Universal Declaration of Human Rights as part of

customary international law

Treaties like the ICCPR, the ICESCR, the ECHR and the AFCHPR are
legally binding obligations undertaken  by state parties. However, Treaty
law represents one aspect of the international law making process. We
have also noted that other sources of international law include
international customary law and general prin- ciples of law. International
customary law, which binds all States, consists of two key ingredients:
State practice and the conviction that such practice amounts to law
(opinio juris) 

In the light of existing State practices it can be strongly argued that a

vast majority of the provisions of the Declaration now represent
customary inter- national law. There is overwhelming evidence of State
practice, with the requisite opinio juris, to confirm the customary
binding nature of many of the provisions of the Declaration. Such
evidence can be derived from its constant reaffirmation by the General
Assembly. According to one source, in the first twenty-one years after
its adoption, the Declaration was cited no fewer than seventy-five times
by the General Assembly. There is also a consistent referral to the
Universal Declaration in international instruments, in bilateral
agreements and multilateral human rights treaties. In the context of
multilateral human rights treaties it is important to note that the
International Covenants and three regional human rights treaties make
specific reference to the Declaration. In his consideration, Professor
Brownlie points to the Final Act of the Conference on Security and
Cooperation in Europe and the Proclamation of Tehran whereby States
express their intention to follow the principles of the Universal
Declaration on Human Rights. To this one could add the Vienna
Declaration and Programme of Action, which was adopted by a
consensus of representatives from 171 States. In addition to containing
numerous references to the Universal Declaration of Human Rights, it
emphasises that the Universal Declaration of Human Rights, which
constitutes a common standard of achievement for all peoples and all
nations, is the source of inspiration and has been the basis for the United
Nations in making advances in standard setting in the existing
international human rights instruments.

Further recognition by States of the binding nature of the Declaration

found in the replication of its provisions in their national constitutions or
in referrals to it in their constitutional documents. National and
international tribunals have also relied upon the Declaration, treating it
as a binding document.

Afterall, While endorsing the customary value of many of the rights

contained in the Declaration, at the same time some caution is
recommended. As we shall see during the course of this study, not all
rights contained in the Universal Declaration have generated a sufficient
degree of consensus to be recognised as binding in customary law. There
is debate about the legal value and content of a number of rights, in
particular of economic, social and cultural rights." Thus questions have
been raised about the legal and juridical value of such rights as the right
to rest and leisure, the right to a decent standard of living, and the right
to participate in the cultural life of the community. In the light of
divisions it is sensible to take account of the views of one leading
authority when he writes ‘it must not be assumed without more that and
any and every human right referred to [in UDHR] is part of customary
international law.’

UDHR binding states with its jus cogens character

To know this answer we at first have to know the definition of jus
cogens that it is a peremptory norm (also called jus cogens, Latin for
"compelling law") is a fundamental principle of international law which
is accepted by the international community of states as a norm from
which no derogation is ever permitted (non-derogable). These norms are
rooted in natural law principles, and any laws conflicting with it should
be considered null and void. Examples include various international
crimes; a state violates customary international law if it permits or
engages in slavery, torture, genocide, war of aggression, or crimes
against humanity.

Jus cogens and customary international law are not interchangeable. All
jus cogens are customary international law through their adoption by
states, but not all customary international laws rise to the level of
peremptory norms. States can deviate from customary international law
by enacting treaties and conflicting laws, but jus cogens are non-
derogable.
 

A number of the rights contained in the UDHR have become so firmly

established in international law that they are now treated as having a jus
cogens character. We have already noted that no specification has been
provided on the norms forming jus cogens. At the same time several of
the fundamental rights enunciated in the Declaration, such as the right to
equaliry (Article 2), right to life, liberty and security (Article 3), freedom
from slavery or servitude (Article 4), freedom from torture or cruel,
inhuman or degrading treatment or pur.ishment (Article 5), the right to a
fair trial (Article 10), the presumption of innocence and the prohibition
of retroac- tive criminal law (Article 11), represents aspects of the norm
of jus cogens. The existence of such substantial affirmation of the rights
has led many commentators to take the position that the normative
provisions of the Declaration form part of jus cogens, and thereby bind
all States. The fundamental rights of the Declaration now form part and
parcel of every human rights instrument. It is well established that it is
not possible to derogate from these rights. 

At the same time, a number of rights are arguably not even part of
customary law and categorising those as part of the jus cogens would be
inaccurate. There is significant debate on the customary position not
only on economic, social and cultural rights such as the right to sociał
security (Article 22), right to rest and leisure (Article 24), right to a
decent standard of living (Article 25), and right to participate in cul-
tural life (Article 27) but also on civil and political rights which include
the right to seek asylum (Article 14) and upon the various facets of the
right to freedom of thought, conscience and religion (Article 18).

So it is clear to us that the Universal Declaration of Human Rights has

acquired the status of jus cogens in international human rights law but
not all the rights mentioned in the Universal Declaration of Human
Rights 1948 because there are some rights which are not also customary
international law and thus have not acquired the status of jus cogens for
their nature as these are not binding on the state parties. Basically those
rights have acquired the status of jus cogens in the international human
rights law from the Universal Declaration of Human Rights, 1948 which
are fundamental in nature as they are recognised by the constitutional
instruments of the state parties. 

ICCPR and ICESCR

Difference between the two, Significance of the two.

Difference between ICCPR and ICESCR 

ICCPR ICESCR
1. ICCPR represents and protects 1. ICESCR represents and protects
the human rights of the first the human rights of ‘second
generation. generation’.

2. It explains human rights 2. It explains human rights

pertaining to cultural and political
rights (i.e. not to torture, not to
show discrimination, etc.).
pertaining to economic, social and
cultural rights (e.g. to provide
adequate housing, trade unions,
social security, medical facilities,
etc.).
3. The rights incorporated in
ICCPR are negative in character
just like the provisions in the
penal code of a municipal law.
The Indian Penal Code defines
and narrates different offences,
which are prohibited. In the
similar way ICCPR defines and
narrates certain things not
supposed to be done by the States.
4. The judicial remedies are
provided to the aggrieved persons,
in cases their civil and political
rights are violated by the State.
The aggrieved person can claim
before the Central Human Rights
Commission, Human Right Court,
State Human Right Commission
or other domestic tribunals.
5. The provisions of ICCPR are
similar to the provisions of
Fundamental Rights in
Bangladesh Constitution,
violation of which gives rise to
judicial remedies.
6. Civil and political rights just
need states not to interfere
3. The rights incorporated in
ICESCR are positive in character.
It shows the ways to the State to
implement certain programmes to
uplift the living standards of
human beings and to protect the
human culture. These are similar
to the Directive Princip’°s of state
policy (Part- Ill) of our
Constitution.
4. There is no scope of judicial
remedies. (There is no scope of
judicial remedies in case of
Directive Principles of State Policy
of our Constitution. The Court
cannot force the State to
implement the provisions of part-
IV.)
5. The provisions of ICESCR are
similar to the provisions of
Fundamental principles of State
Policy in Bangladesh Constitution,
non- implementation of which
cannot give rise to judicial
remedies.
6. ICESCR rights require high
levels of financial and human
 investment
7. Civil and political rights need a 7. Economic, social and cultural
functioning court system for their rights, like trade union freedoms,
enforcement, which means just need the state not to meddle.
investment

8. After Adoption, ICCPR came 8. After Adoption, ICESCR came

in force from 23 March 1976 in force from 3 January 1976
9. The Covenant has 173 parties 9. The Covenant has 171 parties
and six more signatories without
ratification

10. The Covenant follows the
structure of the UDHR and
ICESCR, with a preamble and
fifty-three articles, divided into
six parts
10. The Covenant follows the
structure of the UDHR and the
ICCPR, with a preamble and
thirty-one articles, divided into
five parts

11. CP  rights 11. ESC rights  were deemed  expensive and 
were  cost free required government   expenditure

Why are economic, social and cultural rights deemed

as second generation rights….?
Economic, social and cultural rights are deemed as second generation
rights because these rights carry the characteristics of second generation
rights. Second generation rights are based on establishing equal
conditions. Prior to the fall of the Berlin Wall, first and second
generation rights were considered to be divided by the responsibility
they place on governments.  First generation human rights were looked
at as being a “negative obligation,” which means that they place a
responsibility on governments to ensure that the fulfillment of those
rights is not being impeded. Where second generation human rights were
viewed as being a “positive obligation,” which means that they place a
responsibility on governments to actively ensure that those rights are in
fact fulfilled.  After the Berlin Wall fell, perspectives shifted to see
governments as having the responsibility to “respect, protect, promote
and fulfill” these rights. These are only general principles and not
specific rules or any laws. And the second generation rights are not
enforceable by the court. And the second generation rights can also be
divided into two sub-categories. The first sub-category relates to norms
of the fulfillment of basic needs, such as nutrition and healthcare.  The
second sub-category relates to norms of the fulfillment of “economic
needs.”  This includes fair wages and sufficient standards of living.

Likewise, In case of Economical, Social and Cultural rights (Right to

food, housing, clothing, freedom from hunger, right to social security,
Right to work, right to mental and physical health and right to education
etc.) are the same. These rights are only general principles which are not
enforceable by the court. These rights encompass socio-economic rights.
Economic, Social and Cultural rights are positive rights as well as
expensive and  required government   expenditure though there are some
exceptions. So it is clear to us that economic, social and cultural rights
are the second generation category rights because these rights present
the characteristics of second generation rights in it.

One of the most controversial and complex Human

Rights is right to property: 
One of the more controversial and complex human rights is the right to
property. The right is controversial because the very right which is seen
by some as central to the human rights concept is considered by others to
be an instrument for abuse, a right that protects the ‘haves’ against the
‘have-nots’. It is complex, because no other human right is subject to
more qualifications and limitations and, consequently, no other right has
resulted in more complex case-law of, for instance, the supervisory
bodies of the ECHR. It is complex also because it is generally regarded
as a civil right, and by some even as an integrity right. At the same time,
it clearly has characteristics of social rights with significant implications
for the distribution of social goods and wealth. Moreover, the right to
property has major implications for several important social and
economic rights such as the right to work, the right to enjoy the benefits
of scientific progress, the right to education and the right to adequate
housing.

In many revolutions, including the French, the Russian, the American

and the South African, property questions played a central role.
Moreover, several of the worst violations of human rights in the 20th
century were related to property rights. The collectivisation of
agricultural land in the Ukraine during the Stalin era led to large scale
famine, which claimed five to seven million lives in 1932-1933 alone.
During the ‘Great Leap Forward’ of Chairman Mao, land in China was
collectivised, and household iron utensils were gathered to be used for
collective purposes. This, too, led to famine, whereby an estimated 20
million people died of starvation between 1958 and 1962. One of the
worst violations was the removal of some three million people, on
discriminatory grounds, from their ancestral lands during the Apartheid
regime in South Africa.

It is, therefore, not surprising that this right was already the subject of
debate quite early in history. To John Locke, the right to property
belonged to the so-called natural rights such as life and liberty, which
human beings could not be deprived of. To the socialist Proudhon, on
the other hand, property was equal to theft. The question was likewise
fundamental in the treatises of Friedrich Engels, but also in the papal
encyclical letterRerum Novarum (1891). Land reform, incentives to
provide people with access to land, housing and wealth, can have
significant benefits. Successful pension schemes in Europe in the 1960s
to 1980s have had a significant impact on the distribution of wealth and
increased long-term security of the population.
Property has been defined in the case-law of both the European and the
Inter-American human rights courts. As such, the concept of property
has an autonomous meaning, often substantially different from national
legislation. It may also include rights which result from rent or lease
agreements and - under certain conditions - benefits from public
relationships, such as public pension schemes.

In today’s modern states – the EU member states, for instance - property

is considered one of the key concepts of the legal order. Property is vital
to society, since property and contracts jointly form the basis of
exchange and trade, on which the market economy is built. In parallel,
extensive case-law has been established to protect individuals against
abuse of property, while some limited legislation has been developed to
counterbalance possible imbalances caused by the accumulation of
property, and to provide additional protection for those dependent on the
property of others.

In the developed world, protection of property is, despite its complexity

and controversial nature, considered an important element in the market
economy, and a prerequisite for security of the individual. In the
developing world, property and, more specifically, land issues are
frequently sources of controversy. On the one hand, there is sometimes a
lack of protection of the owner against abuse, because of the absence of
proper registration and of judicial recourse in the case of infringement of
property rights. On the other hand, powerful property owners can
sometimes abuse their power, which can go hand in hand with large-
scale holdings.

In many less developed countries – where the industry and services

sectors are underdeveloped - there are few alternatives to land to provide
citizens with the means for a decent standard of living, as well as
security. It is therefore not surprising that land is one of the most
difficult issues in many developing countries, as often more than two-
thirds of all wealth is vested in land. Moreover, utilisation patterns of,
for example, indigenous peoples do not fit into existing property
protection systems and are therefore more susceptible to abuse.

Examples of infringements of property rights are the forcible eviction or

relocation of urban squatters who have settled in an area for a long
period; excessive administrative difficulties in the registration of land;
denial of grazing or water rights, which have existed for many
generations, but have never been formally registered; eviction of forest
dwellers for environmental reasons; and the relocation of villages for the
development of hydroelectric projects without adequate compensation.

                                                 1. STANDARDS

The protection of property is included in Article 17 UDHR: ‘Everyone

has the right to own property alone as well as in association with others.
No one shall be arbitrarily deprived of his property.’ But the ideological
debate between East and West in the 1950s and 1960s, as well as large-
scale nationalisation of banks, railways and industries in Western
Europe, led to no provision on property being incorporated into the two
main UN Covenants (ICCPR and ICESCR). The right to property is
touched on in two UN Conventions. Article 16 CEDAW sets out equal
rights of spouses to enjoyment and disposition of property and Article 15
CMW recognises the right to property and the right to adequate
compensation in case of expropriation with regard to migrant workers
and their families.

The regional human rights Conventions in Europe, America and Africa

contain property clauses. The ECHR includes the right to property in its
First Protocol (1952): ‘Every natural or legal person is entitled to the
peaceful enjoyment of his possessions’ (Article 1). This standard
qualifies the right, not only by speaking of ‘enjoyment’ rather than of
‘ownership’, but also by giving the state more powers to limit property
rights than is the case for other rights. The state may deprive an
individual of his/her possessions ‘in the public interest and subject to
conditions provided for by law’ and may limit this right ‘in accordance
with the general interest or to secure the payment of taxes or other
contributions or penalties’. In fact, a balance has to be struck between
the interests of the community, on the one hand, and the fundamental
rights of the individual, on the other. The article expressly does not
stipulate compensation in case of deprivation or expropriation. In
practice, the extensive case law, as well as standards such as the Charter
of Nice (2000), lead one to conclude that justifications for non-payment
of compensation are very unlikely to be accepted.

At the Inter-American level, the right to property is set out in Article 21

ACHR. At the African level, it is protected under Article 14 ACHPR.

Mention should also be made of the United Nations Declaration on the

Rights of Indigenous Peoples (UNGA Resolution 61/295) which sets out
that states shall, inter alia, ‘provide effective mechanisms for prevention
of, and redress for [...] any action which has the aim or effect of
dispossessing [indigenous peoples] of their lands, territories or
resources.’

In the CSCE/OSCE framework, the right to the peaceful enjoyment of

property is stipulated in the 1990 Copenhagen document (Paragraph
9.6).

                                               2. SUPERVISION

In the absence of a defined right in the ICCPR, the Human Rights

Committee has not found any complaint about property rights
admissible, unless it was related to, for instance, non-discrimination.
This is the case despite the fact that several communications, such as:
Oló Bahamonde v. Equatorial Guinea; Ackla v. Togo and Diergaardt of
Rehoboth Baster Community et al. v. Namibia showed, prima facie,
evident unjustifiable interference with property rights. The Committee
has also decided in several cases against the Czech Republic finding the
requirement of Czech citizenship and residency for restitution of
confiscated property discriminatory (see, e.g., Adam, Blazek and Marik
v. The Czech Republic).

On the basis of the European Convention, the European Commission

and the European Court have generated substantive case-law regarding
the right to property. Important findings in hundreds of cases include
that licences and ‘goodwill’ may, under specific circumstances,
constitute ‘possessions’; that fairness requires affording affected
individuals rights of appeal against governmental decisions and
compensation; and that the right to property does not encompass the
right to acquire property.

Many cases focus on deprivation and on compensation for such

deprivation or expropriation (see, e.g. Avellar Cordeiro Zagallo v.
Portugal and Korkmaz and Others v. Turkey) and failure of the state
authorities to enforce judgments establishing property rights (see, e.g.,
Lapinskaya, Kulikov, Kurkunov and Silka v. Ukraine). The European
Court has awarded compensation for unjustified limitation of property
rights (see, e.g.,Chassagnou v. France which concerned the obligation of
land-owners to allow hunting on their property). Salary arrears were held
to be property in the case of Trykhlib v. Ukraine; în Bălăucă v. Romania
the Court found that the requirement to pay tax on retirement allowances
violated the right to property. The Court has ruled that imposition of a
fine had dealt such a blow to an applicant’s financial situation that it
amounted to a disproportionate measure in relation to the legitimate aim
pursued, in violation of the right to property (Mamidakis v. Greece) and
in Mazurek v. France that discrimination against children of adulterous
relationships with regard to inheritance rights constituted a violation.
Where authorities had denied a gypsy family permission to site a
caravan on land they owned because of planning considerations, the
Court found no violation as the interference with the applicants’
peaceful enjoyment of their property was proportionate and struck a fair
balance in compliance with the requirements of the Convention
(Chapman v. The United Kingdom). Like the Human Rights Committee,
the Court has dealt with many cases arising from expropriation of
property on the territory of the former USSR, for instance, territories that
are now under Polish or German control (see, e.g., Jahn and Others v.
Germany and Broniowski v. Poland). Finally, the free circulation of
goods within the European Union has raised several issues of intellectual
and industrial property. An example is the case of Anheuser-Busch Inc.
v. Portugal. Here the Court concluded that trade mark applications have
a proprietary nature protected against unlawful expropriation under the
Convention - thus expanding the definition of property.

In the notable case of the Mayagna (Sumo) Awas Tingni Community v.

Nicaragua, the Inter-American Court clarified what the right to property
entails: ‘those material things which can be possessed, as well as any
right which may be part of a person’s patrimony; that concept includes
all movables and immovables, corporeal and incorporeal elements and
any other intangible object capable of having value’. It has found that
the protection of right to property extends to the rights of members of
the indigenous communities within the framework of communal
property. The Court also found that the right to property may lead to
positive obligations, including the obligation of the state to delimit,
demarcate and provide formal titles to lands. In this case, the land
belonged to indigenous communities, which had never registered their
ancestral land. Such failure to register cannot justify absence of
government property protection. This principle is further illustrated in
Yakye Axa Indigenous Community v. Paraguay. The Court has also
ruled that arbitrary reduction of the pensions of former public servants
constituted a violation of the right to property (Torres Benvenuto et al. v.
Peru (Five Pensioners Case)).

The African Commission has not decided many applications concerning

the right to property but found is a case against Nigeria that the
‘corollary of the combination of the provisions protecting the right to
enjoy the best attainable state of mental and physical health, the right to
property, and the protection accorded to the family forbids the wanton
destruction of shelter because when housing is destroyed, property,
health, and family life are adversely affected.’(The Social and Economic
Rights Action Centre and the Centre for Economic and Social Rights v.
Nigeria, Communication 155/96). In Malawi African Association,
Amnesty International, Ms. Sarr Diop, Union Interafricaine des Droits
de l’Homme and RADDHO, Collectif des Veuves et Ayants-droit and
Association Mauritanienne des Droits de l’Homme v. Mauritania,
Communications 54/91, 61/91, 98/93, 164/97 -196/97 and 210/98, the
Commission found that the confiscation and looting of the property of
black Mauritanians and the expropriation or destruction of their land and
houses before forcing them to go abroad constituted a violation of the
right to property.

In international co-operation the issue of property protection is

increasingly receiving attention. The fact that property protection
contributes to economic security and can stimulate growth is a
significant element in this context. Projects that may contribute to
improved protection, e.g., through titling, as well as projects that lead to
better access to effective remedies, are increasingly receiving support.
Compliance of states with positive obligations in connection with
property rights should of course be focused on the position of those who
cannot live in dignity, as a result of deprivation or the absence of
possessions.

Differences between derogatory and non derogatory

rights under the international human rights law: 

Derogatory Non Derogatory

1. Definition:  Definition: 
Derogable human rights’ may be Non-derogable human rights’
subject to any derogation in time of may not be subject to any
war or emergency.   derogation, even in time of war
or emergency. 
1. Derogable rights refer to rights Non Derogable Rights refer to
that are not absolute in nature rights that are absolute in
nature
2. Derogable rights allow states to Derogable rights do not allow
suspend part of their legal states to suspend any of their
obligation and restrict some legal obligation and restrict
rights under certain any rights under any
circumstances circumstances
3. Derogation is used to enable a Any right that is absolute is
state to respond to a serious also a non derogable right,
public emergency which meaning that it can not be
threatens the life of the nation.  suspended in a declared state
of emergency.
4. Any derogation must for a There is no option for
limited period of time, derogation in case of Non
proportionate to the emergency derogable rights. 
and non discriminatory 
5. Example:  Example: Right to life, Right
Freedom of association, Right to to be free from toture and other
marriage, equal rights in marriage, cruel, inhuman or degrading
Right to take part in the government, treatment or punishment,
Right to culture, Every person is free prohibition of slavery, slave-
to participate or form groups etc. trade and servitude etc.

 Universalism and cultural relativism 

The dilemma of international protection of human rights is the
ideological conflict of Universalism and Cultural Relativism. Simply
put, the concept of Universalism holds that each human being possesses
certain inalienable rights simply because he or she is a human,
regardless of the national background, religious or political views,
gender or age. The proponents of this concept claim that “the
international human rights like rights to equal protection, physical
security, free speech, freedom of religion and free association are and
must be the same everywhere.” [4] The concept of Universalism is based
on three fundamental jurisprudential theories- the natural law theory, the
theory of rationalism, and the theory of positivism. The roots of natural
law theory go back to ancient times. The main point of this theory is that
natural law stands above manmade positive law and defines the
eliminable human rights, which are necessary for all the nation-states.
Rationalism, a closely related concept, “is a theory of universal laws
based on a belief in the universal human capacity to reason and think
rationally.” [5] Rationalism supersedes the idea of divine origin of
natural law with the theory that each individual is endowed with certain
rights due to the universal capacity of all individuals to think rationally.
Both natural law theory and theory of rationalism consider universal
human rights not to depend on cultural diversities and specialties.
Theory of positivism demonstrates the existence of universal human
rights, noting the acceptance and ratification of human rights
instruments by the vast majority of states regardless of their cultural
background. It appears that the concept of Universalism with its
supporting theories of natural law, rationalism and positivism finds the
source of human rights in international law, rather than in individual
cultures. Human Rights are extracultural.

Cultural relativism is the assertion that human values, far from being
universal, vary a great deal according to different cultural perspectives.
[6] From my point of view one of the major drawbacks of the theory of
Cultural relativism is the perception of “culture” as something
unchanging and stable. In fact, all types of Cultural relativism, be it
Strong or Weak [7] Cultural relativism, are based on stable conception
of culture, which fails to recognize the flexibility of culture for social
changes and ideological innovations. Whereas, I strongly support the
idea that culture is an ongoing process of historical development,
adaptation and evolution. Opponents of this theory argue that Cultural
relativism can be dangerous for the effectiveness of international
protection of human rights, since the nature of the theory fundamentally
justifies human rights abuses linking to the customs and traditions of the
society. The Indian tradition of sati [8] is a bright example of human
rights violation with cultural bases. An eighteen-year-old Rajput girl
committed sati in 1987 during her husband’s funeral pyre. She was a
university student and her marriage was insisted upon by her parents.
There is no evidence whether she committed sati voluntarily or under
pressure, however this case found a large response among Rajput
society. As a sign of protest many human rights activists, both men and
women, organized marches against the tradition of sati, meanwhile many
others came out for the tradition, claiming that sati is a significant part of
their ethnic culture. They not only made the young girl as a symbol of a
devoted wife, but also erected a shrine in honor of her. The human rights
defenders and activists were branded as Western imperialists who were
superseding old Indian traditions with Western ones. Obviously, the
theory of Cultural relativism leads to the idea that the main social unit is
community, not individual. A question arises, does the community have
rights to impose its will on an individual, or does it have rights to limit
any eliminable right of an individual?

As one of the ancient nations, Armenians have their own unique cultural
traditions and scope of ethics, though our traditions are more flexible to
meet the challenges of time. I do not hesitate to underline that Armenian
traditions are quite humanistic, since they are largely inspired by the
ideology of the Armenian Apostolic Church. One of the greatest
miracles of the Armenian Apostolic Church is that there is no separate
church and separate people, our church and people together are one
whole unity, like a huge “cathedral”. And this “cathedral” carries inside
it all the human values, like conscience, kindness etc.

Investigating the concepts of Universalism and Cultural Relativism, I

came to the conclusion that in many societies or it is better to say in
many communities social relations are regulated through native
traditional norms. Indeed, rejection of international human rights may
lead to systematic abuses of human rights within the societies or
communities, still sometimes international protection of human rights
can be used for political purposes. Human rights violations sometimes
are a reason for intervention of one country’s armed forces into another
country’s territory. From this point, cultural relativism is not justified. I
justify the existence of Cultural Relativism instead. In my opinion
Cultural Relativism is a result of natural historical development, it is a
problem which couldn’t be avoided.  

Right to encounter? / Right to self Defense. Can Police

kill any person while exercising the right to self
defence ? ( Guerrero VS Colombia)
Tapos Kumar Das
CONSTITUTION as the supreme law of the land enumerates the rights
of its citizens. Rights embodied in a written constitution can be
categorised as absolute or restricted, immediate or deferred, subject to
progressive realisation. Right to life is such an undeniable right that all
the written constitutions so far the world has witnessed, invariably
guaranteed it as immediate and absolute right and restricted its
deprivation except with the due course of law. Though the will of
Bangladeshi people has been echoed in resemblance in article 32 of the
constitution, right to life has become blurred due to frequent arbitrary
deprivation of life by the law enforcement agencies.

In our country the trend of extra-judicial killing by the law enforcers has
received a mixed appreciation. On one side, the apparent failure of the
criminal administration of justice to ensure punishment of the habitual
offenders stimulating popular support for the raft measure like extra-
judicial killing by the law enforcers. On the other side, the believers of
rule of law realising the far reaching risk of lawlessness opposing the
idea of deprivation of life in absence of due process. In the backdrop of
huge outcry against the arbitrary deprivation of life by the law enforcers,
this articulation has ventured to come across the legal basis for the
actions and reasoning led by their spokesman soon after each and every
incident.

Curiously of late, the law enforcement agencies of Bangladesh have

started to term the extra-judicial killing as 'encounter' in place of
'crossfire'. It is doubtful whether they are using it deliberately or not.
But, certainly the term encounter has an implication to legitimise the
deprivation of life by the law enforcers.

The term 'extra judicial killing' has been defined by no statute in

Bangladesh. It is the killing without the permission of a court or legal
authority, generally carried out by a state apparatus needing to get rid
itself of a dangerously disruptive situation. Extra-judicial killing is
generally perpetrated in the name of crossfire or encounter. Killing in
crossfire takes place when a person falls into line of fire of two opposing
groups namely, police and miscreants. Police encounter is the term used
to describe the death of an individual who was in custody at the time of
his/her encounter and died of cross fire as he/she had tried to escape the
legal custody. It denotes an event where an individual has been killed by
any law enforcement agency while exercising the right of self-defence to
retaliate an attack on them.

Duties of the law enforcement agencies are to serve mankind, to

safeguard lives and property, to protect the innocent against deception
and to respect constitutional rights of all man to life, liberty, equality and
justice. Instead, our law enforcement agencies are charged with the
blame of extra-judicial killing. However, in each and every incident of
killing the law enforcement agencies submit an explanation to legitimise
their action in the name of self-defence. Their statements lack credibility
as the descriptions are alike with simple modification of name, place and
date.

Law enforcers have no right to self-defence?

With an open mind, the claim for self-defence by the law enforcers can
be assumed to be true. Now, the issue to be decided is whether killing is
justified in exercise of the right to self-defence. Section-96 of the Penal
Code states that an act done in exercise of the right of self-defence is not
an offence. Section-97 of the same provides every person with a right to
defend his own body, and the body of any other person against any
offence affecting the human body. Right of self-defence is based mainly
on the principle that it is the first duty of a man to help him-self. As the
right of self defence is the statutory right of every individual, members
of the law enforcement agencies are not denied of this right, because
Article-27 of the Bangladesh Constitution recognises all citizens as
equal before law and are entitled to equal protection of law.

However, as per section-99 of the Penal Code the Right of self-defence

in no case extends to the inflicting of more harm than it is necessary to
inflict for the purpose of defence. So, the law enforcers cannot use
firearms for self-defence unless they face the dilemma of firearms from
the part of criminals. In addition, section-153 of the Police Regulation of
Bengal empowers the police to use firearms for self-protection and
protection of property, for foiling illegal gathering and, in some cases,
for making arrests. Thus, in exercise of the right to self-defence
encounter killing by the law enforcers cannot be termed to be illegal.

Exception of right to life

Though the right to life is the supreme right of every human being, it is
subject to the exceptions pointed out by national and international laws.
Right to self-defence is one such exception recognized by the Penal
Code. Derogation from right to life has also been authorised by most
human rights instruments including the International Covenant on Civil
and Political Rights (ICCPR). 'The Human Rights Committee (HRC)
established under the ICCPR, is entrusted with the surveillance of
compliance of civil and political rights by the member States and to
receive individual complaints from their citizens in case of gross and
persistent violation of civil or political rights. Guerrero v. Colombia
(1982; 1 Selected Decisions of H.R.C. 112) is one such case where a
complaint was made for violation of right to life by the police.
The case revealed that the Colombian Police raided a house in which it
was thought that a kidnap victim was being detained. The victim was not
found, but the police hid in the house awaiting the arrival of the
suspected kidnapers. Seven persons, who were never proved to have
been connected with the kidnappers, were shot without warning as they
arrived at intervals at the house. The police action was justified on the
basis of the Legislative Decree No. 0070 which provided the police with
a defence to any criminal charge arising out of acts committed in the
course of operations planned with the object of preventing and curbing
kidnapping.

Views of the HRC

In Guerrero, it is evident from the fact that seven persons lost their lives
as a result of the deliberate action of the police, that the deprivation of
life was intentional. Moreover, the police action was apparently taken
without warning to the victims and without giving them any opportunity
to surrender to the police patrol or to offer any explanation of their
presence or intentions. There is no evidence that the action of the police
was necessary to effect the arrest or to prevent the escape of the persons
concerned. Moreover, the victims were no more than suspects of the
kidnapping which had occurred some days earlier and their killing by the
police deprived them of all the protections of due process of law laid
down by the ICCPR.

In Guerrero the HRC gave prior magnitude on the right to life and
strictly prohibited arbitrary deprivation of life except in three
exceptional cases, namely, i) self-defence, ii) to give effect to lawful
arrest, and iii) to prevent escape from lawful custody.

Article 2 of the European Convention of Human Rights also provides

that deprivation of life does not constitute extra judicial killing in three
exceptional cases , namely- i) in defence of any person from unlawful
violence, ii) in order to effect a lawful arrest or to prevent the escape of a
person lawfully detained, iii) in action lawfully taken for the purpose of
foiling a riot or insurrection;
Burden of Proof
In Abeam et al v. Surinam (1983) the HRC viewed that the burden of
proving that the killing fell into an exempted category is on the State,
when law enforcement agencies are responsible for killing. In
Bangladesh section-105 of the Evidence Act, 1872 also provides that,
the burden of proving existence of circumstances which bring the case of
an accused within any of the general or special exceptions in the Code is
upon the accused and the Court shall presume the absence of such
circumstances. Thus, in case of an encounter killing the law enforcement
agencies have to satisfy the existence of the circumstances justifying the
exercise of right of self-defence. They have to satisfy the gravity of
urgency compelling them to use firearms resulting in the death of the
accused.

Independent investigation
In the backdrop of the image crisis of the law enforcement agencies, the
home ministry has made departmental investigations in many incidents
of encounter killing with the findings of no irregularity. As a man cannot
be a judge of his own cause, an investigation committee composed of the
members of the home ministry and police will never be trustworthy. An
independent investigation committee free from police and home
ministry, if constituted as per the recent direction of the High Court
Division will be an acceptable solution to sweep the stigma of extra-
judicial killing.

The writer is Lecturer, Department of Law, University of Rajshahi.

Right to Life(1-27 Page) + Right to religious

freedom(171-201) = From Sheet 1 
Human Rights Enforcement Nationally and
internationally= Sheet 2 + Internet  

Enforcement of Human Rights at International and

National Level

Human Rights are essentially a product of Democracy. Man’s struggle

against tyranny and all forms of oppressions has been long and never-
ending. Tyranny has, from time to time, emerged in different forms and
methods. Man has been always trying to establish his right,
time and again; sometimes there has been a depressing failure and the
assault on human rights continues. So does man’s struggle against
tyranny. During this period, the actual concept of human rights and their
enforcement began taking shape in the west only after the renaissance
and the process of industrialisation. From that period onwards the
recognition of human rights took its roots in other parts of the world.
However, then came the era of colonialism where the colonial masters of
Asia and Africa and Western nations gruesomely maltreated people. The
history of colonialism is full of instances of massacres, ruthless
oppressions, killings and heinous crimes. But it was after the end two
World Wars and the formation of the United Nations in 1945 and its
various covenants that the enforcement of human rights took up a right
beginning. There is currently no international court to administer
international human rights law, however, quasi-judicial bodies exist
under some UN treaties. The International Criminal Court (ICC) has
jurisdiction over the crime of genocide, war crimes and crimes against
humanity. While the European Court of Human Rights, and the Inter-
American Court of Human Rights enforce regional human rights law.
Although these same international bodies also hold jurisdiction over
cases regarding international humanitarian law, it is crucial to recognize
that the two frameworks constitute distinctly different legal regimes.ii
The United Nations Human Rights Bodies do have some quasi legal
enforcement mechanisms. These include the Treaty Bodies attached to
the current seven active treaties, and the Human Rights Council
complaints procedures.iii The enforcement of international human rights
law is the responsibility of the Nation State, and it is the primary
responsibility of the State to make human rights a reality. In practice,
many human rights are very difficult to legally enforce due to the
absence of consensus on the application of certain rights, the lack of
relevant national legislation or of bodies empowered to take legal action
to enforce them.iv This paper is an attempt to discuss the various facets
of human rights, their legal, social political and economic aspects of
protection and enforcement at International as well at National levels.

Evolution of Human Rights:

After the end of World War II, the nations of the world came together
and realised that human rights are extremely important and that they
must be enshrined in a particular document. Accordingly, on
10/12/1948, the Universal Declaration of Human Rights was accepted
and adopted by the United Nations. It is the basic Universal Document
of human rights today. It consists of rights such as the civil and political
rights and also social and economic rights. 

The International Protection and Enforcement of Human

Rights: 
For the protection and enforcement of human rights and fundamental
freedoms at global level, special bodies have been established by the UN
as per the International Conventions. These bodies monitor by ensuring
that the protection and enforcement of human rights and fundamental
freedoms is carried out as per the provisions of all the international
conventions and protocols relating thereto. These bodies are: (a) Human
Rights Committee; (b) The Group of Three Vii; (c) The Committee on
Economic, Social and Cultural Rights; (d) The Committee on the
Elimination of Racial Discrimination; (e) The Committee on the
Elimination of Discrimination against women; (f) The Committee
against Torture; and (g) The Committee on the Right of the Child. These
International Human Rights bodies supervise the enforcement of the
relevant International Human Rights Convention by reviewing the
information received from all reliable sources including, Reports from
State Parties, Inter-Governmental and Non-Government Organisations
and the communications alleging violation of human rights received
from or on behalf of victims of such violations. Besides, s uch procedure
as of good offices and urgent actions developed to meet the
exigencies.viii In addition to these bodies, even UN Special agencies
such as the United Nations Educational, Scientific and Cultural
Organisations (UNESCO) and the International Labour Organisation
(ILO) have developed their own system of supervision. But, it is the
overall responsibility of the Commission on Human Rights to consider
the question of violations of Human Rights and Fundamental Freedoms
in all parts of the world. The Commission also undertakes actions on the
situation of Human Rights in different parts of the world by appointing
the Specialised Reporteurs and establishing the Working Groups. 
Enforcement of Civil and Political Rights: 
Free human beings enjoy 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 right, as well as cultural
rights.x Article 28xi provide for the establishment of a Human Rights
Committee which was duly established in 1977 to monitor the
implementation of the above covenant. The principal function of the
Human Rights under this covenant is to study reports on the measures
State Parties have adopted to give effect to the rights recognized in the
covenant and the progress made in the enjoyment of those rights.xii It
deals with formulating and transmitting to the States Parties such general
comments as it may consider appropriate.xiii Similarly, it also entertains
and examines inter-state communication on the subject-matter of
Human Rights violations. The Human Rights Committee is also
empowered under the Optional Protocol to the International Covenant on
Civil and Political Rights to receive and consider communications from
individuals claiming to be victims of any Human Rights violations set
forth in the covenant provided he has exhausted all available domestic
remedies.xiv

Enforcement of Economic, Social and Cultural Rights:

The Covenant on Economic, Social and Cultural Rights also has
established a Committee to monitor the implementation of the provisions
of the relevant International covenant in all the State Parties. The main
function of this committee is to examine the reports submitted by the
State Parties on the measures adopted by them and the progress made in
achieving the rights contained in the International Covenant on
Economic, Social and Cultural Right. A five member working will be
appointed which meets to study the report in order to identify the points
which may be discussed with the representatives of the State Parties.
The NonGovernmental Organisations (NGOs) are also authorised by the
Economic and Social Council to submit statement to contribute towards
the realisation of the rights under the present covenant.xv The
Committee then prepares a summary of these considerations and
submits it to the Economic and Social Council together with its own
suggestions and recommendations of general nature.
Human Rights Protection and Enforcement Mechanism –
Global Scenario: 
There is currently no international court to administer international
human rights law, However, quasi-judicial bodies exist under some UN
treaties. The International Criminal Court (ICC) has jurisdiction over the
crime of genocide, war crimes and crimes against humanity. While the
European Court of Human Rights, and the Inter-American Court of
Human Rights enforce regional human rights law. Although these same
international bodies also hold jurisdiction over cases regarding
international humanitarian law, it is crucial to recognize that The two
frameworks constitute distinctly different legal regimes.xvii The United
Nations Human Rights Bodies do have some quasi legal enforcement
mechanisms. These include the Treaty Bodies attached to the current
seven active treaties.xviii The enforcement of international human rights
law is the responsibility of the Nation State, and it is the primary
responsibility of the State to make human rights a reality. In practice,
many human rights are very difficult to legally enforce due to the
absence of consensus on the application of certain rights, the lack of
relevant national legislation or of bodies empowered to take legal action
to enforce them. 

Universal Jurisdiction and Human Rights Violation:

Universal jurisdiction is a controversial principle in international law
whereby states claim criminal jurisdiction over persons whose alleged
crimes were committed outside the boundaries of the prosecuting state,
regardless of nationality, country of residence, or any other relation with
the prosecuting country. The state backs its claim on the grounds that a
crime committed is considered a crime against all, which any state is
authorised to punish. The concept of universal jurisdiction is therefore
closely linked to the idea that certain international norms are owed to the
entire world community. In 1993 Belgium passed a law of universal
jurisdiction to give its courts jurisdiction over crimes against humanity
in other countries, and in 1998 Augusto Pinochet was arrested in London
following an indictment by Spanish judge Baltasar Garzón under the
universal jurisdiction principle.xix The principle is supported by
Amnesty International and other human rights organisations as they
believe certain crimes pose a threat to the international community as a
whole and the community has a moral duty to act, but others, including
Henry Kissinger argue that "widespread agreement that human rights
violations and crimes against humanity must be prosecuted has hindered
active consideration of the proper role of international courts.

Mechanisms for Implementation of Human Rights: A

Critical Analysis in Bangladesh Perspective
Abstract: 
The concept of human rights is not new but the implementation
mechanisms of human rights at national, regional and international level
remain quite newer than the concept. The paper examines the
implementation mechanisms of the international human rights regime on
governments‟ human rights practices. The paper put forward an
explanation that highlights a “paradox of empty promises” by the
governments in implementing human rights. The core argument of the 
authors is that the universal institutionalization of human rights has
created an international context in which governments often ratify
human rights treaties as a matter of window dressing, thoroughly
decoupling guiding principle from practice and at times exacerbating
off-putting human rights practices, but the embryonic global legitimacy
of human rights exerts independent universal civil society effects that
perk up states‟ actual human rights practices. Keywords: Human right,
Bangladesh, international, implementation, violation, mechanism.

Introduction

Human rights are said to be the inherent, universal, inalienable and

indivisible rights to which we all are equally entitled without any
discrimination as to race, religion, nationality, color, gender, language,
place of birth or any other status. These rights are also called the
interrelated, interdependent and self-evident. As a human being, it is the
duty of every person to know what human rights are. What rights s/he
belongs to? And how can these rights be enjoyed without any
obstruction? At the same time it is the obligation of every governmental
body to ensure the effective implementation of these rights so that no
member of the human family becomes deprived of enjoying these and
exposed to the consequences ensuing from the violation of any of these
rights. Bangladesh is a party to a number of major international human
rights and humanitarian law treaties, albeit with important reservations
to some of them. But the implementation of these human rights remains
a far cry due to its ineffective implementation mechanism. This
increasing gap between the different tenure of governments of
Bangladesh proclivity to join with the modern human rights regime and
to bring their human rights practice into compliance with that regime
which challenges the effectiveness of international law and questions the
legitimacy of its legal commitments to protect the lives of its citizens.
Scholars of international relations, particularly within the realist and
neoliberal traditions, expect this compliance gap between states‟
commitment to international law and states‟ practices. The main aim of
this paper is to focus and analyze how far the implementation
mechanisms of human rights in Bangladesh are sound. This paper
intends to focus on the significance of increasing the respect and
observance of human rights and fundamental freedoms for Bangladesh
And the overall development of human beings.

Human Right: What Is It?

The simple meaning of the term „right‟ concerns that which a person
has just claimed, or that which belongs to a person by law, privilege,
tradition or nature. When we talk of human rights, we are talking of a
concept that draws substantially from what we traditionally refer to as
the natural rights. Human rights thus came to be evolved as those of the
natural rights which are basic to the very existence and growth of a
human being and which every civilized society would like to ensure into
them, albeit its own larger interest (Sinha, 2014, p. 1). The true pioneer
of human rights was the idea of natural rights which appeared as part of
the medieval natural law tradition that became renowned during the
enlightenment with the philosophers(e.g., Locke, Hutcheson and
Burlamaqui) which featured considerably in the political discourse of the
American and French Revolution. Thomas Paine for the first time used
the term „human rights‟ in the English translation of the French
Declaration of Rights of Men and of the Citizen, that was adopted by the
National Assembly of France in 1789 (Mondol and Mondol, 2006, p.
29). The idea of human right is the heart of international law that 
represents the fundamental values common to all cultures, and must be
respected by all countries throughout the world. The term „human
rights‟ refers to a wide range of inherent and inalienable rights, which
all individuals have, irrespective of their race, color, sex, language,
political or other opinion, birth or other status (Khair, 1997, p. 69).
According to the Encyclopedia Britannica, human rights are the rights
that belong to an individual or group of individuals simply for being
human, or as a consequence of inherent human vulnerability, or because
they are requisite to the possibility of a just society (Weston, 2014, p.
26). Human rights are concerned with the dignity and self-esteem of the
individual that are essential for securing personal dignity and promoting
human community (Aziz, 1978, p. 1). Henkin in an article describes this
trait in the following words:“To call them human rights suggests that
they are due to every human being in every society. They do not differ
with geography or history, culture or ideology, political or economic
system or stage of development. They do not depend on gender or race,
class or status. To call them „rights‟ implies that they are claims „as of
right‟ not merely appeals to grace, or charity or brotherhood or love;
they need to be earned or deserved. They are more than aspirations or
assertions of „the good‟ but claims of entitlement and corresponding
obligation in some political order under applicable law, if only in a
moral order under a moral law” (Henkin, 1981, p. 54).Human rights are
fundamental to our nature except which we cannot expose ourselves as
human beings and it enables us to develop and exercise our human
attributes and physical, psychological and spiritual qualities (Hossain,
2014, p. 75). They represent the minimal moral standards for human
society (Abram, 1967, p. 67). Human rights are distinct from other rights
in two aspects: (1) human rights cannot be acquired, transferred or
disposed of by any act or incident and as such, they inhere universally in
all human beings by virtue of their humanity alone; and (2) their primary
correlative duties rest upon public authorities of states and not on the
individuals (Sieghart, 1984, p. 17). Human rights are the moral norms
that explicate certain standards of human behavior, and are protected as
legal rights in domestic and international law (Nickel, et. al., 2013, p.
118). Human rights exist to stabilize the human from any kind of
deprivation with a legal framework (Alam, 2011, p. 74). The notion of
human rights has been criticized as a Western construct with little or no
relevance elsewhere. Gradually this challenge has come to be
understood not as requiring the abandoning of universality but as calling
for cultural sensitivity and dialogue (Almqvist, 2012, p. 94).
4
Important Features of Human Rights: Five-Point 
Intersection
Human rights were called rights of man in the past, it means, in general
sense, those rights which are inherent and inalienable in the nature of
human beings and are indispensable for the expression of humanity
without which no one can live as a human being (Mondol and Mondol,
2006, p. 31). Inherence and inalienability are two vital exclusivities of
human rights that have made it clearly distinct from the general rights
(Sieghart, 1983, p. 1). Human rights have the following unique features:

1. Human rights are inherent in every human being simply by virtue of

being a “member of the human family”. Upendra (2006, p. 231)
opinesthat human rights are inherent since they are inhere universally in
all human beings throughout their lives in virtue of their humanity.
Human rights are inherent as all human beings claim their inherent
human rights by virtue of the common humanity (Faruque, 2012, p. 20).

2. Human rights are also universal rights. These are those universal
rights which are essential to all human beings entirely because of being
human and it is immaterial where they live. These rights are
fundamental to our existence as human beings and cut across all national
and political frontiers which derive in the equal rights and dignity of all
human beings and simultaneously aim at protecting it. Human rights do
not differ with geography, or history, culture or ideology, political or
economic system, or stage of societal development (Henkin, 1999, p.
122). The normative presumption on universality enshrined in the
UDHR that “All human beings are born free and equal in dignity and
rights” (UDHR, 1948, Article 1) is treated as a binding law in the
international human rights treaties of the UN.
3. Human rights are inalienable as they cannot be transferred, forfeited,
or waived. Human rights are usually realized as the basic inalienable
legal guarantees to which a person is inherently entitled simply as s/he is
a human being (Sepulveda and et. al., 2004, p. 55). Inalienable nature of
human rights refers to human dignity as founding values upon which
human rights are based (Lee, 2008, p. 3). 

4. The human rights are indivisible, i.e., all human rights should be
enjoyed by all people at all times and that no one set of rights can be
enjoyed at the expense of others. It also refers to the fact that all human
rights have equal status, and cannot be categorized in a hierarchical
order. 

5. Human rights are self-evident in nature. Self-evident nature of these

rights can only be grasped by reflection on the nature of a person as a
person-namely as a rational, autonomous, emotional, imaginative and
creative being. Implementation Mechanism: Meaning and Definition
Through an implementation mechanism is any short of obligation,
procedure, or process recognized or established by a treaty that is
designed to motivate or to promote compliance, whether such
motivations are in the form of avoiding shame or other, more concrete
results. Saunders opines that by “enforcement mechanisms,” I mean, any
type of obligation, procedure, or process established by a treaty that is
designed to promote or incentivize compliance, whether such incentives
are in the form of avoiding shame or other, more tangible consequences
(Saunders, 2012, p. 12). Implementation entails a group of activities,
which include primarily activities to improve compliance by the states
themselves, e.g., enacting national laws or administrative practices to
comply with human rights standards, strengthening the judiciary,
establishing national human rights institutions, improving minimum
health standards, and participating in the governance. Before the birth of
the UN there were no specific international provisions with regard to the
protection and promotion of human rights though there were only
national and regional instruments for their protection (Faiz-ud-din, 2011,
p. 7). Since 1948, the UN has created numerous treaties, covenants,
principles, declarations, protocols and different mechanisms concerning
the protection and promotion of human rights to monitor the respect and
observance of states towards their international obligations.
Implementation of the rights is the obligation and sovereign right of each
state itself (Henderson, 2005, p. 8). The human rights treaties are legally
binding and the state parties to these treaties are responsible for their
implementation. Thus, the state and its agencies are called “duty
bearers”. States are the main actors within the arena of international law
that have the primary obligation to implement human rights and this
obligation has three aspects: to respect, protect and fulfill human rights.
This tripartite typology was introduced by Shue (1996, p. 52) in his book
“Basic Rights: Subsistence, Affluence and US Foreign Policy” and then
developed by Eide (1987, p. 68). 

Human Rights: Implementation Mechanism 

The implementation mechanism of human rights is divisible into three
broad categories, e.g., international, regional and national (Noman,
2008, p. 66). These mechanisms are set up by specific sources of
international law, particularly treaties which define the relevant
substantive human rights obligations (Milanovic, 2013, p. 210). The
international mechanism under the UN alone is not enough to protect
human rights throughout the world; rather regional and national human
rights mechanisms have proven to be more effective and useful in
protecting and promoting human rights, as they are not only
complementary to the UN system, but also reflect the regional
particularities (Marie, 2003, p. 32). Among these three mechanisms, the
national one is considered to be more fruitful and effective as it is
needless for a victim of violation of human rights to seek the
international or regional protection if that person gets the proper remedy
under the domestic protection system through exhausting all the local
remedies in his home country. The international implementation
mechanism mainly depends upon different charter-based bodies and
treaty-bodies functioning under the supervision of the UN. Conversely,
the national mechanism relies on the supreme law, domestic legislations,
independent judiciary, right-based institutional framework and effective
harmonization among the three organs of the government, i.e., the
executive, legislature and judiciary. Among these three vital organs of
the government, the executive is found to be the most violator of human
rights while the judiciary is considered to be acting as the protector of
human rights through judicial activism and review (Perelmen, 1982, p.
119). Despite the emergence of numerous human rights treaties, treaty-
based and charter-based mechanisms, monitoring bodies under these
mechanisms and various reforms in the charter-based bodies of the UN,
gross human rights violations remain uncontrolled in different parts of
the current world. However, human rights can be implemented mainly in
the following three spheres:

Implementation Mechanism of Human Rights:

Bangladesh Perspective
The domestic implementation of human rights court rulings is an
especially demanding and obtrusive kind of state observance of
international norms. It involves the efforts of national authorities to
redress detected violations and to bring existing laws and practices in
line with the underlying standards and principles (Anagnostou and
Mungiu, 2014, p. 52). It is a multi-faceted and inherently political
process that involves different national institutions and actors -executive,
legislative, judicial, as well as societal - with divergent preferences and
priorities, who may be in conflict over whether and how to implement
human rights rulings (Hillebrecht, 2012, p. 959).In this process, the
violating states, including established democracies, display various
forms and degrees of compliance with international norms and judicial
rulings, raising significant questions about the factors accounting for
such differences (Koh, 1999, p. 66). Governments are principally
responsible for implementing human rights at the national level (Wiston
House, 2014, p. 7). People have always been struggling for the
implementation of their rights against the government since the
emergence of the state, though the state is the creation of the people
themselves (Haque, 2006, p. 13). The definition of human rights
presupposes that they should be protected by appropriate and effective
implementation mechanisms at national level. The domestic human
rights protection mechanism also relies upon the access to justice and
effective remedies for human rights violations (Akkas, 2003, p. 64). The
human right under the national sphere inter alia can be implemented or
enforced in the following manners: 
1. Implementation of Human Rights under the Bangladesh 
Constitution
A mere declaration or insertion of some human rights as fundamental
rights in the constitution of a country is of no value unless there is the
existence of any fruitful, easy and effective machinery in it. In the case
of Saiyyid Abu A‟la Moudoodi and Others v. Federation of Pakistan
(1964 PLD (SC) 673), Justice Habibur Rahman observed as follows:
“The basic principles‟ underlying a declaration of fundamental rights in
a constitution is that it must be capable of being enforced not only
against the executive but also against the legislature by judicial
process.”The Constitution of Bangladesh contains provisions regarding
human rights in its three different parts including the preamble. The
human rights contained in part II are not judicially enforceable, whereas,
the human rights enshrined in part III are judicially enforceable. In
Bangladesh, the national protection system can be inferred from its
constitutional commitments from the fundamental rights incorporated in
Part III of the Constitution, which are judicially enforceable by the High
Court Division (HCD) under Article 102 of the Constitution. The
significance of Part III of the Constitution is that it just does not
incorporate the basic human rights of civil and political nature; rather it
also guarantees as a fundamental right, a mechanism for establishment
of the same through judicial intervention. The duties of the state as to
human rights recognized as fundamental rights are immediately
enforceable by the individuals. The HCD has the power under article
102(1) of the constitution to pass necessary orders to enforce
fundamental rights and under article 44(1) the right to move the HCD
under article 102(1) is itself a fundamental right (Islam, 2002). Articles
44(1) and 102(1) provide that individuals who feel aggrieved can move
to the HCD for enforcement of any of their fundamental rights
guaranteed in the constitution. It is not discretionary with the HCD to
grant relief under article 102(1); rather once it finds that a fundamental
right has been violated, it is under constitutional obligation to grant the
necessary relief (Kochuni v. Madras, AIR, 1959 (SC) 725). 

2. Implementation through Public Interest Litigation (PIL) 

Public Interest Litigation which is intensely connected to human rights

and rule of law means litigation filled in a competent court of law for the
protection of public interest and human rights. It has been construed by
the judges to regard the interest of the public at large (Ramlogan, 2010,
p. 437). PIL is one of the significant strategies of judicial activism,
which is now treated as an integral part of the judicial process in the
South Asian region (Bhagwati, 1990, p. 531). It is a means of protecting
the collective rights of under-privileged groups of people and is now a
well accepted avenue of judicial activism(Cooper, 1998, p. 361). In
Bangladesh, PIL is an effective tool for protecting human rights under a
simplified complaint system which has entered into the legal system for
the first time in the case Kazi Mukhlesur Rahman v. Bangladesh (26
DLR (SC) 44). It is a good contribution of the Judiciary to protect
human rights for the people even in a circumstance in which the victim
has no means to go before the Court (43 DLR (AD) 126). PIL is a savior
of various human rights, e.g., civil rights, political rights, environmental
rights, children and women‟s rights that has developed a new
jurisprudence of accountability of the state for constitutional and legal
violations, adversely affecting the rights and interests of the weaker
sections in the community (Talukder and Alam, 2011, p. 47). Foster and
Jivan opine that different PIL decisions in different jurisdictions reveal 
how courts have given impetus to the protection and promotion of
human rights, by expanding the meaning of fundamental right to life,
liberty and equality (Forster and Jivan, 2008, p. 33). 

3. Enacting National Laws in Conformity with International 

Instruments
The governments of different States can implement the human rights of
their individuals through enacting domestic legislations in conformity
with different international and regional human rights instruments. The
national protection of human rights entails the state to enact any law
according to the principles enunciated in the UN Charter, UDHR and
other global human rights instruments depending upon the attitude,
culture and practice of people in government and socio-economic
infrastructure of a particular state (Ramcharan, 2009, p. 77). Though
Bangladesh did not acquire its membership of the UN until 1974, the
International Bill of Human Rights (comprising the UN Charter, UDHR,
ICCPR and ICESCR along with two Optional Protocols to the ICCPR)
profoundly influenced the drafting of the Constitution of Bangladesh.
The national courts can take into account the provisions of the Bill as an
aid to the legal interpretation of fundamental rights as enumerated in our
Constitution. The constitution of Bangladesh has specifically
acknowledged the principle of respect for international law as a
fundamental principle of state policy that is enunciated in article 25
which provides that the state shall base its international relations on the
principles of respect for international law and the principles enunciated
in the UN Charter, 1945 (Article, 25). The insertion of this principle in
the national constitution is an indirect compromise regarding state
sovereignty. Not only that, on the basis of this constitutional mandate,
the courts of Bangladesh had tested the validity of certain governmental
actions concerning international relations in the light of the UN Charter,
1945 (Haque, 2011, p. 21). 
4. Ratification/Accession to International Human Rights 
Instruments
The government of a particular state may implement the human rights
domestically through the ratification or accession to different regional or
global human rights instruments as well as taking the obligations under
these instruments as its domestic legal obligation. Bangladesh has
adhere some international humanitarian treaties including Geneva
Conventions I, II, III, IV 1949 (adhere in 04.04.1972), Additional
Protocol I 1977 (adhere in 08.09.1980), Hague Convention 1954 (adhere
in 23.06.06), Hague Protocol 1954 (adhere in 23.06.06), ENMOD
Convention 1976 (adhere in 03.10.79). Moreover, Bangladesh signed
some international human rights laws. So far, as the provision of legal
assistance in paragraph 3(d) of Article 14 of ICCPR 1966 is concerned, a
person charged with criminal offences is statutorily entitled to legal
assistance if he does not have the means to procure such assistance. The
Government of the People‟s Republic of Bangladesh, notwithstanding
its acceptance of the principle of compensation for miscarriage of
justice, as stipulated in Article 14, paragraph 6, is not in a position to
guarantee a comprehensive implementation of this provision for the time
being. However, the aggrieved has the right to realise compensation for
miscarriage of justice by separate proceedings and in some cases, the
court suo moto grants compensation to victims of miscarriage of justice.
Bangladesh, however, intends to ensure full implementation of this
provision in the near future.In accordance with Article 3 (2) of [the
Optional Protocol], CRC 1990, the Government of the People‟s
Republic of Bangladesh declares that the minimum age at which it
permits voluntary recruitment into its national Armed Forces is sixteen
years for non commissioned soldiers and seventeen years for
commissioned officers, with informed consent of parents or legal
guardian, without any exception. The Government of the People‟s
Republic of Bangladesh further provides hereunder a description of the
safeguards it has adopted to ensure that such recruitment is not forced or
coerced. The process of recruitment in the national Armed Forces is
initiated through advertisement in the national press and the media for
officers and other ranks without exception. The first induction of new
recruits is conducted invariably in a public place such as a national park,
school ground or a similar place. Public participation is welcomed in
such. In Bangladesh, judicial invocation of human rights norms is also 
increasingly obtaining ground as an instrument of filling the gaps in
domestic law on human rights norms as well as an interpretative tool of
domestic laws or fundamental rights under the constitution. Bangladesh
has been a member of the UN since 1974, and has already ratified all the
core international human rights instruments (Khan, 2012, p. 20). It has
also ratified the Optional Protocols to the Convention on the Rights of
the Childs 1989, Convention on the Rights of Persons with Disabilities
and the ILO Conventions (Karim and Theunissen, 2011, p. 44). Articles
145 and 145A of our constitution deal with the provisions about the
making of contracts and deeds and the formalities regarding
international treaties though they are totally silent regarding the
application of such treaties in domestic law. Under article 145(1), the
power to make any contract or deed on behalf of the state is vested in the
executive authority of the state, and any such contract or deed shall be
expressed to be made by the President and shall be executed on behalf of
the President by such person and in such manner as he may direct or 
authorizes.
5. Application of International Human Rights Law in Domestic 
Courts

A state can also implement the human rights within its territory by
applying the international human rights law in its domestic courts
though state practice in domestic application of this law varies greatly.
Under international law there are two distinct theories regarding the
status or application of international law in the domestic arena: monism
and dualism. „Monism‟ reveals the notion that global law need not be
included into the domestic legal system. When a monist state becomes
the party of a particular treaty, it automatically becomes a part of the
domestic laws. According to the monist theory, international and
national law are concomitant aspects of the one general system-law in
general (Shearer, 1994, p. 69). In case of conflict between these two,
„international law is said to prevail‟(Dixon, 2007, p. 34). On the other
hand, dualism indicated that international and national legal rule is
separate entities, i.e., strict distinction is maintained between these two
laws with regard to their enforcement. Bangladesh maintains the
dualistic view following the UK, meaning that the provisions of global
instruments are not directly enforceable in domestic courts unless
ratified and incorporated into the domestic law by recognized means
(Alam, 2007, p. 14). The general practice of Bangladesh is that
international treaties do not automatically become part of the domestic
law of this country unless it is incorporated into the domestic
legislations. Consequently, the international treaties are required to be
inserted into the domestic legislation passed by the due procedure and
then it will be part of domestic law (Hosain, 2013, p. 78). The approach
of the Court was reflected in the case of BNWLA vs. Government of
Bangladesh and Others (14 BLC (2009) 703) where the Court
vehemently declared:“Our courts will not enforce those covenants as
treaties and conventions even if ratified by the State, as they are not part
of the corpus juris of the State unless those are incorporated in the
municipal legislation”.The Apex Court of Bangladesh has affirmed a
liberal principle that if the domestic laws are not plain enough or there is
nothing therein, the domestic courts should take into account the
principles of relevant international instruments. The situation of
Bangladesh concerning domestic application of international law is
characterized by lack of case laws, vagueness of constitutional and
statutory provisions, and unwillingness of our judges and lawyers to
refer to the global instruments. Most of the global instruments ratified by
Bangladesh have not yet been included into the domestic law to be
enforced directly in domestic courts and thus, the status of international
law in Bangladesh remains in many ways unclear(Hasanat, 2013, p. 71).

6. Implementation through Legislative and Policy Framework

The obligation of Bangladesh to protect and promote human rights in
compliance with international obligations is evident from the enactment
or amendment of numerous domestic legislations as to right to
information, prevention of oppression and suppression against children
and women, labor rights, legal aid, establishment of National Human
Rights Commission, Anti Corruption Commission and other welfare
legislation for protecting the interest of the citizens of different
catastrophe. Mere enactment of laws is not enough; rather their
enforcement and implementation by the government organs is also
important for achieving this goal.
7. Implementation under the Institutional Framework

i. The National Human Rights Commission (NHRC)The NHRC

consistent with the Paris Principles Relating to the Status of National
Human Rights Institutions, 1993 for the protection and promotion of
human rights in Bangladesh has been serving as an effective mechanism
to address gross and systematic human rights violations (Razia, 2007,
p.1). The NHRC of Bangladesh was established under the National
Human Rights Commission Act, 2009 which works like a national
human rights watchdog and consists of three members, one chairman
and other two members (NHRC Act 2009, Section 4(1)). 

ii. The Anti-Corruption Commission (ACC)It is another important body

of the government which was created with an aim to remove corruption
in museums and ensure the rights of people. The ACC was established in
2004 to form an independent agency for combating corruption with legal
authority to conduct inquiries and investigations, file and conduct cases,
review legal measures for preventing corruption, demand statement of
assets and liabilities, and seize property in excess of known sources of
income. But in practice the ACC is full of defects mainly on the 1
ground that the officials of the Commission are from different agencies
of the Government who are apparently known as corrupt. 

iii. The Information CommissionThe Information Commission is the

institutional mechanism created by the law and is headed by the Chief
Information Commissioner with the other two Commissioners. The
Commission is responsible for overseeing the compliance with the Right
to Information Act, 2009 educating people about their rights and
resolving disputes regarding information disclosure. The Commission is
entrusted to issue directives to authorities for preservation, publicity and
management of information, etc. The implementation mechanism of
human rights in the national sphere appears pretty though in practice
they undergo different critical lacking for which despite having the
initiative it fails to accomplish the hopes and aspirations of the people.
Nevertheless, in the states who have parliamentary democracy, the rulers
once elected to power do not comply with the norms and commitments
on human rights incorporated in the Constitutions (Goonesekere, 2010,
p. 85). The domestic legal systems have remained so far largely
unutilized to enforce human rights law in their respective state
territories. Though the human rights obligations of a state extend to all
branches and levels of government, implementation itself relies upon
certain institutions. Obviously, implementation mechanisms are not the
same as political will, which remains the most vital factor for
implementing human rights (Vos, 2013, p. 64).

Implementation Mechanism of Human Rights:

International Arena
Human rights in international sphere can be implemented under different
international instruments by different monitoring bodies. These bodies
are often treated as the “gold standard” as they embrace what their far-
more-common enforcement brothers -monitoring and reporting
mechanisms - lack: the ability to impose sanctions on states that have
violated their human rights obligations. The international mechanisms
regarding human rights and fundamental freedoms can be discussed as
below: 
1. The UN Charter-based Mechanisms
 The mechanisms conducted and actions taken by the UN Charterbased
bodies in the protection and promotion of human rights worldwide are
called the charter-based mechanisms. The UN Charter-based human
rights mechanism embraces organs and procedures dealing directly with
human rights in the framework of the UN (Kedzia, 2003, p. 53). The
Charter-based mechanisms derive their legitimacy and mandate from the
human rights related provisions of the UN Charter, 1945. These
mechanisms include inter alia the inter-governmental organs established
on the basis of the UN Charter, e.g., the UNGA, Security Council,
ECOSOC and the UN Human Rights Council, the Commission on Status
of Women, procedures and the parts of the UN Secretariat responsible
for human rights activities. The UNGA is one of the main Charter-based
bodies that is also called the chief executive body as well as the plenary
organ of the UN is created under the Charter as a platform where all
states can debate any relevant matter with the Assembly having a broad
competence to consider human rights issues (Bailey, 1964, p. 25). As per
the provisions of the Charter, the powers of the UNGA are of
deliberative or recommendatory nature. Under article 13(1) (b) of the
Charter, the UNGA has two principle obligations in matters of human
rights: to initiate studies and to make recommendations for the purpose
of assisting in the realization of human rights and fundamental freedoms
for all. The UNGA plays a key role in 
preparing, drafting and adopting international treaties. Resolutions
declaring human rights standards or condemning violations of human
rights are adopted at the UNGA. Again, the Security Council is another
principal organ of the UN that belongs to 15 members and acts as the
executive body of the UN with its primary responsibility being to
maintain international peace and security (Article 24(1)). For example,
the massive humanitarian intervention was sanctioned by the Security
Council in territories of the former Yugoslavia and Somalia in 1992 for
human rights violations. The ICJ is the principal judicial organ of the
UN which was established in 1946 as the successor to the PCIJ (Article
36). All members of the UN are ipso facto members of ICJ the
jurisdiction of which is advisory. The ECOSOC is another vital organ of
the UN that is responsible for monitoring the overall human rights
situations in states and also has the power to take initiatives in adopting
resolutions on economic, social and cultural rights. ECOSOC may
initiate studies on a range of subjects and may make recommendations to
the UNGA, members of the UN and to the relevant specialized agencies
(Article 62). It may also prepare draft treaties and call international
conferences. Under article 68 of the Charter, the UNGA requires the
ECOSOC to set up Commissions to contribute in the economic and
social fields and for the protection and promotion of human rights
worldwide. In its first meeting in 1946 the Council established two
functional Commissions: the UN Commission on Human Rights and the
UN Commission on the Status of Women. The Sub-Commission on the
Protection and Promotion of Human Rights was established in 1947 as a
subsidiary organ of the ECOSOC and the Commission on Human
Rights. The UN Commission on Human Rights is responsible for
drafting human rights treaties and declarations before they are placed
before the UNGA for adoption. It undertakes specialized training
programs and conferences on human rights issues and also follows set
procedures for considering and condemning breaches of human rights by
states. The procedures are discussed below:

The Complaint Procedures of UN on Human Rights

The UN has devised a complaint procedure as a mechanism to redress

the violation of human rights in view of the fact that existing measures
are insufficient to cope with the growing number of allegations
regarding human rights violations. These procedures expressly
contemplate the submission of complaints by individuals or groups of
individuals. 

(a) The 1503 Procedure/Permanent Mechanism 

The 1503 procedure (ECOSOC Resolution No. 1503 XLVIII) is a

greatly improved procedure as well as a universal mechanism of
implementation of human rights which was devised by the ECOSOC in
1970 that authorizes confidential examination of
complaints/communications from individuals and NGOs on 'situations
which appear to reveal a consistent pattern of gross violations of human
rights'. This is also called the permanent and confidential mechanism of
implementation of human rights that empowers two Charter-based
bodies, i.e., the UN Commission on Human Rights and the Sub-
Commission on the Protection and Promotion of Human Rights to
examine complaints which appear to show consistent patterns of gross
and reliably attested violations of human rights. This procedure also
involves the entire hierarchy of the UN Charter-based bodies, i.e., the
UNGA, ECOSOC, the SubCommission on Prevention of Discrimination
and Protection of Minorities (Optional Protocol - I, ICCPR 1966).

(b)The 1235 Procedure/Public Procedure

The 1235 procedure which is also called the public procedure was
established by the ECOSOC in 1967 that empowers the Commission and
its Sub-Commission to appoint special rapporteurs, envoys,
representatives or working groups to observe the areas of human rights
violations within states and examine in detail whether there is any
consistent pattern of such violation. For instance, South Africa, Cuba,
Namibia and Rhodesia were the initial states subject to the 1235
procedure. The main aim of this procedure is to conduct public debate
on human rights situations in a state. 

(c) Other Special Procedures

The UN has also devised special procedures to deal with specific human
rights issues. The UN Human Rights Council has obligations for the
special procedures, including those originally established by the UN
Human Rights Commission. These procedures include appointments of
special rapporteurs, representatives, independent experts and working
groups that investigate, discuss and report on specific human rights
issues under a country mandate or thematic mandate. Apart from the
above procedures the UN has also devised so many procedures,
undertaken actions, policies and strategies to deal with gross violation of
human rights of individuals through communications, fact-finding
bodies, special rapporteurs etc. It also undertakes programs, study, and
advice in the field of human rights in terms of educating the people
throughout the world exchanging information and dealing with structural
issues. 

2. The UN Treaty-based Mechanisms 

The mechanisms conducted and actions taken by the UN treaty based

bodies in the protection and promotion of human rights worldwide are
called the treaty-based mechanisms. The UN treaty system includes
human rights treaties, protocols and monitoring bodies under these
treaties (Subbian, 2000, p. 94). The treaty-bodies or the treaty
monitoring bodies are committees of independent experts that monitor
implementation of the substantive provisions of the core international
human rights treaties (OHCHR, 2012, p. 12). In other words, the treaty-
bodies are committees of independent experts created under a particular
UN treaty. They are mandated to monitor how States - which have
ratified the treaty in question -comply with their obligations to
implement the human rights guaranteed by the treaty, including the right
to education. Most of the treaty-bodies are mandated to receive and
consider reports. Each State party is obligated to submit regular reports
to the relevant treaty body on how the rights are being implemented. The
treaty-17 body examines the report and publishes its concerns and
recommendations, referred to as „concluding observations‟. Since the
adoption of UDHR 1948, numerous UN implementation mechanisms of
Economic, Social and Cultural (ESC) rights have emerged. The most
significant global mechanism for defending ESC rights is the Committee
on ESC rights, whose mandate is to monitor specifically the obligations
of state parties to fulfill under the ICESCR, 1966. The Committee is a
treaty-body that mainly scrutinizes the extent to which ESC rights are
achieved by the state parties, serves as a basis for formulating policies
that promote ESC rights via General Comments, and allows the public to
learn about the work of their government concerning the achievement of
ESC rights (ESCR-Net, 2012, p. 17).

Functions of the UN Treaty-based Bodies

The treaty-bodies may consider individual complaints from individuals
alleging that a State party to that treaty has violated their rights.
Individual complaints can be brought only against a state that has
recognized the competence of the committee established under the
relevant treaty or when the state became a party to the relevant Optional
Protocols. Some treaty bodies may initiate country inquiries if they
receive reliable information containing wellfounded indications of
serious, grave or systematic violations of the conventions by a State
party. In addition, some of the treaty bodies may also consider inter-state
complaints. Each of the treaty bodies publishes its interpretation of the
content of the treaty provisions in the form of „general comments‟ or
„general recommendations‟.Each treaty has a unique system for its
implementation, ranging from general and specific reporting procedures
to quasi-judicial and judicial mechanisms involving the adjudication of
complaint brought by individuals or groups of individuals and by other
States. These various procedures can in many respects be said to be
complementary, although they have slightly different immediate
purposes, the overall goal of human rights protection is identical in each
case. The reporting procedures have the function of making regular and
systematic inventories of progress made in the implementation of the
treaty obligations, with the aim of creating a dialogue between the
relevant international monitoring organ and the State party concerned for
the purpose of assisting the latter in introducing the adjustments to
domestic law and practice required by its international treaty obligations.
These reports are examined and discussed in public and in the presence
of representatives of the State party. In preparing their periodic reports
to the various international monitoring organs, the States parties are
obliged to provide in-depth information not only about the formal state
of the law within their jurisdiction, but also about the manner of its
practical application. When preparing these reports, the States parties
may well also need the assistance of members of the various legal
professions. In fact the scope for international implementation of human
rights norms is limited as human rights are sometimes deemed to be a
national and not an international issue. Koh (1999, p. 19) states that,
international human rights law is not enforced, you might say, as human
rights norms are vague and inspirational, as enforcement mechanisms
are toothless, as treaty regimes are notoriously weak, and as national
governments lack economic self-interest or political will to restrain their
own human rights violations. So, if the question is “how are
international human rights laws enforced?” many of you might answer:
“not at all, or hardly at all.” If you hold to this common, skeptical view
of human rights enforcement, you would say that international human
rights law is not enforced, like “real” domestic law, instead, it is only
occasionally “complied with,” by nation-states acting out of transparent
convenience or self-interest (Koh, 1999, p. 38). In fact, the non-
enforcement of international human rights is often the result of
calculated political decisions. As Donnelly points out:“In the absence of
a power capable of compelling compliance, states participate in or
increase their commitment to international regimes more or less
voluntarily. Barring extraordinary circumstances, states participate in an
international regime only to achieve national objectives in an
environment of perceived international interdependence... states will
relinquish authority only to obtain a significant benefit beyond the reach
of separate national action or to avoid bearing a major burden”
(Donnelly, 1986, p. 620). A commonly highlighted political explanation
centers on checks and balances, which provide constraints that make it
more difficult for executives to ignore international legal obligations
(Hillebrecht, 2011, p. 7). It is essential to mention here that international
procedures can never be considered to be a substitute for efficient legal
procedures at the domestic level. Human rights are made a true reality at
the domestic level by the domestic authorities, and the international
complaints procedures are subsidiary to the available domestic systems
for safeguarding the individual: they provide a remedy of last resort,
when the internal mechanisms for ensuring an efficient protection of
human rights standards have failed.

Concluding Remarks
The notion of human rights and violation thereof is as older as the
creation of human rights. Despite the speedy growth of human rights law
over the years, gross violation of human rights continues to take place
throughout the world where there has been little progress in achieving
universal respect for and observance of human dignity and freedom. In
order to stop this violation, the UN was established that has been striving
to protect and promote human rights since its inception. The struggle for
securing human rights is an ongoing process. While ratification and
accession of global human rights instruments continue to increase,
closing the implementation gap remains a major challenge for the
realization of human rights. The future prospect of enforcement of
human rights depends upon the consolidation and sustainability of the
good governance; the sustainability of the good governance is dependent
on the institutionalization of it and the institutionalization of good
governance is dependent on the rule of a democratic law.

CEDAW AND CRC = SHEET 2 

Right to Develop= Sheet 1
Human Rights and Our Constitution = PDF D Drive of
Laptop (Class Lecture-7th semester- IHR- Final Doc-Human Rights and
Constitution of Bangladesh)

COMMITTEE ON ECONOMIC, SOCIAL AND

CULTURAL RIGHTS
Monitoring the economic, social and cultural rights
The Committee on Economic, Social and Cultural Rights (CESCR) is
the body of independent experts that monitors implementation of the
International Covenant on Economic, Social and Cultural Rights by its
States parties. The Committee was established under ECOSOC
Resolution 1985/17 of 28 May 1985 to carry out the monitoring
functions assigned to the United Nations Economic and Social Council
(ECOSOC) in Part IV of the Covenant.

All States parties are obliged to submit regular reports to the Committee
on how the rights are being implemented. States must report initially
within two years of accepting the Covenant and thereafter every five
years. The Committee examines each report and addresses its concerns
and recommendations to the State party in the form of “concluding
observations”.

In addition to the reporting procedure, the Optional Protocol to the

International Covenant on Economic, Social and Cultural Rights , which
entered into force on 5th May 2013, provides the Committee
competence to receive and consider communications from individuals
claiming that their rights under the Covenant have been violated. The
Committee may also, under certain circumstances, undertake inquiries
on grave or systematic violations of any of the economic, social and
cultural rights set forth in the Covenant, and consider inter-state
complaints.
The Committee meets in Geneva and normally holds two sessions per
year, consisting of a three-week plenary and a one-week pre-sessional
working group.

The Committee also publishes its interpretation of the provisions of the

Covenant, known as general comments.

COMMITTEE ON ECONOMIC, SOCIAL AND CULTURAL

RIGHTS
The Committee on Economic, Social and Cultural Rights (CESCR)
oversees implementation of the International Covenant on Economic,
Social and Cultural (ICESCR) through its consideration of reports,
individual complaints, inter-State complaints, and inquiry requests, and
its preparation of general comments, substantive statements, open letters,
and general discussion days. As of October 2019, 170 States are party to
the ICESCR.

Contents

COMPOSITION
WORKING METHODS
State Reporting
Individual Complaints
Inter-State Complaints
Urgent Interventions
Complaints of Systematic Violations (Inquiry Procedures)
General Comments
Open Letters and Statements
Thematic Discussions and Conferences
CIVIL SOCIETY PARTICIPATION
Attending Sessions
Accreditation
RESEARCH AND ADDITIONAL SOURCES
COMPOSITION
The CESCR consists of 18 independent experts who are persons of high
moral character and recognized competence in the field of human rights.
Members of the CESCR serve four-year terms and can be re-elected if
re-nominated by State parties to the ICESCR. See ESOCOC Resolution
1985/17, Review of the Composition, Organization and Administrative
Arrangements of the Sessional Working Group of Governmental Experts
on the Implementation of the International Covenant on Economic,
Social and Cultural Rights, 28 May 1985. Further information about the
election process can be found on the Office of the High Commissioner
for Human Rights’ website on Elections of Treaty Body Members.

WORKING METHODS
The CESCR holds two sessions per year: a three-week plenary session
and a one-week pre-sessional working group in Geneva, Switzerland.
The schedule of past and upcoming CESCR sessions is available online,
and the OHCHR maintains a Master Calendar of all UN Member States’
upcoming treaty body reviews.

State Reporting
Initially, a State must make a report on its implementation two years
after acceding to the ICESCR. Following the initial report, periodic
reports are then requested every five years thereafter. In July 2019, the
Chairs of the human rights treaty bodies agreed that the Committee will
adopt a standard eight-year reporting cycle. [IJRC]

The reporting system requires each State party to submit (1) a common
core document, which lists general information about the reporting State,
a framework for protecting human rights, and information on non-
discrimination and equality, and (2) a treaty-specific document, which
accounts for specific information relating to the implementation of
articles 1 to 15 of the ICESCR and any national law or policies taken to
implement the ICESCR. See Committee on Economic, Social and
Cultural Rights, Guidelines on Treaty-Specific Documents to be
Submitted by States Parties under Articles 16 and 17 of the International
Covenant on Economic, Social and Cultural Rights, E/C.12/2008/2, 24
March 2009.
Recently, the Committee made a simplified reporting procedure, also
referred to as “list of issues prior to reporting,”  available on a pilot basis
to States parties who are scheduled to submit their third or later periodic
report in 2017. See Committee on Economic, Social and Cultural Rights,
Report on the fifty-second and fifty-third sessions, E/2015/22, 2015. The
Committee may now prepare the list of issues before the State submits
its periodic report, and the State will respond only to the questions raised
in the Committee’s list of issues, constituting its periodic report to the
Committee. See Committee on Economic, Social and Cultural Rights, 
Information note for civil society and national human rights institutions.

For more specific guidance regarding the form and content of reports,
the UN Secretary General has published a Compilation of Guidelines on
the Form and Content of Reports to be Submitted by State Parties to the
International Human Rights Treaties. The Office of the High
Commissioner of Human Rights also maintains a list of all the State
party reports.

After States submit their reports, the CESCR initially reviews the report
through a five-person pre-sessional working group that meets six months
prior to the report being considered by the full Committee. The pre-
sessional working group will then issue a list of written questions to the
State party, and the State party will be required to answer prior to
making their scheduled appearance before the Committee.

Representatives of each reporting State are invited to engage in a

constructive dialogue with the CESCR. Concluding observations are
then drafted and later adopted by consensus following a private
discussion by the Committee. A list of concluding observations can be
found on the Office of the High Commissioner of Human Rights’
website page.

The CESCR may, in its concluding observations, also make a specific

request to a State party to provide more information or statistical data
prior to the date on which the State party’s next periodic is due. See
Other Activities of the Human Rights Treaty Bodies and Participation of
Stakeholders in the Human Rights Treaty Body Process, UN Doc.
HRI/MC/2013/3, 22 April 2013, para. 8. However, this is a rarely used
procedure. If the CESCR is unable to obtain the information it requires,
the CESCR may request that the State party accept a technical assistance
mission consisting of one or two Committee members. If the State party
does not accept the proposed technical assistance mission, the CESCR
may then make recommendations to the Economic and Social Council.

Individual Complaints
The CESCR may consider individual complaints that allege a violation
of one or more rights protected under the ICESCR if the State
responsible is a party to the First Optional Protocol to the ICESCR. See
Optional Protocol to the International Covenant on Social, Economic
and Cultural Rights (adopted 10 December 2008; entered into force 5
May 2013).

The CESCR is authorized to accept individual complaints as of May 5,

2013, provided the complaint meets the requirements identified in
articles 1 through 4 of the Optional Protocol are met. Fourteen States
have ratified the Optional Protocol, as of June 2014.

More information on the procedure on individual complaints can be

found in the Office of the UN High Commissioner for Human Rights’
23 Frequently Asked Questions about Treaty Body Complaints
Procedure and Procedure for Complaints by Individuals under the
Human Rights Treaties webpage.

Inter-State Complaints
Article 10 of the Optional Protocol to the ICESCR provides a
mechanism for States to complain about violations of the ICCPR made
by another State. See Optional Protocol to the ICESCR, art. 10. This
procedure for inter-State complaints, however, has never been used.

Urgent Interventions
The CESCR does not have a mechanism in place for urgent
interventions.
Complaints of Systematic Violations (Inquiry Procedures)
The CESCR can also consider inquiries on grave or systematic
violations of any of the rights set forth in the ICESCR. See Optional
Protocol to the ICESCR, art. 11. State parties may opt out of the inquiry
procedure at any time by declaring that the State does not recognize the
competence of the Committee to undertake inquiries. See Optional
Protocol to the ICESCR, art. 11(8).

The inquiry procedure is confidential and the State party’s cooperation is

sought at all stages. Generally, the inquiry procedure proceeds in five
steps.

The Committee receives information that the rights contained in the

ICESCR are being systematically violated by the State party.
The Committee invites the State party to submit relevant observations.
Based on the relevant submissions and observations, the Committee may
then designate one or more of its members to conduct an inquiry and
then submit an urgent report to the Committee. With the State party’s
consent, the initial inquiry may involve a visit to the State’s territory.
The Committee examines the report and then transmits any findings,
along with comments and recommendations to the State party.
The State party is then requested to submit its own observations and any
measures it took regarding the Committee’s findings, comments, and
recommendations within a specified time period.
General Comments
The CESCR also prepares general comments interpreting the ICESCR’s
articles and provisions in order to assist State parties in fulfilling their
obligations. Each general comment focuses on one specific article of the
ICESCR and can be found published in a list on the CESCR’s website.

Open Letters and Statements

The CESCR adopts statements to clarify its position with respect to
certain obligations under the ICESCR following major developments
and other issues regarding its implementation. The CESCR also sends
letters to State parties addressing ICESCR commitments. All relevant
substantive statements and letters can be found maintained in a list by
the Committee.

Thematic Discussions and Conferences

The CESCR regularly devotes one day of its general sessions to discuss
either a particular right or a particular aspect of the ICESCR. The goal of
the Committee’s general discussion days is: (1) to assist the Committee
in developing a great depth of relevant issues, (2) to encourage input
from relevant and interested parties, and (3) to pave the way for future
general comments by the Committee. For more information, the
Committee summarizes its general discussion days in a table format by
year and title on its website.

CIVIL SOCIETY PARTICIPATION

NGOs or other civil society stakeholders are encouraged to provide
parallel submissions to State reports to the CESCR. All submissions
should either be submitted in English, French, or Spanish. It is also
recommended to send a report or summary of the report in English, as
the UN Secretariat does not translate any reports. Any submission
should be transmitted electronically to the CESCR’s Secretariat, at
cescr@ohchr.org, a month and a half prior to the beginning of the
session for which a State will be examined at a general session, and two
months prior to the beginning of a pre-sessional working group for
States who upon a list of issues will be adopted. 20 hard copies will be
requested for the general session, and 12 hard copies for the pre-
sessional working group.

Additionally, the CESCR has adopted General Comment No. 10, which
comments upon the role of national human rights institutions in the
protection of economic, social, and cultural rights. See CESCR, General
Comment No. 10: The role of national human rights institutions in the
protection of economic, social, and cultural rights, UN Doc.
E/C.12/1998/25, 14 December 1998. More information can be found on
the CESCR’s webpage for Information for Civil Society Organisations.

Attending Sessions
The CESCR also makes available a short period of time at the beginning
of each pre-sessional working group and general sessions to receive oral
information provided by NGOs. Such information should be: (1) focused
specifically on provisions of the ICESCR, (2) directly relevant to issues
under consideration by the Committee, (3) reliable, and (4) not abusive.
See CESCR, Fact Sheet No. 16 (rev.1).

Accreditation
If a NGO or other civil society stakeholder wishes to attend a session of
the CESCR, the organization is required to be duly registered.
Representatives of organizations must thus submit the full name of the
organization, names of the representatives, and proposed dates of
attendance to the CESCR’s Secretariat by creating an account and
registering through the United Nations Indico system.

RESEARCH AND ADDITIONAL SOURCES

The Committee’s outputs can be found on its website and are linked to
in the relevant sections above. The UN Treaty Body Database also
collects these documents, which may be searched by several criteria, but
not by keyword or subject matter. For additional research tools, view the
Research Aids section of this Online Resource Hub.

Webcasts of the CESCR’s sessions are periodically broadcast on either

UN Treaty Body Webcast or UN Web TV.

Another useful resource is the International Service for Human Rights’

Simple Guide to UN Treaty Bodies (2010), which examines each treaty
bodies’ reports, individual communications, State-to-State complaints,
inquiry procedures, urgent interventions, general comments, and how
NGOs can engage with treaty bodies.

HUMAN RIGHTS COMMITTEE Monitoring civil

and political rights
The Human Rights Committee is the body of independent experts that
monitors implementation of the International Covenant on Civil and
Political Rights by its State parties.

All States parties are obliged to submit regular reports to the Committee
on how the rights are being implemented. States must report initially one
year after acceding to the Covenant and then whenever the Committee
requests (usually every four years). The Committee examines each
report and addresses its concerns and recommendations to the State
party in the form of "concluding observations”.

In addition to the reporting procedure, article 41 of the Covenant

provides for the Committee to consider inter-state complaints.
Furthermore, the First Optional Protocol to the Covenant gives the
Committee competence to examine individual complaints with regard to
alleged violations of the Covenant by States parties to the Protocol.

The full competence of the Committee extends to the Second Optional

Protocol to the Covenant on the abolition of the death penalty with
regard to States who have accepted the Protocol.

The Committee meets in Geneva and normally holds three sessions per
year.

The Committee also publishes its interpretation of the content of human

rights provisions, known as general comments on thematic issues or its
methods of work.

For more information about the work of the Human Rights Committee,
read the Civil and Political Rights: The Human Rights Committee fact
sheet. (PDF)

HUMAN RIGHTS COMMITTEE

The Human Rights Committee is the United Nations human rights treaty
body responsible for overseeing implementation of the International
Covenant on Civil and Political Rights (ICCPR) through its
consideration of State reports, individual complaints, and inter-State
complaints, and its preparation of general comments, substantive
statements, and general discussions on topics addressed in the ICCPR.
As of August 2020, 173 States are party to the ICCPR.

Contents

COMPOSITION
WORKING METHODS
State Reporting
Individual Complaints
Inter-State Complaints
Urgent Interventions
Complaints of Systematic Violations (Inquiry Procedures)
General Comments
Open Letters and Statements
Thematic Discussions and Conferences
CIVIL SOCIETY PARTICIPATION
Attending Sessions
Accreditation
RESEARCH AND ADDITIONAL SOURCES
COMPOSITION
The Human Rights Committee consists of 18 independent experts who
are elected for a term of four years by States Parties to the ICCPR. See
ICCPR, arts. 28, 32. Each member must be a national of a State Party to
the ICCPR, of high moral character, and have recognized competence in
the field of international human rights. See ICCPR, art. 28. No more
than one national of a State can be included in the Committee. See
ICCPR, art. 31. Further information about the election process can be
found on the Office of the High Commissioner for Human Rights’ web
page on Elections of Treaty Body Members.

WORKING METHODS
The Human Rights Committee works on a part-time basis and makes
decisions during its sessions, generally held three times per year in either
Geneva, Switzerland or New York, United States of America. The
current meeting schedule can be found on the Meetings and Deadlines
section of the Human Rights Committee’s main web page.

State Reporting
One year after the ICCPR’s entry into force, each State Party must
submit a report to the Human Rights Committee detailing the status of
its implementation of the ICCPR’s provisions. In 2020, the Committee
will introduce a simplified reporting procedure (see below) for initial
reports. After the initial report, a State will submit periodic reports
whenever the Bureau of the Human Rights Committee requests them.
Historically, the first step in the Human Rights Committee’s review of
periodic State reports has been the State’s submission of its report
addressing the advances made since the previous reporting cycle, after
which the Committee would adopt a list of issues to identify the topics it
most wanted to discuss during a constructive dialogue with the State. On
the basis of the reports and replies to the list of issues submitted by the
State and civil society, the Committee would then prepare its concluding
observations.

Recently, however, the Human Rights Committee implemented changes

intended to result in a simplified reporting procedure, also referred to as
“list of issues prior to reporting.” Going forward, the Committee may
now prepare the list of issues before the State submits its periodic report.
See Human Rights Committee, Guidelines for the Treaty-Specific
Document to be Submitted by States Parties under Article 40 of the
ICCPR, CCPR/C/2009/1, 20 November 2010, paras. 14-15. Pursuant to
this procedure, the State’s periodic report must only answer the
questions raised by the Committee in its list of issues, rather than
addressing the State’s implementation of each article of the ICCPR. As
of July 2018, the Human Rights Committee has adopted the simplified
reporting procedure as a permanent feature and encouraged all States
parties to accept it. See OHCHR, The Predictable Review Cycle. In
2020, the Committee moved to an “opt-out” model of the simplified
reporting procedure, meaning that States will only answer the questions
raised in the Committee’s list of issues unless they request to submit a
full report. See id. The Committee has also agreed to limit the number of
questions in each list of issues to 25 questions and has moved to a
predictable review cycle based on an eight-year cycle of review, which
will include a five-year review process and a three-year interval after
one review process. See id. For more information about the simplified
reporting procedure, see the Decision of the Human Rights Committee
on additional measures to simplify the reporting procedure and increase
predictability and the United Nations High Commissioner for Human
Rights’ report on strengthening the human rights treaty bodies, United
Nations reform: measures and proposals, UN Doc. A/66/860, 26 June
2012.

The Committee may still decide to request a full report, “[i]n particular,
where a fundamental change has occurred in the State party’s political or
legal approach to ensuring the enjoyment of Covenant rights…” See
Guidelines for the Treaty-Specific Document to be Submitted by States
Parties under Article 40 of the ICCPR, 20 November 2010, at para. 15.
The State under review may also decide to use the traditional reporting
method. See id. For those States submitting full reports, the UN
Secretary General has prepared a Compilation of Guidelines on the
Form and Content of Reports to be Submitted by State Parties to the
International Human Rights Treaties, HRI/GEN/2/Rev. 6, 3 June 2009,
containing more specific information on the form and content of State
reports.

Whether the list of issues is adopted before or after the State submits its
report, a Country Report Task Force of between four and six members
takes primary responsibility for creating the list. A designed individual
member of the Task Force, the “country rapporteur,” is responsible for
overseeing the drafting of the list of issues and the Task Force members
are then charged with taking the lead on specific questions.

Following the submission of a State report, the Human Rights

Committee engages in an in-person constructive dialogue with
representatives of the State party about the list of issues and the contents
of the State and civil society reports submitted. The members of the
Country Task Force responsible for preparing the list of issues generally
have priority when asking questions of the State party representatives.
These constructive dialogues are held during the Committee’s sessions
and are generally webcast live on on UN Web TV.

The last phase of the process is for the Committee to draft and adopt
concluding observations, a document which includes: an introduction,
positive aspects, factors and difficulties impeding the ICCPR’s
implementation, principal subjects of concern, and suggestions and
recommendations. A provisional due date for the State party’s next
periodic report is also given. The Committee will implement a follow-up
procedure for two to four recommendations in its concluding
observations for immediate implementation within one year. See Other
Activities of the Human Rights Treaty Bodies and Participation of
Stakeholders in the Human Rights Treaty Body Process, UN Doc.
HRI/MC/2013/3/Corr.1, 22 April 2013, para. 2. A Special Rapporteur is
also appointed for follow-up to concluding observations, and will
produce a follow-up progress report for each session. The Committee
keeps a current list of concluding observations.

Individual Complaints
The Human Rights Committee may consider individual complaints that
allege a violation of an individual’s rights under the ICCPR if the State
is a party to the First Optional Protocol to the ICCPR, which establishes
the complaints mechanism. See First Optional Protocol to the
International Covenant on Civil and Political Rights (adopted 16
December 1966; entered into force 23 March 1976). Articles 1 through 5
of the Optional Protocol identify the requirements for the Committee’s
consideration of an individual complaint. As of January 2020, 116 States
are party to the Optional Protocol.

In order to submit an individual complaint, the model complaint form

may be used to provide: (1) basic information, (2) the State party to
which the complaint is directed against and the rights set out in the
ICCPR that have been alleged to be violated, (3) steps taken to exhaust
domestic remedies, (4) a chronological list of facts on which the
complaint is based, and (5) a checklist of supporting documents,
including copies of complaints or decisions before domestic courts and
corroborating evidence. All individual complaints should be submitted
to the Petitions Team mailing address:

Petitions and Inquiries Section

Office of the High Commissioner for Human Rights
United Nations Office at Geneva
1211 Geneva 10, Switzerland

or to the following email addresses: petitions@ohchr.org, TB-

petitions@ohchr.org, ccpr@ohchr.org, and registry@ohchr.org.

The Human Rights Committee’s searchable table of jurisprudence

organizes its recent decisions by ICCPR article, subject matter,
procedural issues, and outcome. The Committee also keeps a full list of
its jurisprudence, which may be organized or searched by country or
date, but which does not provide a description of the issues addressed in
each decision. More information for the procedure on individual
complaints can be found in the Office of the UN High Commissioner for
Human Rights 23 Frequently Asked Questions about Treaty Body
Complaints Procedure and Procedure for Complaints by Individuals
under the Human Rights Treaties webpage.

Inter-State Complaints
Article 41 of the ICCPR provides a mechanism for States to complain
about violations of the ICCPR made by another State. See ICCPR, art.
41. Both States concerned must have made declarations accepting this
procedure, or the complaint will not be considered. This procedure for
inter-State complaints, however, has never been used.

Urgent Interventions
Early warning measures were used in the 1990s when the Human Rights
Committee asked several States (Bosnia and Herzegovina, Croatia,
Federal Republic of Yugoslavia, Burundi, Angola, Haiti, Rwanda, and
Nigeria) either to present their overdue reports without delay or to
prepare ad hoc reports on specific issues. The Bureau of the Human
Rights Committee discussed the possibility of reviving the urgent
procedure mechanism in March of 2004, but has not yet done so as of
2013.

Complaints of Systematic Violations (Inquiry Procedures)

The Human Rights Committee does not have a system in place for
initiating inquiries regarding allegations of serious or systematic
violations of the ICCPR.

General Comments
The Human Rights Committee issues general comments to clarify the
scope and meaning of the ICCPR’s articles. Such general comments help
elucidate to States Parties what the Committee’s views are on the
obligations each State has assumed by acceding to the ICCPR. Each
general comment specifically targets a particular article of the ICCPR
and is included on the Human Rights Committee’s list of general
comments that have been drafted or adopted.

Open Letters and Statements

The Human Rights Committee will also, infrequently, make substantive
statements, similar to pronouncements or press releases, regarding State
practices or human rights conditions of concern, or commenting on
developments within the UN human rights system.

Thematic Discussions and Conferences

The Human Rights Committee may also host general discussions to
solicit input from other UN agencies, national human rights institutions,
NGOs, and interested civil society stakeholders on topics of interest. As
of January 2020, the Human Rights Committee had organized three
general discussions. The first general discussion took place in October
2012 to prepare the drafting of the Committee’s General Comment on
Article 9 (Liberty and Security of Person) of the ICCPR. The second
general discussion took place in July 2015 to enhance the drafting
process of the Committee’s General Comment on Article 6 (Right to
Life) of the ICCPR. During the latest general discussion, which took
place in March 2019, the Committee prepared the drafting of its General
Comment on Article 21 (Right to Peaceful Assembly) of the ICCPR.

CIVIL SOCIETY PARTICIPATION

NGOs and other civil society groups do not require ECOSOC
consultative status to engage with the Human Rights Committee.
Furthermore, any group may submit information to the Committee or
prepare an individual complaint on behalf of a victim. Certain
requirements, including prior registration, regulate civil society
organizations’ participation in-person in the Committee’s sessions,
however.

Non-governmental organizations and other members of civil society are

encouraged to participate in the Human Rights Committee’s activities by
providing alternative reports that contain information on States’
implementation of the ICCPR, comment on State reports and State
replies to a list of issues, and convey information on States’ progress
with regard to the Committee’s previous concluding observations. See
Human Rights Committee, The Relationship of the Human Rights
Committee with Non-Governmental Organizations, CCPR/C/104/3, 4
June 2012, para. 7. The Human Rights Committee also invites NGOs
and other civil society stakeholders to address the Committee during the
process of drafting lists of issues.

Attending Sessions
The Human Rights Committee welcomes oral presentations by NGOs
and other civil society organizations during the presentation of States
parties’ reports. Since its 103rd Session, the Human Rights Committee
has allowed NGOs to engage with Committee members during a formal
closed meeting preceding the examination of a State party’s report. See
Human Rights Committee, The Relationship of the Human Rights
Committee with Non-Governmental Organizations, CCPR/C/104/3, 4
June 2012, para. 3. Informal briefings are also allowed.

All NGOs and civil society stakeholders are also welcome to attend
Human Right Committee sessions as observers, in which case they will
not be given the opportunity to address the Committee.

Accreditation
If an NGO or other civil society stakeholder wishes to attend a Human
Rights Committee session, the organization and individual must create
an account and register through the United Nations Indico system.

RESEARCH AND ADDITIONAL SOURCES

The Committee’s outputs can be found on its website and are linked to
in the relevant sections above. The UN Treaty Body Database also
collects these documents, which may be searched by several criteria, but
not by keyword or subject matter. For additional research tools, view the
Research Aids section of this Online Resource Hub.

Webcasts of the Human Rights Committee’s sessions are periodically

broadcast on UN Web TV.

The International Service for Human Rights’ Simple Guide to UN

Treaty Bodies (2015) is a useful resource which examines each treaty
bodies’ procedures regarding State reports, individual communications,
State-to-State complaints, inquiries, urgent interventions, general
comments, and NGO engagement.

Set up in 2008, the Centre for Civil and Political Rights is an

organization designed to promote, facilitate, and develop civil society
engagement with the Human Rights Committee. Its activities target both
national and regional civil society organizations, and any civil society
organization whose thematic mandate aligns with the ICCPR.

United Nations Human Rights Council

The Human Rights Council is an inter-governmental body within the
United Nations system made up of 47 States responsible for the
promotion and protection of all human rights around the globe.

It has the ability to discuss all thematic human rights issues and
situations that require its attention throughout the year. It meets at the
UN Office at Geneva. + WIKIPEDIA

HUMAN RIGHTS COMMISSION IN BANGLADESH =

PDF D Drive of Laptop (Class Lecture-7th semester- IHR- FINAL
DOC- NHRC_Bangladesh)

Right to Fair Trial = PDF D Drive of Laptop (Class Lecture-7th

semester- IHR- FINAL DOC- Final pdf for Fair Trial) + (following
written) 

Article 6 protects your right to a fair trial

You have the right to a fair and public trial or hearing if:

you are charged with a criminal offence and have to go to court, or

a public authority is making a decision that has an impact upon your
civil rights or obligations.
In this context, your civil rights and obligations are those recognised in
areas of UK law such as property law, planning law, family law, contract
law and employment law.

It is a good idea to get further advice if you think the right to a fair and
public hearing might apply to your case.

What is a fair and public hearing?

You have the right to a fair and public hearing that:

is held within a reasonable time

is heard by an independent and impartial decision-maker
gives you all the relevant information
is open to the public (although the press and public can be excluded for
highly sensitive cases)
allows you representation and an interpreter where appropriate, and
is followed by a public decision.
You also have the right to an explanation of how the court or decision-
making authority reached its decision.

What rights do you have at a criminal trial?

You have the right to:

be presumed innocent until you are proven guilty

be told as early as possible what you are accused of
remain silent
have enough time to prepare your case
legal aid (funding) for a lawyer if you cannot afford one and this is
needed for justice to be served
attend your trial
access all the relevant information
put forward your side of the case at trial
question the main witness against you and call other witnesses, and
have an interpreter, if you need one.
Everybody must have equal access to the courts under the Human Rights
Act. This includes a right to bring a civil case (a case between
individuals or organisations), although this right can be restricted in
some situations (see below).

See also the right to no punishment without law.

Are there any restrictions to this right?

The right to a fair and public hearing does not always apply to cases
involving:

immigration law
extradition
tax, and
voting rights.
There is also no automatic right to an appeal (an application to a higher
court for the reversal of the decision of a lower court).

The right of access to the courts can be restricted, for example, if you:

keep bringing cases without merit

miss the time-limit for bringing a case.
There are times when the public and press are denied access to a
hearing. This can happen in the interests of protecting:

morals
public order or national security
children and young people, or
privacy.
The courts might also decide to exclude the public or press if they think
that their presence is not in the interests of justice.

What the law says

This text is taken directly from the Human Rights Act.

Article 6: Right to a fair and public hearing

1. In the determination of his civil rights and obligations or of any
criminal charge against him, everyone is entitled to a fair and public
hearing within a reasonable time by an independent and impartial
tribunal established by law. Judgment shall be pronounced publicly but
the press and public may be excluded from all or part of the trial in the
interest of morals, public order or national security in a democratic
society, where the interests of juveniles or the protection of the private
life of the parties so require, or to the extent strictly necessary in the
opinion of the court in special circumstances where publicity would
prejudice the interests of justice.

2. Everyone charged with a criminal offence shall be presumed innocent

until proven guilty according to law.
3. Everyone charged with a criminal offence has the following minimum
rights:

to be informed promptly, in a language which he understands and in

detail, of the nature and cause of the accusation against him
to have adequate time and facilities for the preparation of his defence
to defend himself in person or through legal assistance of his own
choosing or, if he has not sufficient means to pay for legal assistance, to
be given it free when the interests of justice so require
to examine or have examined witnesses against him and to obtain the
attendance and examination of witnesses on his behalf under the same
conditions as witnesses against him
to have the free assistance of an interpreter if he cannot understand or
speak the language used in court.
Example case - DG v Secretary of State for Work and Pensions (ESA)
[2010]
DG appealed against a decision to refuse him Employment and Support
Allowance (ESA), which was taken after a medical examination. Even
though DG requested Jobcentre Plus to contact his GP (also his
nominated representative), neither the GP nor DG’s social worker were
approached for evidence. At the first stage of the independent tribunal
process (the First Tier Tribunal), DG waived his right to put his case in
person at an oral hearing. This decision was based on advice from
Jobcentre Plus. The appeal was dealt with on paper and dismissed.

When DG appealed this decision, the Upper Tribunal found that DG did
not have a fair hearing of his appeal as required by Article 6. This
decision took into account the bad advice from Jobcentre Plus, the
claimant’s mental health problems and the failure of both the
Department for Work and Pensions and the tribunal to communicate
with his GP.

(Case summary taken from ‘Human rights, human lives: a guide to the
Human Rights Act for public authorities’. Download the publication for
more examples and legal case studies that show how human rights work
in practice.)

Last updated: 03 Jun 2021

Pages in this section

The Human Rights Act
Article 2: Right to life
Article 3: Freedom from torture and inhuman or degrading treatment
Article 4: Freedom from slavery and forced labour
Article 5: Right to liberty and security
Article 6: Right to a fair trial
Article 7: No punishment without law
Article 8: Respect for your private and family life
Article 9: Freedom of thought, belief and religion
Article 10: Freedom of expression
Article 11: Freedom of assembly and association
Article 12: Right to marry
Article 14: Protection from discrimination
Article 1 of the First Protocol: Protection of property
Article 2 of the First Protocol: Right to education
Article 3 of the First Protocol: Right to free elections
Article 1 of the Thirteenth Protocol: Abolition of the death penalty