. 4, 7–9, 13, 15, 16, 19–21, 23–30,
and 32.
54 Ibid., Art. 12.
55 Frédéric Mégret, “The Disabilities Convention:
Towards a Holistic Conception of Rights”,
International Journal of Human Rights, vol. 12
(2008).
particular measures that states must take to
ensure that persons with disabilities can enjoy the
same economic, social, cultural, civil, and political
rights as others, the CRPD moves away from the
model of formal equality implicitly adopted in the
international bill of human rights and toward a
model of substantive equality that recognizes the
effect of different starting positions and historical
inequalities. It attempts to ensure that persons with
disabilities can enjoy their human rights in practice.
As Professor Frédéric Mégret writes:
If ever there was a group that has suffered from
[the formal equality] model, it is arguably persons
with disabilities, who have been consistently
excluded from partaking in the many human
rights advances of the last fifty years not so
much because they were not covered in theory
by existing rights, than by the failure of states
to focus their attention on their particular
difficulties. “Laissez faire” rights policies when
it comes to people with disabilities can have
particularly catastrophic consequences, in light
of the complex needs of these persons both to
keep the state and society at bay on the one
hand, but enlist their help in security autonomy
and participation on the other.56
Third, the CRPD articulates several additional
rights that are specific to persons with disabilities.
These include rights to “full and effective
participation and inclusion in society”,57 similar to
but more extensive than the rights to participate in
political and social and cultural life described by the
ICCPR and ICESCR, and to “autonomy”, including
the right to “personal mobility”,58 “accessibility”,59
and the “right to live independently.”60 These
participation and autonomy rights are indicative
of the overall tone of the treaty, which focuses
on “capability and inclusion: on lifting the
environmental and attitudinal barriers that prevent
persons with disabilities from full inclusion and
equal participation in all aspects of community life”,
rather than on “inability and sorting of impairment
56 Frédéric Mégret, “The Disabilities Convention:
Human Rights of Persons with Disabilities or
Disability Rights?”
57 CRPD, Arts. 3, 19, 29, and 30.
58 Ibid., Art. 20.
59 Ibid., Arts. 3 and 9.
60 Ibid., Art. 19.
HUMAN RIGHTS
Amputees play in a football game, part of the activities planned in
observance of the International Day of Peace, organized by the United
Nations Mission in Liberia (UNMIL).
(UN Photo #200143 by Christopher Herwig, September 2008)
as a way to ‘parallel track’ difference and socially
justify exceptions to universally-held human
rights.”61 Disability rights activist Tara Melish
praises this shift from exclusion to inclusion: “Under
this approach, the disability problematic is no
longer how to provide for those deemed ‘unable’ to
integrate into mainstream society, but rather how
to make society accessible to all persons, on an
equal, non-separate basis.”62
The CRPD is overseen by a Committee on
the Rights of Persons with Disabilities (CRPD
Committee) that can review periodic state
reports, and issue general comments and
recommendations. An Optional Protocol to the
CRPD establishes an individual complaints
mechanism and inquiry procedure for state
parties.63 In addition, the CRPD has introduced
one new mechanism not present in the other
core human rights treaties: a biennial Conference
of States Parties for the discussion of best
practices, difficulties in implementation, and other
CRPD-related matters.
61 Tara J. Melish, p. 2.
62 Ibid., p. 8.
63 As of October 2011, 63 states are party
to the Optional Protocol to the CRPD. For an
updated list, see the UN Treaty Service website
at <http://treaties.un.org/Pages/ViewDetails.
aspx?src=TREATY&mtdsg_no=IV-15-a&
chapter=4&lang=en>.
| 205
Writing Exercise 9: Creating Accessibility
If you have access to the internet, this would
be an especially good exercise to write about
online in conversation with other learners
taking this Peace Operations Training Institute
course. Consider writing your thoughts on the
POTI forum by logging into your classroom and
clicking on the “Student Forum” link.
You are working in a small country that is party to
the ICCPR, ICESCR, and CRPD. Hearing of your
expertise on this new human rights convention,
the Minister of Education approaches you to ask
your advice on what steps she should take to
make the system of primary education comply
with the CRPD.
 Take a moment now to read through The United Nations Educational, Scientific and
the selected provisions of the CRPD, Cultural Organization (UNESCO) has been active
attached as Annex A.
Consider the following questions and write a
brief report (maximum one page).
• Read through the provisions of the
CRPD. What does the Convention say
about education?
• What steps can the Minister take to help
implement the CRPD in the primary
education system? Which of these has
the highest priority? What impact will
these changes have on the country’s
budget? Do you think the Minister will
comply with your suggestions?
• What difference do you think these steps
will make for children with disabilities?
The Rights of Persons with Disabilities at the
Global Level
In addition to the CRPD and the other
instruments adopted through the GA, several
other intergovernmental organizations have
been involved in the protection of persons with
disabilities.
206 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
The International Labour Organization (ILO)
has been active in the area of disability and
work, promoting the inclusion and employability
of persons with disabilities. One of the earliest
international acknowledgements of disability
was made by the ILO in Recommendation No.
71 of 1944, which stated that disabled workers,
“whatever the origin of their disability, should be
provided with full opportunities for rehabilitation,
specialized vocational guidance, training and
retraining, and employment on useful work.”64 The
ILO has developed a number of programme in
this area, such as the 1983 Convention No. 159
Concerning the Vocational Rehabilitation and
Employment of Disabled Persons, and the 2002
Code of Practice on Managing Disability in the
Workplace.
in highlighting the educational needs of disabled
persons. For example, UNESCO adopted the
“Salamanca declaration and Framework of Action
for special educational needs” in 1994.
Finally, the World Health Organization (WHO)
has focused on disability from the perspective of
prevention and rehabilitation.
The Rights of Persons with Disabilities at the
Regional Level
Over the past several decades, the European
system has adopted a number of instruments
specifically addressing the situation of persons with
disabilities. The European Social Charter was the
first international human rights treaty to specifically
mention development, acknowledging that
disabled persons have the right to independence,
social integration, and participation in community
life.65 The Council of Europe issued a 1992
“Coherent Policy for the Rehabilitation of People
with Disabilities” that includes detailed sections
on prevention, education, vocational guidance
and training, employment, social integration and
environment, legal protection, and research.66
64 Employment (Transition from War to Peace)
Recommendation No. 71 (1944).
65 ESC, Art. 15.
66 Council of Europe, Recommendation No.
The EU’s Employment Equality Directive of 2000
prohibits discrimination, including against persons
with disabilities, in the area of employment. In order
to raise awareness, the European Union declared
2003 the European Year of People with Disabilities.
In the Americas, the Inter-American Convention
on the Elimination of All Forms of Discrimination
Against Persons with Disabilities was adopted in
1999. This Convention prohibits “discrimination
against persons with disabilities”, which it defines
as any distinction, exclusion, or restriction based
on a disability, record of disability, whether present
or past, which has the effect or objective of
impairing or nullifying the recognition, enjoyment,
or exercise by a person with a disability of his or
her human rights and fundamental freedoms.67
The OAS declared 2006–2016 the “Decade of the
Americas for the Rights and Dignity of Persons
with Disabilities.” And the Additional Protocol to the
American Convention on Human Rights in the Area
of Economic, Social and Cultural Rights includes
specific protections for the disabled.68
There is no African equivalent to the CRPD, but
the Protocol to the African Charter on the Rights of
Women in Africa, the African Charter on the Rights
and Welfare of the Child, and the African Youth
Charter all include special protection for persons
with disabilities.69 The African Charter on Human
and Peoples’ Rights states that disabled persons
have the right to special measures of protection
and provides that every individual shall have the
right to enjoy the best attainable state of physical
and mental health.70 In order to further promote
visibility and action, the AU declared 1999–2009
to be the African Decade of Disabled People and
R (92) 6, 9 April 1992.
67 Inter-American Convention on the Elimination
of all Forms of Discrimination against Persons with
Disabilities (1999), Art. 1.2.
68 Additional Protocol to the American Convention
on Human Rights in the Area of Economic, Social
and Cultural Rights, Art. 18.
69 Protocol to the African Charter on Human and
Peoples’ Rights on the Rights of Women in Africa,
Art. 23; African Charter on the Rights and Welfare
of the Child, Art. 13; African Youth Charter, Art. 24.
70 African Charter on Human and Peoples’ Rights,
Arts. 16 and 18.
HUMAN RIGHTS
developed a Continental Action Plan to promote
disability rights.71
The Asian and Arab states have also been active
in this area. In April 1992, the UN Economic
and Social Commission for Asia and the Pacific
declared 1993–2002 the Asian and Pacific Decade
of Disabled Persons, and extended the period to a
second Decade from 2003–2012. The Arab states
declared an Arab Decade of Disabled Persons
from 2003–2012.
Conclusion
In Lessons 8 and 9, we have examined the concept
of special regimes for the protection of vulnerable
groups, and have looked in-depth at three such
regimes: those for women, children, and persons
with disabilities. In Lesson 10, we will conclude
our discussion of vulnerable groups by studying
three more groups that receive protection under
international law: ethnic, linguistic, and religious
minorities; indigenous peoples; and refugees.
Further Reading
Mark Ensalaco and Linda C. Majka, Children’s
Human Rights (2005); Gerard Quinn and Theresia
Degener, Human Rights and Disability: The
Current Use and Future Potential of United Nations
Human Rights Instruments in the Context of
Disability (2002); Tara J. Melish, “The UN Disability
Convention: Historic Process, Strong Prospects,
and Why the U.S. Should Ratify”, Human Rights
Brief, vol. 14, No. 2 (2007); Frédéric Mégret, “The
Disabilities Convention: Human Rights of Persons
with Disabilities or Disability Rights?” Human Rights
Quarterly, vol. 30 (2008).
Websites for Further Information
CRC Commission:
www2.ohchr.org/english/bodies/crc/
OHCHR Disability site: www2.ohchr.org/english/
issues/disability/index.htm
UNICEF: www.unicef.org
71 Useful information is available on the website of
the African decade: <www.africandecade.org/>.
| 207
Annex A: Convention on the Rights of Persons with Disabilities

Convention on the Rights of Persons with Disabilities

(Selected Provisions)

PREAMBLE
The States Parties to the present Covenant,

(a) Recalling the principles proclaimed in the Charter of the United Nations which recognize the inherent
dignity and worth and the equal and inalienable rights of all members of the human family as the
foundation of freedom, justice and peace in the world,

(b) Recognizing that the United Nations, in the Universal Declaration of Human Rights and in the
International Covenants on Human Rights, has proclaimed and agreed that everyone is entitled to all the
rights and freedoms set forth therein, without distinction of any kind,

(c) Reaffirming the universality, indivisibility, interdependence and interrelatedness of all human rights and
fundamental freedoms and the need for persons with disabilities to be guaranteed their full enjoyment
without discrimination,

(d) Recalling the International Covenant on Economic, Social and Cultural Rights, the International
Covenant on Civil and Political Rights, the International Convention on the Elimination of All Forms of
Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination against Women,
the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 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,

(e) Recognizing that disability is an evolving concept and that disability results from the interaction
between persons with impairments and attitudinal and environmental barriers that hinders their full and
effective participation in society on an equal basis with others,

(f) Recognizing the importance of the principles and policy guidelines contained in the World Programme
of Action concerning Disabled Persons and in the Standard Rules on the Equalization of Opportunities for
Persons with Disabilities in influencing the promotion, formulation and evaluation of the policies, plans,
programmes and actions at the national, regional and international levels to further equalize opportunities
for persons with disabilities,

(g) Emphasizing the importance of mainstreaming disability issues as an integral part of relevant
strategies of sustainable development,

(h) Recognizing also that discrimination against any person on the basis of disability is a violation of the
inherent dignity and worth of the human person,

(i) Recognizing further the diversity of persons with disabilities,

208 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
(j) Recognizing the need to promote and protect the human rights of all persons with disabilities, including
those who require more intensive support,

(k) Concerned that, despite these various instruments and undertakings, persons with disabilities continue
to face barriers in their participation as equal members of society and violations of their human rights in all
parts of the world,

(l) Recognizing the importance of international cooperation for improving the living conditions of persons
with disabilities in every country, particularly in developing countries,

(m) Recognizing the valued existing and potential contributions made by persons with disabilities to
the overall well-being and diversity of their communities, and that the promotion of the full enjoyment
by persons with disabilities of their human rights and fundamental freedoms and of full participation by
persons with disabilities will result in their enhanced sense of belonging and in significant advances in the
human, social and economic development of society and the eradication of poverty,

(n) Recognizing the importance for persons with disabilities of their individual autonomy and
independence, including the freedom to make their own choices,

(o) Considering that persons with disabilities should have the opportunity to be actively involved in
decision-making processes about policies and programmes, including those directly concerning them,

(p) Concerned about the difficult conditions faced by persons with disabilities who are subject to multiple
or aggravated forms of discrimination on the basis of race, colour, sex, language, religion, political or other
opinion, national, ethnic, indigenous or social origin, property, birth, age or other status,

(q) Recognizing that women and girls with disabilities are often at greater risk, both within and outside the
of violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation,

(r) Recognizing that children with disabilities should have full enjoyment of all human rights and
fundamental freedoms on an equal basis with other children, and recalling obligations to that end
undertaken by States Parties to the Convention on the Rights of the Child,

(s) Emphasizing the need to incorporate a gender perspective in all efforts to promote the full enjoyment of
human rights and fundamental freedoms by persons with disabilities,

(t) Highlighting the fact that the majority of persons with disabilities live in conditions of poverty, and in this
regard recognizing the critical need to address the negative impact of poverty on persons with disabilities,

(u) Bearing in mind that conditions of peace and security based on full respect for the purposes and
principles contained in the Charter of the United Nations and observance of applicable human rights
instruments are indispensable for the full protection of persons with disabilities, in particular during armed
conflicts and foreign occupation,

(v) Recognizing the importance of accessibility to the physical, social, economic and cultural environment,

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to health and education and to information and communication, in enabling persons with disabilities to fully
enjoy all human rights and fundamental freedoms,

(w) Realizing that the individual, having duties to other individuals and to the community to which he or
she belongs, is under a responsibility to strive for the promotion and observance of the rights recognized
in the International Bill of Human Rights,

(x) Convinced that the family is the natural and fundamental group unit of society and is entitled to
protection by society and the State, and that persons with disabilities and their family members should
receive the necessary protection and assistance to enable families to contribute towards the full and equal
enjoyment of the rights of persons with disabilities,

(y) Convinced that a comprehensive and integral international convention to promote and protect the rights
and dignity of persons with disabilities will make a significant contribution to redressing the profound social
disadvantage of persons with disabilities and promote their participation in the civil, political, economic,
social and cultural spheres with equal opportunities, in both developing and developed countries,

Have agreed as follows :

Article 1 - Purpose

The purpose of the present Convention is to promote, protect and ensure the full and equal enjoyment
of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for
their inherent dignity.

Persons with disabilities include those who have long-term physical, mental, intellectual or sensory
impairments which in interaction with various barriers may hinder their full and effective participation in
society on an equal basis with others.

Article 3 - General principles

The principles of the present Convention shall be:

(a) Respect for inherent dignity, individual autonomy including the freedom to make one’s own
choices, and independence of persons;

(b) Non-discrimination;

(c) Full and effective participation and inclusion in society;

(d) Respect for difference and acceptance of persons with disabilities as part of human diversity and
humanity;

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 (e) Equality of opportunity;

(f) Accessibility;

(g) Equality between men and women;

(h) Respect for the evolving capacities of children with disabilities and respect for the right of children
with disabilities to preserve their identities.

Article 5 - Equality and non-discrimination

1. States Parties recognize that all persons are equal before and under the law and are entitled without
any discrimination to the equal protection and equal benefit of the law.

2. States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with
disabilities equal and effective legal protection against discrimination on all grounds.

3. In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps
to ensure that reasonable accommodation is provided.

4. Specific measures which are necessary to accelerate or achieve de facto equality of persons with
disabilities shall not be considered discrimination under the terms of the present Convention.

Article 7 - Children with disabilities

1. States Parties shall take all necessary measures to ensure the full enjoyment by children with
disabilities of all human rights and fundamental freedoms on an equal basis with other children.

2. In all actions concerning children with disabilities, the best interests of the child shall be a primary
consideration.

3. States Parties shall ensure that children with disabilities have the right to express their views freely on
all matters affecting them, their views being given due weight in accordance with their age and maturity,
on an equal basis with other children, and to be provided with disability and age-appropriate assistance to
realize that right.

Article 8 - Awareness-raising

1. States Parties undertake to adopt immediate, effective and appropriate measures:

(a) To raise awareness throughout society, including at the family level, regarding persons with

HUMAN RIGHTS | 211

 disabilities, and to foster respect for the rights and dignity of persons with disabilities;

(b) To combat stereotypes, prejudices and harmful practices relating to persons with disabilities,
including those based on sex and age, in all areas of life;

(c) To promote awareness of the capabilities and contributions of persons with disabilities.

2. Measures to this end include:

(a) Initiating and maintaining effective public awareness campaigns designed:

(i) To nurture receptiveness to the rights of persons with disabilities;

(ii) To promote positive perceptions and greater social awareness towards persons with disabilities;

(iii) To promote recognition of the skills, merits and abilities of persons with disabilities, and of their
contributions to the workplace and the labour market;

(b) Fostering at all levels of the education system, including in all children from an early age, an
attitude of respect for the rights of persons with disabilities;

(c) Encouraging all organs of the media to portray persons with disabilities in a manner consistent with
the purpose of the present Convention;

(d) Promoting awareness-training programmes regarding persons with disabilities and the rights of
persons with disabilities.

Article 9 - Accessibility

1. To enable persons with disabilities to live independently and participate fully in all aspects of life, States
Parties shall take appropriate measures to ensure to persons with disabilities access, on an equal basis
with others, to the physical environment, to transportation, to information and communications, including
information and communications technologies and systems, and to other facilities and services open
or provided to the public, both in urban and in rural areas. These measures, which shall include the
identification and elimination of obstacles and barriers to accessibility, shall apply to, inter alia:

(a) Buildings, roads, transportation and other indoor and outdoor facilities, including schools, housing,
medical facilities and workplaces;

(b) Information, communications and other services, including electronic services and emergency
services.

2. States Parties shall also take appropriate measures to:

(a) Develop, promulgate and monitor the implementation of minimum standards and guidelines for the

212 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
 accessibility of facilities and services open or provided to the public;

(b) Ensure that private entities that offer facilities and services which are open or provided to the public
take into account all aspects of accessibility for persons with disabilities;

(c) Provide training for stakeholders on accessibility issues facing persons with disabilities;

(d) Provide in buildings and other facilities open to the public signage in Braille and in easy to read
and understand forms;

(e) Provide forms of live assistance and intermediaries, including guides, readers and professional
sign language interpreters, to facilitate accessibility to buildings and other facilities open to the public;

(f) Promote other appropriate forms of assistance and support to persons with disabilities to ensure
their access to information;

(g) Promote access for persons with disabilities to new information and communications technologies
and systems, including the Internet;

(h) Promote the design, development, production and distribution of accessible information and
communications technologies and systems at an early stage, so that these technologies and systems
become accessible at minimum cost.

Article 24 - Education

1. States Parties recognize the right of persons with disabilities to education. With a view to realizing this
right without discrimination and on the basis of equal opportunity, States Parties shall ensure an inclusive
education system at all levels and life long learning directed to:

(a) The full development of human potential and sense of dignity and self-worth, and the strengthening
of respect for human rights, fundamental freedoms and human diversity;

(b) The development by persons with disabilities of their personality, talents and creativity, as well as
their mental and physical abilities, to their fullest potential;

(c) Enabling persons with disabilities to participate effectively in a free society.

2. In realizing this right, States Parties shall ensure that:

(a) Persons with disabilities are not excluded from the general education system on the basis of
disability, and that children with disabilities are not excluded from free and compulsory primary
education, or from secondary education, on the basis of disability;

HUMAN RIGHTS | 213

 (b) Persons with disabilities can access an inclusive, quality and free primary education and
secondary education on an equal basis with others in the communities in which they live;

(c) Reasonable accommodation of the individual’s requirements is provided;

(d) Persons with disabilities receive the support required, within the general education system, to
facilitate their effective education;

(e) Effective individualized support measures are provided in environments that maximize academic
and social development, consistent with the goal of full inclusion.

3. States Parties shall enable persons with disabilities to learn life and social development skills to
facilitate their full and equal participation in education and as members of the community. To this end,
States Parties shall take appropriate measures, including:

(a) Facilitating the learning of Braille, alternative script, augmentative and alternative modes, means
and formats of communication and orientation and mobility skills, and facilitating peer support and
mentoring;

(b) Facilitating the learning of sign language and the promotion of the linguistic identity of the deaf
community;

(c) Ensuring that the education of persons, and in particular children, who are blind, deaf or deafblind,
is delivered in the most appropriate languages and modes and means of communication for the
individual, and in environments which maximize academic and social development.

4. In order to help ensure the realization of this right, States Parties shall take appropriate measures to
employ teachers, including teachers with disabilities, who are qualified in sign language and/or Braille,
and to train professionals and staff who work at all levels of education. Such training shall incorporate
disability awareness and the use of appropriate augmentative and alternative modes, means and formats
of communication, educational techniques and materials to support persons with disabilities.

5. States Parties shall ensure that persons with disabilities are able to access general tertiary education,
vocational training, adult education and lifelong learning without discrimination and on an equal basis with
others. To this end, States Parties shall ensure that reasonable accommodation is provided to persons
with disabilities.

U.N. Doc A/61/611 (2006)

214 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
End-of-Lesson Quiz

1. Which of the following best describes the set 7. Which of the following treaties is the only
of treaties to which an 8-year-old girl might one of the “core” human rights treaties
be able to apply when her rights have been other than the Disability Convention that
violated? specifically addresses the rights of persons
A. The women’s conventions only; with disabilities?
B. The children’s conventions only; A. CEDAW;
C. Both the women’s convention and international B. ICESCR;
bill of human rights; C. CRC;
D. The women’s conventions, children’s conventions, D. ICCPR.
and international bill of human rights.
8. The Convention on the Rights of Persons
2. The principle UN treaty for the with Disabilities was adopted in:
protection of children’s rights is the A. 1948;
___________________.
B. 1966;
C. 1989;
3. Which of the following is NOT one of the D. 2006.
core principles informing the protection of
children’s rights at the global level?
A. Deference in all cases to the parents of the child; 9. Which of the following institutions has been
active in promoting the rights of disabled
B. The principle of non-discrimination;
persons at work?
C. Devotion to the best interests of the child;
A. The ILO;
D. Respect for the views of the child.
B. UNICEF;
C. The CEDAW Committee;
4. Which of the following is NOT a power of the D. The Security Council.
Committee on the Rights of the Child?
A. Monitoring state compliance;
10. Which of the following regions has
B. Receiving individual complaints;
NOT declared a decade of persons with
C. Reviewing periodic state reports; disabilities?
D. Issuing general comments. A. Africa;
B. Antarctica;
5. The UN specialized agency that focuses on C. The Americas;
promoting the rights of children is: D. Asia.
A. UNICEF;
B. UNIFEM;
C. The General Assembly (GA);
D. The FAO.
ANSWER KEY
6. The principle UN treaty for the protection 1D, 2 CRC or Convention on the Rights of the Child,
of the rights of disabled persons is the 3A, 4B, 5A, 6 CRPD or Convention on the Rights of
___________________. Persons with Disabilities, 7C, 8D, 9A, 10B.

HUMAN RIGHTS | 215

LESSON 10
HUMAN RIGHTS OF VULNERABLE
PERSONS AND GROUPS III:
THE RIGHTS OF MINORITIES,
INDIGENOUS PEOPLES, AND REFUGEES
 LESSON
10

LESSON OBJECTIVES

10.1 Introduction By the end of Lesson 10, the student should be able to meet the
following objectives:
10.2 The Rights of Ethnic,
Linguistic, and
• Understand the regime for protecting ethnic, linguistic, and religious
Religious Minorities minorities at the global level;
10.3 Indigenous Peoples’ • Understand the system for protecting indigenous peoples at the
Rights global level;

10.4 The Protection of • Understand the special protection regime for refugees;
Refugees • Identify regional initiatives for the protection of minorities,
indigenous peoples, and refugees; and
• Understand the intersections between the systems for the protection
of various vulnerable groups.

To view a video introduction of this lesson by the

course author Jessica C. Lawrence, you can
either log in to your virtual classroom, go to www.
peaceopstraining.org/users/media_page/383/
lesson-10, or use your mobile device to scan the
QR code to the left.
10.1 Introduction
In Lessons 8 and 9, we introduced the concept
of vulnerable groups and discussed three such
groups that receive additional protection at the
global and regional levels: women, children, and
persons with disabilities. In this lesson, we will
examine the special regimes that protect three
additional vulnerable groups: ethnic, linguistic,
and religious minorities; indigenous peoples; and
refugees.
As you read through this lesson, keep in mind
the discussion from the theoretical perspectives
section in Lesson 8. The issues of reinforcing
difference, equality in law versus equality in fact,
collective rights, and the limitations of groups apply
to each of the systems that we will discuss in this
lesson. Additionally, try to compare each of the
special protection regimes described below with
the regimes for the protection of women’s rights,
children’s rights, and the rights of disabled persons.
How do the systems discussed in this lesson
resemble the others that we have examined? How
do they differ? What might explain the similarities
and differences that you observe?
10.2 The Rights of Ethnic, Religious,
and Linguistic Minorities
Ethnic, religious, and linguistic uniformity in a
country is today the exception, rather than the
rule. Of the world’s more than 191 officially
designated states, at least 175 are “multi-ethnic”,
meaning that minority groups make up more than
5 per cent of their population.1 The average state
is a hodgepodge of languages, religions, and
ethnicities. While many countries may have a
culturally homogenous majority population, nearly
all have national, ethnic, linguistic, and religious
minorities as well.2
1 Abdulrahim P. Vijapur, “International Protection of
Minority Rights”, International Studies, vol. 43 (2006).
2 The term “minorities” as used in international
human rights law refers only to persons belonging to
ethnic, religious, or linguistic minorities, not to persons
belonging to other identity groups (such as persons
with disabilities or LGBT persons) sometimes referred
to as minorities in common usage.
HUMAN RIGHTS
There is no universally accepted definition of a
“minority” in international human rights law. This may
be because minorities live in such a wide variety
of situations: they may live together in well-defined
and separate enclaves, or they may be scattered
throughout one or more nations; they may have a
strong sense of group identity and a well-defined
history and culture; or they may have only a
fragmented knowledge of their common heritage.3
The Special Rapporteur on Prevention of
Discrimination and Protection of Minorities, Mr.
Francesco Capotorti, proposed the following
working definition in a 1979 report:
A group numerically inferior to the rest of the
population of a State and in a non-dominant
position, whose members … possess ethnic,
religious or linguistic characteristics differing
from those of the rest of the population and
show, if only implicitly, a sense of solidarity,
directed towards preserving their culture,
traditions, religion or language.4
As is implied by this definition, it should be noted at
the outset that while non-dominant minority groups
are considered “vulnerable” for the purposes of
human rights, not all minorities are subject to
oppression. Minority groups may hold a variety
of social, economic, and political positions within
a society; may have happy or hostile relations
with the majority and other minority groups; and
may be well integrated, rejected by the majority,
or resistant to assimilation. Differences among
majority and various minority groups may be
dramatic or inconsequential. Minorities may even
be economically or politically dominant within a
society, as was the case with the white minority in
apartheid South Africa.
3 OHCHR, “Toward Developing Country
Engagement Strategies on Minorities” (2008), p. 2.
4 E/CN.4/Sub.2/384/Rev.1 (1979), Francesco
Capotorti, “Study on the Rights of Persons
Belonging to Ethnic, Religious and Linguistic
Minorities”, para. 568. Mr. Capotorti originally
included a criterion of “nationality in the state” in
this definition, but such qualification is no longer
valid under international law, and Capotorti himself
dropped it in later works. See: Francesco Capotorti,
“Minorities”, Encyclopedia of Public International
Law, vol. 8, R. Bernhardt, ed. (1985).
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Despite this diversity of circumstance, minorities
in general have disproportionately been the
targets of xenophobia, racism, aggressive
nationalism, economic and political discrimination,
anti-Semitism, religious fanaticism, and other forms
of intolerance and oppression. Ethnic and religious
difficulties have led to civil and international war
and violations of the peace, and are therefore
matters of heightened global concern. The recent
tragedies of Rwanda, the former Yugoslavia, and
Sudan illustrate these problems all too well.
Minority Rights and Conflict
Prevention
“We must do more to prevent conflicts
happening at all. Most conflicts happen in
… countries … which are badly governed
or where power and wealth are very unfairly
distributed between ethnic or religious
groups. So the best way to prevent conflict
is promote political arrangements in which
all groups are fairly represented, combined
with human rights, minority rights and
broad-based economic development.”
Kofi Annan
from “Statement on Presenting
his Millennium Report” (2000)
The minority protection regime, like protections for
vulnerable groups discussed in Lessons 8, 9, and
10, must navigate the path between inclusion and
exclusion, between equality and difference. Should
the special protection system exist at all? Why
is it not enough to prohibit discrimination? Here,
this dilemma takes the form of a conflict between
ideals – the ideal of protecting and encouraging
diversity, and the ideal of equal protection – set
against a background of the familiar debate
between universalism and cultural relativism.5
Should international law recognize the right of
self-determination for minorities? Should different
rules apply to minority groups? How far should
respect for diversity extend? Should human rights
law only protect against outright discrimination
5 See discussion in Lesson 1.
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(promote formal equality), or should it include
a positive component, requiring states to assist
minorities in gaining equality (promote substantive
equality)? Does affording special protections to
minorities reinforce barriers, or break them down?
As Professor Patrick Macklem of the University of
Toronto writes:
Why should international human rights law
vest members of a minority community – either
individually or collectively – with rights that
secure a measure of autonomy from the state
in which they are located? To the extent that
the field offers answers to this question, it does
so from its deep commitment to the protection
of certain universal attributes of human identity
from the exercise of sovereign power. It protects
minority rights on the assumption that religious,
cultural and linguistic affiliations are essential
features of what it means to be a human being.
But its acceptance of this assumption is wary
and partial. Minority rights might protect key
features of human identity, but they possess
the capacity to divide people into different
communities, create insiders and outsiders,
pit ethnicity against ethnicity, and threaten the
universal aspirations that inform the dominant
understanding of the mission of the field.6
A Brief History of Minority Rights Under
International Law
Protecting minorities is one of the oldest human
rights causes addressed by international law.
Human rights scholar Professor Abdulrahim Vijapur
points out that as early as the seventh century, the
Prophet Mohammad drafted the “Constitution of
Medina”, which, following the laws of the Koran,
proscribed tolerance toward other faiths, and
allowed protected minority groups (particularly
the “people of the book”, meaning Christians and
Jews) to practice their religions and cultures and
self-administer their personal laws.7 In Europe, the
protection of national and religious minorities was
one of the precursors of modern-day human rights,
and has roots going back to the seventeenth century
6 Patrick Macklem, “Minority Rights in
International Law”, International Journal of
Constitutional Law, vol. 6 (2008).
7 Abdulrahim P. Vijapur, supra note 1, p. 368.
and the emergence of the Westphalian state.8
Because religious conflicts were the cause of a
great deal of strife on the European continent, early
peace treaties often included provisions protecting
religious minorities. In the eighteenth and nineteenth
centuries, for example, Western Europeans were
concerned with the situation of Christian minorities
in the Ottoman Empire, and sought treaties
protecting their rights in the East.9
The breakup of the Austro-Hungarian and Ottoman
empires during World War I refocused attention on
the protection of minority groups in the twentieth
century. As the idea of “the nation” became
increasingly important, the creation of ethnically
homogenous states became a popular goal. The
European powers broke up these former empires
into pieces based on their own conceptions
of where borders should be, transforming former
national minorities into majorities and creating new
minority populations in the process. Realizing that
perfect homogeneity was not possible, the League
of Nations established a regime to protect the rights
of minority groups in Central and Eastern Europe
(the victorious Western European states rejected
the application of such protections within their own
borders). However, the fact that this protective regime
was limited to only certain countries and certain
minority groups, in combination with the weakness of
the League of Nations, made it fairly ineffectual.10
Discrimination on the basis of ethnicity was a
particular concern of early human rights activists,
and was viewed as being of primary importance
in the context of World War II. As a UNESCO
document from 1945 stated: “the great and terrible
war which has now ended was a war made
possible by the denial of democratic principles of
the dignity, equality, and mutual respect for men,
and by the propagation, in their place, through
ignorance and prejudice, of the doctrine of the
inequality of men and races.”11
8 See discussion of the history of human rights in
Lesson 1.
9 Henry J. Steiner, Philip Alston, and Ryan
Goodman, International Human Rights in Context:
Law, Politics, Morals (New York, Oxford University
Press, 2008), p. 96.
10 Ibid., p. 97–8.
11 ECO/CONF./29 (16 November 1945),
UNESCO, Conference for the Establishment of the
HUMAN RIGHTS
People in the minority part of the town of Orahovac (Rahovec) in Kosovo.
(UN Photo #143759 by Flaka Kuqi, April 2007)
The 1948 UDHR makes no mention of minority
rights, but does prohibit discrimination on the basis
of “race, colour … , language, religion … , national
or social origin … or other status.”12 The Convention
on the Prevention and Punishment of the Crime of
Genocide (the Genocide Convention), signed the
same year, likewise makes no specific mention of
“minorities”, but provides protection against acts
intended “to destroy, in whole or in part, a national,
ethnical, racial or religious group.”13 And the 1966
International Convention on the Elimination of All
Forms of Racial Discrimination (CERD), the second
of the core UN human rights treaties to be adopted
by the General Assembly, prohibits “distinction,
exclusion, restriction or preference based on race,
colour, descent, or national or ethnic origin which
has the purpose or effect of nullifying or impairing
the recognition, enjoyment or exercise, on an equal
footing, of human rights and fundamental freedoms
in the political, economic, social, cultural or any
other field of public life.”14
United Nations Educational, Scientific, and Cultural
Organization, p. 93.
12 UDHR, Art. 2.
13 Convention on the Prevention and Punishment
of the Crime of Genocide (1950), Art. II. One
hundred and forty-two states are currently party
to the Genocide Convention. For an updated
list, see the website of the UN Treaty Service
at: <http://treaties.un.org/Pages/ViewDetails.
aspx?src=TREATY&mtdsg_no=IV-1&chapter=
4&lang= en>.
14 International Convention on the Elimination of
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Despite the omission of any explicit mention
of “minorities” from these treaties, in 1948 the
General Assembly established a Sub-Commission
on Prevention of Discrimination and Protection of
Minorities, which was instructed to undertake “a
thorough study of the problem of minorities.”15 It
was at this Sub-Commission’s behest that explicit
protections for minorities were finally included in
the 1966 ICCPR.
Protection of Minority Rights at the Global
Level
Over the past 40 years, there has been a major
shift in the protection of minorities from a model
based on encouraging assimilation into the dominant
culture, to a “multicultural model” that respects and
preserves ethnic, linguistic, and religious differences
through separate institutional mechanisms.16 Today,
the protection of minorities at the global level is
based on a so-called “two pillar” structure:17
I. Reiterating the general human rights that
are of special importance to minorities,
such as the right to freedom of association,
freedom of religion, and the right of parents
to choose an education for their children;
All Forms of Racial Discrimination (1966), Art. 1.
One hundred and seventy-five states are currently
party to CERD. For an updated list, see the website
of the UN Treaty Service at: <http://treaties.un.org/
Pages/ViewDetails.aspx?src=TREATY&mtdsg_
no=IV-2&chapter=4&lang= en>.
15 GA Res. 217A(III) (10 December 1948).
The Sub-Commission later morphed into the
Sub-Commission on the Promotion and Protection
of Human Rights, and later into the Human Rights
Council Advisory Body. See Lesson 4 for further
discussion of the Advisory Body and its work today.
16 Will Kymlicka, Multicultural Odysseys:
Navigating the New International Politics of Diversity
(New York, Oxford University Press, 2007), p. 3. The
rise of “integration” laws in some European states
may indicate, however, a swing back toward the
assimilationist paradigm in some places.
17 Kristin Henrard, “International Protection of
Minorities”, in Max Planck Encyclopedia of Public
International Law (2009), available from <www.
mpepil.com>.
222 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
II. Providing extra protections for minorities in
the areas of:
1. Promoting substantive equality
(equality in fact); and
2. Protecting minorities’ right to their
cultural, linguistic, and ethnic identity
(including by prohibiting forced
assimilation).
Importantly, these pillars focus on the individual
rights of members of minority groups, rather
than on their rights as a group. Professor Patrick
Thornberry argues that there are three basic
reasons for this:
The first is that the corporate conception
challenges State monopoly on power and
loyalty, purporting to create an “entity” with a
legal and moral existence, capable of reaching
international law directly over the heads of
governments. The second is self-determination:
it is sensed that reifying the group will
contribute to the intensification of its potential
for separatism. This also affects perceptions
of the legitimacy of autonomy – applauded but
not mandated by international law. The third
is cultural – the literature is full on “cultural
relativism”, often and unfairly carrying the
assumption that minorities are peculiarly
oppressive of women, dissidents, etc. All this
washes over minority rights with insinuations of
inadmissible practices.18
Because of concerns that protecting minorities’
group rights would lead to claims of external
self-determination and encourage secessionist
movements,19 or would disadvantage the “minority
within the minority” (such as women, children,
persons with disabilities, or other historically
disempowered groups who also belong to a
minority ethnic, linguistic, or religious group) by
18 Patrick Thornberry, “An Unfinished Story of
Minority Rights”, in Diversity in Action, Anna-Mária
Bíró and Petra Kovács, eds. (Budapest, Local
Government and Public Service Reform Initiative,
2001), pp. 70–1.
19 See discussion of self-determination in
Lesson 6.
being too deferential to minority claims of cultural
relativism,20 countries have been very careful to
ensure that the protection of minorities proceeded
on an individual-rights, non-discrimination basis.
Because minority persons’ individual rights to
cultural, linguistic, and ethnic identity must be
exercised in conjunction with other members of
the group, however, minority rights cannot entirely
escape their intrinsically collective character. For
this reason, they are sometimes known as hybrid
rights. The hybrid formation is evident in ICCPR
Article 27, which has become the pre-eminent
norm for the protection of minority rights:
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 practice
their own religion, or to use their own language.21
The Human Rights Commission has attempted to
clarify the individual versus collective content of
Article 27 in its General Comment No. 23, coming
down firmly against the idea that minorities are
entitled to the right to self-determination:
The Covenant draws a distinction between the
right to self-determination and the rights protected
under article 27. The former is expressed to be a
right belonging to peoples and is dealt with in a
separate part (Part I) of the Covenant …
The enjoyment of the rights to which article 27
relates does not prejudice the sovereignty and
territorial integrity of a State party.22
20 See: Susan Moller Okin (with respondents),
“Is Multiculturalism Bad for Women?”, in Is
Multiculturalism Bad for Women?, Joshua Cohen,
Matthew Howard, and Martha Nussbaum, eds.
(Princeton, Princeton University Press, 1999);
Ayelet Shachar, Multicultural Jurisdictions: Cultural
Differences and Women’s Rights (Cambridge,
Cambridge University Press, 2001). But see:
Will Kymlicka (arguing that minority rights do not
infringe on individual rights).
21 ICCPR, Art. 27.
22 Human Rights Commission, General Comment
No. 23, para. 3.1 and 3.2.
HUMAN RIGHTS
With respect to the content of minority rights under
Article 27, the Human Rights Committee has
made it clear that states have positive obligations
to secure the rights of minorities, particularly with
respect to preserving their cultures, languages,
and religions, and prohibiting forced assimilation.
These rights apply not only to citizens, but to any
minorities that exist within the borders of a state.23
For several decades, ICCPR Article 27 was the
primary global document for protecting minority
rights. In 1992, however, “in a climate of renewed
nationalism evidenced by the breakdown of
the Soviet Union and the stirrings of conflict
in Yugoslavia”,24 the United Nations General
Assembly adopted the Declaration on the Rights of
Persons Belonging to National or Ethnic, Religious
or Linguistic Minorities. Though non-binding, the
Declaration on the Rights of Minorities, as it is more
commonly known, specifically protects minorities’
right to their identities and stresses the importance
of substantive equality.25 It declares that minorities
have the right to enjoy their own culture, practice
their own religion, and use their own language; as
well as to participate in cultural, religious, social,
economic, and public life; to participate in decisions
at the national and regional level; and to associate
with other members of their own and other minority
groups.26 Notably, it also casts its protections in
individualistic term, referring to “persons belonging
to minorities” rather than “minority peoples.”
In addition, a Working Group on Minorities, which
has since 2007 been transformed into the Forum on
Minority Issues, was established in 1995 to oversee
the implementation of the Declaration.27 And in 2005,
the High Commissioner for Human Rights appointed
23 Human Rights Commission, General Comment
No. 23, para. 5.2.
24 Yousef T. Jabareen, “Toward Participatory
Equality: Protecting Minority Rights Under
International Law”, Israeli Law Review, vol. 423, No.
3 (2008), p. 648.
25 Declaration on the Rights of Persons Belonging
to National or Ethnic, Religious or Linguistic
Minorities (1992), Arts. 1–3.
26 Ibid.
27 For more information, see the OHCHR’s Forum
on Minority Issues page at: <http://www2.ohchr.org/
english/ bodies/hrcouncil/minority/forum.htm>.
| 223
an Independent Expert on Minority Issues to provide
advice on minority concerns.
UN Specialized Agencies like the ILO and UNESCO
have also contributed to protecting the right to work
and the cultural artifacts of minority groups.
Protection of Minority Rights at the Regional
Level
Europe is the only region that has developed
specific additional protections for the rights of
minorities. The European Charter of Human Rights,
adopted in 1950, expressly prohibits discrimination
based on “association with a national minority.”28
The Organization for Security and Cooperation
in Europe (OSCE) has been instrumental in the
protection of minorities. The Concluding Document
of the Copenhagen Meeting of the Conference on
the Human Dimension of the OSCE of 29 June
1990, for example, urges states to protect and
promote minority identities and assist minorities
in achieving substantive equality. A number
of recommendations on issues related to the
protection of minorities have also been issued.
Perhaps most prominently, the OSCE established
a High Commissioner on National Minorities in
1992.29 The work of the High Commissioner, who
gives recommendations and reports on the status
of minority populations in OSCE Member States,
has been significant for the protection of minority
rights in the past decade.
Within the Council of Europe, the 1992 European
Charter for Regional and Minority Languages and
the 1995 Framework Convention for the Protection
of National Minorities are the two human rights
documents addressed to minority communities.
The latter document is particularly important,
as it is legally binding and imposes enforceable
obligations on Member States.
The Commonwealth of Independent States and
the Central European Initiative have also produced
nonbinding documents protecting the rights of
minorities, particularly referencing the plight of the
Roma people.30
28 European Convention on the Protection of
Human Rights and Fundamental Freedoms (1950),
Art. 14.
29 See discussion in Lesson 5.
30 Patrick Thornberry, pp. 50–1.
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10.3 Indigenous Peoples’ Rights
As with ethnic, religious, and linguistic minorities,
there is no generally accepted definition of
“indigenous peoples” in international law. Many
proposals stress the idea of having a separate
cultural, religious, and linguistic identity. This
definition would position indigenous peoples very
close to or as a subset of ethnic, religious, and
linguistic minorities. Indeed, indigenous persons
are entitled to protection as minorities under ICCPR
Article 27.31 However, some indigenous peoples
reject being classified as minorities as it obscures
the long-term, geographically based, and colonially
tied nature of their claims and dilutes their unique
position in international law.
In an influential 1986 report, UN Special
Rapporteur José Martinez Cabo developed what
has become the generally accepted working
definition of indigenous peoples:
Indigenous communities, peoples and nations
are those which, having a historical continuity
with pre-invasion and pre-colonial societies
that developed on their territories, consider
themselves distinct from other sectors of the
societies now prevailing on those territories,
or parts of them. They form at present
non-dominant sectors of society and are
determined to preserve, develop and transmit
to future generations their ancestral territories,
and their ethnic identity, as the basis of their
continued existence as peoples, in accordance
with their own cultural patterns, social institutions
and legal systems.32
The UN Permanent Forum on Indigenous Issues
(PFII) estimates that there are currently some 370
million indigenous peoples spread throughout the
world.33
31 Human Rights Commission, General Comment
No. 23, paras. 3.2 and 7.
32 E/CN.4/Sub.2/1986/7/Add.4. Prepared by
the Special Rapporteur of the Sub-Commission
on Prevention of Discrimination and Protection
of Minoirites José R. Martinez Cobo in his 1986
“Study on the Problem of Discrimination against
Indigenous Populations”, para 379.
33 PFII, “Frequently Asked Questions: Declaration
Indigenous peoples are considered a “vulnerable
group” under international human rights law.
Their vulnerable status results from a long history
of discrimination that has led to an inequitable
distribution of social and material conditions
between indigenous and non-indigenous persons.
As Professor S. James Anaya, Special Rapporteur
on the situation of human rights and fundamental
freedoms of indigenous people, describes:
In the contemporary world, indigenous peoples
characteristically exist under conditions of severe
disadvantage relative to others within the states
constructed around them. Historical phenomena
grounded on racially discriminatory attitudes
are not just blemishes of the past but rather
translate into current inequities. Indigenous
peoples have been deprived of vast landholdings
and access to life-sustaining resources, and
they have suffered historical forces that have
actively suppressed their political and cultural
institutions. As a result, indigenous peoples
have been crippled economically and socially,
their cohesiveness as communities has been
damaged or threatened, and the integrity of
their cultures has been undermined. In both
industrial and less-developed countries in which
indigenous people live, the indigenous sectors
almost invariably are on the lowest rung of the
socioeconomic ladder, and they exist at the
margins of power.34
There are compelling reasons for including special
protections for indigenous peoples’ rights in
international human rights law. Nevertheless, this
set of special protections faces many of the same
questions that recurs for each of these regimes;
questions of equality and difference, inclusion
and exclusion, universality and cultural relativism.
Do special protections for indigenous peoples
reinforce the idea that they are different from other
groups? Is this a bad thing? Why should indigenous
peoples be treated better or worse than any other
minority group? Is protecting indigenous peoples
paternalistic? Does protecting indigenous peoples
entail allowing them to continue cultural practices
that are against national or international law?
Should it?
on the Rights of Indigenous Peoples”, p. 2.
34 S. James Anaya, Indigenous Peoples in
International Law (Second Edition) (New York,
Oxford University Press, 2004), p. 4.
HUMAN RIGHTS
A Brief History of Indigenous Peoples’ Rights
Under International Law
For much of history, international law was focused
not on assisting indigenous peoples, but on
facilitating their conquest and colonization by
European empires. The doctrines of discovery,
conquest, terra nullius, conversion, and the
infamous “white man’s burden” to civilize the
“barbarous” ruled the day.
Early efforts at making indigenous rights a
prominent part of international human rights law
were fairly unsuccessful. In 1923, for example,
Haudenosaunee Chief Deskaheh of Ontario
traveled to the League of Nations on behalf of
indigenous peoples and their rights, but was denied
the opportunity to speak.
The second half of the twentieth century has seen
a reversal of this pattern, and international human
rights law now protects both the individual and
collective rights of indigenous peoples. Indigenous
peoples’ rights can be generally divided into five
categories:35
• Non-discrimination: ensuring the equal
treatment of indigenous individuals and groups;
• Cultural integrity: protecting linguistic,
religious, cultural, and other aspects of
indigenous society;
• Social welfare and development: promoting
economic development for indigenous peoples;
• Lands and natural resources: protecting
the physical environment in which indigenous
peoples live, both ecologically and by protecting
their land tenure; and
• Self-government: the right to make
autonomous political choices.
The first three of these categories –
non-discrimination, cultural integrity, and social
welfare and development – parallel protections
afforded to all ethnic, linguistic, and cultural
minorities.
35 Ibid., pp. 8–9.
| 225
The fourth category of protections – covering
lands and natural resources – recognizes the deep
and enduring connections between indigenous
peoples, their lands, and the environment, and
focuses attention on the historical wrongs done
to indigenous communities via the confiscation of
their property.
The final category – concerning self-government –
alludes to the right to self-determination. The right
to self-determination is particularly important for
indigenous peoples. Indigenous groups all over the
world share a common history of colonialism and
conquest. As a result, indigenous claims, unlike
those of other minorities, recall the decolonization
struggles of the twentieth century. Because of
this, the international community has been more
willing to recognize indigenous claims for autonomy
and self-rule. In particular, indigenous peoples
have been successful in promoting a model of
self-government that provides collective autonomy
within existing state borders (rather than calling for
secession).
The International Labour Organization (ILO)
was one of the pioneers in protecting the rights
of indigenous persons at the international level.
ILO Convention No. 107 on Indigenous and
Tribal Populations (1957) was among the earliest
documents affording special protections for
indigenous groups. The Convention was criticized,
however, for its paternalistic model of integration
or assimilation rather than respect for autonomy.
As the 1986 World Council of Indigenous Peoples
voiced its disapproval of Convention No. 107:
The integrationist language of Convention No.
107 is outdated, and … the application of this
principle is destructive in the modern world.
In 1956 and 1957, when Convention No. 107
was being discussed, it was felt that integration
into the dominant national society offered the
best chance for these groups to be part of
the development process of the countries in
which they live. This had, however, resulted in
a number of undesirable consequences … In
practice it had become a concept which meant
the extinction of ways of life which are different
from that of the dominant society. The inclusion
of this idea in the text of the Convention has also
impeded indigenous and tribal peoples from
taking full advantage of the strong protections
226 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
offered in some parts of the Convention,
because of the distrust its use has created
among them. In this regard, it was recalled that
the Sub-Commission’s Special Rapporteur
had stressed in his study … the necessity of
adopting an approach which took account of
the claims of indigenous populations. In his
opinion, the policies of pluralism, self-sufficiency,
self-management and ethno-development
appeared to be those that would give indigenous
populations the best possibilities and means
of participating directly in the formulation and
implementation of official policies.36
In response to these criticisms, in 1989 the ILO
adopted a new Convention No. 169 on Indigenous
and Tribal Peoples. Convention No. 169 recognizes
“the aspirations of [indigenous] 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.”37 In furtherance of this goal, it includes
protections in each of the five areas of concern
mentioned above.
Convention No. 169 was an improvement over
Convention No. 107. However, advocates of
indigenous rights argued that it was too weak,
and did not adequately limit state governments’
control over indigenous peoples. Additionally,
Convention No. 169 waffled on the inclusion of the
word “peoples” because of its associations with
self-determination and secession, and the final text
included a caveat specifying that “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.”38 Despite this concession, the Convention
received only 22 ratifications, mostly from the
36 Report of the Meeting of Experts, para.
46, reprinted in part in Partial Revision of the
Indigenous and Tribal Populations Convention,
1957 (No. 107), Report 6(1), International Labour
Conference, 75th Session, at 100–18 (1988).
37 Convention No. 169 Concerning Indigenous
and Tribal Peoples in Independent Countries, June
27, 1989, International Labour Conference (entered
into force Sept. 5, 1991), Preamble.
38 Convention No. 169, Art. 1, para. 3.
Americas.39 Nevertheless, it brought attention
to and consolidated the specific human rights of
indigenous peoples, and made the need for a UN
document apparent.

As a result of ongoing indigenous organizing

and advocacy at the global level, the issue of
indigenous peoples’ rights was finally planted on
the agenda of the UN in the 1990s. In recognition
of this growing international attention to indigenous
peoples’ rights, the General Assembly declared
1995–2004 the International Decade of the World’s
Indigenous People, and a Second Decade of
the World’s Indigenous People from 2005–2015.
During this period, the UN Working Group on
Indigenous Populations, founded in 1982, began
to formulate a draft declaration on the rights of
indigenous peoples, along with the assistance of
the indigenous community.

Declaration on the Rights of Indigenous

Peoples (DRIP)

In 2007, after more than 20 years of work, the

UN GA adopted the most important global
document on the rights of indigenous peoples:
the Declaration on the Rights of Indigenous
Peoples. The Declaration was adopted with 143
votes in favour, four opposed (Canada, Australia,
New Zealand, and the United States), and 11
abstentions.40
The Declaration on the Rights of Indigenous
Peoples protects indigenous life, integrity, and
security. It addresses genocide, the education
of indigenous children, and the military use of
indigenous land. It includes a variety of land rights,
such as the right to engage in traditional activities,
control over natural resources, and the right to
develop and manage indigenous lands. It also
addresses concerns about intellectual property41
and redress for past injustices.
39 An updated list of all signatories to ILO
Convention No. 169 can be viewed at: <http://www.
ilo.org/ilolex/cgi-lex/ratifce.pl?C169>.
40 The voting record of the GA on the Declaration
on the Rights of Indigenous Peoples can be
viewed at: <unbisnet.un.org:8080/ipac20/ipac.
jsp?profile=voting&index=.VM&term=ares61295>.
41 See Lesson 15 for a discussion of intellectual
property and human rights.
One of the participants of the seventh session of the
United Nations Permanent Forum on Indigenous Issues on
the theme, “Climate change, bio-cultural diversity and
livelihoods: the stewardship role of indigenous peoples
and new challenges.” (UN Photo #174915 by Paulo
Figueriras, April 2008)
In contrast with minorities more generally,
indigenous peoples are unambiguously understood
to hold some collective rights. The Declaration
explicitly recognizes the right to self-determination,
the right to autonomy or self-government, and
the right to be free of genocide and the forcible
removal of children in addition to individual rights.
The protection of indigenous peoples’ right to
self-determination is considered by many to be the
cornerstone of the Declaration, without which the
other rights it protects would not be effective.42 Like
ethnic, linguistic, and religious minorities, indigenous
peoples enjoy hybrid rights, such as the prohibition
of forced assimilation, that are held by individuals
but apply only in the context of the group.
42 Megan Davis, “Indigenous Struggles in
Standard-Setting: the United Nations Declaration
on the Rights of Indigenous Peoples”, Melbourne
Journal of International Law, vol. 9 (2008).

HUMAN RIGHTS | 227

In general, the Declaration’s protection of
indigenous peoples’ rights is stronger and contains
fewer qualifiers than do comparable protections for
ethnic, religious and linguistic minorities. All five
categories of rights necessary for the preservation
of indigenous integrity, identity, and autonomy are
present. The term “peoples” is used throughout,
and the caveat appended to ILO Convention No.
169 has been eliminated.
The Declaration on the Rights of Indigenous
Peoples is a Declaration, not a Convention,
and therefore contains no legal enforcement
mechanisms. However, it emphasizes the “urgent
need to respect and promote the inherent rights of
indigenous peoples” and, like ILO Convention No.
169, provides an aspirational basis from which the
UN, NGOs, and states can begin to work.
Indigenous Rights at the Global Level
In addition to ILO Convention No. 169 and the UN
Declaration on the Rights of Indigenous Peoples,
several other agreements and institutions protect
the rights of indigenous peoples at the global level.
A Permanent Forum on Indigenous Issues (PFII)
has been established under ECOSOC to provide
information and raise awareness on indigenous
peoples rights.43 The Permanent Forum met for
the first time in 2002, and since then has issued a
number of recommendations in its six mandated
areas of concern:
• Economic and social development;
• Culture;
• Environment;
• Education;
• Health; and
• Human rights.
A UN Voluntary Fund for Indigenous Populations,
created in 1985, provides financial assistance to
representatives of indigenous communities and
43 For more on the Permanent Forum on
Indigenous Issues (PFII) in the context of the
Economic and Social Council (ECOSOC), see
discussion in Lesson 4.
228 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
organizations for the purpose of attending and
participating in UN discussions on indigenous
issues. An Expert Mechanism on the Rights of
Indigenous Peoples provides thematic assistance
on Indigenous issues to the Human Rights
Council. In addition to these permanent agencies,
the Human Rights Council oversees a Special
Rapporteur on the situation of human rights and
fundamental freedoms of indigenous people, as
well as an Expert Mechanism on the Rights of
Indigenous Peoples, both of which play a role in
promoting and implementing the Declaration.
A number of the other international human rights
treaties also specifically address indigenous persons.
The CRC protects the rights of indigenous children
to culture, religion, and language. The CEDAW
Committee noted the special circumstances faced
by indigenous women in General Recommendation
No. 24 on women and health. The Human Rights
Committee has favoured an interpretation of Article
27 that includes strong indigenous land rights.44 And
the Committee on Economic, Social and Cultural
Rights’ General Comment 14 recognizes the right of
indigenous peoples to control their own health and
medical care.
The CERD Committee has been especially active,
issuing several general recommendations on
indigenous issues: General Recommendation
No. 23 on Indigenous Rights under the
International Convention on the Elimination of
Racial Discrimination established that CERD’s
nondiscrimination norms apply to aspects of
indigenous culture, language, development,
participatory rights, and rights over territories
and resources;45 General Recommendation
No. 25 on gender related dimensions of racial
discrimination recognized indigenous peoples’
particular vulnerability to gender-based human
rights violations; and General Recommendation
No. 31 on the prevention of racial discrimination in
the administration and functioning of the criminal
justice system addressed indigenous persons’
special needs in the judicial context.
44 CCPR/C/73/D/779/1997, Äärelä and
Näkkäläjärvi v. Finland, HRC, Communication No.
779/1997. (24 October 2001).
45 CERD Committee, General Recommendation
No. 23 (1997).
A number of international environmental
agreements have also paid special attention to the
needs of indigenous people. The Rio Declaration,
Agenda 21, the Convention on Biological
Diversity,46 and others all make particular mention
of indigenous peoples, their connection with tribal
lands, the value of traditional knowledge, and the
need to protect the environment that sustains them.
Indigenous Rights at the Regional Level
At the regional level, the Inter-American
Commission and Court have been particularly
active in protecting the rights of indigenous
peoples, and have interpreted the Declaration of
the Rights and Duties of Man and the American
Convention on Human Rights to take into account
the needs of indigenous communities. For example,
in the case of Mayagna (Sumo) Community of
Awas Tingni v. Nicaragua, the Court ruled against
Nicaragua for having granted a private corporation
a concession for exploiting natural resources
located in the Awas Tingni indigenous community’s
ancestral territory. The Court deemed that the
concession was in violation of the American
Convention’s right to property, which encompasses
“the [collective] rights of members of the indigenous
communities within the framework of communal
property … [which] is not centred on an individual
but rather on the group and its community.”47 This
was the first binding international decision to
recognize indigenous peoples’ collective right to
property in their traditional lands even outside the
formal system of deeds and contracts.
The African system has also expanded its
protection of indigenous rights. The African
Commission on Human and Peoples’ Rights
established a Working Group on indigenous
peoples/communities in 2002. The Working
Group published its first report in 2003, in
which it confirmed that indigenous peoples are
“discriminated in particular ways because of
their particular culture, mode of production and
46 Convention on Biological Diversity, Art. 8(j).
47 Mayagna (Sumo) Community of Awas Tingni v.
Nicaragua, Inter-American Court of Human Rights,
Series C No. 79, Judgment of 31 August 2001,
para. 148.
HUMAN RIGHTS
marginalized position within the state.”48 The
Commission has also decided several cases
dealing with indigenous peoples’ rights. Most
famous among these is the 2001 case of the
indigenous Ogoni People of Nigeria, in which the
Commission held that pollution and environmental
degradation caused by oil exploration in Ogoni
ancestral territory was in violation of the right
to a satisfactory environment under the African
Charter.49
10.4 The Protection of Refugees
Refugees as a Vulnerable Group
Population displacement is a phenomenon that
has grown in both size and complexity over the
past century. People may be forced to leave their
homes for a variety of reasons: due to war or
armed conflict; disease; lack of basic necessities;
persecution; natural disaster; economic hardship; or
any combination thereof. Some of these displaced
people will move across international borders, others
will travel to a new location within their home state.
Some will find assistance and shelter, others will
encounter hardship and rejection. All of these people
will face difficulties as a result of their displacement.
But only some are refugees.
According to international law, refugees are
persons who flee their homes to seek asylum from
certain types of persecution in another country,
and who are unwilling or unable to return to their
state of origin. This definition is fairly restricted,
and only those who meet all of the necessary
criteria can be legally considered “refugees.” The
United Nations High Commissioner for Refugees
(UNHCR) estimates that at the end of 2008 there
were approximately 42 million people worldwide
who had been displaced by armed conflict, an
additional 25 million who had been displaced by
48 African Commission on Human and Peoples’
Rights, Report of the African Commission’s
Working Group of Experts on Indigenous
Populations / Communities (2005), p. 88.
49 The Social and Economic Rights Action Center
and the Center for Economic and Social Rights
v. Nigeria, African Commission on Human and
Peoples’ Rights, Comm. No. 155/96 (2001).
| 229
natural disasters, and countless others who left
their homes due to hardships of other kinds. Of
these, only16 million were classified as refugees.50
Refugees are granted special protection under
international law. Historically, this was because
when a refugee fled her state of origin she either
lost or was unable or unwilling to invoke the
protection of her government. This was a major
problem under the Westphalian system of the
nineteenth and early twentieth century, in which
individuals had no direct rights under international
law and had to rely on the diplomatic protection
of their state.51 Without a government that could
intervene on their behalf, refugees were particularly
vulnerable to abuse and exploitation. While today
individuals are directly protected under international
law, refugees remain in a precarious position.
As you read through the following summary
of international human rights law as it applies
to refugees, you will notice that perhaps the
most important component of the regime is the
classification process. When a person is classified
as having refugee status (as opposed to being an
economic migrant or internally displaced person, for
example), this identity becomes the key that unlocks
all of the benefits and special protections available
under international law. Activists have fought to
expand this definition and extend protection to
additional categories of peoples. Others have
sought to limit it, arguing that refugee status should
be reserved for only the most desperate cases of
persecution. The fight over definitions is sometimes
fierce. There are many contested categories: what
types of risks, harm, and suffering make a person
deserving of refugee status? Bodily harm? Psychic
trauma? Economic oppression? Must a person
have left their country of origin to be considered a
refugee? Or is leaving one part of the country to find
refuge in another enough? How great must the risk
of harm upon returning be?
50 UNHCR, 2008 Global Trends: Refugees,
Asylum-seekers, Returnees, Internally Displaced
and Stateless Persons (2009), p. 3.
51 See discussion of the Westphalian system in
Lesson 1.
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A Brief History of Refugees’ Rights in
International Law
The protection of refugees was an early target
of international human rights and humanitarian
law. The League of Nations launched several
programmes for assisting and repatriating
refugees following World War I. It established
a High Commissioner for Russian Refugees in
1921 to support refugees in the wake of the Soviet
revolution. In 1933, the League appointed a High
Commissioner for Refugees coming from Germany,
who helped find permanent homes – many in
Palestine – for refugees fleeing Hitler’s Reich.
Finally, in 1938 the League established a High
Commissioner for Refugees and Intergovernmental
Committee on Refugees initially concerned with
forced emigration from Germany and Austria, and
later with all refugees groups in Europe during the
Second World War.52
During World War II, some 1.2 million people
were dislodged from their homes. Large numbers
fled across national borders seeking shelter
from the war in safer territories. The protection
and resettlement of these refugees was one of
the immediate concerns of the newly formed
United Nations. In 1947, the UN founded the
International Refugee Organization (IRO), the first
international agency to deal comprehensively with
the protection of refugees. The right to seek and
enjoy asylum was included as Article 14 of the
UDHR. When the IRO fell out of favour, in 1950 the
GA established the Office of the United Nations
High Commissioner for Refugees (UNHCR) to
provide, on a non-political and humanitarian
basis, international protection to refugees and to
seek permanent solutions for their repatriation or
resettlement.53
The 1951 Refugee Convention
In addition to establishing UNHCR, governments
adopted the Convention Relating to the Status of
Refugees (Refugee Convention) in 1951. Today, the
Refugee Convention is the most comprehensive
international legal document providing protection
for refugees. It defines who is a refugee and sets
standards for assistance and treatment.
52 UNHCR, An Introduction to International
Protection: Protecting Persons of Concern to
UNHCR (2005), pp. 5–6.
53 Ibid., pp. 6–7.
During the drafting process, governments were
split over whether the Refugee Convention should
include a general legal commitment to help
refugees or a more limited mandate focusing on
the needs of persons displaced during World War
II. This debate crystallized around the definition
of who should be considered a refugee under the
Convention. One group of states proposed an
open-ended definition that would apply generally to
all refugees, while a second group wanted to limit
the definition to what already existed under prior
treaties. The compromise position that eventually
emerged contained a general definition of “refugee”
based on the concept of a “well-founded fear of
persecution”, but was limited by (1) a temporal
constraint that the Convention applied only to
those who had become refugees “as a result of
events occurring before I January 1951”; and (2)
an optional geographical limitation that could be
imposed by interpreting the word “events” to mean
“events in Europe.” The Refugee Convention thus
defines a refugee as:
any person who … 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 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.54
Under this definition, persons fleeing natural
disasters are not refugees. Nor are persons
who flee armed conflict, but do not cross an
international border. Neither are persons who
leave their countries solely to improve their
economic situation. Further, persons who flee the
“indiscriminate effects” of conflict do not qualify: a
“refugee” must suffer targeted persecution on the
basis of one of the Convention grounds.
54 Convention Relating to the Status of Refugees,
G.A. Res. 2198 (XXI) (1951), Art. 1(A)(2).
HUMAN RIGHTS
Who Is a Refugee?
Under the 1951 Refugee Convention and its
1967 Protocol, a refugee is someone who:
• Has a well-founded fear of persecution
because of his or her:
• Race;
• Religion;
• Nationality;
• Membership in a particular social
group; or
• Political Opinion;
• Is outside his or her country of origin or
habitual residence; and
• Because of fear of persecution, is unable
or unwilling to seek the protection of that
country or to return there.
Under this definition, all three criteria must all
be met for a person to qualify as a refugee.
This definition was altered by the 1967 Protocol to
the Convention Relating to the Status of Refugees,
which broadened the definition of a refugee and
removed the temporal and geographical limitations
of the 1951 Refugee Convention.
Arguably the most important protection under
the Refugee Convention is the obligation of
non-refoulement (“not to send back”). This principle
forbids states from returning a refugee to a territory
in which her life or freedom would be in danger as
a result of her membership in a protected class:
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
| 231
 a final judgment of a particularly serious crime,
constitutes a danger to the community of that
country.55
The Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment
(CAT) also prohibits non-refoulement:
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.56
In contrast with the Refugee Convention, CAT’s
prohibition of non-refoulement is absolute:
protection against return to a country where
a person may be subjected to torture is not
contingent on a well-founded fear of persecution on
account of race, religion, nationality, membership of
a particular social group, or political opinion. There
are no exceptions to this protection.
Non-refoulement does not require a country to
grant asylum to all persons seeking entry, but it
does mean that if a country refuses asylum to a
group of refugees, it must send the refugees on to
another safe destination and not back to a country
in which they may suffer harm. It is generally
accepted that non-refoulement has become a part
of customary international law,57 so all states are
required to respect this principle even if they are
not party to the Refugee Convention or the CAT.58
Certain groups can be denied the protection of the
Refugee Convention if they fall under one of the
exclusion clauses. According to Article 1(f), refugee
status under the Convention does not apply if
there are “serious reasons” for believing that the
asylum-seeker has committed one of the following
crimes:
55 Refugee Convention, Art. 33(1).
56 CAT, Art. 3(1).
57 See box in Lesson 1.
58 Guy Goodwin-Gill and Jane McAdam, The
Refugee in International Law (Third Edition) (New
York, Oxford University Press, 2007), pp. 345–54.
See discussion of customary international law in
the context of the UDHR in Lesson 1.
232 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
• Crimes against peace, war crimes, or crimes
against humanity;
• Serious non-political crimes; or
• Acts contrary to the purposes and principles of
the United Nations.59
Additionally, the Refugee Convention’s protections
only apply during a limited period of time.
According to the Convention’s “cessation clauses”,
a person ceases to be a protected refugee if she:
• Voluntarily re-avails herself of the protection of
the country of nationality;
• Voluntarily reacquires her lost nationality;
• Acquires a new nationality and the protection of
a new country;
• Voluntarily re-establishes herself in the country
which she previously fled due to fear of
prosecution; or
• The circumstances that caused the person to
become a refugee have ceased to exist.60
The UNHCR – an independent UN specialized
agency, not a treaty body – is charged with
monitoring the implementation of the Refugee
Convention and its 1967 Protocol. Unlike in many
other treaties we have studied, there is no periodic
reporting requirement in the Refugee Convention,
and no individual complaints procedure has
been established. However, the Convention and
Protocol do oblige states to submit information to
the UNHCR regarding the status of refugees and
national progress on implementation.
Refugee Rights at the Global Level
The mission of UNHCR has expanded steadily
over time, and today it is one of the largest and
most important humanitarian agencies in the
UN system. With a staff of over 6000 and a
presence in some 110 countries, UNHCR has
become a primary player in safeguarding the
rights and well-being of refugees. Since 1950,
the General Assembly and ECOSOC resolutions
have greatly expanded UNHCR’s responsibilities.
UNHCR continues to monitor implementation of
59 Refugee Convention, Art. 1(f).
60 Ibid., Art. 1(c).
the Refugee Convention and related aspects of
international refugee law. It now also provides
basic services such as food, water, and shelter
to persons caught in humanitarian emergencies,
and it provides protection and assistance to a wide
array of “persons of concern” other than refugees,
including:
• Returnees: former refugees who have returned
to their homeland;
• Internally displaced persons (IDPs): those
who were forced to flee their homes but have not
crossed international border; and
• Stateless persons: those who have no
nationality or are of disputed nationality.
Although refugee protection has made serious
headway in the decades since the Refugee
Convention was signed, there remain large gaps
in the protection of this vulnerable group. Many of
these lacunae are the result of the strict and limited
definition of a “refugee” as someone who has a
well-founded fear of persecution based on race,
religion, nationality, membership in a particular
social group, or political opinion.
One such gap results from the omission of
“persecution based on gender” from this list. Many
forms of persecution target women, particularly
women who transgress social and gender norms.
Traditionally, women who were persecuted
simply because of their gender did not qualify
for protection under the Refugee Convention. In
recent years, however, there has been growing
movement to recognize persecution based on
gender under the rubric of “membership of a
particular social group.” In 1985 the Executive
Committee of the High Commissioner for Human
Rights recommended that countries consider
women persecuted for violating social and cultural
traditions as members of a particular social
group,61 and the 1991 UNHCR Guidelines on the
Protection of Refugee Women focused specifically
on the problems faced by women in refugee
situations and reiterated the High Commissioner’s
recommendation.62 Nevertheless, the situation of
61 ExCom Conclusion No. 39 (XXXVI) Refugee
Women and International Protection (1985), paras.
B and k.
62 See: HRC/GIP/02/01 (7 May 2002),
HUMAN RIGHTS
those persecuted on the basis of gender remains
insecure, and states may choose whether or not
to recognize the refugee status of women so
persecuted. As a result, women’s rights groups
continue to advocate for the inclusion of a sixth
ground of persecution in the definition of refugee:
gender.
Another gap concerns the problem of internally
displaced persons (IDPs). IDPs are people who
have been displaced by wars, natural catastrophes,
or generalized violence, but who have not crossed
an international border. Instead, IDPs have
moved internally to safer areas within their home
countries. Because they have not crossed an
international border, IDPs technically still enjoy
the legal protection of their home governments,
and are therefore not covered under the Refugee
Convention. This is true even when IDPs have
fled from their homes due to a well-grounded fear
of persecution based on one of the five permitted
grounds in the Refugee Convention.
New residents of the Roghani Refugee Camp in Chaman, a Pakistani
border town. Children and young people make up a large percentage of
the population at Roghani Refugee Camp.
(UN Photo #31609 by Luke Powell, December 2001)
The number of IDPs has ballooned over the last
several decades to nearly double the number
of traditional refugees: UNHCR estimates that
at the end of 2007 there were approximately 26
UNHCR, Guidelines on International Protection:
Gender-Related Persecution within the Context of
Article 1A(2).
| 233
million IDPs displaced by war or armed conflict,
in comparison with 16 million refugees and
asylum-seekers.63 In recent years the international
community has begun to recognize that the legal
protection afforded to IDPs is in many cases
illusory, and that this group of vulnerable persons
should be afforded protection under international
law. In December 2005, UNHCR and several
other international agencies endorsed the “Cluster
Approach” for situations of internal displacement.
Under this new arrangement, UNHCR is
responsible for three of nine “clusters” of IDP
services: protection, emergency shelter, and
camp-coordination and management. As a result,
UNHCR now provides assistance to just over half of
the world’s 26 million internally displaced persons.64
Despite these advances, IDPs still have no targeted
special protection regime under global human rights
law, and activists continue to press for reforms.
Writing Exercise 10: Am I A Refugee?
You are working for a humanitarian organization
in a small country that has just undergone a civil
war. Many people have been displaced from their
homes as a result of the violence, and some
have crossed into neighbouring states. Some
have suffered intimidation, threats, and worse
from the government as a result of their political
views. Your supervisor has asked you to collect
statistics on the situation so that she can request
assistance from international agencies.
Consider the following questions and write a
brief report (maximum one page).
• Which of the displaced people in this
country are potentially refugees? Which
are IDPs?
• What criteria are relevant for making this
distinction?
• What types of protections do refugees
have that IDPs do not? Why might a
displaced person prefer to be classified
as a refugee?
63 UNHCR, 2008 Global Trends: Refugees,
Asylum-seekers, Returnees, Internally Displaced
and Stateless Persons (2009), p. 2.
64 Ibid., p. 3.
234 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
Refugee Rights at the Regional Level
In the European system, Article 3 of the
European Convention on Human Rights prohibits
refoulement. The European states are in the
process of implementing a Common European
Asylum System, and the European institutions
have been fairly active in ensuring the protection of
refugees and asylum seekers.
In the African system, the African Charter on
Human and Peoples’ Rights recognizes the right “to
seek and obtain asylum in other countries.”65 The
Organization of African Unity (OAU) has adopted
the 1969 Convention Governing the Specific
Aspects of Refugee Problems in Africa. Article
1(2) of this treaty expands on the definition of a
refugee contained in the 1951 Refugee Convention,
including in addition to the standard definition:
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.
In the Inter-American system, the American
Declaration of the Rights and Duties of Man
establishes that “Every person has the right, in
case of pursuit not resulting from ordinary crimes,
to seek and receive asylum in foreign territory,
in accordance with the laws of each country and
with international agreements.”66 The American
Convention on Human Rights recognizes the “right
to seek and be granted asylum” and prohibits
refoulement.67 Additionally, Conclusion 3 of the
1984 Cartagena Declaration on Refugees, like
the African Convention Governing the Specific
Aspects of Refugee Problems in Africa, expands
the Refugee Convention definition of a refugee to
include:
65 African Charter on Human and Peoples’ Rights,
Art. 12.
66 American Declaration of the Rights and Duties
of Man, Art. XXVII.
67 American Convention on Human Rights, Art.
22.
 persons who have fled their country because Further Reading
their lives, safety or freedom have been
threatened by generalized violence, foreign S. James Anaya, Indigenous Peoples in International
aggression, internal conflicts, massive violation Law (Second Edition) (2004); Guy Goodwin-Gill and
of human rights or other circumstances which Jane McAdam, The Refugee in International Law
have seriously disturbed public order. (Third Edition) (2007); Will Kymlicka, Multicultural
Odysseys: Navigating the New International Politics
The Cartagena Declaration is not binding on of Diversity (2007); Alexandra Xanthaki, “Indigenous
States, but is applied in practice in a number of Rights in International Law Over the Last 10 Years
Latin American countries. and Future Developments”, Melbourne Journal of
International Law, vol. 10 (2009).
In addition, certain Asian, Middle Eastern, and
African states adopted the Bangkok Principles on Websites for Further Information
the Status and Treatment of Refugees in 1966. The
principles, updated in 2001, also include a broader OHCHR Minorities page:
definition of “refugee.” www2.ohchr.org/english/issues/minorities/
index.htm
Conclusion
PFII: www.un.org/esa/socdev/unpfii/
We have now completed our examination of the
protection of vulnerable persons and groups under UNHCR: www.unhcr.org/cgi-bin/texis/vtx/home
international human rights law. As mentioned at
the beginning of Lesson 8, there are many other
vulnerable groups in addition to the six that we
have discussed, and some of these also receive
special protection under international law. Now that
you are familiar with a number of special protection
regimes, you should be able to examine, analyze,
compare, and critique these regimes on your
own. The fundamental questions – of equality and
difference, inclusion and exclusion, individuals and
groups, universalism and cultural relativism – echo
across each of them in a similar way.

In Lessons 11, 12, and 13 we will turn to another

special segment of international human rights
law, focusing on its application in times of war
and conflict and its intersections with international
humanitarian and criminal law.

HUMAN RIGHTS | 235

End-of-Lesson Quiz
1. Which of the following is a “minority” for
the purposes of international human rights
law?
A. A small group of persons with a different
ethnicity from the majority population;
B. A small group of persons with a different sexual
orientation or gender identity from the majority
population;
C. A large group of persons who practice a
religion that is popular in their country, but
unpopular in global terms;
D. A small group of persons with disabilities.
2. Which of the following best describes the
situation of minorities:
A. Minorities are always victims of oppression;
B. Minorities are always rejected by the majority
population;
C. Minorities always assimilate into the majority
population;
D. Minorities may be dominant or non-dominant,
and may assimilate into, be rejected from, or
choose to remain separate from the majority
population.
3. Which of the following is NOT a reason why
the international community has articulated
minority rights as individual rather than
group rights?
A. Fear that protecting minorities as a group will
lead to increased claims for secession and
self-determination;
B. Fear that protecting minorities as a group will
lead to the oppression of “minorities within the
minority”;
C. Many states do not believe that minorities exist;
D. Fear that protecting minorities as a group will
challenge state power.
236 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
4. Article ___________________ of the
ICCPR is the pre-eminent provision for the
protection of minority rights.
5. Which of the following is the only region
that has developed specific protections for
minorities?
A. Africa;
B. Europe;
C. Asia;
D. The Americas.
6. Which of the following is NOT an important
category of current protections for
indigenous peoples under international
human rights law?
A. Self-determination;
B. Non-discrimination;
C. Assimilation;
D. Cultural integrity.
7. Which of the following intergovernmental
organizations was the author of the first
major international conventions for the
protection of indigenous peoples’ rights?
A. The International Labour Organization (ILO);
B. The Human Rights Council;
C. The Permanent Forum on Indigenous Issues
(PFII);
D. The United Nations Educational, Scientific and
Cultural Organization (UNESCO).
8. The UN Declaration on the Rights of
Indigenous Peoples was adopted in:
A. 1948;
B. 1966;
C. 1989;
D. 2007.
9. The Declaration on the Rights of Indigenous
Peoples protects:
A. Only individual rights;
B. Both individual and group rights;
C. Only group rights, and revokes the individual
rights of indigenous peoples;
D. Neither individual nor group rights.

10. Which two regions have been most active in

protecting the rights of indigenous peoples?
A. Africa and the Americas;
B. Europe and the Americas;
C. Africa and Europe;
D. Europe and Asia.

ANSWER KEY
1A, 2D, 3C, 4 27, 5B, 6C, 7A, 8D, 9B, 10A

HUMAN RIGHTS | 237

LESSON 11
HUMAN RIGHTS DURING
ARMED CONFLICT I:
JUS AD BELLUM AND
THE RESPONSIBILITY TO PROTECT
 LESSON
11

LESSON OBJECTIVES

11.1 Introduction By the end of Lesson 11, the student should be able to meet the
following objectives:
11.2 Jus ad Bellum
11.3 Responsibility to • Appreciate the differences between jus ad bellum, international
Protect humanitarian law, international criminal law, and international
human rights law;
• Understand the relationship between human rights and armed
conflict;
• Describe the current jus ad bellum;
• Identify and explain the two exceptions to the prohibition on the use
of force; and
• Understand the debate over humanitarian intervention and the
Responsibility to Protect.

To view a video introduction of this lesson by the

course author Jessica C. Lawrence, you can
either log in to your virtual classroom, go to www.
peaceopstraining.org/users/media_page/384/
lesson-11, or use your mobile device to scan the
QR code to the left.
11.1 Introduction
Human Rights and Conflict
Human rights abuses can be both symptoms and
causes of conflict.
Armed conflict can be the cause of human
rights violations, both directly and indirectly.
Warring parties kill, rape, torture, and maim their
enemies, often indiscriminately. Instability and
insecurity force people from their homes and
into vulnerable positions as refugees or internally
displaced persons. Damage to the environment
and infrastructure endangers human rights like the
rights to health, work, and food.
Conversely, the deprivation of human rights can
cause conflict. Governments that ignore abuses
of minorities encourage the build-up of tensions,
which can lead to ethnic violence. An abused
population may revolt against conditions of
deprivation and disrespect for their human dignity.
Leaders may whip up support for a war by calling
on the public to take revenge for historical abuses
of human rights. Serbian leaders in the former
Yugoslavia, for example, urged Serbs to join them
in their separatist struggle by invoking real and
imagined World War II–era violations of Serbian
human rights by other Yugoslav national groups.1
Long-term systemic abuses of human rights can
serve to dehumanize a population, threatening
individual and group security. This dehumanization
can cause one group to begin to commit violence
against another, as happened in Rwanda, when
Hutu leaders used propaganda and now-infamous
radio broadcasts to dehumanize and later incite
genocide against the Tutsi opposition. Moreover,
demands for rights can cause conflict outright, as
value systems clash:
Human rights principles themselves and the
values that they seek to legalize often contribute
to conflicts over state making and state breaking.
1 Ellen L. Lutz, “Understanding Human Rights
Violations in Armed Conflict”, in Julie A. Mertus
and Jeffrey W. Helsing, eds., Human Rights &
Conflict: Exploring the Links between Rights, Law,
and Peacebuilding (Washington, DC, United States
Institute of Peace, 2006).
HUMAN RIGHTS
Differing human rights come into conflict with
one another, and the principles and discourse
of human rights themselves can contribute to
violent conflict. Human rights are not simply
something that may or may not be abridged or
enforced amid or after a conflict; they are often
what the conflict is about.2
Likewise, human rights abuses can be invoked
by states or by the international community as a
justification for armed intervention or preemptive
war. U.S. President George H. W. Bush, for example,
drummed up support for the first Iraq war by citing
abuses committed by Iraqi soldiers during their
invasion of Kuwait.3 And President George W. Bush
pointed to violations of women’s rights as a partial
justification for the U.S. invasion of Afghanistan.4
The deprivation of human rights can also intensify
an ongoing conflict. As Louis Kriesberg, Professor
Emeritus at the University of Syracuse notes,
“inhumane treatment deepens the antagonism and
the desire to continue the struggle and even to
seek revenge. The callous and indiscriminate use
of violence, intended to intimidate and suppress the
enemy, is frequently counterproductive, prolonging
a struggle and making an enduring peace more
difficult to attain.”5 Dehumanization of troops by
labeling them animals, subhuman, or evil prepares
the way for future abuses. Ignoring complaints
of violations can ramp up the intensity of a fight.
Brutality during war can make it difficult to reach a
peaceful settlement – memories last long. Human
2 Michael S. Lund, “Human Rights: A Source of
Conflict, State Making, and State Breaking”, in Julie
A. Mertus and Jeffrey W. Helsing, eds., Human
Rights & Conflict: Exploring the Links between
Rights, Law, and Peacebuilding (Washington, DC,
United States Institute of Peace, 2006), p. 39.
3 Ibid., p. 27.
4 See: Karen Engle, “Liberal Internationalism,
Feminism, and the Suppression of Critique:
Contemporary Approaches to Global Order in the
United States”, Harvard International Law Journal,
vol. 46 (2005); Ratna Kapur, “Un-Veiling Women’s
Rights in the War on Terrorism”, Duke Journal of
Gender Law and Policy, vol. 9 (2002).
5 Louis Kriesberg, Constructive Conflicts: From
Escalation to Resolution (Lanham, MD, Rowman &
Littlefield Publishers, 2003).
| 241
rights groups themselves may unintentionally fan
the flames by issuing condemnations that are
subsequently used to encourage retaliatory violence.
Given these intersections, it is evident that human
rights and conflict are intimately linked. Reflecting
these linkages, the laws of war and the laws of human
rights have significant overlaps. It is this overlap that
we will examine in Lessons 11, 12, and 13.
The discussion will proceed roughly chronologically
– from the outbreak of violent conflict, to the
conduct of forces during hostilities, to transitional
justice and post-conflict strategies. We will ask:
How does the international community attempt
to prevent violent conflict? If violent conflict
nonetheless breaks out, what laws protect the
human rights and fundamental freedoms of
combatants and noncombatants? Should the
international community have a responsibility to
respond to violent conflicts? If so, how? When?
After a violent conflict has ended, should human
rights abusers be punished?
But before we begin, a few preliminary points.
What is Peace?
As you read through the next three Lessons, keep in
mind the distinction between “peace” and “conflict”,
and ask yourself what is meant by each term. Is
peace merely the absence of war? Or does it mean
something else? Johan Galtung famously theorized
a distinction between negative peace, defined as the
absence of violent conflict, and positive peace, the
long-term process of creating a society that is just
and peaceful.6 Likewise, Galtung defined violence
as tripartite, including direct violence (intentional
killing, massacre), structural violence (violence
by avoidable social ills, such as malnutrition), and
cultural violence (violence by cultural assumptions
that blind people to human suffering). Does adopting
an alternative definition of peace and/or conflict alter
your view of what is necessary for the protection of
human rights? Is positive peace the same thing as
human rights protection? Is ending war enough to
prevent the violation of rights?
6 See: Johan Galtung, Peace by Peaceful
Means: Peace and Conflict, Development and
Civilization (London, SAGE Publications, 1996).
242 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
Types of International Law
We will be dealing in these lessons with four
different systems of international law, as well
as with a number of non-legal mechanisms for
protecting and promoting human rights during times
of conflict. The four legal fields are:
• Jus ad bellum: the law that governs whether a
war is “just”, meaning legally begun;
• International humanitarian law (IHL) or jus
in bello: the law that governs state conduct
towards opposing forces, civilians, and non-
combatants during wartime;
• International human rights law: the law that
governs state conduct towards individuals under
its jurisdiction at all times; and
• International criminal law (ICL): the law that
governs individual conduct towards opposing
forces during wartime and ensures accountability
for serious international crimes.
It is easy to confuse these legal regimes, but
important to distinguish them. Each applies at
different times, addresses different actors, and
protects different categories of individuals. The fact
that a war is justly begun does not legitimate the
otherwise unlawful conduct of governments and
individuals during the fighting and will not excuse a
commander from individual criminal responsibility
once the conflict has ended. As scholar Michael
Walzer wrote: “It is perfectly possible for a just war
to be fought unjustly and for an unjust war to be
fought in strict accordance with the rules.”7
It is equally important, however, to avoid drawing
a firm line between the various legal regimes that
apply before, during, and after a conflict. Each
of these bodies of law overlaps and influences
the others throughout an armed conflict. We will
problematize the distinctions between these bodies
of law somewhat as we proceed through Lessons
11, 12, and 13, but for now, be sure that you
understand the basics of what is meant by jus ad
bellum, IHL, human rights law, and ICL, and how
they differ from one another.
7 Michael Walzer, Just and Unjust Wars (New
York, Basic Books, 1977), p. 21.
 International International Human International
Jus ad Bellum
Humanitarian Law Rights Law Criminal Law

Conduct during Conduct during

Governs: Initiation of conflict Conduct at all times
conflict conflict

Addressed to: States States States Individuals

Opposing forces, All persons on the Opposing forces,

Protects: States civilians, territory or under the civilians,
non-combatants jurisdiction of the state non-combatants

Human Rights during Armed Conflict
Human rights law, which applies to governments
during peacetime, generally continues to apply
during armed conflict. Because there is a particular
danger that human rights and fundamental
freedoms will be violated during wartime, it is
especially important to protect human rights
during hostilities. However, a state’s need for
security is also heightened during times of armed
conflict. In order to ensure its security, a state
may need to deviate from its normal obligations
under international human rights law, for example
by imposing limitations on the right to freedom
of movement or by withdrawing money from
state-funded assistance programmes.
Recognizing that it may sometimes be necessary
to balance the rights and freedoms of individuals
against the state’s need for security, human rights
law permits states to limit or suspend (derogate
from) some rights in times of emergency, including
situations of armed conflict.8 Limitation and
derogation clauses provide legal ways for states
to justify their failure to uphold some human
rights and fundamental freedoms, but they do not
permit states to ignore their obligations altogether.
Derogations must always be proportional to the
situation, must be non-discriminatory in their
application, and must not contravene other rules of
international law (including IHL). In addition, there
is a set of protections known as the “hard core” of
human rights from which states may never deviate.
These absolute and non-derogable rights include:
8 See the discussion of limitation and derogation
from the ICCPR and ICESCR in Lessons 2 and 3.
• The right to life and limitations on the death
penalty;
• The right to be free from torture and cruel,
inhuman, or degrading treatment;
• The right to be free from slavery and servitude;
• The prohibition of imprisonment for debt;
• The prohibition of retrospective punishment;
• The right to recognition as a person before the
law; and
• The right to freedom of thought, conscience, and
religion.
As you read through Lesson 12 on international
humanitarian law, you may note that the rules
making up the hard core of human rights are very
similar to the fundamental guarantees provided
by IHL. Indeed, some scholars have argued that
human rights law is effectively displaced by IHL
during armed conflict.9 However, the International
Court of Justice (ICJ), along with several of the
UN human rights treaty bodies, has clarified that
human rights law is not entirely replaced by IHL,
and can still be directly applied during conflict:
The protection offered by human rights
conventions does not cease in case of armed
conflict, save through the effect of provisions for
derogation of the kind to be found in Article 4 of
the International Covenant on Civil and Political
Rights. As regards the relationship between
international humanitarian law and human rights
law, there are thus three possible situations:
some rights may be exclusively matters of
9 See: G.I.A.D. Draper, “Humanitarian Law and
Human Rights”, Acta Juridica (1979).

HUMAN RIGHTS | 243

 international humanitarian law; others may be
exclusively matters of human rights law; yet
others may be matters of both these branches of
international law.10
In other words, the hard core of the ICCPR and
all other rights that the state does not need to limit
or derogate from – including the right to respect
economic, social, and cultural rights – are still
applicable in times of war.
Armed Conflict
IHL
Human
IHL &
Rights
HR
In addition to the hard core of the ICCPR and
ICESCR, international human rights law has also
developed several other mechanisms for protecting
and preserving human rights and fundamental
freedoms during wartime. For example, as
mentioned in Lesson 9, the Convention on the
Rights of Children (CRC) and its Optional Protocol
on the involvement of children in armed conflict
sets a minimum age below which children may not
participate in war. The Convention Against Torture
and Other Cruel, Inhuman or Degrading Treatment
or Punishment (CAT) specifies that: “No exceptional
circumstances whatsoever, whether a state of war or
a threat of war … may be invoked as a justification
of torture.”11 The Declaration on the Rights of
Indigenous Peoples also restricts military activities in
the lands and territories of indigenous peoples.12
10 ICJ, “Legal Consequences of the Construction
of a Wall in the Occupied Palestinian Territory”,
Advisory Opinion, ICJ Reports 2004 (9 July 2004).
See: ICJ, “Armed Activities on the Territory of
the Congo (Democratic Republic of the Congo
v. Uganda)”, Judgment, ICJ Reports 2005 (19
December 2005); CCPR/C/21/Rev.1/Add.11 (2001),
Human Rights Committee, General Comment 29,
States of Emergency (Art. 4); E/C.12/1/Add.69,
Concluding Observations of the Committee on
Economic, Social and Cultural Rights: Israel (2001).
11 Convention Against Torture, Art. 2.
12 Declaration on the Rights of Indigenous
Peoples, Art. 30.
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Regional human rights bodies also assist in
protecting human rights during wartime. Individuals
whose rights are violated by their government during
wartime can bring claims before regional human
rights courts like the European Court of Human
Rights (ECtHR) or the Inter-American Court of
Human Rights (IACtHR), and some regional human
rights treaties contain special provisions relating to
the protection of human rights during armed conflict,
as well as special limitation and derogation rules.
While reading through the next three lessons, keep
in mind the fact that human rights law operates
in the background at the same time as these
specialized branches of international law designed
to limit the effects of war. Ask yourself how far
human rights should extend in times of conflict,
and whether the balance that has been struck
between rights and security is a good one. Should
states be able to derogate from human rights in
times of conflict? Which rights? Why? Are the laws
of war sufficient for protecting human rights and
fundamental freedoms before, during, and after a
conflict?
11.2 Jus ad Bellum
Because human rights abuses are a symptom of
violent conflict, preventing the initiation of hostilities
is key to protecting individual human rights and
fundamental freedoms. Likewise, because human
rights abuses can trigger or intensify violent
conflicts, protecting human rights is key to securing
peace. The twin objectives of promoting peace and
protecting human rights are foundational purposes
of the United Nations. As stated in Article 1 of the
UN Charter:
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.13
The key international law governing the initiation
of hostilities is jus ad bellum (also spelled ius ad
bellum), the law that governs whether a war is
just, meaning legally begun. Historical examples
of just war theory date back centuries, and include
the bellum Romanum of the Roman era and St.
Augustine’s writings in the fifth century.14 For much
of its early history, the theory of just war was
elaborated principally in theological terms, but over
the centuries jus ad bellum has shifted to a secular
ethical model.
Modern jus ad bellum is most notably contained
in several treaties from the first half of the
twentieth century. In the Kellogg-Briand Pact
of 1928, parties condemned “recourse to war
for the solution of international controversies”,
renouncing it “as an instrument of national policy
in their relations with one another”, and agreeing
that “the settlement or solution of all disputes
or conflicts of whatever nature or of whatever
origin they may be, which may arise among
them, shall never be sought except by pacific
13 UN Charter, Art. 1.
14 The Romans believed that a war was just if a
foreign nation had violated its duties toward them.
Within these limits of jus ad bellum, there were no
further limits on conduct. Robert D. Sloane, “The
Cost of Conflation: Preserving the Dualism of Jus
ad Bellum and Jus in Bello in the Contemporary
Law of War”, Yale Journal of International Law, vol.
34 (2009), p. 57.
HUMAN RIGHTS
means.”15 Similarly, the London Agreement and
Charter establishing the Nuremberg War Crimes
Tribunal condemned crimes against peace,
“namely, planning, preparation, initiation or waging
a war of aggression, or a war in violation of
international treaties, agreements or assurances,
or participation in a common plan or conspiracy for
the accomplishment of any of the foregoing.”16
The UN Charter, which expresses the current jus
ad bellum, confirmed this sentiment, and committed
all Member States to the peaceful settlement of
disputes. According to Article 2 of the UN Charter:
3. All Members shall settle their international
disputes by peaceful means in such a manner
that international peace and security, and justice,
are not endangered.
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.17
Paragraph 4 imposes a so-called “prohibition on
the use of force” on all UN Member States. This
rule is generally accepted to be a part of customary
international law,18 and has been proclaimed a
cornerstone of the UN Charter.19
The UN Charter gives the Security Council
the “primary responsibility for the maintenance
of international peace and security” and the
enforcement of the prohibition on the use of force.20
In order to carry out this responsibility, the Charter
gives the Security Council a number of powers:
15 Treaty Providing for the Renunciation of War as
an Instrument of National Policy (“Kellogg-Briand
Pact”), 27 August 1928.
16 Agreement for the Prosecution and Punishment
of the Major War Criminals of the European Axis,
and Charter of the International Military Tribunal
(“London Charter”), 8 August 1945, Art. 6(a).
17 UN Charter, Art. 2(4).
18 Christine Gray, International Law and the Use
of Force (3d ed. 2008), p. 31.
19 Armed Activities on the Territory of Congo, ICJ
Reports 168 (2005), para. 148.
20 UN Charter, Art. 24(1).
| 245
to call upon parties to settle disagreements by
peaceful means, to investigate disputes, to make
recommendations, to impose sanctions, and even
to authorize armed intervention, in some cases.
There are two exceptions to this prohibition on the
use of force, meaning that according to the UN
Charter there are two circumstances under which
force may justly be used against another nation:
• S
ecurity Council enforcement: As mentioned,
if the Security Council deems it necessary
for the restoration of international peace and
security, it may authorize the use of force to halt
an armed conflict:
[The Security Council] may take such action by
air, sea, or land forces as may be necessary to
restore international peace and security. Such
action may include demonstrations, blockade,
and other operations by air, sea, or land forces of
Members of the United Nations.21
• S
elf-defence: If one country aggressively
attacks another, then the victim has the right to
use force to defend itself:
Nothing in the present Charter shall impair
the inherent right of individual or collective
self-defence if an armed attack occurs against a
Member of the United Nations, until the Security
Council has taken measures necessary to
maintain international peace and security.22
The exception for Security Council enforcement,
also known as “collective security measures”,
has been used on several occasions, although
rarely before the 1990s. Until the end of the Cold
War, unanimous support from the five permanent
Members – which included both the United States
and the Soviet Union – was difficult to achieve. As a
result of this general lack of unanimity, in the first 45
years of the UN’s existence, from 1945 to 1990, the
use of force was authorized on only three occasions.
The first and only significant authorization of the
use of force before 1990 was during the Korean
War in 1950.23 At that time, the Soviet Union was
21 UN Charter, Art. 42.
22 UN Charter, Art. 51.
23 S/1511, Security Council resolution 83 (1950);
246 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
boycotting Security Council meetings in protest
against Taiwan’s representation of China at the UN.
The other Member States took advantage of the
USSR’s absence to vote that a breach of the peace
had occurred in Korea, and to authorize the use
of force by a unified command led by the United
States. Minor uses of force were also authorized to
prevent civil war in the Congo in 1961,24 and to stop
the delivery of oil to Southern Rhodesia in 1966.25
With the end of the Cold War it has become
much easier to reach consensus among the five
permanent Members of the Security Council. As
a result, since the 1990s the Security Council
has been far more active in authorizing the use of
force in the maintenance of international peace
and security. Its interpretation of a “threat to the
peace” has broadened; the idea of international
peacekeeping and humanitarian intervention has
come into vogue; and more frequent use has been
made of the Security Council’s authority under
Chapter VII of the UN Charter.26 In the last two
decades, the use of force has been authorized
against Iraq after its invasion of Kuwait in 1990,27
and as a part of peacekeeping or humanitarian
interventions in the former Yugoslavia,28 Somalia,29
Sierra Leone,30 and Haiti,31 among others.32
Security Council resolution 84 (1950).
24 S/4741, Security Council resolution 161 (1961);
Security Council resolution 169, UN Doc. S/5002
(1961).
25 S/RES/221, Security Council resolution 221
(1966).
26 Niels Blokker, “Is Authorization Authorized?
Powers and Practice of the UN Security Council
to Authorize the Use of Force by ‘Coalitions
of the Able and Willing’”, European Journal of
International Law, vol. 11 (2000), p. 542.
27 Security Council resolution 665; Security
Council resolution 678 (1990).
28 Security Council resolutions 770, 787, 816, 836,
908, 1031, 1088, 1174, 1244, and 1247
29 Security Council resolution 794
30 Security Council resolution 1132
31 Security Council resolutions 875 and 940
32 Other authorizations include, for example,
Albania, Rwanda, the Great Lakes region, Central
African Republic, Guinea-Bissau, and East Timor.
The self-defence exception has also been used on
a number of occasions. Self-defence is authorized
when a state is under “an armed attack” by an
aggressor.33 On its face, this rule may seem
relatively straightforward, but in practice, it has
proven quite difficult to apply.
To begin with, in an armed conflict it is not always
clear which state is the “aggressor” and which
is the “defender.” The case of Cameroon v.
Nigeria, decided by the ICJ in 2002, provides a
good example. In 1987, Cameroon and Nigeria
were engaged in a border dispute over a piece
of territory claimed by both states. When fighting
broke out over the region, each country claimed
that it was peacefully occupying the territory, that
the opposing side had begun the aggression, and
that any force used was in self-defence.34 In a
situation like this, how can we determine whose
use of force was legal, and whose was in violation
of the UN Charter?
Second, it is not always clear what constitutes
an “armed attack.” According to the ICJ’s opinion
in the Nicaragua case, not all measures that
“involve a use of force” are sufficiently “grave” to be
considered armed attacks.35 In that case, the Court
ruled that in evaluating violence by insurgents
33 This formulation is sometimes known as
the “Webster-Ashburton doctrine”, after the
correspondence between U.S. Secretary of State
Daniel Webster and British Special Minister Lord
Ashburton in which it was first articulated. Letter
from Daniel Webster, U.S. Secretary of State, to
Lord Ashburton, British Special Minister (July 27,
1842), in Treaties and Other International Acts of the
United States of America: 1836-46, vol. 4, Hunter
Miller, ed. (1934), p. 449. Available from <http://
avalon.law.yale.edu/19th_century/br-1842d.asp>.
34 ICJ, “Case Concerning the Land and
Maritime Boundary Between Cameroon and
Nigeria (Cameroon v. Nigeria: Equatorial Guinea
intervening)”, Judgment, ICJ Reports 2002 (10
October 2002). Although both sides had produced
extensive arguments on the use of force, the ICJ did
not make a determination on which state was the
“defender” and which the “aggressor” in this case.
35 ICJ, “Military and Paramilitary Activities
(Nicaragua v. United States)”, Judgment, ICJ
Reports (1986), p. 110.
HUMAN RIGHTS
during the Nicaraguan civil war, the key factor
was whether their action “because of its scale and
effects, would be classified as an armed attack,
rather than as a mere frontier incident had it been
carried out by regular armed forces.”36
Members of the Jordanian Special Weapons and Tactics (SWAT) team
of the United Nations Stabilization Mission in Haiti (MINUSTAH) take
position during a drug seizure exercise.
(UN Photo #267584 by Marco Dormino, December 2008)
Third, the scope of the right is unclear. It is clear
that a state may exercise the right to self-defence
when an armed attack is ongoing. But must it
wait until the attack has begun? Particularly in
the nuclear age, is this not tantamount to saying
that the state must give itself up to destruction?
In recognition of this danger, many states and
commentators have argued that a state does not
have to wait for its adversary’s “first, perhaps
decisive, military strike” before it can use force to
defend itself.37 Defence against “imminent attacks”
was understood to be within the scope of the
customary right to self-defence well before the
dawn of World War II: in the 1837 The Caroline
Case, a state was agreed to have the right to
self-defence not only in the event of an ongoing
attack, but also where it could “show a necessity
of self-defence, instant, overwhelming, leaving no
choice of means and no moment for deliberation.”38
36 Ibid., p. 103.
37 Thomas M. Franck, Recourse to Force: 5State
Action Against Threats and Armed Attacks (New
York, Cambridge University Press, 2002), p. 98.
38 The Caroline (Exchange of Diplomatic Notes
between the United Kingdom of Great Britain and
| 247

Sandra Doinita Visan, member of the Romanian contingent of the United
Nations Integrated Mission in Timor-Leste (UNMIT), participates in a
ceremony in observance of the International Day for United Nations
Peacekeepers in honour of the service of female peacekeepers.
(UN Photo #397643 by Martine Perret, May 2009)
Reflecting this early understanding, there is
currently widespread agreement that states may
use force in anticipatory self-defence, so long as
the use of force is necessary to prevent the attack
(“leaving no choice of means”) and the attack is
imminent (“instant” and leaving “no moment for
deliberation”).39
Some states have attempted to extend the
boundaries of anticipatory self-defence beyond
imminent attacks to include a broader set of
preemptive actions. For example, the United States
government attempted to argue at the outset of
the 2003 Iraq War that it should not have to wait
“until the threat is imminent” to act in self-defence.40
Ireland and the United States of America), Letter
from Mr. Webster to Mr. Fox (24 April 1841).
39 A/59/565, UN High Level Panel on Threats,
Challenges and Change, A More Secure World:
Our Shared Responsibility, para. 188 (2 December
2004). See: A/59/2005 (March 21, 2005),
Secretary-General, In Larger Freedom: Towards
Development, Security and Human Rights for All,
para. 124 (“Imminent threats are fully covered by
Article 51, which safeguards the inherent right of
sovereign States to defend themselves against
armed attack. [This] covers an imminent attack as
well as one that has already happened.”).
40 President’s Address Before a Joint Session of
248 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
Instead, officials argued that there should be a right
to “anticipatory self-defence” that would include
preemptive actions taken in response to longer-term
threats. As John Yoo and Will Trachman wrote in
the Chicago Journal of International Law: “Today
… the United Nations’ rules on the use of force
have become obsolete”; “Modern warfare demands
that states enjoy more flexibility in the use of force
than that permitted under a strict reading of the UN
Charter’s rules.”41 The majority of states, however,
reject this view.42 In fact, the so-called “Bush
doctrine” of pre-emptive self-defence has been
pilloried by many observers, with some going so far
as to claim that it signaled the downfall of the UN
Charter system:
[The war in Iraq] is one of the few events of
the UN Charter period holding the potential for
fundamental transformation, or possibly even
destruction, of the system of law governing
the use of force that had evolved during the
twentieth century.43
Self-Defence as Right and Duty
“Self-defence against an unjust attack is not
only a right which every Nation has, but it is a
duty, and one of its most sacred duties.”
Emmerich de Vattel
from The Law of Nations, or the Principles of
Natural Law, Applied to the Conduct and to the
Affairs of Nations and of Sovereigns
(Charles G. Fenwick, trans.) (1916)
Congress on the State of the Union (28 January
2003).
41 John C. Yoo and Will Trachman, “Less than
Bargained for: The Use of Force and the Declining
Relevance of the United Nations”, Chicago Journal
of International Law, vol. 5 (2005), pp. 381 and 394.
42 Christine Gray, International Law and the
Use of Force (Third Edition) (New York, Oxford
University Press, 2008), p. 160.
43 Lori Fisler Damrosch and Bernard H. Oxman,
“Editors’ Introduction”, American Journal of
International Law, vol. 97 (2003), p. 553.
Both Security Council enforcement and the
self-defence exception must be exercised with due
respect for the principle of proportionality – that the
resort to force must be proportional to the asserted
casus belli (the cause for war). Proportionality
is related to the size, duration, and target of the
response. It is the principle that “self-defence must
not be retaliatory or punitive; the aim should be to
halt and repel an attack.”44
11.3 The Responsibility to Protect
In addition to Security Council enforcement and
self-defence, scholars and activists have long
argued that international law should recognize
a third exception to the prohibition on the use of
force for humanitarian intervention.45 Humanitarian
intervention is defined as “the threat or use of
armed force by a state, a belligerent community,
or an international organization, with the object of
protecting human rights.”46
Following the end of the Cold War, states seemed
increasingly willing to intervene in the affairs of other
nations for humanitarian reasons. The Security
Council authorized humanitarian actions in places
44 Christine Gray, p. 150.
45 Henry J. Steiner, Philip Alston, and Ryan
Goodman, International Human Rights in Context:
Law, Politics, Morals (Third Edition) (New
York, Oxford University Press, 2007), p. 837.
Attempts have been made both to argue that a
new customary norm has created an additional
exception to the prohibition as well as to limit
the scope of the prohibition of the use of force.
Simon Chesterman, “No More Rwandas vs No
More Kosovos: Intervention and Prevention”, in La
protección internacional de los derechos humanos:
un reto en el siglo XXI, Ana Covarrubias Velaso
and Daniel Ortega Nieto, eds.) (2007). Interestingly,
states have proven reluctant to embrace such a
right – even when it would justify their own actions.
46 Ian Brownlie, “Humanitarian Intervention”, in
Law and Civil War in the Modern World, John N.
Moore, ed. (1974), p. 217. Less-intrusive actions
such as the provision of food, medicine and
shelter, are more properly termed “humanitarian
assistance.” Simon Chesterman, Just War or Just
Peace? Humanitarian Intervention and International
Law (2001), p. 3.
HUMAN RIGHTS
like Somalia and Haiti, Sierra Leone and the
Democratic Republic of the Congo. States grouped
together to undertake unilateral actions as well. In
March 1999, for example, the North Atlantic Treaty
Organization (NATO) launched air strikes against
the Federal Republic of Yugoslavia, without Security
Council authorization, out of humanitarian concerns.
Unauthorized interventions like NATO’s Kosovo
action were problematic from an international legal
perspective. On the one hand, they seemed to fill
a gap in the international human rights protection
regime, allowing states to stop or prevent gross
violations of individual rights.47 On the other hand,
because they were neither authorized by the
Security Council nor necessary for self-defence,
these humanitarian interventions were clearly in
breach of the UN Charter’s prohibition on the use of
force. While many saw them as morally justifiable,
therefore, they were generally agreed to be in
violation of international law, and states expressed
fear that less desirable unilateral actions might
follow.48 Illustratively, Richard Goldstone, head
of the UN’s Kosovo Commission, concluded that
NATO’s intervention was “illegal but legitimate.”49
47 See: Peter van Ham, “The Rise of the Brand
State: The Postmodern Politics of Image and
Reputation”, Foreign Affairs (September –October
2001) (discussing how the bombing of Serbia
improved the reputation of NATO members by
demonstrating their willingness to take action to
stop genocide).
48 The recent action in Iraq has been cited by
some as vindicating these concerns. Simon
Chesterman, “No More Rwandas vs No More
Kosovos: Intervention and Prevention”, in La
protección internacional de los derechos humanos:
un reto en el siglo XXI, Ana Covarrubias Velaso
and Daniel Ortega Nieto, eds. (2007). See:
Deborah M. Weissman, “The Human Rights
Dilemma: Rethinking the Humanitarian Project”,
Columbia Human Rights Law Review, vol. 35
(2004) (describing how human rights concerns
were used by “human rights hawks” to rationalize
US military intervention into Iraq). Indeed,
commentators argued for intervention in Iraq on
just these grounds. See: Anne-Marie Slaughter,
“Good Reasons for Going Around the UN”, New
York Times, 8 March 2003.
49 Independent International Commission on
| 249
Despite the greater willingness of states to
intervene in situations of humanitarian crisis,
the 1990s were witness to several unmitigated
human rights disasters. As Professor Simon
Chesterfield explains: “Since the death of 18 US
army Rangers in Mogadishu in 1993, the reality
has been that Western powers in particular have
lacked the political will to intervene meaningfully
anywhere that their interests are not substantially
engaged.”50 In places like Rwanda and Bosnia,
Kosovo, The Kosovo Report (23 October 2000), p. 4.
50 Simon Chesterman, “No More Rwandas vs No
More Kosovos: Intervention and Prevention”, in La
protección internacional de los derechos humanos:
un reto en el siglo XXI, Ana Covarrubias Velaso
and Daniel Ortega Nieto, eds. (2007). See: Melissa
S. Williams, “The Jury, the Law, and the Primacy
of Politics”, in Humanitarian Intervention: Nomos
XLVII, Terry Nardin and Melissa S. Williams eds.
(2006), pp. 255–6:
Evidence on the resistance of democratic
publics to humanitarian intervention is mixed.
American public opinion polls suggest that most
people are willing to put troops and resources
at risk to protect human rights, at least in some
circumstances. One year after the Rwanda
genocide, for example, 70 percent of Americans
surveyed thought that the United States should
“have gone in with a large military force to
occupy and stop the killings.” The withdrawal of
U.S. troops from Somalia was driven more by
congressional reaction to the loss of American
lives than by popular outrage; public opinion
polls taken shortly after the failed operation
in Mogadishu showed that more than 60
percent of Americans continued to support the
humanitarian mission. More recently, 69 percent
of respondents to a survey on the humanitarian
crisis in western Sudan thought that, if the U.N.
determined that human rights abuses in Darfur
constitute a genocide, the United States should
participate in an intervention, even if doing so
required the use of military force. This suggests
that where there is strong political leadership to
make sense of the moral duties of humanitarian
intervention to democratic citizenries, there is a
foundation of already-existing public opinion to
appeal to. If the international community fails to
undertake humanitarian interventions when such
250 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
neither the Security Council nor any unauthorized
force stepped in to halt mass atrocities. Failure
to intervene in several critical cases brought the
debate over the “right to humanitarian intervention”
into sharp focus. Then-Secretary-General Kofi
Annan presented the dilemma in stark terms in his
1999 annual report to the UN General Assembly:
To those for whom the greatest threat to the
future international order is the use of force in
the absence of a Security Council mandate, one
might ask – not in the context of Kosovo – but in
the context of Rwanda: If, in those dark days and
hours leading up to the genocide, a coalition of
States had been prepared to act in defence of
the Tutsi population, but did not receive prompt
Council authorization, should such a coalition
have stood aside and allowed the horror to
unfold?51
The failure of the international community to
intervene in the face of genocide in Rwanda and
other humanitarian debacles led to “extensive
soul-searching” with respect to the nature and
purpose of humanitarian intervention.52 A UN
inquiry into Rwanda condemned the failure to
“prevent, and subsequently, to stop the genocide
in Rwanda” as a failure by the UN system.53 Others
blamed the lack of international response on “the
capriciousness of state interest.”54 And activists
began searching for a way to ensure that such
failures did not happen again in the future.
interventions could support human rights without
threatening security, we should understand
nonintervention as a failure of political and moral
leadership, not the nation-centred choice of
democratic publics.
51 Secretary-General Presents His Annual
Report to the General Assembly, UN Doc. SG/
SM/7136-GA/9596, 20 September 1999.
52 Henry J. Steiner, Philip Alston, and Ryan
Goodman, p. 837.
53 S/1999, Report of the Independent Inquiry
into the Actions of the United Nations During the
1994 Genocide in Rwanda. In drafting this report,
the ICISS built on the ideas of Francis Mading
Deng, Sovereignty as Responsibility: Conflict
Management in Africa (1996).
54 Simon Chesterman.
 On the Responsibility to Protect

“In my address to the General Assembly last September, I called on Member States to unite in the pursuit of more
effective policies to stop organized mass murder and egregious violations of human rights. Although I emphasized that
intervention embraced a wide continuum of responses, from diplomacy to armed action, it was the latter option that
generated most controversy in the debate that followed.

“Some critics were concerned that the concept of ‘humanitarian intervention’ could become a cover for gratuitous
interference in the internal affairs of sovereign states. Others felt that it might encourage secessionist movements
deliberately to provoke governments into committing gross violations of human rights in order to trigger external
interventions that would aid their cause. Still others noted that there is little consistency in the practice of intervention,
owing to its inherent difficulties and costs as well as perceived national interests – except that weak states are far
more likely to be subjected to it than strong ones.

“I recognize both the force and the importance of these arguments. I also accept that the principles of sovereignty
and non-interference offer vital protection to small and weak states. But to the critics I would pose this question: if
humanitarian intervention is, indeed, an unacceptable assault on sovereignty, how should we respond to a Rwanda, to
a Srebrenica – to gross and systematic violations of human rights that offend every precept of our common humanity?”

Kofi Annan
from We the Peoples:
The Role of the United Nations in the 21st Century (2001)

The concept of Responsibility to Protect (R2P),
developed most elaborately by the Canadian-
sponsored International Commission on
Intervention and State Sovereignty (ICISS) in
2001,55 sought to address these twin problems
of legitimacy and lack of political will. Its
proponents argued that there is no right to
humanitarian intervention that would allow
states to intervene for humanitarian purposes
when they choose to do so. Instead, states have
a responsibility to protect individuals from gross
violations of their human rights. As the ICISS
wrote, “the primary responsibility for the protection
of its people lies with the state itself”, but where a
state is “unwilling or unable” to prevent serious and
systematic harm to its population, “the principle
of non-intervention yields to the international
responsibility to protect.”56
Under this formulation, the international community
is morally responsible for using force in “defence
of others” when a state is either unwilling or unable
to prevent or put an end to grave ongoing human
rights abuses. R2P applies even when the abuses
taking place are purely internal and pose no threat
to international peace and security, and even in
the absence of Security Council authorization.
Intervention in the name of R2P could range in
tactic from actual war fighting to armed peace
enforcement to providing protection for safe
areas, aid convoys, or humanitarian corridors, and
states are seen as having a moral and political
responsibility to act.
The legal basis for R2P, like that for humanitarian
intervention, remains “cloudy.”57 While the UN
endorsed the concept in the 2005 World Summit

55 International Commission on Intervention 57 Andrew Clapham, “Rights and Responsibilities:

and State Sovereignty, Responsibility to Protect A Legal Perspective”, in From Rights to
(2001), available from <http://www.iciss.ca/pdf/ Responsibilities: Rethinking Intervention for
Commission-Report.pdf>. Humanitarian Purposes, PSIS Special Study 7, O.
56 Ibid. Jütersonke and K. Krause eds. (2006).

HUMAN RIGHTS | 251

Outcome Document, its language was far from
recognizing a firm legal obligation to use force or
any new exception to the prohibition on the use of
force in Article 2(4) of the UN Charter.58
Writing Exercise 11: Arcadia and Dystopia
You have been hired as a humanitarian affairs
advisor to the state of Arcadia. Arcadia is
a large, wealthy developed country with a
strong military and a substantial international
presence. The Arcadian government has
expressed concern about ongoing human rights
violations occurring in Dystopia, a neighbouring
state. Refugees have fled across the border
into Arcadia, bringing with them tales of mass
executions and genocide. Arcadia requested
the Security Council to consider authorizing
intervention, but one of the permanent five
vetoed the action (14 in favour, one against),
saying that events in Dystopia pose no threat to
international peace and security. The Arcadian
government has asked you to analyse their
options with respect to armed intervention into
Dystopia.
Consider the following questions and write a
brief report (maximum one page).
• What does jus ad bellum say about
Arcadia’s proposed intervention?
• Should ongoing debates about
humanitarian intervention and the
Responsibility to Protect (R2P) affect
Arcadia’s decision? If so, how?
• Should Arcadia intervene in Dystopia?
What implications might such an
intervention have for relations between
the two states? For Arcadia’s standing
in the international community? For
the prohibition on the use of force in
general? Is unilateral action morally
acceptable? Is it legally acceptable?
58 A/Res/60/1 (2005), UN General Assembly,
2005 World Summit Outcome.
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The ideas of humanitarian intervention and R2P
remain highly controversial. To begin with, the
international community’s obligation to respect
state sovereignty is in conflict with its obligation
to promote and protect human rights up to and
including through armed intervention. Proponents
of the R2P paradigm argue that preventing
mass atrocities is so important that Westphalian
conceptions of sovereignty and the traditional limits
of international relations should be put aside, but
many states continue to insist on the primacy of
state sovereignty.
Furthermore, the very idea of unauthorized
humanitarian intervention is directly contradictory to
the principle of nonintervention.59 Article 2(7) of the
UN Charter prohibits interference in the domestic
affairs of member states: “Nothing contained in
the present Charter shall authorize the United
Nations to intervene in matters that are essentially
within the domestic jurisdiction of any State or shall
require the Members to submit such matters to
settlement under the present Charter.”60 Formally
allowing humanitarian intervention without Security
Council authorization would open up a Pandora’s
box of unilateral action.
From an ethical perspective, some argue that
the concept of humanitarian intervention is an
oxymoron: can military intervention ever actually
be humanitarian? Numerous commentators
have floated propositions to eliminate the
term altogether, or to alter it to something like
“humanitarian war” or “humanitarian military
intervention” in order to “make clear the bloody
costs as well as the benefits.”61 Others point to
realist considerations, questioning the motives of
powerful governments that offer to intervene and
arousing suspicion that humanitarian intervention
might be little more than a cover for Eurocentric
imperialism or self-interested pursuit of gain.
59 See discussion of the Westphalian system in
Lesson 1.
60 UN Charter, Art. 2(7).
61 Thomas G. Weiss, Humanitarian Intervention:
Ideas in Action (Boston, Polity, 2007), p. 11
(discussing proposals by David Rieff and Taylor
Seybolt). See: George Orwell, “Politics and the
English Language” (1946) (discussing the use of
euphemism in political language “to name things
without calling up mental pictures of them”).
Humanitarian intervention and the R2P continue
to raise a number of old questions: How and when
would a humanitarian exception be exercised?
By individual states, or only by the collectivity?
Under whose authority? Would it ever be exercised
against powerful states? Is unilateral action ever
desirable? Or does it undermine the collective
security system and the prohibition on the use of
force so carefully articulated in the UN Charter?
Does it matter whether humanitarian intervention
and the R2P are legal or not?
Effectiveness and Evolution
It should be noted that despite the limited
circumstances under which the use of force is
authorized under international law, there have
been dozens, perhaps hundreds, of wars in the
years since the UN Charter came into force.
By one estimate, the twentieth century saw 175
million war-related deaths.62 The prohibition of
the use of force, in other words, seems to be
much more commonly honoured in the breach
than in the observance. This raises questions not
only about the enforceability and effectiveness
of jus ad bellum – a topic to which we will
return in Lesson 15 – but also the idea of jus ad
bellum as law. When a law is routinely violated
by its subjects, can it still be called law?63 Must
it evolve to meet the changing needs of the
regulated? Should jus ad bellum “evolve” to permit
preemptive self-defence or allow a humanitarian
exception?64
62 Zbigniew Brzezinski, Out of Control: Global
Turmoil on the Eve of the Twenty-First Century
(New York, Scribner, 1993).
63 See: Michael J. Glennon, Limits of Law,
Prerogatives of Power (New York, Palgrave
Macmillan, 2003), p. 2 (arguing that “there is,
today, no coherent international law concerning
intervention by states”).
64 See: Eric A. Posner and Alan O. Sykes,
“Optimal War and Jus ad Bellum”, Georgetown
Law Journal, vol. 93 (2005) (arguing that both
humanitarian intervention and preemptive
self-defence should be allowed under an evolved
jus ad bellum).
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Conclusion
Despite these challenges, the UN Charter’s
prohibition of the use of force except in
self-defence or when authorized by the Security
Council remains the governing jus ad bellum.
Whether an armed conflict is just or unjustly begun,
however, is only the beginning of the story. Once
states (or groups within states) have entered
into conflict with one another, what rules protect
the human rights and fundamental freedoms of
combatants and noncombatants? This will be the
subject of Lesson 12.
On War
“Depuis six mille ans la guerre
Plaît aux peuples querelleurs,
Et Dieu perd son temps à faire
Les étoiles et les fleurs.”
(For six thousand years war
Has pleased quarrelsome peoples,
And God wastes time making
Stars and flowers.)
Victor Hugo
from Les Chansons des rues et des bois (1865)
Further Reading
Niels Blokker, “Is Authorization Authorized? Powers
and Practice of the UN Security Council to Authorize
the Use of Force by ‘Coalitions of the Able and
Willing’,” European Journal of International Law,
vol. 11 (2000); Simon Chesterman, Just War or Just
Peace? Humanitarian Intervention and International
Law (2001); International Commission on Intervention
and State Sovereignty, Responsibility to Protect
(2001); Julie A. Mertus & Jeffrey W. Helsing eds.,
Human Rights & Conflict: Exploring the Links
between Rights, Law, and Peacebuilding (2006); J.L.
Holzgrefe & Robert O. Keohane eds., Humanitarian
Intervention: Ethical, Legal and Political Dilemmas
(2003).
Websites for Further Information
UN Security Council: www.un.org/Docs/sc
ICISS: www.iciss.ca
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End-of-Lesson Quiz

For questions 1–4, match the branch of law with its definition:

A. The law that governs state conduct

1. Jus ad bellum
toward individuals under its
jurisdiction at all times.

B. The law that governs state conduct

towards opposing forces, civilians,
2. International human rights law
and non-combatants during
wartime.

C. The law that governs individual

conduct toward opposing
3. International humanitarian law
individuals during wartime and
(IHL)
ensures accountability for serious
international crimes.

D. The law that governs whether a war

4. International criminal law (ICL)
is “just”, meaning legally begun.

254 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
5. All of the following are absolute or
non-derogable rights EXCEPT:
A. The right to life;
B. The right to be free from torture;
C. The right to freedom of thought, conscience,
and religion;
D. The right to freedom of peaceful assembly.
6. When does international human rights law
apply?
A. Both during wartime and peacetime;
B. Only during wartime;
C. Only during peacetime;
D. Human rights law does not really exist.
7. The current doctrine of jus ad bellum is
contained in which document?
A. The ICCPR;
B. The Genocide Convention;
C. The UDHR;
D. The UN Charter.
HUMAN RIGHTS
8. ___________________ and
___________________ are the two
exceptions to the prohibition on the use of
force recognized by the UN Charter.
9. The Security Council has authorized the
use of force into which of the following
countries:
A. Haiti;
B. The United States;
C. Georgia;
D. The Security Council has never authorized the
use of force.
10. When can states act in self-defence?
A. When a state is under attack;
B. When a state is under attack or is threatened
with imminent attack that can only be stopped
by the use of force;
C. When a state is under attack, is threatened with
imminent attack, or believes that another state
may attack at some point in the future;
D. Any time it feels threatened in any way.
ANSWER KEY
1D, 2A, 3B, 4C, 5D, 6A, 7D, 8 Security
Council enforcement and self-defence,
9A, 10B
| 255
LESSON 12
HUMAN RIGHTS DURING
ARMED CONFLICT II:
INTERNATIONAL HUMANITARIAN LAW
 LESSON
12

LESSON OBJECTIVES

12.1 Introduction By the end of Lesson 12, the student should be able to meet the
following objectives:
12.2 International
Humanitarian Law
• Understand the purposes of international humanitarian law;
12.3 Law and War
• Identify some of the major principles contained in the
Geneva Conventions;
• Understand the application of international humanitarian law
during non-international armed conflicts;
• Explain the concept of grave breaches;
• Define the meaning of universal jurisdiction;
• Describe some mechanisms for the enforcement of international
humanitarian law; and
• Appreciate the theoretical issues related to the application of
law to war.

To view a video introduction of this lesson by the

course author Jessica C. Lawrence, you can
either log in to your virtual classroom, go to www.
peaceopstraining.org/users/media_page/385/
lesson-12, or use your mobile device to scan the
QR code to the left.
12.1 Introduction
In Lesson 11, we introduced the topic of human
rights and armed conflict, and identified the
different bodies of law that apply during war. We
focused initially on jus ad bellum – the law that
governs whether a conflict is “just”, meaning legally
begun – and emerging doctrines such as the
Responsibility to Protect (R2P).
In Lesson 12, we will take this discussion one
step further. Once states or groups of states have
entered into conflict with one another (whether
legally or not), jus ad bellum fades into the
background, and international humanitarian law
(IHL), also known as jus in bello (“law in war”)
begins to apply.
This lesson will begin with a discussion of
the history and content of IHL, followed by an
exploration of its scope and the system set up to
enforce it. It will then turn to a brief discussion of
the theoretical implications of humanitarian law,
asking what might be the consequences of trying to
use law to contain the effects of war.
12.2 International Humanitarian Law
Once a conflict has begun, the legality of the cause
under jus ad bellum is put to the side, and jus in
bello – international humanitarian law (IHL) – takes
over. IHL and international human rights law share
a common ideal: the protection of the dignity and
integrity of the person. Whereas international
human rights law applies at all times, however, IHL
applies only during situations of armed conflict. It
does not apply during peacetime, to isolated acts
of violence, or to internal tensions or disturbances.
Such “peacetime” violence is governed by domestic
criminal law.
Once armed conflict has begun, however, IHL
applies equally and symmetrically to all parties,
regardless of who initiated the hostilities, and
whether or not the war was justly begun according
to jus ad bellum.
The primary goal of IHL is to reduce unnecessary
damage resulting from armed conflict. Generally
speaking, IHL covers two areas:
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• Protecting non-combatants: providing
protection for those who are not taking part in
the fighting (including civilians, humanitarian
workers, and medical or religious personnel),
or are no longer able to do so (including the
wounded, sick, and shipwrecked, as well as
prisoners of war);
• Restricting the means and methods of
warfare: forbidding certain weapons and tactics,
particularly those that do not discriminate
between combatants and non-combatants, those
that cause excessive injury or unnecessary
suffering, and those that cause severe or long-
term damage to the environment.
We will discuss each of these functions, their
application in different contexts, and the systems
developed to enforce them, below.
A Brief History of International Humanitarian
Law
The birth of IHL, like that of jus ad bellum, preceded
the development of international human rights
law. The concept of the “law of war” dates back to
ancient times, and the historical record confirms
that the Roman, Israelite, and Islamic traditions
all contained some regulation of individual
conduct during wartime.1 Modern international
humanitarian law can be traced back to several
milestones that occurred during the mid-1800s:
the founding of the International Committee of the
Red Cross (ICRC) in 1859; the promulgation of the
so-called Lieber Code regulating the conduct of
government soldiers during the United States’ Civil
War;2 the drafting of the First Geneva Convention
of 1864: the Convention for the Amelioration of
the Condition of the Wounded in Armies in the
Field;3 and the St. Petersburg Declaration of 1868
1 Ronald C. Slye and Beth Van Schaack,
International Criminal Law: The Essentials (New
York, Aspen Publishers, 2008).
2 Francis Lieber, Instructions for the Government
of Armies of the United States in the Field, General
Orders No. 100 (24 April 1863) (“Lieber Code”),
reprinted in The Law of War: A Documentary
History, vol. 1, Leon Friedman, ed. (1972).
3 Convention for the Amelioration of the
Condition of the Wounded in Armies of the Field,
Geneva, 1864. Available from <http://www.icrc.org/
ihl.nsf/FULL/120?OpenDocument>.
| 259
Renouncing the Use in Times of War of Explosive
Projectiles Under 400 Grammes Weight.4
These treaties and codes established the first
wave of protections for civilians and prohibitions
of indiscriminate and unusually destructive means
and methods of warfare. But it should be noted
that they grew out of and applied primarily to
the European context – the consensus in the
nineteenth century was that the law of nations,
including the law of war, applied only to “civilized”
(meaning European) peoples. In the words of the
nineteenth century British philosopher John
Stuart Mill:
To suppose that the same international customs,
and the same rules of international morality, can
obtain between one civilized nation and another,
and between civilized nations and barbarians, is
a grave error, and one which no statesman can
fall into … 5
Even after the adoption of the early IHL
instruments, means and methods of warfare
considered to be banned or despicable in Europe
continued to be used against non-European
peoples, and any decision by European and
American commanders to apply international
humanitarian law in the colonies was considered
entirely discretionary and “merely as a result of
charity or chivalry.”6
Meanwhile, after the adoption of the First Geneva
Convention of 1864, the “civilized” nations came
together on a not infrequent basis to codify the
laws of war in international treaties. A number of
humanitarian law conventions were agreed prior to
World War II. Most prominent among these were:
4 Declaration Renouncing the Use in Time of
War, of Explosive Projectiles Under 400 Grammes
Weight, 29 November–11 December 1868.
5 John Stuart Mill, “A Few Words on
Non-Intervention”, in XXI Collected Worksk, John
M. Robson, ed. (1984), p. 118.
6 Frédéric Mégret, “From ‘Savages’ to ‘Unlawful
Combatants’: A Postcolonial Look at International
Humanitarian Law’s ‘Other’”, in International Law
and Its Others, Anne Orford, ed. (2006), p. 282.
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• The Hague Conventions of 1899:
- On the Pacific Settlement of International
Disputes (Hague I);
- On the Laws and Customs of War on Land
(Hague II);
- On Maritime Warfare (Hague III);
- On the Launching of Projectiles and
Explosives from Balloons (Hague IV, 1);
- On Asphyxiating Gases (Hague IV, 2);
- On Expanding Bullets (Hague IV, 3);
• The Hague Conventions of 1907:
- On the Opening of Hostilities (Hague III);
- On the Rights and Duties of Neutral Powers
and Persons in Case of War on Land
(Hague V);
- On the Status of Enemy Merchant Ships at
the Outbreak of Hostilities (Hague VI);
- On the Laying of Submarine Automatic
Contact Mines (Hague VIII);
- On the Bombardment by Naval Forces in
Time of War (Hague IX);
- On the Discharge of Projectiles and
Explosives from Balloons (Hague XIV);
• The 1925 Geneva Gas Protocol; and
• The 1929 Geneva Convention on the treatment
of prisoners of war.
Some of the Hague Conventions of 1899 and 1907
included a section in their preambles that has
become known as the Martens Clause (named
for the Russian diplomat who proposed it). The
Martens Clause provided that:
Until a more complete code of the laws of war
has been issued, the High Contracting Parties
deem it expedient to declare that, in cases not
included in the Regulations adopted by them, the
inhabitants and the belligerents remain under the
protection and the rule of the principles of the
law of nations, as they result from the usages
established among civilized peoples, from the
laws of humanity, and the dictates of the public
conscience.7
7 1899 Hague Convention (II) containing the
Laws and Customs of War on Land; 1907 Hague
Convention (IV) respecting the Laws and Customs
Although the Martens Clause was not viewed as
particularly significant at the time it was drafted, it
has come to hold an important place in IHL. Today,
the Martens Clause stands for the principle that
international humanitarian law is law, not just moral
suggestion, and that this law is bigger than what
is contained in the Conventions.8 Its contemporary
significance is derived mainly from the Clause’s
references to the “usages established among
civilized peoples” and “the laws of humanity, and
the dictates of public conscience.” The former
phrase has been interpreted as reiterating the point
that the customary law developed among states9 is
applicable during all conflicts regardless of whether
it has been included in a treaty. The latter has
sometimes been seen as creating new norms of
international humanitarian law based on “the laws
of humanity” or “the dictates of public conscience.”
The exact legal impact of the Clause is ambiguous.
But whether it is read broadly or narrowly, the
Martens Clause “has responded to a deeply
felt and widespread demand in the international
community: that the requirements of humanity and
the pressure of public opinion be duly taken into
account when regulating armed conflict.”10
In the colonial context, the Martens Clause
brought some relief, as its reference to the “laws
of humanity” seemed to include non-European
peoples. But for the next several decades, the bulk
of the laws of war would continue to apply only
among the “civilized.”
The Martens clause would seem to have
marginally improved the condition of
‘non-civilized’ peoples. Few for example would
have gone so far as to advocate that the clause
did not apply to ‘savages’, and the consensus
was that it did. But whereas in its supplemental,
gap-filling function, the Martens clause was a
of War on Land. Translation reported in The Hague
Conventions and Declarations of 1899 and 1907
(J.B. Scott ed., 1915) 101-102.
8 Antonio Cassese, “The Martens Clause: Half a
Loaf or Simply Pie in the Sky?” European Journal
of International Law, vol. 11, No. 1 (2000), pp.
188–92.
9 See Lesson 1 for a discussion of customary
international law.
10 Antonio Cassese, p. 212.
HUMAN RIGHTS
welcome safety net for European combatants
whose protection on the field of battle was
otherwise guaranteed by abundant rules, the fact
that for ‘savages’ it was the only legal protection
they could rely on would have made it a meager
consolation. The benefit of precisely what the
Hague Regulations had sought to achieve – the
moving of humanitarianism from the province of
moral or chivalrous compulsion to positive law
obligation – was thus denied to non-European
peoples, effectively leaving Europeans’ relations
with them in a pre-modern realm of fragile
natural obligations.11
It was not until after World War II, and particularly
following the decolonization struggles of the 1970s,
that the Third World would be granted the full
benefit of international humanitarian law.12
The Geneva Conventions
The 1864, 1899, 1907, 1925, and 1929 Hague and
Geneva Conventions and other pre-World War II
humanitarian law instruments continue to apply
today, and prohibit the use of some particularly
noxious means and methods of war. However,
a number of additional agreements have been
developed since that time, and today the primary
treaties governing the international law of war are
the four Geneva Conventions of 1949 (generally
referred to simply as the Geneva Conventions) and
their Protocols.
The four Geneva Conventions and their Additional
Protocols provide protection to individuals who are
not directly involved in combat, including:
• The sick and wounded in the field (Geneva
Convention I);
• The sick and wounded at sea (Geneva
Convention II);
• Prisoners of war (Geneva Convention III); and
• Civilians and non-combatants (Geneva
Convention IV).
The Conventions and their Additional Protocols
are quite extensive, and set out specific obligations
11 Frédéric Mégret, p. 283 (footnotes omitted).
12 Ibid.
| 261
 with respect to minimizing the damage to the sick
and wounded, persons captured during a military
conflict, and civilians and other protected persons
(including journalists, medical personnel, religious
personnel, and humanitarian aid workers) in a
war zone.
A mine laid by the Iraqi occupation forces has been exposed by the
shifting sands in the desert near the oil-fields of Al Wafra in Southern
Kuwait. (UN Photo #87880 by John Isaac, March 1991)
To begin with, under the Geneva Conventions
forces must abide by the principle of distinction,
which requires them to differentiate between
soldiers and civilians, respect and protect these
groups to the best of their ability, and observe
their rights under IHL. The principle of distinction
is the cornerstone of the law of international
armed conflict.13 It prohibits intentional attacks
on noncombatants, and requires that attacks be
limited strictly to legitimate military objectives,
which it defines as “those objects which by their
nature, location, purpose or use make an effective
contribution to military action and whose total or
partial destruction, capture or neutralization, in the
circumstances ruling at the time, offers a definite
military advantage.”14 This rule forbidding the direct
targeting of civilians is generally considered to
have achieved the status of customary law, and
is therefore binding on all countries regardless
13 Yoram Dinstein, The Conduct of Hostilities
under the Law of International Armed Conflict
(Cambridge, Cambridge University Press, 2004), p.
115.
14 Protocol I, Art. 52(2).
262 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
of whether they are party to the Geneva
Conventions.15
Soldiers, on the other hand, may be attacked at
any time, so long as they have not been wounded,
captured, or surrendered. Soldiers who have been
wounded are deemed hors de combat (out of
combat) and are entitled to protections similar to
those that apply to civilians and non-combatants.16
Soldiers who are captured or surrender become
prisoners of war (POWs), and are entitled to
an extensive list of protections and guarantees
of humane treatment under the Third Geneva
Convention.
In order to be considered a soldier, an individual
must be in a chain of command, wear identifiable
insignia, carry her weapons openly, and act in
accordance with the laws of war.17 If she violates
these rules, she will not be eligible for POW status
and the protections afforded by that designation.
This rule both encourages “fair” fighting and helps
to distinguish soldiers from civilians, thereby
maximizing civilian protection.18
According to Geneva Convention rules, hostile
forces must take a number of precautions with
respect to civilians and other non-combatants:
1. In the conduct of military operations, constant
care shall be taken to spare the civilian
population, civilians and civilian objects.
2. With respect to attacks, the following
precautions shall be taken:
a. Those who plan or decide upon an attack
shall:
i. easible to verify that the objectives to be
attacked are neither civilians nor civilian
objects and are not subject to special
protection but are military objectives ...
15 Michael Byers, War Law: Understanding
International Law and Armed Conflict (London,
Atlantic Books, 2005), p. 116.
16 Ibid., p. 127.
17 Hague Convention II, Annex: Regulations
Respecting the Laws and Customs of War on Land,
Article 1; Geneva Convention III, Art. 4A(2).
18 Michael Byers, p. 118.
 ii. Take all feasible precautions in the
choice of means and methods of attack
with a view to avoiding, and in any event
to minimizing, incidental loss of civilian
life, injury to civilians and damage to
civilian objects;
iii. Refrain from deciding to launch any
attack which may be expected to cause
incidental loss of civilian life, injury to
civilians, damage to civilian objects, or
a combination thereof, which would be
excessive in relation to the concrete and
direct military advantage anticipated;
b. An attack shall be canceled or suspended
if it becomes apparent that the objective
is not a military one or is subject to
special protection or that the attack may
be expected to cause incidental loss of
civilian life, injury to civilians, damage to
civilian objects, or a combination thereof,
which would be excessive in relation to
the concrete and direct military advantage
anticipated.19
Indiscriminate attacks – including those that directly
target civilians or civilian objects – are forbidden.
Also forbidden are means and methods of warfare
that cause “unnecessary suffering or superfluous
injury.”20
Protocol I Additional to the Geneva Conventions
further requires all military actions to be taken
with regard to the principle of proportionality – that
attacks should be carefully constructed, and are
forbidden where damage to civilians, civilian objects,
noncombatants, and other protected groups “would
be excessive in relation to the concrete and direct
military advantage anticipated.”21 On its face, this
19 Protocol Additional (I) to the Geneva
Conventions of 12 August 1949, and Relating to
the Protection of Victims of International Armed
Conflicts, adopted June 8, 1977, Art. 57(1)–(2).
20 Ibid., Art. 35(2).
21 Ibid., Arts. 51(5)(b), 57(2)(a)(iii), and 57(2)
(b). Note that one may never deliberately attack
civilians, no matter how great the military
advantage of doing so. Attacks must always be
directed at a legitimate military target, and civilian
deaths must occur only collaterally. Compare with
HUMAN RIGHTS
rule seems relatively straightforward: before every
military attack, forces are required to weigh potential
military advantages against potential collateral
damage to civilians, and to proceed only where the
former exceeds the latter.
In practice, however, the principle of proportionality
is notoriously difficult to apply. As the Committee
Established to Review the NATO Bombing
Campaign Against the Federal Republic of
Yugoslavia22 noted:
The main problem with the principle of
proportionality is not whether or not it exists
but what it means and how it is to be applied. It
is relatively simple to state that there must be
an acceptable relation between the legitimate
destructive effect and undesirable collateral
effects. For example, bombing a refugee
camp is obviously prohibited if its only military
significance is that people in the camp are knitting
socks for soldiers. Conversely, an air strike on
an ammunition dump should not be prohibited
merely because a farmer is plowing a field in
the area. Unfortunately, most applications of the
principle of proportionality are not quite so clear
cut. It is much easier to formulate the principle of
proportionality in general terms than it is to apply
it to a particular set of circumstances because
the comparison is often between unlike quantities
and values. One cannot easily assess the value of
innocent lives as opposed to capturing a particular
military objective.23
Non-International Armed Conflicts
IHL makes a distinction between international
armed conflicts and non-international armed
conflicts. The four Geneva Conventions primarily
govern international armed conflicts – conflicts
between two or more states. However, Common
Article 3 (“common” because the same article
the discussion in Lesson 11 of the proportionality
requirement in jus ad bellum.
22 For more on NATO’s bombing campaign in
Kosovo, see discussion in Lesson 11.
23 Final Report to the Prosecutor by the
Committee Established to Review the NATO
Bombing Campaign Against the Federal Republic
of Yugoslavia, para. 48.
| 263
appears in each of the Conventions) also applies to
conflicts “not of an international character” – those
that are restricted to the territory of a single state.
Non-international armed conflicts generally involve
either government armed forces fighting against
armed rebels or dissidents, or else armed groups
fighting against one another. Common Article 3,
along with Protocol II (which elaborates on the
minimum standards applicable in non-international
armed conflicts), has become particularly important
in recent decades, as increasingly, the majority of
conflicts do not cross over international borders.
Between 1993 and 2003, for example, there was
an average of less than one international conflict
per year, but between 11 and 22 internal conflicts
annually.24
Common Article 3, which has been called a
“convention in miniature”, imposes obligations on
all parties to a non-international armed conflict. It
provides that:
In the case of armed conflict not of an
international character occurring in the territory
of one of the High Contracting Parties, each
Party to the conflict shall be bound to apply, as a
minimum, the following provisions:
1. Persons taking no active part in the hostilities,
including members of armed forces who have
laid down their arms and those placed hors
de combat by sickness, wounds, detention,
or any other cause, shall in all circumstances
be treated humanely, without any adverse
distinction founded on race, colour, religion or
faith, sex, birth or wealth, or any other similar
criteria.
To this end the following acts are and shall
remain prohibited at any time and in any
place whatsoever with respect to the above-
mentioned persons:
a. violence to life and person, in particular
murder of all kinds, mutilation, cruel
treatment and torture;
b. taking of hostages;
24 Human Security Centre, Human Security
Report 2005: War and Peace in the 21st Century
(2005), pp. 148 and 151.
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c. outrages upon personal dignity, in particular
humiliating and degrading treatment;
d. the passing of sentences and the carrying
out of executions without previous judgment
pronounced by a regularly constituted
court, affording all the judicial guarantees
which are recognized as indispensable by
civilized peoples.
2. The wounded and sick shall be collected and
cared for.
The rules set out in Common Article 3 act as what
the International Court of Justice (ICJ) has called a
“minimum yardstick”, or lowest common denominator
of acceptable behavior, for all state and non-state
actors involved in armed conflicts: its prohibitions
reflect “elementary considerations of humanity.”25
Common Article 3 regulates not just the actions
of the officially recognized state, but also of any
non-state entities engaged in an internal armed
conflict. This means that once internal violence
has risen to the level of an armed conflict (as
opposed to ordinary violence, which is dealt with
under domestic criminal law), non-state belligerents
must respect IHL and can take advantage of the
protections offered under the Geneva Conventions.
It is not always easy, however, to determine when
a dispute has crossed the line from “violence” to
“armed conflict.” The Geneva Conventions contain
no express definition of this term. The International
Criminal Tribunal for the Former Yugoslavia (ICTY)
has held that an “armed conflict exists whenever
there is … protracted armed violence between
governmental authorities and organized armed
groups or between such groups within a State.”26
However, this definition still leaves a great deal of
ambiguity with respect to borderline situations.
Historically, states have been resistant to external
regulation of internal conflicts. Following the
fundamental Westphalian assumption that the
international community should not interfere in
the relationship between a state and its nationals,
countries reserved the right to treat internal foes
25 Nicaragua case, ICJ Reports (1986), p. 114.
26 Prosecutor v. Tadic, Case No. IT-94-1-I,
Decision on Defence Motion for Interlocutory
Appeal on Jurisdiction (Oct. 2, 1995), para. 70.
as common criminals, and to deal with them under
domestic law.27 International law only granted
rights to rebel groups once they graduated to the
status of “insurgents” who had “effective control
over some part of the territory”, and even this
determination was left up to individual states, which
could acknowledge or withhold recognition of the
insurgency as they wished.28
While today international law increasingly reaches
within the borders of sovereign states, the decision
to classify an internal dispute as an “armed
conflict”can still be controversial. First, states may
be concerned that designating internal violence
as “armed conflict” will grant a degree of political
legitimacy to insurgent or rebel groups. Second,
a country may be hesitant to embrace restrictions
on its ability to employ any means necessary in
suppressing rebellious activity. Third, a state may
be wary of introducing IHL into internal conflicts,
which brings with it monitoring bodies such as the
ICRC.29 On the other hand, as Professor David
Kretzmer points out, a declaration of ‘armed
conflict’ can also be useful to a state: in addition
to providing protection to state forces and citizens,
it also legitimates the state’s use of force and
indefinite detention of members of opposition
groups without the need for specific justifications or
criminal trials in each case.30
27 David Glazier, “Playing by the Rules:
Combating al Qaeda Within the Law of War”,
William & Mary Law Review, vol. 51 (2009). In 1912,
the ICRC drafted a convention on the role of the
Red Cross in civil wars and insurrections. However,
its applications to do relief work in internal conflicts
were “treated as unfriendly attempts to interfere
in the domestic affairs of the country concerned.”
Commentary on Geneva Convention (IV) Relative
to the Protection of Civilian Persons in Times of
War, J.S. Pictet, ed. (1958), p. 27.
28 Antonio Cassese, International Law (Second
Edition) (New York, Oxford University Press, 2005),
p. 125.
29 Andrew Clapham, “Human Rights Obligations
of Non-State Actors in Conflict Situations”,
International Review of the Red Cross, vol. 88
(2006); David Kretzmer, “Rethinking Application of
IHL in Non-International Armed Conflicts”, Israel
Law Review, vol. 42 (2009).
30 David Kretzmer, “Rethinking Application of IHL
HUMAN RIGHTS
Even with the application of Common Article 3,
however, the number and reach of rules applying
to non-international armed conflict are much
more limited than those applying to inter-state
conflict. Because of the reduced scope of IHL
and the fact that hostilities are between a state
and its own nationals, human rights law becomes
particularly important for protecting civilians
and noncombatants in non-international armed
conflicts.
Grave Breaches
Like international human rights law, IHL places
restrictions on how states can act in relation to
individuals. In addition, however, IHL indirectly
regulates individual behavior by requiring states
to pass laws prohibiting grave breaches of the
Geneva Conventions. Geneva Conventions I–IV
list the following grave breaches of international
humanitarian law:
• Willful killing;
• Torture or inhuman treatment, including
biological experiments;
• Willfully causing great suffering or serious injury
to body or health;
• Extensive destruction and appropriation of
property, not justified by military necessity and
carried out unlawfully and wantonly;
• Unlawful deportation or transfer or unlawful
confinement of a protected person;
• Compelling a prisoner of war to serve in the
forces of the hostile power;
• Willingly depriving a prisoner of war of the rights
of fair and regular trial; and
• Taking hostages.31
in Non-International Armed Conflicts”, Israel Law
Review, vol. 42 (2009) (discussing Israel’s use of
the “armed conflict” designation to justify its actions
in the West Bank and Gaza).
31 Geneva Convention (I) for the Amelioration
of the Conditions of the Wounded and Sick in
Armed Forces in the Field, 12 August 1949, Art.
50; Geneva Convention (II) for the Amelioration of
the Condition of Wounded, Sick and Shipwrecked
Members of Armed Forces at Sea, 12 August
| 265
 Universal Jurisdiction

Traditionally, states have jurisdiction (legal empowerment) to prosecute suspected criminals on one of four grounds:
• Territorial: the offense was committed in the territory of the state;
• Active Nationality: the perpetrator was a citizen of the state;
• Passive Nationality: the victim was a citizen of the state; or
• Protective: the offense endangers the sovereignty of the state (e.g. treason, producing counterfeit currency).

In order to prosecute an offender, a state had to have a connection with the crime based on one of these four
principles. A Canadian killer who murdered three Americans in Quebec could not be prosecuted by a Mexican court –
the Mexican police would instead have to extradite the killer for prosecution in either Canada or the United States.

Recently, however, a fifth category of jurisdiction has also been recognized: universality. Universal jurisdiction allows
for the prosecution of crimes by any state, regardless of whether the crime was committed on its territory, by or to
one of its nationals, or endangers the sovereignty of the state. Universal jurisdiction is based on the principle that
some acts are so heinous that it is in the interest of the whole international community to see them punished. As
such, universal jurisdiction applies only for the prosecution of very serious international crimes such as piracy, torture,
genocide, terrorism, and war crimes.

IHL requires states to punish individuals who
commit any of these grave breaches, and
recognizes universal jurisdiction for the prosecution
of these crimes.32 The Geneva Conventions
specifically provide that:
Each High Contracting Party shall be under
the obligation to search for persons alleged
to have committed, or to have ordered to be
committed, such grave breaches, and shall bring
such persons, regardless of their nationality,
before its own courts. It may also, if it prefers,
and in accordance with the provisions of its
own legislation, hand such persons over for trial
to another High Contracting Party concerned,
provided such High Contracting Party has made
out a prima facie case.33
1949, Art. 51; Geneva Convention (III) relative to
the Treatment of Prisoners of War, 12 August 1949,
Art. 130; Geneva Convention (IV) relative to the
Protection of Civilian Persons in Time of War, 12
August 1949, Art. 147.
32 Compare with the discussion in Lesson 13 of
universal jurisdiction in the context of international
criminal law.
33 Geneva Convention (I), Art. 49; Geneva
Convention (II), Art. 50; Geneva Convention (III),
This means that each state has the right and
responsibility to prosecute persons responsible
for grave breaches of the Geneva Conventions,
regardless of whether the state has a particular
connection to the circumstances of the breach.
It was under this theory, for example, that Adolf
Eichmann, architect of Hitler’s “final solution”, was
abducted from Argentina in 1962 and tried in Israel
for crimes committed in Europe against European
citizens during World War II.
Other Instruments
Other modern treaties supplement the regulations
contained in the Hague and Geneva Conventions,
prohibiting the use of certain weapons and tactics
and protecting certain categories of people and
property. These include:
• The Convention on the Prevention and
Punishment of the Crime of Genocide (1948);
• The Convention for the Protection of Cultural
Property in the Event of Armed Conflict (1954);
• The Biological Weapons Convention (1972);
• The Convention on the Prohibition of Military
or any other Hostile Use of Environmental
Modification Techniques (1976);
Art. 129; Geneva Convention (IV), Art. 146.

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• The Conventional Weapons Convention (1980);
• The Chemical Weapons Convention (1993);
• The Ottowa Convention on anti-personnel mines
(1997);
• The Optional Protocol to the CRC on the
involvement of children in armed conflict (2000);
and
• The Convention Banning Cluster Munitions
(2010).
Enforcement
All of these treaties form a complex web of
international humanitarian law intended to protect
civilians and non-combatants from unnecessary
harm during armed conflict. Enforcement of these
norms is primarily the responsibility of states,
supplemented by the supervisory efforts of the
International Committee of the Red Cross (ICRC).
The ICRC, a private Swiss organization with
long-standing recognition under international law,
was established during the first wave of IHL in the
mid-1800s. The ICRC’s founder, Henry Dunant,
was traveling through Lombardy in June of 1959,
when he happened to witness a battlefield in the
aftermath of a conflict at Solferino. He was so
shocked and dismayed at the carnage he saw there
that in 1862 he wrote a book called A Memory
of Solferino, describing the horrors of war.34 The
book also included two proposals: (1) the creation
of permanent “relief societies for the purpose of
having care given to the wounded in wartime”; and
(2) the formulation of an “international principle,
sanctioned by a Convention inviolate in character,”
that would recognize the neutrality of this relief
organization and allow it to provide aid in the
conflict zone.35 The first of these two proposals led
to the establishment of the ICRC, and the second
to the signing of the First Geneva Convention.
In recognition of these accomplishments, Henry
Dunant was co-recipient of the first Nobel Peace
Prize in 1901.36
34 Henry Dunant, A Memory of Solferino (1962).
The full text of this book is available on the ICRC
website at: <http://www.icrc.org/eng/assets/files/
other/icrc_002_0361_memory_of_solferino.pdf>.
35 Ibid.
36 Irwin Abrams, The Nobel Peace Prize and
the Laureates: An Illustrated Biographical History,
HUMAN RIGHTS
Writing Exercise 12: Conflict in Utopia
If you have access to the Internet, this would
be an especially good exercise to write about
online in conversation with other learners
taking this Peace Operations Training Institute
course. Consider writing your thoughts on the
POTI forum by logging into your classroom and
clicking on the “Student Forum” link.
You are working in a small country called Utopia
that is party to all of the Hague and Geneva
Conventions and their Protocols, as well as the
ICCPR, ICESCR, and several other major human
rights treaties. Utopia is currently in the midst of
a recognized non-international armed conflict,
with government troops fighting against a
rebel guerilla movement in the south of the
country. The rebels do not wear identifiable
uniforms, and have been known to use weapons
indiscriminately. Some members of the Utopian
government have argued that the army should
retaliate by taking rebel hostages and using
them as human shields to prevent the rebels
from continuing to use prohibited means and
methods of warfare.
Consider the following questions and write a
brief report (maximum one page).
• Does international humanitarian law
apply in this context? What factors are
relevant to making this determination?
• What types of potential violations of IHL
can you identify?
• How does the logic of reciprocity
function in this case? Do you think that
it is wise for the government to abandon
its commitment to upholding the laws of
war? Will this tactic work in preventing
further indiscriminate rebel attacks?
Why, or why not?
1901–2001 (Canton, MA, Science History
Publications, 2001), p. 46–8.
| 267
Since that time, the ICRC has been a primary
catalyst in the development and implementation of
humanitarian law. It performs a number of functions
with respect to the promotion of international
humanitarian law, pushing states to adopt IHL
treaties and respect human dignity, and otherwise
maintains a rigorous independence and neutrality
vis-à-vis state politics. The ICRC has a permanent
mandate to provide services and support, and to
advocate on behalf of prisoners, the wounded and
sick, and civilians who have been adversely affected
by armed conflict. It distributes food and medical
assistance, evacuates populations in danger,
and assists in restoring contact between family
members displaced by conflicts. It maintains an
advisory service that assists states in implementing
IHL within their territories, and its 12,000 staff
spread over 80 countries work to coordinate the
efforts of national Red Cross and Red Crescent
societies in addition to providing direct support
for humanitarian work.37 In addition, the ICRC’s
presence in the field can help to remind hostile
forces of their obligations under IHL, and puts the
organization in a unique position for monitoring the
humanitarian situation during conflict. The emblems
of the ICRC – the red cross, red crescent, and red
crystal38 – and any person, vehicle, or object marked
with those emblems are protected under IHL. The
misuse of these emblems is strictly prohibited
because it jeopardizes the neutrality of the ICRC,
undermines the significance of the symbols,
and thus threatens the entire protective system
established under international law.
States are legally required to abide by the Geneva
Conventions and other IHL instruments. In the
event that they do not, they may be “named and
shamed” by the ICRC and other international
organizations or NGOs, such as Amnesty
International and Human Rights Watch. This will
damage their reputation among other nations, and
could lead to the denial of some of the benefits of
good standing with the international community,
such as trade deals, foreign aid, and
37 International Committee for the Red Cross,
Overview of Operations 2009 (2009), pp. 10
and 20.
38 The “red crystal” was added as a third,
non-denominational protected symbol of the ICRC
by Additional Protocol III (2005).
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The protected emblems of the International Red Cross
and Red Crescent Movement.
similar “carrots.” A state that has been a victim of
violations of IHL may bring suit against another
state before an international court or tribunal such
as the International Court of Justice (ICJ).39
In addition, states are compelled to obey IHL
out of respect for the principle of reciprocity.
Reciprocity has historically been an important
tool for encouraging compliance and “marketing
the law of war to its end users: combatants and
commanders.”40 If a state fails to comply with IHL
when engaged in hostilities, it then must face the
possibility that the opposing force will also cease
complying with the rules. IHL protects civilians and
non-combatants and bans indiscriminate and unduly
harmful means and methods of war for the benefit
of all parties to the conflict, not merely one side or
the other. When a state or other armed force stops
complying with IHL, therefore, it endangers not only
its enemies, but also its own civilian population.
Reciprocity, however, is not always enough
to ensure compliance. For instance, after the
attacks of September 11th, some in the United
States infamously argued that the application of
the Geneva Conventions should be restricted in
39 See the cases brought by Bosnia and
Herzegovina and by Croatia alleging genocide
by Serbia and Montenegro and Yugoslavia.
Application of the Convention on the Prevention
and Punishment of Genocide, Bosnia and
Herzegovina v. Serbia and Montenegro; Croatia v.
Yugoslavia.
40 Sean Watts, “Reciprocity and the Law of War”,
Harvard International Law Journal, vol. 50, No. 2
(2009), p. 366.
the context of the “War on Terror.” As Alberto R.
Gonzales, legal counsel to United States President
George W. Bush, wrote in a 2002 memorandum to
the President: “the war against terrorism is a new
kind of war”, which “renders obsolete Geneva’s
strict limitations on questioning of enemy prisoners
and renders quaint some of its provisions.”41 This
memo paved the way for the employment of
so-called “enhanced interrogation techniques”
(i.e. torture), and the refusal to grant detainees
prisoner-of-war (POW) status and protection under
the Third Geneva Convention. Opponents of this
view argued that the failure to fully respect the
Geneva Conventions during the War on Terror
would ultimately backfire, leaving American troops
exposed and denying them reciprocal protections.42
12.3 Law and War
Debates like the one that occurred in the United
States over the applicability of the Geneva
Conventions have led many commentators to
question whether war can really be contained
by law, or whether states will simply abandon it
when push comes to shove; whether in the battle
between war and law, war will always win out.
In responding to this question, one should keep
in mind the fact that even during its debate over
the application of the Geneva Conventions the
United States government did not abandon IHL
altogether, but rather sought to limit its application
through the use of creative legal arguments. In
planning its strategy in the War on Terror, the Bush
administration did not deny the applicability of the
Geneva Conventions outright, but rather engaged
in a “hyper-technical legal analysis” aimed at
41 Memorandum from Alberto R. Gonzales,
Counsel to the President, Office of Counsel to the
President, to George W. Bush, President of the U.S.
(25 January 2002), reprinted in The Torture Papers,
Karen J. Greenberg and Joshua L. Dratel, eds. (New
York, Cambridge University Press, 2005).
42 Neil A. Lewis and Eric Schmitt, “Lawyers
Decided Bans on Torture Didn’t Bind Bush”,
New York Times, 8 June 2004 (noting that State
Department lawyer William H. Taft IV warned that
“such a position would weaken the protections of
the Geneva Conventions for American troops.”).
HUMAN RIGHTS
uncovering and exploiting their ambiguities.43 Legal
justifications were not pushed to the side – they
have been incorporated so fully into the waging of
war in the modern era that hostile parties frame
their ideas in legal terms, taking into consideration
the restrictions on treatment of civilians and
non-combatants, means and methods of warfare,
and proportionality as a matter of course. The
arguments are about legal strategy – which law
applies, not whether law applies at all.
Legal scholar Michael Byers’ description of how
the U.S. government applied IHL during the first
Iraq War in the early 1990s provides a perfect
illustration:
During the 1991 Gulf War, [IHL] obligations were
taken seriously … Some 200 US military lawyers
were dispatched to the Gulf. Legal experts vetted
every targeting decision. A strike on a statue of
Saddam Hussein in Baghdad was ruled out on
the basis that only targets that contribute to the
war effort are permissible under international
humanitarian law. Those legal controversies that
arose stemmed from differing interpretations of
the law, rather than any desire to ignore legal
constraints. At least five British officers resigned
their commissions after the United States
used cluster bombs and fuel-air explosives to
attack Iraqi weaponry, with devastating effects
on enemy soldiers. A similar divergence of
views arose over the use of earthmovers and
tank-mounted ploughs to bury Iraqi soldiers alive
in their trenches, thus avoiding the dangers of
hand-to-hand combat. International humanitarian
law forbids methods of warfare that cause
“unnecessary suffering or superfluous injury”,
but where one sets the balance between military
necessity and humanitarian concerns also
depends, perhaps inevitably, on where one is
coming from … 44
In other words, there is no “battle” between
war and law, merely a battle between different
43 Geoffrey S. Corn, “When the Law of War
Becomes Over-lawyered”, Jurist, 25 November
2005.
44 Michael Byers, War Law: Understanding
International Law and Armed Conflict (New York,
Grove Press, 2005), pp. 119–20.
| 269
interpretations of the law. Legality has become part
and parcel of conflict. As Harvard Law Professor
David Kennedy writes:
To resist war in the name of law, to exalt law as
an external ethical restraint on the frequency
and violence of war, to praise law for bringing
the calculations of cool reason to the passions
of warfare, is to misunderstand the delicate
partnership of war and law. The laws of force
provide the vocabulary not only for restraining
the violence and incidence of war – but also for
waging war and deciding to go to war. Although
legal and military professionals may seem to
march to different drummers, law no longer
stands outside violence, silent or prohibitive. Law
also permits injury, as it privileges, channels,
structures, legitimates, and facilitates acts of war.
We should be clear – this bold new vocabulary
beats ploughshares into swords as often as
the reverse. As a result, law has become a
tool of strategy for soldiers, statesmen, and
humanitarians alike. Law separates the wheat of
just action from the chaff of aggression, wanton
violence, or self-interest as an assertion, a tactic,
or a strategy.45
International humanitarian law has been the
cornerstone of the international community’s efforts
to protect human rights during armed conflict.
However, in addition to protecting certain individuals
and groups from what are deemed the worst ills
of war, it has also had the corresponding effect of
legitimizing acts that are carried out in compliance
with the Geneva Conventions and other international
instruments. As one scholar noted:
Use of the term “international humanitarian law,”
recently described … as “Orwellian,” tends to
obscure the fact that we are not talking only
about rules to protect potential victims of armed
conflicts – we are in fact talking about the whole
body of law relating to armed conflict, jus in bello
or the laws and customs of war, as they were
once called, which rest on assumptions relating to
the power of parties to employ measures that are
clearly incompatible with a human rights regime.46
45 See: David Kennedy, Of War and Law
(Princeton, Princeton University Press, 2006),
p. 167.
46 David Kretzmer, “Rethinking Application of IHL
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While we may like to think of IHL as progressively
moving toward the elimination of war, this has not
been the case. As Professor Nathaniel Berman
writes: “Rather than opposing violence, the legal
construction of war serves to channel violence into
certain forms of activity engaged in by certain kinds
of people, while excluding other forms engaged in
by other people.”47
The forms of violence that are deemed acceptable
under IHL – killing by suitably identified soldiers,
using precise means and methods, with respect
for recognized civilians and noncombatants – are
protected and legitimated by international law. The
“collateral” killing of civilians is condoned, so long
as the “anticipated military advantage” of doing so
outweighs the value of their lives. Persons who
engage in killing that follows these rules may do so
without fear of punishment.
Individuals who stray from the rules of IHL,
however, killing hostile forces indiscriminately,
using banned means and methods of combat,
failing to identify themselves properly, misusing
protected signals, or ignoring distinctions between
civilians and soldiers, will find themselves on the
wrong side of international law.
Some observers have made the additional critical
point that the types of war that are permitted
and prohibited under IHL fall very neatly along
the line dividing wealthy, developed societies
from poor, disempowered groups. There are few
international players who have the material and
technological resources necessary to build smart
bombs, conduct surgical strikes, and engage in
extensive surveillance activities. Many conflicting
parties must resort to less advanced techniques
– 1980s-era missiles, guerrilla warfare, suicide
bombs. IHL thus serves, in some sense, to
privilege combat by wealthy established powers,
and punish combat by underdogs, disenfranchised
separatists, freedom fighters, and terrorists.48
in Non-International Armed Conflicts”, Israel Law
Review, vol. 42 (2009) (footnotes omitted).
47 Nathaniel Berman, “Privileging Combat?
Contemporary Conflict and the Legal Construction
of War”, Columbia Journal of Transnational Law,
vol. 43 (2004), p. 5.
48 See: Frédéric Mégret, “From ‘Savages’ to
These existential questions are not easily
answerable. But it is important for students of human
rights to grapple with all of the potential criticisms
of and challenges to international human rights and
humanitarian law. How can these debates inform our
decision-making processes? Are they useful? What
can thinking about alternative perspectives tell us
about the nature of law and of human rights? The
goal of protecting citizens from grave harm remains
elusive. Can thinking about these issues help us to
do a better job?
Conclusion
In Lesson 11, we discussed the laws that govern
when war can be justly begun – jus ad bellum. In
this lesson, we turned to the law governing what
opposing forces may or may not do once an armed
conflict is underway – international humanitarian
law. Finally, in Lesson 13 we will examine the law
that governs individual conduct during wartime and
ensures accountability for serious international
crimes – international criminal law.
‘Unlawful Combatants’: A Postcolonial Look at
International Humanitarian Law’s ‘Other’”, p. 305.
HUMAN RIGHTS
Further Reading
Nathaniel Berman, “Privileging Combat?
Contemporary Conflict and the Legal Construction
of War”, Columbia Journal of Transnational Law, vol.
43 (2004); Michael Byers, War Law: Understanding
International Law and Armed Conflict (2005); Cordula
Droege, “The Interplay Between International
Humanitarian Law and International Human Rights
Law in Situations of Armed Conflict”, Israeli Law
Review, vol. 40 (2007); David Kennedy, Of War
and Law (2006); Catharine MacKinnon, “Women’s
September 11th: Rethinking the International Law
of Conflict”, Harvard International Law Journal,
vol. 47, No. 1 (2006); Francisco Forrest Martin et
al., International Human Rights and Humanitarian
Law: Treaties, Cases, & Analysis (2006); Frédéric
Mégret, “From ‘Savages’ to ‘Unlawful Combatants’: A
Postcolonial Look at International Humanitarian Law’s
‘Other’”, in International Law and Its Others, Anne
Orford, ed. (2006); Robert D. Sloane, “The Cost of
Conflation: Preserving the Dualism of Jus ad Bellum
and Jus in Bello in the Contemporary Law of War”,
Yale Journal of International Law, vol. 34 (2009).
Websites for Further Information
ICRC: www.icrc.org
| 271
End-of-Lesson Quiz

1. The four Geneva Conventions of 1949 provide 4. According to the principle of

specific protections for all of the following
groups EXCEPT:
A. The sick and wounded in the field;
B. Prisoners of war;
C. Domestic criminals;
D. Civilians and non-combatants.
5. ___________________ is the “convention
2. According to the principle of
___________________, attacking forces
must distinguish between soldiers and
civilians, and may not direct attacks
at civilians.
___________________, attacks are
forbidden where damage to civilians, civilian
objects, noncombatants, and other protected
groups “would be excessive in relation to
the concrete and direct military advantage
anticipated.”
in miniature” that makes some international
humanitarian law rules applicable to
non-international armed conflicts.

3. Which of the following is prohibited by

international humanitarian law?
A. The use of “smart bombs” to single out military
targets for attack;
B. Indiscriminate attacks;
C. Collaterally killing civilians;
D. Taking prisoners of war.

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For questions 6–10, match the type of jurisdiction with its definition:

A. Jurisdiction over offenses committed by a

6. Territorial Jurisdiction
citizen of the state.

B. Jurisdiction over serious international crimes,

regardless of where they took place, by
7. Active Personality Jurisdiction or against whom they were committed,
or whether the offense endangers the
sovereignty of the state.

C. Jurisdiction over offenses that endanger the

8. Passive Personality Jurisdiction
sovereignty of the state.

D. Jurisdiction over offenses committed in the

9. Protective Jurisdiction
territory of the state.

E. Jurisdiction over offenses committed against

10. Universal Jurisdiction
a victim who is a citizen of the state.

ANSWER KEY
1C, 2 Distinction, 3B, 4 Proportionality,
5 Common Article 3, 6D, 7A, 8, 9C, 10B

HUMAN RIGHTS | 273

LESSON 13
HUMAN RIGHTS DURING
ARMED CONFLICT III:
INTERNATIONAL CRIMINAL LAW
 LESSON
13

LESSON OBJECTIVES

13.1 Introduction By the end of Lesson 13, the student should be able to meet the
following objectives:
13.2 International
Criminal Law
• Understand the purposes of international criminal law;
13.3 Transitional Justice
• Appreciate the history of international criminal responsibility;
Annex A
• Identify the crimes over which international courts have jurisdiction;
The Rome Statute • Understand the system set up to enforce international criminal law;
of the International
• Appreciate the difficult nature of post-conflict situations; and
Criminal Court
• Identify some pros and cons of pursuing trials in international
courts.

To view a video introduction of this lesson by the

course author Jessica C. Lawrence, you can
either log in to your virtual classroom, go to www.
peaceopstraining.org/users/media_page/386/
lesson-13, or use your mobile device to scan the
QR code to the left.
13.1 Introduction
In the previous two lessons, we discussed the
laws that govern when a state can go to war,
and how it can act once it does. In this lesson,
we will turn to a final branch of law that helps
protect human rights during wartime: international
criminal law (ICL).
13.2 International Criminal Law
International Criminal Law
International criminal law (ICL) seeks to achieve
accountability for individuals who commit gross
violations of international human rights and
humanitarian law during armed conflict. These
rules protect values that are deemed important to
the international community as a whole, and are
therefore considered binding on and enforceable
against all peoples of all nations.
ICL has two primary aims:
• Prohibiting conduct: ICL sets rules proscribing
certain types of conduct during hostilities. The
prohibited forms of conduct include war crimes,
crimes against humanity, genocide, torture,
aggression, and extreme forms of international
terrorism.
ICL does not include prohibitions against
drug trafficking, smuggling weapons, money
laundering, or human trafficking. These
offenses, which are generally committed by
private individuals or criminal organizations,
remain under the jurisdiction of the state and its
domestic criminal law.
• Punishing violators: ICL makes persons
who engage in prohibited conduct criminally
liable for their actions. In order to do so, it
establishes courts and enforcement mechanisms
to apprehend, try, and punish international
criminals.
We will discuss each of these functions, their
application in different contexts, and the systems
developed to enforce them, below.
HUMAN RIGHTS
A Brief History of International Criminal Law
The antecedents of international criminal law can
be traced back to the early days of international
human rights action, drawing on nineteenth century
anti-piracy laws, the regulation and eventual
abolition of the slave trade,1 jus ad bellum,2 and
IHL.3 Despite its deep roots, however, ICL has
grown along a crooked path, with many periods
of dormancy and changes of direction. With the
exception of the International Criminal Court (ICC),
ICL has been constructed largely on an ad hoc
basis, with treaties and tribunals established as
needed in response to specific events, rather than
through a coherent long-term drafting process.
Rules and crimes have been drawn from a mixture
of national law, IHL, human rights, and the basic
principles of public international law. Courts have
differed from one another both with respect to the
rules they apply and the contexts in which they
apply them. It was not until very recently that a
coherent corpus of international criminal law proper
began to coalesce and distinguish itself from other
branches of law.
Modern international criminal law began to take
shape in 1945 and 1946, with the establishment
of the International Military Tribunal for the Trial of
German Major War Criminals (IMT or Nuremberg
Tribunal) and the International Military Tribunal for
the Far East (IMTFE or Tokyo Tribunal), respectively.
The victorious Allied forces established the
Nuremberg and Tokyo Tribunals after World War
II, with the idea that they would be the “Trials to
End All Wars.”4 The purpose of these courts was to
prosecute high-level German and Japanese military
and civilian authorities for the newly created charges
of crimes against peace (violations of jus ad bellum),
war crimes, and crimes against humanity (violations
of the laws of war):
The following acts, or any of them, are crimes
coming within the jurisdiction of the Tribunal for
which there shall be individual responsibility:
1 See discussion of the early human rights battle
against the slave trade in Lesson 1.
2 See discussion in Lesson 11.
3 See discussion in Lesson 12.
4 David Luban, Legal Modernism (Ann Arbor,
University of Michigan Press, 1994), p. 336.
| 277
 a. Crimes Against Peace: namely, planning,
preparation, initiation or waging of a
war of aggression, or a war in violation
of international treaties, agreements or
assurances, or participation in a common
plan or conspiracy for the accomplishment
of any of the foregoing;
b. War Crimes: namely, violations of the laws
or customs of war. Such violations shall
include, but not be limited to, murder, ill-
treatment or deportation to slave labour or
for any other purpose of civilian population
of or in occupied territory, murder or ill-
treatment of prisoners of war or persons
on the seas, killing of hostages, plunder
of public or private property, wanton
destruction of cities, towns or villages,
or devastation not justified by military
necessity;
c. Crimes Against Humanity: namely, murder,
extermination, enslavement, deportation,
and other inhumane acts committed
against any civilian population, before or
during the war, or persecutions on political,
racial or religious grounds in execution of
or in connection with any crime within the
jurisdiction of the Tribunal, whether or not in
violation of the domestic law of the country
where perpetrated.5
The Nuremberg and Tokyo Trials have been
criticized as legally unjust because they punished
the accused for wrongs that were moral but not
legal crimes at the time of commission, thereby
violating the prohibition against retroactive criminal
prosecutions. They have also been pilloried as
“victor’s justice” because the crimes of the Allied
governments – notably the firebombing of Dresden
and Tokyo – escaped the scrutiny of the courts.6
Nevertheless, the Tribunals have been generally
lauded, and represented an important step in
ICL that cemented the idea that individuals could
be held directly legally responsible for violations
of international human rights and humanitarian
5 Nuremberg Charter annexed to the London
Agreement of 8 August 1945, Art. 6.
6 See: Mark Osiel, Mass Atrocity, Collective
Memory, and the Law (Piscataway, NJ, Transaction
Publishers, 1997), p. 122.
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On the Nerumberg Tribunal
“The wrongs which we seek to condemn
and punish have been so calculated,
so malignant, and so devastating, that
civilization cannot tolerate their being
ignored, because it cannot survive their
being repeated. That four great nations,
flushed with victory and stung with injury,
stay the hand of vengeance and voluntarily
submit their captive enemies to the judgment
of the law is one of the most significant
tributes that Power has ever paid to
Reason.”
Justice Robert Jackson
U.S. prosecutor at Nuremberg
from “Opening Address to the International
Military Tribunal at the Nuremberg Trials” (1945)
law.7 The principles they set forth were officially
recognized by the UN in the 1950 Nuremberg
Principles.8
On the heels of the Nuremberg and Tokyo
Tribunals came the adoption of the Convention on
the Prevention and Punishment of the Crime of
Genocide (Genocide Convention) in 1948, which
officially recognized genocide as a crime under
international law.9
Over the next several decades, however, the
development of international criminal law stalled.
7 See discussion of the tribunal’s faults in Lesson
1. Historically, there have been other instances of
certain conduct being held to be a direct violation
of international law: piracy, for example, was long
considered a “universal crime” punishable by all
nations. Henry J. Steiner, Philip Alston, and Ryan
Goodman, International Human Rights in Context:
Law, Politics, Morals (Third Edition) (2007), p. 116.
8 See: A/1316, Report of the International Law
Commission Covering its Second Session, 5
June–29 July 1950.
9 See Lesson 10 for a discussion of the role of
the Genocide Convention in protecting minority
rights.
It was not until after the end of the Cold War that
ICL experienced a resurgence of attention. At
the end of the 1980s, a coalition of states came
together to kick-start the project of international
criminal justice, and the International Law
Commission (a group of lawyers that produces
studies and legal analyses for the UN10) began
drafting a statute for a permanent international
criminal court.
In the meantime, war broke out in Yugoslavia, and
reports of deportations, concentration camps,
and ethnic cleansing sparked outrage in the
international community. In response to calls for
justice, the Security Council unanimously voted
in 1993 to establish an International Criminal
Tribunal for the former Yugoslavia (ICTY). The
ICTY, framed after the Nuremberg model, was
to prosecute persons responsible for serious
violations of IHL during the armed conflict. As of
November 2011, the ICTY had concluded 161
cases, and had 35 cases still ongoing.11 Although
it has hit some snags along the way – for example,
its star case against former Yugoslav President
Slobodan Milosevic ended when the defendant
died of a heart attack four years into the trial12 – the
ICTY has been instrumental in the development of
international criminal law standards. Its goal is to
complete all proceedings by 2012.
In 1994, when outrage at the Rwandan genocide
took hold at the UN, the Security Council repeated
its earlier move, establishing an International
Criminal Tribunal for Rwanda (ICTR) to punish
those responsible for the conflict’s worst atrocities.
As of November 2011, the ICTR had concluded 69
cases, had six cases still ongoing, and had one
10 UN Charter, Art. 13(1) (“The General Assembly
shall initiate studies and make recommendations
for the purpose of … encouraging the progressive
development of international law and its
codification.”).
11 A summary of current caseload figures is
available on the ICTY website: <http://www.icty.org/
sections/TheCases/KeyFigures>.
12 Marlise Simons & Alison Smale, “Slobodan
Milosevic, 64, Former Yugoslav Leader Accused
of War Crimes, Dies,” New York Times, Mar. 12,
2006.
HUMAN RIGHTS
case awaiting trial.13 Despite charges of inefficiency
and “glacial” slowness in completing trials,14 the
tribunal has made some noteworthy achievements,
securing the first genocide conviction against a
head of government15 and helping to establish the
precedent that rape can be a tactic of genocide.
Its goal was to complete all proceedings by 2010,16
but as of January 2012, there were still a number of
cases in progress.
In addition to these purely international criminal
tribunals, several hybrid international criminal
tribunals have been established to try violators of
national and international criminal law. These hybrid
tribunals apply a blend of international and domestic
rules, and are developed ad hoc for the purpose
of one particular conflict situation. Hybrid courts
include the Special Court for Sierra Leone (SCSL),
the East Timor Special Panels, the Extraordinary
Chambers in the Courts of Cambodia (ECCC), and
the Special Tribunal for Lebanon (STL).17
The International Criminal Court
The success of the ICTY and ICTR along with
continuing frustration with the ad hoc nature of
ICL spurred further efforts to create a permanent
international criminal court that could prosecute
serious violations of IHL wherever they occur. As
former-Secretary-General Kofi Annan wrote in a
New York Times op-ed:
[The ICTY and ICTR] showed that there is such
a thing as effective international justice.
13 A summary of current caseload figures is
available on the ICTR website under “Cases”:
<www.ictr.org>.
14 See: James C. McKinley Jr., “On 1994 Blood
Bath in Rwanda, Tribunal Hews to a Glacial Pace”,
New York Times, 21 November 1997.
15 James C. McKinley Jr., “Ex-Rwandan Premier
Gets Life in Prison on Charges of Genocide in ’94
Massacres”, New York Times, 5 September 1998.
16 Marc Lacey, “Rwanda Also Awaits Justice,”
New York Times, 23 July 2008.
17 One scholar has even proposed the creation
of a “Nuremberg for Guantánamo” that would try
the detainees currently held at Guantánamo Bay
in a hybrid international criminal tribunal. Guénaël
Mettraux, “A Nuremberg for Guantánamo”, New
York Times, 19 August 2009.
| 279
 But these ad hoc tribunals were not enough.
People the world over wanted to know that
wherever and whenever the worst atrocities
were committed – genocide, war crimes or
crimes against humanity – there would be a
court to bring to justice anyone in a government
hierarchy or military chain of command who was
responsible. That principle would be applied
without exception, whether to the lowliest soldier
or the loftiest ruler.18
After several years of preparatory work, the Rome
Statute establishing the International Criminal
Court (ICC) was adopted at a 1998 Diplomatic
Conference. Of 120 attendees, seven states voted
against the formation of the ICC: the United States,
China, Israel, Qatar, Libya, Iraq, and Yemen.19
The Rome Statute entered into force in 2002, with
its ratification by the 60th state. As of January 2012,
there were 120 state parties to the statute and thus
subject to the jurisdiction of the Court.20 Despite its
ever-increasing number of state parties, several
countries remain strongly opposed to conceding
jurisdiction to the ICC. Notable among these is the
United States, whose hostility toward the Court
was so great that the U.S. Congress passed an act
in 2002 prohibiting the provision of military aid to
countries that had ratified the Rome Statute unless
they were NATO members, major non-NATO allies,
or had signed a bilateral “Article 98” agreement
indicating that they would under no circumstances
refer an American citizen for prosecution.21 The
18 Kofi Annan, “Africa and the International
Criminal Court”, New York Times, 29 June 2009.
19 A/CONF.183/13 (Vols. I–III).
20 An updated list of all state parties to the
Rome Statute can be found on the UN Treaty
Collection website: <http://treaties.un.org/Pages/
ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-
10&chapter=18&lang=en>.
21 American Service-Members Protection Act
of 2002, available on the U.S. Department of
State website: <http://www.state.gov/t/pm/rls/
othr/misc/23425.htm>; See: Rome Statute, Art.
98. Former Republican House leader Tom DeLay
called the ICC a “kangaroo court” and that was a
“clear and present danger” to U.S. citizens fighting
terrorism abroad. Roger Cohen, “A Court for a New
America”, New York Times, 3 December 2008.
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US attitude toward the ICC has softened under the
Obama administration, but it remains to be seen
how much this relationship will change.22
 Take a moment now to read through
the Rome Statute, attached as Annex A.
The ICC statute gives it jurisdiction over four
categories of crimes:
• War crimes;
• Crimes against humanity;
• Genocide; and
• Aggression.
The first three of these crimes – war crimes, crimes
against humanity, and genocide – were all included
in the original Rome Statute, and the ICC has
begun to prosecute accused international criminals
under these rules. The fourth type of international
crime – crimes against peace, or “aggression” in
today’s parlance – was also proposed for inclusion
in the Rome Statute, but was initially rejected by
the drafters. The category of crimes against peace,
which appeared in the statutes of the Nuremberg
and Tokyo Tribunals, was chiefly intended to
supplement jus ad bellum by making individuals
liable for inciting wars of aggression. But the
drafters of the Rome Statute were unable to come
to a consensus definition of “aggression”, and as a
result, it was not included in the final treaty. Article
5(2) of the Rome Statute, however, promised
that “the Court shall exercise jurisdiction over the
crime of aggression once a provision is adopted
defining the crime and setting out the conditions
under which the Court shall exercise jurisdiction
with respect to this crime”, and a Working Group
was set up for this purpose.23 In June 2010, after
years of debate and preparatory work, the Review
Conference of the Rome Statute (held in Kampala,
Uganda) finally adopted amendments that included
and defined the crime of aggression in the Rome
Statute. Though it is now a part of the ICC’s
mandate, however, the Court will not be able
to exercise jurisdiction over the crime until
22 Obama’s national security spokeswoman has
said that “President-elect Obama strongly supports
the I.C.C.’s efforts to investigate and prosecute
those responsible for atrocities in Sudan.” Ibid.
23 Rome Statute, Art. 5(2).
January 1, 2017 at the earliest, after which
two-thirds of the state parties can make a decision
to activate it. As such, there will be no prosecutions
under this new rule for several years at least.
The ICC lacks jurisdiction over terrorism. This
contrasts with some other international tribunals,
which do have jurisdiction over terrorist activities –
for example, the ICTR, the Special Court for Sierra
Leone, and the Special Tribunal for Lebanon. There
are no concrete plans for adding terrorism to the
classes of crimes under the jurisdiction of the ICC.
However, any act of terrorism that amounts to a
crime against humanity as defined in the Rome
Statute could be prosecuted on that ground.24
The International Criminal Court does, however,
have jurisdiction to prosecute gender-based war
crimes, and crimes against humanity, including
“rape, sexual slavery, enforced prostitution, forced
pregnancy, enforced sterilization, or any other form
of sexual violence of comparable gravity.”25 As
noted in Lesson 8, in the context of women’s rights,
although rape in war has long been illegal under
international humanitarian law, sexual atrocities
were ignored at the Nuremberg Tribunal and raised
only in part at the Tokyo Trials.26 Observing this
gender differential in the prosecution of crimes of
war, women’s rights groups fought hard to see that
these crimes were included in the Rome Statute,
as well as in the statutes of the ICTR and ICTY. As
a result of their efforts, “IHL and ICL now contain
some of the world’s most feminist rules on rape and
related sexual violence.”27
24 For more on the international response to
terrorism, see Lesson 14.
25 Rome Statute, Art. 7(1)(g). See: Rome Statute,
Arts. 8(2)(b)(xxii) and 8(2)(e)(vi).
26 Catharine A. MacKinnon, “Women’s September
11th: Rethinking the International Law of Conflict”,
Harvard International Law Journal, vol. 47 (2006),
p. 15.
27 Janet Halley, “Rape in Berlin: Reconsidering
the Criminalisation of Rape in the International
Law of Armed Conflict”, Melbourne Journal of
International Law, vol. 9 (2008) (quoting a term
from Elizabeth Bernstein, “the Sexual Politics of
the ‘New Abolitionism’”, differences: A Journal of
Feminist Cultural Studies, vol. 18, No. 3 (2007), p.
143. Some scholars have questioned
HUMAN RIGHTS
Luis Moreno-Ocampo, Prosecutor of the International Criminal Court
(ICC), briefs the press on the situation in the Sudan.
(UN Photo #398225 by Eskinder Debebe, June 2009)
As mentioned above, ICL is a relatively new branch
of law. One important consequence of its youth is
that the exact contours of many of the international
crimes it prohibits have not yet been established.
The state parties to the ICC have adopted various
instruments in order to assist interpretation, such
as the Rules of Procedure and Evidence and the
Elements of Crimes, but because the Court has as
of yet only taken on a handful of cases, it remains to
be seen how these regulations will apply in practice.
The ICC opened its first trial – Prosecutor v.
Thomas Lubanga Dyilo – on 26 January 2009.
this emphasis on prosecution and punishment,
however. Professor Janet Halley, for example, asks
whether “this new ‘carceral feminism’ – intent on
criminalizing, indicting, convicting, and punishing
perpetrators of sexual violence in numerous
domains of domestic law as well as IHL and ICL
– [is] going to have entirely good effects in the
family, the workplace, the public sphere?” Id. Will
increased criminalization “weaponize” rape, making
it more effective (and thus more frequently used)
as a tool of war? Does it disempower women by
eroding the idea that they have the capacity to
consent? Id. Will it encourage war in the name of
protecting women’s honor? Karen Engle, “ ‘Calling
in the Troops’: The Uneasy Relationship Among
Women’s Rights, Human Rights, and Humanitarian
Intervention”, Harvard Human Rights Journal,
vol. 20 (2007).
| 281
Mr. Lubanga is accused of war crimes, including
the use of child soldiers as young as 9 years old
in his militia in the Ituri region of eastern Congo.28
Since that time, the ICC has brought cases against
defendants from a number of different conflict
situations, including several other defendants from
the situation in the Democratic Republic of the
Congo, the situation in the Central African Republic,
the situation in Uganda, the situation in Darfur, the
situation in the Republic of Kenya, the situation in
Libya, and the situation in Côte d’Ivoire.29
Looking at the list of situations in the previous
paragraph over which the ICC has taken jurisdiction
to date, you may be able to guess the nature of
one of the biggest criticisms of the Court’s practice:
so far, it has only begun cases against African
defendants. The Court’s defenders have pointed out
that several of the situations in which the ICC has
issued warrants were referred to the Court by the
African countries themselves, and that the ICC has
also begun investigations in Afghanistan, Georgia,
Palestine, and Colombia. However, the fact remains
that no warrants have been issued in non-African
situations. What do you think? Why has the Court
spent so much time on Africa? Is the ICC’s African
focus unfair? Is it merely a matter of time before the
geographical scope of prosecutions widens?
Enforcement of ICL
In order to enforce its prohibition of war crimes,
crimes against humanity and genocide, ICL assigns
violators individual criminal liability. This means that
under ICL individuals – not just the state – can be
held responsible for breaking the rules.
As we learned in previous lessons, international
law generally addresses states. It orders the
relations among them, describes what they can
and cannot do with respect to other states, and
sets out the customary formalities that they
should observe when interacting with one another.
International human rights law represents a break
from this traditional structure because it addresses
28 Marlise Simons, “International Court Begins
First Trial”, New York Times, 26 January 2009.
29 A list of the ICC’s current cases can be
found at <http://www.icc-cpi.int/Menus/ICC/
Situations+and+Cases/Cases/>
282 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
states’ behavior not toward other states, but toward
individuals within their own borders.30
In the realm of law and war, both state-state and
state-individual models exist. Jus ad bellum – the
law that governs whether a war is just, or legally
begun – governs relations between states at the
time a conflict begins. IHL, or jus in bello – the law
of war – governs the protection of civilians and
non-combatants during an armed conflict, whether
the opposing forces are nationals of another
state, or (to a lesser degree) intra-state rebels.
International human rights law continues to protect
a country’s own citizens during wartime.
International criminal law differs from jus ad bellum,
international humanitarian law, and human rights
law because it is addressed directly to individuals,
prohibiting them from committing abuses against
other individuals, and assigning them direct
criminal liability under international law in the
event of a breach. In other words, international
criminal law speaks directly to the individual as
a subject of international law. As we will discuss
further in Lesson 14, addressing individuals directly
is a major innovation in international law, and a
significant alteration of the Westphalian model.
The cornerstone of the international criminal
enforcement system is the principle of aut dedere
aut judicare: the duty to prosecute or extradite.
According to this maxim, countries that discover an
individual who has violated a norm of international
criminal law are required either to investigate and
prosecute her, or else to send her to a country that
will. There are no statutes of limitations that prevent
a person from being tried, and, as was the case
with grave breaches of IHL, states have universal
jurisdiction to prosecute.31
States have the initial and primary responsibility
for prosecuting violators of ICL. It is only when
states are unwilling or unable to prosecute
individuals accused of committing international
crimes, or when states or the Security Council
explicitly ask for its assistance, that the ICC can
step in and take jurisdiction over a case.32 This
30 See discussion of the Westphalian system in
Lesson 1.
31 See discussion of universal jurisdiction in
Lesson 12.
32 Rome Statute, Arts. 13–5.
system of dual levels of enforcement that work
side-by-side, rather than hierarchically, is known
as complementarity.
Once it has jurisdiction over a situation, the ICC
can prosecute any individual accused of any of
the crimes listed in the Rome Statute, including
both those who are directly responsible, as well
as those who have aided, abetted, or otherwise
assisted in the commission of the crime. Under
the principle of command responsibility, military
commanders and other superiors can be held
responsible for the crimes of persons under their
charge if they knew, or had reason to know, that
their subordinates were committing crimes and
failed to take all feasible steps to prevent or stop
the violations.33
The ICC, unlike states, does not have universal
jurisdiction to prosecute crimes. Instead, it can
exercise jurisdiction only if:
• The accused is a national of a state that has
accepted the jurisdiction of the ICC;
• The crime took place in the territory of a state
that has accepted the jurisdiction of the ICC; or
• The UN Security Council has referred the case
to the Prosecutor.34
Additionally, the jurisdiction of the ICC is limited to
only those crimes that were committed after 1 July
2002, or after the date that the Rome Statute entered
into force for the referring country, if later.35
13.3 Transitional Justice
Post-Conflict Situations: Peace v. Justice?
ICL applies both during an armed conflict as well as
in the post-conflict period, when it can play a role in
transitional justice – the response to systematic or
widespread violations of human rights – and assist
in the changeover from a conflict to a post-conflict
society. The place of international criminal law in
post-conflict situations, however, is disputed terrain.
33 Rome Statute, Art. 28. See: Geneva
Convention (III), at Art. 12.
34 Rome Statute, Art. 12.
35 Rome Statute, Art. 11.
HUMAN RIGHTS
Once a conflict has come to an end, a country
has important choices to make about how to move
from a time of war to a time of peace. ICL can be
instrumental in this move when it allows countries
to punish those who committed atrocities and
disregarded IHL and human rights law during
wartime. Bringing perpetrators to justice can be
an important part of the psychological healing
process, which is necessary for obtaining a real
and lasting peace. It can also be cathartic for
the international community, as states may feel
compelled to send a strong statement to violators in
the name of deterrence.
However, the pursuit of justice can also obstruct
the move toward peace. It may keep old wounds
open, spark renewed hostilities among previously
quiescent parties, or prevent leaders from making
deals that could end the conflict, thereby prolonging
or exacerbating human rights violations.36 As
Richard H. Solomon, president of the United States
Institute for Peace, writes:
Newcomers to the field of international relations
may be surprised to learn that efforts to advance
human rights are often at odds with attempts
to halt violent conflicts. In the experience of
practitioners, however, it is unfortunately a
commonplace that the promotion of human rights
and the practice of conflict resolution, while both
admirable endeavors in themselves, are by no
means necessarily complementary objectives.
The international landscape is littered with
episodes in which advocates of the two
objectives have pointed accusing fingers at
one another, charging that their own best
efforts have been undermined, ignored, or
counteracted by actions taken by counterparts
36 See: J. Goldsmith and Stephen D. Krasner,
“The Pitfalls of Idealism” Daedelus, vol. 132 (2003);
Julian Ku and Jide Nzelibe, “Do International
Criminal Tribunals Deter or Exacerbate
Humanitarian Atrocities?” Washington University
Law Quarterly, vol. 84 (2007). But see: Hunjoon
Kim and Kathryn Sikkink, “Do Human Rights
Trials Make a Difference?” Paper Presented at the
Minnesota International Relations Colloquium (15
October 2007) (finding that transitional countries
with more frequent human rights trials have
reduced levels of human rights abuses).
| 283
 from the other camp. In Bosnia, for instance,
human rights activists spent years pressing
NATO’s Stabilization Force to arrest indicted
war criminals, a move that many diplomats
and soldiers felt would only further destabilize
an already volatile situation. In Pakistan, U.S.
policymakers have had to contend with charges
that they have turned a blind eye to torture and
other human rights abuses of the government in
return for cooperation of the regime in Islamabad
in the fight against al Qaeda. In a host of cases,
from the Middle East to the Balkans to West
Africa, would-be peacemakers have seen their
best efforts to reach negotiated settlements
challenged, if not undermined, by groups
protesting the inclusion in peace talks of leaders
who have used terror, genocide, and ethnic
cleansing to advance their political goals.37
Cases in point are the recent debates over the
wisdom of the ICC’s arrest warrant for Sudanese
President Omar Hassan al-Bashir,38 and Ugandan
Lord’s Resistance Army leader Joseph Kony’s
refusal to surrender until the ICC indictment against
him is canceled.39
37 Richard H. Solomon, “Foreword”, in Human
Rights & Conflict: Exploring the Links between
Rights, Law, and Peacebuilding,Julie A. Mertus
and Jeffrey W. Helsing, eds. (2006), p. ix.
38 Compare: Franklin Graham, “Put Peace Before
Justice”, New York Times, 2 March 2009:
The removal of Mr. Bashir will make it harder
to negotiate an end to the crisis in Sudan.
Ultimately, justice will be served by a power
higher than the International Criminal Court. In
the meantime, justice without peace would be a
hollow victory.
With: Desmond Tutu, “Will Africa Let Sudan Off the
Hook?” New York Times, 2 March 2009:
African leaders argue that the court’s action
will impede efforts to promote peace in Darfur.
However, there can be no real peace and
security until justice is enjoyed by the inhabitants
of the land. There is no peace precisely because
there has been no justice. As painful and
inconvenient as justice may be, we have seen
that the alternative – allowing accountability to
fall by the wayside – is worse.
39 See: Jeffrey Gettleman and Alexis Okeowo,
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The pursuit of justice in the post-conflict period also
suffers from “Nuremberg syndrome”: “the tendency
to try the vanquished while the victors remain
sheltered from judicial scrutiny.”40 Accusations
of “victor’s justice” can contribute to a sense of
unfairness, and rekindle old feelings of animosity
and hatred. As Professor Antonio Cassese notes:
“It is a fact that neither the accusations widely
made against NATO airmen attacking Serbia in
the 1999 war nor those made against the Tutsi
leadership for the 1994 genocide have ever been
verified or examined through judicial inquiry.”41
International trials are just one of several options
available on the modern transitional justice menu.
Other methods of transitioning to a post-conflict
society include:
• Doing nothing;
• Vetting and removing military and political
officers involved in the conflict;
• Providing amnesty or exile for offenders;
• Instituting disarmament, demilitarization, and
reintegration (DDR) programmes;
• Initiating reparations programmes;
• Creating museums and memorials to past abuse;
• Establishing truth and reconciliation
commissions; and
• Initiating domestic trials for those who committed
war crimes, crimes against humanity, genocide,
or other serious crimes.
Post-conflict societies may elect to pursue any or
all of these strategies, in whatever combination
seems most suited to their needs. Sierra Leone,
for example, has both a truth commission and
hybrid international court,42 and the Colombian
“Warlord’s Absence Derails Peace Effort in
Uganda”, New York Times, 12 April 2008.
40 Antonio Cassese, “Clemency Versus
Retribution in Post-Conflict Situations”, Columbia
Journal of Transnational Law, vol. 46 (2007), p. 9.
41 Ibid.
42 See: William A. Schabas, “The Sierra
Leone Truth and Reconciliation Commission”, in
Transitional Justice in the Twenty-First Century:
Beyond Truth Versus Justice, Naomi Roht-Arriaza
peace process has involved domestic trials and
an alternative punishment system that grants
suspensions of criminal sentences in exchange for
demobilization, resocialization, and the payment of
reparations to victims.43
Each of these forms of transitional justice has its
strengths and weaknesses. Doing nothing may not
provide victims of crimes with a feeling of justice,44
but it could allow a country to move quietly into a
time of peace.45 Vetting and removing military and
political officers who had a primary role in provoking
or fanning the flames of conflict may be enough
to signal a break with a violent past, but may not
satisfy the desires of victims and activists seeking
accountability. Providing amnesty or exile for
offenders may offer a way to end a conflict quickly
and reduce the chances of renewed violence, but it
may also seem grossly unjust when brutal leaders
are allowed to end their days in peace in a gilded
and Javier Mariezcurrena, eds. (2006).
43 See: Maria José Guembe and Helena Olea,
“No Justice, No Peace: Discussion of a Legal
Framework Regarding the Demobilization of
Non-State Armed Groups in Colombia”, in
Transitional Justice in the Twenty-First Century:
Beyond Truth Versus Justice, Naomi Roht-Arriaza
and Javier Mariezcurrena, eds. (2006).
44 Indeed, the Inter-American Court of Human
Rights in 2001 struck down a Peruvian amnesty
law as invalid because “they are intended to
prevent the investigation and punishment of those
responsible for serious human rights violations
such as torture, extrajudicial, summary or arbitrary
execution and forced disappearance, all of them
prohibited because they violate non-derogable
rights recognized by international human rights
law.” Chumbipuma Aguirre et al. v. Peru (Barrios
Altos case), 2001 Inter-American Court of Human
Rights (Series C), No. 75 (14 March 2001), para. 41.
45 For example, as Solomon Berewa, Vice
President of Sierra Leone, explained his opinion
that the war crimes trial of Charles Taylor,
ex-President of Liberia, should be held “somewhere
else”: “We don’t want to be reminded of those
atrocities every day … We want to put it behind us
and move forward.” Lydia Polgreen and Marlise
Simons, “Sierra Leone Asks to Move Liberian’s
Trial”, New York Times, 31 March 2006.
HUMAN RIGHTS
exile.46 Similarly, granting reparations to victims
may be a positive way of acknowledging guilt and
responsibility and giving something back to those
who were most injured during the conflict. But
without accompanying trials or truth commissions,
such payouts may seem like “blood money”
purchasing the silence of the abused.
Truth and reconciliation commissions have
sometimes functioned as a compromise between
formal trials and doing nothing; allowing healing
by airing and creating a record of atrocities,
while seeming less confrontational than
criminal prosecutions. South Africa’s Truth and
Reconciliation Commission, chaired by Archbishop
Desmond Tutu, for example, is often held up
as a model that proved “capable of striking a
balance between the establishment of guilt and
reconciliation, between justice and forgiveness.”47
However, where violence is widespread, official,
and severe, anything less than criminal trials
may seem to be a default of justice. Additionally,
where truth commissions are not accompanied by
reparations or some other form of compensation
for victims or sanction of violators, they may
re-traumatize victims by making their personal
stories seem meaningless.48
46 For example, use of this strategy allowed
former dictator and President of Zaire Mobutu
Sese Seko to live out the remainder of his life
in Morocco, and Ferdinand Marcos to leave the
Philippines for exile in a Hawaiian villa. Graham
Bowley, “How to Show a Dictator the Door”, New
York Times, 27 April 2008.
47 Antonio Cassese, “Clemency Versus
Retribution in Post-Conflict Situations”, Columbia
Journal of Transnational Law, vol. 46 (2007), p. 10.
48 In response to such concerns, South African
President Thabo Mbeki pledged to make a
one-time payment of $3,900 to the family of each
of 19,000 victims of apartheid crimes who testified
before South Africa’s Truth and Reconciliation
Commission. Ginger Thompson, “South Africa to
Pay $3,900 to Each Family of Apartheid Victims”,
New York Times, 16 April 2003.
| 285
Writing Exercise 13: Justice in Valhalla
You are working in a small state named Valhalla
that is party to all of the major human rights
and humanitarian conventions. After 10 long
years of civil war, rebel forces in Valhalla
have surrendered, and peace is returning
to the country. The Valhallan government,
in cooperation with the UN, has decided to
establish an international criminal tribunal to
aid in the transitional justice process. Because
of your expertise on transitional justice issues,
you have been asked to consult with the new
International Criminal Tribunal for Valhalla
(ICTV) on the task of selecting individuals for
prosecution. Like other international tribunals,
the ICTV will be able to try only a limited number
of people responsible for committing crimes
during the civil war.
Consider the following questions and write a
brief report (maximum one page).
• How will you go about selecting
individuals for prosecution? What
factors are most important in making his
decision?
• What should happen to the rest of the
people who committed international
crimes?
When a country does decide that it wants to
prosecute individuals who violated ICL, it has two
options: it may prosecute accused violators in its
own domestic courts, or it may ask that they be
prosecuted before an international court (either
through the creation of a hybrid or international ad
hoc tribunal, or by referring the case to the ICC).
There are costs and benefits associated with each
of these choices. Some benefits of international
criminal trials, include:49
• Impartiality: International courts may be more
impartial than domestic courts, as judicial
officials have no links with the country where
the crimes occurred.50 Domestic officials, on the
49 See: Antonio Cassese, International Criminal
Law (Second Edition) (New York, Oxford Unversity
Press, 2008), pp. 438–40.
50 Though, of course, one can also imagine
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On Peace and Justice
“The alternative to forgiveness, but by no
means its opposite, is punishment, and both
have in common that they attempt to put an
end to something that without interference
could go on endlessly. It is therefore quite
significant, a structural element in the realm
of human affairs, that men are unable to
forgive what they cannot punish and they
are unable to punish what has turned out to
be unforgivable.”
Hannah Arendt
from The Human Condition (1958)
other hand, may be swayed by national politics,
personal prejudices, or media reactions. A telling
example is the Iraqi High Tribunal that conducted
the Dujail trial against Saddam Hussein – a
proceeding that by all accounts had “manifestly
fallen afoul of basic standards of fair justice.”51
• Expertise: International judges have expertise in
prosecuting international crimes. While domestic
judges are highly experienced in handling
criminal offenses such as theft, murder, and tax
evasion, they likely have little knowledge of the
law of genocide, crimes against humanity, and
war crimes.
a situation in which an international court may
be biased in a way that a domestic court would
not be – for example, if the court were seriously
plagued by issues of “victors’ justice” that caused
the international judges to ignore extenuating
circumstances.
51 Antonio Cassese, “Clemency Versus
Retribution in Post-Conflict Situations”, p. 7.
See: John F. Burns, “Western Lawyers Say Iraq
Discarded Due Process in Hussein Trial,” New York
Times, Sept. 24, 2008 (quoting one lawyer involved
in the Dujail trial who referred to the prosecution
of Saddam Hussein as “tragic”, “not … because
a brutal dictator was put to death without proper
legal controls … [but] because they demonstrated
once again that fair and neutral justice and more
importantly the rule of law in the new Iraq is not
terribly different than it was in the old Iraq.”).
• Transnational reach: International courts
are better able to try cases that cross national
borders. Whereas domestic courts may have
access only to citizens of their home state,
international courts can reach across state
boundaries to collect witnesses and evidence
from multiple countries.
• International moral authority: In some sense,
international courts can claim to speak on behalf
of the international community. They can bring
their moral authority to bear to condemn crimes
that have offended humanity as a whole, and
thereby send a strong signal of deterrence to all
states.52
• Uniformity: International courts must apply
international criminal law in a uniform and
predictable way. Domestic courts, on the
other hand, may differ in their interpretation of
international rules, undermining the predictability
(and therefore the legitimacy) of international
criminal law.
• Security: In situations where a real and lasting
peace has not yet been achieved, and where
tensions between hostile parties still run
high, there is a real danger that participants
in domestic trials could be subject to threats,
harassment, and potentially life-threatening
assault, or that renewed tensions could erupt
in the wake of controversial prosecutions.
International tribunals situated in far away
countries can allow such trials to be conducted in
safety. For example, despite the fact that Sierra
Leone had a functioning hybrid international
tribunal – the Special Court for Sierra Leone
– located on its own soil, it requested that the
Netherlands provide a venue for the war crimes
trial of former Liberian president Charles Taylor.
Because Mr. Taylor still had many loyalists in the
region, the government worried that his presence
could lead to instability and pose a threat to the
peace in both Liberia and Sierra Leone.53
52 Ibid. Although, as Antonio Cassese, professor
and former judge at the ICTY, recounts, the
establishment of the ICTY in 1994 did nothing
to halt the Serbian Generals of the Republika
Srpska from committing genocidal massacres at
Srebrenica with the strong support of Milosevic.
53 Lydia Polgreen and Marlise Simons, “Sierra
Leone Asks to Move Liberian’s Trial”, New York
HUMAN RIGHTS
On the other hand, there are many downsides to
trying violators in international courts. For example:
• Distance: International courts may be seen as
distant, uncaring, and out of touch. Because they
are not an integrated part of local society, they
can be subject to charges of colonial imposition,
or imperialism. President Omar Hassan al-Bashir
of Sudan and his supporters, for example, have
called the ICC a hangover from colonial times
and the indictment against him a ploy to take
control of Sudanese oil and other resources.54
• Inflexibility: Relying on uniform international
standards eliminates opportunities for alternative,
context-specific peace and reconciliation
processes. Trying to squeeze all violators into
the same international criminal mold may work
in some cases, but it could be unjust in others.
Domestic trials allow for greater experimentation
and customization.55
• Inefficiency: International trials generally take
a lot of time. Years can be spent gathering
evidence, rounding up the accused, and litigating
each prosecution. The ICTR’s trial of Colonel
Theoneste Bagosora, for example, lasted over
six years.56 Domestic courts – both due to
their number and their proximity to evidence,
witnesses, and other necessary trial components
– may be better equipped to conduct
prosecutions rapidly and effectively.57
Times, 31 March 2006.
54 Niel MacFarquhar and Marlise Simons, “Bashir
Defies War Crime Arrest Order”, New York Times,
5 March 2009.
55 See: Phil Clark, “Hybridity, Holism and
‘Traditional’ Justice: The Case of the Gacaca
Courts in Post-Genocide Rwanda”, George
Washington International Law Review, vol. 39
(2007).
56 Lydia Polgreen, “Rwandan Officer Found Guilty
of 1994 Genocide”, New York Times, 18 December
2008.
57 See: Alex Whiting, “In International Criminal
Prosecutions, Justice Delayed Can Be Justice
Delivered” Harvard International Law Journal,
vol. 50, No. 2 (2009) (arguing that delay in
international war crimes prosecutions can be
“essential and beneficial to the pursuit of justice”).
| 287

Dennis Byron, President of the International Criminal Tribunal for
Rwanda (ICTR), briefs the Security Council at its meeting on the UN war
crimes tribunals for the former Yugoslavia and Rwanda.
(UN Photo #440061 by Evan Schneider, June 2010)
• Expense: International trials are expensive.
The ICTR, for example, has an annual budget
exceeding $100 million,58 and the ICTY receives
over $150 million per year.59 Particularly
when considering how few individuals can be
prosecuted by each international court, setting
up the physical and legal machinery necessary
for each trial costs many times more than an
equivalent domestic trial. Is this the best use
of international and national money during the
transitional period?
• Partiality: In situations of mass atrocity there
may be a huge number of individuals who
committed, ordered, or abetted war crimes,
crimes against humanity, and genocide.60 In
Rwanda, for example, some 100,000 people have
been charged domestically with offenses related
to the 1994 conflict.61 Given the constraints of
58 ICTR, “General Information”, available from
<www.ictr.org>.
59 A/63/210, “Report of the International Tribunal
for the Former Yugoslavia”, 4 August 2008,
para. 111.
60 See: John Mueller, “The Banality of ‘Ethnic
War’”. International Security, vol. 25 (2000) (arguing
that mass atrocities are generally committed not
by large percentages of the population, but rather
by roving bands of criminals directed by a few
powerful political elites).
61 Marc Lacey, “Kanombe Journal: After the
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their limited budgets, international courts can
select only a limited number of individuals to
prosecute. A mere handful of those responsible
for committing atrocities, therefore, will ever see
the inside of an international courtroom. This
selectiveness in prosecutions raises several
issues.
To begin with, is it fair that only a small number
of people should be prosecuted, when many are
responsible? Is assigning individual liability the
proper means of dealing with mass atrocities?
Should guilt fall instead on the group as a whole?
What is the role of the social, political, and
economic structure of society in contributing
to situations where war crimes, crimes against
humanity, and genocide can occur? What is
the purpose of punishing only a few when many
are guilty? Meting out retribution for offenses
committed? Deterring future crimes? Expressing
condemnation of the events that occurred?
Second, how should the international community
choose whom to prosecute from among all of the
individuals charged with committing war crimes,
crimes against humanity, and genocide? Should
it attempt to be representative across gender and
ethnic group? Should it seek the persons whose
crimes seem the greatest? Should it prosecute
those whose military or political rank is the
highest? Who should get to make these choices?
Balancing the need to end ongoing human rights
abuses by any means necessary against the need
for justice, healing, and the potential deterrence
of future human rights abuses is a difficult task.
Ultimately, the question of what strategies a state
should adopt in a post-conflict transition is highly
context-specific. What works in one situation will
not necessarily work in another. Justice and peace
may sometimes go hand in hand in a post-conflict
society, but they may also conflict with and
undermine one another.
International criminal law and international
trials can certainly play a role in the transition
from conflict to a peaceful society. IHL and ICL
have been designed to prevent and deter gross
violations of human rights and fundamental
Horror, Truth and Some Healing, Maybe”, New York
Times, 20 June 2002.
freedoms to the maximum extent possible. Further Reading
However, there are many other factors to consider
in any given situation, and it is important to keep in Antonio Cassese, International Criminal Law
mind both the strengths and weaknesses of various (Second Edition) (2008); Antonio Cassese,
approaches to enforcing and punishing violations of “Clemency Versus Retribution in Post-Conflict
international norms. Situations”, Columbia Journal of Transnational Law,
vol. 46 (2007); Mark Osiel, Mass Atrocity, Collective
Conclusion Memory, and the Law (1997), p. 122; Transitional
Justice in the Twenty-First Century: Beyond Truth
As noted at the outset of this lesson, human rights Versus Justice, Naomi Roht-Arriaza and Javier
violations can be both the cause and the result of Mariezcurrena, eds. (2006).
conflict. Protecting human rights and fundamental
freedoms is important for preventing war as well Websites for Further Information
as for mitigating its worst effects on civilians and
non-combatants. Jus ad bellum, IHL, and ICL ICC: www.icc-cpi.int
have been developed for the respective purposes ICTY: www.icty.org
of preventing, prohibiting, and punishing serious ICTR: www.ictr.org
violations of human dignity during armed conflict.
These three bodies of law work hand in hand with
the international human rights regime to protect
individuals from abuse. However, as we have
seen, they face ongoing issues with respect to
their effectiveness, application, and the need for
evolution to meet modern challenges.

In our final two lessons, we will return to this issue

of modern challenges, and examine some of the
major issues facing the international human rights
system today.

HUMAN RIGHTS | 289

Annex A: Rome Statute of the International Criminal Court

Rome Statute of the International Criminal Court

(Selected Provisions)

PREAMBLE
The States Parties to this Statute,

Conscious that all peoples are united by common bonds, their cultures pieced together in a shared
heritage, and concerned that this delicate mosaic may be shattered at any time,

Mindful that during this century millions of children, women and men have been victims of unimaginable
atrocities that deeply shock the conscience of humanity,

Recognizing that such grave crimes threaten the peace, security and well being of the world,

Affirming that the most serious crimes of concern to the international community as a whole must not go
unpunished and that their effective prosecution must be ensured by taking measures at the national level
and by enhancing international cooperation,

Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the
prevention of such crimes,

Recalling that it is the duty of every State to exercise its criminal jurisdiction over those responsible for
international crimes,

Reaffirming the Purposes and Principles of the Charter of the United Nations, and in particular that all
States shall refrain 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,

Emphasizing in this connection that nothing in this Statute shall be taken as authorizing any State Party to
intervene in an armed conflict in the internal affairs of any State,

Determined to these ends and for the sake of present and future generations, to establish an independent
permanent International Criminal Court in relationship with the United Nations system, with jurisdiction
over the most serious crimes of concern to the international community as a whole,

Emphasizing that the International Criminal Court established under this Statute shall be complementary
to national criminal jurisdictions,

Resolved to guarantee lasting respect for the enforcement of international justice,

Have agreed as follows:

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PART I: ESTABLISHMENT OF THE COURT

Article 1: The Court

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.
...

PART II: JURISDICTION, ADMISSIBILITY AND APPLICABLE LAW

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.
The crime of aggression

2. The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted...
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.

Article 6: Genocide

For the purpose of this Statute, “genocide” means any of the following acts committed with intent to
destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a.) Killing members of the group;

(b.) Causing serious bodily or mental harm to members of the group;
(c.) Deliberately inflicting on the group conditions of life calculated to bring about its physical
destruction in whole or in part;
(d.) Imposing measures intended to prevent births within the group;
(e.) Forcibly transferring children of the group to another group.

HUMAN RIGHTS | 291

Article 7: Crimes against Humanity

1. For the purpose of this Statute, “crime against humanity” means any of the following acts when
committed as part of a widespread or systematic attack directed against any civilian population, with
knowledge of the attack:

(a.) Murder;
(b.) Extermination;
(c.) Enslavement;
(d.) Deportation or forcible transfer of population;
(e.) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of
international law;
(f.) Torture;
(g.) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any
other form of sexual violence of comparable gravity;
(h.) Persecution against any identifiable group or collectivity on political, racial, national, ethnic,
cultural, religious, gender as defined in paragraph 3, or other grounds that are universally
recognized as impermissible under international law, in connection with any act referred to in
this paragraph or any crime within the jurisdiction of the Court;
(i.) Enforced disappearance of persons;
(j.) The crime of apartheid;
(k.) Other inhumane acts of a similar character intentionally causing great suffering, or serious
injury to body or to mental or physical health.

2. For the purpose of paragraph 1:

(a.) Attack directed against any civilian population means a course of conduct involving the
multiple commission of acts referred to in paragraph 1 against any civilian population,
pursuant to or in furtherance of a State or organizational policy to commit such attack;
(b.) Extermination includes the intentional infliction of conditions of life, inter alia the deprivation of
access to food and medicine, calculated to bring about the destruction of part of a population;
(c.) Enslavement means the exercise of any or all of the powers attaching to the right of
ownership over a person and includes the exercise of such power in the course of trafficking
in persons, in particular women and children;
(d.) Deportation or forcible transfer of population means forced displacement of the persons
concerned by expulsion or other coercive acts from the area in which they are lawfully
present, without grounds permitted under international law;
(e.) Torture means the intentional infliction of severe pain or suffering, whether physical or mental,

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 upon a person in the custody or under the control of the accused; except that torture shall not
include pain or suffering arising only from, inherent in or incidental to, lawful sanctions;
(f.) Forced pregnancy means the unlawful confinement, of a woman forcibly made pregnant, with
the intent of affecting the ethnic composition of any population or carrying out other grave
violations of international law. This definition shall not in any way be interpreted as affecting
national laws relating to pregnancy;
(g.) Persecution means the intentional and severe deprivation of fundamental rights contrary to
international law by reason of the identity of the group or collectivity;
(h.) The crime of apartheid means inhumane acts of a character similar to those referred to in
paragraph 1, committed in the context of an institutionalized regime of systematic oppression
and domination by one racial group over any other racial group or groups and committed with
the intention of maintaining that regime;
(i.) Enforced disappearance of persons means the arrest, detention or abduction of persons by, or
with the authorization, support or acquiescence of, a State or a political organization, followed
by a refusal to acknowledge that deprivation of freedom or to give information on the fate or
whereabouts of those persons, with the intention of removing them from the protection of the
law for a prolonged period of time.

3. For the purpose of this Statute, it is understood that the term “gender” refers to the two sexes, male
and female, within the context of society. The term “gender” does not indicate any meaning different from
the above.

Article 8: War Crimes

1. The Court shall have jurisdiction in respect of war crimes in particular when committed as a part of a
plan or policy or as part of a large-scale commission of such crimes.

2. For the purpose of this Statute, “war crimes” means:

(a.) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following
acts against persons or property protected under the provisions of the relevant Geneva
Convention:

(i.) Wilful killing;

(ii.) Torture or inhuman treatment, including biological experiments;
(iii.) Wilfully causing great suffering, or serious injury to body or health;
(iv.) Extensive destruction and appropriation of property, not justified by military necessity
and carried out unlawfully and wantonly;
(v.) Compelling a prisoner of war or other protected person to serve in the forces of a
hostile Power;

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 (vi.) Wilfully depriving a prisoner of war or other protected person of the rights of fair and
regular trial;
(vii.) Unlawful deportation or transfer or unlawful confinement;
(viii.) Taking of hostages.

(b.) Other serious violations of the laws and customs applicable in international armed conflict,
within the established framework of international law, namely, any of the following acts:

(i.) Intentionally directing attacks against the civilian population as such or against
individual civilians not taking direct part in hostilities;
(ii.) Intentionally directing attacks against civilian objects, that is, objects which are not
military objectives;
(iii.) 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;
(iv.) Intentionally launching an attack in the knowledge that such attack will cause
incidental loss of life or injury to civilians or damage to civilian objects or widespread,
long-term and severe damage to the natural environment which would be clearly
excessive in relation to the concrete and direct overall military advantage anticipated;
(v.) Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings
which are undefended and which are not military objectives;
(vi.) Killing or wounding a combatant who, having laid down his arms or having no longer
means of defence, has surrendered at discretion;
(vii.) Making improper use of a flag of truce, of the flag or of the military insignia and
uniform of the enemy or of the United Nations, as well as of the distinctive emblems
of the Geneva Conventions, resulting in death or serious personal injury;
(viii.) The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian
population into the territory it occupies, or the deportation or transfer of all or parts of
the population of the occupied territory within or outside this territory;
(ix.) Intentionally directing attacks against buildings dedicated to religion, education, art,
science or charitable purposes, historic monuments, hospitals and places where the
sick and wounded are collected, provided they are not military objectives;
(x.) Subjecting persons who are in the power of an adverse party to physical mutilation
or to medical or scientific experiments of any kind which are neither justified by the
medical, dental or hospital treatment of the person concerned nor carried out in his
or her interest, and which cause death to or seriously endanger the health of such
person or persons;

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(xi.) Killing or wounding treacherously individuals belonging to the hostile nation or army;
(xii.) Declaring that no quarter will be given;
(xiii.) Destroying or seizing the enemy’s property unless such destruction or seizure be
imperatively demanded by the necessities of war;
(xiv.) Declaring abolished, suspended or inadmissible in a court of law the rights and
actions of the nationals of the hostile party;
(xv.) Compelling the nationals of the hostile party to take part in the operations of war
directed against their own country, even if they were in the belligerent’s service before
the commencement of the war;
(xvi.) Pillaging a town or place, even when taken by assault;
(xvii.) Employing poison or poisoned weapons;
(xviii.) Employing asphyxiating, poisonous or other gases, and all analogous liquids,
materials or devices;
(xix.) Employing bullets which expand or flatten easily in the human body, such as bullets
with a hard envelope which does not entirely cover the core or is pierced with
incisions;
(xx.) Employing weapons, projectiles and material and methods of warfare which are of a
nature to cause superfluous injury or unnecessary suffering or which are inherently
indiscriminate in violation of the international law of armed conflict, provided that
such weapons, projectiles and material and methods of warfare are the subject of a
comprehensive prohibition and are included in an annex to this Statute...;
(xxi.) Committing outrages upon personal dignity, in particular humiliating and degrading
treatment;
(xxii.) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined
in article 7, paragraph 2 (f), enforced sterilization, or any other form of sexual violence
also constituting a grave breach of the Geneva Conventions;
(xxiii.) Utilizing the presence of a civilian or other protected person to render certain points,
areas or military forces immune from military operations;
(xxiv.) Intentionally directing attacks against buildings, material, medical units and transport,
and personnel using the distinctive emblems of the Geneva Conventions in conformity
with international law;
(xxv.) Intentionally using starvation of civilians as a method of warfare by depriving them of
objects indispensable to their survival, including wilfully impeding relief supplies as
provided for under the Geneva Conventions;
(xxvi.) Conscripting or enlisting children under the age of fifteen years into the national
armed forces or using them to participate actively in hostilities.

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(c.) In the case of an armed conflict not of an international character, serious violations of article 3
common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts
committed against persons taking no active part in the hostilities, including members of armed
forces who have laid down their arms and those placed hors de combat by sickness, wounds,
detention or any other cause:

(i.) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment
and torture;
(ii.) Committing outrages upon personal dignity, in particular humiliating and degrading
treatment;
(iii.) Taking of hostages;
(iv.) The passing of sentences and the carrying out of executions without previous
judgement pronounced by a regularly constituted court, affording all judicial
guarantees which are generally recognized as indispensable.

(d.) Paragraph 2 (c) applies to armed conflicts not of an international character and thus does not
apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic
acts of violence or other acts of a similar nature.

(e.) Other serious violations of the laws and customs applicable in armed conflicts not of an
international character, within the established framework of international law, namely, any of
the following acts:

(i.) Intentionally directing attacks against the civilian population as such or against
individual civilians not taking direct part in hostilities;
(ii.) Intentionally directing attacks against buildings, material, medical units and transport,
and personnel using the distinctive emblems of the Geneva Conventions in conformity
with international law;
(iii.) 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 law of armed conflict;
(iv.) Intentionally directing attacks against buildings dedicated to religion, education, art,
science or charitable purposes, historic monuments, hospitals and places where the
sick and wounded are collected, provided they are not military objectives;
(v.) Pillaging a town or place, even when taken by assault;
(vi.) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined
in article 7, paragraph 2 (f), enforced sterilization, and any other form of sexual
violence also constituting a serious violation of article 3 common to the four Geneva
Conventions;

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 (vii.) Conscripting or enlisting children under the age of fifteen years into armed forces or
groups or using them to participate actively in hostilities;
(viii.) Ordering the displacement of the civilian population for reasons related to the conflict,
unless the security of the civilians involved or imperative military reasons so demand;
(ix.) Killing or wounding treacherously a combatant adversary;
(x.) Declaring that no quarter will be given;
(xi.) Subjecting persons who are in the power of another party to the conflict to physical
mutilation or to medical or scientific experiments of any kind which are neither justified
by the medical, dental or hospital treatment of the person concerned nor carried out in
his or her interest, and which cause death to or seriously endanger the health of such
person or persons;
(xii.) Destroying or seizing the property of an adversary unless such destruction or seizure
be imperatively demanded by the necessities of the conflict;

(f) Paragraph 2 (e) applies to armed conflicts not of an international character and thus does not
apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic
acts of violence or other acts of a similar nature. It applies to armed conflicts that take place
in the territory of a State when there is protracted armed conflict between governmental
authorities and organized armed groups or between such groups.

3. Nothing in paragraphs 2 (c) and (d) shall affect the responsibility of a Government to maintain or
re-establish law and order in the State or to defend the unity and territorial integrity of the State, by all
legitimate means.
...

Article 11: Jurisdiction ratione temporis

The Court has jurisdiction only with respect to crimes committed after the entry into force of this Statute.

If a State becomes a Party to this Statute after its entry into force, the Court may exercise its jurisdiction
only with respect to crimes committed after the entry into force of this Statute for that State, unless that
State has made a declaration under article 12, paragraph 3.

Article 12: Preconditions to the exercise of jurisdiction

1. A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect
to the crimes referred to in article 5.

2. In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of
the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance
with paragraph 3:

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 (a) The State on the territory of which the conduct in question occurred or, if the crime was
committed on board a vessel or aircraft, the State of registration of that vessel or aircraft;
(b) The State of which the person accused of the crime is a national.

3. If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that
State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with
respect to the crime in question. The accepting State shall cooperate with the Court without any delay or
exception in accordance with Part 9.

Article 13: Exercise of jurisdiction

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.

Article 14: Referral of a situation by a State Party

1. A State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction
of the Court appear to have been committed requesting the Prosecutor to investigate the situation for the
purpose of determining whether one or more specific persons should be charged with the commission of
such crimes.
...

Article 15: Prosecutor

1. The Prosecutor may initiate investigations proprio motu on the basis of information on crimes within the
jurisdiction of the Court.
...

Article 17: Issues of admissibility

1. Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is
inadmissible where:

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 (a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless
the State is unwilling or unable genuinely to carry out the investigation or prosecution;

(b) The case has been investigated by a State which has jurisdiction over it and the State
has decided not to prosecute the person concerned, unless the decision resulted from the
unwillingness or inability of the State genuinely to prosecute;

(c) The person concerned has already been tried for conduct which is the subject of the
complaint, and a trial by the Court is not permitted under article 20, paragraph 3;

(d) The case is not of sufficient gravity to justify further action by the Court.

2. In order to determine unwillingness in a particular case, the Court shall consider, having regard to the
principles of due process recognized by international law, whether one or more of the following exist, as
applicable:

(a) The proceedings were or are being undertaken or the national decision was made for the
purpose of shielding the person concerned from criminal responsibility for crimes within the
jurisdiction of the Court referred to in article 5;
(b) There has been an unjustified delay in the proceedings which in the circumstances is
inconsistent with an intent to bring the person concerned to justice;
(c) The proceedings were not or are not being conducted independently or impartially, and they
were or are being conducted in a manner which, in the circumstances, is inconsistent with an
intent to bring the person concerned to justice.

3. In order to determine inability in a particular case, the Court shall consider whether, due to a total
or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the
accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.
...

PART III: GENERAL PRINCIPLES OF CRIMINAL LAW

...

Article 24: Non-retroactivity ratione personae

1. No person shall be criminally responsible under this Statute for conduct prior to the entry into force of
the Statute.
...

Article 25: Individual criminal responsibility

1. The Court shall have jurisdiction over natural persons pursuant to this Statute.

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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.

3. In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a
crime within the jurisdiction of the Court if that person:

(a) Commits such a crime, whether as an individual, jointly with another or through another
person, regardless of whether that other person is criminally responsible;
(b) Orders, solicits or induces the commission of such a crime which in fact occurs or is
attempted;
(c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise
assists in its commission or its attempted commission, including providing the means for its
commission;
(d) In any other way contributes to the commission or attempted commission of such a crime by
a group of persons acting with a common purpose. Such contribution shall be intentional and
shall either:
(i.) Be made with the aim of furthering the criminal activity or criminal purpose of the
group, where such activity or purpose involves the commission of a crime within the
jurisdiction of the Court; or
(ii.) Be made in the knowledge of the intention of the group to commit the crime;
(e) In respect of the crime of genocide, directly and publicly incites others to commit genocide;
(f) Attempts to commit such a crime by taking action that commences its execution by means
of a substantial step, but the crime does not occur because of circumstances independent of
the person’s intentions. However, a person who abandons the effort to commit the crime or
otherwise prevents the completion of the crime shall not be liable for punishment under this
Statute for the attempt to commit that crime if that person completely and voluntarily gave up
the criminal purpose.
...

Article 28: Responsibility of commanders and other superiors

In addition to other grounds of criminal responsibility under this Statute for crimes within the jurisdiction of
the Court:

(a) A military commander or person effectively acting as a military commander shall be criminally
responsible for crimes within the jurisdiction of the Court committed by forces under his or her
effective command and control, or effective authority and control as the case may be, as a
result of his or her failure to exercise control properly over such forces, where: 

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 (i) That military commander or person either knew or, owing to the circumstances at the
time, should have known that the forces were committing or about to commit such
crimes; and

(ii) That military commander or person failed to take all necessary and reasonable
measures within his or her power to prevent or repress their commission or to submit
the matter to the competent authorities for investigation and prosecution.

(b) With respect to superior and subordinate relationships not described in paragraph (a),
a superior shall be criminally responsible for crimes within the jurisdiction of the Court
committed by subordinates under his or her effective authority and control, as a result of his or
her failure to exercise control properly over such subordinates, where: 

(i) The superior either knew, or consciously disregarded information which clearly
indicated, that the subordinates were committing or about to commit such crimes;

(ii) The crimes concerned activities that were within the effective responsibility and
control of the superior; and

(iii) The superior failed to take all necessary and reasonable measures within his or her
power to prevent or repress their commission or to submit the matter to the competent
authorities for investigation and prosecution.

...

UN Doc. A/CONF.183/9 (1998)

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End-of-Lesson Quiz

1. One downside of international trials is: 7. In a post-conflict situation, the goals of peace
A. International courts are expensive; and justice:
B. International courts are not “real” courts; A. Are never in conflict;
C. International courts cannot be impartial; B. Are always in conflict;
D. International courts have never before been C. Can sometimes conflict;
established. D. Have nothing to do with one another.

2. The ___________________ is the 8. Which of the following is NOT a possible

international treaty that established the method of transitional justice?
International Criminal Court. A. Doing nothing;
B. Providing amnesty for offenders;
3. The ICC has jurisdiction over all of the C. Establishing truth and reconciliation
following crimes EXCEPT: commissions;
A. War crimes; D. Beginning a new armed conflict.
B. Terrorism;
C. Crimes against Humanity; 9. Hybrid tribunals differ from other
D. Genocide. international criminal tribunals like the
ICTY, ICTR, and ICC because they:
4. The ICC opened its first trial in: A. Can only prosecute states, not individuals;
A. 1945; B. Are developed ad hoc for the purpose of one
particular conflict situation;
B. 1966;
C. Apply a blend of international and domestic law;
C. 1994;
D. Have never been established in practice.
D. 2009.

10. Initiating trials in international criminal

5. What does the principle aut dedere aut tribunals is:
judicare stand for?
A. Always the right way to respond to a
A. The duty to prosecute or extradite; post-conflict situation;
B. The responsibility to protect; B. Never the right way to respond to a post-conflict
C. The prohibition against retroactive criminal situation;
prosecutions; C. An idea that remains untested;
D. The right to use force in self-defence. D. A strategy that may be positive or negative
depending on the context.
6. ___________________ is a term that
refers to a country’s response to systematic
or widespread violations of human rights
and how they make the changeover from a
conflict to a post-conflict society.

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 ANSWER KEY
1A, 2 Rome Statute, 3B, 4D, 5A,
6 Transitional Justice, 7C, 8D, 9C, 10D

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LESSON 14
CONTEMPORARY DEBATES
ON HUMAN RIGHTS I:
NON-STATE ACTORS AND TERRORISM
 LESSON
14

LESSON OBJECTIVES

14.1 Introduction By the end of Lesson 14, the student should be able to meet the
following objectives:
14.2 Non-State Actors
14.3 Human Rights and • Understand the barriers to applying international human rights law
Terrorism directly to non-state actors;
• Describe recent global attempts at regulating transnational
corporations;
• Appreciate the theoretical difficulties with respect to the regulation
of transnational corporations;
• Understand the history of international attempts to regulate
terrorism;
• Appreciate the difficulty of defining terrorism under international law;
• Describe the ways in which terrorists can violate individual rights;
• Describe the ways in which states can violate individual rights while
trying to prevent terrorism; and
• Describe the ways in which states can violate the rights of terrorists.

To view a video introduction of this lesson by the

course author Jessica C. Lawrence, you can
either log in to your virtual classroom, go to www.
peaceopstraining.org/users/media_page/387/
lesson-14, or use your mobile device to scan the
QR code to the left.
14.1 Introduction
The first 13 lessons of this course have provided a
general overview of the international human rights
system. First, we looked at where this system
came from: we examined the philosophical and
theoretical foundations of human rights, and traced
the historical origins of international human rights
law. Then, we looked at the system as it exists
today: we studied the three treaties that make up
the international bill of human rights (the UDHR,
ICCPR, and ICESCR); discussed the concept of
collective rights and the protection of vulnerable
groups; and studied the intersection between
international human rights law, jus ad bellum, IHL,
and ICL. In the next two lessons, we will finish the
course with a discussion of where human rights
is going, by analysing some current debates, and
thinking about the future of the system.
Throughout the course, we have considered not
only the legal, political, and material advances that
have been prompted by the human rights system,
but also the challenges and pitfalls of applying
this framework in the modern world. During this
process, we have uncovered several major critical
themes and points of controversy. For example:
• The moral and philosophical foundations of
human rights;
• Universalism versus cultural relativism;
• Generations of rights;
• The concept of collective rights;
• The global North/South split;
• The equality paradox;
• The notion of inclusivity and reinforcement of
differences; and
• The relationship between war and law.
We looked at how these theoretical debates apply
in many different circumstances, and how they
continue to shape on-the-ground debates over
topics like:
HUMAN RIGHTS
• The role of the Security Council;
• The relationship between global and regional
human rights mechanisms;
• The desirability of special protection regimes;
• The meaning of “self-determination”;
• The existence of collective rights;
• The need for legally binding treaties;
• R2P; and
• The role of international criminal law in
transitional justice.
In Lessons 14 and 15, we will explore some
additional topics that are currently sparking
controversy among scholars, practitioners, and
politicians concerned with human rights. First, we
will look at the discussion over whether and how
human rights law should govern non-state actors,
in particular large multi-national corporations.
Second, we will examine the application of
human rights norms in the context of terrorism
and the fight to control it. Third, we will look at the
emergence of a new special protection regime for
lesbian, gay, bisexual, and transgender (LGBT)
persons. Fourth, we will take a brief look at the
field of human rights and technology. Finally, we
will conclude with a discussion of the overarching
question of effectiveness: whether international
human rights law and the system set up to enforce
it actually helps to protect human rights and
improve people’s lives.
As you read through these final two lessons, try
to imagine the ways that each of these debates
is connected to what we have learned about
the wider system of human rights protection.
For example, how would recognizing corporate
responsibility for human rights violations affect the
right to development? Should terrorists be dealt
with under the normal rules of IHL? Are LGBT
rights group rights? Is the effectiveness of human
rights law hampered by the fragmentation of rights
into so-called generations? Just as human rights
are indivisible, interconnected, and interrelated,
so too are these conceptual issues. Everything is
intertwined.
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14.2 Non-State Actors
Non-State Actors in International Human
Rights Law
Traditionally, as we have seen, the human rights
system orders relations between individuals and
the state. It sets the boundaries of what states can
and cannot do with respect to persons and property
under their control. International human rights law is
addressed to states: its rules govern state behavior,
and the consequences of violating its norms fall on
the shoulders of national governments.
Likewise, regulating the conduct of individuals has
traditionally been the exclusive responsibility of the
state in whose territory the individuals live. States
have the power – indeed, they have the duty1 – to
set rules limiting the behavior of individuals, groups,
companies, churches, and any other private entities
in their jurisdiction. And states are responsible
for enforcing these rules and punishing violators.
International norms that attempt to regulate
individual conduct have historically had to do so
through the intermediary of the state, by requesting
that a country pass regulations to control individuals.
If individuals violated these international rules, it was
up to the state to hold them accountable, and if no
action was taken, it was the state, not the individual,
who could be held liable under international law.
As a result, international human rights norms
have historically had no horizontal effect: they are
enforceable only “vertically”, between an individual
and the state, not “horizontally”, between one
individual and another.2 This means that private
individuals cannot bring claims against other
private individuals or entities in a human rights
forum – they can only bring claims against
the state.
1 In accordance with their obligation to “protect”
human rights, states must take steps to prevent
private actors from violating individual human
rights. In order to do this, the state may have to
establish an appropriate policy framework, write
laws, and actively enforce them. See Lesson 2
for a complete discussion of the “respect, protect,
ensure” framework.
2 See: Human Rights Committee, General
Comment No. 31 (2004), para. 8.
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Over the last century, however, non-state actors
(NSAs) have begun to play increasingly important
roles in international life. The umbrella term NSA
is very broad, including, in Philip Alston’s words,
“anything that is not a state, whether it be me, IBM,
the IMF, Shell, Sendero Luminoso, or Amnesty
International.”3 NSAs include groups such as:
• non-governmental organizations (NGOs);
• religious groups;
• civil society;
• individuals;
• international organizations;
• transnational corporations (TNCs);
• businesses;
• rebel groups;
• terrorist organizations;
• military contractors; and
• armed opposition groups.
NSAs guide policy, start wars, undermine
governments, support governments, and both
help and harm individual citizens. In some cases,
they have power and resources (economic,
military, and persuasive) equal to or exceeding that
of some states.
As the reach and influence of NSAs has grown,
the extent to which they are involved in both
protecting and violating human rights norms has
become clear. And the international community has
begun to realize that “a human rights regime which
addresses itself effectively only to states will become
increasingly marginalized in the years ahead.”4 As a
result, developments in the human rights field have
begun to chip away at the hard and fast rule that
international law may address only states:
3 Philip Alston, “The ‘Not-a-Cat’ Syndrome:
Can the International Human Rights Regime
Accommodate Non-State Actors?” in Non-State
Actors and Human Rights, Philip Alston, ed. (New
York, Oxford University Press, 2005), p. 4.
4 Henry J. Steiner, Philip Alston, and Ryan
Goodman, International Human Rights in Context:
Law, Politics, Morals (Third Edition) (New York,
Oxford University Press, 2007), p. 1385.

Vertical Effect,
but no
Horizontal Effect
under international
human rights law
Increasingly, international norms and institutions
are reaching beyond the state to regulate large
categories of non-state actors, from political
associations and business corporations to
ordinary individuals. They do so directly
under international law, through treaty norms
defining personal international crimes like
crimes against humanity that cover state and
non-state actors. They also do so indirectly, and
far more broadly, by requiring state parties to
protect their population against rights-violating
conduct of non-state actors, often through
treaties that specify what non-state activity –
such as discriminatory corporate employment,
or family violence – the state must proscribe
and act against. Whatever its accuracy at the
movement’s foundation, the notion that the
human rights movement regulates only state
conduct is at best an historical observation. As
it develops, human rights law continues to erode
the long-standing notion of a public-private
divide, in the sense of state and non-state
actors, where only the former is subject to
regulation under international law.5
We discussed one example of this erosion in
Lesson 13, when we explored international criminal
law (ICL), which directly addresses individuals and
5 Henry J. Steiner, “Human Rights: The
Deepening Footprint”, Harvard Human Rights
Journal, vol. 20 (2007).
HUMAN RIGHTS
The State
Individuals
seeks to regulate their behaviour during armed
conflict. We encountered another instance in
Lesson 9, when we noted that the first Optional
Protocol to the Convention on the Rights of the
Child (CRC) on Children in Armed Conflict prohibits
armed groups, including non-state forces, from
recruiting or using persons under the age of 18
in hostilities. In this section, we will focus on how
international human rights law has attempted to
articulate and enforce human rights obligations
with respect to a third group of NSAs: transnational
corporations (TNCs).6
Transnational Corporations and International
Human Rights Law
In the past several decades, the wealth and power
of TNCs have witnessed a tremendous expansion.
Although globalized economic actors are nothing
new,7 the extent and reach of transnational
6 TNCs are also known as Multinational
Corporations (MNCs). We will use the former in this
lesson, but either term is appropriate.
7 See: Karl Moore and David Charles Lewis, The
Origins of Globalization (2009) (arguing that “to a
surprising degree, quite a few of today’s business
forms and business cultures existed in ancient times.
Globalization, multinational enterprises, commercial
partnerships, foreign joint ventures, and embryonic
forms of mass production all had their precursors or
prototypes in the very remote past.”).
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corporations in the modern world has grown to
immense proportions. There are today more
than 60,000 firms and 800,000 subsidiaries with
operations spanning more than one country.8
Indeed, we now inhabit a world in which the annual
revenue of the largest TNC is greater than that
of all but the 30 wealthiest nations.9 And as their
scope and influence have grown, TNCs have
increasingly had the ability to protect, as well as to
infringe on, individual human rights:
The corporate world touches the lives of people
more closely than any other constituency,
giving it immense potential for good or harm …
[In addition to its great benefits, it also does]
some collateral damage – to individuals, to
the environment, to communities. Whether
directly or indirectly, companies encounter
problems which we would now classify under
the generic heading of human rights. In their
supply chains they can meet exploitative child
labour, discrimination, risks to health and life,
forced labour. The extractive industries can be
involved in the spoliation of the environment and
the destruction of communities. In contexts of
conflict and human rights violations they confront
a need for security which is too often provided by
ill-disciplined state security forces.
Simply through their presence, companies
provide economic support and moral sanction to
oppressive governments. If they lack appropriate
policies and principles, companies risk the
legitimate charge of complicity with oppression
in pursuit of profit.10
TNCs can violate human rights directly through
acts such as maintaining exploitative labour
practices, discriminating against certain groups
of employees on the basis of race, sex, or other
8 John Ruggie, “American Exceptionalism,
Exemptionalism and Global Governance”, John F.
Kennedy School of Government Working Paper No.
RWP04-006 (2004), p. 14.
9 Philip Alston, pp. 4 and 17.
10 G. Chandler, “Corporate Liability: Human
Rights and the Modern Business”, Conference
organized by JUSTICE and Sweet & Maxwell,
12 June 2006, quoted in Henry J. Steiner, Philip
Alston, and Ryan Goodman, p. 1388.
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categories, or hiring security forces to intimidate
and assault trade unionists. They can also violate
human rights indirectly by being complicit in
or “aiding and abetting” the violations of their
associates, or by failing “to ensure that their
operations do not depend upon, benefit from, or
contribute to human rights abuses committed by
others”, such as governments or rebel groups.11
Stories of corporate human rights abuses, as well
as corporate complicity in abuses committed by
others are numerous and stretch back at least to
the British East India Company and its involvement
in the slave trade in the seventeenth century.
Recent tales about Royal Dutch-Shell’s actions
in Nigeria’s Ogoni region,12 Chiquita’s complicity
11 Human Rights Watch, On the Margins of Profit:
Rights at Risk in the Global Economy (February
2008), p. 11, available from <http://www.hrw.org/
sites/default/files/reports/bhr0208_1.pdf>. The
specific content of “complicity” remains a contested
area. As John Ruggie argues: “no consensus
exists, even among advocates, on where to draw
the boundaries around corporate ‘non-complicity’
in human rights abuses.” John Gerard Ruggie,
“Symposium: ‘Trade, Sustainability and Global
Governance’: Keynote Address”, Columbia Journal
of Environmental Law, vol. 27 (2002), p. 304. See:
Klaus M. Leisinger, “On Corporate Responsibility
for Human Rights”, available from: <http://www.
novartisfoundation.org/platform/apps/Publication/
getfmfile.asp?id=612&el=2851&se=9558375&do
c=200&dse=5>:
In what cases does a company become
‘complicit’ in human rights abuses through
its normal business activities? What kind of
proximity to abuses by the state, by terrorists,
by individuals, or by other companies would
justify the negative judgment of being complicit
in human rights violations? These questions
are answered in many ways by different
stakeholders…
12 See: Human Rights Watch, The Price of Oil:
Corporate Responsibility and Human Rights
Violations in Nigeria’s Oil Producing Communities
(1999) (describing how Shell collaborated with
Nigerian armed forces, attempted to import
weapons, threatened activists, and failed to report
or protest human rights abuses committed against
community members). Royal Dutch Shell recently
with paramilitary forces in Colombia,13 and Enron’s
entanglement in India’s Dabhol power project14
have all attracted international attention and led to
judicial action against the corporations involved.
Because of TNCs’ enormous potential to affect
human rights, activists and lawyers have sought
ways to bring corporations into the fold of
international human rights law and to ensure
that they respect human rights standards and
can be held accountable when violations occur.
Traditionally, the responsibility for controlling
the actions of these private entities lay with the
governments of their home state (the state in which
they were based) and their host states (the states
in which they operated), but problems have arisen
that have prevented national governments from
exercising sufficient control.
Home states have not been able to halt abuses
because they often lack jurisdiction to regulate
corporate behavior that takes place outside of their
borders, and host states have faced a huge array
of regulatory hurdles.
agreed to pay $15.5 million to settle a civil human
rights case brought by Ogoni community members,
including Ken Saro-Wiwa Jr., son of the executed
human rights activist. Despite its payment, which
it called a “humanitarian gesture”, the company
continues to deny that it had any role in the elder
Ken Saro-Wiwa’s death. Jad Mouawad, “Shell to
Pay $15.5 Million to Settle Nigerian Case”, New
York Times, 8 June 2009.
13 Chiquita, one of the world’s largest banana
producers, has admitted to paying some $1.7
million to right-wing paramilitary groups in
Colombia between 1997 and 2004. It was fined $25
million by the U.S. Justice Department as a result.
Simon Romero, “Colombia May Extradite Chiquita
Officials”, New York Times, 19 March 2007.
Chiquita has also admitted to paying money to the
Revolutionary Armed Forces of Colombia (FARC).
Carmen Gentile, “Families Sue Chiquita in Deaths
of 5 Men”, New York Times, 17 March 2008.
14 See: Human Rights Watch, The Enron
Corporation: Corporate Complicity in Human Rights
Violations (1999) (detailing how the Dabhol Power
Company, a subsidiary of Enron, benefited from
state repression of dissent against the project).
HUMAN RIGHTS
A woman working at a fabric factory in Bangkok.
(UN Photo #50812 by Eskinder Debebe , March 2000)
To begin with, regulating TNCs can be difficult.
Governments have limited financial and human
resources. And often, TNCs are much bigger than
government regulatory bodies. They have more
lawyers, more accountants, more experience, and
an incentive to resist regulation. In the face of this,
governments may feel disempowered and unable
to match the legal and economic savvy of the
companies they are supposed to regulate. Often,
countries do not even possess the basic tools they
need to impose effective regulation – lack of experts
on global finance, obfuscation by companies, and
the complexity of the system can make it difficult for
government regulators to discern which company is
responsible for what, where they are located, or how
much their assets are worth.
Additionally, host governments may be loathe
to regulate TNCs because they worry it could
make their country seem unattractive to investors.
Heavy competition for business investments
among states has meant that each country must
become as appealing as possible to foreign
capital. Implementing and enforcing labour or
environmental standards may make investing
seem more costly, and drive companies into the
arms of competitors. This fear that competition to
attract investment will lead countries to lower their
regulatory standards is sometimes known as the
“race to the bottom.”15
15 Evidence is mixed as to whether a “race
| 311
As a result of these difficulties, states have
frequently been either unable or unwilling to
regulate TNCs to the extent that human rights
activists would desire. As Professor John G.
Ruggie, UN Special Representative on the issue of
human rights and transnational corporations and
other business enterprises, wrote:
The root cause of the business and human rights
predicament today lies in the governance gaps
created by globalization – between the scope
and impact of economic forces and actors, and
the capacity of societies to manage their adverse
consequences. These governance gaps provide
the permissive environment for wrongful acts
by companies of all kinds without adequate
sanctioning or reparation. How to narrow and
ultimately bridge the gaps in relation to human
rights is our fundamental challenge.16
Growing recognition of these governance gaps has
led to a surge of interest in making international
human rights standards directly applicable to
corporations, and establishing enforcement
mechanisms under international law.17 This burst
of activism coincided with increased willingness
to regulate on the part of governments, which was
brought about as a result of public outcry over
some well-publicized human rights disasters like
those mentioned above. As a result, efforts to work
towards international agreement on the regulation
of TNCs are underway.
to the bottom” is, in fact, occurring. See: Dan
Bodansky and Jessica C. Lawrence, “Trade
and Environment”, in The Oxford Handbook
of International Trade Law (New York, Oxford
University Press, 2008), p. 511.
16 A/HRC/8/5 (7 April 2008), John G. Ruggie,
Protect, Respect and Remedy: A Framework for
Business and Human Rights, para. 3, available
from <http://www.reports-and-materials.org/
Ruggie-report-7-Apr-2008.pdf>.
17 Human rights activists have also advocated
other strategies, such as increased regulation by
home states and the mobilization of consumer
opinion. See: Christen Broecker, Note, “‘Better
the Devil You Know’: Home State Approaches to
Transnational Corporate Accountability”, New York
University Journal of International Law and Politics,
vol. 41 (2008) (arguing for an increased focus on
host state accountability).
312 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
Global Initiatives
As of yet, there are no clear, universally applicable,
and enforceable rules addressing human rights
abuses by TNCs.18 However, several initiatives
promoting corporate social responsibility have
been developed.
In 1999, then UN Secretary-General Kofi Annan
announced the launch of the Global Compact,
which has been acclaimed as “the world’s
largest and most widely embraced corporate
citizenship initiative.”19 The Global Compact sets
out 10 principles intended to encourage corporate
responsibility with respect to the environment,
labour, human rights, and corruption. On the topic
of human rights, the Compact asks businesses to
uphold the following:
Human Rights
Principle 1: support and respect the protection
of international human rights within their
sphere of influence;
Principle 2: make sure their own corporations
are not complicit in human rights abuses.
18 A few countries have developed interesting
domestic mechanisms for enforcing human rights
standards against TNCs. In the United States, for
example, human rights activists have increasingly
sought to use the Alien Tort Claims Act (ATCA),
originally established in 1789 for the purpose of
fighting piracy, to litigate human rights cases.
The ATCA allows non-U.S. citizens to bring
civil (not criminal) suits against U.S. residents
(including former foreign government officials
and U.S. branches of TNCs) alleging violations of
international law. Thus far, no company has been
found guilty in an ATCA suit. But a number – such
as the Royal Dutch Shell case mentioned above
– have resulted in substantial settlements. See:
Elliot J. Schrage, “Judging Corporate Accountability
in the Global Economy”, Columbia Journal of
Transnational Law, vol. 42 (2003), pp. 157–61.
19 Global Compact Office, The United Nations
Global Compact: Advancing Corporate Citizenship
(2005), p. 1.
 Labour Standards
Principle 3: 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;
Principle 6: the elimination of discrimination in
respect of employment and occupation.20
Companies who wish to participate in the
Global Compact must send a letter stating their
intentions to the Secretary-General, after which
they are expected to make changes to business
operations, publicly advocate the Compact and
its principles, and publish an annual sustainability
report highlighting steps taken to implement the
principles.21 As of July 2009, the Global Compact
boasted “more than 6700 participants, including
over 5200 businesses in 130 countries around
the world.”22
The Global Compact is not a regulatory instrument
– it contains no binding rules, includes no
enforcement mechanisms, and defines no detailed
standards or benchmarks. Rather, it establishes a
framework for “public-private cooperation” based
on communication and dialogue between TNCs,
governments, labour organizations, and NGOs;
public accountability; and enlightened self-interest.23
Another recent initiative is the Voluntary Principles
on Security and Human Rights, developed in 2000
by the U.S. and U.K. governments in conjunction
20 Global Compact, available from <http://www.
unglobalcompact.org>.
21 Surya Deva, “Global Compact: A Critique of the
U.N.’s ‘Public-Private’ Partnership for Promoting
Corporate Citizenship”, Syracuse Journal of
International Law and Commerce, vol. 34 (2006),
p. 115.
22 United Nations Global Compact, “UN Global
Compact Participants”, available from <http://
www.unglobalcompact.org/ParticipantsAnd-
Stakeholders/>.
23 Surya Deva, p. 116.
HUMAN RIGHTS
with several TNCs and NGOs. These principles
were designed “to guide extractives companies
in maintaining the safety and security of their
operations within an operating framework that
ensures respect for human rights.”24 The Voluntary
Principles focus on risk assessment and the
relationship between TNCs and security forces in
both the public and private sectors.
The OECD, ILO, and International Finance
Corporation have also developed guidelines
for corporate social responsibility that provide
recommendations to TNCs on a number of areas
of business ethics, including human rights.25 Some
industries have adopted NGO-sponsored voluntary
initiatives to certify that their activities have been
conducted in human rights-friendly ways.26
Each of these efforts at establishing a global
framework for corporate social responsibility has
met with mixed reviews. Some governments have
been supportive, while others have argued that
the regulations are overly intrusive. A number of
companies have signed on and agreed to abide
by the rules, some have signed on and then
disregarded their obligations, and others have
ignored them altogether.
NGOs and human rights advocates have generally
supported these international efforts as a first step,
but have pointed out several structural flaws in
their design. To begin with, the Global Compact,
Voluntary Principles, and OECD and ILO guidelines
are all entirely voluntary. TNCs sign on to these
24 Voluntary Principles on Security and
Human Rights, available from <http://www.
voluntaryprinciples.org>.
25 OECD Declaration on International Investment
and Multinational Enterprises (1976, revised
2000), available from <http://www.oecd.org/
dataoecd/56/36/1922428.pdf>; ILO, “Tripartite
Declaration of Principles Converning Multinational
Enterprises & Social Policy (2000); International
Finance Corporation’s Policy and Performance
Standards on Social & Environmental Sustainability
(2006).
26 See: the Kimberly Process for diamond
certification at <http://www.kimberleyprocess.
com/>; and the Extractive Industries Transparency
Initiative at <http://eitransparency.org/>.
| 313
 documents at their own convenience. Second,
many of the existing rules are industry-specific. The
Voluntary Principles, for example, only apply to the
extractive industries. Third, even when companies
do sign on, the rules contained in these documents
are vague and “hardly provide adequate and
concrete guidance to corporations about the conduct
expected from them.”27 Finally, there is no system of
independent monitoring or mechanism for punishing
violations or providing remedies when they occur.28
Textile mill in Nicaragua established by Nicaraguan, Colombian and
Central American Common Market organizations, with assistance from
the World Bank’s International Finance Corporation.
(UN Photo #132410 by Yutaka Nagata, May 1971)
The first comprehensive attempt to construct a
legally binding mechanism for enforcing the human
rights obligations of businesses came in 2003, when
the Sub-Commission on Human Rights developed
the draft UN Norms on the Responsibilities of
Transnational Corporations and Other Business
Enterprises with Regard to Human Rights (UN
27 Surya Deva, p. 129.
28 The Global Compact does contain a sort
of complaints mechanism, by which the Global
Compact Office can receive communications, and
if it determines that they are non-frivolous, ask
the named company to comment on the issues
in the complaint. This mechanism is entirely
non-legal, and “enforcement” is done merely
through establishing a dialogue. United Nations
Global Compact, “Note on Integrity Measures”,
available from <http://www.unglobalcompact.org/
AboutTheGC/integrity.html>.
314 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
Norms).29 The UN Norms provided that “within
their respective spheres of activity and influence,
transnational corporations and other business
enterprises have the obligation to promote, secure
the fulfilment of, respect, ensure respect of and
protect human rights recognized in international
as well as national law.” Paragraph 12 imposed a
threefold human rights obligation on TNCs, requiring
them to respect human rights, contribute to their
realization, and refrain from violating them:
Transnational corporations and other business
enterprises shall respect economic, social and
cultural rights as well as civil and political rights
and contribute to their realization, in particular the
rights to development, adequate food and drinking
water, the highest attainable standard of physical
and mental health, adequate housing, privacy,
education, freedom of thought, conscience, and
religion and freedom of opinion and expression,
and shall refrain from actions which obstruct or
impede the realization of those rights.30
The UN Norms were quite far-reaching in their
attempt to assign responsibility to TNCs. As
a result, many business leaders viewed them
with hostility. Opposition was so pronounced
that when the Norms were submitted to the
former Commission on Human Rights, they were
rejected after a cold reception from states. The
Commission ultimately declared that the UN
Norms had “no legal standing,” and instructed that
“the Sub-Commission should not perform any
monitoring function in this regard.”31
After the failure of the UN Norms, activists sought
other ways to further the business and human
rights agenda at the global level. Responding to
these desires, in 2005 the Secretary-General
29 E/CN.4/Sub.2/2003/12/Rev.2 (Aug. 26, 2003),
Commission on Human Rights, UN Norms on the
Responsibilities of Transnational Corporations
and Other Business Enterprises with Regard to
Human Rights, available from <http://www.unhchr.
ch/huridocda/huridoca.nsf/%28Symbol%29/E.
CN.4.Sub.2.2003.12.Rev.2.En>.
30 Ibid., para. 12.
31 See: E/CN.4/2004/L.11/Add.7 (2004), UN
Commission on Human Rights, “Report to the
Economic and Social Council on the Sixtieth
Session of the Commission”, pp. 81–2.
appointed a Special Representative on the issue
of human rights and transnational corporations
and other business enterprises. The Special
Representative, Professor John G. Ruggie,
has produced several statements over the past
several years, with the most influential being the
2008 Report of the Special Representative of
the Secretary-General, “Protect, Respect and
Remedy: A Framework for Business and Human
Rights”, also known as the “2008 Ruggie Report.”32
The Report sets out a three-part framework for
promoting business accountability for human rights.
This framework is based on:
• The state’s duty to protect individuals against
human rights abuses, including by third parties
such as TNCs;
• TNCs’ duty to respect human rights; and
• The need for effective and accessible remedies.
Ruggie’s framework assigns TNCs the
responsibility to respect human rights. However, it
rejects the UN Norms’ attempt to impose binding
international human rights obligations on TNCs.
Instead, Ruggie argued that states should be
encouraged to strengthen their domestic regulatory
infrastructures and provide mechanisms for the
enforcement of human rights norms.
The voluntary standards developed thus far
have clearly not been enough to prevent TNCs
from committing or being complicit in human
rights abuses. In response to the need for more
stringent enforcement, the Ruggie Report calls
for an increase in state oversight. Others contend
that what is needed is a UN Declaration or other
international human rights instrument that would
clearly articulate global standards for TNCs with
respect to human rights.33 But is this really the best
way of dealing with international corporations?
32 A/HRC/8/5 (April 7, 2008), John G. Ruggie,
Protect, Respect and Remedy: A Framework for
Business and Human Rights, available from <http://
www.reports-and-materials.org/Ruggie-report-
7-Apr-2008.pdf>.
33 See: Human Rights Watch, On the Margins
of Profit: Rights at Risk in the Global Economy
(February 2008), p. 51, available from <http://www.
hrw.org/sites/default/files/reports/bhr0208_1.pdf>.
HUMAN RIGHTS
Theoretical Difficulties with the Regulation of
Non-State Actors
Making TNCs and other types of non-state actors
directly responsible under international law
might encourage them to take their human rights
obligations seriously, but it also has its downsides
Andrew Clapham, professor at the Graduate
Institute of International Studies, has summarized
the problems with recognizing non-state actors as
falling into two general categories:34
• Legitimacy problems: to hold NSAs
accountable for violations of human rights is,
in a sense, to recognize them as autonomous
participants in the international sphere. This
may impart a veneer of legitimacy to otherwise
“illegitimate” actors, or grant companies a status
equal to sovereign states.
• Dilution problems: holding non-state actors
to account for violating human rights might
allow states to “pass the buck” and evade
responsibility for protecting individuals under
their jurisdiction. Recognizing corporate human
rights obligations may dilute state human rights
obligations by spreading out responsibility across
a wider array of actors.
What responsibilities should corporations have
with respect to human rights? Are binding legal
norms appropriate? Are they feasible? Should
they be regulated by the international community,
or should control be left to the states? Does
assigning TNCs and other non-state actors direct
responsibility under international human rights
law give them too much legitimacy? Does it dilute
state responsibility to “respect, protect, and fulfil”
human rights?
These questions of legitimacy and dilution are not
unique to TNCs, but apply equally to other groups
of NSAs, including the one we will discuss in the
next section of this lesson: terrorists.
34 Andrew Clapham, “Non-State Actors”, in
Post-Conflict Peace-Building: A Lexicon, Vincent
Chetail, ed. (New York, Oxford University Press,
2009).
| 315
14.3 Human Rights and Terrorism
Human Rights and Terrorism
In the years since September 11 , 2001, the
th
question of how protecting human rights should
be reconciled with the need to prevent and punish
terrorism has become one of the most discussed
issues in human rights circles. Terrorism is not
new. But following the events of that day, on
which nearly 3,000 people were killed as a result
of terrorist attacks on the World Trade Center in
New York and the Pentagon in Washington, D.C.,
international terrorism became a global priority.
Wars have begun, national and international
laws have been adopted, and individuals have
been killed, detained, and abused in the name of
combating this threat. At the same time, activists
and commentators have begun searching for ways
to protect individual rights from harm inflicted both
by terrorists as well as by states zealously engaged
in counter-terrorism actions.
Human rights and terrorism intersect on a number
of different levels. First, and most obviously,
terrorism directly violates human rights. Terrorist
attacks kill and injure individual people, destroy
property, and cause a host of other problems.
Second, in the struggle to fight terrorism,
governments may limit or infringe the human rights
of individuals in their territory. These limitations
may come in the form of reduced freedoms for
the general population, such as incursions on the
right to privacy or freedom of movement, or as
institutionalized discrimination against particular
ethnic, religious, or national groups. Third, in
attempting to punish offenders and prevent future
attacks, governments may violate the human rights
of terrorists themselves. For example, a state may
employ torture or other prohibited means in order
to extract information, or may deny suspected
terrorists due process rights during imprisonment
and trial.
This section will address each of these three
human rights/terrorism linkages in turn. But first,
it will take a brief look at the existing international
machinery for dealing with the threat of
terrorist activity.
316 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
Current International Legal Framework on
Terrorism
Since the 1970s, the international community
has adopted a wide variety of international laws
intended to prohibit, prevent, and punish particular
facets of terrorist activity. Even prior to the attacks
of September 11th, anti-terrorism conventions
existed on topics such as:
• The safety and security of aircraft and airports;35
• The murder or harm of internationally protected
persons, their homes, or their means of
transport;36
• Unlawful possession, use, transfer, theft, or
threat to use nuclear material;37
• The safety and security of ships;38
• The safety and security of fixed platforms;39
• The manufacture or transportation of unmarked
plastic explosives;40
• The delivery, placing, discharging, or detonation
of an explosive or other lethal device in a public
place, state, or government facility, public
transport system, or infrastructure facility;41
35 Tokyo Convention on Offences and Certain
Other Acts Committed on Board Aircraft (1963);
Hague Convention for the Suppression of Unlawful
Seizure of Aircraft (1970); Montreal Convention
for the Suppression of Unlawful Acts Against the
Safety of Civil Aviation (1971); Montreal Protocol
for the Suppression of Unlawful Acts of Violence at
Airports Serving International Civil Aviation (1988).
36 Convention on the Prevention and Punishment
of Crimes against Internationally Protected
Persons, Including Diplomatic Agents (1973).
37 Vienna Convention on the Physical Protection
of Nuclear Material (1980).
38 Rome Convention for the Suppression of
Unlawful Acts against the Safety of Maritime
Navigation (1988).
39 Rome Protocol for the Suppression of Unlawful
Acts against the Safety of Fixed Platforms Located
on the Continental Shelf (1988).
40 Montreal Convention on the Marking of Plastic
Explosives for the Purpose of Detection (1991).
41 International Convention for the Suppression of
Terrorist Bombings (1997).
• Taking hostages;42 and
• Financing terrorist activities.43
In addition, terrorist activity that takes place
during wartime is prohibited under IHL and ICL,
both directly – through prohibitions on terrorist
activities44 – as well as indirectly – through the
prohibition of crimes against humanity such as
murder, torture, serious injury, and indiscriminate
attacks committed as part of widespread attack on
the civilian population.
Following September 11th, 2001, there was a
surge in anti-terrorist legal activity. International
organizations were quick to issue condemnations
and to classify the strike on the World Trade Center
as an “armed attack”, triggering the right to use
force in self-defense under the UN Charter.45 A few
weeks later, the Security Council determined that
international terrorism was a threat to international
peace and security, passed a resolution requiring
all states to take financial, penal, and other
measures against individuals and groups involved
in terrorism. It then used its Article VII powers to
establish a Counter-Terrorism Committee (CTC)
to monitor implementation of this resolution.46 The
General Assembly issued statements condemning
terrorist acts and urging “international cooperation
to prevent and eradicate acts of terrorism.”47
And new declarations and treaties were signed
criminalizing additional aspects of terrorist activity
and obliging member states to undertake steps to
combat terrorism.48
42 International Convention on the Taking of
Hostages (1979).
43 International Convention for the Suppression of
the Financing of Terrorism (1999).
44 Geneva Convention IV, Art. 33(1); Protocol
I, Art. 51(2); Protocol II, Arts. 4(2)(d) and 13(2);
Statute of the International Criminal Tribunal for
Rwanda (1994), Art. 4(d); Statute of the Special
Court for Sierra Leone (2000) Art. 3(d).
45 See the discussion of self-defense in the
context of jus ad bellum in Lesson 11.
46 Security Council resolution 1373 (2001).
47 A/RES/56/1 (2002), para. 4.
48 See: International Convention for the
Suppression of Acts of Nuclear Terrorism
(2005); A/RES/60/288 (2006), UN Global
Counter-Terrorism Strategy.
HUMAN RIGHTS
NGOs, however, charged that these measures
failed to take adequate care to ensure that states
upheld human rights obligations either with respect
to their own citizens or the terrorists themselves.
Countries were left with almost complete freedom
in deciding how to implement counter-terrorism
policies. The CTC, in particular, was criticized
for its failure to consider whether governments’
anti-terrorism measures complied with international
human rights law.
In response to these concerns, in 2004 the
Security Council adopted two resolutions
“reminding States that they must ensure that any
measures taken to combat terrorism comply with
all their obligations under international law, and
should adopt such measures in accordance with
international law, in particular international human
rights, refugee, and humanitarian law.”49 In 2006,
the CTC adopted a policy guidance advising its
Executive Directorate to confer with the OHCHR
on how best to ensure that state policies were in
compliance with international human rights law,
IHL, and refugee law.
Regional bodies, too, adopted a range of
counter-terrorism instruments. The Organization of
American States (OAS) passed the Inter-American
Convention against Terrorism to prevent the
financing of terrorist acts, enhance cooperation
among law enforcement officials, and promote
mutual legal assistance efforts.50 The Council
of Europe adopted a Protocol to the European
Convention on the Suppression of Terrorism
extending the list of extraditable offenses, and
passed an additional Convention on the Prevention
of Terrorism; and the EU adopted a Framework
Decision on Combating Terrorism.51 The African
Union (AU), South Asian Association for Regional
Cooperation, Association of Southeast Asian
Nations (ASEAN), the Organization of the Islamic
49 Security Council resolutions 1535 and 1566
(2004).
50 Inter-American Convention against Terrorism
(2002).
51 Council of Europe Protocol amending the
European Convention on the Suppression of
Terrorism (2003); Council of Europe Convention on
the Prevention of Terrorism (2005); EU Framework
Decision on Combating Terrorism (2002).
| 317
Conference (OIC), the Commonwealth of Nations,
and the Organization for Security and Cooperation
in Europe (OSCE) have also developed a variety of
regional instruments.
Despite the adoption of these global and
regional instruments and the increased attention
to the subject in the wake of September 11th,
2001, however, there remains no broad-based
comprehensive international treaty on terrorism.
One of the primary reasons for the lack of an
international umbrella treaty dealing with all
aspects of terrorism is that the international
community has not yet been able to agree on how
“terrorism” should be defined. This battle – which
has been raging since the 1970s – centres around
one contentious question: whether “freedom
fighters” in national liberation movements like
the Palestine Liberation Organization (PLO) and
the African National Congress (ANC) can and/or
should be classified as terrorists. As one scholar
wrote: “The perverse logic at the heart of attempts
to define terrorism is well known: everyone tries
to include one’s adversaries in the definition
while keeping one’s allies and one’s own (actual
or potential) activities outside it.”52 To paraphrase
the old adage: one person’s terrorist is another
person’s freedom fighter.
Despite the lack of a comprehensive definition of
terrorism, there has been growing international
consensus on what is meant by the term. The
1999 UN Convention for the Suppression of
the Financing of Terrorism, various UN General
Assembly and Security Council resolutions, and
the Draft Comprehensive Convention on Terrorism,
as well as regional terrorism conventions like
the Arab Convention for the Suppression of
Terrorism, the OAU Convention on the Prevention
and Combating of Terrorism, and the Convention
of the Organization of the Islamic Conference
on Combating International Terrorism all contain
similar notions of what “terrorism” entails:
(i) acts normally criminalized under any national
penal system, or assistance in the commission
52 Jarna Petman, “Evil and International Law”,
International Law Forum du droit internationale, vol.
5 (2003).
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of such acts whenever they are performed in
time of peace; those acts must be (ii) intended
to provoke a state of terror in the population or
to coerce a state or an international organization
to take some sort of action; and finally (iii) are
politically or ideologically motivated; that is, are
not based on the pursuit of private ends.53
Professor Antonio Cassese argued that while
disagreement still prevents the inclusion of a solid
definition in international treaty law, the disputed
terrain is primarily now limited to the question of
whether there should be an exception for freedom
fighters engaged in wars of national liberation, and,
if so, what the scope of that exception should be.54
Other scholars argue that this position ignores “the
continuing tendency of many developing States
to differentiate between freedom fighters and
terrorists”, which “goes to the heart of the question
whether customary international law recognizes a
comprehensive definition of terrorism.”55 Either way,
the definitional battle has yet to be concluded.
On the Definition of Terrorism
“‘Terrorism’ is a term without
legal significance.”
Rosalyn Higgins
from “The General International
Law of Terrorism” (1997)
Another major disagreement is centred on the
question of whether terrorism should be dealt with
under a military model that treats terrorist groups
as opposing military forces or under a criminal
justice model that treats terrorists as individual
criminals. The distinction is not merely academic.
The application of a military model would authorize
states to use military force and military tactics
against terrorist groups, and would require them to
respect the principles of IHL. The use of a criminal
53 Ibid., p. 165.
54 Ibid.
55 Robert P. Barnidge Jr., Non-State Actors and
Terrorism (The Hague, T.M.C. Asser Press, 2007),
pp. 31–2.
justice model, on the other hand, would authorize
policing actions against individuals or groups of
terrorists aimed at prosecuting and punishing
them for specific crimes. Keep these two different
paradigms in mind as you continue reading through
this lesson – we will return to the military versus
criminal model question below.
Terrorists as Violators of Individual Human
Rights
As has been reaffirmed in a number of UN
documents over the last several decades, terrorism
poses a direct and immediate threat to the
protection of human rights:
The acts, methods and practices of terrorism in all
its forms and manifestations [are] activities aimed
at the destruction of human rights, fundamental
freedoms and democracy, threatening the
territorial integrity and the security of States
and destabilizing legitimately constituted
Governments, undermining pluralistic civil society,
and having adverse consequences for the
economic and social development of States.56
Terrorist acts seriously jeopardize basic human
rights such as the rights to life, liberty, and
freedom, as well as a range of other civil, political,
economic, social, and cultural rights. Terrorism
threatens human security and the ability to enjoy
the human rights and fundamental freedoms to
which each individual is entitled.
Because terrorism is responsible for causing
serious violations of human rights, it is important
to prevent terrorist acts from occurring. Methods
of preventing terrorism have ranged from initiating
armed conflict, to assigning criminal liability for
terrorist acts under national and international
law, to active counter-terrorism surveillance, to
aggressive law enforcement programmes.
Despite these efforts, in many cases states have
been unable to suppress terrorist groups. Terrorist
organizations and rebel groups that use terrorist
tactics, like Al Qaeda in Afghanistan, the Basque
separatist group Euskadi Ta Askatasuna (ETA)
56 A/RES/59/195 (2005), Human Rights and
Terrorism, para. 1.
HUMAN RIGHTS
in Spain, and the Revolutionary Armed Forces of
Colombia (FARC), have been around for a long
time, and have resisted ongoing state attempts
at eradication. In cases where terrorist groups
are substantial and entrenched, how can we best
ensure the protection of individual human rights?
Writing Exercise 14: Defining A Terrorist
If you have access to the Internet, this would
be an especially good exercise to write about
online in conversation with other learners
taking this Peace Operations Training Institute
course. Consider writing your thoughts on the
POTI forum by logging into your classroom and
clicking on the “Student Forum” link.
You are working as an adviser to the government
of Copernica, a small state that is a party to
all of the major international human rights
and humanitarian law instruments. Copernica
is currently in the midst of a civil war, with
government forces fighting against a rebel group
called the Mylons. Copernica’s government has
not yet recognized the situation as an “armed
conflict” subject to Common Article 3 of the
Geneva Conventions. The Mylons have, in the
past, used terrorist tactics and committed direct
attacks against the civilian population. Despite
years of effort, the government of Copernica
has been unable to quash the Mylon movement.
Now, in an attempt to reduce civilian casualties,
it is considering whether it should negotiate
with Mylon leaders for the purpose of obtaining
commitments on human rights and IHL.
Consider the following questions and write a
brief report (maximum one page).
• Should the government of Copernica
attempt to obtain human rights
commitments from the Mylons? What
are the chances that the Mylons would
make such commitments? Why would
they do so?
• What repercussions will this decision
have with respect to international
recognition of the Mylon cause? With
respect to the protection of civilians?
Are these outcomes problematic? Are
they desirable?
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One way is to encourage these groups to comply
with IHL and human rights law. As we learned in
Lesson 12, IHL already applies to armed opposition
groups engaged in non-international armed
conflicts. And even though most human rights
law does not directly address non-state groups, it
may be possible to convince “terrorists”, “freedom
fighters”, and other armed opposition movements to
adopt these norms.
Some armed groups (terrorists, freedom fighters,
and others) have, in fact, been willing to commit
themselves to abiding by IHL and human rights
laws. The Special Representative of the UN
Secretary-General for Children and Armed Conflict,
for example, obtained human rights commitments
from the Sudan People’s Liberation Movement, the
Revolutionary United Front (RUF) in Sierra Leone,
the Liberation Tigers of Tamil Eelam (LTTE) in Sri
Lanka, and FARC.
One reason these groups may agree to be bound
by IHL and human rights law is that it provides some
legitimacy on the international stage: playing by the
rules makes these groups seem less like “terrorists”
and more like “freedom fighters.” Another reason is
that they might hope to take advantage of the logic
of reciprocity and obtain similar commitments from
the governments fighting against them. States may
be more likely to uphold the rules themselves if they
believe their opponents will also do so.
As noted in Lesson 12, however, states may
sometimes be unwilling to accept the application
of IHL.57 Accepting the applicability of IHL to a fight
against “terrorists” provides some legitimacy to
these NSAs, boosting them “from a lowly position
within the state criminal system … to a place
more solidly on the international plane.”58 In 2004,
for example, the US and the EU voted against a
resolution in the Commission on Human Rights
that referred to “gross violations of human rights
perpetrated by terrorist groups”, on the grounds
that this formulation equated states with terrorist
groups.59
57 See discussion of non-international armed
conflict in Lesson 12.
58 Mary Ellen O’Connell, “Enhancing the Status
of Non-State Actors Through a Global War on
Terror?” Columbia Journal of Transnational Law,
vol. 43 (2005), p. 436.
59 Henry J. Steiner, Philip Alston, and Ryan
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States as Violators of Individual Human Rights
One of the most difficult and fundamental problems
in human rights is the struggle to balance the
liberty of individuals (protected by human rights)
against the security needs of the state. Questions
of national security, self-determination, and
ideology can cause states to chip away at the
edges of what are otherwise absolute ethical
proscriptions – such as the prohibition of torture
or attacking civilians. Self-defense is a powerful
motivator, and governments may take extreme
actions when they fear for their safety or national
integrity. Nations have been struggling with
different aspects of the “liberty versus security”
question for centuries. And since the 1970s,
terrorism has been one of the key contexts in
which this conflict between freedom and safety has
reared its head.60
As we noted in Lessons 2, 3, and 12, human
rights conventions generally allow for some form
of limitation or suspension of rights (excepting
the “hard core” of human rights) during times of
emergency. Suspending rights during exceptional
times is nothing new – subordinating individual
liberty to the security of group is a practice as
old as the state. But is the “war on terror” really
an emergency situation requiring these kinds
of suspensions? If it is, how far should they be
allowed to go? Should concerns about safety
justify derogations from human rights protections?
Which ones? Is anti-terrorist rhetoric really just a
device for hiding opportunistic abuse of political
opponents?
In the aftermath of September 11th and the
beginning of the War on Terror, governments have
infringed on individual rights in a variety of ways.
Law enforcement agencies have been granted
new and sweeping surveillance, investigative,
and detention powers.61 Countries have begun
Goodman, p. 1420.
60 Michael Ignatieff, The Lesser Evil: Political
Ethics in an Age of Terror (Princeton, Princeton
University Press, 2004).
61 In the U.S., the National Security Agency
used wiretaps to intercept and monitor emails
and phone calls of private citizens with little
necessary in the way of justification. Eric Lichtblau

On the Violations of Rights in the
Name of Security
“On the appointed day the unarmed crowd
of the Gothic youth was carefully collected
in the square or forum; the streets and
avenues were occupied by the Roman
troops, and the roofs of the houses were
covered with archers and slingers. At the
same hour, in all the cities of the East,
the signal was given of indiscriminate
slaughter; and the provinces of Asia were
delivered, by the cruel prudence of Julius,
from a domestic enemy, who in a few
months might have carried fire and sword
from the Hellespont to the Euphrates. The
urgent consideration of the public safety
may undoubtedly authorize the violation of
every positive law. How far that or any other
consideration may operate to dissolve the
natural obligations of humanity and justice is
a doctrine of which I still desire to
remain ignorant.”
Edward Gibbon
from The Decline and Fall of
the Roman Empire (1776)
to closely monitor the international movement of
goods and people, and the rights to freedom of
speech, association, press, and conscience have
all been circumscribed in various ways.
Discrimination against those from certain national,
ethnic, and religious backgrounds has become
commonplace. Enhanced police measures have
and James Risen, “Officials Say U.S. Wiretaps
Exceeded Law”, New York Times, 15 April 2009.
Law enforcement agencies are keeping tabs on
“suspicious activities” such as purchasing police or
firefighter uniforms, taking pictures of power plants,
and espousing extremist views. Eric Schmitt,
“Surveillance Effort Draws Civil Liberties Concern”,
New York Times, 28 April 2009. In Britain, laws
have been passed allowing authorities to hold
terrorism suspects without charge for up to 42
days. John F. Burns, “Terror Bill Passes Narrowly in
Britain”, New York Times, 12 June 2008.
HUMAN RIGHTS
been directed disproportionately against groups
deemed dangerous due to their national, ethnic, or
religious heritage.62 Racial profiling and selectively
heightened immigration regulations have been
used to screen out persons from particular
countries and faiths.63 As one scholar wrote: in
balancing liberty against security, “what are being
weighed against each other may, in reality, be the
majority’s security on the one hand and the liberty
of only a minority – and of a very specific minority
for that matter – on the other.”64
Chaffing at these incursions on individual
liberty, some began to question whether the
new restrictions were truly necessary for the
preservation of national security, or whether,
instead, governments were using the threat of
terrorism as a smokescreen to hide their real
motives for imposing restrictive and discriminatory
policies. According to Human Rights Watch,
for example: “many countries around the globe
cynically attempted to take advantage of this
struggle to intensify their own crackdowns on
political opponents, separatists and religious
groups, or to suggest they should be immune from
criticism of their human rights practices.”65
62 For example, an operation in the U.S. in
2004 that was intended to question some 2,500
“suspicious foreigners” without discrimination
based on ethnicity, religion, or nationality ended
up involving more than 2,000 immigrants from
predominantly Muslim countries, almost all of
whom were found to have done nothing wrong. Eric
Lichtblau, “Inquiry Targeted 2,000 Foreign Muslims
in 2004”, New York Times, 20 October 2008.
63 In the months following September 11th, for
example, the United States detained more than
1,200 immigrants from predominantly Muslim
countries, the vast majority of whom where
detained on minor immigration violations. Office
of the Inspector General, U.S. Department of
Justice, “The September 11 Detainees: A Review
of the Treatment of Aliens Held on Immigration
Charges in Connection with the Investigation of the
September 11 Attacks”, June 2003.
64 Daniel Moeckli, Human Rights and
Non-discrimination in the ‘War on Terror’ (Oxford,
Oxford University Press, 2008), p. 3.
65 Human Rights Watch, “Opportunism in the
Face of Tragedy: Repression in the Name of
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As Professor Daniel Moeckli of the University of
Zurich described:

Some States have deployed the international

legitimacy conferred by Council authorization
to define terrorism to repress or de-legitimize
political opponents, and to conflate them with
Al-Qaeda. Thus, China bluntly characterizes
Uighur separatists in Xinjiang as terrorists;
Russia asserts that Chechen rebels are
terrorists, even though many are fighting in an
internal conflict; and India seldom distinguishes
militants from terrorists in Kashmir. In Indonesia,
insurgencies in Aceh and West Papua have been
described and combated as terrorism, as have
a Maoist insurgency in Nepal and an Islamist
movement in Morocco. Predictably, Israel has
identified Palestinians with Al-Qaeda, with Ariel
Sharon Calling Arafat “our Bin Laden.” 66

These curtailments of individual liberty are made

in the name of national security, defined as the
protection of the sovereign state. This definition
of security places the state at the pinnacle of the
security pyramid, and makes the country – with its
borders, institutions, citizenry, and ideology – the
means as well as the end of national security. In
their quest for self-protection, states may infringe
on the rights of individuals within their borders; this
is justified, because the ultimate goal is protection
of the state. But “national security” is not the only
available paradigm.
In opposition to this traditional conception of
“security” defined as “national security” is the
emerging concept of “human security.” Rather than
the security of the state, human security puts the
security of the individual – her life, dignity, liberty,
and rights – at the centre of focus. According to this
view, liberty and security are not in conflict with one
another, but instead are intrinsically related. A loss
of liberty or a limit placed on individual rights is not
a justifiable means of protecting the state; it is itself
a threat to security.67
Anti-Terrorism”, available from <http://www.hrw.org/
campaigns/september11/opportunismwatch.htm>.
66 Ben Saul, “Definition of ‘Terrorism’ in the UN
Security Council: 1985–2004”, Chinese Journal of
International Law vol. 4 (2005).
67 Daniel Moeckli, pp. 7–9.
A view of the UN Headquarters complex in Algeria
destroyed by the 11 December terrorist attack. The
bombing claimed the lives of 17 United Nations workers.
(UN Photo #166343 by Evan Schneider, December 2007)
If we begin to move from a “national security” to
a “human security” paradigm, what impact does
this have on our vision of counter-terrorism policy?
Should the threat of terrorism result in restrictions
of individual liberty, or should it instead expand
the protection of human rights and fundamental
freedoms? Which is the bigger threat to security –
terrorism, or the state’s attempts to limit
personal liberty?
States as Violators of the Human Rights of
Terrorists
In the fight against terrorism, states have attempted
to limit not only the human rights of the general
public, but also the rights of the terrorists themselves.
Counter-terrorism measures have included the
commission of torture and the infliction of cruel,
inhuman, and degrading treatment on terrorist
suspects. U.S. Attorney General Alberto Gonzales

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infamously argued that certain kinds of extreme
tactics (i.e. torture) were permissible because the
war on terror is “a new kind of war” requiring “a
new approach … towards captured terrorists”68
During the Iraq War, Abu Ghraib became an
international watchword for police brutality and
military sadism.69 Reports detailing some of the
methods of interrogation used against prisoners at
Guantánamo Bay painted a disturbing picture
of abuse.70
Following September 11th, the United States
detained hundreds of prisoners at Guantánamo
Bay, Cuba without charge or trial. The Bush
government denied these terror suspects the
protections afforded by either domestic criminal
law or IHL, claiming that suspected terrorists
were “enemy combatants” and therefore neither
criminals nor prisoners of war (POWs) deserving
of civil or Geneva Convention rights. This stripping
of both civil and international legal protections
from terror suspects led some commentators to
decry Guantánamo as a “legal black hole” in which
detainees are “entirely removed from the law and
from judicial oversight.”71
68 Alberto Gonzales, Memorandum for the
President, Subject: Decision Re Application of the
Geneva Convention on Prisoners of War to the
Conflict with Al Qaeda and the Taliban, 25
January 2002.
69 See: Mark Danner, Torture and Truth: America,
Abu Ghraib, and the War on Terror (2004).
70 See: Mark Mazzetti and Scott Shane, “C.I.A.
Abuse Cases Detailed in Report on Detainees”,
New York Times, 24 August 2009.
71 Giorgio Agamben, State of Exception, Kevin
Attell, trans. (2005), p. 4. In contrast, many critical
scholars contend that far from being a place
without law, Guantánamo is filled to the brim
with rules and regulations. See: Claudia Aradau,
“Law Transformed: Guantánamo and the ‘Other’
Exception”, Third World Quarterly, vol. 28 (2007);
Nasser Hussain, “Beyond Norm and Exception:
Guantánamo”, Critical Inquiry (2007); Fleur Johns,
“Guantánamo Bay and the Annihilation of the
Exception”, European Journal of International Law,
vol. 16 (2005). See further discussion of law and
war in Lesson 12.
HUMAN RIGHTS
In response to this situation, in 2002 the
Inter-American Commission on Human Rights
issued a request for precautionary measures,
asking the U.S. to “take the urgent measures
necessary to have the legal status of the detainees
at Guantánamo Bay determined by a competent
tribunal.”72 The Commission determined that “absent
clarification of the legal status of detainees, … the
rights and protections to which they may be entitled
under international or domestic law cannot be said
to be the subject of effective legal protection by
the state.”73 However, the United States rejected
this request on the grounds that the Commission’s
competence extended only to the American
Declaration on Human Rights, not to IHL.74
Similarly, the United Kingdom’s Parliament passed
the Anti-Terrorism, Crime and Security Act in 2001,
Part 4 of which permitted the indefinite detention of
non-British nationals suspected of terrorist activity.75
This law was used to justify the long-term detention
of a number of terror suspects at Belmarsh and
other high-security prisons. In 2004, however, the
Law Lords found that Part 4’s detention policy was
in violation of the European Convention on Human
Rights (ECHR).76 As British lawyer Lord Nicholls of
Birkenhead wrote: “Indefinite imprisonment without
charge or trial is anathema in any country which
observes the rule of law.”77
All of these human rights violations – torture, cruel
and degrading treatment, illegal detention, and
deprivation of civil rights – have been justified on the
grounds that the threat of terrorism is so great that
it must be dealt with in an unconventional manner.
72 Inter-American Commission on Human Rights,
Organization of American States, Detainees in
Guantánamo Bay, Cuba: Request for Precautionary
Measures, 13 March 2002.
73 Ibid.
74 Response of the United States to Request
for Precautionary Measures, Detainees in
Guantánamo Bay, Cuba, 15 April 2002, 41 I.L.M.
1015 (2002).
75 Anti-Terrorism, Crime, and Security Act, 2001,
c.24 (Eng.).
76 A v. Secretary of State for the Home
Department (2004) UKHL 56, (2005) 2 A.C. 68
(appeal taken from Eng.) (U.K.).
77 Ibid., para. 74 (opinion of Lord Nicholls).
| 323
But does the special threat posed by international
terrorism justify the suspension of human rights?
Is the War on Terror really a new kind of war that
requires terrorists to be treated differently than
traditional prisoners of war or ordinary criminals? If
so, why? And how much differently?
Conclusion
In this lesson, we have taken a look at how
international human rights law is evolving to
deal with two categories of NSAs: transnational
corporations and terrorists. In our final lesson, we
will discuss three more current topics of debate
in international law: the rights of LGBT persons,
human rights and technology, and the effectiveness
of international human rights.
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Further Reading
Philip Alston, Non-State Actors and Human Rights
(2005); Surya Deva, “Global Compact: A Critique of
the U.N.’s ‘Public-Private’ Partnership for Promoting
Corporate Citizenship”, Syracuse Journal of
International Law and Commerce, vol. 34 (2006);
Michael Ignatieff, The Lesser Evil: Political Ethics
in an Age of Terror (2004); Daniel Moeckli, Human
Rights and Non-discrimination in the ‘War on Terror’
(2008); A/HRC/8/5 (April 7, 2008), John G. Ruggie,
Protect, Respect and Remedy: A Framework for
Business and Human Rights, available from <http://
www.reports-and-materials.org/Ruggie-report-
7-Apr-2008.pdf>.
Websites for Further Information
Global Compact: www.unglobalcompact.org
Voluntary Principles on Security and Human Rights:
www.voluntaryprinciples.org
E/CN.4/Sub.2/2003/12/Rev.2 (26 August 2003),
Commission on Human Rights, UN Norms on the
Responsibilities of Transnational Corporations and
Other Business Enterprises with Regard to Human
Rights: www.unhchr.ch/huridocda/huridoca.
nsf/ %28Symbol%29/E .CN.4.Sub.2 .2003.12 .
Rev.2.En
UN Business & Human Rights Resource Centre:
www.business-humanrights.org/
SpecialRepPortal/Home
End-of-Lesson Quiz
1. Traditionally, international law was
addressed only to:
A. States;
B. Individuals;
C. The international community;
D. Transnational corporations.
2. International human rights norms
have traditionally had vertical effect,
between individuals and the state, but no
___________________, between one
individual and another.
3. All of the following groups are non-state
actors EXCEPT:
A. Terrorists;
B. Transnational corporations;
C. Governments;
D. NGOs.
4. Which of the following best describes
a situation in which a transnational
corporation was “complicit” in a human
rights violation:
A. A corporation hired security forces to assault
trade unionists;
B. A corporation benefitted when the government
attacked and incarcerated anti-corporate
protesters;
C. A corporation refused to hire women;
D. A corporation employed children in its
dangerous production facility.
HUMAN RIGHTS
5. The corporate social responsibility initiative
launched by Kofi Annan in 1999 is called
the ___________________.
6. Why might regulating transnational
corporations be difficult?
A. Transnational corporations are not subject to
domestic law;
B. Transnational corporations are able to
overthrow governments if they disagree with
regulatory decisions;
C. Governments are prohibited under
international human rights law from attempting
to regulate transnational corporations;
D. Governments may lack the financial and
human resources they need to impose
effective regulation.
7. What is the current situation of the
UN Norms on the Responsibilities of
Transnational Corporations and Other
Business Enterprises with Regard to
Human Rights?
A. The UN Norms were rejected by corporations
and states, and have no legal effect;
B. The UN Norms were adopted unanimously
by the general assembly and are now
legally enforceable against transnational
corporations;
C. The draft of the UN Norms was never
completed because human rights NGOs were
no longer interested in regulating transnational
corporations;
D. The UN Norms were voluntarily adopted by
transnational corporations, who now comply
with their obligations without the need for legal
enforcement mechanisms.
| 325
8. What is the “race to the bottom”? 10. Which of the following best describes
A. The fear that competition to attract why it has been difficult to come to
investment will lead countries to lower their a definition of “terrorism” under
regulatory standards; international law?
B. The fear that countries who violate human A. Some powerful countries have maintained
rights will quickly be overthrown by that there are no such thing as terrorists;
rebellious citizens; B. Countries have been unable to agree on
C. A situation in which two countries are whether all wars are really “terrorist” wars;
competing to be the first to extract all C. Countries have been unable to agree on
resources from a shared deposit of natural how to distinguish “terrorists” from “freedom
resources; fighters” and whether an exception should
D. A situation in which a government tries its be made for the latter group;
hardest to provide assistance to the lowest D. Some powerful countries have maintained
income earning people in society. that only countries, not individuals, can be
terrorists.
9. Which of the following best describes
the “dilution problem” with respect to
holding NSAs accountable for violations
of human rights?
A. If NSAs are held responsible for human
rights violations, this will erode the special
meaning of human rights;
B. If NSAs are held responsible for human
rights violations, states may try to “pass the
buck” and limit their own responsibility;
C. If NSAs are held responsible for human
rights violations, they will no longer be able
to function in the globalized economy;
D. If NSAs are held responsible for human
rights violations, this will impart a veneer of
legitimacy, and could imply that they have a
status equal to that of states.

ANSWER KEY
1A, 2 Horizontal Effect, 3C, 4B,
5 Global Compact, 6D, 7A, 8A, 9B, 10C

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LESSON 15
CONTEMPORARY DEBATES
ON HUMAN RIGHTS II:
LGBT RIGHTS, TECHNOLOGY,
AND EFFECTIVENESS
 LESSON
15

LESSON OBJECTIVES

15.1 Introduction By the end of Lesson 15, the student should be able to meet the
following objectives:
15.2 LGBT Rights
15.3 Human Rights and • Understand the nascent system for the protection of LGBT rights;
Technology
• Identify some potential intersections between human rights and
15.4 Effectiveness technology;
• Appreciate the ways in which censorship can injure human rights;
• Describe several ways in which the intellectual property regime can
impact human rights;
• Understand the connections between information technology,
privacy, and human rights;
• Describe the significance of the digital divide; and
• Appreciate the implications of the effectiveness critiques for human
rights practice.

To view a video introduction of this lesson by the

course author Jessica C. Lawrence, you can
either log in to your virtual classroom, go to www.
peaceopstraining.org/users/media_page/388/
lesson-15, or use your mobile device to scan the
QR code to the left.
15.1 Introduction
In our final lesson, we will continue our discussion
of contemporary debates in human rights. In
Lesson 14, we looked at how international human
rights law is evolving to deal with two very different
types of non-state actors (NSAs): transnational
corporations (TNCs) and terrorist groups. In this
lesson, we will examine three final themes: the
emergence of a new special protection regime for
lesbian, gay, bisexual and transgender (LGBT)
persons;1 the growing field of human rights and
technology; and the perennial question of the
effectiveness of human rights norms.
15.2 LGBT Rights
Over the last several decades, there has been
growing recognition of the vulnerable position of
gay, lesbian, bisexual and transgender persons, and
increasing efforts to establish a special human rights
regime for their protection. LGBT persons and allies
have raised awareness about sexual orientation and
gender identity issues through lobbying, education,
and pride events. Activists have made claims at
the regional and international levels using the
anti-discrimination and privacy provisions in the
International Bill of Human Rights and other human
rights instruments. More and more countries have
decriminalized homosexual activities, passed laws
prohibiting discrimination against LGBT citizens, and
recognized same-sex partnerships and marriage
under civil law. At the beginning of the twenty-first
century, LGBT issues are becoming increasingly
established as part of the human rights agenda.
Despite the trend towards increased protection,
lesbian, gay, bisexual and transgender people
continue to suffer from widespread discrimination
and human rights abuses. In countries all over the
world, LGBT persons have been subject to murder,
imprisonment, torture, harassment, and other
abuses on account of their sexual orientation and/
or gender identification. Homosexual relationships
1 While LGBT is the most commonly used
acronym in the international sphere, students
may encounter other acronyms that refer to a
similar group of rights. For example, LGBTQ (Q
for “queer”) and LGBTQI (I for “intersex”) are also
sometimes used.
HUMAN RIGHTS
are still criminalized in nearly 80 countries, and
sanctions can include incarceration, corporal
punishment, and even the death penalty.2 Abuse
and harassment by police are common.3 In addition,
actual or perceived LGBT status has been the basis
for assault and discrimination by private parties.4
Governments have all too frequently refused to
intervene to protect LGBT persons from violations
of their rights, and in some places governments
and state authorities themselves have been the
perpetrators of abuse. The lack of enforcement and
failure to apply legal sanctions has created a culture
of impunity in which abuses against LGBT people
are allowed to continue and even to escalate.
Moreover, many continue to strongly oppose rights
for LGBT persons. Arguments against protecting
LGBT rights are often the product of moral or
religious convictions against homosexuality, as well
as of the historical influence of British colonial laws
prohibiting sodomy.5 Opponents of LGBT rights
have argued that the lack of explicit protection in
international human rights treaties coupled with
the right of each sovereign state to make its own
laws regarding these issues mean that international
law does not, and was never meant to, include
protections for persons on the basis of their sexual
orientation or gender identity.
2 Homosexuality is subject to the death penalty
in at least six countries. Niel MacFarquhar, “In a
First, Gay Rights are Pressed at the UN”, New York
Times, 18 December 2008.
3 See: Amnesty International, Stonewalled:
Police Abuse and Misconduct Against Lesbian,
Gay, Bisexual and Transgender People in the U.S.
(2005); Human Rights Watch, These Everyday
Humiliations: Violence Against Lesbians, Bisexual
Women, and Transgender Men in Kyrgyzstan
(2008).
4 See: Human Rights Watch, “They Want
Us Exterminated”: Murder, Torture, and
Sexual Orientation and Gender in Iraq (2009)
(documenting a wide-reaching campaign of
extrajudicial executions, kidnappings, and torture of
gay men in Iraq).
5 See: Human Rights Watch, This Alien
Legacy: The Origins of “Sodomy” Laws in British
Colonialism (2008), available from <http://www.hrw.
org/en/reports/2008/12/17/alien-legacy-0>.
| 329
LGBT Rights in International Law
As we learned in Lesson 1, perhaps the most
significant driving force behind the adoption of the
UDHR was international outrage over atrocities
committed during the Holocaust. Despite the
fact that Nazi authorities explicitly sought the
extermination of homosexuals as part of their
eugenics programme (34,000 were murdered
at Sachsenhausen concentration camp in
Orianenberg alone),6 when the first set of human
rights treaties was being drafted after World War
II, LGBT issues were not considered a priority. Not
one of the major human rights instruments explicitly
mentions sexual orientation or gender identity.
The invisibility of LGBT issues in international
human rights law continued largely unchallenged
for many decades. Despite appeals by LGBT rights
groups, the human rights community long remained
silent on the issue of sexual orientation. Some
argued that the time for championing gay rights
was not yet ripe; that knowledge and attitudes
must first be allowed to shift. Others argued that
promoting rights for LGBT persons would trivialize
human rights by focusing on “non-essential” issues.
Sexuality became “the ‘dessert’ after the ‘meat and
potatoes’ problems” were solved; a question to be
addressed “one day”, once “the ‘basic’ problems”
had been dealt with.7 But as Eric Heinze writes:
Sexual orientation is basic. It counts among the
most determinative forces of human personality
and social organization. Those facing the entire
range of human rights violations due to their
actual or imputed sexual orientation rank on par
with those facing racism, sexism, and all other
internationally recognized forms of persecution.
The rights involved are equally fundamental and
equally urgent. Indeed, the rights sought – rights
of personhood, liberty, equality, conscience,
expression, and association – are largely
identical.8
6 See: Phillip Tahmindjis, “Sexuality and
International Human Rights Law”, in Sexuality
and Human Rights: A Global Overview, Helmut
Graupner and Phillip Tahmindjis, eds. (London,
Routledge, 2005), p. 11.
7 Eric Heinze, Sexual Orientation: A Human Right
(Boston, Martinus Nijhoff Publishers, 1995), p. 21.
8 Ibid.
330 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
Over the last several decades, however, attitudes
have shifted, and emerging practice now identifies
LGBT rights as protected by international human
rights law.9 A growing number of national and
international decisions have recognized LGBT
rights as a part of existing rights to privacy, equality,
and non-discrimination. The Human Rights
Committee has found that “adult consensual sexual
activity in private is covered by the concept of
‘privacy’” under ICCPR article 17,10 and that ICCPR
Articles 2(1) and 26, which prohibit discrimination
on the basis of sex, also forbid discrimination
on the basis of sexual orientation.11 It has also
criticized a number of countries for maintaining
laws that discriminate, criminalize, or fail to prevent
human rights abuses against LGBT persons.12
9 As Professor Aaron Xavier Fellmeth writes,
“The acceptance within the international community
that some, if not all, international human rights laws
should protect sexual minorities specifically, and
unconventional sexual practices generally, is both
recent and radical.” Aaron Xavier Fellmeth, “State
Regulation of Sexuality in International Human
Rights Law and Theory” William and Mary Law
Review, vol. 50 (2008), at 800–1.
10 CCPR/C/50/D/488/1992 (31 March 1994),
Toonen v. Australia, Communication No.
488/1992, para. 8.2 (finding that a Tasmanian law
criminalizing homosexual behavior was in violation
of the right to privacy under ICCPR, Art. 17).
11 Ibid., para. 8.7 (noting that “the reference to
‘sex’ in Art. 2, para. 1 and Art. 26 is to be taken
as including sexual orientation” and finding that
the state violated the applicant’s right to be free of
discrimination on the basis of sex). The European
Court of Human Rights has likewise interpreted
the non-discrimination and privacy provisions
of the European Convention on Human Rights
as including protections for LGBT persons. See:
European Court of Human Rights, Salguero da
Silva Mouta (1999) App No 33290/96, paras. 34–6
(holding that denial of parenting rights based on
sexual orientation was an unacceptable instance of
discrimination); European Court of Human Rights
Dudgeon v. UK (1983) App no 7525/76, ECHR,
Series A, No. 45 (holding that a law prohibiting
homosexual activity in Northern Ireland violated the
applicant’s right to privacy).
12 See: CCPR/CO/83/GRC (2005), Human Rights
Committee, “Concluding Observations: Greece”,
Following this precedent, the UN Committee
on Torture, the UN Working Group on Arbitrary
Detention, and the Committee on the Rights of
the Child have also criticized governments for
discrimination based on sexual orientation. The
Committee on Economic, Social and Cultural
Rights’ General Comment 14 clarifies that there
may be no discrimination in access to health care
based on sexual orientation.13 And the Charter
of Fundamental Rights of the European Union
has become the first human rights treaty to grant
explicit rights to nondiscrimination on the basis of
“sexual orientation.”14
In 2006, a group of legal experts developed
the Yogyakarta Principles on the Application of
International Law in Relation to Issues of Sexual
Orientation and Gender Identity (Yogyakarta
Principles).15 The Yogyakarta Principles consolidate
and elaborate principles of international human
rights law in the context of sexual orientation
and gender identity. They focus in particular on
concerns such as extrajudicial executions, torture,
access to justice, privacy, non-discrimination,
health, immigration and refugee issues, and a
range of other rights. The development of the
Yogyakarta principles represented an important
first step toward the development of a special
regime for the protection of LGBT rights, and
they have already been cited by UN agencies,16
governments, and NGOs.17 However, they remain
only a non-binding set of expert recommendations.
para. 19; CCPR/CO/70/TTO (2003), Human
Rights Committee, “Concluding Observations:
Trinidad and Tobago”, para. 11; CCPR/C/USA/CO/3
(2006), Human Rights Committee, “Concluding
Observations: United States of America”, para. 25.
13 E/C.12/2000/4 (11 August 2000), UNCESCR,
General Comment 14 on the Right to the Highest
Attainable Standard of Health, para. 18.
14 Charter of Fundamental Rights and Freedoms
of the European Union, Art. 21. For further
discussion of the European Charter, see Lesson 5.
15 Available at <www.yogyakartaprinciples.org/>.
16 See: UNHCR, “Guidance Note on Claims for
Refugee Status Under the 1951 Convention Relating
to Sexual Orientation and Gender Identity” (2008).
17 Stephanie Farrior, “Human Rights Advocacy on
Gender Issues”, Journal of Human Rights Practice,
vol. 1, No. 1 (2009), p. 88.
HUMAN RIGHTS
The UN Declaration on Sexual Orientation and
Gender Identity
A significant milestone for LGBT activists came in
December 2008, when 66 countries18 (now 6719)
supported a non-binding Declaration on Sexual
Orientation and Gender Identity presented in the
United Nations General Assembly. This declaration
– the first statement condemning human rights
violations based on sexual orientation and gender
identity to be read aloud in a General Assembly
plenary session – was in part based on a similar
statement adopted by the General Assembly of the
Organization of American States (OAS) in June
2008.20 Originally intended to be a resolution, the
sponsors of the statement were ultimately forced
to present the text as a Declaration due to lack of
support.21
18 United Nations, “General Assembly: 70th
and 71st plenary meeting, morning session,
02:25:10–02:32:00”, 18 December 2008, available
from <http://www.un.org/webcast/ga2008.html>.
Countries supporting the Declaration were Albania,
Andorra, Argentina, Armenia, Australia, Austria,
Belgium, Bolivia, Bosnia and Herzegovina, Brazil,
Bulgaria, Canada, Cape Verde, Central African
Republic, Chile, Colombia, Croatia, Cuba, Cyprus,
Czech Republic, Denmark, Ecuador, Estonia,
Finland, France, Gabon, Georgia, Germany,
Greece, Guinea-Bissau, Hungary, Iceland,
Ireland, Israel, Italy, Japan, Latvia, Liechtenstein,
Lithuania, Luxembourg, Malta, Mauritius, Mexico,
Montenegro, Nepal, Netherlands, New Zealand,
Nicaragua, Norway, Paraguay, Poland, Portugal,
Romania, San Marino, Sao Tome and Principe,
Serbia, Slovakia, Slovenia, Spain, Sweden,
Switzerland, the former Yugoslav Republic
of Macedonia, Timor-Leste, United Kingdom,
Uruguay, and Venezuela.
19 The United States has also subsequently
endorsed the Declaration. See: Robert Wood,
U.S. Department of State Spokesman, Press
Release, “UN Statement on ‘Human Rights, Sexual
Orientation, and Gender Identity’”, 18 March 2009,
available from <http://www.state.gov/r/pa/prs/
ps/2009/03/120509.htm>.
20 Human Rights, Sexual Orientation, and Gender
Identity, AG/RES. 2435 (XXXVIII-O/08), adopted 3
June 2008.
21 Niel MacFarquhar, “In a First, Gay Rights are
| 331
The 13-point declaration condemns discrimination
and abuse based on sexual orientation and gender
identity.22 Its signatories are “disturbed that violence,
harassment, discrimination, exclusion, stigmatization
and prejudice are directed against persons in all
countries in the world because of sexual orientation
or gender identity”, and call on all states to “promote
and protect human rights of all persons, regardless
of sexual orientation and gender identity.”23
The controversial Declaration prompted a backlash,
however, and opponents led by the Organization
of the Islamic Conference (OIC) drafted a
counterstatement that was signed by 57 countries.24
This rival statement, which was read out in the
General Assembly by Syria, affirmed the “principles
of non-discrimination and equality”, but contended
that universal human rights do not justify “the
attempt to focus on the rights of certain persons.”25
Troublingly, it also expressed “alarm” at the contents
of the Declaration and condemned the use of the
term “sexual orientation” as promoting “the social
normalization and possibly the legitimization of many
deplorable acts including pedophilia.”26
Pressed at the UN”, New York Times, 18 December
2008.
22 “Declaration on Sexual Orientation and Gender
Identity,” text available from <http://ilga.org/news_
results.asp?LanguageID=1&FileID=1211&FileCateg
ory=44&ZoneID=7>.
23 Ibid.
24 United Nations, “General Assembly: 70th
and 71st plenary meeting, morning session,
02:32:00–02:43:42”, 18 December 2008, available
from <http://www.un.org/webcast/ga2008.html>.
Countries opposing the Declaration, signatories to
the counterstatement, were Afghanistan, Algeria,
Bahrain, Bangladesh, Benin, Brunei, Cameroon,
Chad, Comoros, Cote d’Ivoire, Djibouti, Egypt, Eritrea,
Ethiopia, Fiji, the Gambia, Guinea, Indonesia, Iran,
Iraq, Jordan, Kazakhstan, Kenya, Kuwait, Lebanon,
Libya, Malawi, Malaysia, Maldives, Mali, Mauritania,
Morocco, Niger, Nigeria, North Korea, Oman,
Pakistan, Qatar, Rwanda, Saint Lucia, Saudi Arabia,
Senegal, Sierra Leone, Solomon Islands, Somalia,
Sudan, Swaziland, Syria, Tajikistan, Tanzania,
Togo, Tunisia, Turkmenistan, Uganda, United Arab
Emirates, Yemen, and Zimbabwe.
25 Ibid.
26 Ibid.
332 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
Despite the controversy surrounding the
Declaration, advocates insist that the mere act of
breaking the taboo on discussing sexual orientation
rights at the UN is a significant achievement.27
On LGBT Rights
“Sadly, … there remain too many countries
which continue to criminalize sexual relations
between consenting adults of the same sex
in defiance of established human rights law.
Ironically many of these laws, like Apartheid
laws that criminalized sexual relations
between consenting adults of different
races, are relics of the colonial era and
are increasingly becoming recognized as
anachronistic and as inconsistent both with
international law and with traditional views of
dignity, inclusion and respect for all … ”
Navanethem Pillay
from Statement to High-Level Panel Discussion
on Human Rights, Sexual Orientation and
Gender Identity (2008)
Marriage Equality
The broad struggles for recognition of LGBT rights
under international law encompass a number of
different issues related to non-discrimination and
freedom from abuse and oppression. One issue
that has been particularly controversial over the
past decade is the fight for marriage equality.
The right of consenting adults to enter into
marriage is protected under UDHR Article 16:
“Men and women of full age, without any limitation
due to race, nationality or religion, have a right to
marry and to found a family. They are entitled to
equal rights as to marriage, during marriage and
at its dissolution.”28 While this formulation does not
specifically mention the rights of LGBT persons,
UN treaty bodies have interpreted Article 16 as
27 Niel MacFarquhar, “In a First, Gay Rights are
Pressed at the UN”, New York Times, 18 December
2008.
28 Universal Declaration of Human Rights, Art. 16.
prohibiting discrimination. The denial of equal
recognition to the civil marriages of LGBT couples
therefore constitutes a denial of their human rights.
The right to marry is closely linked with other
human rights – such as the right to housing and
social security – and denial of the right to marry
can negatively impact these as well. Where
LGBT couples are not allowed to marry, the
consequences may include:
• Prohibiting a partner from making decisions on a
partner’s behalf when she or he is sick;
• Prohibiting a partner from visiting a partner’s
child in hospital;
• Preventing couples from sharing equal rights and
equal responsibility for children in their care;
• Preventing a partner and children from receiving
employment-based benefits and being covered
by health insurance; or
• Preventing inheritance from a deceased partner
going to a surviving partner if he or she dies
without a valid will.29
Moreover, denial of the equal right to marry may
legitimize discrimination and abuse based on sexual
orientation and gender identities in other areas.
International and national judicial bodies are
increasingly recognizing that discrimination based
on sexual orientation and gender identity is a
violation of human rights standards. As a result,
there is a growing trend toward protecting the equal
rights of LGBT couples to recognition under civil law.
In 2001, The Netherlands became the first country
to offer full marriage equality to LGBT couples.
Since then, Belgium (2003), Canada (2005), Norway
(2009), South Africa (2006), and Spain (2005) have
also recognized full rights to marriage equality.
In addition, civil unions or domestic partnerships
are recognized in Andorra, the Czech Republic,
Denmark, Finland, France, Germany, Iceland,
Luxembourg, New Zealand, Slovenia, Sweden,
Switzerland, the United Kingdom, and Uruguay.30
29 Amnesty International, “Marriage Equality”,
available from <http://www.amnestyusa.org/
lgbt-human-rights/marriage-equality/page.
do?id=1551077>.
30 Ibid.
HUMAN RIGHTS
Universalism and Cultural Relativism
The debate over whether LGBT persons should
be protected as a vulnerable group under
international human rights law foregrounds once
more the universalism versus cultural relativism
debate that we have encountered on a number of
prior occasions.
Countries that have resisted LGBT rights claims
have often done so using the language of culture,
tradition, and religion. They have argued that
cosmopolitan notions of sexual identity and sexual
orientation should not or cannot be imposed in their
specific contexts; that Western ideals of individual
(sexual) freedom should not trump community
values. In the post-colonial context, some
southern African states have used the rhetoric
of neocolonialism to paint homosexuality as an
“abhorrent Western import”, a tool of the “white
colonizer” who sought to “exploit and contaminate
the colonized sexually.”31 For example, President
Robert Mugabe of Zimbabwe argued at a book
fair in 1995 that homosexuality was a white man’s
disease, foreign to African tradition.32 As Professor
Carl F. Stychin describes this clash of values:
Thus, theoretically, we can often find ourselves
in a cul-de-sac of rights claims spawned by
the globalization of human rights and sexual
identities. Resistance to gay rights is grounded in
communitarian claims to difference, specificity,
cultural authenticity, and history, which are also,
in turn, grounded in the language of rights of
self-determination of a people. The question is
then about which self, which group, and which
right to protect. What “trumps” what?33
31 Carl F. Stychin, “Same-Sex Sexualities and the
Globalization of Human Rights Discourse” McGill
Law Journal/Revue de droit de McGill, vol. 49
(2004), p. 956.
32 “Zimbabwe Leader Condemns Homosexuality”,
New York Times, 2 August 1995. For an interesting
analysis, see Matthew Engelke, “‘We Wondered
What Human Rights He Was Talking About’:
Human Rights, Homosexuality and the Zimbabwe
International Book Fair”, Critique of Anthropology,
vol. 19 (1999).
33 Carl F. Stychin, p. 957.
| 333
Communitarian relativist arguments, however, can
themselves be turned in favour of LGBT rights.
Activists have pointed out that in many instances, it
was British colonial laws, not pre-colonial society,
that first began to criminalize homosexuality,34
and that it was imported Christian values, not
indigenous morality that stigmatized same-sex
desire.35 They have worked to multiply identity
categories, pointing out that sexual minorities are
not merely foreign imports, but neighbours who
exist within the community.
Should human rights step in to protect LGBT
persons? Or should it be up to each individual state
to determine whether and how LGBT issues should
be handled within their borders? How universal
are human rights? Should pro-LGBT activists
be permitted to overrule religious and cultural
objections in other states? Is this tantamount to
neo-colonialism? Or are the objections themselves
the byproduct of a colonial past?
15.3 Human Rights and Technology
Technology holds great promise for assisting in
the promotion and protection of human rights. The
modern web of information and social networks
can help to fulfil the right to education and allow
people to participate in cultural life. Technological
advancements can improve health and well-being,
can make agriculture more productive, and prevent
environmental degradation. Access to information
allows individuals to learn about other societies,
compare them critically with their own, and demand
change from domestic legislators, and personal
communication technologies enable free speech,
freedom of association, freedom of the press, and
give individuals a voice in the political realm.36
34 See: Human Rights Watch, This Alien
Legacy: The Origins of “Sodomy” Laws in British
Colonialism.
35 See: Stephen O. Murray and Will Roscoe,
eds., Boy-Wives and Female Husbands: Studies
of African Homosexualities (New York, Palgrave,
1998); Shashank Prabhat Kumar, working paper,
“Tightening the Noose Around Anti-Sodomy Laws:
Global and Local Perspectives on Human Rights
and Homosexuals” (2009).
36 See: Mary Rundle and Chris Conley,
The Ethical Implications of Emerging
334 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
But technology can also be used to restrict human
rights. Countries can censor the information they
allow people within their borders to see, or cut off
access to international media in order to prevent
the release of news from inside the state. Strict
intellectual property protections can prevent
access to scientific and cultural advancements.
Monitoring and distributing information about the
use of technology use can infringe on individual
privacy. Many people around the world continue to
lack access to information technology, leaving them
increasingly marginalized from the economic and
cultural mainstream.
How has international human rights community has
responded to these issues?
Human rights and censorship
With the spread of the Internet throughout the globe,
people of all types, even in previously isolated
countries, have gained access to an enormous
amount of information and a powerful networking
tool. Information technology has been used to
transmit both good and bad content, for legal and
illegal sharing, and to help as well as harm individual
users. In order to mitigate the negative aspects of
the Internet boom, countries have applied their legal
systems to curtail violations of domestic law online.
Indeed, most states are either currently active in or
are seeking in the future to regulate Internet content.
There are many legitimate reasons for doing
so – such as protecting users from fraud, viruses,
spam, and child pornography; safeguarding national
security; or maintaining the structural integrity of the
network.37
Other restrictions, though, are more questionable
from a human rights perspective. Governments
concerned with suppressing dissent have seen
YouTube, Google, Twitter, Facebook, and other
online tools become avenues for bypassing official
Technologies: A Survey (Paris, UNESCO, 2007),
available from <http://unesdoc.unesco.org/
images/0014/001499/149992e.pdf>.
37 See: Robert Faris and Nart Villeneuve,
“Measuring Global Internet Filtering”, in Access
Denied: The Practice and Policy of Global Internet
Filtering, Ronald Deibert et al., eds. (Cambridge,
The MIT Press, 2008), p. 9.
channels and maintaining lines of communication
during political crises. One need look no further
than the events in Iran – where dissidents used
Twitter, blogs, Facebook, and Farsi-language
Internet sites to organize protests against the
2009 re-election of President Ahmadinejad – or
during what has become known as the “Arab
Spring” – in which activists have used technology
to communicate with the outside world, to
ensure freedom of speech, to facilitate freedom
of association, and to organize and implement
demonstrations and civil disobedience – to see
the importance of modern technology to political
dissidents.38
Because these tools can undermine authoritarian
efforts at repression, governments seeking to
maintain power by controlling information flows
have attempted to cut off or limit access to
communications technology. Broad censorship of
Internet content, however, can have a profound
impact on human rights. As Surya Deva argues:
Internet censorship … degrades important
human rights such as the freedom of speech and
expression, right to privacy, right to seek, receive
and impart information, freedom of the press,
right to communication, and right to protest.
In some cases, Internet citizenship might also
violate the freedom of persons and endanger the
very survival of … citizens.39
One country in which the topic of Internet
censorship has come under considerable scrutiny
is China. It is worthy of note, however, that China
is not the only country in the world that censors
Web content for political reasons. North Korea and
Cuba have extensive censorship regimes. Several
Western democratic countries, among these
France and Germany, censor Nazi and anti-Semitic
Web content on political grounds.40 However, some
38 See: Brad Stone and Noam Cohen, “Social
Networks Spread Defiance Online”, New York
Times, 16 June 2009.
39 Surya Deva, “Corporate Complicity in Internet
Censorship in China: Who Cares for the Global
Compact or the Global Online Freedom Act?”
George Washington International Law Review, vol.
39 (2007) (footnotes omitted), p. 264.
40 See: Mary Rundle and Chris Conley, p. 24.
HUMAN RIGHTS
activists have argued that censorship in China
is important from a human rights perspective.
They assert that because China is the most
populous country in the world, on a numerical
level, restrictions put in place within China affect a
larger proportion of the world’s population. Second,
China is ruled by a largely undemocratic form of
government where some restrictions on freedom
of speech, press, and information remain. China’s
Internet censorship serves a legitimate function
in that it restricts harms such as fraud and child
pornography. But some critics assert it is meant to
stifle political dissent by limiting access to websites
critical of the Communist Party or China’s human
rights record. In this regard, several Western
NGOs have protested against the transnational
corporations (TNCs) – including Yahoo!, Microsoft,
Skype, and Google – for what these NGOs see
as the TNC’s complicity in the censoring of online
content in China.41
Since their arrival in China, these Internet
companies have all operated within the legal
framework of the nation by maintaining lists of
blocked words, phrases, and Web addresses, and
filtering out search results that contain references
to “human rights”, “democracy”, “freedom”,
“Dalai Lama”, or “Tiananmen massacre”, among
other phrases. Some have gone further than
this. Yahoo!, for example, received a great deal
of criticism in 2003, when it began to turn over
electronic information on cyber-dissidents.42
Yahoo!’s refusal to comply with French censorship
rules provides an interesting contrast to its behavior
in China. In a case between Yahoo! and the French
government over the issue, Yahoo!’s lawyer railed
against the “French imperialism” implicit in France’s
attempt to regulate the California-based Internet
company. A French judge, in response, declared
Yahoo! “la plus grande enterprise de banalisation
du nazisme qui soit.” Exchange described in
Anupam Chander, “Trade 2.0”, Yale Journal of
International Law, vol. 34 (2009), p. 293.
41 See Amnesty International, Undermining
Freedom of Expression in China: The Role of
Yahoo!, Microsoft and Google (2006); Human
Rights Watch, “Race to the Bottom”: Corporate
Complicity in Chinese Internet Censorship (2006).
42 Amnesty International, Undermining Freedom
of Expression in China: The Role of Yahoo!,
| 335
These are developing legal topics concerning the
boundaries between one nation’s sovereign right to
establish what it sees as domestic law, with what
outsiders may see as freedom of communication
across international borders.
In their defence, Google, Yahoo!, Microsoft, and
other Internet-based businesses have argued
that they were required to participate in China’s
censorship regime as a condition of doing business
in that country.43 Failure to comply with local laws,
they argued, would have led to their expulsion from
the country, and ultimately harmed the Chinese
people, who would have had less access to the
Web than ever.
This argument raises a particularly interesting
question with regard to the regulation of TNCs:44
how can companies supplying Web-based
services in repressive regimes comply with
local laws without being complicit in violations of
human rights? Must they refuse to do business in
non-democratic countries? Do business, but break
local laws? Comply with local laws, but perhaps be
complicit in human rights violations?
Human Rights and Intellectual Property
In addition to focusing on abuses of state power
such as censorship, human rights activists have
increasingly turned their attention to the issue of
intellectual property.
Microsoft and Google (2006), at 18. Yahoo!’s
actions have sparked at least one suit under
the Alien Tort Claims Act (ACTA), a US law that
allows non-US citizens to sue American residents
(including companies) for violations of international
law. In that case, the wife of a Chinese dissident
currently serving a 10-year sentence in China,
along with several other parties, accuses Yahoo! of
complicity in torture, and seeks damages and an
injunction barring Yahoo! from identifying dissidents
to the Chinese government. Miguel Helft, “Chinese
Political Prisoner Sues in U.S. Court, Saying Yahoo
Helped Identify Dissidents,” New York Times, Apr.
19, 2007.
43 Miguel Helft, “Chinese Political Prisoner Sues
in U.S. Court, Saying Yahoo Helped Identify
Dissidents,” New York Times, Apr. 19, 2007.
44 See Lesson 14 for a thorough discussion of
336 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
Intellectual property laws assign rights to the
inventors or creators of books, music, art, and
scientific discoveries; protect the use of company
names and logos; and prohibit the release of
corporate secrets. The major types of intellectual
property are:
• Copyrights (for books, music, and other
productions);
• Patents (for scientific processes and products);
• Trademarks (for names and logos); and
• Trade secrets (for closely held recipes or
designs).
Under intellectual property law, the creator of a
work of art, scientific invention, or other protected
object or idea receives a temporary monopoly
that gives that person or company the sole right
to produce and distribute their work for a certain
period of time. For example, the author of a human
rights textbook has an intellectual property right
to its contents, and no one else can produce,
distribute, or claim authorship of the book without
her permission. The purpose of granting these
temporary monopolies is to spur the production of
inventions and art by giving authors, scientists, and
others an economic incentive to create.
At the international level, intellectual property rights
are primarily governed by the World Intellectual
Property Organization (WIPO) and the World
Trade Organization (WTO), with its Agreement
on Trade-Related Aspects of Intellectual Property
Rights (TRIPS). TRIPS establishes a worldwide
system of intellectual property protection within
the WTO framework, and includes rules relating to
all of the major intellectual property types. TRIPS
was intended to stimulate international trade and
spur economic growth by promoting uniformity in
intellectual property laws. Increased conformity
among intellectual property laws was supposed
to alleviate the problem of TNCs being deterred
from investing in a particular country because
of insufficient copyright, patent, or trademark
enforcement rules.
Businesses have praised this effort at harmonization,
but many human rights activists have criticized
efforts to hold TNCs accountable at the global level
for direct and indirect violations of human rights.
TRIPS for its failure to pay sufficient attention to the
human rights implications of intellectual property
rules. As UC Law professor Madhavi Sunder
explains: “intellectual property is understood almost
exclusively as being about incentives … It does not
ask who makes the goods or whether the goods are
fairly distributed to all who need them.”45
The problem with intellectual property from a human
rights perspective is that providing temporary
monopolies on cultural and scientific property
necessarily entails restricting access to protected
works. When only one person or company has the
right to make, sell, distribute, or use a particular item
or idea, the right-holder may drastically limit or deny
access to other individuals or companies. These
limits can have beneficial effects when they provide
incentives for new research and creation, but they
can have harmful effects when they restrict access
to information or goods necessary for the protection
of human rights. Restricting access can impact
a broad range of human rights issues, including
public health, education, food, privacy, and free
expression.46 For example, patents on medicines
make them more expensive, and thus reduce
access to life-saving drugs for the sick. Copyrights
on art, literature, and artifacts can make access
prohibitively expensive and may thereby exclude the
economically disadvantaged from participation in the
cultural life of the community.
These issues have raised the recurring theme of
conflict between the global North and global South:
while industrialized nations have continued to press
for new and more restrictive intellectual property
rules, developing states and consumer groups
have called for greater attention to public access to
knowledge and to non-proprietary systems.47
Both incentives and access are a part of the human
rights framework. The UDHR, for example, protects
authors’ “moral and material interests” in their
“scientific, literary or artistic production[s]”,48 as well
45 Madhavi Sunder, “IP3”, Stanford Law Review,
vol. 59 (2006), p. 259.
46 See: Laurence R. Helfer, “Toward a Human
Rights Framework for Intellectual Property”,
University of California, Davis Law Review, vol. 40
(2007), p. 973.
47 Ibid.
48 UDHR, Art. 27.
HUMAN RIGHTS
as the right “to seek, receive and impart information
and ideas through any media and regardless of
frontiers” and the “right to freely participate in
the cultural life of the community, to enjoy the
arts and to share in scientific advancement and
its benefits.”49 The challenge for the international
community has been to determine where the
author’s right of protection should end and the
public’s right of access should begin.
Indigenous Peoples and Traditional Knowledge
As we learned in Lesson 10, indigenous peoples’
rights became prominent on the UN human rights
agenda beginning in the early 1990s. As part of the
struggle for self-determination, indigenous peoples
argued that international law should recognize their
right to control their culture, including traditional
knowledge of agricultural techniques, medicines,
biodiversity, and artistic productions. However,
the intellectual property regime did not recognize
indigenous knowledge rights, either because they
did not qualify as “inventions” in the traditional
sense, or because the indigenous people
themselves did not have a system for recognizing
individual property.50 Because indigenous people
could not claim intellectual property rights over their
traditional knowledge, it has been freely available
for access and exploitation by third parties,
including states, TNCs, and scholars. Occasionally,
these parties have used the knowledge they
learned from indigenous groups to obtain their own
patents and copyrights on so-called “downstream”
innovations derived from these earlier techniques.
When they profited from these patents and
copyrights, TNCs, states, and scholars almost
never shared the resulting financial or technological
benefits with the indigenous community.51 This
49 UCHR, Arts. 19 and 27(1).
50 Laurence R. Helfer, “Toward a Human Rights
Framework for Intellectual Property”, University of
California, Davis Law Review, vol. 40 (2007), p. 983.
51 See: Lakshmi Sarma, “Biopiracy: Twentieth
Century Imperialism in the Form of International
Agreements”, Temple International and
Comparative Law Journal, vol. 13 (1999), pp.
128–9 (describing TNC exploitation of traditional
communities in India and Nicaragua); Michael M.
Phillips, “Bitter Remedies: The Search for Plants
That Heal Generates International Feuding”, Wall
Street Journal, 7 June 2001 (relating a conflict
between a Swiss research institution and the
| 337
practice, which became known as bio-prospecting,
or, more forcefully, bio-piracy, received a great deal
of media and NGO attention during the past several
decades, and eventually spurred some high-level
action at the UN.
In order to prevent bio-piracy and give indigenous
peoples more control over their cultural and
traditional knowledge, human rights activists
began to advocate intellectual property rights for
indigenous groups. As a result, the Declaration on
the Rights of Indigenous Peoples includes specific
protections for traditional knowledge:
Indigenous peoples have the right to maintain,
control, protect and develop their cultural heritage,
traditional knowledge and traditional cultural
expressions, as well as the manifestations of their
sciences, technologies and cultures, including
human and genetic resources, seeds, medicines,
knowledge of the properties of fauna and flora,
oral traditions, literatures, designs, sports and
traditional games and visual and performing arts.
They also have the right to maintain, control,
protect and develop their intellectual property over
such cultural heritage, traditional knowledge, and
traditional cultural expressions.52
The DRIP was an important step in the
international recognition of indigenous rights to
cultural and traditional knowledge. And indigenous
peoples have begun to exercise their intellectual
property rights affirmatively, bringing lawsuits
against national governments for misuse of
traditional knowledge.53 However, some observers
University of Zimbabwe over patent rights to a plant
traditionally used in Zimbabwe).
52 A/61/L.67 (2007), United Nations Declaration
on the Rights of Indigenous Peoples, Art. 31.
53 See: Phil Patton, “Trademark Battle Over
Pueblo Sign”, New York Times, 13 January 2000
(describing a lawsuit by a Native American tribe
against the state of New Mexico for using the
tribe’s spiritual sun symbol on the state flag without
its permission); Lenore Keeshig-Tobias, “Stop
Stealing Native Stories”, in Borrowed Power:
Essays on Cultural Appropriation, Bruce Ziff and
Pratima V. Rao, eds. (Piscataway, NJ, Rutgers
University Press, 1997), p. 72 (discussing actions
by indigenous Canadians seeking copyrights in
traditional stories).
338 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
have argued that expanding intellectual property
protection to cover traditional knowledge may
create more problems than solutions.54 Is further
limiting access to knowledge really the best way to
protect indigenous peoples’ rights?
Pharmaceutical Patents and the Right to Health
Another important challenge has been
reconciling incentives and access in the area of
pharmaceutical patents. The development of new
medicines and treatments is an important social
goal. Pharmaceutical patents attempt to encourage
research and development by granting companies
a temporary monopoly on the drugs they create,
which allows them to recoup the expenses they
incurred during the development phase. When
TRIPS came into effect in 1994, it extended
strong protections for pharmaceutical patents
across the globe. However, many human rights
groups feared that TRIPS would have a negative
impact on the right to health by increasing costs
and limiting access to medications. This concern
became particularly important in the context of the
HIV/AIDS pandemic, and in light of reports that
pharmaceutical patents were preventing developing
countries from providing antiretroviral treatment to
their citizens.55 These accusations led to several
resolutions and statements by the human rights
bodies of the UN stressing the importance of
access to medicines in the context of pandemics,
the impacts of intellectual property on public health,
and other topics at the intersection of TRIPS and
human rights.56
54 See: Michael F. Brown, Who Owns Native
Culture? (Cambridge, Harvard University Press,
2003) (expressing worries that indigenous
intellectual property will threaten traditions of free
speech and the public domain).
55 See: Donald G. McNeil Jr., “Patents or
Poverty? New Debate Over Lack of AIDS Care in
Africa”, New York Times, 5 November 2001.
56 The High Commissioner for Human Rights,
for example, argued that intellectual property
laws must promote access to knowledge and
emphasized states’ responsibility to provide
affordable medicines to fight HIV/AIDS. E/CN.4/
Sub.2/2001/13 (2001), OHCHR, “Report of the High
Commissioner on the Impact of the Agreement
on Trade-Related Aspects of Intellectual Property
The battle over access to HIV/AIDS medications
eventually culminated in the adoption of a special
2001 Doha Ministerial Declaration on TRIPS
and Public Health by the WTO. This ministerial
declaration reiterated that countries could be
exempted from rules governing pharmaceutical
patents in times of national health crises.
However, the exemption is quite limited in scope,
and activists have criticized it as ineffective in
addressing the needs of developing states.57

Plant and Seed Patents and Human Rights

A third area in which intellectual property

protections and human rights have come into
conflict is with respect to the patentability of
seeds and plant varieties. Under TRIPS, countries
must allow companies to acquire patents or
patent-like protections on seeds and plants
that they have developed, for example through
genetic modification.58 Supporters of plant and
seed patents argue that they will encourage the
development of new and innovative plant species
that are healthier and more resistant to disease and
drought. Human rights activists, on the other hand,
have argued that protecting intellectual property
rights in seeds and plant varieties could negatively
affect the rights to food, work, and economic
security.59 Farmers who choose to plant patented
seed and plant varieties must purchase new seeds
Rights on Human Rights”, paras. 10–5 and 27–58.
Similarly, the Commission on Human Rights
passed a series of resolutions on “Access to
Medication in the Context of Pandemics such as
HIV/AIDS, Tuberculosis and Malaria”, which urged
states to ensure access to pharmaceuticals. E/
CN.4/RES/2003/29 (2003), Commission on Human
Rights, Res. 2003/29; E/CN.4/RES/2001/33 (2001),
Commission on Human Rights, Res. 2001/33; E/
CN.4/RES/2002/32 (2002), Commission on Human
Rights, Res. 2002/21.
57 See: Fanni (Faina) Weitsman, “TRIPS, Access
to Medicines and the “North-South” Conflict After
DOHA: The End or The Beginning?” Asper Review
of International Business and Trade Law, vol. 6
(2006), pp. 90–2.
58 Agreement on Trade-Related Aspects of
Intellectual Property (1994), Art. 27(3)(b).
59 See: Vandana Shiva, Stolen Harvest: The
Hijacking of the Global Food Supply (New York,
South End Press, 2000).
An HIV/AIDS test is conducted in one of Jordan’s Ministry of Health labs,
Amman. (UN Photo #20019 by G Pirozzi, January 2001)
and the right to plant them every year. They are
not allowed to save seed from the year before, and
can be subject to fines and lawsuits if they breach
a seed contract.60 Because farmers are prohibited
from saving seed, and must re-purchase the rights
to plant every year, they have little insurance to tide
them over when times are rough.61
The issue of incentives versus access pervades
the intellectual property and human rights debate.
And many scholars are working to redefine the
meaning of incentives and intellectual property
protection.62 Where should the line be drawn to best
protect human rights and fundamental freedoms?
Should the public have rights of access to patented
medicines? Should indigenous persons have
protection for their intellectual property? Should
plants and seeds be patentable? These questions
and others like them will play a major role in
determining what the human rights impact of new
technologies will be.
60 See: Adam Liptak, “Saving Seeds Subjects
Farmers to Suits Over Patent”, New York Times, 2
November 2003.
61 For a thorough discussion of the evolution
of global intellectual property rules on plant
genetic resources, see: Keith Aoki, Seed Wars:
Controversies and Cases on Plant Genetic
Resources and Intellectual Property (Durham, NC,
Carolina Academic Press, 2008).
62 See: Madhavi Sunder, “IP3.”

HUMAN RIGHTS | 339

Human Rights and Privacy
Privacy is a fundamental human right recognized
in the UDHR, ICCPR, and other international and
regional human rights instruments.63 It guarantees
human dignity, helps to ensure personal security,
protects identity, and promotes freedom of
expression and association.
Modern technology can assist people in maintaining
their personal privacy. Encryption technologies help
to ensure the confidentiality of communications.
Surveillance devices assist private parties in
protecting their homes and identities. The Internet
can afford anonymity for whistleblowers and political
dissidents and allow people to share their views
without fear of retribution.64
On the other hand, information and communications
technologies can also be used to infringe the right
to privacy. As Valerie Steeves writes: “On the
Internet, the very design of the network necessitates
an open environment, where everyone can listen
in, watch, follow and pry into the online actions of
their neighbours. In other words, in a wired world
there is no reasonable expectation of privacy.”65
Governments use surveillance technologies such as
wiretapping and biometrics to monitor the activities
of political opponents, journalists, human rights
workers, and other individuals.66 As one writer rather
dramatically put it: “What took the East German
Stasi 500,000 secret informers – 10,000 of which
were needed just to transcribe citizens’ phone calls
– can now be accomplished much more simply with
sophisticated new technologies.”67 States can force
private companies, such as airlines and Internet
search engines, to hand over sensitive data about
63 UDHR, Art. 12;
64 Valerie Steeves, “Privacy, Free Speech
and Community: Applying Human Rights to
Cyberspace”, in Human Rights and the Internet,
Steven Hick, Edward F. Halpin, and Eric Hoskins,
eds. (New York, St. Martin’s Press, 2000), p. 187.
65 Ibid., p. 190.
66 See discussion of wiretapping in the context
of state anti-terrorism policies and abuses of
individual rights in Lesson 14.
67 Steve Wright, “Political Control and the
Internet”, in Human Rights and the Internet, p. 200.
340 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
consumers.68 And they can conduct Orwellian
monitoring of online activity in order to identify and
enable prosecution (or persecution) of suspected
criminals, members of opposition movements, and
ordinary citizens.69
Not only governments can use this technology.
Individuals use the anonymity of the Internet to
leak private information and to harass strangers
and acquaintances.70 Employers in the U.S. and
elsewhere commonly monitor their employees’
email and online browsing at work,71 and may
discriminate against prospective hires on the basis
of information found through a Google or Facebook
search. TNCs and other corporations mine
databases of information to compile profiles of their
clients’ personal lives, and cookies and spyware
track browsing habits and transfer information to
online vendors.
As awareness of the dangers posed by information
technology has grown, human rights advocates
have become increasingly concerned with
potential violations of privacy, and have called
for a coordinated international response. Global
consensus, however, has been difficult to attain.
Companies have attempted to head off legislation by
introducing voluntary initiatives, such as the Global
Network Initiative launched by Google, Microsoft
and Yahoo in 2008.72 Regions and nations differ
greatly with respect to their approach to privacy
and technology. In the US, information privacy is
protected by a mishmash of single-issue anti-abuse
68 See discussion above of Yahoo!’s actions in
China.
69 See: Lawrence Lessig, Code: Version 2.0 (New
York, Basic Books, 2006), pp. 208–9.
70 See: Daniel J. Solove, The Future of
Reputation: Gossip, Rumor, and Privacy on the
Internet (New Haven, Yale University Press, 2007).
71 One survey indicated that 55 per cent of
major US companies retain and review employee
email communications, and 76 per cent monitor
Internet communications. American Management
Association & ePolicy Institute, Electronic
Monitoring & Surveillance Survey: Survey 3 (2005),
p. 6.
72 For more information on the Global Network
Initiative, see <http://www.globalnetworkinitiative.
org/>.
laws. The Asia-Pacific Economic Cooperation
(APEC) released a non-binding Privacy Framework
in 2004. And the European Union has passed some
of the strongest legal privacy protections in the
world, with its far-reaching 1995 Directive on Data
Protection and 2006 Directive on Data Retention.73
Because its regulations are among the most
stringent, the EU has become “the most influential
voice in global privacy regulation.”74
Technology, Human Rights, and the “Digital
Divide”
Despite the falling costs of hardware, software,
and telecommunications services, and the
ever-increasing spread of technology, there
remains a wide gap between the rich and the
poor in terms of access to digital information. Both
within and between states, minorities, persons
with disabilities, people living in rural areas, and the
economically disadvantaged report far lower rates
of Internet use. A large portion of the developing
world lacks the material conditions necessary for
Internet access: a stable power supply, telephone
lines, optical cables, computers, and Internet
service providers are often in short supply. Where
the physical infrastructure does exist, the price of
Internet access remains unaffordable for many
people. And even where both the physical and
financial conditions are met, many potential users in
developing countries lack training in computer skills,
or do not speak a language common on the Internet.
This gap between the technological “haves” and
“have nots” is known as the digital divide.
Addressing the digital divide is important because
access to technology can facilitate political
participation, social interaction, education, and
economic growth. It is also critical for promoting
global equality. People living on the periphery of
global society are further marginalized by their lack
of access to technology. In the words of educator
73 Daniel J. Solove, Marc Rotenberg, and Paul
M. Schwartz, Information Privacy Law (New York,
Aspen Publishers, 2006), p. 869.
74 Tim Wu, “The International Privacy Regime”,
in Securing Privacy in the Internet Age, Anupam
Chander, Lauren Gelman, and Margaret Jane
Radin, eds. (Stanford, Stanford University Press,
2008), p. 104.
HUMAN RIGHTS
A local farmer harvests sorghum produced from seeds donated by the
Food and Agriculture Organization (FAO) through the “Improving Seeds”
project. (UN Photo #134570 by Fred Noy, December 2006)
and author Titus Alexander, “In a world governed
by information, exclusion from information is
as devastating as exclusion from land in an
agricultural age.”75 As long as this divide persists,
the economic, social, and political gap between the
technological “haves” and “have nots” will continue
to widen. As a result, information technology
equality has been described by some authors as
the civil rights issue of the new millennium.76
Evidence suggests that the gap is slowly
narrowing. While there are still more Internet
users in the United States than in any other single
country, Asia as a whole already has twice as
many Internet users as North America, and is
predicted to have three times as many by 2012.77
Technology companies are spending hundreds of
millions of dollars each year to expand non-English
language Web content.78 Nonprofit projects like
One Laptop Per Child have produced sturdy,
low-budget computing equipment, and loaded
75 Titus Alexander, Unveiling Global Apartheid:
An Overview of World Politics (Cambridge, Polity
Press, 1996), p. 195.
76 See: Patricia F. First and Yolanda Y. Hart,
“Access to Cyberspace: the New Issue in
Educational Justice”, Journal of Law and Education,
vol. 31 (2002).
77 Daniel Sorid, “Writing the Web’s Future in
Numerous Languages”, New York Times, 30
December 2008.
78 Ibid.
| 341
it with open source software in order to make it
affordable for people in developing countries.79
New initiatives are popping up on every continent.80
In the coming years, these technologies – and
the human rights issues that go with them – will
only become cheaper, more prevalent, and more
embedded in our lifestyles. As they do, problems
such as those associated with censorship,
intellectual property rules, privacy, and equal
access to information technologies will become
increasingly important. Human rights advocates
will need to find ways to harness the benefits of
modern technology, while protecting the rights of
those that are adversely affected. The best ways to
do so – whether through the use of existing human
rights instruments or the development of new
mechanisms – remains to be seen.
On the Paradox of Human Rights
“Never have violence, inequality, exclusion,
famine, and … economic oppression affected
as many human beings in the history of the
earth and humanity … let us never neglect this
macroscopic fact, made up of innumerable
singular sites of suffering: no degree of
progress allows one to ignore that never
before, in absolute figures, have so many men,
women and children been subjugated, starved
or exterminated.”
Jacques Derrida
from Specters of Marx (1994)
79 John Markoff, “At Davos, the Squabble
Resumes on How to Wire the Third World”, New
York Times, 29 January 2007.
80 See: Cat Contiguglia, “New Undersea Cables
to Expand Broadband in Africa”, New York Times,
9 August 2009 (discussing the opening of the first
of 10 new undersea fiber-optic cables that will
extend broadband access to millions of people
in Southern and Eastern Africa by the middle of
2010); Staphanie Hanes, “Bridging the African
digital divide – with a ‘toaster’”, Christian Science
Monitor, 17 June 2008 (describing an initiative
by a South African company to install “Freedom
Toasters” – machines on which the public can burn
CDs of open-source software without having to pay
342 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
Writing Exercise 15: Heath vs. Profits
You are working in a small developing country
that is party to all of the major international
human rights treaties. Unfortunately, this
country suffers from regular and deadly
outbreaks of tuberculosis. Recently, a European
company called MedCorp announced that
after five years and $10 million in research
and development, it has produced an effective
vaccine against tuberculosis. However, the
medicine is patented, and MedCorp has put a
high price tag on each dose. The government is
too poor to purchase and supply the vaccine to
its whole population, and few individuals have
the means to acquire the drug on their own. The
government has attempted to negotiate with
MedCorp to purchase the vaccine in bulk at a
discount rate, but MedCorp has refused, saying
it needs to recoup the costs of research and
development.
Consider the following questions and write a
brief report (maximum one page).
• How has the intellectual property regime
impacted the right to health in this case?
• What can the government do to try to
obtain the vaccines? Does it have any
options?
• Would it make a difference in this case if
TNCs like MedCorp could be held liable
for violations of international human
rights law? Why, or why not?
• If MedCorp were required to provide the
vaccine at little or no cost, what effect do
you think this would have on innovation
and research to develop new drugs?
• Can you think of any way to balance the
competing interests in this case?
hefty bandwidth usage fees – in Cape Town);
Sara Miller Llana, “Where has Chávez taken
Venezuela?” Christian Science Monitor, 2 February
2009 (reporting on the Venezuelan leader’s efforts
to extend wireless access and open-source training
programmes to rural areas).
15.4 Effectiveness
We will end our final lesson with a brief look at the
topic of effectiveness. Now that we have learned
the ins and outs of the international system for the
protection of human rights, we must ask what is
perhaps the ultimate question from a pragmatic
standpoint: does the international human rights
system actually protect peoples’ human rights?
Former American Society of International Law
president Louis Henkin famously wrote: “It is
probably the case that almost all nations observe
almost all principles of international law and almost
all of their obligations almost all of the time.”81 Yet,
despite the fact that the past century has seen an
explosion of human rights agreements that have
been signed and praised by almost every state on
the planet, violations – even grievous violations –
still occur on a frequent basis. According to one
estimate, over 80 per cent of states that ratified
the Convention Against Torture (CAT) violated
the agreement in the year of ratification.82 Costas
Douzinas calls this mismatch between rhetoric and
reality the “paradox of human rights”:
The record of human rights violations since
their ringing declarations at the end of the
eighteenth century is quite appalling … If the
twentieth century is the epoch of human rights,
their triumph is, to say the least, something of a
paradox. Our age has witnessed more violations
of their principles than any of the previous and
less “enlightened” epochs. The twentieth century
is the century of massacre, genocide, ethnic
cleansing, the age of the Holocaust. At no point
in human history has there been a greater gap
between the poor and the rich in the Western
world and between the north and the south
globally.
The paradox of human rights has led some to
sharply criticize the hypocrisy of states that
81 Louis Henkin, How Nations Behave (Second
Edition) (New York, Columbia University Press,
1979) (emphasis in original).
82 Emilia J. Powell and Jeffrey K. Staton,
“Domestic Judicial Institutions and Human Rights
Treaty Violation”, International Studies Quarterly,
vol. 53 (2009), p. 149.
HUMAN RIGHTS
“talk the talk” of rights but fail to “walk the walk”
of protection:
World leaders owe an apology for failing to
deliver on the promise of justice and equality
in the Universal Declaration of Human Rights,
adopted 60 years ago. In the past six decades,
many governments have shown more interest in
the abuse of power or in the pursuit of political
self-interest, than in respecting the rights of
those they lead. This is not to deny that progress
has been made … But for all the good, the fact
remains that justice, inequality and impunity are
still the hallmarks of our world today.83
In fact, some scholars have found evidence that
states who accede to human rights treaties are, at
least some of the time, “less likely, rather than more
likely, to conform to the requirements of the treaties
than countries that do not ratify these treaties.”84
Yale Law professor Oona Hathaway argues that
this may be the result of countries’ desire to
express their commitment to human rights, even –
and perhaps especially – when that commitment
is not matched by intent to change. “Where, as is
usually the case in the area of human rights, there
is little monitoring or enforcement, combined with
strong pressure to comply with norms that are
embodied in treaty instruments, treaty ratification
can serve to offset, rather than enhance, pressure
for real change in practices.”85
83 Amnesty International Report 2008, State of
the World’s Human Rights (2008).
84 Oona A. Hathaway, “Do Human Rights Treaties
Make a Difference?” Yale Law Journal, vol. 111
(2002), p. 1989.
85 Ibid., p. 2020. For some theoretical and
empirical responses to Hathaway, see: Ryan
Goodman and Derek Jinks, “Measuring the Effects
of Human Rights Treaties”, European Journal
of International Law, vol. 14 (2003) (arguing that
“broad ratification of human rights treaties plays an
important role in the process of building national
human rights cultures); Eric Neumayer, “Do Human
Rights Treaties Improve Respect for Human
Rights?” Journal of Conflict Resolution, vol. 50
(2005) (showing that ratification of human rights
treaties is correlated with improved human rights
protection in democratic countries with strong civil
societies).
| 343
Indeed, states with bad human rights records
may sign these treaties simply because making a
commitment, in and of itself, is perceived as “doing
something” about the problem. The Human Rights
Committee or another treaty body may criticize
the state every few years for failing to live up to its
treaty obligations – but if its human rights record
was poor to begin with, what does it have to lose?
As University of California professor Lynn Hunt
wrote, unfortunately “human rights are still easier to
endorse than to enforce.”86
What should we conclude from all of this? Has
human rights failed in its task?
The answer to this question depends partially on
the answer to another, prior one: What exactly do
we expect from human rights? How much good do
we think the international legal regime can do?
Human rights treaties may indeed prevent
states from abusing individual rights in some
circumstances, but this is not all they do.
Human rights treaties legitimize monitoring and
enforcement actions by states and the international
community. They promote awareness and
empower individuals to demand accountability
from their governments. Perhaps most importantly,
human rights treaties make human rights a part
of the standard discourse of expectations and
play a role in the process of building national and
transnational cultures.
The act of speaking (via treaty ratification) holds
the potential to transform the understandings and
practices of not only the state that engages in
that speech (by solidifying, or perhaps opening
a door to, internalization of those norms) but
also the international community (by shaping
the shared understanding of acceptable state
practice.87
In other words, merely talking about rights can help
to promote them. As Louis Henkin, wrote in 1990:
86 Lynn Hunt, Inventing Human Rights: A History
(New York, W. W. Norton, 2007), p. 208.
87 Oona Hathaway, “Testing Conventional
Wisdom”, European Journal of International Law,
vol. 14, No. 1 (2003), p. 195.
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Human rights is the idea of our time, the only
political-moral idea that has received universal
acceptance. The Universal Declaration of
Human Rights, adopted by the United Nations
General Assembly in 1948, has been approved
by virtually every one of today’s 170 states …
Despite this universal consensus, as all know,
the condition of human rights differs widely
among countries, and leaves more-or-less to
be desired everywhere. This may suggest that
the consensus … is at best formal, nominal,
perhaps even hypocritical, cynical. If it be so, it
is nonetheless significant that it is this idea that
has commanded universal moral acceptance …
Even if it be hypocrisy, it is significant – since
hypocrisy, we know, is the homage that vice
pays to virtue – that human rights is today the
single, paramount virtue to which vice pays
homage, that governments today do not feel free
to preach what they may persist in practicing.
It is significant that all states and societies
have been prepared to accept human rights as
the norm, rendering deviations abnormal, and
requiring governments to conceal and deny, or
show cause, lest they stand condemned. Even
if half or more of the world lives in a state of
emergency with rights suspended, that situation
is conceded, indeed proclaimed, to be abnormal,
and the suspension of rights is the touchstone
and measures of abnormality.88
Or does it? Can talking about human rights,
articulating our needs in the vocabulary of rights
and freedoms, really help to achieve the goals of
preventing abuse and promoting mutual respect
and nondiscrimination?
Some scholars have challenged the privileged
position of human rights discourse in “the
struggle to create a more humane, egalitarian
and democratic society.”89 This “critique of rights”
argues that human rights fail as a strategic tool;
they are too vague and indeterminate to be useful
88 Louis Henkin, The Age of Rights (New York,
Columbia University Press,1990), pp. ix–x.
89 Duncan Kennedy and Karl Klare, “A
Bibliography of Critical Legal Studies”, Yale Law
Journal, vol. 2 (1984).
in determining legal outcomes90; “rights”, as a
concept, are too ideological, too manipulable, and
too likely to reify the privileges of existing social
arrangements; and their inherent instability makes
them a treacherous mooring for activist ships. As
Robert Gordon wrote:
The rhetoric of rights can be dangerously
double-edged … Floor entitlements can be
turned into ceilings (you’ve got your rights,
but that’s all you’ll get). Formal rights without
practical enforceable content are easily
substituted for real benefits. Anyway, the
powerful can always assert counterrights
(to vested property, to differential treatment
according to “merit,” to association with one’s
own kind) to the rights of the disadvantaged.91
Scholars like Professor David Kennedy have even
questioned whether human rights may sometimes
be “more part of the problem in today’s world than
part of the solution.”92 In particular, he sets out a
list of 10 criticisms, which, as he notes, “have been
around for a long time”:
• “Human Rights Occupies the Field of
Emancipatory Possibility”, making alternative
strategies seem less imaginable, available, and
desirable;93
• “Human Rights Views the Problem and the
Solution Too Narrowly”, foregrounding certain
definitions and experiences at the expense of
others;94
90 Duncan Kennedy, A Critique of Adjudication
(Cambridge, Harvard University Press, 1997),
p. 305.
91 Robert Gordon, supra note XX, pp. 657–8.
92 David Kennedy, “The International Human
Rights Movement: Part of the Problem?” European
Human Rights Law Review, vol. 3 (2001), p. 101.
93 See: Balakrishnan Rajagopal, International
Law From Below: Development, Social Movements
and Third World Resistance (Cambridge,
Cambridge University Press, 2003).
94 See: Robin West, “From Choice to
Reproductive Justice: De-Constitutionalizing
Abortion Rights”, Yale Law Journal, vol. 118 (2009);
Kevin Kolben, “Labor Rights as Human Rights?”
Virginia Journal of International Law, vol. 50 (2010).
HUMAN RIGHTS
• “Human Rights Generalizes Too Much”,
propagating overly universalized and abstract
ideas about people, politics, and society;
• “Human Rights Particularizes Too Much”,
encouraging a focus on the individual and
individual rights-holding identities at the expense
of more communitarian understandings;
• “Human Rights Expresses the Ideology, Ethics,
Aesthetic Sensibility and Political Practice
of a Particular Western Eighteenth- through
Twentieth-Century Liberalism”;95
• “Human Rights Promises More than It Can
Deliver”, encouraging false hope with respect to
the potential for knowledge, justice, community,
neutral intervention, and emancipation;
• “The Legal Regime of ‘Human Rights’, Taken as
a Whole, Does More To Produce and Excuse
Violations than To Prevent and Remedy Them”,
treating symptoms rather than structural causes,
and legitimating protected forms of violence;
• “The Human Rights Bureaucracy Is Itself Part
of the Problem”, separating human rights
“professionals” from “clients”, and encouraging
false solidarity, bad faith, and irresponsible
intervention;
• “The Human Rights Movement Strengthens
Bad International Governance”, promoting a
rules and institutions model of governance and
encouraging the fantasies of clean hands and
global governance; and
• “Human Rights Promotion Can Be Bad Politics in
Particular Contexts.”96
95 See: Makau Mutua, “The Transformation of
Africa: A Critique of the Rights Discourse,” in
Human Rights and Diversity: International Human
Rights Law in a Global Context, Felipe Gomez Isa
and Koen de Feyter, eds. (2009).
96 David Kennedy, “The International Human
Rights Movement: Part of the Problem?” European
Human Rights Law Review, vol. 3 (2001), at
108–25.
| 345
These are serious issues. And ones from which
we should not shy away. Any regime that gains
power – as human rights has over the past 60
years – deserves to be carefully scrutinized.
Understanding the costs as well as the benefits
of human rights allows us to be more conscious
of the effects of our actions, both positive and
negative. And knowing the dangers can help us
avoid or minimize them.
Conclusion
Each of the issues highlighted in these final two
lessons is at the forefront of an ongoing debate
within the field of human rights. All of these
uncertainties may give students the impression
that human rights law and practice is confusing
and unsettled. In many respects, that is indeed
the case. However, it is important to remember
that the international human rights regime is a
relatively new arrival on the scene. It emerged
out of a heavily contested environment, rent by
diverging political, social, and economic theories,
and populated by a huge variety of different actors,
including states, individuals, NGOs, and TNCs. The
fact that scholars, activists, and ordinary individuals
continue to debate the specific applications of
human rights should not be seen only as a cause
for anxiety, but also as the organic extension of a
growing system, and as providing an opportunity
for those who would step in and speak for change.
346 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
Further Reading
Surya Deva, “Corporate Complicity in Internet
Censorship in China: Who Cares for the Global
Compact or the Global Online Freedom Act?”
George Washington International Law Review, vol.
39 (2007); Oona A. Hathaway, “Do Human Rights
Treaties Make a Difference?” Yale Law Journal,
vol. 111 (2002); Laurence R. Helfer, “Toward a
Human Rights Framework for Intellectual Property”,
University of California, Davis Law Review, vol. 40
(2007); Human Rights Watch, This Alien Legacy:
The Origins of “Sodomy” Laws in British Colonialism
(2008); David Kennedy, “The International Human
Rights Movement: Part of the Problem?” European
Human Rights Law Review, vol. 3 (2001); Mary
Rundle and Chris Conley, The Ethical Implications
of Emerging Technologies: A Survey (2007);
Carl F. Stychin, “Same-Sex Sexualities and the
Globalization of Human Rights Discourse”, McGill
Law Journal/Revue de droit de McGill, vol. 49 (2004).
Websites for Further Information
The Yogyakarta Principles:
www.yogyakartaprinciples.org
End-of-Lesson Quiz
1. The UN Declaration on Sexual
Orientation and Gender Identity is:
A. A binding international human rights
treaty that protects LGBT persons from
discrimination and abuse;
B. A set of recommendations developed by
experts that have no legal force;
C. A new UN Charter body set up for the
purpose of protecting LGBT persons;
D. A non-binding declaration presented by a
group of states in the UN General Assembly.
2. LGBT persons have the right to marriage
equality in:
A. All countries;
B. Most countries;
C. Few countries;
D. No countries.
3. What is a patent?
A. A temporary monopoly granted to the
inventor of a scientific discovery that gives
the inventor the sole right to produce the
invention for a certain period of time;
B. A permanent monopoly granted to the
inventor of a scientific discovery that gives
the inventor the sole right to produce the
invention forever;
C. An award given by the UN to scientists
who invent particularly useful goods or
processes;
D. A temporary right to access a scientific
discovery in the case of a national
emergency.
HUMAN RIGHTS
4. The gap between the information
technology “haves” and “have nots” is
known as the ___________________.
5. Which of the following is NOT considered
to be a legitimate reason for censoring
Internet content?
A. Reducing the spread of child pornography;
B. Protecting users from viruses;
C. National security;
D. The suppression of political opponents.
6. The “paradox of human rights” is:
A. The fact that the century that witnessed
the proliferation of human rights treaties
was also a century in which human rights
violations and atrocities were widespread;
B. The fact that human rights treaties are
frequently signed by countries with poor
human rights records;
C. The fact that human rights may cause
problems by occupying the field of
emancipatory possibility;
D. The fact that since the UDHR was signed
in 1948, there have been no more major
human rights tragedies.
7. Which of the following international
agreements protects the human right to
privacy on the Internet?
A. The International Declaration on Internet
Privacy;
B. The International Covenant on Digital
Rights;
C. The Declaration on Human Rights and
Information Technology;
D. There is no international agreement
addressing human rights and privacy on
the Internet.
| 347
8. Countries have opposed LGBT rights for
all of the following reasons EXCEPT:
A. LGBT rights are against their religious
beliefs;
B. LGBT persons are never harassed and are
not in need of protection;
C. LGBT rights are colonial impositions;
D. LGBT rights will open the door to
pedophilia.

9. The Yogyakarta Principles on the

Application of International Law in
Relation to Issues of Sexual Orientation
and Gender Identity were developed in
what year?
A. 1948;
B. 1966;
C. 1971;
D. 2006.

10. Which of the following best describes a

reason why it may be good to ask critical
questions about human rights?
A. Because human rights create injustice in all
cases;
B. Because human rights have never helped
anyone;
C. Because human rights do not really exist
and this must be proven;
D. Because understanding the limitations of
human rights helps us to avoid problems.

ANSWER KEY
1D, 2C, 3A, 4 Digital Divide, 5D, 6A, 7D, 8B,
9D, 10D

348 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
Appendix A: Table of Acronyms

Table of Acronyms

AICHR ASEAN Intergovernmental Commission on Human Rights

AIDS Acquired Immune Deficiency Syndrome
APEC Asia Pacific Economic Cooperation
ASEAN Association of South-East Asian Nations
ATCA Alien Tort Claims Act
AU African Union
CAT Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment
CEDAW Convention on the Elimination of All Forms of Discrimination Against
Women
CERD International Convention on the Elimination of All Forms of Racial
Discrimination
CIS Commonwealth of Independent States
CPT Committee for the Prevention of Torture
CRC Convention on the Rights of the Child
CRPD Convention on the Rights of Persons with Disabilities
CSCE Conference on Security and Cooperation in Europe
CSW Commission on the Status of Women
CTC Counter-Terrorism Committee
DDR Disarmament, demilitarization, and reintegration
DESA Department of Economic and Social Affairs
DRIP Declaration on the Rights of Indigenous Peoples
ECCC Extraordinary Chambers in the Courts of Cambodia
ECHR European Convention on Human Rights
ECtHR European Court of Human Rights
ECOSOC United Nations Economic and Social Council
ETA Euskadi Ta Askatasuna
EU European Union
FAO Food and Agriculture Association
FARC Revolutionary Armed Forces of Colombia
GA General Assembly of the United Nations
GDP Gross Domestic Product
HIV Human Immunodeficiency Virus

HUMAN RIGHTS | 349

HRC Human Rights Council
IACtHR Inter-American Court of Human Rights
IASC Inter-Agency Standing Committee
ICC International Criminal Court
ICCPR International Covenant on Civil and Political Rights
ICESCR International Covenant on Economic, Social and Cultural Rights
ICISS International Commission on Intervention and State Sovereignty
ICJ International Court of Justice
ICL International Criminal Law
ICRC International Committee of the Red Cross
ICRMW International Convention on the Rights of All Migrant Workers and their
Families
ICTR International Criminal Tribunal for Rwanda
ICTY International Criminal Tribunal for the Former Yugoslavia
IDD Inter-Agency Internal Displacement Division
IDP Internally Displaced Person
IHL International Humanitarian Law
ILO International Labour Organization
IMT International Military Tribunal
IMTFE International Military Tribunal for the Far East
IOM International Organization for Migration
LGBT Lesbian, Gay, Bisexual and Transgender Persons
LTTE Liberation Tigers of Tamil Eelam
MDGs Millennium Development Goals
MNC Multinational Corporation
NATO North Atlantic Treaty Organization
NGO Non-Governmental Organization
NHRI National Human Rights Institution
NIEO New International Economic Order
NSA Non-State Actor
OAS Organization of American States
OAU Organization of African Unity
OCHA Office for the Coordination of Humanitarian Affairs
OECD Organization for Economic Cooperation and Development

350 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
OHCHR Office of the High Commissioner for Human Rights
OIC Organization of the Islamic Conference
OPCAT Optional Protocol to the Convention Against Torture
OSCE Organization for Security and Cooperation in Europe
PFII Permanent Forum on Indigenous Issues
PLO Palestine Liberation Organization
POW Prisoner of War
R2P Responsibility to Protect
RUF Revolutionary United Front in Sierra Leone
SC Security Council
SCSL Special Court for Sierra Leone
SG Secretary-General of the United Nations
STL Special Tribunal for Lebanon
TNC Transnational Corporation
TRIPS Agreement on Trade-Related Aspects of Intellectual Property Rights
UDHR Universal Declaration of Human Rights
UK United Kingdom of Great Britain and Northern Ireland
UN United Nations
UN Women United Nations Entity for Gender Equality and the Empowerment of
Women
UN-Habitat United Nations Human Settlements Programme
UNAIDS Joint United Nations Programme on HIV/AIDS
UNDP United Nations Development Programme
UNESCO United Nations Educational, Scientific and Cultural Organization
UNFPA United Nations Population Fund
UNHCR United Nations High Commissioner for Refugees
UNICEF United Nations Children’s Fund
UNMAS United Nations Mine Action
UPR Universal Periodic Review
US United States of America
WHO World Health Organization
WIPO World Intellectual Property Organization
WTO World Trade Organization
WWII World War II

HUMAN RIGHTS | 351

Appendix B: List of UN Peacekeeping Operations

List of UN Peacekeeping Operations

BINUB United Nations Integrated Office in Burundi

DOMREP Mission of the Representative of the Secretary-General in the Dominican Republic
MINUGUA United Nations Verification Mission in Guatemala
MINURCA United Nations Mission in the Central African Republic
MINURCAT United Nations Mission in the Central African Republic and Chad
MINURSO* United Nations Mission for the Referendum in Western Sahara
MINUSTAH* United Nations Stabilization Mission in Haiti
MIPONUH United Nations Civilian Police Mission in Haiti
MONUA United Nations Observer Mission in Angola
MONUC United Nations Organization Mission in the Democratic Republic of the Congo
MONUSCO* United Nations Organization Stabilization Mission in the Democratic Republic
of the Congo
ONUB United Nations Operation in Burundi
ONUC United Nations Operation in the Congo

352 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
ONUCA United Nations Observer Group in Central America
ONUMOZ United Nations Operation in Mozambique
ONUSAL United Nations Observer Mission in El Salvador
UNAMA United Nations Mission in Afghanistan
UNAMIC United Nations Advance Mission in Cambodia
UNAMID* African Union/United Nations Hybrid Operation in Darfur
UNAMIR United Nations Assistance Mission for Rwanda
UNAMSIL United Nations Mission in Sierra Leone
UNASOG United Nations Aouzou Strip Observer Group
UNAVEM United Nations Angola Verification Mission
UNCRO United Nations Confidence Restoration Operation
UNDOF* United Nations Disengagement Observer Force
UNEF United Nations Emergency Force
UNFICYP* United Nations Peacekeeping Force in Cyprus
UNGOMAP United Nations Good Offices Mission in Afghanistan and Pakistan
UNIFIL* United Nations Interim Force in Lebanon
UNIIMOG United Nations Iran-Iraq Military Observer Group
UNIKOM United Nations Iraq-Kuwait Observation Mission
UNIPOM United Nations India-Pakistan Observation Mission
UNISFA* United Nations Interim Security Force in Abyei
UNMEE United Nations Mission in Ethiopia and Eritrea
UNMIBH United Nations Mission in Bosnia and Herzegovina
UNMIH United Nations Mission in Haiti
UNMIK* United Nations Interim Administration Mission in Kosovo
UNMIL* United Nations Mission in Liberia
UNMISS* United Nations Mission in the Republic of South Sudan
UNMIS* United Nations Mission in the Sudan
UNMISET United Nations Mission of Support in East Timor
UNMIT* United Nations Integrated Mission in Timor-Leste
UNMOGIP* United Nations Military Observer Group in India and Pakistan
UNMOP United Nations Mission of Observers in Prevlaka
UNMOT United Nations Mission of Observers in Tajikistan
UNOCI* United Nations Operation in Côte d’Ivoire
UNOGIL United Nations Observation Group In Lebanon
UNOMIG United Nations Observer Mission in Georgia
UNOMIL United Nations Observer Mission in Liberia
UNOMSIL United Nations Observer Mission in Sierra Leone

HUMAN RIGHTS | 353

UNOMUR United Nations Observer Mission Uganda-Rwanda
UNOSOM United Nations Operation in Somalia
UNPREDEP United Nations Preventive Deployment Force
UNPROFOR United Nations Protection Force
UNPSG United Nations Civilian Police Support Group
UNSF United Nations Security Force in West New Guinea (West Irian)
UNSMIH United Nations Support Mission in Haiti
UNTAC United Nations Transitional Authority in Cambodia
UNTAES United Nations Transitional Authority in Eastern Slavonia, Baranja,
and Western Sirmium
UNTAET United Nations Transitional Administration in East Timor
UNTAG United Nations Transition Assistance Group
UNTMIH United Nations Transition Mission in Haiti
UNTSO* United Nations Truce Supervision Organization
UNYOM United Nations Yemen Observation Mission

* Ongoing operations, as of November 2011.

354 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
End-of-Course Exam Instructions

General Information
The End-of-Course Exam is provided as a separate component of this course. It covers the material in
all the lessons of this course, including any material found in the course’s annexes and appendices. The
exam may be found in your Student Classroom at https://www.peaceopstraining.org/users/user_index.

Format of Questions
The exam consists of 50 multiple-choice questions. Each question gives the student a choice of four
answers marked A, B, C, and D, with only one of these being the correct answer.

Time Limit
There is no time limit for the exam. This allows the student to read and study the questions carefully, and
to consult the course text. Furthermore, if the student cannot complete the exam in one sitting, he or she
may save the exam and come back to it without being graded. The “Save” button is located at the bottom
of the exam, next to the “Submit my answers” button. Clicking on the “Submit my answers” button will end
the exam.

Passing Grade
To pass the exam, a score of 75 per cent or better is required. An electronic Certificate of Completion
will be awarded to those who have passed the exam. A score of less than 75 per cent is a failing grade,
and students who have received a failing grade will be provided with a second, alternate version of the
exam, which can likewise be completed without a time limit. Students who pass the second exam will be
awarded a Certificate of Completion. Those who fail the second exam will be disenrolled from the course.

HUMAN RIGHTS | 355

About the Author

Jessica C. Lawrence is currently a Ph.D. candidate at the University of Amsterdam where she participates
in the faculty research programme called “Boundaries of Law.” The programme re-examines the
established foundations of transnational law as they are being challenged by global governance and
globalization, and asks, among other core questions, the following: Is sovereignty still a valid concept
in a globalizing world in which power seems to be dispersed? and To what extent can the legal regimes
beyond the state be considered legitimate? She also conducts research in a project called “Minding Other
States’ Business: Free Trade, Fair Trade and Clean Trade in the EU.”

In 2003, she graduated from American University in Washington, D.C., earning two degrees: a BA
in International Development and a BA in Environmental Policy. In 2007, she earned her JD from the
University of Georgia School of Law in Athens, Ga.

She has held researcher/analyst posts for several organizations, including the European Environmental
Bureau, the Pew Initiative on Food and Biotechnology, the South Asia Human Rights Documentation
Centre, and the New Zealand Human Rights Commission, and served as a consultant and visiting
professor for the University of Peace in 2009–2010.

In addition to international human rights law, her areas of expertise include international trade law,
European internal market law, free movement of goods, and international environmental law.

HR1_EN.120213

356 | P E A C E O P E R AT I O N S T R A I N I N G I N S T I T U T E
 Courses at the Peace Operations Training Institute

Course Name English French Spanish

An Introduction to the UN System   
Civil–Military Coordination (CIMIC)   
Commanding UN Peacekeeping Operations   
The Conduct of Humanitarian Relief Operations   
Disarmament, Demobilization, and Reintegration (DDR)   
Ethics in Peacekeeping   
Gender Perspectives in UN Peacekeeping Operations   
The History of UN Peacekeeping: 1945 to 1987   
The History of UN Peacekeeping: 1988 to 1996   
The History of UN Peacekeeping: 1997 to 2006   
Human Rights 
Implementation of SCR 1325 (2000) in Africa 
Implementation of SCR 1325 (2000) in LAC 
International Humanitarian Law and the Law of Armed Conflict   
Logistical Support to UN Peacekeeping Operations   
Operational Logistical Support   
Advanced Topics in UN Logistics   
Mine Action   
Peacekeeping and International Conflict Resolution   
Preventing Violence Against Women   
Principles and Guidelines 
United Nations Military Observers   
United Nations Police   

The Peace Operations Training Institute is committed to bringing essential, practical knowledge
to students and is always working to expand its curriculum with the most up-to-date and relevant
information possible. POTI’s latest course list can be found at www.peaceopstraining.org, which
includes the courses’ increasing availability in Portuguese and Arabic. Visit the website regularly
to keep abreast of the latest changes to POTI’s curriculum.

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Training Institute
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