Unit 2: International Conventions on Human Rights

Teaching sequence: b,d,e,a,c,f

b. Universal Declaration on Human Rights, 1948

What is the Universal Declaration of Human Rights, in a nutshell?

“The Universal Declaration of Human Rights (UDHR) is a milestone document in the history
of human rights. Drafted by representatives with different legal and cultural backgrounds from
all regions of the world, the Declaration was proclaimed by the United Nations General
Assembly in Paris on 10 December 1948 (General Assembly resolution 217 A) as a common
standard of achievements for all peoples and all nations. It sets out, for the first time,
fundamental human rights to be universally protected and it has been translated into
over 500 languages. The UDHR is widely recognized as having inspired, and paved the
way for, the adoption of more than seventy human rights treaties, applied today on a
permanent basis at global and regional levels (all containing references to it in their
preambles).” (United Nations)

• Introduction:

The aftermath of the two world wars led to the creation of the UN Charter, which
established the United Nations as well as laid the foundation of a new era of human rights,
at the United Nations Conference on International Organization, held at San Francisco
in 1945. In this conference, it was suggested that the United Nations Charter should contain
within it a bill of rights. The Committee I/1 of the Conference decided that “the present
Conference, if only for lack of time, could not proceed to realize such a draft in an international
contract”. The Committee recommended that the General Assembly of the future organization
would consider the proposal and give it effect.

After the UN Charter came into force, the next step was the implementation of the
principles of universal respect for observance of human rights and fundamental
freedoms. In order to achieve this, it was decided to prepare an international ‘bills of
rights’, the UNGA referred the matters to the ECOSOC for study by the Commission on
Human Rights. This resulted in the creation of the Universal Declaration of Human
Rights or the UDHR.
The UDHR, which is also commonly referred to as the ‘international Magna Carta’, is one of
the most important document, which since its inception, has acted as a global road map for
freedom and equality – protecting the rights of every individual, everywhere. Its importance is
based on the fact that, it was the first time countries agreed on the freedoms and rights that
deserve universal protection in order for every individual to live their lives freely, equally and
in dignity.

“In adopting the UDHR on December 10, 1948, the delegates to the UNGA established a
common set of principles against which the human rights principles against which the human
rights practices of individual member states can be measured” (Risse et al.)

Universal Declaration, A UN resolution, not requiring ratification, has become, over the
last 30 years, a part of the customary international law (Chitnis).

The influence of the UDHR has been substantial. Its principles have been incorporated
into the constitutions of most of the more than 185 nations now in the UN. Although a
declaration is not a legally binding document, the Universal Declaration has achieved the
status of customary international law because people regard it "as a common standard
of achievement for all people and all nations."

• History of the UDHR:

‘The Universal Declaration of Human Rights emerged from the ashes of the Second
World War’. The global community vowed never the world would witness such
unspeakable atrocities again, this proclamation was backed and guaranteed by the
creation of the UN Charter, on which based the United Nations, which enshrined in it the
guarantee to protect and promote rights of human beings everywhere.

The preliminary work or drafting the resolution started in 1946, under auspices of
UNESCO and under the leadership of Jacques Maritian to identify the key theoretical issues in
framing the charter of rights for all people and nations. This work was later moved to the UN
Commission on Human Rights. In its first session in January, 1947, the Commission authorized
its members to formulate what it termed “a preliminary draft international bill of human rights.”

Later the task of drafting this document, spelling out the meaning of the fundamental rights
and freedoms proclaimed in the Charter, was taken over by the formal drafting committee,
consisting of members of the Commission from eight states. The Commission, comprised of
18 members from various political, social, cultural and religious backgrounds, was guided
by the leadership of Eleanor Roosevelt, the widow of the US President Franklin D.
Roosevelt’s, a human rights champion in her own right and the United States delegate to
the UN.

This Commission concluded that the right mission was to develop a declaration, rather
than a treaty. The Commission’s view was that the declaration should be relatively short,
inspirational, energizing, and broadly accessible to peoples everywhere: the defining
document of an international bill of human rights. It also decided that the declaration
should encompass both civil and political rights, on the one hand, and social and economic
rights, on the other. Cassin handed his draft of the declaration to a meeting of the Commission
on Human Rights in Geneva. Thus this version, which was sent to all UN Member States for
comment, became known as the “Geneva draft.” The Commission revised the Geneva draft
to reflect the replies it had received from Member States, before submitting it to the General
Assembly. The General Assembly in turn scrutinized the document between September and
December of 1948, with over 50 Member States voting a total of 1,400 times on practically
every clause and virtually every word of the text. By its resolution 217 A (III) of 10
December 1948, the General Assembly, meeting in Paris, voted to adopt the UDHR with
eight nations abstaining but none dissenting.1 It was an historic moment, and the General
Assembly called upon all Member States to publicize the text of the Declaration and “to cause
it to be disseminated, displayed, read, and expounded principally in schools and other
educational institutions, without distinction based on the political status of countries or
territories.” The UDHR formed the basis for two covenants which were adopted by the
General Assembly in 1966: the International Covenant on Civil and Political Rights and
the International Covenant on Economic, Social and Cultural Rights. These Covenants
have binding status in international law. The Declaration and the Covenants are
collectively known as the “International Bill of Human Rights.”

• Structure of the UDHR:

The UDHR consists of a Preamble and 30 Articles, which consist of civil and political
rights, as well as economic social and cultural rights. The human rights in the document can
be classified into four categories:

1. General (Articles 1 and 2);

2. Civil and Political Rights (Articles 3 to 21);
3. Economic, Social and Cultural Rights (Articles 22 to 27); and
 4. Concluding parts (Articles 28 to 30)

The Preamble: The UNGA through the Preamble of UDHR proclaims it as a common
standard of achievement of all peoples and nations to the end that every individual and every
organ of the society, keeping this declaration in mind, shall strive by teaching and education to
promote respect for these rights and freedoms by progressive measures, national and
international, to secure their universal and effective recognition and observance, both among
the peoples of member states themselves and among peoples of territories under their
jurisdiction.

Article 1: Article 1, which lays down the philosophy on which the Declaration is based. It
provides that all human beings are born free and equal in dignity and rights. They are endowed
with reason and conscience and should act towards one another in spirit of brotherhood. Thus
proclaiming the inherent freedom and equality in dignity and rights of all human beings.

Article 2: U/A 2, every person is entitled to all the rights and freedoms set forth within the
UDHR, without distinction as to race, color, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status.

Civil and Political Rights: Some of the Civil and Political Rights enumerated under UDHR
include: Right to life, liberty and security of person; Prohibition of slavery and slave trade;
Prohibition of torture, cruel and inhuman or degrading treatment or punishment; Right to be
recognized as a person before law; Equality before law and equal protection of the laws; etc.

Economic, Social and Cultural Rights: The Economic, Social and Cultural Rights are
enumerated in Articles 22 to 27 of the declaration. Some of them include: Right to social
security and right to realization of the economic, social and cultural rights indispensable for
everyone’s dignity and the free development of everyone’s personality; Right to equal pay for
equal work; Right to just and favourable remunerations; Right to form and to join trade unions;
Right to rest and leisure; Right to education; Right to participate in cultural life of the
community; etc.

Concluding Articles: Articles 28-30 of the declaration are concluding or miscellaneous

articles. They recognize that everyone is entitled to a social and international order in
which the human rights and fundamental freedoms set forth in the Declaration may be
fully realized, and stress the duties and responsibilities which each individual owes to his
community. Article 29 states that "in the exercise of his rights and freedoms, everyone
shall be subject only to such limitations as are determined by law solely for the purpose
of securing due recognition and respect for the rights and freedoms of others and of
meeting the just requirements of morality, public order and the general welfare in a
democratic society". It adds that in no case may human rights and fundamental freedoms be
exercised contrary to the purposes and principles of the United Nations. Article 30 emphasizes
that no State, group or person may claim any right, under the Declaration, "to engage in
any activity or to perform any act aimed at the destruction of any of the rights and
freedoms set forth" in the Declaration.

• Features of the UDHR

1. The remarkable feature of UDHR is that, it is not addressed to member states or nations
of the UN, but to the individuals. (Evident from Articles 1, 2)
2. The UDHR has exercised a powerful influence since its adoption, globally. It sets
standards by which national behaviour can be measured and to which nations states can
aspire.
3. Since its inception, the UDHR has been translated in over 200 languages, making it
truly universal. It is also the most cited human rights instrument in the world.
• Criticism of the UDHR
1. The UDHR holds no legal value and is not binding by nature due to the fact that it is a
resolution and a declaration, which is recommendations.
2. One of the important criticism of UDHR is that, it is a Western-biased document which
fails to account for the cultural norms and values which exist in the rest of the world.
More than that, it is an attempt to impose Western values on everybody else.
3. The declaration does not acknowledge that significant economic inequalities between
states will impair the ability of some to implement the recommendations.
4. There is no mention of the rights of peoples or minorities, other than in the general
terminology of non-discrimination.
d. International Covenant on Civil and Political Rights

• Background

The United Nations International Covenant on Civil and Political Rights (ICCPR) attempts to
ensure the protection of civil and political rights. It was adopted by the United Nations’
General Assembly on December 19, 1966, and it came into force on March 23, 1976, after
ratification by the 35th state. The International Covenant on Economic Social and Cultural
Rights, the Universal Declaration of Human Rights, and the ICCPR and its two Optional
Protocols, are collectively known as the International Bill of Rights.

• Purpose

The ICCPR recognizes the inherent dignity of each individual and undertakes to promote
conditions within states to allow the enjoyment of civil and political rights. Countries that
have ratified the Covenant are obligated “to protect and preserve basic human rights and
compelled to take administrative, judicial, and legislative measures in order to protect
the rights enshrined in the treaty and to provide an effective remedy.” There are currently
74 signatories and 168 parties to the ICCPR.

• Content

The ICCPR consists of a Preamble and 53 Articles.

Preamble: The keystone of the Covenant on Civil and Political Rights, 1966, are the
Charter provisions concerning human rights and the UDHR, 1948, which is rightly
reckoned as a mine from which all instruments on human rights have been quarried.

Moreover, considering the obligation of states under the charter of the United Nations to
promote universal respect for and observance of human rights and freedoms and realizing that
individual and to community to which he belongs, is under a responsibility to strive for the
promotion and observation of the rights recognised in the present covenant. (Meaning: the
provisions within the ICCPR have been mined or rather derived from the provisions
concerning human rights within the UN Charter, as well as the Universal Declaration of
Human Rights and the states are obliged to promote respect for and observance of human
rights under the UN Charter and this is further focused, by making it binding on the
states to do so.)

The covenant is divided into six parts:

Part 1: Reaffirms the right to self-determination.

Part 2: Formulates the general obligations by states notably to implement the covenant through
legislation and other measures to provide effective remedies to victims, ensure gender equality
and restricts possibilities of derogation.

Part 3: Spells out the rights enumerated within the covenant. Some of them are: the right to
life, the prohibition of torture, the right to liberty and security of a person, the right to freedom
of movement, the right to fair hearing, the right to privacy, freedom of peaceful assembly,
freedom of expression etc.

Part 4: Regulates the election of members to the Human Rights Committee, the state reporting
mechanism and the inter-state complains mechanism.

State parties are obliged to produce reports to the Committee which outline progress and
legislative, judicial and policy measures taken to fulfil their obligations under the
Convention. Each State is expected to submit a report one year after consenting to the
Convention and then after, at the request of the Committee (usually every four years).

Part 5: Stipulates that nothing in the covenant shall be interpreted as impairing the inherent
right of all people to enjoy and to fully utilise their natural resources.

Part 6: Provides that the covenant shall extend to all parts of federal states and sets out the
amendment procedure. The covenant is not subject to denunciation.

The unifying themes and values of the ICCPR are found in Articles 2 and 3 and are based on
the notion of non-discrimination. Article 2 ensures that rights recognized in the ICCPR will be
respected and be available to everyone within the territory of those states who have ratified the
Covenant (State Party). Article 3 ensures the equal right of both men and women to the
enjoyment of all civil and political rights set out in the ICCPR.

The rights protected under the ICCPR include:

Article 6 – Right to life. (States cannot derogate from these rights)

Article 7 – Freedom from torture. (States cannot derogate from these rights)Article 8 –
Right to not be enslaved. (States cannot derogate from these rights)

Article 9 – Right to liberty and security of the person.

Article 10 – Rights of detainees.

Article 11 – Right to not be imprisoned merely on the ground of inability to fulfil a
contractual obligation. (States cannot derogate from these rights)

Article 12 – Freedom of movement and choice of residence for lawful residents.

Article 13 – Rights of aliens.

Article 14 – Equality before the courts and tribunals. Right to a fair trial.

Article 15 – No one can be guilty of an act of a criminal offence which did not constitute
a criminal offence. (States cannot derogate from these rights)

Article 16 – Right to recognition as a person before the law. (States cannot derogate from
these rights)

Article 17 – Freedom from arbitrary or unlawful interference.

Article 18 – Right to freedom of thought, conscience and religion. (States cannot derogate
from these rights)

Article 19 – Right to hold opinions without interference.

Article 20 – Propaganda for war shall be prohibited by law.

Article 21 – Right of peaceful assembly.

Article 22 – Right to freedom of association with others.

Article 23 – Right to marry.

Article 24 – Children’s rights

Article 25 – Right to political participation.

Article 26 – Equality before the law.

Article 27 – Minority protection.

The rights set forth within the ICCPR are not absolute, and are subject to limitations.

• Limitations

Article 4 of ICCPR allows for certain circumstances for States Parties to derogate from their
responsibilities under the Covenant, such as during times of public emergencies. However,
State Parties may not derogate from Articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and
18.

• Optional Protocols

There are two optional protocols to the ICCPR which gives additional human rights
protections.

First Optional Protocol:

This protocol allows victims claiming to be victims of human rights violations to be heard. The
Human Rights Committee (Committee), which is established by the Covenant, has the
jurisdiction to receive, consider and hear communications from victims. The first Optional
Protocol came into force with the Covenant. There are currently 35 signatories and 115 parties
to this protocol.

Second Optional Protocol:

This protocol aims to abolish the death penalty. It was entered into force on July 11, 1991
and it currently has 37 signatories and 81 parties.

• Enforcement

Article 2(2) of ICCPR provides that State Parties are to take the “necessary steps…. to adopt
such laws or other measures as may be necessary to give effect to the rights recognized in the
present Covenant.” Countries that have ratified the ICCPR must takes steps in their own
jurisdictions to recognize the acceptance of this international covenant because, in
“international law, a signature does not usually bind a State. The treaty is usually subject to a
future ratification, acceptance, approval or accession.”

In addition to State Parties’ formally adopting and recognizing the ICCPR in their jurisdiction,
Article 28 of ICCPR provides for a Human Rights Committee (Committee) to be established
for monitoring the State Parties’ implementation of the Covenant. State Parties are required to
submit reports to the Committee for review, on measures used to adopt and give effect to the
rights enshrined in the ICCPR.

As mentioned above, the First Optional Protocol allows victims of human rights violation to
be heard by the Committee. However the ICCPR also provides in Article 41 that a State Party
who claims another State Party is not fulfilling its obligations to implement ICCPR, may make
written submissions to the Committee for consideration. Also, non-governmental
organizations (NGOs) may also participate in ensuring that values under the ICCPR are
protected by submitting ‘shadow reports’ and highlight areas for consideration by the
Committee.
e. Covenant on Economic, Social and Cultural Rights

• Background

The International Covenant on Economic, Social and Cultural Rights (ICESCR) was adopted
by the United Nations General Assembly (Resolution 2200 A (XXI)). The ICESCR was
adopted by the UN General Assembly on 16 December 1966 and came into force on 3 January
1976. As one of two international treaties that make the ‘International Bill of Human Rights’
(along with the Universal Declaration of Human Rights).

• Purpose

The ICESCR provides the legal framework to protect and preserve the most basic
economic, social and cultural rights.

The ICESCR includes inter alia the following human rights:

• Economic
Right to work, just and favourable conditions, right to strike, protection of property
• Social
Right to social security, right of families, mothers (before and after childbirth) and
children to special protection and assistance, right to an adequate standard of living,
right to health
• Cultural
Right to education and right to take part in cultural life

The ICESCR obliges states parties to undertake steps using the maximum of their
available resources and by all appropriate means to realise economic, social and cultural
human rights (principle of progressive realisation).

The ICESCR is considered as a ‘promotional convention’, stipulating the objectives more than
standards and requiring implementation over time rather than all at once.

However, an exception to this is, ‘the prohibition of discrimination’ (on the grounds of
race, colour, sex, language, religion or political and other opinion, national or social
origin, property and birth or other status) which is subject to immediate application.
Also, the international supervisory measures that apply to the covenant oblige the state parties
to report to the United Nations Economic and Social Council on the steps they have
taken/adopted and the progress made in achieving the realization of the enumerated rights.

• Content

The International Covenant on Economic, Social and Cultural Rights consists of Preamble and
31 Articles.

Preamble: The Preamble of ICESCR is similar to the preamble of ICCPR.

The reason for the similarities is common source for both of the covenants are the UN
Charter provisions on human rights and the Universal Declaration.

The 31 Articles of the ICESCR are classified into 4 parts:

1. General Provisions (Articles 1 to 5)

2. Substantive Rights (Articles 6 to 15)
3. Measures for implementation (Articles 16 to 25)
4. Concluding Provisions (Articles 26 to 31)

Article 1: All peoples have the right of self-determination, including the right to
determine their political status and freely pursue their economic, social and cultural
development.

Article 2: Each State Party undertakes to take steps to the maximum of its available
resources to achieve progressively the full realization of the rights in this treaty.
Everyone is entitled to the same rights without discrimination of any kind.

Article 3: The States undertake to ensure the equal right of men and women to the
enjoyment of all rights in this treaty.

Article 4: Limitations may be placed on these rights only if compatible with the nature of
these rights and solely for the purpose of promoting the general welfare in a democratic
society.

Article 5: No person, group or government has the right to destroy any of these rights.

Article 6: Everyone has the right to work, including the right to gain one's living at
work that is freely chosen and accepted.
 Article 7: Everyone has the right to just conditions of work; fair wages ensuring a
decent living for himself and his family; equal pay for equal work; safe and healthy
working conditions; equal opportunity for everyone to be promoted; rest and leisure.

Article 8: Everyone has the right to form and join trade unions, the right to strike.

Article 9: Everyone has the right to social security, including social insurance.

Article 10: Protection and assistance should be accorded to the family. Marriage must be
entered into with the free consent of both spouses. Special protection should be provided
to mothers. Special measures should be taken on behalf of children, without
discrimination. Children and youth should be protected from economic exploitation.
Their employment in dangerous or harmful work should be prohibited. There should
be age limits below which child labour should be prohibited.

Article 11: Everyone has the right to an adequate standard of living for himself and his
family, including adequate food, clothing and housing. Everyone has the right to be free
from hunger.

Article 12: Everyone has the right to the enjoyment of the highest attainable standard
of physical and mental health.

Article 13: Everyone has the right to education. Primary education should be
compulsory and free to all.

Article 14: Those States where compulsory, free primary education is not available to all
should work out a plan to provide such education.

Article 15: Everyone has the right to take part in cultural life; enjoy the benefits of scientific
progress.

• Implementation and review mechanism of ICESCR

Part 2, Article 2 of the ICESCR lays down the provisions of State Parties. It provides that each
state party takes the steps, individually and through international cooperation, to maximum of
the available sources, with a view to achieve progressively, the full realization of these rights,
including by legislative and other means.

The Committee on Economic, Social and Cultural Rights is the body that reviews states parties'
compliance with their obligations regarding economic, social and cultural rights.
Approximately every five years, each state party must submit a country report informing the
Committee of the measures adopted to implement the economic, social and cultural rights (see
Art. 16 and 17 ICESCR).

The provisions of implementation in the ICESCR are rather vague than those in the ICCPR.
They mainly comprise of the reporting procedure. The obvious reason for this lies within the
inherent nature of economic, social and cultural rights. The development of these rights
depend on various factors, differing from region to region, due to this, it is not possible to
prescribe strong measures for the implementation of such rights. Nor is it possible to
prescribe time-bound programme for achievement of these rights.

• Optional protocol

On 10 December 2008, the UN General Assembly adopted an optional protocol to the ICESCR
regarding an individual complaints mechanism. This protocol, which came into force on 5 May
2013, allows the Committee on Economic, Social and Cultural Rights to consider
complaints from individuals to the effect that a state which has ratified the optional
protocol has violated their rights under the ICESCR.
a. The International Bill of Human Rights

The International Bill of Human Rights consists of the most important instruments on
protection of human rights, which are as following:

1. The Universal Declaration of Human Rights, 1948;

2. The Covenant on Civil and Political Rights, 1966;
3. The Covenant on Economic, Social and Cultural Rights, 1966; and
4. The Optional Protocol to the Covenant on Civil and Political Rights, 1966.

The International Bill of Rights was a major collective undertaking by the global community.
It came into force on 2nd March, 1976, with coming into force of the Covenant on Civil and
Political Rights. The other important Covenant, the Covenant on Economic, Social and Cultural
Rights came into force on 3rd January, 1976.

These covenants are a legally binding instrument with the UDHR on which they are based
and the optional protocol providing the machinery for complaints from individuals.

The specific rights enumerated in various human rights instruments can be divided into several
categories (US Dept. Homeland Security, International Human Rights Law, Training Module):

• Individual security rights: protects individuals against crimes such as murder, massacre,
torture, and rape

• Due process rights: protects individuals against abuse of the legal system, such as
imprisonment without trial, trial with a jury, and excessive punishment

• Liberty rights: protects freedom of belief, freedom of religion, freedom of movement,

freedom to assemble, and freedom of association

• Political rights: protects an individual’s liberty to participate in politics, including activities

such as communicating, protesting, voting, and serving in political office.

The UDHR is a ground breaking and a standard setting document for human rights, however it
was not legally binding. The ICCPR and the ICESCR, along with their optional protocols are
legally binding on the ratifying states. However, their enforcement has been challenging, so
has the accountability of the states. Oppenheim has stated that “the degree of
enforceability of fundamental human rights is still rudimentary”.
The International Bill of Rights, while being a landmark document in human rights, the
significant gap between theory and practice of human rights still exists.
c. Genocide convention

Introduction:

The term genocide is derived from Greek term ‘genos’ (race) and Latin word ‘cide’ (killing).
Thus it refers to an act which is committed in order to partially or fully exterminate, a national,
racial, ethnic or religious group. (example: Jews killed by Nazis during the World War 2)

Due to the atrocities committed during the Second World War, it became necessary to
enact rules to prevent such acts from happening again.

The Genocide Convention has been ratified or acceded to by 152 States (as of July 2019). Every
year on 9 December, the United Nations marks the adoption of the Genocide Convention,
which is also the International Day of Commemoration and Dignity of the Victims of the Crime
of Genocide and of the Prevention of this Crime.

Background:

The Convention on the Prevention and Punishment of the Crime of Genocide (Genocide
Convention) is an instrument of international law that codified for the first time the crime
of genocide. The Genocide Convention was the first human rights treaty adopted by the
General Assembly of the United Nations on 9 December 1948, in Paris, and signified the
international community’s commitment to ‘never again’ after the atrocities committed
during the Second World War. Its adoption marked a crucial step towards the
development of international human rights and international criminal law as we know it
today.

According to the Genocide Convention, genocide is a crime that can take place both in time of
war as well as in time of peace. The definition of the crime of genocide, as set out in the
Convention, has been widely adopted at both national and international levels, including in the
1998 Rome Statute of the International Criminal Court (ICC).

Importantly, the Convention establishes on State Parties the obligation to take measures
to prevent and to punish the crime of genocide, including by enacting relevant legislation
and punishing perpetrators, “whether they are constitutionally responsible rulers, public
officials or private individuals” (Article IV). That obligation, in addition to the prohibition
not to commit genocide, have been considered as norms of international customary law
and therefore, binding on all States, whether or not they have ratified the Genocide
Convention.

Contents:

The Genocide convention consists of a Preamble and 19 articles.

Preamble: States that genocide is a crime under international law. Recognizes the loss
humanity caused by acts of genocide and it is contrary to the spirit and aims of the UN and is
to be condemned by the civilized world.

Article 1: The Contracting Parties confirm that genocide, whether committed in time of peace
or in time of war, is a crime under international law which they undertake to prevent and to
punish. (Defines genocide as an international crime, irrespective of whether it was during
the time of war or peace)

Article 2: Specifies specific acts which may be referred to as genocides. According to article
2, genocide is the commitment of certain acts which intend to destroy in whole or in such part
a national, ethnic, racial, religious groups. Acts consisting of genocide include- killing,
causing serious bodily or mental harm, deliberately inflicting conditions of life calculated
to bring about physical destruction in whole or in part imposing measures intended to
prevent birth and forcible transfer of children.

Article 3: Provides punishment for genocide, conspiracy to commit genocide, direct and public
incitement of genocide, complicity in genocide. Persons committing the above crimes shall
be punished whether they are constitutionally responsible rulers, public officers or
private individuals. The plea of the superior order cannot be taken by the persons committing
the crimes of genocide. Persons committing genocide shall be tried by the competent tribunal
of the state in the territory on which the act has been committed, or by such international penal
tribunal as may have jurisdiction.

Genocide shall not be regarded as a political crime for the purpose of extradition, and therefore,
state shall not refuse to extradite a person committing political crime.

Penalties of a person guilty of genocide are not specified in the convention. The convention
has provided that the contracting parties shall enact necessary legislation to provide
effective penalties.
Article 9: Stipulates that disputes between contracting parties relating to interpretation,
application or fulfilment of convention shall be submitted to the ICJ at the request of any parties
to the disputes.

States' obligations under the Genocide Convention:

• Obligation not to commit genocide (Article I as interpreted by the ICJ)

• Obligation to prevent genocide (Article I) which, according to the ICJ, has an
extraterritorial scope;
• Obligation to punish genocide (Article I);
• Obligation to enact the necessary legislation to give effect to the provisions of the
Convention (Article V);

Obligation to ensure that effective penalties are provided for persons found guilty of criminal
conduct according to the Convention (Article V);

Obligation to try persons charged with genocide in a competent tribunal of the State in the
territory of which the act was committed, or by an international penal tribunal with accepted
jurisdiction (Article VI);

Obligation to grant extradition when genocide charges are involved, in accordance with laws
and treaties in force (Article VII), particularly related to protection granted by international
human rights law prohibiting refoulment where there is a real risk of flagrant human rights
violations in the receiving State.
f. International Convention on the Protection of Rights of all Migrant Workers and Members
of their Family

Introduction

The International Convention on the Protection of the Rights of All Migrant Workers and
Members of Their Families was adopted by the General Assembly of the United Nations in
1990 (Resolution 45/158) without a vote . It entered into force in 2003 after 20 states had
ratified or acceded to it. The Convention established the Committee on the Protection of the
Rights of All Migrant Workers and Members of their Families (CMW), a body of independent
experts that monitors implementation of the convention by State parties.

The ICRMW sets minimum standards for migrant workers and members of their families, with
a focus on eliminating the exploitation of workers in the migration process. The reporting
cycle is an important process to ensure compliance of rights with international obligations
under the core human rights conventions. The cycle creates a unique opportunity to assess
the state of human rights protection within one’s own jurisdiction and to create a national plan
for effective policymaking and implementation of the rights recognized in the Convention.

The Convention defines groups of migrant workers in specific categories: frontier, seasonal,
self-employed, seafarer, and itinerant, and consists of nine parts: scope and definitions; non-
discrimination with respect to rights; human rights of all migrants; other rights of migrants who
are documented or in a regular situation; provisions applicable to particular categories of
migrants; the promotion of sound, equitable, humane, and lawful conditions in connection with
international migration; application of the convention; general provisions; and final provisions.

History

The International Convention on the Protection of the Rights of All Migrant Workers and
Members of Their Families was adopted by the General Assembly of the United Nations by its
resolution 45/158 of 18 December 1990 after many years of discussions, reports and
recommendations on the subject of migrants’ rights.

According to a UN Fact Sheet on The International Convention on Migrant Workers and its
Committee, “The United Nations first voiced concern about the rights of migrant workers
in 1972, when the Economic and Social Council expressed alarm at the illegal
transportation of labour to some European countries and at the exploitation of workers
from some African countries ‘in conditions akin to slavery and forced labour.’ In the
same year, the General Assembly condemned discrimination against foreign workers and
called upon Governments to end such practices and to improve reception arrangements
for migrant workers.”

“Following a request from the Economic and Social Council in 1973, the Sub Commission on
Prevention of Discrimination and Protection of Minorities adopted a report on the exploitation
of labour through illicit and clandestine trafficking in 1976. The report recommended the
drawing-up of a United Nations convention on the rights of migrant workers. This
recommendation was echoed at the World Conference to Combat Racism and Racial
Discrimination in Geneva in 1978 and in General Assembly resolution 33/163 on
measures to improve the situation and ensure the human rights and dignity of all migrant
workers.”

Following the adoption of a resolution by the General Assembly, “a working group open to all
Member States was established in 1980 to draw up a convention, and the international organs
and organizations concerned — the Commission on Human Rights, the Commission for Social
Development, the International Labour Organization, the United Nations Educational,
Scientific and Cultural Organization, and the World Health Organization were invited to
contribute to the task.” The working group finished drafting the Convention in 1990 and it was
adopted by the General Assembly without a vote.

The Convention entered into force 1 July 2003 after 20 States had ratified or acceded to it. In
1998, a Steering Committee for the ratification of the Convention, an alliance involving the
United Nations Secretariat, intergovernmental agencies and leading international human rights,
church, labour, migrant and women’s organizations, was convened and “coordinated
international and national activities to publicize the

Convention and raise awareness about it through its Global Campaign. According to the UN’s
Fact Sheet on the Convention, its work “led to a sharp increase in the number of ratifications
and signatures.”

The Convention is considered to be one of the seven “core” international human rights
treaties, which together form the United Nations human rights treaty system.

Contents
The International Convention on the Protection of the Rights of All Migrant Workers and
Members of Their Families (ICRMW) consists of a Preamble and 93 Articles, in nine parts.

Part I: Articles 1-6, contain the Convention’s scope and definitions.

Part II: Article 7, states that the Convention shall be applied to all migrant workers and their
families without discrimination of any kind.

Part III: Article 8-35, discuss the human rights of all migrant workers and their family
members.

Part IV: Articles 36-56, detail other rights of such workers.

Part V: Articles 57-63, cover provisions applicable to certain categories of migrant workers.

Part VI: Articles 64-71, discuss the ‘Promotion of sound, equitable, humane and lawful
conditions in connection with international migration of workers and members of their
families’.

Part VII: Articles 72-78, propose establishing a Committee on the Protection of Rights of All
Migrant Workers and Members of their Families composed of nationals of the State Parties to
the Convention. They prescribe the manner in which State Parties shall report the measures
they have adopted to observe the rights recognised by the Covenant.

Part VIII: Articles 79-84, contain ‘General provisions’.

And Part IX: Articles 85-93, discuss the processes by which the Convention is to be ratified
and amended.

Important Provisions

In addition to the definition of “immigrant” as “a person who is to be engaged, is engaged

or has been engaged in a remunerated activity in a State of which he or she is not a
national”, the Convention defines “members of a family” as “persons married to migrant
workers or having with them a relationship that, according to applicable law, produces
effects equivalent to marriage, as well as their dependent children.” As well, the
Convention distinguishes between “documented” or “regular” migrant workers and members
of their families” (i.e. those authorized to enter, to stay and to engage in a remunerated activity
in the State of employment pursuant to the law of that State and to international agreements to
which that State is a party) and “undocumented” or “irregular” (i.e. those that do not comply
with the above conditions).

The Convention requires the States parties to act in accordance with international human rights
instruments and ensure provision of the rights contained in the Convention without distinction
of any kind such as sex, race, colour, language, religion or conviction, political or other
opinion, national, ethnic or social origin, nationality, age, economic position, property,
marital status, birth or other status.”

Many of the articles in the Convention specify the application to migrant workers of rights
spelled out in the International Covenant on Civil and Political Rights and the International
Covenant on Economic, Social and Cultural Rights and the other core human rights treaties.

For example, inter alia:

• No migrant worker or family member shall be subjected to torture or to cruel, inhuman or

degrading treatment or punishment;

• No migrant worker or family member shall be held in slavery or servitude or required to

perform forced or compulsory labour; and

• Migrant workers and family members shall have the right to freedom of thought, conscience
and religion.

However the Convention also includes a number of rights addressing specific protection
needs and providing additional guarantees in light of the particular vulnerability of
migrant workers and members of their families.

For example, it:

• forbids the arbitrary deprivation of property;

• Safeguards against confiscation, destruction or attempts to destroy identity documents,

documents authorizing entry, residence or establishment in the national territory or work
permits;

• protects against collective expulsion;

• provides recourse to the protection and assistance of the consular or diplomatic authorities
of their State of origin whenever rights recognized under the Convention are impaired or
migrant workers or their family members are arrested or detained;
• ensures migrant workers shall enjoy treatment not less favourable than that which applies to
nationals of the State of employment in respect of remuneration, urgent medical care and
children’s access to education; • ensures respect for the cultural identity of migrant workers
and members of their families; and

• requires migrant workers and members of their families to be informed of their rights arising
out of the Convention as well as of the conditions of their admission and their rights and
obligations under the law and practice of the State concerned.

The Convention assigns additional rights to migrant workers and members of their families
who are classified as “documented” or “regular” migrant workers. Included are:

• The right to freely move in the territory of the State of employment and freely choose their
residence there;

• The right to form associations and trade unions and to participate in public affairs of their
State of origin, including voting and election; and

• Access to various economic and social services such as housing, protection against dismissal
and the enjoyment of unemployment benefits in the same manner as nationals. The Convention
also requires States parties, including States of transit, to collaborate with a view to preventing
and eliminating illegal or clandestine movements and employment of migrant workers in an
irregular situation. This is particularly relevant for the prevention and elimination of trafficking
in persons and the smuggling of migrants.

The Convention also requires States parties to “take all adequate and effective measures to
eliminate employment in their territory of migrant workers in an irregular situation.”

International Monitoring and Implementation

The Convention established the Committee on the Protection of the Rights of All Migrant
Workers and Members of their Families (CMW) to monitor the implementation of the
Convention by its State parties. It held its first session in 2004. The Committee on Migrant
Workers is currently composed of 14 independent experts who are elected for a term of
four years by States parties.

“All State 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 Convention
and then every five years.” The Committee examines each report and address its concerns and
recommendations to the State party in the form of concluding observations.

In addition, Article 77 of the Convention allows a State party to declare that it recognizes
the competence of the Committee to receive and consider communications from or on
behalf of individuals subject to its jurisdiction. Such Individuals should first have exhausted
all possible domestic remedies. This provision will take effect only after ten State parties have
made such a declaration. The Committee meets in Geneva and normally holds two sessions per
year. It can also publish statements on themes related to its work and interpretations of the
content of the provisions in the Convention.
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