Derechos Humanos HR1 - en - 121203

Human Rights
Course Author
Jessica C. Lawrence, J.D.
UPEACE Course Coordinator

Dina Rodríguez, MEd.
Series Editor
Harvey J. Langholtz, Ph.D.
Human Rights
Cover Photo: UN Photo #428063 by Olivier

Chassot. Children at Abu Shouk Internally
Displaced Persons (IDP) Camp on the outskirts
of El Fasher, Sudan, are photographed during
a visit from the newly appointed Independent
Expert on the situation of Human Rights in the
Sudan, Justice Mohamed Chande Othman. 3
February 2010.
Course Author
Jessica C. Lawrence, J.D.
UPEACE Course Coordinator

Dina Rodríguez, MEd.
Series Editor
Harvey J. Langholtz, Ph.D.
© 2012 Peace Operations Training Institute. All rights reserved.
Peace Operations Training Institute

1309 Jamestown Road, Suite 202
Williamsburg, VA 23185 USA
www.peaceopstraining.org
First edition: February 2012 by Jessica C. Lawrence, J.D.
The material contained herein does not necessarily reflect the views of the Peace Operations Training Institute (POTI),
the Course Author(s), the Australian Federal Police, or any United Nations organs or affiliated organizations. The Peace
Operations Training Institute is an international not-for-profit NGO registered as a 501(c)(3) with the Internal Revenue
Service of the United States of America. The Peace Operations Training Institute is a separate legal entity from the
United Nations. Although every effort has been made to verify the contents of this course, the Peace Operations Training
Institute and the Course Author(s) disclaim any and all responsibility for facts and opinions contained in the text,
which have been assimilated largely from open media and other independent sources. This course was written to be a
pedagogical and teaching document, consistent with existing UN policy and doctrine, but this course does not establish
or promulgate doctrine. Only officially vetted and approved UN documents may establish or promulgate UN policy or
doctrine. Information with diametrically opposing views is sometimes provided on given topics, in order to stimulate
scholarly interest, and is in keeping with the norms of pure and free academic pursuit.
Versions of this course offered in other languages may differ slightly from the primary English master copy. Translators
make every effort to retain the integrity of the material.
Human Rights
Table of Contents
Foreword x
Method of Study xi
History and Philosophical Foundations of Human Rights 12
Section 1.1 Human Rights: Conceptual and Philosophical Foundations 13
Section 1.2 Human Rights Before the Second World War 18
Section 1.3 The Universal Declaration and the Age of Norm-Setting and
Codification 22
Annex I: Universal Declaration of Human Rights 30
Developing Legally Binding Human Rights Treaties I: The ICCPR

38
Section 2.1 Introduction 39
Section 2.2 The International Covenant on Civil and Political Rights (ICCPR)
42
Section 2.3 Other Instruments dealing with Civil and Political Rights 50
Developing Legally Binding Human Rights Treaties II: The

ICESCR 63
PEACE OPERATIONS TRAINING INSTITUTE
v
Human Rights
Section 3.2 Economic, Social, and Cultural Rights 65
Section 3.3 Other Instruments dealing with Economic, Social, and Cultural
Rights 74
Section 3.4 Theoretical and Practical Issues 75
Annex III: International Covenant on Economic, Social and Cultural Rights 79
Enforcement Mechanisms I: the UN System 87
Section 4.2 Charter Bodies 91
Section 4.3 Treaty Bodies 100
Enforcement Mechanisms II: Regional and Other Actors 107
Section 5.2 The European System 110
Section 5.3 The Inter-American System 115
Section 5.4 The African System 119
Section 5.5 Other Regional Efforts 123
Section 5.6 Other Actors 126
Collective Rights I: Theoretical Perspectives and the Right to

Self-Determination 133
Section 6.2 Theoretical Perspectives 136
Section 6.3 The Right to Self-Determination 140
Collective Rights II: The Rights to Development, Environment,

and Peace 151
Section 7.2 The Right to Development 153
vi
Human Rights
Section 7.3 The Right to a Healthy Environment 160
Section 7.4 The Right to Peace 166
Human Rights of Vulnerable Persons and Groups I: Women’s

Rights 175
Section 8.2 Theoretical Perspectives 178
Section 8.3 Women’s Rights 182
Human Rights of Vulnerable Persons and Groups II: Children's

Rights and the Rights of Persons with Disabilities
203
Section 9.2 Children’s Rights 205
Section 9.3 The Rights of Persons with Disabilities 211
Annex IV: Convention on the Rights of Persons with Disabilities 219
Human Rights of Vulnerable Persons and Groups III: The

Rights of Minorities, Indigenous Peoples, and
Refugees 227
Section 10.2 The Rights of Ethnic, Religious, and Linguistic Minorities 229
Section 10.3 Indigenous Peoples’ Rights 235
Section 10.4 The Protection of Refugees 241
Human Rights During Armed Conflict I: Jus ad Bellum and the

Responsibility to Protect 251
Section 11.2 Jus ad Bellum 257
Section 11.3 The Responsibility to Protect 262
vii
Human Rights
Human Rights During Armed Conflict II: International

Humanitarian Law 269
Section 12.2 International Humanitarian Law 271
Section 12.3 Law and War 283
Human Rights During Armed Conflicts III: International

Criminal Law 289
Section 13.1 Introduction

290
Section 13.2 International Criminal Law

290
Section 13.3 Transitional Justice 297
Annex V: the Rome Statute of the ICC 303
Contemporary Debates on Human Rights I: Non-State Actors

and Terrorism 307
Section 14.2 Non-State Actors 310
Section 14.3 Human Rights and Terrorism 318
Contemporary Debates on Human Rights II: LGBT Rights,

Technology, and Effectiveness 331
Section 15.2 LGBT Rights 333
Section 15.3 Human Rights and Technology 338
Section 15.4 Effectiveness 346
Appendix A: List of Acronyms 353
Appendix B: Current Peacekeeping Missions 356
viii
Human Rights
About the Author: Jessica C. Lawrence 357
Instructions for the End-of-Course Examination 358
ix
Human Rights
Foreword
Over a mere 60 years, the international human rights system has become an important part of the legal,
moral, and political landscape. Human rights talk is everywhere: it is the language we use to express our needs,
our desires, and what we see as our entitlements. It provides a way for us to think about tragic events, a lens
through which to view and critique our society, and a set of aspirations that make up the core of liberal ideology.
This course is intended to be a short guide through the “babble of international instruments” that make up
the text of human rights theory and practice.1 We will cover the main international legal events, a little history,
a little philosophy, and examine the ways in which human rights have and have not been used for the protection
of individuals and groups. We will focus primarily on international materials, but will also look at some regional
practice. Domestic systems of human rights protection, despite their importance, will not be covered here.
Along the way, we will explore multiple perspectives on human rights (e.g. liberal, feminist, post-colonial), and
ask critical questions about how the international human rights movement has articulated and pursued its goals.
Throughout the course, students are encouraged to think of themselves “not as novices within an established,
even frozen framework of ideas and institutions, but rather as moulders and architects of the movement’s ongoing
development”.2
The international system for the protection of human rights continues to grow and change, and there are
important new developments every year. As such, it is important that students take the initiative to keep up with
their research, and seek to use the background and critical thinking skills that they gain in this course to analyse
events in the coming years.
–Jessica C. Lawrence
February 2012
View a video introduction of this lesson

at <https://www.peaceopstraining.org/
videos/28/course-introduction/>.
1) Patrick Thornberry, “An Unfinished Story of Minority Rights”, in Diversity in Action, A.M. Bíró and Kovács, eds. (Budapest, Central European University
Press, 2001), 47.
2) Henry J. Steiner, Philip Alston, and Ryan Goodman, International Human Rights in Context: Law, Politics, Morals (Third Edition) (Oxford, Oxford
University Press, 2007), preface.
x
Human Rights
Method of Study
This self-paced course aims to give students flexibility in their approach to learning. The
following steps are meant to provide motivation and guidance about some possible strategies
and minimum expectations for completing this course successfully:
• Before you begin studying, first browse through the entire course material. Notice the lesson
and section titles to get an overall idea of what will be involved as you proceed.
• The material is meant to be relevant and practical. Instead of memorizing individual details,
strive to understand concepts and overall perspectives in regard to the United Nations system.
• Set personal guidelines and benchmarks regarding how you want to schedule your time.
• Study the lesson content and the learning objectives. At the beginning of each lesson,
orient yourself to the main points. If possible, read the material twice to ensure maximum
understanding and retention, and let time elapse between readings.
• At the end of each lesson, take the End-of-Lesson Quiz. Clarify any missed questions by re-
reading the appropriate sections, and focus on retaining the correct information.
• After you complete all of the lessons, prepare for the End-of-Course Examination by taking
time to review the main points of each lesson. Then, when ready, log into your online student
classroom and take the End-of-Course Examination in one sitting.
» Access your online classroom at

<www.peaceopstraining.org/users/user_login>
from virtually anywhere in the world.
• Your exam will be scored electronically. If you achieve a passing grade of 75 per cent or higher
on the exam, you will be awarded a Certificate of Completion. If you score below 75 per cent,
you will be given one opportunity to take a second version of the End-of-Course Examination.
• A note about language: This course uses English spelling according to the standards of the
Oxford English Dictionary (United Kingdom) and the United Nations Editorial Manual.
Key Features of Your Online Classroom »

• Access to all of your courses;
• A secure testing environment in which to complete your training;
• Access to additional training resources, including multimedia course

supplements; and
• The ability to download your Certificate of Completion for any completed

course.
xi
HUMAN RIGHTS
LESSON
History and Philosophical
1 Foundations of Human Rights
Human rights is a language

we use to express our
needs, our goals, and what
we see as our entitlements.
UN Photo #84550 by Kari Berggrav.
In this lesson » Lesson Objectives »
Section 1.1 Conceptual and Philosophical • Define the term “human rights”.
Foundations
• Discuss the conceptual and philosophical foundations of
Section 1.2 Human Rights Before the Second human rights.
World War
• Describe the historical background of the international
Section 1.3 The Universal Declaration and human rights system.
the Age of Norm-Setting and • Discuss the role played by State sovereignty in the
Codification history of human rights.
Annex I The Universal Declaration of • Understand which rights are contained in the Universal
Human Rights Declaration of Human Rights.
12
LESSON 1 | History and Philosophical Foundations of Human Rights
The first session of the United Nations General Assembly opened on 10 January 1946 at Central Hall in London, United Kingdom.
Clement Attlee, Prime Minister of the United Kingdom, addressing the General Assembly. 10 January 1946. UN Photo #71052 by Marcel
Blolomey.
Section 1.1 Human Rights:

Conceptual and
Philosophical
Foundations
Introduction
Human rights are discussed everywhere. On any given day, we

read news stories about people fighting for human rights around at <https://www.peaceopstraining.
the world; we argue about free speech and religious tolerance; we org/videos/113/lesson-1-history-and-
philosophical-foundations-of-human-
make claims about what our governments should and should not
rights/>.
be allowed to do. Human rights is a language we use to express
our needs, our goals, and what we see as our entitlements.
13
It provides a way for us to think about tragic events — a lens through which to view and critique our society — and
is a set of aspirations that make up the core of liberal ideology. Human rights have become, in Richard Rorty’s words,
“a fact of the world”.1
But human rights is not just a way of thinking, it is also a set of legal and political doctrines. These doctrines limit
government power and shape individual expectations. They privilege certain behaviours and prohibit others. Their
structure reflects the particular historical context out of which they evolved, and their contours have stretched and
changed with the shifting landscape of global society.
In this introductory lesson, we will define human rights and discuss the evolution of the concept from its modern
origins to the adoption of the Universal Declaration of Human Rights (UDHR) in 1948. We will explore how and why
the human rights system developed as it did and encounter some alternative perspectives on what it has meant for
various groups of people.
As you read through this lesson, and through the rest of the course, try to think critically about the “story” that
it tells. Ask yourself:
• Who gains and who loses?
• Who makes the rules?
• Who and what is left out?
• Could things have happened differently? How?
• Could the story be told in another way?
Definition
The term human rights describes rights or entitlements that inherently belong to every human being by virtue
of their personhood. Human rights are the set of fundamental moral rights that are considered necessary for a life of
human dignity, and are premised on respect for the equality and autonomy of individuals. Human rights are:
• Universal: they are held by every person, everywhere, regardless of race, sex, nationality, religion,
language, class, or any other status;
• Inalienable: they cannot be renounced, lost, or forfeited; and
• Indivisible, interdependent, and interrelated: they are intrinsically connected and must not be viewed
in isolation from one another.2
All human beings hold human rights equally. In practice, however, all people may not enjoy the protection
of their rights at all times. For example, although all persons have a right to be free from inhuman or degrading
treatment, there are people all over the world who are suffering in overcrowded and unsanitary prisons, and who
are subjected to humiliating punishment, and tortured. These people have not lost their rights, but their rights have
been violated.
1) Richard Rorty, “Human Rights, Rationality, and Sentimentality”, in On Human Rights: The Oxford Amnesty Lectures 1993, Stephen Shute and
Susan Hurley, eds. (New York: BasicBooks, 1993), 134.
2) See: A/CONF.32/41, Proclamation of Teheran, Final Act of the International Conference on Human Rights, para. 13; and A/CONF.157/23, “Vienna
Declaration and Programme of Action”, para. 5.
14
On the Complexity of Human Rights »

“There is no more ambiguous word in legal and juristic
literature than the word right.”
–Roscoe Pound
from Volume IV of Jurisprudence
It is important to distinguish between moral rights and legal rights. Not all things that are desirable, or “right”
in the sense of “good”, are legal human rights. For example, it would be wonderful if everyone were given the
opportunity to learn to play a musical instrument. This would be a moral good, and we may use the language of
rights to express this desire (a “right” to learn to play), but there is no legal human right that protects this desirable
good.
Human rights structure relationships between people and the State, and, indirectly, between one person and
another. Human rights protect the dignity of human beings against intrusions. They privilege some actions, and
prohibit others. In this way, they help to define the boundaries between individual persons and the State, and also
between one individual and another. As Karl E. Klare wrote, “the human rights project is to erect barriers between
the individual and the State, so as to protect human autonomy and self-determination from being violated or crushed
by governmental power”.3
Rights are attached conversely to duties. If a person has the right to freedom from torture, then the State has a
corresponding duty not to torture her.
Human rights set rules for behaviour that “trump” or outrank the everyday rules established by political bodies
like State and local governments.4 However, rights are not absolute. They must be balanced against one another.
For example, suppose Johan wants to walk across Angela’s lawn to get to a party. Angela, though, has just planted
new grass, and does not want Johan to walk across it. In this case, Johan’s right to freedom of movement must be
balanced against Angela’s right to own and protect her property. This balancing is highly contextual, and depends to
a large extent on the factors of each specific case (for example, if Johan were trying to get to the hospital instead of
a party, we might be more sympathetic to his desire to walk across Angela’s lawn). In addition, governments may be
allowed to infringe on or restrict some human rights for compelling reasons, or during periods of emergency.5
International human rights law is a set of rules about how governments must act, or refrain from acting, in
order to protect and promote the rights and fundamental freedoms of individuals and groups. It is the formal legal
codification of human rights at the international level.
Under international human rights law, rights:
• Belong to a right-holder (the person who has the right);
• Have an object (what the right-holder has a right to); and
• Impose an obligation on an addressee (the party that is obliged to do or not do something to provide the
right-holder with the object of the right).6
3) Karl E. Klare, “Legal Theory and Democratic Reconstruction: Reflections on 1989”, University of British Columbia Law Review, vol. 25, No. 97, 1991.
4) Ronald Dworkin, “Rights as Trumps”, in Theories of Rights, Jeremy Waldron, ed. (Oxford: Oxford University Press, 1984), 153.
5) The ability to limit or derogate from certain human rights will be discussed in subsequent lessons (e.g. Lessons 2, 3, and 12).
6) James W. Nickel and David A. Reidy, “Philosophical Foundations of Human Rights”, in International Human Rights Law, Daniel Moeckli et al., eds.
(Oxford: Oxford University Press, 2009), 39–63.
15
Foundations of Human Rights »

“People may not agree why we have rights, but they
can agree that they need them.”
–Michael Ignatieff
from Human Rights as Politics and Idolatry (2003)
For example, with respect to “the right to life”, the right-holders are all individuals, the object is “life”, and the
addressee is the State, which is responsible for ensuring that the individual’s life is protected.
Now that we know what human rights are, we will turn to a second question: Where did human rights come from?
Furthermore, who made the rules? How did they become universal obligations that apply to everyone, everywhere,
all the time?
Philosophical foundations
While the human rights norms — rules, standards, and principles — that we speak of today are modern creations,
their philosophical origins can be traced back all the way back to ancient Greece, and some say even further.7 An oft-
used starting point is Sophocles’s play Antigone, which was written in the fifth century B.C. In that play, Antigone’s
brother has been killed while traitorously fighting against her kingdom. The king tells Antigone that her brother must
remain unburied as punishment for his treachery, but she defies the commands of her king, and claims the right to
give her brother a proper funeral:
“Your edict, King, was strong,

But all your strength is weakness itself against
The immortal unrecorded laws of God.
They are not merely now: they were, and shall be,
Operative forever, beyond man utterly.”8
Antigone’s argument is significant because it appeals to a natural law — a law of the gods or of nature — that must
prevail over the orders of the king. This natural law addresses all people everywhere, and trumps all man-made rules
and customs.
The idea of natural law persisted through the next several centuries, waxing and waning in importance with the
changing political times. During the European Enlightenment of the seventeenth and eighteenth centuries, however,
it assumed a central role. The ideas of rights and constitutionalism that infused the philosophies of Locke,
Montesquieu, and Rousseau drew heavily on this idea of a natural law that protected individual rights against the
whims of the sovereign.
This new liberal Enlightenment philosophy inspired a number of national movements that sought to enforce
the rights of individuals against the power of the State: the Glorious Revolution in England, the establishment of a
7) For an excellent selection of early secular and religious writings on liberty, tolerance, and codes of justice, see Micheline Ishay’s The Human Rights
Reader, 2007.
8) Sophocles, “Antigone”, in The Oedipus Cycle: An English Version, Dudley Fitts and Robert Fitzgerald, trans. (New York: Harcourt, Brace & World,
1949).
16
constitutional government in the United States, and the “French Declaration of the Rights of Man and of the Citizen”
are all examples of Enlightenment-inspired movements. Documents like the American Declaration of Independence
and Bill of Rights, the “French Declaration of the Rights of Man and of the Citizen”, and the national constitutions of
Mexico9 and Gran Colombia10 placed individual rights at the centre of the political order, establishing that each person
has inalienable natural rights and that the primary purpose of a government is to secure those rights for its people.
Today, our idea of human rights is still tied to the ideas of natural law and liberal individualism. “Human rights”
is premised on the notion that there are certain limits to government power based on a set of higher principles that
protect the individual. Modern philosophers disagree, however, about where these natural laws came from, how they
were discovered, and whether they are really “law” or just a set of pragmatic principles by which we have all agreed
to abide. In other words, there is a lot of disagreement about why we have rights. Different theorists locate the
origins or moral foundations of human rights in:
• God: the equal creation of human beings by God;
• Nature: the equal creation of human beings in nature;
• Human dignity: the protection of individuals from threats to their dignity;11
• Human agency: the protection of human beings as purposive moral agents;12
• Human needs: the protection of those things that human beings need to survive; or
• Collective prosperity: the need for all people to follow certain rules in order to prosper as a group.13
None of these foundations has ever been universally accepted across all cultures. This inexhaustive list of
moral groundings ranges widely across the philosophical spectrum, and even people from similar philosophical
traditions disagree strongly about which of these foundations should serve as the basis for human rights.
Jeremy Bentham, for example, famously rejected the idea that rights were grounded in natural law in favour of
a pragmatic utilitarian vision: “Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical
nonsense — nonsense upon stilts.”14
Disagreements about the moral foundations of human rights are important because these foundations can have
an impact on both the scope of human rights and its claims to universality.
These disagreements can lead to conflict about the scope or content of human rights. For example, if “human
rights” means “things that human beings need to survive”, then protecting a “right to culture” might seem superfluous.
However, if “human rights” means “the things people need to prosper”, then the “right to culture” becomes much
more fundamental.
The lack of a consensus with respect to the moral foundations of human rights also calls the universality of
human rights into question. Because the current system of international human rights law grew out of Western
European Enlightenment philosophy, some people argue that human rights is a Eurocentric idea that is biased
against non-Western countries and cultures. These “cultural relativists” believe that far from being universal, liberal
individualism and human rights are philosophies drawn exclusively from the European experience. They argue that
human rights doctrine ignores alternative forms of knowledge, such as those developed by collectivist or hierarchical
9) The Political Constitution of the Mexican United States, 1824.

10) Constitution of Cúcuta, 1821.
11) See: Jack Donnelly, Universal Human Rights in Theory and Practice, 1989.
12) See: James Griffin, On Human Rights, 2008, 33–56; Alan Gerwith, Human Rights, 1983.
13) See: John Rawls, The Law of Peoples, 1999.
14) Jeremy Bentham, “Anarchical Fallacies”, in Nonsense Upon Stilts: Bentham, Burke and Marx on the Rights of Man, Jeremy Waldron, ed. (London:
Methuen Publishing, 1987), 53.
17
cultures, and question why some rights, but not others, have been included in international human rights law. Others
see human rights as a means for capitalist States to paper over the dark side of liberal individualism and hide the
reality of class struggle behind a false screen of egalitarianism.
Agreement on a single moral foundation, however, is not necessarily indispensable for the practice and
application of human rights. Indeed, many scholars argue that having plural groundings actually makes the system
more legitimate by allowing it to appeal to a broader range of groups than insistence on a single foundation would
permit.15
One thing is certain: whether their foundations are single or plural, questionable or not, human rights are
now indisputably a global political phenomenon. States all over the world, from the most democratic to the most
oppressive, feel compelled to express their support for human rights, and many incorporate human rights principles as
integral parts of their national ideologies. As scholar John Tasioulas notes: “discourse of human rights in recent times
[has been elevated] to the status of an ethical lingua franca”.16
How, though, did this concept of individual rights move from the national to the international sphere? How and
when did it become the responsibility of the international community to ensure the protection of individual human
rights?
Section 1.2 Human Rights Before the Second World War
Human rights, the State, and international law
The history of human rights is inextricably bound up with the history of the modern State. On the one hand, the
State is the organization best suited to, and primarily responsible for, protecting the human rights and fundamental
freedoms of its citizens. Indeed, protections for individual freedoms were first introduced and codified in the context
of the State. On the other hand, States have often been the perpetrators of human rights abuses, and are frequently
the very organizations against which individual rights must be protected.
Human rights mediate this distinction between the State as protector and the State as abuser. They set the
boundary between legitimate and illegitimate intrusions by the State on individual dignity and autonomy, drawing the
line between acceptable and unacceptable exercises of State power. In other words, they are a way for individuals to
enforce their own power against their government and its laws and actions.
In an open society with an established and independent judiciary system, individuals can enforce their
human rights against the State by bringing claims before national courts. The court hears the case and makes a
judgment on whether the State’s action was permissible or not. This judgment is then enforceable against the State
and the individual. For example, if the State of Arcadia imposes a law that prevents blonde-haired people from
voting, those affected can bring a case against the government in Arcadia’s courts, and get a judgment saying that
they must be allowed to vote. The police of Arcadia would then be obliged to enforce this ruling.
Unfortunately, not every country has strong police and judiciary systems. Laws may be unclear or inadequate,
police and judges may lack the resources to act, officials may demand bribes before proceedings can begin, or the
courts may not be independent from the legislative and executive branches of government. Even when the police and
15) Michael Ignatieff, Human Rights as Politics and Idolatry, Amy Gutmann, ed. (Princeton: Princeton University Press, 2003).
16) John Tasioulas, “The Moral Reality of Human Rights,” in Freedom from Poverty As a Human Right: Who Owes What to the Very Poor? Thomas Pogge,
ed. (Oxford, Oxford University Press, 2007), 75. See also: Jürgen Habermas, Religion and Rationality: Essays on Reason, God, and Modernity, Eduardo
Menieta, ed. (Cambridge: The MIT Press, 2002), 153–154.: “Notwithstanding their European origins, … in Asia, Africa, and South America, [human
rights now] constitute the only language in which the opponents and victims of murderous regimes and civil wars can raise their voices against violence,
repression, and persecution, against injuries to their human dignity.”
18
judiciary are strong, State governments may ignore their responsibility to protect the human rights of individuals.
When this happens, how can human rights be enforced?
One way is through intervention by other States or by the international community under the aegis of
international law.
Traditionally, international law was defined as the law that governed relations between and among sovereign
States. Sovereignty, in this context, referred to the idea that States are autonomous political units that recognize no
higher authority. Under this system, sovereign States had total control of what happened within their borders, and
other States had an obligation not to intervene in their domestic affairs (known as the principle of non-intervention).
The States imagined by this system are sometimes compared to billiard balls: solid, opaque and impenetrable
spheres that interact with one another only as unified wholes. This international order based on the principles of
sovereignty and is known as the Westphalian system, because many scholars trace its origins to the 1648 Peace of
Westphalia, which ended the Thirty Years’ War in Europe.
The "Billiard Ball" Model
State B
State A State C
Figure 1-1
Under this system of State sovereignty, only States, not individuals, could be the subjects of, or the right-
holders under, international law. Individuals existed only as objects of international law: any obligations owed to
them were deemed to be obligations to their State of nationality. A State could bring a claim against another State
on behalf of its own mistreated citizens, but these claims were made under the legal theory that an injury done to
a citizen of a State was an injury done to that State, not under any theory of direct protection of individuals. How a
State treated its own nationals or Stateless persons was neither the business of international law nor of other States.
The veil of sovereignty was largely impermeable. Under this system, human rights were a domestic political matter,
and the international community had no right to intervene. As one scholar put it:
“Until World War II, most legal scholars and governments

affirmed the general proposition, albeit not in so many words,
that international law did not impede the natural right of each
equal sovereign to be monstrous to his or her subjects.”17
It may seem surprising that it was only very recently that international law began to apply to individuals as
well as to States, and that human rights became a subject of international concern and regulation. In fact, there
17) Tom J. Farer and Felice Gaer, “The UN and Human Rights: At the End of the Beginning”, in United Nations, Divided World (Second Edition), Adam
Roberts and Benedict Kingsbury, eds. (Oxford: Oxford University Press, 1993), 240.
19
were exceptions to the hard-and-fast rule of State sovereignty that gave

nations total control within their borders. These exceptions, though,
were limited by the nature of the system of sovereign States to a very
narrow range of issues that could be said to “directly concern” foreign
States in the sense of infringing on their political or economic interests.
International human rights law represented a major change from

this traditional pattern. In the eighteenth and nineteenth centuries,
concern for the rights of individuals and groups began to appear in
international law, and States began to acknowledge that certain human
rights situations were legitimate targets for international action.
One of the earliest human rights movements was the effort to

abolish the slave trade, and later the holding of slaves, in Europe and
The medallion of the British Society for
the Americas. Beginning with the 1815 Congress of Vienna, the major
Abolition of the Slave Trade. 1795. Josiah
powers of Europe18 worked together to draft treaties that called for Wedgwood.
an end to the international slave trade. Even with respect to slavery,
however, the early treaties dealt only with the international trade of slaves — that is, the transportation of slaves
between States — and not with slavery per se, or the treatment of slaves within States. It would take more than a
hundred years before a major international treaty abolished slavery altogether.19
Modern international human rights law is grounded in a number of historical legal doctrines and institutions
dating from the period before the Second World War. In particular, early international laws governing the protection
of minorities, State responsibility for injuries to aliens, and humanitarian intervention formed the backbone of pre-
WWII international human rights practice.
Protection of minorities and the League of Nations
Some of the earliest international human rights treaties were designed to protect minority rights. For example,
following the “liberation” of the Balkans from Turkish domination in nineteenth century, nations signed international
agreements to protect Christian minorities in the Ottoman Empire.20 These treaties were selective in their application
and, some have argued, could be said to have imperialistic rather than altruistic aims. Nevertheless, they represented
an internationalization of certain human rights issues, allowing States to intervene in other States’ affairs on behalf
of protected populations.
Following the First World War, there was renewed interest in protecting the rights of minorities. In his “Fourteen
Points” and elsewhere, then-United States President Woodrow Wilson stressed the ideals of freeing minorities and
self-determination of peoples as key components of liberal nationalism. He went so far as to propose the inclusion of
generalized norms of minority protection in the 1920 Covenant of the League of Nations, but the other major powers
rejected this approach.21 In the end, the Covenant of the League of Nations did not include any general provisions on
human rights. It did, however, contain two articles establishing protections for certain groups:
• Article 22 transformed colonies held by States that lost the First World War into “League Mandates” to be
administered by the victorious powers pursuant to “the principle that the well-being and development of
[native] peoples form a sacred trust of civilisation … ”
18) The “Great Powers” of Europe at the time were Austria, France, Russia, the United Kingdom, and Prussia.
19) Paul Gordon Lauren, The Evolution of International Human Rights: Visions Seen (Philadelphia: University of Pennsylvania Press, 2003), 37–45.
20) These agreements included the Treaty of Paris (30 March 1856) and the Treaty of Berlin (13 July 1878).
21) Henry J. Steiner, Philip Alston, and Ryan Goodman, International Human Rights in Context: Law, Politics, Morals (Third Edition) (Oxford: Oxford
University Press, 2007), 98.
20
• Article 23 obliged States, among other things, to “endeavour to secure and maintain fair and humane
conditions of labour for men, women, and children, both in their own countries and in all countries to which
their commercial and industrial relations extend”. It also called for the establishment of an international
organization to promote this objective, which led to the establishment of the International Labour Office
(now the International Labour Organization).
In addition to these two articles, the League of Nations served as guarantor for the system of so-called Minorities
Treaties that were imposed on the States of Central and Eastern Europe. This “minorities system” was established by
a series of post-First World War treaties that included provisions for the protection of ethnic and religious minorities.22
Under these treaties, nations agreed not to discriminate against protected minorities, and also to grant certain
special protections necessary for the preservation of minority religious, ethnic and linguistic traditions. The League
of Nations helped to ensure compliance with these provisions by developing a system for reviewing petitions alleging
violations of minority rights. According to this system, a Committee of Three of the League Council would hear the
petition as well as arguments by the States, and give its opinion on the complaint.
This early protection of group rights was a significant development.23 Though it faded quickly and was ultimately
incapable of halting the tragic events of the Second World War, it represented a clear incursion on the State’s absolute
internal control over its citizens.24 These advances were not made in a purely altruistic spirit, nor did they represent
a complete shift from the earlier phase of intervention only on the grounds of potential damage to a State’s political
or economic interest. In fact, minority rights were promoted by the victorious States following the First World War
largely as a strategy to preserve international peace, and were enforced only within the borders of recently defeated
or newly created nation-States, not within the territories or colonies of the victors. Nevertheless, they formed one of
the early pillars of human rights law, and one that paved the way for innovations to come.
State responsibility for injuries to aliens
As noted in Section 1.2, while individuals were not directly granted any rights under international law, States
could bring claims against other States on behalf of their own nationals. When and how States could do this was
governed by the doctrine of State responsibility for injuries to aliens. Basically, the doctrine applied in situations
where a citizen of State X was directly injured by the government of State Y — if State Y, for example, imprisoned the
foreign citizen without a trial, or seized her property without due process or adequate compensation. After suffering
such an injury in contravention of so-called “minimum standards of treatment”, under international law, the citizen
of State X would first be required to exhaust local remedies by bringing suit in the courts of State Y, and then, if
the courts of State Y were unavailable or refused to help, the citizen of State X could turn to international law and
ask for the diplomatic protection of State X. At that point, the dispute would be transformed into a dispute between
States X and Y. It remained up to State X, however, to decide whether or not and to what extent it would intervene.
Depending on the circumstances, it could commence informal talks with State Y; make a formal diplomatic protest;
exert economic, political, or even military pressure against State Y; bring the case before an international tribunal;
or do nothing.25
The doctrine of State responsibility grew out of a number of different channels, including diplomatic protests,
arbitral decisions, inter-State negotiations, and scholarly writings. It reflected the increasing identification of the
individual with the State and the rise of the age of nationalism. It was also partially a product of Western colonialism
22) Treaty of Versailles, 28 June 1919.

23) For more on group rights, see Lessons 6 and 7 on “collective” rights and Lesson 10 on the rights of minorities.
24) Henry J. Steiner, Philip Alston, and Ryan Goodman, 106.
25) Ibid., 86–87.
21
and imperialism, and the desire to protect the corporate and individual nationals of Western States against actions
taken by Third World or developing States.26 Nevertheless, it represented an important step in the creation of an
international norm that individuals should enjoy some basic protection of their rights irrespective of their national
origin.
International Humanitarian Law
International humanitarian law (IHL), known as jus in bello or “law of war”, governs the protection of rights
during armed conflict (not to be confused with jus ad bellum, the law that governs whether a given war is just,
or legally begun). This branch of international law developed out of States’ desire to reduce the horrors of war for
their own citizens. Modern international humanitarian law stretches back to the First Geneva Convention of 1864:
the Convention for the Amelioration of the Condition of the Wounded in Armies in the Field.27 Adopted as part of the
establishment of the International Committee of the Red Cross (ICRC), this convention sought to protect medical
personnel, hospital installations, non-combatants giving aid to the wounded, and sick and wounded combatants
during combat situations.
After the adoption of the First Geneva Convention, nations came together on a frequent basis to codify the laws
of war in international treaties. Several more humanitarian law conventions with human rights aspects were agreed
upon prior to the Second World War. For example, the Hague Convention III of 1899 established humanitarian rules
during naval warfare,28 and the 1929 Geneva Convention set rules for the treatment of prisoners of war.29 We will
return to the topic of international humanitarian law and discuss the four Geneva Conventions of 1949 and other
post-Second World War IHL instruments in Lesson 12.
Even these humanitarian treaties, however, failed to pierce the veil of State sovereignty. None addressed the
relationship between a State and its own citizens, or provided protections against acts of the home State during
times of war.
As evidenced by all of these treaties, the idea that the rights of persons could be protected under international
law was gradually gaining favour and becoming an established principle. The majority of nations, however, had
still not accepted the idea of generally applicable international guarantees on human rights, and the sovereignty
of States continued to be the guiding principle of international law. Human rights remained, for the most part, a
domestic concern.
Section 1.3 The Universal Declaration and the Age of Norm-Setting

and Codification
The Second World War and the UN Charter
The Holocaust was the catalysing event that sparked the modern human rights movement and indelibly
altered the relationship between the individual, the State, and international law. During the Second World
War, millions of civilians were imprisoned and murdered by the Nazi regime on the basis of their religion,
ethnicity, political affiliation, disability, or sexual orientation. Six million Jews, half a million Gypsies, and tens
26) Ibid., 87–88.

27) The full Convention for the Amelioration of the Condition of the Wounded in Armies of the Field can be found at <http://www.icrc.org/ihl.nsf/
FULL/120>.
28) The full Convention (III) for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention of 22 August 1864 can be found at
<http://www.icrc.org/ihl.nsf/FULL/155>.
29) The text of the Convention relative to the Treatment of Prisoners of War can be found at <http://www.icrc.org/ ihl.nsf/FULL/305>.
22
Mrs. Eleanor Roosevelt of the United States holding a Declaration of Human Rights poster in English. 1 November 1949. UN Photo
#1292 by United Nations.
of thousands of Communists, homosexuals, church activists, and others were killed during this reign of terror.
The Allied governments, though they were the eventual victors, failed to intervene to halt the genocide or rescue the
victims of Nazi death camps until the war was coming to an end.
Horrified at the barbarism that had taken place during the war, the Allies established the Nuremberg and Tokyo
War Crimes Tribunals to prosecute German and Japanese leaders for war crimes and crimes against peace. The
Nuremberg and Tokyo Trials have been criticized as legally unjust because they punished the accused for wrongs that
were moral but not legal crimes at the time of commission, and as “victor’s justice” because members of the Allied
governments were never scrutinized by the Tribunal. Nevertheless, the Trials represented an important step in the
internationalization of human rights law, and promoted the idea that individuals could be held legally responsible for
violations of international human rights and humanitarian law — even when those violations victimized the State’s
own people.
After the Second World War, the international community came together to form a new international organization
for the primary purpose of maintaining international peace and security: the United Nations (UN). It was in the
Charter of the United Nations that the general protection of human rights was first given formal status as a part of
international law.
23
The term “human rights” is mentioned seven times in the Charter.30 Most importantly, the preamble sets out
the determination of Member States “to reaffirm faith in fundamental human rights, in the dignity and worth of the
human person, in the equal rights of men and women of nations large and small”. Article 1 lists “encouraging respect
for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion” as
one of the UN’s primary purposes.
The affirmation of human rights in the UN Charter cemented the protection of individual rights as part of the
international agenda. However, the human rights guaranteed in the Charter remained vague and aspirational in
tone and were dwarfed by the overall emphasis on security issues. Nowhere does the Charter define human rights
or assign States any concrete responsibilities with respect to protecting, enforcing, or otherwise realizing them. If
human rights were to become enforceable legal obligations, then these norms would need to be spelled out and
codified.31
English version of a poster depicting the Universal Declaration

of Human Rights. The Declaration was adopted and proclaimed
by United Nations General Assembly resolution 217 A III of
10 December 1948. 1 November 1949. UN Photo #63484 by
United Nations.
The Universal Declaration of Human Rights
In order to enumerate and codify the content of human rights, the UN Economic and Social Council (ECOSOC)
established the 1946 Commission on Human Rights.32 The Commission — whose members included such distinguished
founders of the human rights movement as René Cassin of France, Charles Malik of Lebanon, and Eleanor Roosevelt
of the United States — was tasked with preparing “a preliminary draft International Bill of Human Rights” that would
define the human rights and fundamental freedoms of all human beings.
Even at this early stage, the draft International Bill of Human Rights was controversial. Some States wanted
the draft to take the form of a declaration: a recommendation by the General Assembly to UN Member States that
would have moral and political — but no legal — force. Others urged the Commission to prepare a draft convention:
a legally binding document that would be submitted to the States for ratification.
Ultimately, the Commission took the former path, and their UDHR was adopted by the UN General Assembly on
10 December 1948, with 48 States voting in favour and eight abstaining. In commemoration of this historic event,
December 10 is celebrated as Human Rights Day.
30) The Preamble and Arts. 1, 13, 55, 62, 68, and 76.
32) E/RES/9 (II), 21 June 1946.
24
It was in this landmark document that human rights were first codified at the global level.33 The UDHR consists
of a Preamble and 30 articles defining the human rights and fundamental freedoms to which all people are entitled.
It begins with the Statement that the “recognition of the inherent dignity and of the equal and inalienable rights of all
members of the human family is the foundation of freedom, justice and peace in the world” and that “the advent of
a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been
proclaimed as the highest aspiration of the common people”.34 It therefore calls on all States to “promote respect for
these rights and freedoms and by progressive measures, national and international, to secure their universal and
effective recognition and observance …”35
» Take a moment now to read through the UDHR, attached as Annex I.
Recall the preceding discussion of the philosophical foundations of human rights. Article 1 of the UDHR describes
the declaration’s ideological bases thus:
“All human beings are born free and equal in dignity and rights.
They are endowed with reason and conscience and should act
toward one another in a spirit of brotherhood.”36
Writing Exercise 1: Updating the UDHR »

You are a member of a UN committee that is tasked with reviewing the UDHR for the
new millennium. The General Assembly has asked you to make recommendations on the
continuing relevance of the declaration and to suggest changes where you think they may be
necessary.
Consider the following questions and write a brief report:
» Do any of the rights contained in the UDHR seem “old-

fashioned” or unnecessary? Is something missing that
you would like to see included in a revised declaration?
» What moral foundation are your recommendations

based on? Would your answer to the previous question
be different if you recognized a different moral
foundation for human rights?
» Do you think that the States would agree with your

proposals? Why or why not? What might the points of
contention be?
33) It should be noted that the UDHR was actually the second international human rights document to be adopted. The “American Declaration on the
Rights and Duties of Man” dates from several months earlier, in April 1948. The American Declaration, however, applied only in the region of the
Americas, whereas the UDHR was global in scope. See Lesson 5 for further discussion on the Inter-American human rights system.
34) UDHR, Preamble.
35) Ibid.
36) Ibid., Art. 1.
25
In this programmatic Statement it is possible to identify a number of different moral groundings of human
rights. The phrases “born free and equal” and “a spirit of brotherhood” could imply that the human rights contained
in the UDHR stem from the equal creation of human beings by God, or in nature. The phrase “equal in dignity and
rights” could imply that human rights have their origin in the dignity of persons, and the phrase “endowed with
reason and conscience” could signal that these rights grow out of the agency of persons. There is something in this
Statement for persons from many different philosophical traditions.
Cultural Relativism: The Debate »

“Sanctimonious to a fault, the UDHR underscored its arrogance by proclaiming itself the
common standard of achievement for all peoples and nations. The fact that a half-century
later human rights have become a central norm of global civilization does not vindicate their
universality … Non-Western philosophies and traditions particularly on the nature of man and
the purposes of political society were either unrepresented or marginalized during the early
formation of human rights …
“There is no doubt that the current human rights corpus is well-meaning. But that is beside
the point … International human rights fall within the historical continuum of the European
colonial project in which whites pose as saviors of a benighted and savage non-European
world. The white human rights zealot joins the unbroken chain that connects her to the
colonial administrator, the Bible-wielding missionary, and the merchant of free enterprise …”
–Makau Mutua
from “The Complexity of Universalism in Human Rights” (2004)
“It is sometimes suggested that there can be no fully universal concept of human rights, for it
is necessary to take into account the diverse cultures and political systems of the world. In my
view this is a point advanced mostly by States, and by liberal scholars anxious not to impose
the Western view of things on others. It is rarely advanced by the oppressed, who are only
too anxious to benefit from perceived universal standards. The non-universal, relativist view
of human rights is in fact a very State-centered view and loses sight of the fact that human
rights are human rights and not dependent on the fact that States, or groupings of States,
may behave differently from each other so far as their politics, economic policy, and culture
are concerned. I believe, profoundly, in the universality of the human spirit. Individuals
everywhere want the same essential things: to have sufficient food and shelter; to be able to
speak freely; to practise their own religion or to abstain from religious belief; to feel that their
person is not threatened by the State; to know that they will not be tortured, or detained
without charge, and that, if charged, they will have a fair trial. I believe there is nothing in
these aspirations that is dependent upon culture, or religion, or stage of development. They
are as keenly felt by the African tribesman as by the European city dweller, by the inhabitant
of a Latin American shanty-town as by the resident of a Manhattan apartment.”
–Rosalyn Higgins
from Problems & Progress: International Law and How We Use It (1994)
26
Despite this attempt to ground human rights in a broad range of cultural traditions, there remain objections from
some cultural relativists. Because of their colonial status, which barred them from being independent members of the
UN, many African and Asian countries could not participate in the drafting of the UDHR. Their ideas were therefore
not incorporated into this founding human rights document. Because of this, as we will see in Lesson 5, many people
have argued that the UDHR and the international human rights system that is founded upon it favour individual civil
and political rights over collective solidarity rights, and that the universal system is therefore not truly universal at
all.
For example, compare the two passages in the box below, arguing for and against a position that might be
termed “cultural relativist”. What does each scholar argue? Why? Do you agree?
The UDHR is classifiable as a “recommendation”, and therefore lacks legal enforceability (although many argue
that over time it has become, at least in part, enforceable as customary international law). In fact, Professor Michael
Ignatieff has pointed out that the parties to the UDHR “never actually believed that it would constrain their behavior”
since it “lacked any enforcement mechanism,” such as a court that could impose penalties on violators.
Despite the fact that declarations by the UN General Assembly are non-binding, however, they can have great
moral and persuasive force. The UDHR established a common understanding of the human rights and fundamental
freedoms referred to in the UN Charter. In principle, it signified that the relationship between States and individuals
was no longer a matter of purely domestic law, absolutely exempt by interference from third States or the institutions
of the international community. It represented a major break with the Westphalian system: from now on, it would be
hard for States to argue that the sovereign had the right to be “monstrous to his or her subjects”.37
Customary International Law »

When we say a something is customary international law, what does this mean?
Customary law is the general practice of States that is accepted as law. In order for
something to become a part of customary international law, there must be evidence of:
» Acts amounting to “settled practice” of States, which may include:
• National legislation;
• National policy documents;
• Judgments of national courts;
• Actions by State agents (domestically or internationally);
• Voting patterns in international organizations (according to some); and
» Opinio juris, the belief that a practice is rendered obligatory by the existence
of a rule of law requiring it.
Customary law is binding on all States, whether or not they express their consent to be
bound, and even in the absence of individual State practice. The only exception is for
“persistent objectors”: States that objected to a customary rule during its formation, and
continue voicing their objection in a persistent manner.
37) Tom J. Farer and Felice Gaer, 240.
27
Human rights in the UDHR
The UDHR contains two broad categories of rights:
• Civil and political rights; and
• Economic, social, and cultural rights.
Civil and political rights are rights that protect the personal freedoms and civil liberties of individuals. Most of
these are so-called negative rights: rights that prevent a government from interfering with individual freedoms (as
opposed to requiring a government to do something to fulfil human rights). In other words, negative rights are the
right to freedom from something. Civil and political rights were the first set of rights to be protected within the State,
and have become a standard part of national constitutions under the classical liberal model. For this reason, they are
also sometimes known as first-generation rights. The civil and political rights recognized in the UDHR are contained
in Articles 3 through 20. They include:
• The right to life, liberty, and security of person;
• The right to freedom from slavery;
• The right to freedom from torture and cruel, inhuman, or degrading treatment;
• The right not to be subjected to arbitrary arrest, detention, or exile;
• The right to a fair trial by a competent tribunal, presumption of innocence, and freedom from the application
of ex post facto laws;
• The right to privacy;
• The right to own property;
• The right to freedom of speech, religion, and assembly; and
• The right to freedom of movement.
Economic, social, and cultural rights are rights that protect the socio-economic dignity of persons. Many of these
rights are so-called positive rights: rights that require a government to do something to fulfil them (as opposed
to preventing a government from interfering with them). In other words, positive rights are a right to something.
Economic, social, and cultural rights appeared much later than civil and political rights, and are largely a creation of
the twentieth century. For this reason, they are sometimes known as second-generation rights. The economic, social,
and cultural rights recognized in the UDHR are contained in Articles 22 through 27. They include:
• The right to social security, work, protection against unemployment, and equal pay;
• The right to rest and leisure;
• The right to an adequate living standard;
• The right to education; and
• The right to participate in the cultural life of the community.
The split between civil and political rights and economic, social, and cultural rights was in part a result of a
similar split within the United Nations itself. During the period after the Second World War and for several decades
to come, the UN was divided between a group of Western States on the one hand and socialist States on the other.
The Western States were keen to restrict the rights contained in the UDHR to the types of civil and political rights
that had been codified in their national constitutions over the past century. The socialist States, by contrast, favoured
the inclusion of economic, social, and cultural rights in the text of the declaration. In order to conclude the drafting
28
phase with the support of both political camps, the UDHR had to be a compromise between the two positions and
thus included some aspects of both sets of protections.
The divisions between negative and positive rights, and between first-, second-, and the emerging third-
generation rights (which we will encounter in later lessons), are quite controversial and many people object strongly
to dividing up rights into these categories. While these distinctions can be useful tools when thinking about human
rights, it is important to remember that they are rough and imprecise, and leave out many subtleties. Relying too
heavily on such categories can therefore be misleading.
For example, with respect to the distinction between negative rights and positive rights, it is not entirely true
that negative rights require that a government refrain from acting, while positive rights require a government to act.
In order for the government to respect and uphold the human right “to own property”, for instance, it must not only
refrain from preventing individuals from holding property, but also establish a complicated system of law that defines
rights and ownership as well as a system of enforcement that polices and protects the property rights of citizens.38
Similarly, a number of scholars and activists criticize the distinction between first-, second-, and third-generation
rights because it unfairly implies a hierarchy of rights. These critics worry that the distinction creates the impression
that civil and political rights are somehow more important, or must come prior to, economic, social, and cultural
rights. These issues are important, and we will return to them in later lessons.
The rights set out in the UDHR are not absolute. Article 29(2) permits States to limit the rights of citizens “for
the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just
requirements of morality, public order and the general welfare in a democratic society”. However, the government is
constrained in its ability to impose limitations on rights by Article 30, which States that “nothing in this Declaration
may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any
act aimed at the destruction of any of the rights and freedoms” proclaimed in the declaration. In other words, a
government may limit the rights it affords to its citizens, but only for the reasons stated, and when the limitation is
not merely a pretext for the denial of rights.
Conclusion
Once the UDHR had defined the content of international human rights law, the international community embarked
on the effort of translating the declaration into legally binding and enforceable treaties and creating international bodies
that could carry out this enforcement work. This is the subject of our next several lessons.
Further reading
• Andrew Clapham, Human Rights: A Very Short Introduction, 2007.
• James Griffin, On Human Rights, 2008.
• Lynn Hunt, Inventing Human Rights: A History, 2007.
• Michael Ignatieff, Human Rights as Politics and Idolatry, 2003.
Websites for further information
• UN website: <www.un.org>.
38) See: Henry Shue, Basic Rights: Subsistence, Affluence, and US Foreign Policy (Second Edition) (Princeton: Princeton University Press, 1996), 52.
29
Annex I: Universal Declaration of Human Rights
Universal Declaration of Human Rights
PREAMBLE
Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human
family is the foundation of freedom, justice and peace in the world,
Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the
conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief
and freedom from fear and want has been proclaimed as the highest aspiration of the common people,
Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against
tyranny and oppression, that human rights should be protected by the rule of law,
Whereas it is essential to promote the development of friendly relations between nations,
Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human
rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined
to promote social progress and better standards of life in larger freedom,
Whereas Member States have pledged themselves to achieve, in cooperation with the United Nations, the
promotion of universal respect for and observance of human rights and fundamental freedoms,
Whereas a common understanding of these rights and freedoms is of the greatest importance for the full
realization of this pledge,
Now, therefore,
The General Assembly
Proclaims this Universal Declaration of Human Rights as a common standard of achievement for all peoples
and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in
mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive
measures, national and international, to secure their universal and effective recognition and observance, both among
the peoples of Member States themselves and among the peoples of territories under their jurisdiction.
Article 1
All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience
and should act towards one another in a spirit of brotherhood.
30
Article 2
Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind,
such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or
other status.
Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the
country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any
other limitation of sovereignty.
Article 3
Everyone has the right to life, liberty and security of person.
Article 4
No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.
Article 5
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
Article 6
Everyone has the right to recognition everywhere as a person before the law.
Article 7
All are equal before the law and are entitled without any discrimination to equal protection of the law. All are
entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to
such discrimination.
Article 8
Everyone has the right to an effective remedy by the competent national tribunals for acts violating the
fundamental rights granted him by the constitution or by law.
Article 9
No one shall be subjected to arbitrary arrest, detention or exile.
31
Article 10
Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the
determination of his rights and obligations and of any criminal charge against him.
Article 11
(1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according
to law in a public trial at which he has had all the guarantees necessary for his defence.
(2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a
penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be
imposed than the one that was applicable at the time the penal offence was committed.
Article 12
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to
attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference
or attacks.
Article 13
(1) Everyone has the right to freedom of movement and residence within the borders of each State.
(2) Everyone has the right to leave any country, including his own, and to return to his country.
Article 14
(1) Everyone has the right to seek and to enjoy in other countries asylum from persecution.
(2) This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from
acts contrary to the purposes and principles of the United Nations.
Article 15
(1) Everyone has the right to a nationality.
(2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.
32
Article 16
(1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry
and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.
(2) Marriage shall be entered into only with the free and full consent of the intending spouses.
(3) The family is the natural and fundamental group unit of society and is entitled to protection by society and
the State.
Article 17
(1) Everyone has the right to own property alone as well as in association with others.
(2) No one shall be arbitrarily deprived of his property.
Article 18
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change
his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his
religion or belief in teaching, practice, worship and observance.
Article 19
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without
interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
Article 20
(1) Everyone has the right to freedom of peaceful assembly and association.
(2) No one may be compelled to belong to an association.
Article 21
(1) Everyone has the right to take part in the government of his country, directly or through freely chosen
representatives.
(2) Everyone has the right to equal access to public service in his country.
(3) The will of the people shall be the basis of the authority of government; this will shall be expressed in
periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by
equivalent free voting procedures.
33
Article 22
Everyone, as a member of society, has the right to social security and is entitled to realization, through national
effort and international co-operation and in accordance with the organization and resources of each State, of the
economic, social and cultural rights indispensable for his dignity and the free development of his personality.
Article 23
(1) Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and
to protection against unemployment.
(2) Everyone, without any discrimination, has the right to equal pay for equal work.
(3) Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an
existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.
(4) Everyone has the right to form and to join trade unions for the protection of his interests.
Article 24
Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays
with pay.
Article 25
(1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his
family, including food, clothing, housing and medical care and necessary social services, and the right to security
in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances
beyond his control.
(2) Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of
wedlock, shall enjoy the same social protection.
Article 26
(1) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages.
Elementary education shall be compulsory. Technical and professional education shall be made generally available and
higher education shall be equally accessible to all on the basis of merit.
(2) Education shall be directed to the full development of the human personality and to the strengthening
of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship
among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance
of peace.
(3) Parents have a prior right to choose the kind of education that shall be given to their children.
34
Article 27
(1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to
share in scientific advancement and its benefits.
(2) Everyone has the right to the protection of the moral and material interests resulting from any scientific,
literary or artistic production of which he is the author.
Article 28
Everyone is entitled to a social and international order in which the rights and freedoms set forth in this
Declaration can be fully realized.
Article 29
(1) Everyone has duties to the community in which alone the free and full development of his personality is
possible.
(2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined
by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of
meeting the just requirements of morality, public order and the general welfare in a democratic society.
(3) These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United
Nations.
Article 30
Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in
any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.
G.A. res. 217A (III), UN Doc A/810 (1948)
Adopted on December 10, 1948
by the General Assembly of the United Nations (without dissent)
35
End-of-Lesson Quiz »
1. Human rights protect _____. 6. The modern human rights system

emerged following _____.
A. the individual
B. the State A. the Iraq war
C. the international community B. the Second World War
D. no one C. the First World War

D. the Cold War
2. _____ are rights that come from God or
nature. 7. The primary aim of the United Nations is
_____.
3. The moral foundations of human rights A. to end discrimination against women
are _____.
B. to enact human rights laws
A. ideas about why we have human rights C. to maintain international peace and security
B. the references to human rights that appear in D. to abolish the slave trade
national constitutions
C. ideas about whether or not it is necessary to 8. Eleanor Roosevelt was a key player in
have human rights drafting the _____.
D. legal documents that bind States to uphold

9. The Universal Declaration of Human
human rights
Rights was adopted in _____.
4. The “billiard ball model” describes a A. 1948

world in which _____. B. 1918
A. States are divided into a bipolar world like the C. 1989
two opposing sides in a billiards game D. 1966
B. States are solid, opaque, and impenetrable
spheres similar to billiard balls 10. Customary International Law is _____.
C. States are manipulable by the “cue” of A. not really law
international law B. law that was created prior to the Second
D. States are like a pool table, and the individuals World War
within them react against one another when C. the general practice of States that is accepted
pushed by outside forces as law
D. better than “normal” or “treaty-made” law
5. One of the earliest human rights
movements was _____.
A. the effort to abolish the death penalty
B. the struggle to ban nuclear weapons
C. the fight to abolish the slave trade
D. the protection of the rights of lesbian, gay,
bisexual, and transgender persons
Answer Key provided on the next page.
36
Answer Key »
1. A
2. Natural rights
3. A
4. B
5. C
6. B
7. C
8. Universal Declaration of Human Rights

(UDHR)
9. A
10. C
37
HUMAN RIGHTS
LESSON
Developing Legally Binding
2 Human Rights Treaties I:

The ICCPR
At the time of its adoption the

UDHR was a resolution with
great moral standing, but no
binding legal enforceability.
UN Photo #21079 by BZ.
Section 2.1 Introduction • Identify the components of the International Bill of
Human Rights.
Section 2.2 The International Covenant on
Civil and Political Rights (ICCPR) • Appreciate the consequences of dividing civil and
political from economic, social, and cultural rights.

Section 2.3 Other Instruments Dealing with
Civil and Political Rights • Describe the types of rights found in the ICCPR.
Annex II The International Covenant on • Explain states’ obligations in protecting civil and
Civil and Political Rights (ICCPR) political human rights.
• Identify the narrow grounds on which states may limit
or derogate from civil and political human rights.
38
LESSON 2 | Developing Legally Binding Human Rights Treaties I: The ICCPR
Jubilant crowds listening to the speech of President Nelson Mandela. 10 May 1994. UN Photo by Chris Sattlberger.

The International Bill of Human Rights
The UDHR was drafted as “a common standard of
achievement for all peoples and nations,” and set out the
basic civil, political, economic, social, and cultural rights
that all people enjoy.1 As we learned in Lesson 1, however,
at the time of its adoption the UDHR was a resolution with
great moral standing, but no binding legal enforceability. In
order to give human rights legal force under international law
1) UDHR, Preamble.
39
and “make human rights an instrument effectively shaping the lives of individuals and nations, more than just a
political proclamation was needed”,2 it would now be necessary to translate the UDHR into “the hard legal form of an
international treaty” under which states could be held accountable for violations of individual rights.3
The Commission on Human Rights began the work of developing a legally binding treaty shortly after the
adoption of the UDHR in 1948. Its work continued until 1966, when the UN Member States finally adopted the
International Covenant on Civil and Political Rights (ICCPR)4 and the International Covenant on Economic, Social
and Cultural Rights (ICESCR).5 These two treaties transformed the human rights provisions of the UDHR into legally
binding obligations, and together with the UDHR make up what is sometimes called the International Bill of Human
Rights.
Together, the three documents that make up the International Bill of Human Rights form the cornerstone of
an elaborate structure of international human rights agreements covering a broad range of issues. These treaties
define and give content to the human rights and fundamental freedoms held by all people, and set basic standards
for protecting human dignity. They have inspired and served as the background for all subsequent international and
regional human rights treaties, conventions, declarations, rules, and principles.
In addition to the UDHR, ICCPR, and ICESCR, there are six other so-called “core” United Nations human rights
treaties:
• The International Convention on the Elimination of All Forms of Racial Discrimination (CERD) (1965);
• The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) (1979);
• The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)
(1984);
• The Convention on the Rights of the Child (CRC) (1989);
• The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their
Families (ICRMW) (1990);
• The Convention on the Rights of Persons with Disabilities (CRPD) (2006).
We will discuss these other six agreements in our lessons on the rights of vulnerable groups and the protection
of human rights during armed conflict.
In this lesson, we will take an in-depth look at the ICCPR. We will examine the ICESCR in Lesson 3.
2) Christian Tomuschat, “International Covenant on Civil and Political Rights” (2008), p. 1. Available from <http://untreaty.un.org/cod/avl/pdf/ha/iccpr/
iccpr_e.pdf>.
3) Ibid.
4) See: A6316 (Dec. 16, 1966), International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, at 52,
999 U.N.T.S. 171 (entered into force 23 March 1976).
5) See: A/6316 (16 December 1966), International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A (XXI), U.N. GAOR, 21st Sess.,
Supp. No. 16, at 49, 993 U.N.T.S. 3 (entered into force 3 January 1976).
40
Before we examine these documents, it is important to deal with a preliminary issue: why are human rights
divided up among multiple human rights treaties? Would it not have been easier to put them all into one single
document? Doesn’t this contradict what we learned in Lesson 1 about the indivisibility of human rights?
Interdependence versus the Division of Rights
As we learned in Lesson 1, one of the primary characteristics of human rights is that they are indivisible,
interdependent, and interrelated, and therefore must be viewed as intrinsically connected and inseparable from one
another. But if all rights are indivisible, interdependent, and interrelated, why were the rights contained in the UDHR
subdivided into two separate treaties?
The answer is partially political. To a certain extent, the roots of the division between civil and political rights
and economic, social, and cultural rights lies in the deep and enduring disagreement between the Western and
socialist states over the proper role of economic, social, and cultural rights. During the early stages of drafting, the
Commission on Human Rights was working on a single draft that contained both categories of rights. But in 1951,
the General Assembly decided to split the draft into two separate covenants, largely as a result of pressure from
Western states.
The Western capitalist states argued that two separate conventions were appropriate because economic, social,
and cultural rights and civil and political rights were different in kind and should therefore be implemented in different
ways. Civil and political rights, they claimed, should be respected strictly, immediately, and without reservations.
Economic, social, and cultural rights, on the other hand, were “programme rights” or “goals” that states should strive
for:
Those in favour of drafting two separate covenants argued

that civil and political rights were enforceable, or justiciable,
or of an “absolute” character, while economic, social and
cultural rights were not or might not be; that the former
were immediately applicable, while the latter were to be
progressively implemented; and that, generally speaking, the
former were rights of the individual “against” the State, that is,
against unlawful and unjust action of the State, while the latter
were rights which the State would have to take positive action
to promote. Since the nature of civil and political rights and
that of economic, social and cultural rights, and the obligations
of the State in respect thereof, were different, it was desirable
that two separate instruments should be prepared.6
The Soviet Union and other states fought to maintain a single treaty.7 They argued that all rights should be
viewed as interdependent and should be protected at the same time, that human rights could not be easily divided
into different categories, and that the two-treaty solution implied that civil and political rights were hierarchically
superior to economic, social, and cultural rights.8 In the end, however, those who argued for separate covenants won
the day, and civil and political rights and economic, social, and cultural rights were codified in two different treaties.9
6) A/2929 (1955), Annotations on the text of the Draft International Covenants on Human Rights.
7) For a good overview of this process, see: Kitty Arambulo, Strengthening the Supervision of the International Covenant on Economic, Social and
Cultural Rights: Theoretical and Procedural Aspects (Antwerp, Intersentia, 1999), pp. 15–8.
8) A/2929 (1955), p. 7. See discussion in Lesson 1.
9) See ibid. for more information on the drafting of the ICESCR and ICCPR.
41
This division has had real consequences for the protection and enforcement of human rights. It undermines the
idea that all human rights are indivisible, interconnected, and equally important. As we shall see in Lesson 3, the
separation of civil and political from economic, social, and cultural rights resulted in the advancement of the former
and the long stagnation (until recently) of the latter – a situation that has been problematic for the full protection of
human rights.
Section 2.2 The International Covenant on Civil and Political Rights

(ICCPR)
As we learned in Lesson 1, civil and political rights are human rights that protect the personal freedoms and civil
liberties of individuals. Civil and political rights include rights related to life, liberty, and personal security; the judicial
process and fair trial; fundamental freedoms like right to privacy and freedom of speech; the right to form a family;
and the right to participate in the political process. They are the types of rights that have traditionally been included
in national constitutions.10
Civil and political rights are important both in and of themselves, and because they are indivisible from, and
essential for, the protection of other types of rights, such as economic, social, and cultural rights:
Civil and political rights empower poor people to claim their

economic and social rights – to food, to housing, to education,
to health care, to decent work and to social security. These
rights empower them to demand accountability – for good
public services, for pro-poor public policies, for a transparent
participatory process open to hearing their views.11
Nobel prize-winning economist Amartya Sen, for example, famously argued for the interdependence of civil and
political rights with economic, social, and cultural rights by demonstrating that democratic accountability is essential
to ensuring food security:
Indeed, the working of democracy and of political rights can

even help to prevent famines and other economic disasters.
Authoritarian rulers, who are themselves rarely affected by
famines (or other such economic calamities), tend to lack the
incentive to take timely preventive measures. Democratic
governments, in contrast, have to win elections and face public
criticism, and have strong incentives to undertake measures
to avert famines and other such catastrophes. It is not
surprising that no famine has ever taken place in the history
of the world in a functioning democracy – be it economically
rich (as in contemporary Western Europe or North America) or
relatively poor (as in postindependence India, or Botswana, or
Zimbabwe).12
10) For early examples, see: the First Ten Amendments to the Constitution of the United States (1789/1791) and the French Déclaration des droits de
l’homme et du citoyen (1789).
11) United Nations Development Programme, “Human Rights and Development”, Human Development Report 2000, p. 85.
12) Amartya Sen, Development as Freedom (Oxford, Oxford University Press, 1999), p. 16.
42
The ICCPR was adopted by the UN General Assembly in 1966. It took another 10 years, however, before the
necessary number of states had become parties, and it did not formally enter into force (become binding) until 1976.
Currently, 167 states are party to the ICCPR.13
» Take a moment now to read through the ICCPR, attached as

Annex II.
The first and second parts of the ICCPR list several structural or overarching guarantees. Part I contains a
guarantee of the right of self-determination of peoples, which is also contained in the ICESCR.14 The meaning of this
provision remains controversial, and will be discussed in more detail in Lesson 6.
The provisions contained in Part II forbid discrimination of any kind in the application of the rights of the treaty,
and require State Parties to provide remedies to those whose rights under the ICCPR are breached. The prohibition
of discrimination on the basis of “race, colour, sex, language, religion, political or other opinion, national or social
origin, property, birth or other status” assures the protection of civil and political rights for all people, and permeates
every other provision of the treaty.15
Part III – the “backbone” of the treaty – lists the substantive civil and political human rights protected under
international law. The ICCPR covers all of the civil and political rights outlined in the UDHR, with two exceptions:
(1) the right to own property, which was omitted altogether;16 and (2) the right to asylum, which was covered in
the 1951 Convention on the Status of Refugees (see discussion in Lesson 10). It also expands on the original list,
including additional rights for the protection of detainees and minorities.
The rights protected in the ICCPR can be divided roughly into the following categories:
• Life, Liberty and Physical Security (Articles 6–13): including the right to life and limitations on the use
of the death penalty; the right to be free from torture or cruel, inhuman, or degrading treatment; the right
to be free of slavery and other forms of compulsory labour; the right to freedom from arbitrary arrest or
detention; the right to respectful treatment while incarcerated; the right to freedom of movement; and
protection for aliens facing expulsion;
• Judicial Process (Articles 14–16, 26): including the right to a fair trial; the prohibition of retroactive
punishment; the right to be recognized as a person before the law; and the right to equality before the law
and equal protection;
• Fundamental Freedoms (Articles 17–22): including the right to privacy; the right to freedom of thought
and religion; the right to freedom of opinion and expression; the right to freedom of peaceful assembly; and
the right to freedom of association, including through trade unions;
• Family (Articles 23–24): including the right to marry and form a family; and children’s rights to be free
from discrimination and to be given a name and nationality;
• Political Participation (Article 25): including the right to take part in public affairs; the right to vote; and
the right to access public services; and
13) This number is current as of September 2011. An updated list of all state parties to the ICCPR can be found on the UN Treaty Collection website:
<http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV -4&chapter=4&lang=en>.
14) ICCPR, Art. 1; ICESCR, Art. 1.
15) ICCPR, Art. 2.
16) The omission of a right to property from both the ICCPR and the ICESCR was due to disagreement about the scope of the right. For a detailed discussion
of the drafting process of the Covenants and the decision not to include the right to property, see: Theo R.G. van Banning, The Human Right to Property
(Antwerp, Intersentia, 2001), pp. 43–7. It should also be noted that property was one area in which international law already contained substantial
protections for individual rights – already in the nineteenth century, expropriation of private property by a foreign state was seen as just cause for
initiating a claim under the doctrine of state responsibility for injury to aliens. Ibid., pp. 34–5.
43
• Minorities (Article 27): including the rights of ethnic, religious, or linguistic minorities to enjoy and practice
their own culture, religion, or language.17
These substantive rights are followed by a number of administrative and enforcement provisions, the nature of
which we will discuss in Lesson 4.
In addition, the ICCPR is supplemented by two Optional Protocols. Optional Protocols provide further substantive
rights or monitoring procedures that expand on the primary treaty. States may choose to sign them in addition to the
treaty or they may choose not to. The two Optional Protocols to the ICCPR are:
• The Optional Protocol to the ICCPR (1966), which sets up a quasi-judicial complaints procedure for the
treaty (see Lesson 4);
• The Second Optional Protocol to the ICCPR, aiming at the abolition of the death penalty (1989), which, as
its name suggests, moves toward abolishing the death penalty.
Currently, about two-thirds of the countries that are party to the ICCPR have also ratified the first optional
protocol. Less than half have ratified the second optional protocol.18
How State Becomes Legally Bound »

When we say a state is legally bound under international law, what does this mean?
There are two ways in which a state can become legally bound under international law.
The first is through an express statement of its consent, for example by signing and/or
ratifying a treaty, or by making a unilateral declaration that it considers itself bound by a rule.
The second way is through its practice. If one can deduce from the practice of a state that it
considers itself bound by a particular international rule, then it is bound by custom.
With respect to treaties, there are various ways in which a state can give its consent, such
as through signature, ratification, or accession. States can sometimes consent to a treaty
partially or with reservations (see discussion in Lesson 8). However, generally speaking,
once a state has given some form of consent, it is bound not to act against the object and
purpose of the treaty, whether or not it has made reservations, failed to ratify the treaty, etc.
Customary international law refers to the aggregate of the practice of all states (see box
on Customary International Law in Lesson 1). It allows for the possibility that states can be
bound by obligations despite the absence of express consent, and even in the absence of
individual state practice. In such a situation, if a state does not consider itself bound it is
required to object to the rule in a persistent manner. If a state is silent on the matter, it is
considered to have acquiesced to the binding nature of that obligation. Things that count as
practice are: national legislation, national policy documents, judgments of national courts,
actions by state agents (both domestically as well as internationally), and, according to some,
voting patterns in international organizations.
17) For more on the application and importance of Article 27, see Lesson 10.
18) As of September 2011, there were 114 parties to the first Optional Protocol to the ICCPR, and 73 parties to the Second Optional Protocol to
the ICCPR. An updated list of all state parties can be found on the UN Treaty Collection website, at: <http://treaties.un.org/Pages/ViewDetails.
aspx?src=TREATY&mtdsg_no=IV-5&chapter=4&lang=en> and <http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-
12&chapter=4&lang=en>, respectively.
44
The ICCPR sets out the primary civil and political rights that are held by all individuals. The list is extensive,
and covers a wide range of aspects of human life. But it is far from obvious what each of these rights means. For
example, what exactly does it mean to have a “right to privacy”? Does it mean that you have a right to an individual
bedroom? To marry whomever you choose? To keep a secret diary? To prevent police from entering your home? What
are governments expected to do in furtherance of this right?
Giving Content to Civil and Political Rights
While the meaning of some civil and political rights may seem easy to define – for example, the right to be free
from torture might appear fairly straightforward19 – many of the rights listed in the
ICCPR are quite difficult to flesh
out. Giving content to these human rights is a tricky task, and our understanding of their meaning is continually
being revised. Who, then, defines what constitutes the “right to take part in public affairs” or the “right to a fair trial”?
One source for giving content to these rights is the general comments issued by the Human Rights Committee.
We will learn a lot more about the Human Rights Committee and its powers in Lesson 4. For now, it is enough to
know that this is the international body that oversees the implementation of the ICCPR. From time to time, the
Human Rights Committee issues general comments that give additional detail on how to define and implement the
civil and political human rights contained in the ICCPR. There is some discussion about whether or not these general
comments are in fact legally binding. But whether or not they have legal force, they exert great persuasive authority,
are elaborate and detailed, and provide a wealth of information on how we should understand these civil and political
rights.
For example, the Human Rights Committee’s general comment No. 22 explains that the right to freedom of
thought, conscience, and religion “is far-reaching and profound” and “encompasses freedom of thought on all matters,
personal conviction and the commitment to religion or belief, whether manifested individually or in community with
others.”20 On one aspect of this right, the freedom to manifest religion or belief, the general comment elaborates that:
The freedom to manifest religion or belief may be exercised

“either individually or in community with others and in public or
private”. The freedom to manifest religion or belief in worship,
observance, practice and teaching encompasses a broad
range of acts. The concept of worship extends to ritual and
ceremonial acts giving direct expression to belief, as well as
various practices integral to such acts, including the building of
places of worship, the use of ritual formulae and objects, the
display of symbols, and the observance of holidays and days
of rest. The observance and practice of religion or belief may
include not only ceremonial acts but also such customs as the
observance of dietary regulations, the wearing of distinctive
clothing or headcoverings, participation in rituals associated
with certain stages of life, and the use of a particular language
customarily spoken by a group. In addition, the practice and
teaching of religion or belief includes acts integral to the
19) Although given recent arguments in the United States over whether so-called “enhanced interrogation techniques” such as “waterboarding” constitute
torture, this provision is also obviously not as straightforward as it appears. See: Office of Legal Counsel, “Memorandum for Alberto R. Gonzales,
Counsel to the President”, 1 August 2002, available from <http://news.findlaw.com/nytimes/docs/doj/bybee80102mem.pdf>.
20) Human Rights Committee, “General Comment No. 22” (1993), para. 1.
45
conduct by religious groups of their basic affairs, such as the

freedom to choose their religious leaders, priests and teachers,
the freedom to establish seminaries or religious schools
and the freedom to prepare and distribute religious texts or
publications.21
As you can see, explaining the content of even just this one specific aspect of the right to freedom of thought,
conscience, and religion is quite a difficult proposition. The detail provided by the Human Rights Committee may
seem to overcomplicate the treaty, but from a legal and practical perspective it lets states and other actors know
exactly what things are protected by the ICCPR. This is especially important when it is not obvious whether each of
the details listed in the general comment would be part of the right.
Another source for giving content to civil and political rights is the decisions of international and regional judicial
and semi-judicial bodies. When judges or arbitrators make decisions in particular cases, they help to draw the
boundaries between individual rights and state power and flesh out the content of particular human rights. Each
decision helps to map out the borders of the rights under scrutiny, and subsequent disputes will take all of these
prior decisions into account. There are many international and regional judicial and semi-judicial courts, including
everything from the International Court of Justice (ICJ), to the European Court of Human Rights (ECtHR), to the
quasi-judicial individual complaints mechanism of the Committee on the Elimination of Discrimination Against Women
(CEDAW Committee). We will talk more about the role of these global and regional judicial and semi-judicial bodies
in Lessons 4 and 5.
Writing Exercise 2: A Violation of Human Rights? »

You are working in a small community in a country that is party to the ICCPR. One day, you
notice that Mr. M, the man who normally sells fruit outside of your building, is not standing
in his usual spot. Mr. M is missing for several days, then returns. You ask him where he was
the past few days, and he responds that he was arrested and detained by the local police. He
explains that he was held without charge for four days in an overcrowded jail cell. He was not
allowed to see a judge or a lawyer, and was never told why the police had arrested him. Mr.
M tells you that he thinks this was a violation of his human rights, and wants to know if you
agree.
Consider the following questions and write a brief report:
Read through the substantive provisions of the ICCPR, reprinted as Appendix A at the end of
this lesson. Which of the rights in the ICCPR might apply in this case?
How do you know whether what happened to Mr. M does or does not violate his rights? Is it
easy to tell?
Where would you look to find out more information about whether the actions of the police
violated Mr. M’s human rights?
21) Ibid., para. 4.
46
Additionally, the practices of states themselves can also play a role in helping to elaborate the meanings of
the various human rights. For example, when a national court in a state like South Africa makes a ruling about the
right to a fair trial, this becomes part of international practice with regard to that right. Decisions made by courts
in individual states do not automatically change or define the content of human rights in other countries or under
international law. But judges, arbitrators, politicians, and other decision-makers in both international and other
national courts may look to these decisions as evidence of international trends.
Other sources of information about human rights, such as reports by non-governmental organizations (NGOs) or
civil society groups like faith-based organizations; lobbying groups; community organizations; business advocates;
books by international legal scholars; and websites maintained by international monitoring groups can also be helpful
for learning about human rights. However, these are not official sources, and should not be relied on as definitive
legal statements about the content of human rights.
Defining the content of rights is very important, and the process of elaborating this content continues as states
and individuals work towards the full realization of human rights.
Once individuals and states know the content of their rights, however, a second important question emerges:
what are states obliged to do to enforce them?
The Obligations of the State
Each state has an obligation to respect, protect, and fulfil each of the rights guaranteed in the ICCPR. The three-
part “respect, protect, fulfil” formulation (sometimes expanded to the four-part “respect, protect, promote, fulfil”)
was coined in the 1980s by scholar Asbjørn Eide in his work on the right to food:
47
The obligations of states under the human rights system …

[exist] under these three concepts: to respect, to protect,
and to fulfil. In regard to the right to food, states (1) should
have the obligation to respect the necessary freedom and the
resource base controlled by peoples or individuals; (2) they
should protect the freedom and the resource base against
others who encroach on them; and (3) the state should when
necessary assist when individuals or groups by themselves, for
various reasons, cannot take care of their own needs.22
Today, this three-part framework has become the internationally accepted idea of the human rights obligations
of the state.23
The obligation to respect a person’s civil and political rights requires governments to refrain from directly
violating human rights. This is sometimes called a negative obligation, because it requires the government not to do
something. For example, a state respects the right to freedom from torture by not torturing people, and respects the
right to vote by not preventing people from voting.
The obligation to protect civil and political rights goes further than the obligation to respect. Protection of human
rights means that the government must not only refrain from certain acts, but that it must also take steps to prevent
other actors – such as individuals or corporations – from violating rights as well. In order to do this, the state may
have to establish an appropriate policy framework, write laws, and actively enforce them. Because protecting rights
requires action on the part of the government, it is known as a positive obligation. For example, a state may protect
the right to freedom from torture by prohibiting the deportation of persons to states in which they might be tortured,
and protect the right to vote by passing laws that criminalize private interference with the voting process.
The obligation to fulfil human rights goes still further. In order to fulfil a person’s civil and political rights, the
government must take steps to create an environment in which each person’s rights can be fully realized. This, too,
is a positive obligation, and it may require a government to take significant action and allocate resources to the
fulfilment of civil and political rights. For example, fulfilling the ICCPR’s provision mandating humane conditions of
detention for prisoners may require a government to build additional prisons to prevent overcrowding, and fulfilling
the right to vote may involve setting up additional polling stations, translating ballots into multiple languages, and
adding wheelchair access in order to give everyone a real ability to exercise their right.
A fourth obligation to “promote” human rights is also sometimes included in this list. Governments promote
human rights by establishing and supporting human rights education programmes and encouraging respect for
human rights.
States must begin to respect, protect, and fulfil the rights contained in the ICCPR immediately upon becoming
legally bound by the terms of the treaty.
Limitations and Derogations from the ICCPR
States may limit (apply with restrictions) or derogate from (legally suspend the application of) some of the
rights provided in the ICCPR in very narrow circumstances. A few of the rights in the ICCPR contain specific limitation
provisions that allow restrictions to be placed on individual rights for the sake of ensuring the general welfare. This
22) Philip Alston and Asbjørn Eide, “Advancing the Right to Food in International Law”, in Food as a Human Right, Asbjørn Eide ed. (Tokyo, United Nations
University, 1984), p. 251.
23) The above graphic illustrating the three-part framework was taken from: Office of the United Nations High Commissioner for Human Rights, Fact Sheet
No. 33, “Frequently Asked Questions on Economic, Social and Cultural Rights”, (2008), p. 16.
48
was meant to allow states a sort of reasonable regulatory power with respect to certain rights. These include:
• The right to freedom of movement (Article 12);
• The right to freedom of thought, conscience and religion (Article 18);
• The right to freedom of expression (Article 19);
• The right to peaceful assembly (Article 21); and
• The right to freedom of association (Article 22).
Limitations placed on these rights must not interfere with the core protections that the right is meant to afford:
states may reasonably limit rights, not extinguish them. For example, a state may limit the right to peaceable
assembly by requiring a group of protesters to notify the police before a planned manifestation, but should not deny
their right to assemble altogether.
In addition to these specific limitation provisions, the ICCPR also contains a general derogation provision
that allows covenant rights to be suspended during times of public emergency. This means that states may cease
protecting certain rights for a time. It does not mean that the rights are lost: individuals continue to hold their
human rights, even if they are temporarily not being fulfilled. As specified in Article 4:
In time of public emergency which threatens the life of the

nation and the existence of which is officially proclaimed, the
States Parties to the present Covenant may take measures
derogating from their obligations under the present Covenant
to the extent strictly required by the exigencies of the situation,
provided that such measures are not inconsistent with their
other obligations under international law and do not involve
discrimination solely on the ground of race, colour, sex,
language, religion or social origin.24
Under this article, before any derogation of rights can be imposed, a state must be in a situation that amounts to
a public emergency that threatens the life of the nation (so only extreme emergencies qualify). It must also officially
declare itself to be in a state of emergency. As noted by the ICCPR Committee in general comment No. 29:
Not every disturbance or catastrophe qualifies as a public

emergency which threatens the life of the nation … During
armed conflict, whether international or non-international, rules
of international humanitarian law become applicable and help
… to prevent the abuse of a State’s emergency powers. The
Covenant requires that even during an armed conflict measures
derogating from the Covenant are allowed only if and to the
extent that the situation constitutes a threat to the life of the
nation.25
Any derogations from civil and political rights made during a state of emergency must be limited to the extent
strictly required by the situation. This means that such derogations must be limited in duration, geographical
24) ICCPR, Art. 4.

25) Human Rights Committee, “General Comment No. 29” (2001), para. 3.
49
coverage, and material scope. In other words, they must apply no longer and no further than is strictly necessary.
Even this provision for the derogation of rights in times of public emergency may not be applied across the
board. The covenant specifies a number of absolute or non-derogable rights – sometimes known as the “hard core of
human rights” – that may never be derogated from, even in emergency situations:
• The right to life and limitations on the death penalty (Article 6);
• The right to be free from torture and cruel, inhuman, or degrading treatment (Article 7);
• The right to be free from slavery and servitude (Articles 8(1) and 8(2));
• The prohibition of imprisonment for debt (Article 11);
• The prohibition of retrospective punishment (Article 15);
• The right to recognition as a person before the law (Article 16); and
• The right to freedom of thought, conscience, and religion (Article 18).
Note that Article 18, on the right to freedom of thought, conscience, and religion, is listed both as a right which
may be limited for the sake of ensuring the general welfare as well as in the list of non-derogable rights that states
may never suspend, even in situations of emergency. This demonstrates the difference between the two provisions:
while it is never acceptable to deny a person the right to freedom of thought, conscience, and religion, it is acceptable
to place reasonable restrictions on its exercise.
The strict rules governing the limitation of and derogation from civil and political rights reflect the extreme
importance of protecting individuals at all times, particularly in situations of conflict or emergency, when their
rights may be especially imperiled. Fortunately, the ICCPR does not have to handle this task alone – a number of
overlapping agreements provide additional protection for civil and political rights, including some that we will return
to in later lessons.
Section 2.3 Other Instruments dealing with Civil and Political Rights
In addition to the UDHR and the ICCPR, several other international and regional human rights treaties include
protections for civil and political rights. These include, at the international level:
• The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT);
• The International Convention on the Elimination of All Forms of Racial Discrimination (CERD);
• The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW);
• The Convention on the Rights of the Child (CRC);
• The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their
Families (ICRMW);
• The Convention on the Rights of Persons with Disabilities (CRPD);
• The Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention);
• The Geneva Conventions I, II, III, and IV and Protocols I and II;
• The International Convention for the Protection of All Persons from Enforced Disappearance;
• The Declaration on the Rights of Indigenous Peoples.
And at the regional level:
50
• Europe: the European Convention for the Protection of Human Rights and Fundamental Freedoms, its
Sixth and Thirteenth Protocols; the European Convention for the Prevention of Torture and Inhuman and
Degrading Treatment or Punishment; and the Charter of Fundamental Rights of the European Union;
• Americas: the American Convention on Human Rights, the Second Protocol to the American Convention on
Human Rights to Abolish the Death Penalty; the Inter-American Convention on the Forced Disappearance
of Persons; the American Declaration on the Rights and Duties of Man; the Inter-American Convention to
Prevent and Punish Torture; the Inter-American Convention on the Prevention, Punishment and Eradication
of Violence Against Women;
• Africa: the African Charter on Human and Peoples’ Rights; the African Charter on the Rights and Welfare
of the Child; the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in
Africa; and
• Arab League: the Arab Charter on Human Rights.
Generally speaking, each regional treaty protects rights similar to those contained in the ICCPR. Many of them
have their own peculiarities, and some go into a lot of detail with regard to certain rights that are addressed only
cursorily in other treaties. One striking example is the African Charter on Human and Peoples’ Rights, which has a
section on duties as well as being the only major human rights convention that explicitly recognizes peoples’ rights.
We will return to the subject of regional agreements and look
more closely at their particular structures in Lesson 5.
In addition, non-state actors such as NGOs, social
movements, community-based organizations, professional
associations, trade unions, the media, private businesses,
and other institutions also contribute to the protection of
civil and political rights. These types of organizations may
educate people about their rights, investigate violations,
hold governments accountable, or work with individuals and
groups to provide basic goods and services and assist people
in the realization of their rights.
The ICCPR has also been highly influential at the
national level. As scholar and former member of the Human
Rights Committee Christian Tomuschat notes: “When today
anywhere in the world a national constitution is framed, the
ICCPR serves as the natural yardstick for the drafting of a
section on fundamental rights.”26 Many states have made the
ICCPR a direct part of their national legal order, and others
have incorporated these civil and political rights separately

Man exercises his right to vote (protected by ICCPR Article
into their domestic constitutions and legislation.27 25) during first DR Congo Elections in 40 Years. July 2006.
UN Photo #122808 by Kevin Jordan.
26) Christian Tomuschat, p. 3.
27) Though a thorough investigation of the topic is outside the scope of this lesson, a brief aside on the place of international law (including international
human rights law) in domestic legal systems is in order. For now, it is sufficient to note that national legal systems have many different ways of
dealing with international law. Some incorporate it directly into their national legal order, some require the passage of domestic laws restating the
international rules, some may ignore it altogether, and face whatever consequences may come from this decision, and many fall somewhere in
between these options. The relationship, in other words, is highly context-specific, and it is important to know that it may work very differently from
one country to the next.
51
Nimba county prison inmate looks through a window of a cell during a tour of the
overcrowded facility by Henrietta Mensa-Bonsu, Deputy Special Representative of the
Secretary-General for the United Nations Mission in Liberia (UNMIL) for Rule of Law.
December 2008. UN Photo #234114 by Christopher Herwig.
Conclusion
In this lesson we learned how the basic set of principles outlined in the UDHR was translated into two covenants
containing legally binding obligations. We explored the reasons for the separation of civil and political from economic,
social, and cultural rights, and noted that this separation has had consequences for the enforcement of the latter
group, a topic to which we will return in Lesson 3. We then took an in-depth look at the rights contained in the ICCPR
and explored how they are given content. We discovered that states are required to respect, protect, and fulfil these
rights and outlined the ways in which states can limit or derogate from some civil and political rights. Finally, we took
a brief look at the many other international instruments that protect the civil and political rights of individuals. In the
next lesson, we will turn to the third piece of the International Bill of Human Rights: the International Covenant on
Economic, Social and Cultural Rights (ICESCR).
Further Reading
• The International Bill of Rights (Louis Henkin ed., 1981); Sarah Joseph et al. eds., The International
Covenant on Civil and Political Rights: Cases, Materials, and Commentary (2004); Dominic McGoldrick,
The Human Rights Committee. Its Role in the Development of the International Covenant on Civil and
Political Rights (Second Edition, 1994); Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR
Commentary (Second Edition, 2005).
Websites for Further Information
» General Comments of the Human Rights Committee:
• www2.ohchr.org/english/bodies/hrc/comments.htm
» The Office of the High Commissioner for Human Rights’ Human

Rights Committee Page:
• www2.ohchr.org/english/bodies/hrc/
52
International Covenant on Civil and Political Rights
(Substantive Provisions)
PREAMBLE
The States Parties to the present Covenant,
Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition
of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation
of freedom, justice and peace in the world,
Recognizing that these rights derive from the inherent dignity of the human person,
Recognizing that, in accordance with the Universal Declaration of Human Rights, the ideal of free human beings
enjoying civil and political freedom and freedom from fear and want can only be achieved if conditions are created
whereby everyone may enjoy his civil and political rights, as well as his economic, social and cultural rights,
Considering the obligation of States under the Charter of the United Nations to promote universal respect for,
and observance of, human rights and freedoms,
Realizing that the individual, having duties to other individuals and to the community to which he belongs, is
under a responsibility to strive for the promotion and observance of the rights recognized in the present Covenant,
Agree upon the following articles:
PART I
Article 1
1. All peoples have the right of self-determination. By virtue of that right they freely determine their political
status and freely pursue their economic, social and cultural development.
2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to
any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and
international law. In no case may a people be deprived of its own means of subsistence.
3. The States Parties to the present Covenant, including those having responsibility for the administration of
Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall
respect that right, in conformity with the provisions of the Charter of the United Nations.
PART II
Article 2
1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its
territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind,
such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or
other status.
2. Where not already provided for by existing legislative or other measures, each State Party to the present
Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the
53
provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the
rights recognized in the present Covenant.
3. Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective
remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent
judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal
system of the State, and to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when granted.
Article 3
The States Parties to the present Covenant undertake to ensure the equal right of men and women to the
enjoyment of all civil and political rights set forth in the present Covenant.
Article 4
1. In time of public emergency which threatens the life of the nation and the existence of which is officially
proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under
the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures
are not inconsistent with their other obligations under international law and do not involve discrimination solely on
the ground of race, colour, sex, language, religion or social origin.
2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision.
3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform
the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United
Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further
communication shall be made, through the same intermediary, on the date on which it terminates such derogation.
Article 5
1. Nothing in the present Covenant may be interpreted as implying for any State, group or person any right
to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized
herein or at their limitation to a greater extent than is provided for in the present Covenant.
2. There shall be no restriction upon or derogation from any of the fundamental human rights recognized or
existing in any State Party to the present Covenant pursuant to law, conventions, regulations or custom on the
pretext that the present Covenant does not recognize such rights or that it recognizes them to a lesser extent.
PART III
Article 6
1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be
arbitrarily deprived of his life.
2. In countries which have not abolished the death penalty, sentence of death may be imposed only for the
54
most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary
to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of
Genocide. This penalty can only be carried out pursuant to a final judgement rendered by a competent court.
3. When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall
authorize any State Party to the present Covenant to derogate in any way from any obligation assumed under the
provisions of the Convention on the Prevention and Punishment of the Crime of Genocide.
4. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty,
pardon or commutation of the sentence of death may be granted in all cases.
5. Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and
shall not be carried out on pregnant women.
6. Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State
Party to the present Covenant.
Article 7
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular,
no one shall be subjected without his free consent to medical or scientific experimentation.
Article 8
1. No one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited.
2. No one shall be held in servitude.
3.
(a) No one shall be required to perform forced or compulsory labour;
(b) Paragraph 3 (a) shall not be held to preclude, in countries where imprisonment with hard labour may be
imposed as a punishment for a crime, the performance of hard labour in pursuance of a sentence to such punishment
by a competent court;
(c) For the purpose of this paragraph the term “forced or compulsory labour” shall not include:
(i) Any work or service, not referred to in subparagraph (b), normally required of a person who is under
detention in consequence of a lawful order of a court, or of a person during conditional release from such detention;
(ii) Any service of a military character and, in countries where conscientious objection is recognized, any national
service required by law of conscientious objectors;
(iii) Any service exacted in cases of emergency or calamity threatening the life or well-being of the community;
(iv) Any work or service which forms part of normal civil obligations.
Article 9
1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or
detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as
are established by law.
55
2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be
promptly informed of any charges against him.
3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer
authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It
shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject
to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for
execution of the judgement.
4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a
court, in order that court may decide without delay on the lawfulness of his detention and order his release if the
detention is not lawful.
5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.
Article 10
1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity
of the human person.
2.
(a) Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall
be subject to separate treatment appropriate to their status as unconvicted persons;
(b) Accused juvenile persons shall be separated from adults and brought as speedily as possible for adjudication.
3. The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation
and social rehabilitation. Juvenile offenders shall be segregated from adults and be accorded treatment appropriate
to their age and legal status.
Article 11
No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation.
Article 12
1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of
movement and freedom to choose his residence.
2. Everyone shall be free to leave any country, including his own.
3. The above-mentioned rights shall not be subject to any restrictions except those which are provided by law,
are necessary to protect national security, public order (ordre public), public health or morals or the rights and
freedoms of others, and are consistent with the other rights recognized in the present Covenant.
4. No one shall be arbitrarily deprived of the right to enter his own country.
Article 13
An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in
pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national
security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by,
56
and be represented for the purpose before, the competent authority or a person or persons especially designated by
the competent authority.
Article 14
1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against
him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a
competent, independent and impartial tribunal established by law. The press and the public may be excluded from
all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society,
or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion
of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement
rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons
otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.
2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty
according to law.
3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum
guarantees, in full equality:
(a) To be informed promptly and in detail in a language which he understands of the nature and cause of the
charge against him;
(b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of
his own choosing;
(c) To be tried without undue delay;
(d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing;
to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in
any case where the interests of justice so require, and without payment by him in any such case if he does not have
sufficient means to pay for it;
(e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of
witnesses on his behalf under the same conditions as witnesses against him;
(f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court;
(g) Not to be compelled to testify against himself or to confess guilt.
4. In the case of juvenile persons, the procedure shall be such as will take account of their age and the
desirability of promoting their rehabilitation.
5. Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher
tribunal according to law.
6. When a person has by a final decision been convicted of a criminal offence and when subsequently his
conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows
conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such
conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in
57
time is wholly or partly attributable to him.
7. No one shall be liable to be tried or punished again for an offence for which he has already been finally
convicted or acquitted in accordance with the law and penal procedure of each country.
Article 15
1 . No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute
a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier
penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If,
subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the
offender shall benefit thereby.
2. Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which,
at the time when it was committed, was criminal according to the general principles of law recognized by the
community of nations.
Article 16
Everyone shall have the right to recognition everywhere as a person before the law.
Article 17
1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence,
nor to unlawful attacks on his honour and reputation.
2. Everyone has the right to the protection of the law against such interference or attacks.
Article 18
1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom
to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and
in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of
his choice.
3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by
law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of
others. 4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when
applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own
convictions.
Article 19
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and
impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art,
or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and
58
responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by
law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.
Article 20
1. Any propaganda for war shall be prohibited by law.
2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or
violence shall be prohibited by law.
Article 21
The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right
other than those imposed in conformity with the law and which are necessary in a democratic society in the interests
of national security or public safety, public order (ordre public), the protection of public health or morals or the
protection of the rights and freedoms of others.
Article 22
1. Everyone shall have the right to freedom of association with others, including the right to form and join trade
unions for the protection of his interests.
2. No restrictions may be placed on the exercise of this right other than those which are prescribed by law and
which are necessary in a democratic society in the interests of national security or public safety, public order (ordre
public), the protection of public health or morals or the protection of the rights and freedoms of others. This article
shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their
exercise of this right.
3. Nothing in this article shall authorize States Parties to the International Labour Organization Convention of
1948 concerning Freedom of Association and Protection of the Right to Organize to take legislative measures which
would prejudice, or to apply the law in such a manner as to prejudice, the guarantees provided for in that Convention.
Article 23
1. The family is the natural and fundamental group unit of society and is entitled to protection by society and
the State.
2. The right of men and women of marriageable age to marry and to found a family shall be recognized.
3. No marriage shall be entered into without the free and full consent of the intending spouses.
4. States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and
responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision
shall be made for the necessary protection of any children.
Article 24
1. Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social
59
origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the
part of his family, society and the State.
2. Every child shall be registered immediately after birth and shall have a name.
3. Every child has the right to acquire a nationality.
Article 25
Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and
without unreasonable restrictions:
(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;
(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and
shall be held by secret ballot, guaranteeing the free expression of the will of the electors;
(c) To have access, on general terms of equality, to public service in his country.
Article 26
All persons are equal before the law and are entitled without any discrimination to the equal protection of
the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective
protection against discrimination on any ground such as race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status.
Article 27
In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall
not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess
and practise their own religion, or to use their own language.
G.A. res. 2200A (XXI), UN Doc A/6316 (1966)
60
1. The Universal Declaration of Human 6. Human rights obligations that require

Rights (UDHR), International Covenant action on the part of a government are
on Civil and Political Rights (ICCPR), and known as _____.
the International Covenant on Economic,
A. no human rights obligations require action on
Social and Cultural Rights (ICESCR)
the part of governments
together make up the _____.
B. positive obligations
2. Civil and political rights are contained in C. marginal obligations

a separate treaty from economic, social, D. negative obligations
and cultural rights because _____.
A. civil and political rights are more important 7. On which of the following rights may
states place limitations for the sake of
than economic, social, and cultural rights
ensuring the general welfare _____.
B. civil and political rights are NOT “real” rights,
A. the right to life
whereas economic, social, and cultural rights
B. the right to freedom from torture
are
C. the right to recognition as a person before
C. groups of nations disagreed over the role
the law
that economic, social, and cultural rights
should play, and saw the two groups as being D. the right to peaceful assembly
qualitatively different
8. Which of the following rights may NEVER
D. civil and political rights apply to some be derogated from, even during a state
countries, while economic, social, and cultural
of emergency _____.
rights apply to others
A. the right to freedom from slavery
3. The International Covenant on Civil and B. the right to freedom of movement

Political Rights (ICCPR) was adopted in C. the right to freedom of expression
_____. D. the right to freedom of association
A. 1918
B. 1948 9. States have an obligation to _____,
C. 1955 _____, and _____ the human rights in
the International Covenant on Civil and
D. 1966
Political Rights (ICCPR).
4. Which of the following rights is NOT

protected by the International Covenant 10. Protections for civil and political rights
on Civil and Political Rights (ICCPR)? are contained _____.
A. The right to respect for traditional culture A. only in the International Covenant on Civil
B. The right to a fair trial and Political Rights (ICCPR)
C. The right to vote B. nowhere
D. The right to be free from torture or cruel, C. in a wide variety of international and regional
inhuman, or degrading treatment human rights instruments

D. only at the state level
5. _____ of the Human Rights Committee
are helpful in determining the legal
meaning of human rights provisions in
the International Covenant on Civil and
Political Rights (ICCPR).
61
Answer Key »
1. International Bill of Human Rights
2. C
3. D
4. A
5. General Comments
6. B
7. D
8. A
9. Respect, protect, fulfil
10. C
62
HUMAN RIGHTS
LESSON Developing Legally Binding
3 Human Rights Treaties II:

The ICESCR
Economic, social, and

cultural rights are human
rights that protect
individuals’ socioeconomic
and cultural needs.
UN Photo #182428 by Shehzad Noorani.
Section 3.1 Introduction • Identify the differences between the ICCPR and
the ICESCR.
Section 3.2 The International Covenant on
Economic, Social and Cultural • Describe the types of rights found in the ICESCR.
Rights (ICESCR)
• Explain States’ obligations in protecting economic,
Section 3.3 Other Instruments Dealing with social, and cultural human rights.
Economic, Social, and Cultural • Understand the continued application of economic,

Rights social, and cultural rights during conflict.
Section 3.4 Theoretical and Practical Issues • Understand the historical neglect of economic,
social, and cultural rights.

Annex III The International Covenant on
Economic, Social and Cultural
Rights (ICESCR)
63
LESSON 3 | Developing Legally Binding Human Rights Treaties II: The ICESCR
Young refugee girl with a food ration at the temporary housing facility in Karlovac, Croatia. 26 August 1992. UN Photo #31361 by John
Isaac.

So far, we have examined two of the three parts of the
International Bill of Human Rights: the Universal Declaration
of Human Rights (UDHR) and the International Covenant on
Civil and Political Rights (ICCPR). In this lesson, we will turn
to the third part: the International Covenant on Economic,
Social and Cultural Rights (ICESCR).

videos/141/lesson-3-developing-legally-
binding-human-rights-treaties-ii-the-
icescr/>.
64
Like the ICCPR, the ICESCR was drawn up for the purpose of transforming the UDHR’s “common standard of
achievement for all peoples and nations” into binding legal obligations.1 Together, the ICCPR and the ICESCR cover
the full range of rights that were included in the UDHR (with the exception of the rights to property and to asylum),
as well as some additional protections that were added during the drafting period.
As you read through this lesson, keep in mind the reasons for the separation of civil and political rights from
economic, social, and cultural rights, and try to imagine what effects the division of rights has had. Would the human
rights landscape look any different if the Commission on Human Rights had been able to include all of the civil,
political, economic, social, and cultural rights in a single treaty? If so, how?
Section 3.2 Economic, Social, and Cultural Rights
The International Covenant on Economic, Social and Cultural Rights (ICESCR)
As discussed in Lesson 1, economic, social, and cultural rights are human rights that protect individuals’ socio-
economic and cultural needs. These are rights related to the workplace, family, cultural life, and social security,
as well as access to food, water, housing, health care, and education. Economic, social, and cultural rights are
important for the well-being of individuals. Their denial can have serious consequences, including homelessness,
death, oppression, and starvation.
Economic, social, and cultural rights are also important because they are indivisible from, and essential for, the
protection of civil and political rights. For example, a person might find it difficult or impossible to exercise her right
to take part in political activity or to freedom of expression if her basic needs of food and shelter have not been met
or if she cannot read or write.
We learned in Lesson 1 that Articles 22 through 28 of the UDHR set out a number of economic, social, and
cultural rights, including:
• The right to social security;
• The right to desirable work and to join trade unions;
• The right to rest and leisure;
• The right to an adequate standard of living;
• The right to education;
• The right to participate in the cultural life of the community; and
• The right to a social order that articulates the UDHR.
The ICESCR, which gives these rights binding legal force, was adopted by the General Assembly in 1966, the
same year as the ICCPR. As with the ICCPR, it took another 10 years for the necessary number of States to become
parties to the treaty; both the ICCPR and ICESCR entered into force in 1976. Currently, 160 States are party to the
ICESCR.2
The structure of the ICESCR is fairly similar to that of its sister treaty, the ICCPR. Parts I and II of both treaties
list several structural or overarching guarantees. Part I of the ICESCR contains a guarantee of the right of self-
determination of peoples, with wording identical to that in the ICCPR. We will discuss the evolution and application
of this right in Lesson 6.
1) UDHR, Preamble.
2) This number was current as of September 2011. An updated list of all State parties to the ICESCR can be found in the UN Treaty Collection website:
<http://treaties.un.org/>
65
The United Republic of Tanzania has developed a

system of primary health care to serve the needs of
its more than 19.3 million people. A number of health
care workers have been trained to provide basic
health services in rural areas. At a mobile clinic near
Singida, a health worker immunizes a child against
major childhood diseases. 1 January 1984. UN Photo
#317544 by Sean Sprague.
Part II prohibits discrimination of any kind in the application of the rights of the treaty. The prohibition of
discrimination on the basis of “race, colour, sex, language, religion, political or other opinion, national or social origin,
property, birth or other status” assures the protection of economic, social, and cultural rights for all people, and
applies to every provision of the treaty.3 Additionally, Part II requires State Parties to progressively implement the
guarantees contained in the ICESCR. We will return to this provision shortly.
Part III — the “backbone” of the ICESCR — lists the substantive economic, social, and cultural rights protected
under international law. The ICESCR protects all of the economic, social, and cultural rights contained in the UDHR,
plus a host of additional rights.
» Take a moment now to read through the ICESCR, attached as Annex III.
The rights protected by the ICESCR might be roughly divided into the following categories:
• Work (Articles 6–8): including the right to gain a living through freely chosen or accepted work; the right to
earn a fair wage and equal pay for equal work; the right to safe and healthy working conditions; the right to
equal opportunity for advancement; the right to rest, leisure, and reasonable working hours; and the right to
form trade unions and participate in strikes;
• Social security and social protection (Article 9): including the right to social security and protection;
• Protection and assistance of the family (Article 10): including the right to marriage by free consent; the
right to maternity benefits; and the right of children to be free from economic and social exploitation;
• Adequate standard of living (Article 11): including the right to food and to be free from hunger, to clothing,
and to housing;
• Health (Article 12): including the right to access health facilities and services; the right to healthy occupational
and environmental conditions; and the right to be protected against epidemic diseases;
• Education (Articles 13 and 14): including the right to free and compulsory primary education; available
and accessible secondary and higher education, to be made progressively free of charge; and the right of
parents to choose schools for their children; and
• Cultural Life (Article 15): including the right to take part in cultural life; the right to enjoy the benefits of
scientific advancement; and the right of authors to protection of their moral and material interests from scientific,
literary, or artistic production.
3) ICESCR, Art. 2.
66
The Importance of Economic, Social, and Cultural Rights »

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

(Geneva, 14 January 2005)
These substantive rights are followed by a number of administrative and enforcement provisions, the nature of
which we will discuss in Lesson 4.
In contrast with the ICCPR, which is overseen by the Human Rights Committee, States initially declined to
establish a treaty body to monitor and oversee the implementation of the ICESCR. The lack of an independent
enforcement body contributed to the stagnation of economic, social, and cultural rights in comparison with civil and
political rights. As Professor Beth Lyon of Villanova Law School writes:
“Although economic, social and cultural rights formed a

significant part of the original post-war body of human rights
doctrine, they were casualties of ideologically based Cold War
politics, remaining unenforced and underdeveloped until the
creation of the UN Committee on Economic, Social and Cultural
Rights … in the late 1980s.”4
Frustration with the ineffective monitoring of the ICESCR ultimately led States to establish the Committee on
Economic, Social and Cultural Rights in 1985.5 Since then, economic, social, and cultural rights have begun to make
a comeback, and have gained renewed importance over the last few decades.
The ICESCR, like the ICCPR, is supplemented by an Optional Protocol to the International Covenant on Economic,
Social and Cultural Rights. This Optional Protocol, which was adopted in December 2008, will set up an individual
complaints procedure (see discussion in Lesson 4) to be administered by the Committee on Economic, Social and
Cultural Rights. The Optional Protocol is not yet in force, but was opened for signature beginning in September 2009
and has so far been signed by 38 States.6 The Optional Protocol will enter into force three months after the tenth
State has ratified or acceded to the agreement.7
4) Beth Lyon, “Discourse in Development: A Post-Colonial Theory ‘Agenda’ for the UN Committee on Economic, Social and Cultural Rights”, Journal of
Gender, Social Policy & the Law, vol. 10, No. 3 (September 2002), 536.
5) Phillip Alston, “Out of the Abyss: The Challenges Confronting the New UN Committee on Economic, Social and Cultural Rights”, Human Rights
Quarterly, vol. 9, No. 3 (August 1987), 340–342.
6) When information on signatories to the Option Protocol becomes available, it will be listed on the UN Treaty Collection website: <http://treaties.
un.org/>.
7) Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, Art. 18.
67
These several articles of the ICESCR set out a list of economic, social, and cultural rights that are held by all
human beings. The list is extensive, and covers a wide range of aspects of human life. But, as was the case with civil
and political rights, it is far from obvious what each of these rights means. For example, what exactly does it entail
to have a “right to adequate housing”? Does it mean a right to basic shelter? A right to shelter with heating and an
indoor toilet? A right to a separate home for each family? What are governments expected to do in furtherance of
this right?
Giving content to rights
As was the case with civil and political rights, the content of
economic, social, and cultural rights is not always obvious. The
right to free and compulsory primary education, for example, may
seem fairly straightforward. But what does it mean to have a right
to take part in cultural life? Giving content to economic, social,
and cultural rights is an important and difficult task, and our
understanding of these rights is — and may perhaps always be —

continually under revision. Who, then, defines what the “right to
maternity benefits” or the “right to rest and leisure” means?
Since 1985, one source for giving content to these rights has
been the general comments issued by the Committee on Economic,
Social and Cultural Rights. We will learn a lot more about the
Committee on Economic, Social and Cultural Rights and its powers in
Lesson 4. For now, it is enough to know that this is the international
body that oversees the implementation of the ICESCR, just as the
Human Rights Committee is charged with overseeing the ICCPR.
From time to time, the Committee on Economic, Social and Cultural
Rights issues general comments articulating the essential features
of some of the rights contained in the treaty. These comments are Woman collects water from a deep well in
Tomboberi, Niger. (The right to water is protected
quite elaborate and enumerate the details of each of the rights they
by ICESCR Articles 11 and 12, according to the
address. As with the general comments issued by the Human Rights Committee on Economic, Social and Cultural
Committee, there is some discussion about whether, and to what Rights’ general comment 15). 1 January 1983. UN
Photo #84098 by Jeffrey Foxx.
extent, these general comments are legally binding. But whether
or not they have legal force, they exert great persuasive authority,
and provide a wealth of information on how we should understand
economic, social, and cultural rights.
For example, the Committee on Economic, Social and Cultural Rights general comment No. 13 sets out the core
content of the right to education:
“While the precise and appropriate application of the terms

will depend upon the conditions prevailing in a particular State
party, education in all its forms and at all levels shall exhibit the
following interrelated and essential features:
68
(a) Availability — functioning educational institutions and

programmes have to be available in sufficient quantity
within the jurisdiction of the State party. What they require
to function depends upon numerous factors, including the
developmental context within which they operate; for example,
all institutions and programmes are likely to require buildings
or other protection from the elements, sanitation facilities for
both sexes, safe drinking water, trained teachers receiving
domestically competitive salaries, teaching materials, and so
on; while some will also require facilities such as a library,
computer facilities and information technology;
(b) Accessibility — educational institutions and programmes

have to be accessible to everyone, without discrimination,
within the jurisdiction of the State party. Accessibility has three
overlapping dimensions:
» Non-discrimination — education must be accessible to

all, especially the most vulnerable groups, in law and fact,
without discrimination ... ;
» Physical accessibility — education has to be within safe

physical reach, either by attendance at some reasonably
convenient geographic location (e.g. a neighbourhood
school) or via modern technology (e.g. access to a “distance
learning” programme);
» Economic accessibility — education has to be affordable

to all ... : whereas primary education shall be available
“free to all”, States parties are required to progressively
introduce free secondary and higher education;
(c) Acceptability — the form and substance of education,

including curricula and teaching methods, have to be
acceptable (e.g. relevant, culturally appropriate and of good
quality) to students and, in appropriate cases, parents … ;
(d) Adaptability — education has to be flexible so it can adapt to

the needs of changing societies and communities and respond
to the needs of students within their diverse social and cultural
settings.
When considering the appropriate application of these

‘interrelated and essential features,’ the best interests of the
student shall be the primary consideration.”8
8) Committee on Economic, Social and Cultural Rights, “General Comment No. 13”, 1999, paras. 6–7.
69
As we saw in Lesson 2, explaining the content of even just this one right is a difficult thing to do. All of these
details may seem like overkill, but they are important because they let States, individuals, and other groups know
exactly what is expected under the ICESCR.
The content of the ICESCR, like the ICCPR, is also elaborated through the decisions of international judicial and
semi-judicial bodies, and the practice of States themselves. Further helpful (though not generally authoritative)
commentary can be gleaned from the writings of international scholars, NGOs, and other civil society and advocacy
groups.
Defining the content of rights is only the first step in determining what is required by the ICESCR. Once
individuals and States are aware of the content of their rights, the next important question is: what must States do
to enforce them?
The obligations of the State
As was the case with the ICCPR, States have an obligation to respect, protect, and fulfil individual’s economic,
social, and cultural rights. Recall that the obligation to respect is a negative obligation that requires States to refrain
from interfering with the enjoyment of a right; the obligation to protect is a positive obligation that requires States
to prevent others from interfering with the enjoyment of the right; and the obligation to fulfil is a positive obligation
that requires States to adopt appropriate measures towards the full realization of the right.
For example, a State’s duty to respect, protect, and fulfil the right to health may include the following types of
obligations:
• Respect: the State must not prevent individuals from accessing health services, or discriminate against
certain groups in terms of access or distribution of services;
• Protect: the State must regulate and control the quality of pharmaceutical drugs manufactured and sold in
its territory, and not allow private suppliers to market unsafe medicines; and
• Fulfil: the State must help facilitate individuals’ access to the right to health, for example by building clinics
in rural areas, subsidizing doctors’ visits, providing prenatal care, or establishing vaccination programmes.
States violate their obligations under the ICESCR when they fail to ensure that these rights are enjoyed without
discrimination or do not respect, protect, and fulfil them.
The ICESCR differs from the ICCPR in that it mandates the “progressive realization” of economic, social, and
cultural rights, rather than their immediate fulfilment. The concept of “progressive realization” was included in the
ICESCR in recognition of the fact that the full implementation of these rights could be very costly, particularly for
developing States. Instead of insisting that these rights be immediately fulfilled, therefore, the ICESCR requires
only that States take appropriate measures towards the realization of economic, social, and cultural rights, to the
maximum of their available resources.
This does not mean that States may wait until they become wealthy before starting to protect these rights, but
rather allows them to move towards the full realization of economic, social, and cultural rights progressively, a bit at
a time. States are still required to demonstrate that they are making an effort to realize these rights, even at times
when resources are scarce, and must not decrease the levels of protection currently afforded to individuals in their
territory.
70
While the majority of economic, social, and cultural rights are to be progressively realized, there are five areas
in which States must nevertheless take immediate action:9
1. “Eliminating discrimination: States must immediately act to

begin prohibiting discrimination in the enjoyment of economic,
social, and cultural rights;
2. Ensuring the protection of economic, social, and cultural

rights that may be immediately implemented: the
Committee on Economic, Social and Cultural Rights has clarified
that there are some economic, social, and cultural rights that
do not require significant resource investments and should
therefore be immediately implemented.10 These include:
3. Equal pay for equal work;
» The right to form and join trade unions and to strike;
» The obligation to protect children from economic and social

exploitation;
» The provision of free and compulsory primary education;
» The obligation to respect the liberty of parents to choose

schools other than those established by public authorities, so
long as they conform to minimum educational standards;
» The obligation to protect the liberty of individuals and bodies

to establish and direct educational institutions so long as they
conform to minimum standards; and
» The obligation to respect the freedom indispensable for

scientific research and creative activity.
4. ‘Taking steps’ to begin the progressive realization of

rights: as noted by the Committee on Economic, Social and
Cultural Rights, ‘while the full realization of the relevant rights
may be achieved progressively, steps towards that goal must
be taken within a reasonably short time after the Covenant’s
entry into force for the States concerned. Such steps should be
deliberate, concrete and targeted as clearly as possible towards
meeting the obligations recognized in the Covenant.’”11
9) See: Office of the High Commissioner for Human Rights, “Frequently Asked Questions on Economic, Social and Cultural Rights”, Fact Sheet No. 33
(2008), 15–17. Available from: <http://www.ohchr.org/EN/PublicationsResources/Pages/FactSheets.aspx>.
10) Committee on Economic, Social and Cultural Rights, “General Comment No. 3”, 1990, para. 5.
11) Ibid., para. 2.
71
5. Ensuring that no retrogressive measures are taken:

Article 5 mandates that States must not allow existing
economic, social, and cultural rights to deteriorate by taking
retrogressive measures unless there are strong and compelling
reasons for doing so. For example, a State may not begin to
charge fees for primary school attendance where none were
previously charged.
6. Meeting minimum core obligations: certain of the

obligations under the ICESCR are considered to be of
immediate effect in order to meet States’ minimum core
obligations. These are the set of obligations that constitute
the minimum essential levels of each economic, social, and
cultural right. In its general comments, the Committee on
Economic, Social and Cultural Rights has highlighted a number
of minimum core obligations, including:
» The obligation to ensure the right of access to employment;12
» The obligation to ensure access to the minimum essential

amount of food;13
» The obligation to ensure access to basic shelter, housing and

sanitation, and an adequate supply of water;14
» The obligation to provide essential drugs;15 and
» The obligation to ensure free and compulsory primary

education.”16
It is important to note that while States have many obligations under the ICESCR, the government is not
required to provide free health care, education, water, food, and other goods and services. The government is
required (generally progressively, but in some cases immediately) to ensure that the facilities, goods, and services
that are required for the enjoyment of economic, social, and cultural rights are available and accessible at affordable
prices.17
In some cases, ensuring availability and access may require that the government provide subsidized or free
services to certain groups of people who — for example because of severe poverty or in the event of conflict or
natural disaster — would otherwise not be able to enjoy their rights.18 And certain services such as primary
13) Committee on Economic, Social and Cultural Rights, “General Comment No. 12”, 1999, paras. 6 and 8.
14) Committee on Economic, Social and Cultural Rights, “General Comment No. 15”, 2002, para. 37; Committee on Economic, Social and Cultural Rights,
“General Comment No. 14”, 2000, para. 43.
17) See: Office of the High Commissioner for Human Rights, “Frequently Asked Questions on Economic, Social and Cultural Rights”, Fact Sheet No. 33
(2008), 20. Available from: <http://www.ohchr.org/EN/PublicationsResources/Pages/FactSheets.aspx>.
18) Ibid.
72
education must be provided free of charge in accordance with the provisions of the ICESCR. Nevertheless, in the
vast majority of cases, governments are not required to provide free services to individuals.
In addition, the ICESCR does not dictate that the government itself must directly provide services to individuals.
The facilities, goods, and services necessary for the enjoyment of economic, social, and cultural rights may be
dispensed by either public or private service providers, or any combination thereof, so long as they remain available
and accessible at an affordable price. States are responsible for ensuring that these services meet the criteria laid
out in the ICESCR and elaborated by the general comments, and therefore must regulate providers or provide
services themselves if no other options are available. However, government provision is only one available option for
ensuring that persons receive the goods and services necessary for enjoying their rights.
Writing Exercise 3: Food as a Right »

You are working in a small country that is party to the ICESCR. The national government
is running short of funds due to recent global economic difficulties. In an effort to cut costs
and survive the economic downturn, the president has decided to eliminate several social
welfare programmes, including the Hungry Families Initiative, which for the last five years has
provided basic food supplies such as rice and dried beans to families that fall below a certain
income threshold. Following the elimination of the programme, people from local villages
begin to march in protest against what they see as a violation of their right to food.
Consider the following questions and write a brief report (maximum one page).
• Has the State violated the right to food in this case? Is it easy to tell?
• What factors are relevant in making this determination?
• What are the possible long-term implications of your answer? Do governments ever have a
responsibility to provide food? Do they always have this responsibility? If so, why?
Limitations and derogations from the ICESCR
As was the case with the ICCPR, governments may limit (apply with restrictions) the rights listed in the ICESCR
in order to facilitate the orderly functioning of society, but this can be done only in very narrow circumstances, and
only to the extent necessary. As explained by Article 4:
“The States Parties to the present Covenant recognize that,

in the enjoyment of those rights provided by the State in
conformity with the present Covenant, the State may subject
such rights only to such limitations as are determined by law
only in so far as this may be compatible with the nature of
these rights and solely for the purpose of promoting the general
welfare in a democratic society.”19
Any attempts to suspend the rights included in the convention are therefore subject to several conditions: (1)
that they are lawful; (2) that they are compatible with the nature of the rights; and (3) that they have been enacted
for the purpose of ensuring the general welfare. For example, a State may limit the right to strike by requiring
19) ICESCR, Art. 4.
73
workers to first inform the local police of their intentions, but must not prevent them from doing so if they proceed
in an orderly fashion.
Unlike the ICCPR, the ICESCR contains no general derogation clause. This means that the rights contained in
the ICESCR continue to apply even in times of public emergency, and States are never allowed to suspend them
altogether. However, because most of the provisions in the ICESCR are to be implemented progressively and only to
the maximum extent permitted by available resources, a State may argue that in times of conflict it simply has fewer
resources to devote to the fulfilment of these rights.
We will return to this issue of the protection of human rights during armed conflict in Lesson 12.
Section 3.3 Other Instruments dealing with Economic, Social, and

Cultural Rights
In addition to the UDHR and the ICESCR, there are many other international and regional human rights treaties
that include economic, social, and cultural rights. Many of these pertain to specific groups or subject matters, and
also contain civil and political rights. Treaties with economic, social, and cultural rights include, at the international
level:
• The International Convention on the Elimination of All Forms of Racial Discrimination (CERD):
for example, the elimination of racial discrimination in the enjoyment of the rights to work, education, and
housing;
• The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW): for
example, the elimination of gender discrimination in the enjoyment of the rights to work and education and
appropriate health care;
• The Convention on the Rights of the Child (CRC): for example, the right of every child to education
and health care;
• The International Convention on the Protection of the Rights of All Migrant Workers and Members
of Their Families (ICRMW): for example, the right to equal working conditions, and the provision of
emergency medical care;
• The Convention on the Rights of Persons with Disabilities (CRPD): for example, the right to be
included in the community and to an education; and
• The “Declaration on the Rights of Indigenous Peoples”: for example, the right to practise cultural traditions
and the right to control their own educational institutions.
And at the regional level:
• Europe: the European Convention for the Protection of Human Rights and Fundamental Freedoms, its First
Protocol, the European Social Charter, and the Revised European Social Charter; and the Charter of Fundamental
Rights of the European Union;
• Americas: the American Convention on Human Rights, and the Additional Protocol to the American
Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador);
• Africa: the African Charter on Human and Peoples’ Rights, the African Charter on the Rights and Welfare
of the Child, and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women
in Africa; and
• Arab League: the Arab Charter on Human Rights.
74
Generally speaking, each of these regional treaties protects rights similar to those contained in the ICESCR. But
each also has its own peculiarities, and some focus on different aspects of economic, social, and cultural rights than
others. We will return to the subject of regional agreements and look more closely at their particular structures in
Lesson 5.
In addition, several different international organizations assist in protecting economic, social, and cultural rights.
The International Labour Organization (ILO) and the World Health Organization (WHO), for example, began working
on labour and health issues long before the development of binding international human rights treaties. The Food and
Agriculture Organization (FAO), International Organization for Migration (IOM), United Nations Human Settlements
Programme (UN-Habitat), and United Nations Educational, Scientific and Cultural Organization (UNESCO) all assist
countries and individuals in respecting, protecting, and fulfilling economic, social, and cultural human rights.
As was the case with civil and political rights, non-State actors such as NGOs, social movements, community-
based organizations, professional associations, trade unions, the media, private businesses, and other institutions
may also contribute to the protection of economic, social, and cultural rights.
Finally, national governments have a particularly important role to play. States like Mexico recognized early on
that human rights such as the right to an education, the right to work, and the right to health were part of the law of
the land, and included these economic, social, and cultural rights in its national constitution long before the signing of
the ICESCR. Other States, like South Africa and India, have also made economic, social, and cultural rights a major
part of their national constitutions, and have been leading players in fleshing out the content and limits of these
rights.
Section 3.4 Theoretical and Practical Issues
Explaining the underdevelopment of economic, social, and cultural rights
As noted in Lesson 2, despite the indivisibility, interdependence, and interrelatedness of rights, economic, social,
and cultural rights have proven more controversial and difficult to enforce than civil and political rights. Until a recent
revival, economic, social, and cultural rights were long a relatively neglected area on the international human rights
agenda, afforded “second-class status” in comparison with the rights contained in the ICCPR. As the Committee on
Economic, Social and Cultural rights noted at the World Conference on Human Rights in Vienna:
“Denial of the right to vote or of the right to freedom of speech,

solely on the grounds of race or sex, is loudly and rightly
condemned by the international community. Yet deep-rooted
forms of discrimination in the enjoyment of economic, social
and cultural rights against women, the elderly, the disabled and
other vulnerable and disadvantaged groups are all too often
tolerated as unfortunate realities. Thus, for example, many
human rights advocates have little to say in response to the
fact that women in many countries “are generally rewarded [for
the disproportionate work burden they bear] with less food,
less health care, less education, less training, less leisure, less
income, less rights and less protection.” Statistical indicators of
the extent of deprivation, or breaches, of economic, social and
cultural rights have been cited so often that they tended to lose
75
their impact. The magnitude, severity and constancy of that

deprivation have provoked attitudes of resignation, feelings of
helplessness and compassion fatigue.”20
There are many reasons for this relative underdevelopment of economic, social, and cultural rights. To begin
with, as discussed in the previous two lessons, the split between civil and political rights and economic, social, and
cultural rights was entrenched when it became intertwined with Cold War politics. Western States continued to argue
that economic and social rights were “goods [that] the government ought to encourage over the long term,” while
civil and political rights were “rights [that] the government has an absolute duty to respect at any time”.21 This strict
separation of civil and political rights from economic, social, and cultural rights has been increasingly abandoned in
recent years, and newer treaties such as the Convention on the Rights of the Child (CRC) and the Convention on the
Elimination of All Forms of Discrimination Against Women (CEDAW) have integrated the two types of rights into a
unitary whole.
Second, many argued that the content of economic, social, and cultural rights was insufficiently defined. Rights
like “the right to health” were seen as vague and unclear when compared with civil and political rights. This lack of
clarity, it was thought, made them difficult to apply and enforce. The fact that these rights were “vaguely worded”
was used by some to argue that economic, social, and cultural rights were not justiciable — that is, that they could
not be subject to judicial enforcement — because judges would not be able to tell whether violations had occurred.
Opponents of this view, however, pointed out that while it is true that some economic, social, and cultural
rights are more clearly defined than others, this is equally the case with civil and political rights. For example, the
“right to take part in cultural life” in the ICESCR is defined no more or less clearly than “the right to take part in
the conduct of public affairs” in the ICCPR. Moreover, judges have had to deal with a lack of clear definitions in
many circumstances, for example in defining what constitutes a “fair trial” or an “arbitrary or unlawful interference
with privacy”.
Indeed, judges at the national level have already been dealing with this issue for a number of years. In countries
such as India, South Africa, and Colombia, judges have developed a growing jurisprudence on issues of economic,
social, and cultural rights, hearing cases on issues such as the rights to housing, food, education, and health.22
Third, some nations protested against being held accountable for violations of economic, social, and cultural
rights because they saw them as far too difficult and costly to respect, protect, and fulfil. Because economic, social,
and cultural rights were regarded as positive rights that required government action, in contrast with civil and
political rights, which were seen as negative rights that merely required a government not to interfere, some thought
the rights protected by the ICESCR would require much greater investment on the part of governments.
It is indeed true that the protection of economic, social, and cultural rights may sometimes require high degrees
of investment. However, as defenders of economic, social, and cultural rights pointed out, civil and political rights
often require similar investments. As noted in Lesson 1, enforcing “negative” civil and political rights like the right
to vote requires a huge governmental investment in the system of electoral rules and facilities, laws to promote and
protect voters, and provisions to guarantee access to minority, disabled, rural, and other citizens.
20) A/CONF.157/PC/62/Add.5, annex 1, paras. 6–7.

21) Hearing Before the House Subcommittee on Human Rights and International Organizations, “Review of State Department Country Reports on Human
Rights Practices for 1981”, 28 April 1982, 97th Congress, 2nd Session, 13–17.
22) See: Government of RSA and others v. Grootboom and others, Constitutional Court, 1995(1) SA46 (CC) (interpreting the South African Constitutional
provision on the right of access to housing as granting limited housing rights to displaced people).
76
Economic, social, and cultural rights and women
The asymmetry between economic, social, and cultural rights and civil and political rights has also had important
consequences for women’s rights. Economic, social, and cultural rights are particularly significant for women due to
the disproportionate effects of poverty and social marginalization on their lives.23 Despite making up half of the world’s
population, women represent around 70 per cent of the 1.2 billion people living in poverty and own only 1 per cent
of the worlds’ wealth,24 a situation that has sometimes been referred to as the feminization of poverty. Women are
frequently disadvantaged in areas such as literacy, education, skills, employment opportunities, mobility, and political
representation, and are often the first to be denied food and other essentials in times of hardship.25
In a classic 1990 essay, Nobel Prize-winning economist Amartya Sen wrote: “More than 100 million women are
missing.”26 In normal circumstances, he noted, women live longer than men, so in a typical population there should be
slightly more females than males. In places where women and girls suffer from unequal status, however, they begin
to vanish. Girls are denied health care and food, are vaccinated at lower rates, and are selectively aborted by parents
who prefer male children. As a result, many countries have skewed populations in which men outnumber women.
China, for example, has 107 males for every 100 females in its overall population, and in India, girls between the
ages of one and five are 50 per cent more likely to die than boys in the same age range.27 This economic and social
subordination contributes to a cycle of oppression in which women are disproportionately subject to violence and
exploitation.28
Political philosophers frequently speak of a divide between the “public” sphere of political life as opposed to a “private”
sphere of the home and family. Feminist scholars have pointed out that this divide between public and private life also lines
up with the traditional gender divide between men and women. Historically, men have had privileged access to the public
sphere of government and economics, while women have been relegated to the private sphere of family and unpaid work
in the home.
With respect to the international bill of human rights, some feminist scholars have argued that one may view the ICCPR
— with its provisions on political participation, judicial rights, and expressive freedoms — as intended to protect individual
rights in the public sphere that are traditionally associated with men. The ICESCR, on the other hand, with its focus on fair
work, social security, family, health, and education, is designed to protect individual rights in the private sphere that are
traditionally associated with women. From this perspective, the emphasis on “public” civil and political rights comes at the
expense of rights in the “private” world, and thus also at the expense of issues of concern to “privatized” women, which
are reflected in economic, social, and cultural rights. As feminist and international law professor Hilary Charlesworth wrote:
“International law accords priority to civil and political rights,

rights that may have very little to offer women generally.
The major forms of oppression of women operate within the
economic, social and cultural realms. Economic, social and
cultural rights are traditionally regarded as a lesser form of
international right and as much more difficult to implement.”29
23) Barbara J. Stark, “Women’s Rights”, in Encyclopedia of Human Rights, David Forsythe, ed. (Oxford: Oxford University Press, 2009).
24) Amnesty International, “Economic, Social and Cultural Rights (ESCR) and Women: A Fact Sheet”, 2005, 1.
25) Ibid.
26) Amartya Sen, “More than 100 Million Women are Missing”, New York Review of Books, vol. 37, No. 20, 20 December 1990.
27) Nicholas D. Kristof and Sheryl WuDunn, “The Women’s Crusade”, New York Times Magazine, 17 August 2009.
28) See Lesson 8 for a more thorough discussion of women’s rights and what has been done to protect women in international human rights law.
29) Hilary Charlesworth, Christine Chinkin, and Shelley Wright, “Feminist Approaches to International Law”, American Journal of International Law, vol. 85,
1991, 635.
77
The asymmetry between civil and political and economic, social, and cultural rights can thus also be seen as
reflecting the asymmetry between men and women in terms of political, economic, and social power. Similarly, the
subordination of the ICESCR reflects and contributes to the continued subordination of women.
In the past decade, the gap between civil and political and economic, social, and cultural rights has begun,
slowly, to narrow. In particular, the newly adopted Optional Protocol to the ICESCR, the provisions of which we will
discuss in Lesson 4, represents “a milestone in the history of the universal human rights system,” one that “will
mark a high point of the gradual trend towards a greater recognition of the indivisibility and interrelatedness of
all human rights”.30 The adoption of the Optional Protocol is a recognition that economic, social, and cultural rights
are justiciable and that States can and should be held accountable for their failures to sufficiently comply with their
obligations under the ICESCR. It is the culmination of over two decades of advocacy on the part of the Committee on
Economic, Social and Cultural Rights as well as NGOs and civil society groups.
Conclusion
In Lessons 2 and 3 we learned how the basic set of human rights principles outlined in the UDHR was translated
into covenants containing legally binding obligations. We have seen how these rights were given content, and what
States are required to do to enforce them. However, we are still missing one piece of the puzzle: How are these rights
enforced? Who monitors whether States are meeting their obligations? Where can individuals go with complaints
about violations of their human rights? When and how can the international community act to protect individual
rights? This will be the subject of Lesson 4.
Further reading
• Asbjørn Eide, Economic, Social and Cultural Rights, 2001.
• Isfahan Merali and Valerie Oosterveld eds., Giving Meaning to Economic, Social and Cultural Rights, 2001.
• The Committee on Economic, Social and Cultural Rights: <www.ohchr.org/en/hrbodies/cescr/pages/cescrindex.
aspx>.
30) Statement by Louise Arbour, High Commissioner for Human Rights to the Open-ended Working Group on an optional protocol to the International
Covenant on Economic, Social and Cultural Rights, Fifth session, 31 March 2008.
78
Annex III: International Covenant on Economic, Social and Cultural Rights
International Covenant on Economic, Social and Cultural Rights
PREAMBLE
Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of
the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of
freedom, justice and peace in the world,
Recognizing that these rights derive from the inherent dignity of the human person,
Recognizing that, in accordance with the Universal Declaration of Human Rights, the ideal of free human beings
enjoying freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his
economic, social and cultural rights, as well as his civil and political rights,
Considering the obligation of States under the Charter of the United Nations to promote universal respect for, and
observance of, human rights and freedoms,
Realizing that the individual, having duties to other individuals and to the community to which he belongs, is under a
responsibility to strive for the promotion and observance of the rights recognized in the present Covenant,
Agree upon the following articles:
PART I
Article 1
1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status
and freely pursue their economic, social and cultural development.
2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any
obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and
international law. In no case may a people be deprived of its own means of subsistence.
3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-
Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall
respect that right, in conformity with the provisions of the Charter of the United Nations.
PART II
Article 2
1. Each State Party to the present Covenant undertakes to take steps, individually and through international
assistance and co-operation, especially economic and technical, to the maximum of its available resources,
with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all
appropriate means, including particularly the adoption of legislative measures.
79
2. The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present
Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political
or other opinion, national or social origin, property, birth or other status.
3. Developing countries, with due regard to human rights and their national economy, may determine to what
extent they would guarantee the economic rights recognized in the present Covenant to non-nationals.
Article 3
The States Parties to the present Covenant undertake to ensure the equal right of men and women to the
enjoyment of all economic, social and cultural rights set forth in the present Covenant.
Article 4
The States Parties to the present Covenant recognize that, in the enjoyment of those rights provided by the
State in conformity with the present Covenant, the State may subject such rights only to such limitations as are
determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose
of promoting the general welfare in a democratic society.
Article 5
1. Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to
engage in any activity or to perform any act aimed at the destruction of any of the rights or freedoms recognized
herein, or at their limitation to a greater extent than is provided for in the present Covenant.
2. No restriction upon or derogation from any of the fundamental human rights recognized or existing in any
country in virtue of law, conventions, regulations or custom shall be admitted on the pretext that the present
Covenant does not recognize such rights or that it recognizes them to a lesser extent.
PART III
Article 6
1. The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to
the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to
safeguard this right.
2. The steps to be taken by a State Party to the present Covenant to achieve the full realization of this right shall
include technical and vocational guidance and training programmes, policies and techniques to achieve steady
economic, social and cultural development and full and productive employment under conditions safeguarding
fundamental political and economic freedoms to the individual.
80
Article 7
The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable
conditions of work which ensure, in particular:
(a) Remuneration which provides all workers, as a minimum, with:
(i) Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular
women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for
equal work;
(ii) A decent living for themselves and their families in accordance with the provisions of the present
Covenant;
(b) Safe and healthy working conditions;
(c) Equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to
no considerations other than those of seniority and competence;
(d ) Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as
remuneration for public holidays
Article 8
1. The States Parties to the present Covenant undertake to ensure:
(a) The right of everyone to form trade unions and join the trade union of his choice, subject only to the rules
of the organization concerned, for the promotion and protection of his economic and social interests. No
restrictions may be placed on the exercise of this right other than those prescribed by law and which are
necessary in a democratic society in the interests of national security or public order or for the protection of
the rights and freedoms of others;
(b) The right of trade unions to establish national federations or confederations and the right of the latter to
form or join international trade-union organizations;
(c) The right of trade unions to function freely subject to no limitations other than those prescribed by law and
which are necessary in a democratic society in the interests of national security or public order or for the
protection of the rights and freedoms of others;
(d) The right to strike, provided that it is exercised in conformity with the laws of the particular country.
2. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of
the armed forces or of the police or of the administration of the State.
3. Nothing in this article shall authorize States Parties to the International Labour Organisation Convention of 1948
concerning Freedom of Association and Protection of the Right to Organize to take legislative measures which
would prejudice, or apply the law in such a manner as would prejudice, the guarantees provided for in that
Convention.
81
Article 9
The States Parties to the present Covenant recognize the right of everyone to social security, including social
insurance.
Article 10
The States Parties to the present Covenant recognize that:
1. The widest possible protection and assistance should be accorded to the family, which is the natural and
fundamental group unit of society, particularly for its establishment and while it is responsible for the care and
education of dependent children. Marriage must be entered into with the free consent of the intending spouses.
2. Special protection should be accorded to mothers during a reasonable period before and after childbirth. During
such period working mothers should be accorded paid leave or leave with adequate social security benefits.
3. Special measures of protection and assistance should be taken on behalf of all children and young persons
without any discrimination for reasons of parentage or other conditions. Children and young persons should be
protected from economic and social exploitation. Their employment in work harmful to their morals or health or
dangerous to life or likely to hamper their normal development should be punishable by law. States should also
set age limits below which the paid employment of child labour should be prohibited and punishable by law.
Article 11
1. The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for
himself and his family, including adequate food, clothing and housing, and to the continuous improvement of
living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing
to this effect the essential importance of international co-operation based on free consent.
2. The States Parties to the present Covenant, recognizing the fundamental right of everyone to be free from hunger,
shall take, individually and through international co-operation, the measures, including specific programmes,
which are needed:
(a) To improve methods of production, conservation and distribution of food by making full use of technical
and scientific knowledge, by disseminating knowledge of the principles of nutrition and by developing or
reforming agrarian systems in such a way as to achieve the most efficient development and utilization of
natural resources;
(b) Taking into account the problems of both food-importing and food-exporting countries, to ensure an
equitable distribution of world food supplies in relation to need.
82
Article 12
1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest
attainable standard of physical and mental health.
2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right
shall include those necessary for:
(a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development
of the child;
(b) The improvement of all aspects of environmental and industrial hygiene;
(c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases;
(d) The creation of conditions which would assure to all medical service and medical attention in the event of
sickness.
Article 13
1. The States Parties to the present Covenant recognize the right of everyone to education. They agree that
education shall be directed to the full development of the human personality and the sense of its dignity, and
shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall
enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship
among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the
maintenance of peace.
2. The States Parties to the present Covenant recognize that, with a view to achieving the full realization of this
right:
(a) Primary education shall be compulsory and available free to all;
(b) Secondary education in its different forms, including technical and vocational secondary education, shall
be made generally available and accessible to all by every appropriate means, and in particular by the
progressive introduction of free education;
(c) Higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate
means, and in particular by the progressive introduction of free education;
(d) Fundamental education shall be encouraged or intensified as far as possible for those persons who have not
received or completed the whole period of their primary education;
(e) The development of a system of schools at all levels shall be actively pursued, an adequate fellowship
system shall be established, and the material conditions of teaching staff shall be continuously improved.
3. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when
applicable, legal guardians to choose for their children schools, other than those established by the public
authorities, which conform to such minimum educational standards as may be laid down or approved by the
State and to ensure the religious and moral education of their children in conformity with their own convictions.
83
4. No part of this article shall be construed so as to interfere with the liberty of individuals and bodies to establish
and direct educational institutions, subject always to the observance of the principles set forth in paragraph I of
this article and to the requirement that the education given in such institutions shall conform to such minimum
standards as may be laid down by the State.
Article 14
Each State Party to the present Covenant which, at the time of becoming a Party, has not been able to secure in
its metropolitan territory or other territories under its jurisdiction compulsory primary education, free of charge,
undertakes, within two years, to work out and adopt a detailed plan of action for the progressive implementation,
within a reasonable number of years, to be fixed in the plan, of the principle of compulsory education free of charge
for all.
Article 15
1. The States Parties to the present Covenant recognize the right of everyone:
(a) To take part in cultural life;
(b) To enjoy the benefits of scientific progress and its applications;
(c) To benefit from the protection of the moral and material interests resulting from any scientific, literary or
artistic production of which he is the author.
2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right
shall include those necessary for the conservation, the development and the diffusion of science and culture.
3. The States Parties to the present Covenant undertake to respect the freedom indispensable for scientific research
and creative activity.
4. The States Parties to the present Covenant recognize the benefits to be derived from the encouragement and
development of international contacts and co-operation in the scientific and cultural fields.
G.A. res. 2200A (XXI), UN Doc A/6316 (1966)
84
1. The _____, the _____, and the 5. General comments of the Committee on
_____ make up the three parts of the Economic, Social and Cultural Rights are
International Bill of Human Rights. helpful for _____.
A. understanding the voting patterns of States
2. The prohibition of discrimination in
at the United Nations
Article 2 of the International Covenant
on Economic, Social and Cultural Rights B. determining the legal meaning of human
(ICESCR) applies to _____. rights provisions in the International
Covenant on Economic, Social and Cultural
A. all rights in the treaty
Rights (ICESCR)
B. only the provisions relating to work
C. adding new rights to the International
C. only the provisions relating to health
Covenant on Economic, Social and Cultural
D. nothing. It is merely a suggestion
Rights (ICESCR)
3. Which of the following rights is NOT D. eliminating rights from the International
protected by the International Covenant Covenant on Economic, Social and Cultural
on Economic, Social and Cultural Rights Rights (ICESCR)
(ICESCR)?
A. The right to access to health facilities and 6. Which of the following does NOT
describe a State’s obligations under the
services
International Covenant on Economic,
B. The right to free and compulsory primary Social and Cultural Rights?
education
A. States must respect economic, social, and
C. The right to be free from torture
cultural rights
D. The right to take part in cultural life
B. States must protect economic, social, and
cultural rights
4. The Optional Protocol to the
International Covenant on Economic, C. States must fulfil economic, social, and
Social and Cultural Rights (ICESCR) was cultural rights
adopted in _____. D. States must guarantee economic, social,
A. 1918 and cultural rights
B. 1948
7. The concept of progressive realization
C. 1966
means _____.
D. 2008
A. States can ignore economic, social, and
cultural rights
B. States must implement all economic, social,
and cultural rights immediately
C. States must implement economic, social, and
cultural rights over time, to the maximum of
their available resources
D. States may choose which economic, social,
and cultural rights they want to recognize
85
8. The prohibition on taking retrogressive 10. The International Covenant on Economic,

measures means _____. Social and Cultural Rights (ICESCR)
requires States to _____.
A. States may not allow existing economic,
social, and cultural rights to deteriorate A. provide free health care, education, water,
B. States may not imprison people for newly food, and other goods and services to
invented crimes everyone
C. States must ensure that they do not B. ensure that the facilities, goods, and services
discriminate when protecting economic, that are required for the enjoyment of
social, and cultural rights economic, social, and cultural rights are
available and accessible at affordable prices,
D. States must immediately implement the
from either public or private sources
right to free and compulsory primary
education C. eliminate private providers of goods and
services necessary for the enjoyment of
9. The obligations under the International economic, social, and cultural rights
Covenant on Economic, Social and D. privatize all goods and services necessary
Cultural Rights (ICESCR) that constitute
for the enjoyment of economic, social, and
the minimum essential levels of each
right are known as the _____. cultural rights
Answer Key »
1. Universal Declaration of Human Rights (UDHR),
International Covenant on Civil and Political Rights
(ICCPR), International Covenant on Economic, Social and
Cultural Rights (ICESCR)
2. A
3. C
4. D
5. B
6. D
7. C
8. A
9. Minimum Core Obligations
10. B
86
HUMAN RIGHTS
LESSON
Enforcement Mechanisms I: the
4 UN System
States are the principal

entities responsible for
enforcing human rights.
UN Photo #426484 by Jean-Marc Ferré.
Section 4.1 Introduction • Understand the barriers to applying international

human rights law directly to non-State actors.
Section 4.2 Charter Bodies
• Describe recent global attempts at regulating
Section 4.3 Treaty Bodies transnational corporations.
• Appreciate the theoretical difficulties with respect to

the regulation of transnational corporations.
• Understand the history of international attempts to

regulate terrorism.
• Appreciate the difficulty of defining terrorism under

international law.
• Describe the ways in which terrorists can violate

individual rights;
• Describe the ways in which States can violate

individual rights while trying to prevent terrorism.
• Describe the ways in which States can violate the

rights of terrorists.
87
LESSON 4 | Enforcement Mechanisms I: the UN System
The Peace Palace, seat of the International Court of Justice (ICJ). The Court is the principal judicial body of the United Nations. 1
January 1993. UN Photo #110330 by Andrea Brizzi.
The need for international enforcement
mechanisms
In the previous two lessons we learned how the human
rights set out in the UDHR were translated into binding legal
obligations through the ICCPR and the ICESCR. We looked at

what the rights in these documents mean, how their content
at <https://www.peaceopstraining.
is developed, and what States are required to do to ensure org/videos/156/lesson-4-enforcement-
that they are protected. In Lessons 4 and 5 we move on to mechanisms-i-the-un-system/>.
examine another important question: how are human rights
enforced?
88
As we saw in Lessons 2 and 3, the ICCPR and ICESCR place the primary obligation to respect, protect, and
fulfil human rights on the shoulders of States. By becoming party to these treaties, a State agrees to take on the
responsibility to ensure that civil, political, economic, social, and cultural rights can be fully enjoyed by all. States are
tasked with enforcing human rights both between one individual and another, and between individuals and the State
itself. In short, States are the principal entities responsible for enforcing human rights.
Countries can fulfil their obligation to enforce human rights in several ways, with different State organs playing a
variety of roles. Governments protect rights by passing human rights legislation that sets clear rules and establishes
mechanisms for enforcement. They may establish a national human rights institution (NHRI) to oversee the
implementation of human rights in the country.1 They can work to ensure the presence of an independent judiciary,
which is essential for individuals to bring claims and seek justice when their rights are violated, and they can establish
educational programmes and campaigns to provide cultural- and context-sensitive information to individuals about
what rights they have and what they can do to enforce them.
Perhaps in a perfect world, all States would take their human rights obligations seriously, rigorously enforcing their
treaty obligations through legislative and judicial action. Unfortunately, this is not always the case. Even when States
know the content of human rights and are aware of their obligations to respect, protect, and fulfil them, they may
sometimes still fail to do so.
Failure to protect human rights happens in many circumstances — a government may be going through a difficult
transition period, may be spending its budget and political capital in other areas, or it simply may not care, or think it
expedient to ignore the human rights of citizens and others in its territory. The national judiciary may be inadequate, partial,
corrupt, or otherwise unwilling or unable to deal with complaints. In some cases, a government may even begin to commit
gross and systematic human rights abuses, for example against minority groups or political opponents.
In cases like these, how can individuals and the international community ensure that the State continues to fulfil its
human rights obligations?
On the Importance of Enforcement Mechanisms »

“Covenants, without the sword, are but words and of no strength to
secure a man at all.”
–Thomas Hobbes
Issues in developing international enforcement mechanisms
This problem of international enforcement is a difficult one. As discussed in Lesson 1, the principle of sovereignty
generally prevents States and the international community from interfering in the internal affairs of other States. Because
of the preeminence of State sovereignty, the very concept of international “enforcement” is strongly resisted by many
national governments. This means that under international law, one country cannot simply send its army or police force
into another State to stop it from violating human rights, and there is no world court with armies at its disposal that could
try a State for violations and then force it to comply with a judgment.
1) A growing number of countries have established NHRIs in recent years. For an unofficial list, visit the National Human Rights Institutions Forum’s global
directory.
89
Moreover, individual States have little incentive (at least in the traditional material sense) to act against violators.
After all, a State that violates human rights norms is generally acting against its own citizens, not those under the
protection of other States. A country may legitimately question why it should invest its limited monetary and military
resources in assisting persons in another State who have been wrongfully imprisoned by their own government.
In addition, debate over which human rights norms are “enforceable” continues. As we have learned, the Cold
War and its division of States into Western and socialist blocs had a major influence on the development of human
rights treaties and initiatives. Although tensions between East and West faded during the 1990s, new tensions
between the global North and global South have manifested. These newer disagreements involve questions such as
whether emphasis should be placed on specific violations of human rights or more general trends; the importance
that should be given to economic, social, and cultural rights as compared with civil and political rights and emerging
“third generation” rights like the right to development (which we will examine in Lesson 7); and how much power
should be granted to human rights “experts” in comparison with the direct political representatives of States.2
Overcoming these obstacles to international enforcement of human rights norms has been a difficult process.
Balancing the traditional inviolability of sovereign States against the modern “globalization” of human rights issues
has required a great deal of legal contortion, and States continue to contest the application of particular standards
and enforcement mechanisms. Consequently, legally binding human rights treaties have not developed in a standard
or comprehensive way, but rather have blossomed in fits and starts, taking opportunities as they arose. The
particular historical, cultural, regional, and institutional context in which each human rights treaty originated has had
a tremendous impact on the enforcement mechanisms that are available in each situation. As a result, the map of
international human rights enforcement is, to put it mildly, complex.
In the end, we have been left with a hodgepodge of various overlapping and complementary enforcement
mechanisms that work together to encourage States to respect, protect, and fulfil international human rights. These
enforcement mechanisms have developed over time, in response to specific needs and capabilities. They serve a
number of functions, ranging from advice and assistance, to supervision and reporting, to correction and remedy, to
prevention — and they rely on a number of methods, including combinations of:
• Standard-setting;
• Monitoring and reporting;
• Moral pressure;
• Practical assistance;
• Litigation; and
• Direct intervention.
We will approach the topic of human rights enforcement mechanisms by examining several “systems” of
protection. First, in this lesson, we will examine the United Nations, or “global”, system. The UN’s machinery for the
enforcement of human rights consists of two different types of organs:
• Charter-based organs: these include UN bodies that were either directly mandated by the UN Charter or
authorized by a body that was directly created by the Charter. Because they draw their legitimacy from the
UN Charter and its human rights provisions, these organs have a broad mandate to promote awareness,
encourage respect, and respond to violations of international human rights norms. They can focus on a
2) Henry J. Steiner, Philip Alston, and Ryan Goodman, International Human Rights in Context: Law, Politics, Morals (Third Edition) (Oxford: Oxford
90
diverse range of issues, respond flexibly to the needs of the moment, and address themselves to any
Member State of the UN.
• Treaty-based organs: these include bodies that were created by human rights treaties originating in UN
processes. Because they draw their legitimacy from a specific treaty, these organs are much more limited in
their mandates than Charter-based organs. Their jurisdiction (what and who they are allowed to address)
is limited by the terms and subject of the treaty under which they were formed, and extends only to those
States that are parties to that particular treaty.
We will discuss each of these types of enforcement mechanisms in turn.
In Lesson 5, we will examine each of the major regional systems for enforcing human rights, and then take a
look at the scattered set of international organizations, expert bodies, and non-governmental organizations (NGOs)
that contribute to the enforcement of international human rights norms in various other ways.
As you read through Lessons 4 and 5, keep in mind the fragmented and context-specific origins of the various
enforcement mechanisms. Has this fragmentation affected the system of human rights protection? How?
Section 4.2 Charter Bodies

As noted in the introduction to this lesson, UN Charter bodies are organs established by the UN under the
authority of the UN Charter. The UN Charter of 1945 originally created six so-called principal organs to carry out the
work of the UN. These organs, and the major human rights bodies resulting from them, are:
Each of these Charter bodies has played an important role in the promotion and protection of human rights, and
all have contributed to the UN system of human rights enforcement in different ways.
Principal Organs Human Rights Bodies
General Human Rights Human Rights

Assembly Council Council Advisory
Committee
Special Procedures
Office of the High (Special Rapporteurs
Secretariat Commissioner for and working groups)
Human Rights
Economic and Commission on the

Social Council Status of Women
Permanent Forum
on Indigenous
Trusteeship Issues
Council
Security
Council
International
Court of Justice
91
The Trusteeship Council
The Trusteeship Council was originally responsible for overseeing the administration of a number of territories
during their transition from colonial to independent rule. It has been suspended since 1994, when its work in
overseeing the post-War decolonization process was successfully completed following the independence of Palau.3
The Economic and Social Council
The Economic and Social Council (ECOSOC) studies, coordinates, and makes recommendations on economic
and social issues at the UN.4 ECOSOC supervises and oversees several important specialized human rights bodies,
including:
• The Commission on the Status of Women (CSW): Established in 1946, this body consists of 45
government representatives who monitor, protect, and promote women’s rights. As we will see in Lesson
8, the CSW’s work was critical to the development of the Convention on the Elimination of Discrimination
Against Women (CEDAW).5
• The Permanent Forum on Indigenous Issues (PFII): Established in 2000, this body is charged with
advising ECOSOC and other UN agencies on indigenous issues related to economic and social development,
culture, the environment, education, health, and human rights. The 15 independent experts of the PFII
have been meeting for two weeks annually since 2002.6
ECOSOC also has the responsibility for granting “consultative status” with the UN to NGOs.7 Attaining consultative
status allows an NGO to participate in some UN agency discussions and submit materials to relevant bodies.
The Security Council
The primary responsibility of the Security Council (SC) is to maintain international peace and security. Under
the UN Charter, the use of force (war or aggression) by any country is prohibited except in the case of self-defence
or where authorized by the Security Council.8 The Security Council’s work focuses on trying to prevent breaches of
international peace in violation of this provision of the Charter. In this capacity, it has the authority to:
• Investigate any dispute or situation that may lead to a breach of international peace;
• Make recommendations for avoiding or mitigating such disputes;
• Formulate plans for the establishment of a system to regulate armaments;
• Determine the existence of a threat or act of aggression and recommend appropriate action;
• Call on Members to apply economic sanctions and other measures not involving the use of force to prevent
or stop aggression; and
• Use force against an aggressor (initiate peacekeeping operations, humanitarian intervention, or military
action by a coalition of States).9
3) For more information on the work of the Trusteeship Council, visit: <http://www.un.org/en/mainbodies/trusteeship/>.
4) UN Charter, Chapter X.
5) See Lesson 8 for a discussion of the history and work of the Commission on the Status of Women.
6) See Lesson 10 for a discussion of the history and work of the Permanent Forum on Indigenous Issues.
7) UN Charter, Art. 71.
8) See Lesson 11 for a discussion of the role of the Security Council in the laws of just war, jus ad bellum.
9) UN Charter, Chapter VII.
92
The Security Council is made up of 15 Member States of the UN. There are five permanent members — China,
France, Russian Federation, the United Kingdom (UK), and the United States (US) — and 10 non-permanent members
elected for two-year terms and distributed across the various regions.10 Decisions taken by the Security Council
create binding obligations for UN Member States.11 In order for a resolution to be passed, nine of the 15 Member
States must vote affirmatively, and all five permanent members must concur in the vote (with “concur” meaning
either an affirmative vote or an abstention).12 This means that China, France, Russia, the UK, and the US effectively
have a veto that gives them the power to block the adoption of any measure under discussion.
With respect to human rights protection, the Security Council has played an increasingly important role in
recent years. It has ensured the inclusion of human rights provisions in peace agreements, assisted in efforts to
eliminate the use of child soldiers, and required the consideration of human rights principles by the Counter-Terrorism
Committee established after the 9/11 attacks in the United States.13 It has assigned peacekeeping forces human
rights mandates and authorized humanitarian intervention operations. It has considered gross violations of human
rights that threaten international peace and security and recommended enforcement measures, and has established
international criminal tribunals for the prosecution of individuals responsible for serious violations of international
humanitarian law during conflicts. These international criminal tribunals include the International Criminal Tribunal
Security Council Reform »

Over the past two decades, a vigorous debate has arisen over whether the Security Council’s
structure and voting rules are outdated and in need of reform. Opponents of the current
Security Council set-up argue that despite the dramatic changes in geopolitics that have taken
place since 1945, the Security Council still reflects the world order that was in place just
after WWII, when the victors of that conflict were rewarded with permanent veto-wielding
seats. Now, they contend, the Security Council should be reformed, and its working methods
updated to reflect a more modern worldview.
Reform proposals have included taking the veto away from some of the current permanent
members and bestowing it on other, newly powerful States; expanding the number of
permanent and/or non-permanent seats in the Security Council; making the Council more
representative by shifting the regional balance of power; and eliminating the permanent seats
and veto altogether.
Implementing large-scale changes in the Security Council, however, is politically challenging.

The current permanent Member States are reluctant to give up their authority. Expanding the
Council — though it might make it more democratic and regionally representative — could
slow down voting and prevent the institution from being able to act quickly and decisively in
the face of international crises.
• What do you think? Is the Security Council in need of reform?
10) UN Charter, Art. 23. For a list of current non-permanent members of the Security Council, visit the “Members” page of the Security Council website at
<https://www.un.org/securitycouncil/content/security-council-members>.
13) See Lesson 14 for a discussion of human rights and terrorism.
93
for the Former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the International
Criminal Court (ICC).14
Since the 1990s, one of the biggest challenges for the Security Council has been responding to the debate over
humanitarian intervention and the responsibility to protect (R2P). “Responsibility to protect” refers to the idea that,
despite the prohibition on the use of force contained in the UN Charter, there may be a sort of humanitarian exception
that could justify the use of force by one State against another — even in the absence of a threat to international
peace and security — in order to protect individuals from gross violations of their human rights. The concept of
R2P, developed most elaborately by the Canadian-sponsored International Commission on Intervention and State
Sovereignty in 2001,15 was in large part a response to the failure of the international community to intervene to stop
ongoing mass atrocities such as those that took place in Rwanda and Kosovo.
Proponents of a humanitarian intervention exception or the R2P paradigm argue that while “the primary
responsibility for the protection of its people lies with the State itself,” where a State is “unwilling or unable” to
prevent serious and systematic harm to its population, “the principle of non-intervention yields to the international
responsibility to protect.”16 Officially recognizing a humanitarian exception to the principle of non-intervention —
which, as we learned in Lesson 1, is one of the key components of the Westphalian system of sovereign States — is
a significant departure from the traditional law of international relations. Moreover, the idea raises a number of
old
questions: How and when would this exception be exercised? Under whose authority? Would it ever be exercised
against powerful States? We will return to this topic in Lesson 11.
The International Court of Justice
The International Court of Justice (ICJ) is responsible for settling legal disputes between States and advising the
UN on legal matters.17 In addition to several important early cases on human rights issues such as self-determination
and genocide, the ICJ has made a number of judgments of high importance for international human rights law since
the mid-1990s.
The primary importance of the ICJ for human rights lies in its ability to define and give content to standards in
international human rights law. By providing its opinion on whether a violation of human rights has occurred in a
given situation, the ICJ can help to elaborate the boundaries between individual and State rights. The ICJ can issue
both formal decisions, which are binding on the parties to the dispute, and advisory opinions that are non-binding,
but highly persuasive in terms of defining the law in a given situation.
The Secretariat
The Secretariat is the chief administrative body of the UN, and is led by the Secretary-General (SG). The Secretariat
assists the other principal organs of the United Nations in numerous ways, administering the programme and policies
that they create.18
In order to promote their agendas, Secretaries-General have several powers at their disposal. With respect to human
rights, three functions stand out. First, the SG administers peacekeeping missions, and can ensure that these missions
include a human rights mandate.
14) See Lesson 13 for a discussion of international criminal law and courts.
15) International Commission on Intervention and State Sovereignty, Responsibility to Protect (2001).
16) Ibid.
17) UN Charter, Chapter XIV.
18) UN Charter, Chapter XV.
94
Second, the SG can act as a spokesperson and leader
on human rights issues, supporting the High Commissioner
for Human Rights (see discussion below) in disseminating and
publicizing human rights information and campaigns.
Finally, the SG can bring urgent human rights problems
directly to governments (in confidence) using the good offices
mechanism.
In recent years, the SG has taken on a greater role in the
area of human rights. Previous Secretaries-General such as
Dag Hammarskjöld and Boutros Boutros-Ghali were reluctant
to press the human rights agenda for fear of alienating
governments and jeopardizing their role in the promotion
of international peace. By contrast, recent secretaries such
as Kofi Annan have taken a more activist stance, overseeing
the process of human rights mainstreaming (in which UN
agencies are encouraged to address human rights throughout
their work) at the UN.19 The current SG, Ban Ki-moon, has
made the prevention of and response to mass atrocities
Secretary-General Ban Ki-moon briefs the media
a particular priority, and has collaborated with members of
following a meeting of the Security Council on
the R2P movement in championing the cause of UN action in
the situation in Myanmar. 13 July 2009. UN Photo
this area.20 His term in office is not yet over, however, and it #403911 by Evan Schneider.
remains to be seen what place he will occupy in the history of
human rights protection.
The Office of the High Commissioner for Human Rights
Positioned under the Secretary-General, the Office of the High Commissioner for Human Rights (OHCHR) is
one of the most important Charter bodies acting in the field of human rights. The OHCHR plays a central role
in coordinating, monitoring, studying, and promoting human rights throughout the UN system, and designs and
implements human rights programmes to be carried out by the Secretariat.21 The current High Commissioner for
Human Rights, Navanethem Pillay, took up her post on 1 September 2008. As of April 2007, the OHCHR employed
more than 850 staff in Geneva, New York, 11 country offices, and seven regional offices around the world.22
The OHCHR has no power to issue declarations or make decisions that will be binding on States. Instead, the
High Commissioner has the power to develop programmes and focus attention on human rights priorities of her
choice. The OHCHR implements its policies both through publicity campaigns and through field operations that carry
out technical assistance and investigative and monitoring functions.

20) Andrew Clapham, “United Nations Charter-Based Protection of Human Rights”, in International Protection of Human Rights: A Textbook, Catarina
Krause and Martin Scheinin, eds. (Turku, Finland: Åbo Akademi University Institute for Human Rights, 2009).
21) For additional information on the OHCHR, see: <http://www.ohchr.org/>.
22) OHCHR, “Who We Are”. Available from: <http://www.ohchr.org/EN/AboutUs/Pages/WhoWeAre.aspx>.
95
Technical Assistance »
Technical assistance or cooperation programmes offer practical assistance to States so
that they can better respect, protect, and fulfil the human rights of their citizens. Technical
assistance projects can be critical for States seeking help in applying international human
rights norms and translating them into laws and actions. Independent experts providing
technical assistance can also play a role in examining and making recommendations on
human rights situations.
Special UN funds and programmes like the Voluntary Fund for Advisory Services and Technical
Assistance in the Field of Human Rights and the High Commissioner for Human Rights’
Technical Cooperation Programme assist countries in applying human rights norms at the
national level. These programmes may provide practical assistance to national parliaments
and other State organs in:
• Institution-building in the legislature;
• Implementing specific projects;
• Developing human rights action plans;
• Reviewing human rights legislation;
• Human rights education;
• Designing national human rights institutions; and
• Training judges, lawyers, prosecutors, police officers, and prison personnel in human
rights.
The General Assembly
The General Assembly, the principal deliberative organ of the UN, performs a number of important functions
with respect to human rights. The General Assembly is empowered to discuss any matters within the scope of the
UN Charter and to “initiate studies and make recommendations for the purpose of … assisting in the realization of
human rights”.23 The General Assembly is an extremely important body in terms of standard setting — the process of
developing and explaining the content of human rights norms.
The particular importance of the General Assembly arises from the fact that it is composed of all Member States
of the UN, each of which has an equal right to speak and vote regardless of size, population, level of development,
wealth, or any other consideration. Though it cannot pass legally binding rules (except in the realm of budgetary
matters), it does have the power to issue resolutions, which have important moral and political force. It can also
create new UN bodies to carry out various functions.24
Because of its “one country, one vote” setup, the General Assembly has a special claim to universal
representation, so the resolutions, declarations, principles, codes of conduct, and other actions it takes have a strong
claim to international normative legitimacy. Though non-binding, instruments adopted by the General Assembly
are important elements in the creation of international human rights law — as Statements of international opinion,
platforms from which international treaties can be constructed, and expressions of international customary law (see
box in Lesson 1).

24) UN Charter, Chapter IV.
96
Participants of the tenth special

session of the Human Rights Council.
20 September 2009. UN Photo
#326166 by Jean-Marc Ferré.
The Human Rights Council
The Human Rights Council (HRC) (not to be confused with the Human Rights Committee, the body that oversees
implementation of the ICCPR) is an intergovernmental body that was created by the General Assembly in 2006.
The Human Rights Council replaces the Commission on Human Rights, which functioned from 1946 to 2006. The
old Commission, which had become a hotbed for criticism among human rights advocates, was scrapped due to
allegations that it had become too political, and was therefore discredited as a human rights enforcement body.
Much of the debate about the old Commission revolved around the question of its composition. Commentators
alleged that the UN was conferring legitimacy on human rights-abusing States by permitting them to be members
of the Commission on Human Rights. Indeed, the Commission did include a number of members (such as Sudan)
that were themselves considered to be major human rights violators. Using their influence as Commission members,
these countries were able to weaken or side-track resolutions on the situations taking place within their borders, and
prevent censure of their political allies. As the popular adage had it, the foxes seemed to be guarding the henhouse.25
Second, many have argued that the Commission had become politicized in its process of selecting which
situations and States should be singled out for review. The Commission had long been criticized for its failure to
condemn countries with track records of human rights abuses. As Jeane J. Kirkpatrick, head of the US delegation,
complained in 2003, the Commission had never agreed to any Statement “condemning repression in Chechnya, or
slavery and repression in Sudan, or murder and violation of rights in Zimbabwe, or the continued victimization of the
Falun Gong in China”.26 From another angle, some States alleged that the Commission was being used only against
the developing world, providing, as Cuba put it, an “inquisition tribunal for the rich” against the global South.27
Particularly in the 1990s and early 2000s, these accusations that the Commission had become partial and selective
led to a serious credibility problem.
Many hoped that the transformation from Commission to Council would help solve these problems and give
the body a new lease on life. But during the creation of the new body it proved difficult to reconcile the “almost
completely contradictory diagnoses put forward by different groups of States, and the radically different expectations
that they hold for the outcome of the reform process,” and in the end “the General Assembly resolution proclaiming
the new order resolved only the most basic structural issues as to the Council’s composition and election procedure,
25) For more on the composition debate, see Philip Alston, “Reconceiving the Human Rights Regime: Challenges Confronting the New UN Human Rights
Council”, Melbourne Journal of International Law, vol. 7 (2006).
26) Jeane J. Kirkpatrick, “UN Human Rights Panel Needs Some Entry Standards”, International Herald Tribune, 14 May 2003.
27) UN Doc. HR/CN/1107, 14 March 2005.
97
and only laid down rather broad guidelines governing the procedures and institutional arrangements which the
Council should adopt in order to carry out the wide ranging tasks assigned to it”.28
The new Human Rights Council is made up of 47 member governments that are “responsible for promoting
universal respect for the protection of all human rights and fundamental freedoms for all, without distinction of any
kind and in a fair and equal manner”.29 The primary purpose of the HRC is to address situations of widespread and
systemic human rights violations and make recommendations on them. In order to fulfil this function, the Council
has a number of tools at its disposal:
• Universal Periodic Review: the Human Rights Council is empowered to conduct a universal periodic
review (UPR) of the human rights records of all 192 UN Member States once every four years. The universal
periodic review is, in part, intended to avoid the problem of selectivity that led to charges of political bias
against the old Human Rights Commission. The fact that every State is to be reviewed with respect to the
full range of human rights is supposed to ensure objectivity. The Council has completed conducting its first
such review in October 2011. Already there have been complaints that the reviews are “too genteel and
diplomatic”, but it remains too early to tell whether the process will ultimately be effective in promoting
compliance.30
• Advisory Body: the Human Rights Council is supported in its work by the Human Rights Council Advisory
Body, an expert commission that functions as a think tank for the Council. The Advisory Body, which met
for the first time in August 2008, is composed of 18 experts whose aim is to provide studies and research-
based advice on the Council’s request. This Body replaces the Sub-Committee on Promotion and Protection
of Human Rights (known from 1947 to 1999 as the Sub-Committee on Prevention of Discrimination and
Protection of Minorities31), which functioned as an expert advisory body to the old Commission on Human
Rights.
• Special Procedures: special procedures is a general term for all of the mechanisms established by
the Human Rights Council to examine, monitor, advise, and publicly report on either country-specific or
thematic issues in human rights protection. As of 2008, there were 38 special procedures in place: 30
thematic mandates (for example, on adequate housing, education, and foreign debt), and eight country
mandates (for example, on Cambodia, Haiti, and Sudan).32 Special procedures can come in the form of
either an individual, known as a Special Rapporteur, or a working group. Special procedures may also
be known as Independent Experts, Representatives, or Special Representatives. Special procedures are
limited in their mandate by the terms of the Human Rights Council resolution that created them, are
unpaid, and are supported by the OHCHR in terms of personnel, logistics, and research assistance. In
addition to investigating and reporting on situations, special procedures may carry out country visits (with
the consent of the State), send appeals for urgent action asking governments to take immediate action
to prevent or mitigate a violation, or send allegation letters requesting governments to clarify an alleged
human rights abuse.33 Sometimes, urgent appeals may be sent in response to individual communications.
28) Philip Alston, “Reconceiving the Human Rights Regime: Challenges Confronting the New UN Human Rights Council”, 2 and 37.
29) A/Res/60/251, General Assembly Resolution Establishing the Human Rights Council, 3 April 2006.
30) Andrew Clapham, 19.
31) See: Lesson 10 for more information on the work of the Sub-Committee on the Promotion and Protection of Minorities.
32) A complete list of current country mandates is available on the Human Rights Council’s website at <http://www2.ohchr.org/english/bodies/chr/
special/countries.htm> and a complete list of current thematic mandates is available at <http://www2.ohchr.org/english/bodies/chr/special/themes.
htm>.
33) Governments respond to these urgent appeals and letters of allegation about a third of the time. OHCHR 2007 Report: Activities and Results (2008),
27 (documenting a 32 per cent response rate).
98
Challenges Facing the Special Procedures »

“The Special Procedures are at the core of the UN human rights machinery. As independent
and objective experts who are able to monitor and rapidly respond to situations and
allegations of violations against individuals or groups occurring anywhere in the world, they
play a critical and often unique role in promoting and protecting human rights. This poses a
dilemma when it comes to reviewing their effectiveness and identifying ways to strengthen
them. The Special Procedures have evolved haphazardly and without any overall institutional
framework. Over a period of nearly forty years, they have been undermined by chronic under-
funding, a lack of co-operation from States, marginalization by the Commission in its political
decision-making processes, and the variable quality of work of the mandate-holders. At the
same time, there is the suspicion that some governments would like to use efforts to enhance
the Special Procedures in order to emasculate them by imposing unnecessary restrictions on
their working methods. As the Special Procedures were never conceived as a ‘system’, there
are recurring difficulties associated with co-ordination, consistency and overlap … ”
–Amnesty International
from United Nations Special Procedures: Building on a Cornerstone of Human Rights
Protection (2005)
The special procedures have been generally successful in generating human rights information, analysis,
and recommendations, although the effectiveness of a given special procedure depends to a large extent on
the quality, dedication, and independence of the mandate holder or holders.
• Complaints Procedure: the Human Rights Council has the ability to receive complaints from individuals or
groups of individuals who believe that they have suffered a human rights violation. The complaints mechanism
is known as the 1503 procedure, after ECOSOC resolution 1503, which authorized the Commission on
Human Rights to examine communications on “situations which appear to reveal a consistent pattern of
gross and reliably attested violations of human rights requiring consideration by the Commission”.34 The
1503 procedure came about largely as the result of a push by Third World countries for a means to pursue
the struggle against racist and colonialist practices.35 The procedure takes place in confidence, with the only
public record being a Statement of the names of those countries that are currently under consideration and
those cases that have been discontinued. Under the Commission on Human Rights, the 1503 procedure
was the subject of a great deal of criticism, with reports of its ineffectual proceedings and failure to act in
cases of grave abuses causing anger among rights groups. The Human Rights Council is in the process of
reforming the procedure, and it remains to be seen how complaints will proceed in the new body.
• Other mechanisms: In addition to these mechanisms, the Human Rights Council also receives advice from
a Social Forum made up of UN and civil society groups that meet once a year to discuss a set thematic topic;
a Forum on Minority Issues that provides advice and research on minority issues; an Expert Mechanism
on the Rights of Indigenous Peoples that provides thematic expertise on indigenous issues; and a number
of working groups and committees dedicated to implementing the “Durban Declaration and Programme of
Action”, which seeks to eradicate racism, racial discrimination, xenophobia, and intolerance.
34) Economic and Social Council resolution 1503 (XLVIII), 1970.

99
Despite its controversial status, the Human Rights Council remains one of the most important UN Charter-based
organs for human rights.36 And though some States have already begun to complain that the credibility problems of
the Commission have carried over to the new body, the Council remains relatively new, and the ultimate effects of
the reform process remain to be seen.
Together, the six principal organs of the UN and their subsidiary human rights bodies form one of the two sets of
bodies responsible for overseeing the enforcement of human rights at the UN level. We will now turn to the second
set of UN mechanisms: the treaty-based organs.
Writing Exercise 4: Improving the Human Rights Council »

“If you have access to the Internet, this would be an especially good exercise to write about
online in conversation with other learners taking this Peace Operations Training Institute
course. Consider writing your thoughts on the Student Forum by logging into your classroom
and clicking on “Student Forum” link on the left-hand menu.
Because of your expertise in human rights, you have been contacted by the United Nations
to help with the continued reform of the Human Rights Council. A UN representative tells you
that it will be difficult to make drastic changes to the organization so soon after the last major
reform in 2006 but believes there is enough political will to make at least a few small changes
to the HRC’s mandate.
• What seem to be the biggest problems facing the Human Rights Council?
• What types of changes would you suggest?
• Does it seem likely that governments would accept your proposed changes? Why, or
why not?
Section 4.3 Treaty Bodies
The treaty bodies are the other important set of UN institutions for the promotion and protection of human
rights. Treaty bodies are international committees of independent experts created in accordance with the provisions
of international human rights treaties. They function as control mechanisms that can review and assess the progress
made and difficulties encountered during treaty implementation.37
There are nine human rights treaty bodies in the UN system. We already encountered two of these: the Human
Rights Committee and the Committee on Economic, Social and Cultural Rights. There are seven additional treaty
bodies attached to each of the other major international human rights treaties:
• Committee on the Elimination of Discrimination Against Women, which oversees the implementation
of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW);
36) For additional information on the functions of the Human Rights Council and related bodies, see the Human Rights Council website: <http://www.
ohchr.org/>
37) For a comparative assessment of the work of the various UN treaty bodies, see: Anne F. Bayefsky, The UN Human Rights Treaty System: Universality
at the Crossroads, 2001.
100
overseen by
Treaty Treaty Body
• Committee on the Elimination of Racial Discrimination, which oversees the implementation of the
International Convention on the Elimination of All Forms of Racial Discrimination (CERD);
• Committee Against Torture, which oversees the implementation of the Convention Against Torture (CAT)
(additionally, the Optional Protocol to the Convention against Torture [OPCAT] has a Subcommittee on
Prevention of Torture);
• Committee on the Rights of the Child, which oversees the implementation of the Convention on the
Rights of the Child (CRC);
• Committee on Migrant Workers, which oversees the implementation of the International Convention on the
Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW);
• Committee on the Rights of Persons with Disabilities, which oversees the implementation of the
Convention on the Rights of Persons with Disabilities (CRPD); and
• Committee on Enforced Disappearances, which oversees the International Convention for the Protection
of All Persons from Enforced Disappearance.
The treaty bodies perform a number of different functions, as permitted by the treaty under which they were
created. These functions include:
• Issuing general comments: treaty bodies are empowered to issue general comments that clarify and
interpret the content of human rights provisions. We saw how these general comments are used to elaborate
the content of rights in Lessons 2 and 3.
• Considering State parties’ reports: when a State becomes a party to a legally binding treaty, it takes on
the responsibility to respect, protect, and fulfil the rights therein. In order to monitor whether States are
fulfilling this obligation, the core human rights treaties all require States to submit periodic reports on the
State of human rights in their territory. These reports are given to the treaty bodies, which read them and
comment on the States’ compliance with the treaty. In addition to the State party’s report, the treaty body
may also consider information on the country’s human rights situation received from other sources, such
as non-governmental organizations (NGOs), UN agencies, other intergovernmental organizations, academic
institutions, or the media. After examining all of the available information, the treaty body discusses the
report with representatives from the State concerned. Based on this dialogue, it publishes a set of concluding
observations, a list of concerns and recommendations. These concluding observations are public, and can
generally be found on each treaty body’s website. Recently, the human rights treaty bodies have also begun
to introduce follow-up procedures that ask countries to report back to the Commission within an agreed-
upon time frame on the measures taken in response to specific recommendations.
101
• Conducting inquiries: Several of the treaty bodies (including the CEDAW Committee, the CAT Committee,
the CPRD Committee, and the Committee on Enforced Disappearances) can make inquiries into suspected
cases of grave human rights abuses. Under the terms of their respective treaties, these bodies may
conduct inquiries if they have received reliable information containing well-founded indications of serious or
systematic violations of the conventions. After conducting an inquiry, the treaty body’s findings, comments,
and recommendations are transmitted to the State for action and/or response. The findings of the inquiry
procedure are confidential. The power to make inquiries can only be exercised within the territories of
those States that have recognized the competence of the treaty bodies to do so. State parties may also opt
out of this provision, removing the treaty bodies’ power to conduct inquiries in that State. In addition, the
Subcommittee on the Prevention of Torture also has the special power to conduct visits to locations where
persons are deprived of their liberty (such as prisons and detention centres) in order to ensure that no
torture is being committed.
Monitoring and Reporting »

Human rights monitoring and reporting is the practice of assessing and documenting the extent of human
rights violations in a given country or situation.
The process of monitoring and reporting involves fact-finding in order to identify and clarify specific
human rights violations, series of violations, or patterns of abuse. Fact-finding requires meticulous
attention to and verification of details. In order to be credible, it must be done in a politically and
procedurally independent and impartial manner, and in accordance with accepted standards.
Even when carefully done, fact-finding can prove difficult. As explained in the US Department of State’s
Country Reports on Human Rights Practices — 2005 (2006):
“Evaluating the credibility of reports of human rights abuses is often difficult. With the exception
of some terrorist organizations, most opposition groups and certainly most governments deny that
they commit human rights abuses and sometimes go to great lengths to conceal any evidence of
such acts. There are often few eyewitnesses to specific abuses, and they frequently are intimidated
or otherwise prevented from reporting what they know. On the other hand, individuals and groups
opposed to a government sometimes have powerful incentives to exaggerate or fabricate abuses, and
some governments similarly distort or exaggerate abuses attributed to opposition groups.”
Human rights monitoring and reporting can be carried out by UN organs, international organizations,
individual States, NGOs, or other concerned persons or groups. Although human rights monitoring and
reporting is a standard practice today, it is important to remember that not long ago, the rules of State
sovereignty would have prevented international institutions from second-guessing a State’s assertion of
facts.
102
• Receiving individual communications: Most of the
human rights treaty bodies (The Human Rights Committee,
Committee on Economic, Social and Cultural Rights,38
CERD Committee, CAT Committee, CEDAW Committee,
CMW Committee, CRPD Committee, and the Committee
on Enforced Disappearances) can receive and consider
individual complaints, known as communications, by or
on behalf of individuals who claim that their rights have
been violated. These treaty bodies perform a quasi-judicial
function (“quasi-judicial” because the treaty bodies are not
traditional courts, and their judgments are non-binding,
though they do have significant political force and States
frequently comply). The complaints procedure allows treaty
bodies to give additional content to rights, specifying how
they apply in certain circumstances, as well as give some

Ishmael Beah, former child soldier
relief to individuals who have been the victims of human and UNICEF Goodwill Ambassador,
rights violations. Most treaty bodies are empowered to adopt speaks at UNICEF’s 20th Anniversary
Commemoration of the Convention on the
interim measures in urgent cases to stabilize a situation
Rights of the Child. 20 November 2009. UN
while they come to a final decision. Photo #420890 by Eskinder Debebe.
• Receiving State-to-State complaints: Several of the treaties (including the ICCPR, CERD, CAT, CEDAW,
and the CMW) also make provision for States to lodge human rights complaints against other States. As of
2011, however, this procedure had never been used.
Treaty Body Powers

Considering Receiving Receiving
Committee Issuing general state parties’ Conducting individual state-to-state
comments reports inquiries complaints complaints
ICCPR X X X X
ICESCR X X X X
CEDAW X X X X X
CERD X X X X
CRC X X
CAT X X X X X
CMW X X X X
CRPD X X X X
38) An Optional Protocol to the ICESCR that will allow for individual communications to the Committee on Economic, Social and Cultural rights was
adopted in December 2008, but has not yet entered into force. As noted in Lesson 3, the Optional Protocol has been opened for signature beginning
in September 2009.
103
Conclusion
In this lesson, we took our first look at how the legally binding human rights contained in the ICCPR and ICESCR,
as well as the other core international human rights treaties, are enforced. We examined the two sets of mechanisms
established for this purpose by the UN: the Charter-based bodies and the treaty-based bodies, and we explored the
different types of enforcement strategies available under these organs. In Lesson 5 we will examine a few other sets
of human rights enforcement mechanisms: the regional bodies set up in Europe, the Americas, and Africa, as well
as the nascent human rights systems that are emerging in other parts of the world, and the role played by other
international organizations and NGOs.
Further reading
• Philip Alston, “Promoting the Accountability of Members of the New UN Human Rights Council”, Journal of
Transnational Law and Policy, vol. 15, 2005.
• Philip Alston, “Reconceiving the Human Rights Regime: Challenges Confronting the New UN Human Rights
Council”, Melbourne Journal of International Law, vol. 7, 2006
• Amnesty International, United Nations Special Procedures: Building on a Cornerstone of Human Rights
Protection, 2005.
• Andrew Clapham, “United Nations Charter-Based Protection of Human Rights”, in International Protection of
Human Rights, 2009.
• International Commission on Intervention and State Sovereignty, Responsibility to Protect, 2001.
• Manual of Operations of the Special Procedures of the Human Rights Council, 2008.
• OHCHR website: <www.ohchr.org/>.
• Global Policy Forum page on Security Council Reform: <www.globalpolicy.org/security-council/security-
council-reform.html>.
104
1. Who has the primary responsibility for 4. The “Responsibility to Protect” is _____.
enforcing human rights?
A. the idea that individuals must intervene
A. Individuals to stop other individuals from committing
B. States human rights abuses in everyday life
C. The International Community B. the idea that the Security Council must
D. The Security Council enter into a conflict to protect States against
invasion
2. _____ bodies are UN bodies that were
C. the idea that the most powerful States must
either directly mandated by the UN
create an international fund to assist the
Charter or authorized by a body that was
directly created by the Charter. victims of natural disasters
D. the idea that where a State is unwilling or
3. _____ bodies are organs that were unable to prevent serious and systematic
created by human rights treaties harm to its population, the international
originating in UN processes. community can intervene to protect
individuals from gross harm
For questions 5–10, match the following organs with their descriptions:
5. The General Assembly A. Originally responsible for

overseeing the administration of
the decolonization process; now
suspended.
B. Responsible for maintaining

6. The Secretariat
international peace and security.
7. The Security Council C. Principal deliberative organ of the UN.
8. The Economic and Social Council D. Chief administrative body of the UN.
E. Responsible for settling legal disputes

9. The Trusteeship Council between States and advising the UN
on legal matters.
F. Studies, coordinates and makes

10. The ICJ recommendations on economic and
social issues at the UN.
105
Answer Key »
1. B
2. Charter or Charter-based
3. Treaty or Treaty-based
4. D
5. C
6. D
7. B
8. F
9. A
10. E
106
HUMAN RIGHTS
LESSON
Enforcement Mechanisms II:
5 Regional and Other Actors
This lesson will begin by

taking an in-depth look at
the three major regional
systems: the European
system, the Inter-American
system, and the African
system.
UN Photo #99575 by Evan Schneider.
Section 5.1 Introduction • Understand the relationship between the regional and
global human rights systems.

Section 5.2 The European System
• Identify the major components of the European system.
Section 5.3 The Inter-American System
• Identify the major components of the Inter-American
Section 5.4 The African System
system.
Section 5.5 Other Regional Efforts

• Identify the major components of the African system.
Section 5.6 Other Actors

• Appreciate the similarities and differences among the
three major regional systems.
• Identify other regional mechanisms.
• Describe the role played by other international
organizations in the promotion and protection of
human rights.
• Explain the importance of NGOs in the protection of
human rights.
107
LESSON 5 | Enforcement Mechanisms II: Regional and Other Actors
Secretary-General Ban Ki-moon (second from left, front row) participates in the launch of the health agenda for the Americas by the
Organization of American States (OAS) in Panama City, Panama. 3 June 2007. UN Photo #147272 by Evan Schneider.

In Lesson 4, we discussed the UN Charter-based and treaty-
based systems for human rights enforcement. In this lesson,
we take a look at two additional types of actors that play an
important role in the international human rights enforcement
system: regional bodies and non-governmental organizations

(NGOs) and other international organizations.
This lesson will begin by taking an in-depth look at at <https://www.peaceopstraining.
org/videos/174/lesson-5-enforcement-
the three major regional systems: the European system,
mechanisms-ii-regional-other-actors/>.
the Inter-American system, and the African system. When
reading about these regional groupings, you will notice
many similarities with the UN mechanisms that we studied
in Lesson 4. At the same time, however, each of the major
regional human rights enforcement systems also has its own
unique set of structures and norms.
108
Next, we will take a brief look at some less developed regional systems, including the largely dormant Arab
regional system, the proposed Asian system, and a few other efforts. Finally, we will turn to a discussion of
intergovernmental organizations and NGOs and how their efforts contribute to the enforcement of international
human rights law.
The mechanisms discussed in this lesson are extremely important parts of the international human rights
enforcement system. Regional and other organizations work alongside the UN system in the promotion and protection
of human rights. They fill gaps in global enforcement and create their own contextualized systems of human rights
norms. However, there have also been conflicts and rivalries among the various systems of rights protection.
Universalism vs. regionalism
One of the most interesting and long-running of these conflicts is the debate over whether global (UN-sponsored)
or regional systems are superior for the protection of human rights.
This conflict dates back to the very beginning of the international human rights system. The first regional
systems were developed partially as a result of the long delay between the adoption of the UDHR in 1948 and the
creation of enforceable treaties that would make civil, political, economic, social, and cultural rights legally binding.
Not willing to wait, Europe and the Americas developed their own treaties and human rights enforcement bodies
in the 1940s, 50s, and 60s. In the beginning, the UN was suspicious of these regional bodies, regarding them as
potentially fractious and damaging to the idea of the universality of rights.1 Over time (and following the passage of
the ICCPR and ICESCR in 1966), this attitude faded, and from the 1970s on, the UN began to actively encourage the
formation of regional bodies.
Even following the rapprochement of the UN and the European and Inter-American systems, however, the
exact relationship between international and regional mechanisms remains unclear. Should the UN instruments be
seen as “higher” on the ladder of rights protection than the regional instruments, or are the regional bodies and
their standards more appropriate and responsive in local cases? Do the regional bodies and tailored regional human
rights norms detract from the universality of rights, or do they instead allow human rights to be adapted to specific
geographical, cultural, and historical contexts? If standards differ between global and regional instruments, which
should prevail? Are regional and universal bodies complementary or in conflict with one another?
Another important question is where the lines between systems should be drawn. The current regional divisions —
Europe, the Americas, Africa, Asia, and the Arab States — may be inappropriate, shifting, or work for certain subjects
but not others. The lack of easy and consistent boundary-lines may make universalism seem more appealing. As Dr.
Inis L. Claude Jr., a scholar of international politics, writes:
“The world does not in fact break easily along neatly perforated
lines. Rational regional divisions are difficult to establish,
boundaries determined for one purpose are not necessarily
appropriate for other purposes, and the most carefully chosen
dividing lines have a perverse way of changing or coming
to require change, and of overlapping. It is true that brave
universalist experiments tend to give way to sober regionalist
afterthoughts, but it is equally true that carefully cut regional
109
patterns tend to lose their shape through persistent stretching

in the direction of universalism. In a sense, the adoption of
the universal approach is the line of least resistance, since it
obviates the difficulties of defining regions and keeping them
defined.”2
On the other hand, regional agreements have in some cases proven easier to implement than universal ones.
Because of the need for broad international consensus, UN treaties are often forced to define human rights narrowly.
Countries have different values, and consensus among States with widely divergent religious, cultural, and economic
backgrounds has sometimes been difficult to attain. By contrast, the Member States of regional human rights systems
may be more similarly situated in terms of economic, social, cultural, or political history, so they are sometimes able
to include broader and stricter protections for human rights. For example, the European system has been able to
implement a strong human rights court with successful compliance mechanisms, whereas the UN system has no
“world court” for human rights, but rather only a network of quasi-judicial bodies and courts with some human rights
competence.
It is clear that regional and global approaches each have their advantages and disadvantages, their similarities
and differences. As you read through this lesson, try to compare and contrast the regional systems with each other
and with the global systems we discussed in Lesson 4. How do the regional and UN systems differ? How are they the
same? Are they complementary? Do they conflict with one another? Which mechanisms are best for enforcing human
rights? Are there certain problems which lend themselves to regional action, and others to global action?
Section 5.2 The European System

The European System is the most extensive of the three major regional systems, and its enforcement
mechanisms are even older than their UN counterparts. After the devastation of the Second World War, the European
continent struggled to rebuild, and sought ways to prevent such conflicts from happening again. At the same time,
the European States were becoming increasingly concerned with the threat of Soviet expansion, and were looking for
a way to shore up their defences against the Eastern bloc. Promoting the economic, social, and political integration of
the European States was the key strategy chosen for accomplishing these goals. To this end, the European countries
formed several institutions:
• The Council of Europe (1949): responsible for promoting the rule of law, human rights, and democracy;
• The European Coal and Steel Community (which would eventually evolve into the European Union
[EU]) (1952): responsible for economic integration; and
• The Conference on Security and Cooperation in Europe (which would eventually become the
Organization for Security and Cooperation in Europe [OSCE]) (1975): responsible for maintaining
peace and military security in Europe.
Each of these institutions is made up of a different set of States and has a different set of competences. None
of the three is concerned exclusively with human rights, but all play a role in the promotion and protection of human
rights and fundamental freedoms in Europe.
2) Inis L. Claude Jr., Swords into Plowshares (Fourth Edition) (New York: Random House, 1984), 102.
110
European Union
(EU)
Organization for
Membership: Security and
Council of Europe
Most of Western and Cooperation in
Eastern Europe Europe (OSCE)
Membership: Membership:
Western and Eastern Western and Eastern
Europe, much of the Europe, the former
former USSR (including USSR, Turkey, the
Russia), Turkey United States, and
Canada
Council of Europe
The Council of Europe was formed in 1949 by a group of 10 States. Its purpose was the promotion of democracy,
the rule of law, and greater unity in Western Europe. Today, the purpose of the Council has changed. Its membership
expanded greatly after the fall of the Soviet Union, and the Council now counts 47 Member States, including nearly
all of Western and Eastern Europe, much of the former Soviet Union (including Russia), and Turkey.3 In keeping with
its new formation, the Council of Europe developed a new set of principal aims, among which is the protection and
promotion of human rights in Europe.
The primary human rights document of the Council of Europe, and the European system in general, is the
European Convention for the Protection of Human Rights and Fundamental Freedoms (more commonly known as
the European Convention on Human Rights [ECHR]).4 The ECHR was adopted in 1950. It is particularly significant to
human rights law because it was the first comprehensive, legally binding human rights document to enter into force.5
It established the first international court and complaints procedure for hearing human rights disputes. Since that time,
the European system has generated an extensive jurisprudence, and remains the most highly developed of the regional
human rights systems.
The ECHR focuses primarily on civil and political rights, and is modelled on the civil and political rights provisions of
the UDHR. The text of the ECHR is similar to that of the ICCPR, with a few notable differences: (1) the ECHR contains no
provisions relating to self-determination or minorities; (2) the ECHR requires limitations on rights to be “necessary in a
democratic society”; and (3) the ECHR contains a different set of non-derogable rights.6
Although economic, social, and cultural rights were included in the post-war constitutions of Western European
3) A complete list of current members of the Council of Europe can be found on the Council of Europe’s website: <http://www.coe.int/>.
4) See: Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 UNT.S. 222 (1953) (as amended by protocols
Nos. 3, 5, 8, and 11 which entered into force on 21 September 1970, 20 December 1971, 1 January 1990, and 1 November 1998, respectively).
5) The “American Declaration on the Rights and Duties of Man” was the earliest comprehensive human rights agreement, but was, like the UDHR, a
declaration without legal enforcement mechanisms.
6) Full text of the European Convention on Human Rights available on the Council of Europe website: <http://www.coe.int/>.
111
States like France, Germany, and Italy, they were not included in the ECHR. This was because the drafters felt that it
was first necessary “to guarantee political democracy in the European Union and then to co-ordinate our economies,
before undertaking the generalisation of social democracy”.7 Instead, States agreed to deal with economic, social, and
cultural rights and other outstanding issues through optional protocols and separate agreements containing additional
provisions.
They have not been shy in doing so: since 1952, a further 14 optional protocols to the ECHR have been adopted.
The majority of these deal with procedural matters. A few, however, grant additional protections for human rights. These
include:
• Protocol 1 (1952): protecting the right to property; the right to education; and the obligation to hold free
elections;
• Protocol 4 (1963): ensuring freedom from imprisonment for civil debts; freedom of movement and
residence; freedom to leave any country; freedom from exile; the right to enter the country of which one is
a national; and the prohibition of collective expulsion of aliens;
• Protocol 6 (1983): mandating the abolition of the death penalty;
• Protocol 7 (1984): affirming the right of an alien not to be expelled without due process; the right to
appeal; the right to compensation for a miscarriage of justice; immunity from double prosecution for the
same offence; and quality of rights and responsibility of spouses; and
• Protocol 12 (2000): elaborating on the prohibition of discrimination.
The ECHR assigns the primary responsibility for enforcing Member States’ obligations to the European Court of
Human Rights (ECtHR), established in 1959. The Court can give advisory opinions (an assessment of the legality of a
law or action given in response to a request rather than as part of a contentious case) and hear individual complaints
(brought by an individual against the State)8 as well as inter-State complaints (by one State against another),
although the latter type of proceeding has rarely been used. The European Court is sometimes called the “jewel in
the crown” of the European human rights system, because its decisions are binding on all 47 current parties to the
ECHR.
One notable aspect of the European Court’s jurisprudence is its tendency to look to the actual practice of the
European States in defining the limits of the human rights guarantees in the ECHR. With respect to issues such as
public morality, values may differ greatly from one State to another. In recognition of this, the European Court has
developed what is known as the margin of appreciation, a doctrine that permits States a measure of discretion in
interpreting and implementing some human rights norms.
The European Court of Human Rights is considered to be among the most effective international human rights
enforcement bodies. Its decisions have a fairly high rate of compliance among Member States, with the Committee
of Ministers of the Council of Europe supervising the execution of its judgments. While the Committee of Ministers
cannot impose sanctions for non-compliance, political pressure has thus far been a fairly successful means of
ensuring that States comply with the Court’s judgments.9
Perhaps the biggest challenge facing the European Court of Human Rights is the explosion in the number of
cases that are brought before it each year. In the early years of the Court, the number of complaints was relatively
7) Pierre-Henri Teitgen, one of the key drafters of the European Convention, quoted in Henry J. Steiner, Philip Alston, and Ryan Goodman, 1018.
8) The right of victims to bring cases to the court was originally optional for States, but following the adoption of Protocol 11 the right of individual
petition is compulsory. See Protocol No. 11, 1998.
9) See: Laurence R. Helfer and Anne-Marie Slaughter, “Toward a Theory of Effective Supranational Adjudication”, Yale Law Journal, vol. 107, no. 2, 1997.
112
small. Beginning in the 1980s, however, the Court’s caseload began to outstrip its capacity. With the addition of
two dozen new State parties to the ECHR since 1990, the number of cases has skyrocketed. From 1981, when 404
applications were filed annually, to 1997, when 4,750 were filed in one year, the complaints continued to mount.10 As
of January 2010, the Court reported a backlog of almost 120,000 complaints.11 With the ever-increasing backlog, the
time between filing and decision has grown, and the need for reform has become manifest. Recognizing this problem,
the Member States adopted a new Protocol 14, which entered into force on 1 June 2010. Protocol 14 streamlines the
procedures for handling cases (in particular allowing for judges to deal quickly with the simplest cases, and imposing
a new admissibility requirement of “significant disadvantage”), leading to a more efficient and effective European
Court.
The second human rights treaty adopted by the Council of Europe is the European Social Charter (adopted in 1961,
revised in 1996), which protects economic, social, and cultural rights in Europe. The European Social Charter is administered
by the European Committee of Social Rights, which functions like many of the UN treaty bodies discussed in Lesson 4. It is
charged with carrying out advisory and monitoring functions, reviewing State reports and issuing conclusions, and deciding
on collective complaints from organizations (but not individuals).
Despite the existence of the European Social Charter and the European Committee of Social Rights, the protection
of economic, social, and cultural rights in Europe is much weaker than that afforded to civil and political rights. For
example, while applicants for membership in the Council of Europe are required to ratify the ECHR, they are not required
to give similar assurances with respect to the European Social Charter.12 In Europe, as in the international system,
the sequestering of economic, social, and cultural rights in a separate treaty has led to a situation of asymmetrical
enforcement.
A number of other treaties provide additional protection for human rights in Europe. Of particular significance
among these is the European Convention for the Prevention of Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, which was agreed upon in 1987.13 The Convention established a Committee for the
Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), which is empowered to conduct
visits to all “places of detention” in the Member States of the Council and Europe. CPT visits may take place at any
time, and governments are required to give the CPT unlimited access to any place where persons are deprived
of their liberty. The CPT uses these visits to inspect and report on conditions of confinement and treatment of
detainees with the aim of preventing torture and other forms of cruel, inhuman, or degrading treatment. CPT reports
are confidential and rely on the cooperation of national governments to protect persons deprived of their liberty.
However, if a country fails to cooperate with the CPT, the Committee may decide to make a public Statement on the
matter.
In addition, in 1999 the Council of Europe established a Commissioner for Human Rights. The Commissioner
promotes the observance of human rights, assists Member States in the implementation of Council of Europe standards,
promotes human rights education, identifies potential shortcomings in human rights law and practice, assists national
human rights bodies, and provides advice and information concerning human rights to all countries in the region.
The Commissioner also conducts country visits and engages in dialogue with Member States, makes thematic
recommendations on various human rights issues, and organizes assistance for national human rights structures.
10) European Court of Human Rights, “The European Court of Human Rights: Some Facts and Figures: 1998-2008”, 2008.
11) Joop Meijnen, “European court could succumb to deluge of cases”, NRC Handelsblad (Rotterdam), 24 February 2010.
13) The full text of the Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment is available on the Council of Europe
website: <http://www.cpt.coe.int/en/documents/ecpt.htm>.
113
Organization for Security and Cooperation in Europe
The Organization for Security and Cooperation in Europe (OSCE) also plays a role in the protection and promotion
of human rights. The Conference on Security and Cooperation in Europe (CSCE), predecessor to the OSCE, opened
in 1973. Convened for the purpose of promoting improved security and cooperative East–West relations, the CSCE
brought together 35 States including all of the European countries except Albania, Canada, the United States, and
the Soviet Union. Following the end of the Cold War, in 1994 the CSCE evolved into the OSCE, an organization with a
mission to further democracy, protect human and minority rights, and encourage military reform. Its 56 participating
States span “from Vancouver to Vladivostok,” incorporating Canada, the United States, Eastern and Western Europe,
Russia and the former Soviet Republics, and Turkey.14 It deals with “three dimensions of security” — the politico-
military dimension, the economic and environmental dimension, and the human dimension.15
Under the rubric of the “human dimension” the OSCE engages in a number of human rights activities,
including monitoring the human rights situation in Member States, providing human rights training and education,
and contributing to the development of human rights content by issuing non-binding standards. Its activities in
recent years have focused on issues of human trafficking, democratization, education, elections, gender equality,
media freedom, minority rights, the rule of law, and non-discrimination.16 It has developed several mechanisms for
promoting and protecting human rights, including the creation of an Office for Democratic Institutions and Human
Rights, a Representative on Freedom of the Media, and an Office of the Special Representative and Coordinator for
Combating Trafficking in Human Beings, and it has deployed field missions to perform a range of activities, including
monitoring borders, observing elections, and supporting schools.17
One of the most prominent human rights mechanisms developed by the OSCE is its High Commissioner on
National Minorities. The OSCE is unique in its concentrated focus on the status of national minorities. It recognized
early on that many of Europe’s modern conflicts have arisen out of situations of ethnic tension, and the High
Commissioner’s mandate is to seek early resolution of any such tensions that might endanger peace, stability,
or friendly relations among the OSCE participating States.18 The High Commissioner cannot receive individual or
State communications, and performs a diplomatic, rather than a quasi-judicial, function. To this end, the High
Commissioner for National Minorities has been particularly influential in developing the “quiet diplomacy” method, in
which the OSCE acts as a neutral broker between opposing political actors.19
14) For a list of current members of the Organization for Security and Cooperation in Europe, see the OSCE participating States page at <http://www.
osce.org/who/83>.
15) OSCE, “The three OSCE dimensions”. Available from: <http://www.osce.org/item/44318>.
16) OSCE, “What we do”. Available from: <http://www.osce.org/what>.
17) David J. Galbreath, The Organization for Security and Cooperation in Europe (London: Routledge, 2007), 2.
18) For more information, see the website of the High Commissioner for National Minorities at: <http://www.osce.org/hcnm>.
19) David J. Galbreath, 4.
114
European Union
The third of the three major institutions in the European system is the European Union (EU). The origins of
the EU lie in the Treaty of Paris of 1952, which established the European Coal and Steel Community, a six-nation
agreement that sought to integrate the economies of France and West Germany. Despite its economic face, the aim
of this integration was also political: Robert Schuman, one of the architects of the system, declared that its goal
was to “make war not only unthinkable but materially impossible”.20 From this beginning, the project of European
economic integration continued to steadily expand, and now covers a broad range of competences and stretches to
27 nations in Western and Eastern Europe.21
The adoption of a European bill of human rights was proposed in the early 1950s, but it was not until 2000 that
any subsequent treaties included any such bill or list of rights.22 Nevertheless, during the first 50 years of the EU,
the European Court of Justice (the EU’s judicial body) developed some jurisprudence on human rights, particularly in
the context of violations by the EU governing bodies. The EU promotes human rights outside the region by engaging
in dialogue and providing technical and financial assistance to third States. Various monitoring and advising experts
assist the EU bodies on human rights topics.23 All members of the EU are also parties to the ECHR.
A Charter of Fundamental Rights of the European Union that enshrines all of the rights contained in the ECHR
and the Social Charter into the governing documents of the EU was adopted by the EU governing bodies in 2000, and
entered into force in December 2009. The Charter makes a broad set of civil, political, economic, and social rights —
including some novel rights like “the prohibition of the reproductive cloning of human beings”24 — a legally binding
feature of the European Union. Because the Charter is a new human rights treaty, it remains to be seen how exactly
it will function in practice.
Section 5.3 The Inter-American System

The Inter-American system of human rights protection is the second long-standing regional system for the
monitoring and enforcement of human rights. The architecture of the Inter-American system — in both its institutional
structure and its substantive provisions — is quite similar to that of the European and international systems. It is
primarily based around two treaties — the “American Declaration on the Rights and Duties of Man” and the American
Convention on Human Rights25 — administered by the Organization of American States (OAS), the Inter-American
Commission on Human Rights, and the Inter-American Court of Human Rights (IACtHR).
The Inter-American system arose out of a particular historical and political context that differs greatly from
other human rights regimes. Unlike the European system, which has overseen a group of predominantly democratic
countries with independent judiciaries, and has grappled with issues such as freedom of expression and the right to
privacy, the primary challenges in the Americas have been the presence of authoritarian governments, the abuse of
20) Robert Schuman, “Declaration of 9 May 1950”. Available from: <http://europa.eu/abc/symbols/9-may/decl_en.htm>.

21) The current EU members are: Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary,
Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, and the United
Kingdom. For an updated list, see the Member States page of the EU website: <http://europa.eu/abc/european_countries/index_en.htm>.
22) Henry J. Steiner, Philip Alston, and Ryan Goodman, 1014–1015.
23) Ibid., 1016.
24) Charter of Fundamental Rights of the European Union, Art. 3(2).
25) See: Organization of American States, American Convention on Human Rights, Nov. 22, 1969, O.A.S.T.S. No. 36, 1144 UNT.S. 123, 1978.
115
American
Declaration on
the Rights and
Duties of Man
Inter-American Inter-American
Commission on Court of
Human Rights Human Rights
American
Convention on
Human Rights
States of emergency, weak and corrupt judiciaries, and practices of torture, disappearances, and executions.26 As a
result of its genesis in this different context, the Inter-American institutions have focused intently on gross, rather
than “ordinary”, violations of human rights.
In the last few decades, as the history of dictatorship has begun to fade, the Inter-American system has begun
to confront issues of freedom of expression, due process and impunity, and increasingly the focus is turning to
issues of inequality, exclusion, and poverty. However, it continues to hear a high number of cases related to severe
violations.
Additionally, although the American system theoretically applies to the whole region of North, Central, and
South America, it has been predominantly a Latin American system, with the United States and Canada making only
occasional appearances.27
The Organization of American States (OAS) was established in May 1948 for the purposes of strengthening peace
and security in the Americas, promoting democracy, settling inter-State disputes, and supporting development.
Currently, the OAS has 35 Member States, covering all independent countries of the Americas.28
The establishment of the OAS in 1948 was preceded by the adoption of the “American Declaration on the Rights
and Duties of Man”, the founding human rights document in the American system, and the oldest general international
human rights treaty (predating the UDHR by several months). The rights contained in the declaration are similar to
those in the UDHR, and include civil and political as well as economic, social, and cultural provisions. It is unique,
however, in that it includes ten “duties of the citizen” in addition to rights:
• The duty of the individual to conduct himself in relation to others that each and every one may fully form
and develop his personality;
• The duty to aid, support, educate, and protect children and to honour, aid, support, and protect parents;
• The duty to receive education;
26) David J. Harris, “Regional Protection of Human Rights: The Inter-American Achievement”, in The Inter-American System of Human Rights, David J.
Harris and Stephen Livingstone, eds. (Oxford: Oxford University Press, 1998), 1.
27) David J. Harris, 4.
28) For a list of current members of the OAS as well as information on suspensions, see the membership page of the OAS website: <http://www.oas.org/
documents/eng/memberstates.asp>.
116
• The duty to vote;
• The duty to obey the law;
• The duty to serve the community and the nation;
• The duty to respect social security and welfare;
• The duty to pay taxes;
• The duty to work; and
• The duty to refrain from political activities in a foreign country.29
Like the UDHR, this early treaty had significant moral and political force, but at the time of its adoption was not
a binding legal document and contained no enforcement mechanisms.
The American Convention on Human Rights, which translated the American Declaration into a binding legal
document, was adopted in 1969 and entered into force in 1978. Currently, 24 of the 35 members of the OAS are
party to the convention.30 The American Convention is similar in structure to the ICCPR, and focuses primarily on
civil and political rights. It differs somewhat from the ICCPR, however, in that it contains no protection for minorities,
and includes five additional protections for the rights of reply, the right to property, freedom from exile, the right to
asylum, and the prohibition of the collective expulsion of aliens.31
Rather than creating a separate treaty for economic, social, and cultural rights, the American Convention includes
a general provision instructing State parties to implement them:
“The States Parties undertake to adopt measures, both

internally and through international cooperation, especially
those of an economic and technical nature, with a view to
achieving progressively, by legislation or other appropriate
means, the full realization of the rights implicit in the economic,
social, educational, scientific, and cultural standards set forth in
the Charter of the Organization of American States”32
An Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural
Rights (the Protocol of San Salvador) was adopted in 1988 and went into effect in 1999. The Protocol obliges parties
to adopt measures for the progressive achievement of a list of rights similar to those in the ICESCR, and a few
additional rights such as the right to a healthy environment (which we will discuss in Lesson 7), the right to special
protection in old age, and the rights of persons with disabilities (which we will discuss in Lesson 10). Currently, 14
States are party to the Protocol of San Salvador.33
Specific rights and groups are granted further protection under several additional conventions, including:
• Inter-American Convention on the Granting of Civil Rights to Women (1948);
• Inter-American Convention on the Granting of Political Rights to Women (1948);
29) “American Declaration of the Rights and Duties of Man”, 1948, Arts. 29–38.
30) For an updated list of State Parties to the American Convention, visit the OAS Department of International Law website: <http://www.oas.org/
juridico/english/sigs/b-32.html>.
31) American Convention on Human Rights, Arts. 14, 21, and 22.
32) Ibid., Art. 26.
33) For an updated list of State parties, see the list on the website of the OAS Department of International Law. Available at: <http://www.oas.org/
juridico/English/sigs/a-52.html>.
117
• Inter-American Convention to Prevent and Punish Torture (1985);
• Inter-American Convention on International Traffic in Minors (1994);
• Inter-American Convention on the Forced Disappearance of Persons (1994);
• Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (the
Convention of Belém do Pará) (1994); and
• Inter-American Convention on the Elimination of All Forms of Discrimination against Persons with Disabilities
(1999).
These treaties are supported by a number of inter-American organizations that address human rights issues,
including the Inter-American Commission of Women, the Inter-American Children’s Institute, the Inter-American Indian
Institute, and the Inter-American Institute of Human Rights.
Two bodies have been given the primary responsibility for overseeing the implementation of the American
Declaration and American Convention: the Inter-American Commission on Human Rights and the Inter-American
Court of Human Rights.
The first of these two, the Inter-American Commission on Human Rights, is a treaty body set up in 1959 to
oversee the implementation of the “American Declaration on the Rights and Duties of Man”. The Inter-American
Commission monitors and investigates human rights situations, receives and comments on country reports, makes
country visits (an important power that has no equivalent in the European system), and serves as the first destination
for all individual complaints, some of which it sends on to the Inter-American Court of Human Rights (below). Today
the Commission also serves as the treaty body for the American Convention.
The Commission can hear individual complaints as well as inter-State complaints under both the declaration and
the convention. The number of individual complaints received by the Commission has increased substantially over
the past decade: from 435 complaints received in 1997, to 658 in 2000, to 1050 in 2003, and between 1315 and
1330 complaints received in 2004, 2005, 2006, and 2008.34 Of these, over the past decade it has sent between two
and 15 cases per year to the Inter-American Court.35
Though they have substantial persuasive force, the Commission’s recommendations on these individual complaints
are not binding. As a result, ensuring compliance is an ongoing issue — of the 116 recommendations to the State that
the Commission issued between 2000–2007, full compliance has been achieved in only 12 cases. Partial compliance of
some form is recorded in 84 cases, and in 20 cases the State has entirely failed to comply.36
The Commission can also request that States adopt precautionary measures in order to prevent irreparable harm
to human rights in urgent cases. For example, the Commission may request that a State take special measures to
guarantee the life and physical integrity of a person under threat of violence. The Commission annually receives several
hundred requests for precautionary measures, and over the past decade has granted between 28 and 91 each year.
As with its recommendations on individual petitions, the Commission’s requests for precautionary measures are not
binding on States, and they do not always comply.37
34) Inter-American Commission on Human Rights, Annual Report 2008, 2009, Chapter III, part B.
35) Ibid.
36) Ibid., Chapter III, part D.
37) For a recent example of State non-compliance with a request for precautionary measures, see the discussion of the Commission’s request that the
United States determine the status of detainees held at Guantánamo Bay, Cuba in Lesson 14.
118
The Inter-American Court of Human Rights (IACtHR) was established in 1979 to enforce the convention. It is
empowered to issue advisory opinions (legal opinions not connected with contentious cases) and hear individual
complaints. The IACtHR differs from the European Court in that individual complaints may not be made directly, but
must be forwarded by the Commission or the State party to the complaint. The IACtHR has jurisdiction only over
those 24 countries that have ratified the American Convention. Complaints against States that have ratified only the
declaration must be addressed to the Inter-American Commission instead. Decisions of the IACtHR, unlike those of
the Commission, are legally binding on States.
The IACtHR has been somewhat less active than its equivalent in the European system. It has received and
adjudicated a fairly small number of cases, issuing less than 200 judgments and around 20 advisory opinions in its
first 30 years.38 One of the reasons for this is that unlike the European Court, the IACtHR is not a permanent body,
but meets several times a year to hear complaints. Several of its cases, however, have made a relatively significant
impact on international human rights law. In particular, the IACtHR has been a pioneer in defending the rights of
indigenous peoples and in ordering States to pay reparations to victims of human rights abuses.39
The OAS Charter also created an Inter-American Council for Education, Science and Culture and an Economic
and Social Council to set standards and make recommendations with respect to economic, social, and cultural rights.
These organizations, however, have remained fairly weak.40
Section 5.4 The African System

The protection of human rights has a long history in Africa, which has struggled for much of recent history against
colonialism and apartheid, repressive post-colonial regimes, conflict, and poverty. The legal structure of the African
system, however, is the newest of the three major regional systems for the promotion and protection of human rights.
It is the least developed, the most distinctive, and the most controversial of the three, and is currently in a State of
major change. Because of its youth, a perpetual lack of resources, and the limited political will of some of its Member
States, the African system has yet to produce a broad jurisprudence or have a major impact on the State of human
rights on the continent. With reforms ongoing, and increasing support for human rights among governments, however,
its future remains to be seen.
The Organization of African Unity (OAU) was established in 1963 to serve as the regional governing body for the
African States. It was set up in the wake of the anti-colonial struggle of the 1950s, and its agenda focused primarily
on ending colonialism. As such, the OAU Charter recognized the “inalienable right of all people to control their own
destiny” and listed as one of its primary purposes the defence of the sovereignty, territorial integrity and independence
of African States.41 This emphasis on sovereignty led the OAU to resist intervening in the internal affairs of African
States, even for the purpose of ending gross human rights abuses. But this reluctance to intervene soon led to charges
that the OAU was “largely irrelevant,” “bureaucratic and toothless,” and a “dictators’ club” that was “unwilling to hold
its members accountable”.42
38) Inter-American Court of Human Rights, Annual Report 2008, 2009, 58.
40) Ibid., 1023.
41) Charter of the Organization of African Unity, 1953.
42) Marc Lacey, “New Name, Similar Struggles for Group of African Nations”, New York Times, 5 February 2003; Marc Lacey, “African Union Rebuffs
Attempt by a Sudanese to Lead It”, New York Times, 24 January 2006.
119
Duties in the African Charter »

International human rights treaties such as the UDHR and ICCPR are written in the language
of rights. For many, “rights” language is the natural way of talking about human dignity and
the treatment of individuals by governments. But for others, “rights” language seems divisive,
overly individualistic, and disruptive of traditional social structures. For the latter group, the
language of duties may better serve to protect and promote the values of community.
As mentioned in Lesson 1, for every right, there is a corresponding duty. An individual’s

right to be free from torture implies a corresponding duty on the State not to torture. In that
sense, duties are already present in every system of human rights protection. The African
Charter on Human and Peoples’ Rights, though, imposes duties not just on the State, but
also on the individual. These duties, contained in Articles 27–29 of the Charter, include
respecting the rights of parents, the State, and others without discrimination; serving the
national community; paying taxes; preserving African cultural values; and refraining from
compromising the security of the State.
The drafters of the African Charter hoped that these duties would assist in rebuilding a pre-
colonial sense of community, enshrining African values in human rights treaties, and ensuring
the smooth functioning of society in Africa.
The reliance on duties has been subject to criticism, however. Some worry that it gives too
much power to States and may serve as an excuse for countries to violate human rights.
Others disagree that there is a permanent or static African culture that could or should be
protected by law, and still others fear that the emphasis on duties could serve to recreate and
enshrine hierarchies and work against achieving distributive justice.
As part of a major reform effort, the OAU was succeeded by the African Union (AU) in 2002. The AU has a much
broader human rights agenda than its predecessor. The founding document of the new body provides that the AU shall
operate in accordance with human rights principles, and lists the promotion and protection of human rights as one of
its key objectives. While some have criticized the AU for being slow to act against human rights violators, there have
been indications that the OAU’s legacy of zealous protection of State sovereignty may be fading into the background. For
example, when Sudanese President Omar al-Bashir attempted to assume the Chairmanship of the AU, other countries
blocked the appointment due to concerns over the human rights situation in Darfur.43 The AU has sanctioned Member
States such as Togo44 and Mauritania45 for their failure to hold democratic elections, and it has deployed peacekeeping
forces in Burundi, Somalia, and Sudan. Today, 53 of the 54 African States (with the exception of Morocco, which withdrew
when the AU recognized Western Sahara in 1984) are members of the AU.46
43) Marc Lacey, “African Union Rebuffs Attempt by a Sudanese to Lead It,” New York Times, 24 January 2006.
44) Lydia Polgreen, “African Nations to Step Up Pressure on New Togo Ruler”, New York Times, 21 February 2005; Lydia Polgreen, “Togo Ruler, Surrendering
to Pressure, Steps Down”, New York Times, 26 February 2005.
45) “Sanctions put on Mauritania Junta,” BBC News, 6 February 2009.
46) A current list of Member States of the AU is available on the African Union website: <http://www.african-union.org>.
120
The OAU adopted the African Charter on Human and Peoples’ Rights (also known as the Banjul Charter) in 1981.47
All 53 Member States of the AU are party to the African Charter.48 The Charter is the founding document of the African
system, and has a number of unique aspects. It recognizes a broad range of civil, political, economic, social, and
cultural rights, as well as a number of group rights that are not recognized by other regional bodies.49 For example,
the African Charter recognizes the right of peoples to equality; existence; self-determination; control over natural
resources; economic, social, and cultural development; international peace and security; and a generally satisfactory
environment.50 Additionally, the African Charter is much more duty-oriented than either the UN human rights system
or the other regional systems.
In the years since the signing of the African Charter, several additional human rights instruments have been
adopted. Notable among these are the 1990 African Charter on the Rights and Welfare of the Child and the 2003
Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa. Currently, 45 of
the 53 States in the AU are party to the African Charter on the Rights and Welfare of the Child and 27 States are
party to the Protocol on the Rights Women in Africa.51 The Protocol on the Rights of Women in Africa is particularly
far-reaching, broadly defining discrimination as “any distinction, exclusion or restriction or any differential treatment
based on sex and whose objectives or effects compromise or destroy the recognition, enjoyment or the exercise by
women, regardless of their marital status, of human rights and fundamental freedoms in all spheres of life”.52
The enforcement mechanisms of the African system are currently undergoing a period of major change. As
a result, the current manifestation of the African system, as one scholar put it, “is a truly post-modern judicial
landscape”.53
The African Charter establishes an African Commission on Human and Peoples’ Rights to oversee the
implementation of the treaty. The Commission has been in operation since 1987, and is headquartered in Banjul, The
Gambia. The African Commission receives and comments on State reports, conducts on-site visits, issues resolutions,
appoints special Rapporteurs and working groups, and acts as a quasi-judicial body, empowered to hear individual
complaints and inter-State complaints, and to issue non-binding recommendations. In addition, the Commission’s
rules of procedure allow it to issue requests for provisional measures to prevent imminent harm to human rights.54
The African Commission’s broad mandate has allowed it to develop some leading decisions on economic, social, and
cultural rights.55
47) See: Organization of African Unity, African [Banjul] Charter on Human and Peoples’ Rights, 17 June 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58
(1982) (entered into force 21 October 1986).
48) For a list of current ratifications, see the African Commission on Human and Peoples’ Rights website: <http://www.achpr.org/>.
49) We will discuss the content of group rights in Lessons 6 and 7.
50) African Charter on Human and Peoples’ Rights, Arts. 19–24.
51) Numbers current as of July 2009. For a complete list of current State parties to the African Charter on the Rights and Welfare of the Child and Protocol
on the Rights of Women in Africa, see the African Union website: <http://www.african-union.org/>.
52) Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, 2003, Art. 1.
53) Frans Viljoen, International Human Rights Law in Africa (Oxford: Oxford University Press, 2007), 459.
54) Christof Heyns and Magnus Killander, “The African Regional Human Rights System”, in International Protection of Human Rights: Achievements and
Challenges, F. Gomez Isa and K. de Feyter, eds. (Bilbao: University of Deusto, 2006). For example, the Commission issued an interim measure asking
Nigeria to halt the executions of Ken Saro-Wiwa and other Ogoni activists, but the request was ignored.
55) See: The Social and Economic Rights Action Center for Economic and Social Rights and the Center for Economic and Social Rights v. Nigeria, African
Commission on Human and Peoples’ Rights, Communication No. 155/96, 2001.
121
Secretary-General of the UN Ban Ki-moon (centre) meets with Jakaya Mrisho Kikwete (left), President of
the United Republic of Tanzania, and current Chairperson of the African Union; and Jean Ping, Chairperson
of the African Union Commission. 30 November 2008. UN Photo #224126 by Evan Schneider.
Despite its innovative jurisprudence, the Commission has been subject to criticism due to its lack of resources,
the uneven quality of its decisions, and the questionable independence of its members, who in the past had sometimes
served concurrently as government ministers or ambassadors.56 Consequently, the Commission’s recommendations
are often ignored: a recent study found that full compliance with recommendations by the African Commission
had been achieved in only six of the 44 cases in which a violation was found.57 Though recent years have brought
improvements, its failures provided impetus for reform.
In 1998, the OAU adopted a Protocol to the African Charter that created an African Court on Human and Peoples’
Rights to complement and reinforce the work of the Commission. The Protocol entered into force in 2004, and the
Court opened its doors in Arusha, Tanzania in 2006. The Court issued its first decision in December 2009, in which it
dismissed an individual complaint against Senegal for lack of jurisdiction.58
An African Court of Justice that was intended to be the principal judicial organ of the African Union (parallel to
the European Court of Justice, which is the principal judicial organ of the EU) was also established in 2003. This Court
was to hear cases between States, organs of the African system (including the Commission), and, in some cases,
third parties.
Despite the fact that the African Court on Human and Peoples’ Rights and the African Court of Justice had yet to
hear their first cases, African leaders voted in mid-2008 to establish an African Court of Justice and Human Rights
to serve as the main judicial organ of the African Union.59 This new Court will merge the African Court on Human and
Peoples’ Rights and the African Court of Justice into one African Court of Justice and Human Rights. The new Court will
56) Christof Heyns and Magnus Killander. Since 2005, AU guidelines exclude senior civil servants and diplomatic representatives from holding posts on the
Commission.
57) Ibid.
58) See: Michelot Yogogombaye v. Republic of Senegal, African Court of Human Rights, 15 December 2009.
59) Protocol on the Statute of the African Court of Justice and Human Rights, 1 July 2008.
122
have two sections: one of which will be devoted to disputes over matters such as the powers of the AU or breaches of
AU treaties (replacing the Court of Justice), and the other to human rights (replacing the Court on Human and Peoples
Rights). Some members of the AU protested this move, arguing that the two Courts should remain separate due to
their essentially different mandates, but in the end arguments that the merger would cut costs, prevent duplication of
effort, and enhance efficiency prevailed.
The new African Court of Justice and Human Rights will be empowered to issue binding judgments and award
compensation and other remedies, and will also be able to issue advisory opinions. Judgments will be legally binding,
and in the event that States fail to comply, the AU will be authorized to take action, including by imposing sanctions
on the non-compliant State.
Like other institutions and treaties in the African system, the African Court will differ from its Inter-American
and European counterparts. On the one hand, it will have the jurisdiction to hear a greater variety of human rights
cases than either the European or Inter-American Courts. For example, in addition to hearing cases related to abuses of
civil and political rights, the African Court, like the Commission, will have the authority to adjudicate violations of economic,
social, and cultural rights, as well as collective rights. Additionally, the African Court will have the power to hear complaints
involving not just the African Charter, but also the African Charter on the Rights and Welfare of the Child, the Protocol to the
African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, and “any other legal instrument relating to
human rights,” including international human rights treaties that have been ratified by the State concerned.60
On the other hand, the African Court will be hampered by lack of access, as individuals and NGOs will not be
able to bring cases before the Court without a signed declaration by each State allowing the Court to hear this type
of case. Many commentators are sceptical that governments will be willing to make such declarations; the Protocol
establishing the African Court on Human and Peoples’ Rights contains a similar provision, and only two of the 24
States that have ratified the Protocol to date have made a declaration allowing suits by individuals.61 In the event
that individual complaints are blocked, the burden of bringing cases will rest on States, the African Commission, and
African National Human Rights Institutions.
The treaty establishing the new Court is currently open for signature and ratification, but signatures are slow
in coming, and the Court is therefore not expected to become operational for several years. In the meantime, the
African Court on Human and Peoples’ Rights will continue to operate.
In addition to these major human rights institutions, there are also various courts of justice in Africa’s several
regional economic communities that have human rights mandates. The Court of Justice of the East African Community,
the Court of Justice of West African States, the Court of Justice of the Common Market of East and Southern Africa,
and the Tribunal of the Southern African Development Community may all have some competence over certain
human rights issues.
Section 5.5 Other Regional Efforts
Asian initiatives
Although regional human rights mechanisms were developed in Europe, Africa, and the Americas, a similar
system has not emerged in Asia. One reason for this is that during much of the twentieth century the Asian and
Pacific countries argued that their States were too dissimilar and their region too heterogeneous to support a regional
body. Moreover, some Asian States argued that human rights were too individualistic and anti-communal for Asia
60) Ibid.
61) See: Sonya Sceats, “Africa’s New Human Rights Court: Whistling in the Wind?” Chatham House International Law Briefing Paper, 2009, 10.
123
Writing Exercise 5: Human Rights in Asia »

Because of your expertise in regional systems, ASEAN has asked for your help in designing
the new Asian human rights mechanism. Due to ongoing opposition to the proposed AICHR,
ASEAN has given you a free hand to develop an entirely new plan.
How would you construct an Asian human rights system? What types of treaties would it
have? What types of enforcement mechanisms?
Why have you chosen these types of treaties and enforcement mechanisms? What makes
them better or worse than other choices?
Do you think that governments will support your plan? Why, or why not?
or were incompatible with the teachings of Confucianism, Buddhism, and Islam, a position that generated an entire
literature on the so-called “Asian values debate”.62 As a result, when the UN organized a seminar in 1982 to consider
establishing an Asian Human Rights Convention, leaders of the Asian countries rejected the idea.
This situation has changed somewhat in recent years, and the former objections to creating a regional system
seem to be crumbling. In 1989, the Association of Southeast Asian Nations (ASEAN) formed a Regional Council
on Human Rights in Asia and drafted a Pacific Island Human Rights Charter. In 1993, a non-binding “Bangkok
Declaration on Human Rights” presented the human rights aspirations of the region, and an Asian Charter on Human
Rights calling on all States to establish national human rights institutions (NHRIs) was concluded in 1997.
Currently, Southeast Asian States are collaborating through ASEAN to create a human rights enforcement
mechanism for their region. The Southeast Asian Nations formally began the process of establishing a human rights
body in July 2009, when it adopted preliminary Terms of Reference for an ASEAN Intergovernmental Commission
on Human Rights (AICHR). This proposed AICHR would be consultative only, advising Member States on issues,
encouraging ratification of human rights treaties, and assisting in the implementation of human rights obligations.
Observers have already criticized the proposed AICHR for its weakness and lack of compliance mechanisms; The Wall
Street Journal, for example, called it “the world’s most toothless human-rights body”.63 However, this new regional
effort is still at a very early stage, and it remains to be seen how much of an impact it will have on the human rights
situation in Asia.
Arab States
Several human rights documents have emerged from the Islamic world, although none have been successful in
setting up a human rights system similar to those in the other regions.
The League of Arab States (Arab League) was founded in March 1945 in order to strengthen the relations
among Member States and advance the interests of Arab countries. From seven founding States, it has grown to 22
62) For a useful overview of the Asian values debate, see: Randall Peerenboom, “Beyond Universalism and Relativism: The Evolving Debates about
‘Values in Asia’”, Indiana International and Comparative Law Review, vol. 14, no. 1, 2003.
63) “Asean’s Toothless Council”, The Wall Street Journal, 22 July 2009.
124
members, including most Arab States in the Middle East and North Africa. The Pact of the League of Arab States,
the founding document of the organization, makes no mention of human rights.64 The Arab League established a
Permanent Arab Commission on Human Rights in 1968, which was made up of government representatives who
were empowered to submit recommendations to the League, but it has been largely inactive.
In 1994, the League adopted the Arab Charter of Human Rights, which reaffirmed the principals of the Cairo
Declaration. The Arab Charter invokes “the eternal principles of brotherhood and equality among all human beings
which were firmly established by the Islamic Shari’a and the other divinely-revealed religions” and reaffirms the
principles of the UDHR, ICCPR, and ICESCR.65 The Arab Charter is the only legally binding human rights instrument
specifically addressed to the Islamic world. It does not, however, contain any enforcement mechanisms. Although
the text of the Arab Charter was approved by consensus in the League of Arab States, many countries have failed
to ratify it, and it has not yet entered into force. An updated version of the Arab Charter was adopted in 2004,
but it, too, lacks the ratifications needed to enter into force. The new Arab Charter sets up an Arab Human Rights
Committee that is empowered to monitor compliance and receive reports from State parties. However, it still does
not contain any mechanism for reviewing individual complaints.
Another regional body, the Organization of the Islamic Conference (OIC), was established in 1969 for the
purpose of promoting Islamic solidarity among Member States.66 Currently, 57 States are members of the OIC.67 The
OIC adopted its major human rights document, the “Cairo Declaration on Human Rights in Islam”, in 1990. The Cairo
Declaration, which is non-binding, outlines human rights and fundamental freedoms in the context of the Shari’a,
and limits protections for rights such as the right to life, regulation of punishment, and the right to assume public
office in keeping with Islamic law.68 In 2004, the OIC adopted a binding Covenant on the Rights of the Child in Islam.
The Covenant will enter into force once 20 OIC Member States have ratified it, but none have yet done so.
Thus far, neither the Arab League nor the OIC instruments have contributed significantly to the improvement of
human rights in the Arab world.69
Commonwealth of Independent States
States of the former Soviet Union came together in 1991 to form the Commonwealth of Independent States
(CIS). The CIS adopted a Commonwealth of Independent States Convention on Human Rights in 1995, and gave the
duty for enforcing it to the CIS Human Rights Commission, established two years earlier. The Convention has been
criticized and has not had much practical effect, and there is debate as to whether or not it is fully established and
functioning. In any case, now that many of the central European countries have become members of the European
Union, and even more have been brought under the jurisdiction of the European Court of Human Rights, the reach of
the European system has extended to cover this area.
64) See: Pact of the League of Arab States.

65) Arab Charter, Preamble.
66) For more information on the Organization of the Islamic Conference, see the OIC website: <http://www.oic-oci.org/>.
67) Numbers current as of July 2009. For a complete list of current members of the Organization of the Islamic Conference, see the OIC Member States
page at <https://www.oic-oci.org/states/>.
68) “Cairo Declaration on Human Rights in Islam”, 5 Aug. 1990, at Arts. 2, 19, 23, and 24.
69) Frans Viljoen, 15.
125
Section 5.6 Other Actors
Intergovernmental organizations
A huge number of additional UN agencies, partners, and other intergovernmental groups also contribute to the
promotion and protection of human rights. These agencies are known generally as intergovernmental organizations,
and when they are affiliated with the UN they are sometimes known as specialized agencies. These organizations
are established by governments either through the UN or via a separate treaty in order to monitor, commission
studies on, report on, and administer agreements related to a specific issue. The UN specialized agencies and other
intergovernmental organizations form a critical part of the international structure of human rights governance,
and their work complements that of the UN Charter-based and treaty-based bodies. These intergovernmental
organizations include, among many others:
• Department of Economic and Social Affairs (DESA);
• Food and Agricultural Organization of the United Nations (FAO);
• Inter-Agency Internal Displacement Division (IDD);
• Inter-Agency Standing Committee (IASC);
• International Labour Organization (ILO);
• Joint United Nations Programme on HIV/AIDS (UNAIDS);
• Office for the Coordination of Humanitarian Affairs (OCHA);
• United Nations Children’s Fund (UNICEF);
• United Nations Development Programme (UNDP);
• United Nations Entity for Gender Equality and the Empowerment of Women (UN Women);
• United Nations High Commissioner for Refugees (UNHCR);
• United Nations Human Settlement Programme (HABITAT);
• United Nations Mine Action (UNMAS);
• United Nations Population Fund (UNFPA);
• United Nations, Educational, Scientific and Cultural Organization (UNESCO); and
• World Health Organization (WHO).
Intergovernmental organizations like these are generally empowered to act upon a limited set of issues. With
respect to the promotion of human rights, they may be able to perform a range of enforcement activities, from
standard-setting to monitoring, reporting, providing technical assistance, or even receiving communications from
individuals, businesses, or NGOs.
For example, one of the specialized agencies with the most effective and well-developed mechanisms for the
protection and promotion of human rights is the ILO. The ILO was founded in 1919 for the purpose of improving labour
conditions throughout the world. It is unique in that it has a tripartite structure wherein each country is represented by
delegations from the government, labour, and employers. It has adopted a wide variety of international conventions and
recommendations, many of which deal with human rights issues. Because its mandate focuses on labour issues, the
primary human rights targets of the ILO (as codified in the “Declaration of Fundamental Rights and Principles at Work”) are:
126
• Freedom of association and the right to collective bargaining;
• Freedom from slavery and forced labour;
• Freedom from child labour; and
• Freedom from discrimination.
In pursuit of these aims, it examines country reports, receives input from NGOs, conducts technical and political
reviews of national policies, and is even empowered to receive complaints about violations of labour rights. It
provides technical assistance to Member States, and aids in the drafting and promotion of human rights standards
at the national level.
Another specialized agency with a long-standing history of promoting and protecting human rights is UNESCO.
Founded in 1945, UNESCO has the obligation “to further universal respect for justice, for the rule of law and for
human rights and fundamental freedoms which are affirmed for the peoples of the world, without distinction of race,
sex, language or religion by the Charter of the United Nations”.70 UNESCO focuses on issues related to education,
science, and culture, as well as information and communication. In order to promote rights in these areas, UNESCO
acts as a forum for discussion, provides technical assistance, assists in standard setting, performs research into
trends and violations of rights, promotes awareness, and funds schools and educational programmes. Like the ILO,
UNESCO has also established a complaints procedure and receives communications from individuals and NGOs.
International organs like the ILO and UNESCO exercise a range of human rights implementation and enforcement
mechanisms, and have greatly varying power and influence, depending on their membership and constitution. Some
of these bodies — like UNHCR and UNICEF — will be discussed in later lessons. There are far too many variations to
study in detail during this course. Fortunately, most intergovernmental organizations maintain up-to-date websites,
and students are encouraged to visit some of them in order to expand their knowledge of how intergovernmental
organizations contribute to the promotion and protection of human rights.
Non-governmental organizations
Human rights NGOs are civil society organizations formed by private individuals or groups (not governments)
for the purpose of promoting and protecting human rights. They may focus either on human rights in general or
on a specific human rights issue, such as landmines or the right to health. They may be local, national, regional, or
international both in terms of their focus as well as in their structure and presence.71
Human rights NGOs have become an indispensable part of international and regional human rights enforcement
systems. Their work and dedication to the cause have been widely praised — they have been called “the mouthpiece of
world conscience”.72 There are many ways in which NGOs and other civil society groups engage with and support other
global, regional, and national human rights monitoring and enforcement systems. These include:
• Promoting the development, adoption, and ratification of treaties;
• Lobbying States to implement their treaty obligations;
• Monitoring States’ compliance with their obligations;
• Submitting information and written reports to international and regional charter and treaty bodies;
70) UNESCO Constitution, Art. 1(1).

71) H. Victor Condé, Handbook of International Human Rights Terminology (Second Edition) (Lincoln: University of Nebraska Press, 2004), 175.
72) Antonio Cassese, Human Rights in a Changing World (Philadelphia: Temple University Press, 1990), 173.
127
• Attending and contributing to sessions of international and regional charter and treaty bodies, where
possible;
• Submitting individual complaints to treaty bodies, the Human Rights Council, and regional human rights
courts;
• Educating individuals about their human rights;
• Drawing attention to human rights violations and “shaming” States into action; and
• Mobilizing support for human rights enforcement.
NGOs operate under diverse mandates and focus on a huge range of different issues. They vary in size from a
few people to major international operations and employ many different types of professionals. They may operate
on an international, regional, national, or local level. Because they are decentralized and diverse, they can gather,
organize, and distribute information quickly and reach areas where international and regional bodies are unwilling
or unable to go. Particularly with respect to gathering and distributing information, NGOs are vital to human rights
enforcement.
Over the past several decades, NGOs have gained in power and reputation, and are now an official part of many
national and international human rights delegations. Large-scale international NGOs like Amnesty International,
Oxfam, Doctors Without Borders, and Human Rights Watch have become staple presences at intergovernmental
meetings. They have been given key responsibilities in the delivery of humanitarian and development assistance,
and partner with governments and international organizations on education and monitoring activities. They have
scored major victories — the 2006 Convention on the Rights of Persons with Disabilities (CRPD), for example, came
about largely the result of NGO lobbying.73 This enormous increase in the power and presence of NGOs has led
observers to speak of the last two decades as the beginning of an “advocacy revolution”.74
Along with their increasing power and influence, however, has come increasing concern about the role of NGOs
(as well as other non-State actors75) in the international human rights architecture. Many have criticized influential
NGOs for their lack of transparency and accountability, arguing that they are, in effect, unelected special interest
groups that have been given important powers within the international system.76 As The Economist wrote in 2000:
“Who elected Oxfam … ? Bodies such as these are, to varying

degrees, extorting admissions of fault from law-abiding
companies and changes in policy from democratically-elected
governments. They may claim to be acting in the interests
of the people — but then so do the objects of their criticism,
governments and the despised international institutions. In
the West, governments and their agencies are, in the end,
accountable to voters. Who holds the activists accountable?”77
73) For more about the Convention on the Rights of Persons with Disabilities, see Lesson 9.
74) Michael Ignatieff, “Human Rights as Politics”, in Human Rights as Politics and Idolatry, 2001, 8.
75) For further discussion of the role of non-State actors in international human rights law, see Lesson 14.
76) See: Kenneth Anderson, “The Ottawa Convention Banning Landmines: the Role of International Non-Governmental Organizations and the Idea of
International Civil Society”, European Journal of International Law, vol. 11, no. 1, 2000; Robert Charles Blitt, “Who Will Watch the Watchdogs? Human
Rights Nongovernmental Organizations and the Case for Regulation”, Buffalo Human Rights Law Review, vol. 10, 2004. For more neutral assessments
of the debate, see: Steve Charnovitz, “Nongovernmental Organizations and International Law”, American Journal of International Law, vol. 100, no. 2,
April 2006; Peter J. Spiro, “Accounting for NGOs”, Chicago Journal of International Law, vol. 3, no. 1, Spring 2002.
77) “Angry and Effective,” The Economist, 23 September 2000.
128
Some have also questioned whether NGOs have the right to speak for those they purport to represent. Because
they are not elected, and may come from entirely different backgrounds, NGOs’ viewpoints and values may not
correspond with those of their ostensible clientele, and attempts by human rights professionals to speak “for” others
can marginalize and silence victims’ experiences.78
Relatedly, some have pointed to the danger that (Western, Judeo-Christian) human rights NGOs may be seen as
the exclusive representatives of the world’s conscience, to the exclusion of perspectives and peoples from alternative
cultural, religious, or philosophical backgrounds.79
Conclusion
In Lessons 4 and 5 we have learned how the legally binding human rights contained in human rights treaties
are enforced. We have examined the mechanisms established by the international community through the UN;
the regional bodies set up in Europe, the Americas, and Africa, as well as the nascent human rights systems that
are emerging in other parts of the world; and the role played by intergovernmental organizations and NGOs. Now
that we have become familiar with how the human rights system works, we will move on to some issues facing the
system today. In particular, we will turn to a subject that has already appeared a number of times throughout the
previous lessons: the so-called “third generation” or “collective” human rights. What are these rights? Are they part
of the international human rights system? And how do they differ from the traditional set of “individual” rights that
we have learned about so far? This will be the subject of Lesson 6.
Further reading
• The EU and Human Rights, Philip Alston et al., eds., 1999.
• Tom Farer, “The Rise of the Inter-American Human Rights Regime: No Longer a Unicorn, Not Yet an Ox”, in
The Inter-American System of Human Rights, David J. Harris and Stephen Livingstone, eds., 1998.
• Claudio Grossman, “The Inter-American System of Human Rights: Challenges for the Future”, Indiana Law
Journal, vol. 83, 2008.
• David J. Harris, “Regional Protection of Human Rights: The Inter-American Achievement”, in The Inter-
American System of Human Rights, David J. Harris and Stephen Livingstone, eds., 1998.
• Christof Heyns and Magnus Killander, “The African Regional Human Rights System”, in International
Protection of Human Rights: Achievements and Challenges, F. Gomez Isa and K. de Feyter, eds., 2006.
• Margaret E. Keck and Kathryn Sikkink, Activists Beyond Borders: Advocacy Networks in International
Politics, 1998.
• Diana Shelton, “The Promise of Regional Human Rights Systems”, in The Future of International Human
Rights, Burns H. Weston and Stephen Marks, eds., 1999, 351.
• Van Dyke and G.J.H. Van Hoof, Theory and Practice of the European Convention on Human Rights, 1984.
• Frans Viljoen, International Human Rights Law in Africa, 2007.
78) David Kennedy, “The International Human Rights Movement: Part of the Problem?” European Human Rights Law Review, vol. 3, 2001, 121.
79) Makau Mutua, “Human Rights International NGOs: A Critical Evaluation”, in NGOs and Human Rights: Promise and Performance, Claude E. Welch
Jr., ed. (Philadelphia: University of Pennsylvania Press, 2001).
129
• European Court of Human Rights: <www.echr.coe.int>
• Organization of American States: <www.oas.org>
• African Union: <www.african-union.org>
• Amnesty International: <www.amnesty.org>
• Human Rights Watch: <www.hrw.org>
130
1. Which of the following best describes 6. Which of the following is NOT a human
the relationship between regional and rights treaty in the Inter-American
global mechanisms for the enforcement system?
of human rights?
A. The “American Declaration on the Rights and
A. Regional mechanisms are hierarchically Duties of Man”
superior B. The American Convention on Human Rights
B. Global mechanisms are hierarchically C. The Inter-American Convention to Prevent
superior and Punish Torture
C. Regional and global mechanisms are D. The Inter-American Convention on the
complementary Prosecution of Human Rights Violators
D. Regional and global mechanisms have
nothing to do with one another 7. The _____ is the treaty body that
oversees the “American Declaration on
2. Which of the following is NOT one of the Rights and Duties of Man” and the
the three primary organizations in the American Convention on Human Rights.
European system?
8. Although their form is similar, the
A. The Organization for Security and
European and Inter-American systems
Cooperation in Europe
differ in that _____.
B. The International Organization for Europe
A. the European system has been primarily
C. The European Union
concerned with economic, social, and cultural
D. The Council of Europe
rights, whereas the Inter-American system
has been concerned with civil and political
3. The _____ is a judicial body that serves
as the primary enforcement mechanism rights
for the European Convention on Human B. the European system is far younger than the
Rights (ECHR). Inter-American system
C. the European system does not have a human
4. The European Union (EU) is primarily
rights Court, whereas the Inter-American
concerned with _____.
system does
A. protecting human rights in Europe
D. the European system has dealt primarily
B. economic integration in Europe with ordinary violations of human rights
C. organizing an annual song festival called the committed by democratic governments,
“Eurovision” while the Inter-American system has
D. establishing a European Self-Defence Force dealt with gross violations committed by
authoritarian governments
5. The “American Declaration on the Rights
and Duties of Man” was adopted in
_____.
A. 1948
B. 1969
C. 1981
D. 1993
131
9. The Organization of African Unity (OAU) 10. The _____ replaced the Organization
received criticism because _____. of African Unity (OAU) as the regional
governing body of the African States in
A. it was far too active in condemning and
2002.
sanctioning States for human rights
violations
B. its emphasis on sovereignty led it to resist
intervening in the affairs of Member States
C. it was never able to produce a human rights
treaty
D. its strong concern with discrimination against
women led it to reject male delegates
Answer Key »
1. C
2. B
3. European Court of Human Rights
4. B
5. A
6. D
7. Inter-American Commission of Human Rights
8. D
9. B
10. African Union (AU)
132
HUMAN RIGHTS
LESSON Collective Rights I: Theoretical
6 Perspectives and the Right to

Self-Determination
In addition to individual
rights, there exists
another category of rights
known as collective rights.
UN Photo #478998 by Paul Banks.
Section 6.1 Introduction • Define the term “collective rights”.
Section 6.2 Theoretical Perspectives • Appreciate the theoretical difficulties in articulating
collective human rights.

Section 6.3 The Right to Self-Determination
• Understand the history of the right to self-
determination.
• Describe the content of the right to self-
determination.
• Explain the controversy over efforts at expanding
the right to self-determination.
133
LESSON 6 | Collective Rights I: Theoretical Perspectives and the Right to Self-Determination
Celebration of the 1974 act of self-determination by the Niuean people, inhabitants of the isolated South Pacific island of Niue.
1 September 1974. UN Photo #136526 by NJ.
Collective rights
Throughout the previous five lessons, we have spoken
of human rights as individual rights — rights that protect
the individual from abuse by the State and, indirectly, other
individuals. The UDHR, ICCPR, ICESCR, and most of the
other key human rights treaties deal almost exclusively with View a video introduction of this lesson
individual rights. Indeed, with the exception of the right to
videos/189/lesson-6-collective-rights-i-
self-determination, which we will discuss in this lesson, all of theoretical-perspectives-and-the-right-
the rights contained in the UDHR are phrased as individual to-self-determination/>.
rights: “Everyone is entitled … ”, “Every human being … ”,
“Everyone has the right … ”, etc.
134
In addition to individual rights, however, there exists another category of rights known as collective rights.
Collective rights — also known as peoples’ rights, group rights, solidarity rights, or third-generation rights — are
rights that are addressed to and exercised by a people or collectivity rather than an individual. Group rights are not
just the sum total of the rights of individual group members.1 They protect the rights of a people as such.
Group rights are often advanced as the “solution” to the “problem” that the traditional liberal vision of human
rights is too individualistic. They are held out as a response to the “Asian values argument” that we discussed in
Lesson 5, and they are prominent in the African Charter on Human and Peoples’ Rights, which protects:
• The equality of peoples;
• The right to existence and self-determination;
• The right to dispose of wealth and natural resources;
• The right to development;
• The right to peace and security; and
• The right to a healthy environment.
But what are collective rights, exactly? Why and how do they differ from the individual rights discussed in
Lessons 1 through 5?
The concept of “third-generation human rights” was coined by French legal scholar Karel Vasak. In a 1977
speech, Vasak drew a parallel between the French Revolution’s motto, “liberté, egalité, fraternité”, and what he saw
as the “themes” of human rights. First-generation rights were those that corresponded with “liberty”, protecting
individuals against State abuses: civil and political rights. Second-generation rights were those that corresponded
with “equality”, making the State responsible for improving well-being: economic, social, and cultural rights. Third-
generation rights were those that corresponded with “fraternity”, promoting solidarity among peoples: collective
rights. Vasak outlined five different rights that he believed should be included in this category of solidarity rights:
• The right to peace;
• The right to a healthy environment;
• The right to ownership of the “common heritage of mankind”; and
• The right to communication.2
Just as many scholars and activists resist dividing civil and political rights from economic, social, and cultural
rights and reject the “first-generation” and “second-generation” tags that are frequently applied to them, many
commentators also object to labelling collective rights as “third-generation”. Primarily, this is because they feel that
“third-generation” implies a hierarchy among rights and indicates that group rights can or should be protected only
after first generation civil and political rights and second-generation economic, social, and cultural rights have been
fulfilled.3 Nevertheless, this terminology has become part of the human rights landscape, and can be useful for
signifying a particular package of rights claims.
1) For more on this notion, see the discussion of irreducible social goods in: Charles Taylor, Philosophical Arguments (Cambridge: Harvard University
Press, 1995), 127–145.
2) Karel Vasak, “For the Third Generation of Human Rights: The Rights of Solidarity”, Inaugural Lecture, Tenth Study Session, International Institute of
Human Rights, July 1979, 3.
3) For more on this debate, see: Carl Wellman, The Proliferation of Rights: Moral Progress or Empty Rhetoric? (Boulder, Westview Press, 1999) at 29–38
(arguing in favour of the term “third generation”); Philip Alston, “A Third Generation of Solidarity Rights: Progressive Development or Obfuscation of
International Human Rights Law?” Netherlands International Law Review, vol. 29, no. 3, 1982 (arguing against the term “third generation”).
135
The first three of Vasak’s solidarity rights — the right to development, the right to peace, and the right to
environment — along with the right to self-determination, have taken hold in international law. The rights of
indigenous peoples and minority groups, which are sometimes seen as species of collective rights, have also been
recognized as protected by international human rights agreements.4
Despite the growing recognition and influence of group rights, however, the concept — as well as the content
and implications of specific rights — remains controversial.
Section 6.2 Theoretical Perspectives
Before we dive into an exploration of each of the collective rights, it is important to take a brief detour into the
theory behind them. As you read through this discussion of theoretical perspectives on collective rights, think about
how the different arguments impact your idea of what human rights are, and what they should be. Do you agree with
any of the critiques offered below? Why, or why not? Does it matter whether collective rights are theoretically sound?
Conflict over philosophical foundations
One reason why collective rights is seen as much more controversial than individual rights is that some of the
philosophical foundations that we use to justify individual rights (see discussion in Lesson 1) cannot easily be extended
to justify group rights. While individual rights are traceable to the liberal enlightenment notion of the individual and the
desire to protect the sphere of individual liberty against intrusion by the State, the basis for collective rights must be
sought elsewhere. As prominent human rights scholar Jack Donnelly argues:
“If human rights derive from the inherent dignity of the human
person, collective human rights are logically possible only
if we see social membership as an inherent part of human
personality, and if we argue that as part of a nation or people,
persons hold human rights substantively different from, and
in no way reducible to, individual human rights. This last
proposition is extremely controversial …
The very concept of human rights, as it has heretofore

been understood, rests on a view of the individual person
as separate from, and endowed with inalienable rights held
primarily in relation to society and especially the State.
Furthermore, within the area defined by these rights, the
individual is superior to society in the sense that ordinarily, in
cases of conflict between individual human rights and social
goals or interests, individual rights must prevail. The idea
of collective human rights represents a major, and at best
confusing, conceptual deviation.”5
4) We will examine the rights of indigenous peoples and minorities in Lesson 10.
5) Jack Donnelly, “In Search of the Unicorn: the Jurisprudence and Politics of the Right to Development”, California Western International Law Journal,
vol. 15, 1985, 482.
136
In other words:
“If human rights are the rights that one has simply as a human
being, then only human beings have human rights; if one is not
a human being, by definition one cannot have human rights.
Because only individual persons are human beings, it would
seem that only individuals can have human rights.”6
If only individuals can have rights, as Donnelly argues, then what does this mean for collective rights? Do they
cease to exist? Are they protected, instead, as aggregates of individual rights? As “needs” rather than “rights”? Can
group rights ever be human rights?
Some have questioned whether group rights exist at all as a separate moral or ethical entity from individual
human rights. Instead, they argue, things we refer to as “group rights” are really either (1) not rights at all, but
merely justice claims that can be excluded from the legal category of “rights”, or (2) reducible to aggregations of
individual human rights. Because of this lack of determinacy and clear moral distinction, scholars like James Griffin
question whether the label “group rights” has any content at all:
“After the combined workings of exclusion and reduction, are

there any compelling examples left in the class of moral group
rights? When putative moral group rights seem to have the
status of rights, is it not because they are reducible to human
rights? Can we attach sufficiently clear criteria to the term
“group rights” to make it a helpful, non-redundant addition to
our moral vocabulary? Are we not better off without the third
generation of rights?”7
If, as James Griffin argues, group rights are really just aggregations of other individual rights already enacted
in human rights instruments, what is their added value? Does assigning these rights a special status as “collective
rights” merely serve to confuse the situation? Why is it important to create a separate category of group rights that
are not reducible to individual human rights?
Whose rights? Whose duties?
A second challenge in the application of collective human rights relates to identifying who is the right-holder and
who is the addressee with the corresponding duty to respect, protect, and fulfil. With individual rights, the right-holder
is an individual person, and the addressee is the State. An individual has a right to life, and the State has a duty not
to infringe on that right, and to try to prevent others from doing so. With collective rights, however, the right-holder is
harder to pinpoint. Ostensibly, collective rights are addressed to “groups” or “peoples”. But what constitutes a group or
a people? A nation? A linguistic community? An ethnic group? A school? A church? How do we know?
A related question, once a group is identified, is who is empowered to exercise the right on the group’s behalf?
An elected spokesperson? A traditional representative or ruler? The State? While a group like a school, a church, or
an indigenous community may be able to achieve a fairly complex level of internal organization that could allow it to
act as a unit, larger or more nebulous groups like women, children, or migrants cannot. Can anyone really speak on
behalf of all the disabled persons in the world? Should they? Here again, Jack Donnelly’s arguments are provocative:
6) Jack Donnelly, Universal Human Rights in Theory and Practice (Ithaca: Cornell University Press, 2003), 25.
7) James Griffin, On Human Rights (Oxford: Oxford University Press, 2008), 276.
137
“A further problem with collective human rights is determining

who is to exercise the right; the right-holder is not a physical
person, and thus an institutional ‘person’ must exercise it. In the
case of a right held by a people, or by a society as a whole, the
most plausible ‘person’ to exercise the right is, unfortunately,
the State. Again this represents a radical reconceptualization of
human rights — and an especially dangerous one.”8
The issue of who holds the duty to respect, protect, and fulfil the human rights of groups is equally difficult. If the
right-holder is a subnational group defined by ethnic, historical, or linguistic ties, then presumably the corresponding
duty may be held by the State or States in which the subgroup exists. For example, if the right-holder is the Māori
people, then the duty-holder might be the State of New Zealand. However, if the State itself is the right-holder, or if
the State is empowered to exercise the right on behalf of a group of citizens, on whom does the corresponding duty
fall? Neighbours of the State? The international community? The developed world? Through what organ can a duty-
holder like the international community act to uphold these rights? Through what mechanism can rights be enforced
against the international community?
The accepted definitions of right- and duty-holder may differ from one right to another, and from one context to
another. How does this lack of clarity and consistency affect the legitimacy of group rights? Is it important?
East vs. west, north vs. south
A third challenge for collective human rights springs from their political-historical positioning as anti-Western.
During the Cold War, individual and collective rights were divided along the line that separated Western and socialist
States. Individual rights — particularly of the civil and political kind — were associated with the European liberal
enlightenment and focused on protecting the private individual, free markets, and choice. Collective rights, on the
other hand, were associated with group identity and utilitarian ethics.9 The Cold War split had a profound effect on
human rights protection; because of the East/West division, many projects proved to be unfeasible due to opposition
from one side or the other, and those that succeeded did so because they were able to find a point of consensus
between the two major blocs, or enlist sufficient support from the non-aligned world.
Likewise, in today’s debates, individual rights continue to be associated with the “developed world,” the “West”,
or the “global North”, while collective rights are associated with the “developing world”, “Third World”, “global South”,
or “majority world”.10 According to this interpretation, developing countries favour collective rights like the right to
development that promote their economic growth and protect their rights vis-à-vis the developed world, and some
argue that promoting these rights requires material assistance from wealthy Western States. Countries of the global
North, on the other hand, favour rights that protect individual liberty and put the major burden on developing States
to help themselves.
As with other distinctions between categories of rights, the socialist/West, North/South, and collective/individual
characterizations should be taken with a grain — perhaps better a tablespoon — of salt. Individual rights are held
by, and important to, people from all parts of the world. Group rights, whoever their champions may be, are also
important for the citizens of industrialized States, who are not immune to the consequences of environmental
degradation, poverty, and conflict.
8) Ibid.
9) See: Philip Alston, “Revitalizing United Nations Work on Human Rights and Development”, Melbourne University Law Review, vol. 18, 1991, 218–219.
10) These terms are, themselves, controversial, and there is a great deal of debate regarding the proper usage and semantic implications of each. They
will be used interchangeably here, but students should be conscious of the different conceptual frameworks evoked by each of these terms. Does
“global South” mean something different than “developing world”? Does “third world” imply a different status than “majority world”? Why?
138
Moreover, the line between individual and collective rights is far from clear. Many of the rights addressed to
individuals that protect autonomy and choice, such as the right to freedom of religion or the right to participate
in associations, only make sense from a social perspective. These rights have an inherently collective character,
because protecting the right of the individual necessarily entails protecting the right of the group to exist. For
example, if Pauline wishes to exercise her right to freedom of religion by joining the Catholic Church, the State is
required to refrain from interfering with her choice. But in order to respect Pauline’s individual right to freedom of
religion, the State is also required to refrain from active suppression of the Catholic Church or placing discriminatory
restrictions on Catholics, and must allow Catholic people to meet and worship together — in other words, to protect
Catholics as a group.
Group rights and liberal democracy
A number of scholars have pointed to the paradoxical position of group rights as both protectors of and threats
to individual liberty. Because of this conflict, some have argued that collective rights are difficult to reconcile with the
traditional conception of human rights.
Groups can help contribute to individual freedom and autonomy, which are crucial for liberal democracies to
function. They are key players in the formation and maintenance of individual beliefs and identity. They help to
buffer the individual against the extensive reach of national governments, and they help to provide order in our lives,
preventing us from finding ourselves “adrift in a social chaos, bereft of personal meaning and exposed to abuse by
the State”.11
At the same time, however, the idea of group rights poses challenges for liberal democracy. There is, to begin
with, an issue of consent. Do individuals choose their group membership, or does society or the group itself conscript
people into affiliation? Once a person is a member of a group, they may become exposed to coercion, forced to
comply with group desires or face marginalization or expulsion. Additionally, groups may threaten liberal democracy
by asserting their special status as a defence against State intrusion — including “good” intrusion by the State in
the name of protecting human rights or preventing discrimination. For example, when a recognized religious group
uses its special rights to prevent women from joining the clergy, this runs afoul of the human rights principle of non-
discrimination. Should the group right or the individual right trump in this circumstance?
This is the “paradox of groups”: “They are simultaneously instruments of individual liberty and individual
oppression.”12 Feminist scholars in particular have grappled with this question, and have been quick to point out
that the group is a place of safety as well as danger for the individual and her human rights. For example, at the
micro level, State protection of the family as a “private” group out of the reach of “public” law has created a space
within which loving relationships can flourish unimpeded by the reach of State regulation.13 But it has also created
a space in which domestic violence and marital rape have historically been shielded from intervention and legal
recourse.14
Despite these difficulties, collective rights such as the right to self-determination, the right to development, the
right to a healthy environment, and the right to peace have become a part of the international human rights canon.15
11) Frederick Mark Gedicks, “The Recurring Paradox of Groups in the Liberal State”, Utah Law Review, vol. 2010, no. 1, 9 July 2010, 51.
12) Ibid., 52.
13) For a discussion of the public/private distinction in relation to gender, see Lesson 3.
14) See: Katherine T. Bartlett, “Feminism and Family Law”, Family Law Quarterly, vol. 33., 1999.
15) See: James Crawford, “Some Conclusions”, in The Rights of Peoples, James Crawford, ed. (Oxford: Oxford University Press, 1988).
139
We will now take a look at each of these rights in turn. While reading, keep in mind the theoretical perspectives
discussed in this section, and try to see how they have impacted the development and implementation of these third-
generation rights. Do these theoretical debates matter for the practical application of group rights? Why, or why not?
Section 6.3 The Right to Self-Determination
What is the right to self-determination?
The right to self-determination is “the single most important and most frequently invoked” of the collective
rights recognized under international human rights law.16 People all over the world have laid claim to a right to
self-determination: including groups of people in Palestine, Tibet, Kashmir, Chechnya, Quebec, Abkhazia, Kosovo,
and South Sudan; the Kurds; the Basques; the indigenous peoples of Australia, the United States, Guatemala, and
Canada; and the inhabitants of Gibraltar and the Falkland/Malvinas Islands, to name only a few of the most famous
cases.
The right to self-determination is very difficult to define, partially as a result of its extreme political sensitivity.
As you read through this section, it is important to keep in mind that many of the inconsistencies and differences
of opinion regarding the right to self-determination have developed as a result of geopolitical power struggles.
States are often resistant to giving up their authority, no matter how strong a peoples’ claim to autonomy may be,
and countries may support or oppose particular independence or self-rule movements based solely on international
political considerations. One need only mention prominent examples such as the long-standing dispute over the
status of Taiwan to see how politics and self-determination go hand in hand.
On Self-Determination »
“The proposition (to begin by using a perfectly neutral word) that every people should
freely determine its own political status and freely pursue its economic, social and cultural
development has long been one of which poets have sung and for which patriots have been
ready to lay down their lives.”
–John Humphrey
from “Political and Related Rights” (1984)
Article 1 of the UN Charter States that one of the purposes of the UN is to “develop friendly relations among
nations based on respect for the principle of equal rights and self-determination of peoples”.17 The African Charter
on Human and Peoples’ Rights and the Helsinki Final Act of the Conference on Security and Cooperation in Europe
(CSCE, now the OSCE) also recognize self-determination as a right of all peoples.18 And, as mentioned in Lessons 2
and 3, Article 1 of both the ICCPR and ICESCR sets out a “right to self-determination”:
“All peoples have the right of self-determination. By virtue of

the right they freely determine their political status and freely
pursue their economic, social and cultural development.
16) Philip Alston, “Introduction”, in Peoples’ Rights, Philip Alston, ed. (Oxford: Oxford University Press, 2001).
17) Charter of the United Nations, Art. 1.
18) African Charter on Human and Peoples’ Rights, Art. 20, 1981; Final Act of the Conference on Security and Cooperation in Europe (Helsinki), 1975,
Principle 8.
140
Security Council votes in support of self-determination plan for Western Sahara. 29 April 2004. UN Photo #31189 by Sophia Paris.
All peoples may, for their own ends, freely dispose of their
natural wealth and resources without prejudice to any
obligations arising out of international economic cooperation,
based on the principle of mutual benefit, and international
law. In no case may a people be deprived of its own means of
subsistence.
The State Parties to the present Covenant, including those

having responsibility for the administration of Non-Self-
Governing and Trust Territories, shall promote the realization of
self-determination, and shall respect that right, in conformity
with the provisions of the Charter of the United Nations.”19
The fact that the right to self-determination appears as Article 1 of both of the major Covenants suggests its
importance to the human rights system. Indeed, the Human Rights Committee’s General Comment 12 notes that
the right to self-determination is of “particular importance because its realization is an essential condition for the
effective guarantee and observance of individual human rights and for the promotion and strengthening of those
rights”.20 In other words, self-determination is important because without a government that is responsive to the
needs of the people, individual civil, political, economic, social, and cultural rights are jeopardized.
19) International Covenant on Civil and Political Rights, Art. 1; International Covenant on Economic, Social and Cultural Rights, Art. 1.
20) Human Rights Committee, General Comment 12, 1984, para. 1.
141
The right to self-determination is based on the twin values of self-government and democratic representation,
and has both an “external” and an “internal” component. On the one hand, the idea of self-determination means
self-government, and is related to the question of sovereignty that we discussed in Lesson 1: the notion that States
must be able to manage their affairs free from external control or interference. On the other hand, the idea of self-
determination also means democratic representation, and is related to the legitimacy of governments: the notion
that governments must be answerable to their citizens. Consequently, scholars have come to speak of:
• External self-determination: the right to independence as a people, the right to self-rule, the right to be
free of colonialism, the right to form an autonomous State. In this sense, external self-determination is a
“one-time” right that expires once independence has been achieved; and
• Internal self-determination: the right to authentic self-government, the right to a representative
and freely chosen political and economic regime, the right to democratic rule, the right to a government
responsive to the will of the people. In this sense, internal self-determination is a “continuous” right that
exists for all peoples at all times.21
Reflecting this multifaceted definition, claims for self-determination can range along a spectrum from full secession
or independent Statehood, to formal autonomous self-rule, to greater autonomy within an existing State, to increased
internal representation.
To further complicate the picture, the types of groups or peoples laying claim to self-determination vary greatly.
Professors Halperin and Scheffer famously identified several categories of groups that may make self-determination
claims:
• Anti-colonial: in which a colony generally seeks independence (external self-determination) from a colonial
State (e.g. India in the 1940s);
• Sub-State: in which an identifiable group within a State seeks either a greater share of power within
(internal self-determination) or independence from (external self-determination) a State (e.g. the Basques
in Spain, South Sudan);
• Trans-State: in which a people spread throughout more than one State seeks either internal or external
self-determination (e.g. the Kurds in Iraq, Iran, Syria, and Turkey);
• Indigenous: in which indigenous peoples seek either independence (external self-determination) or self-
rule (internal self-determination) within an existing State (e.g. the Sami people in Norway).22
Despite its leading position as Article 1 of the ICCPR and ICESCR and its absolutist language, the right to self-
determination (at least since the end of formal decolonization) is “perhaps the most controversial and contested of
the many controversial and contested terms in the vocabulary of international law”.23 The precise scope and nature
of this right have been the subject of heated debate, both academic and political, and it remains unclear exactly how
far the boundaries of self-determination should extend. As scholar Hurst Hannum wrote:
21) For a contrasting view, see S. James Anaya, Indigenous Peoples in International Law (Third Edition) (New York: Oxford University Press, 2004), 104–106,
arguing that “the internal/external dichotomy effectively is premised on the conception, rejected earlier, of a limited universe of ‘peoples’ comprising
mutually exclusive spheres of community”. He proposes instead an alternative framework based on “constitutive” and “ongoing” self-determination which
requires that “the governing institutional order be substantially the creation of processes guided by the will of the people, or peoples, governed” and that
“the governing institutional order, independently of the processes leading to its creation or alteration, be one under which people may live and develop freely
on a continuous basis”.
22) Morton H. Halperin and David J. Scheffer, Self-Determination in the New World Order (Washington, D.C.: Brookings Institute Press, 1992), 49–52.
Halperin and Scheffer also speak of “dispersed people” and “representative” claims.
23) James Crawford, “The Right to Self-Determination in International Law: Its Development and Future”, in Peoples’ Rights, Philip Alston, ed. (New York:
Oxford University Press, 2001), 7.
142
“Perhaps no contemporary norm of international law has been

so vigorously promoted or widely accepted as the right of all
peoples to self-determination. Yet the meaning and content of
that right remain as vague and imprecise as when they were
[first] enunciated …”24
As one observer shrewdly noted: “Generally, self-determination grants certain groups of people some level of
autonomy. The problems arise when attempting to determine which people and how much autonomy.”25
What is this right to self-determination? How did it develop, and what does it mean today?
History of the right to self-determination
The right to self-determination has a deep historical significance, and understanding the context in which it
developed is critical to understanding its contested status today.
The modern origin of the principle can be traced back to the American Declaration of Independence in 1776 and
the French Revolution of 1789, “which marked the demise of the notion that individuals and peoples, as subjects
of the King, were objects to be transferred, alienated, ceded, or protected in accordance with the whims of the
monarch”.26 These revolutionary movements, and the explosion of independence claims that followed, stood for the
liberal democratic principle that a government must be responsive to its people.
Following the First World War, the idea of self-determination was espoused by both US President Woodrow Wilson,
who saw it as the “key to lasting peace in Europe”, and V.I. Lenin, for whom it was “a means of realizing the dream of
world-wide socialism”.27 In practice, the concept was used to legitimate the victorious powers’ redrawing of national
boundaries in Europe. The allied leaders created independent States out of the “nations” that existed within the broken
territories of the Austro-Hungarian and Ottoman empires, although the “peoples” chosen for liberation were selected
more for their geo-political value than on the basis of any claims to nationhood. While ostensibly the right to self-
determination was a formal manifestation of the right of nations to self-government, little concern was given to the
desires of the people themselves; the primary motivation was strategic value.28
Self-determination was first articulated as a principle of international law in 1945, as Articles 1(2) and 55
of the UN Charter. Although it was not included as a right in the UDHR, the growing movement to put an end
to colonialism sparked a revival of self-determination as a concept, and resulted in its prominent inclusion in
the ICCPR and ICESCR.29 Throughout the sixties and seventies, the right to self-determination was synonymous
with the struggle for decolonization. It was for, and about, securing independence for non-self-governing States.
However, it applied only in instances where a dependent colony or trust territory sought autonomy from an
ethnically and geographically distinct governing State (a condition sometimes known as “salt water colonialism”30).
24) Hurst Hannum, Autonomy, Sovereignty, and Self-Determination: The Accommodation of Conflicting Rights (Second Edition) (Philadelphia: University
of Pennsylvania Press, 1996), 27.
25) Cherylyn Brandt Ahrens, Note, “Chechnya and the Right of Self-Determination”, Columbia Journal of Transnational Law, vol. 42, 2004, 576.
26) Antonio Cassese, Self-Determination of Peoples: A Legal Reappraisal (Cambridge: Cambridge University Press, 1995), 11.
27) Ibid.
28) Hurst Hannum, 27–29.
29) Interestingly, the Human Rights Committee has held that it may not hear complaints alleging a violation of the right to self-determination because it
is empowered only to hear individual communications. See: Lubicon Lake v. Canada, CCPR/C/38/D/167/1984, 26 March 1990, paras. 31–2. Does this
put the right on a different footing than the other rights in the ICCPR?
30) A reference to rule by a country across the ocean. Hurst Hannum, “Rethinking Self-Determination”, Virginia Journal of International Law, vol. 34,
1993, 13.
143
This understanding of the right was reflected in the General Assembly’s 1960 Declaration on the Granting
of Independence to Colonial Countries and Peoples (Declaration on Colonial Independence), which asserted “the
necessity of bringing to a speedy and unconditional end colonialism in all its forms and manifestations” as the
primary goal of the right of self-determination.31 The Declaration on Colonial Independence also explicitly prohibited
the disruption of a State’s “territorial integrity”, further cementing the idea that the right self-determination was
limited to the colonial context.32
The definition of peoples implicit in this sanction of decolonization remained closely linked to territory, rather
than “nationhood”. Cultural, political, or linguistic homogeneity among a colonial “people” was irrelevant to the
exercise of the right to self-determination; the only criterion that mattered was the existence of a dependent
colonial relationship with a distant State. During the 1960s, then, the right to self-determination could be seen as an
affirmation and extension of the principle of Westphalian sovereignty.
Ten years later, the UN General Assembly’s Declaration on Principles of International Law Concerning Friendly
Relations and Cooperation Among States in Accordance with the Charter of the United Nations (“Declaration
on Friendly Relations”) brought the internal dimension of the right to self-determination — the importance of
representative democracy — to the fore. The Declaration on Friendly Relations, like the “Declaration on Colonial
Independence”, reaffirms the right to self-determination, links it with the struggle against colonialism, and notes that
the right is limited by a prohibition on interference with territorial integrity. The Declaration on Friendly Relations,
however, goes on to add:
“Nothing in the foregoing paragraphs [affirming the right

to self-determination] shall be construed as authorizing or
encouraging any action which would dismember or impair,
totally or in part, the territorial integrity or political unity of
sovereign and independent States conducting themselves
in compliance with the principle of equal rights and self-
determination of peoples as described above and thus
possessed of a government representing the whole people
belonging to the territory without distinction as to race, creed
or colour.”33
This paragraph reiterates the importance of maintaining territorial sovereignty and national unity. However, it
conditions its support of sovereign unity on whether a State has conducted itself “in compliance with the principle
of equal rights and self-determination of peoples” and whether it is “thus possessed of a government representing
the whole people belonging to the territory without distinction as to race, creed or colour”.34 The two conditions
added at the end of the paragraph highlight the importance of democratic governance in the exercise of the right
to self-determination and shift the focus of the debate away from sovereignty and territory and towards lack of
representation. In other words, the Declaration on Friendly Relations represented a shift away from the self-
determination of States and towards the self-determination of peoples.
31) United Nations General Assembly, Declaration on the Granting of Independence to Colonial Countries and Peoples, 1960.
32) Ibid.
33) United Nations General Assembly, “Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in
Accordance with the Charter of the United Nations”, 1970, Principle 5, para. 7.
34) Ibid.
144
This formulation expanded the scope of self-determination to include its application not only to territorially
separate colonies, but also to peoples so repressed within their State that they must be deemed “unrepresented”
by the national government. It was on this rationale, for example, that the UN condemned the apartheid system
in South Africa as violating the right to self-determination.35 This suggested that the exercise of the right to self-
determination was meant not just to promote sovereignty and self-government of territories, but also to ensure that
colonial (and, perhaps, severely repressed) peoples could form States that would be democratically accountable to
the people — all of the people — under their rule.
The right to self-determination today
In the years since decolonization, the boundaries of the right to self-determination have shifted again. Over the
last few decades, there has been a push to expand the content of the right even further, allowing its application in
many more cases of internal repression and sub-State, trans-State, and indigenous claims. Specifically, advocates
have sought to use the right to self-determination to legitimate a broader range of struggles for (external) secession
from or (internal) self-rule within existing States. The notion has been particularly popular among advocates of
indigenous and minority autonomy. This expanded idea of self-determination, however, is quite controversial. It
shifts the notion of “peoples” from a territorial to an ethnic, cultural, or linguistic community, and, at its most
extreme, potentially authorizes secession or independence from a functional State.
Arguments on all sides of this definitional debate are forceful, and the contours of the right to self-determination
remain unclear. As Professor Gregory Fox wrote, self-determination is “a concept increasingly at war with itself”.36
Many important questions remain unanswered:
1. What constitutes a people? Only colonial populations, currently existing States, historical States, and those
“entitled to be States” as a result of ethnonationalist homogeneity?37 Any group marked by linguistic,
religious, or ethnic similarity? “All those spheres of community, marked by elements of identity and
collective consciousness, within which people’s lives unfold — independently of considerations of historical
or postulated sovereignty”?38
2. When can the right to self-determination be exercised? Only in cases of colonial domination? Only in non-
democratic States? Only where minorities are formally excluded from participation in government? In any
State where a people feels a lack of influence? Any time a people desires autonomy?
3. How can the right to self-determination be reconciled with support for territorial integrity and Westphalian
sovereignty? Where should the line between “self-determination” and “political unity” be drawn?
4. When can a lack of political representation be solved by an exercise of “internal” self-determination? When
is “external” self-determination appropriate?
So far, the right to external self-determination via secession has been recognized as absolute only in the very
limited context of colonialism, and perhaps in reclaiming territory that is subject to unjust military occupation.39 A
limited right to self-determination has also been recognized in some cases where a people wishes independence from
a State in which they are denied participation in the democratic process, or in which their human rights have been
consistently and systematically violated.40 And the right to increased internal self-determination has been recognized
35) See: S. James Anaya, 99.

36) Gregory H. Fox, “Self-Determination in the Post-Cold War Era: A New Internal Focus?”, Michigan Journal of International Law, vol. 16, 1995, 733.
37) S. James Anaya, 100–101, 117–118, fns 26–30.
38) Ibid., 103.
39) Antonio Cassese, 37–38.
40) See: Loizidou v. Turkey (Merits), European Court of Human Rights, 18 December 1996, in Human Rights Law Journal, vol. 18, 1997, 59.
145
The Limits of the Right to Self-Determination »

“Does self-determination mean the right of secession? Does self-determination constitute a right
of fragmentation or a justification for the fragmentation of nations? Does self-determination mean
the right of people to sever association with another power regardless of the economic effect
upon both parties, regardless of the effect upon their internal stability and their external security,
regardless of the effect upon their neighbors or the international community? Obviously not.”
–Eleanor Roosevelt
from “The Universal Validity of Man’s Right to Self-Determination” (1952)
in cases of national minorities and other sub-State, trans-State, and indigenous claims.41 Extending external self-
determination to allow secession or independence from an existing and ostensibly functional State, however, has
been largely (though certainly not unanimously) rejected.42 As the Supreme Court of Canada describe the current
State of the law in Reference re Secession of Quebec:
“The recognized sources of international law establish that

the right to self-determination of a people is normally fulfilled
through internal self-determination — a people’s pursuit of
its political, economic, social and cultural development within
the framework of an existing State. A right to external self-
determination (which in this case potentially takes the form of
the assertion of a right to unilateral secession) arises in only
the most extreme of cases and, even then, under carefully
defined circumstances.
[…]
A State whose government represents the whole of the people

or peoples resident within its territory, on a basis of equality
and without discrimination, and respects the principles of self-
determination in its own internal arrangements is entitled to the
protection under international law of its territorial integrity.”43
41) Robert D. Sloane, “The Policies of State Succession: Harmonizing Self-Determination and Global Order in the Twenty-First Century”, Fordham
International Law Journal, vol. 20, 2007, 1306.
42) See: T. Franck, R. Higgins, A. Pellet, M. Shaw and C. Tomuschat, “L’intégrité territoriale du Québec dans l’hypothèse de l’accession à la souveraineté,”
in Commission d’étude des questions afferents à l’accession du Québec à la souverainetè, Les attributes d’un Québec souverain, Esposés et etudes,
vol. 1 (1992), 377–461.
43) Reference re Secession of Quebec, 37 I.L.M. 1340, 1998, paras. 126 and 130.
146
Writing Exercise 6: Are You a People? »

You are a member of a national minority in a country that is party to the ICCPR and ICESCR.
You speak a different language and have a different culture than the majority of people in
your State, but have never formed an independent nation. Your minority group has long
suffered oppression at the hands of the national government, including discrimination
in employment and lack of political representation. Leading members of your minority
community have come together to decide what to do about this situation, and have asked you
for your input.
• Does your minority group qualify as a “people” for the purpose of exercising a right
to discrimination? Why, or why not? What factors are important for making this
determination?
• Do you believe that making a self-determination claim would be valuable to your

minority group? Why, or why not? If so, what type of claim would you make?
• Does it seem likely that your government would accept your claim to self-determination?
What factors might influence your government’s decision?
• What response do you expect from the international community?
Further questions
But on what basis can the line between legitimate and illegitimate self-determination claims be drawn? The
International Bill of Human Rights contains no direct limitations of the right to self-determination. Many scholars and
supporters of autonomy and independence movements argue that some form of the right (whether secession, self-rule,
or increased autonomy within the existing State) should be recognized in all cases where a group of individuals has
decided that it is, in fact, a “people” and can demonstrate that its government is not adequately representative in either
an internal or external sense.
Moreover, if it is true that human rights can be protected only in the context of a representative self-governing
State, should self-determination not be encouraged in all cases?
Some observers have worried that increasing use of the right to self-determination would merely result in the
creation of ever-smaller splinter States based on increasingly fine divisions among “peoples”.44 Would this be a bad
thing? What do you think?
The answers to these questions are not simple ones. As of yet, the scope of the right to self-determination
remains fairly limited. But as theory and practice with respect to the principle of self-determination continue to
develop, and new groups attempt to exercise this right to justify their battles, the contours of the right to self-
determination will no doubt continue to shift.
44) Michael J. Kelly, “Political Downsizing: The Re-Emergence of Self-Determination, and the Movement Toward Smaller, Ethnically Homogenous States”,
Drake Law Review, vol. 474, 1999.
147
Conclusion
In this lesson, we introduced the concept of collective rights. We examined several theoretical issues relating
to their form and function, and began our exploration of content with an in-depth discussion of the right to self-
determination. In Lesson 7, we will take a look at three other collective rights currently recognized under international
human rights law: the right to development, the right to a healthy environment, and the right to peace.
Further reading
• Philip Alston, ed., Peoples’ Rights, 2001.
• Antonio Cassese, Self-Determination of Peoples: A Legal Reappraisal, 1995.
• James Crawford, ed., The Human Rights of Peoples, 1988
• Jack Donnelly, Universal Human Rights in Theory and Practice, 2003.
• James Griffin, On Human Rights, 2008.
• Hurst Hannum, Autonomy, Sovereignty, and Self-Determination: the Accommodation of Conflicting Rights
(Second Edition), 1996.
• Karen Knop, Diversity and Self-Determination in International Law, 2008.
• Unrepresented Nations and Peoples Organization, “Self-determination”: <www.unpo.org/content/
view/4957/72/>.
148
1. Which of the following was NOT a 6. The right to self-determination is

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

_____.
A. an individual
B. everyone
C. a group or people
D. no one
149
Answer Key »
1. C
2. B
3. Third
4. A
5. C
6. A
7. D
8. External
9. Internal
10. C
150
HUMAN RIGHTS
LESSON Collective Rights II: The Rights
7 to Development, Environment,
and Peace
In this lesson, we will discuss

three other collective rights:
the right to development, the
right to a healthy environment,
and the right to peace.
UN Photo #405804 by Olivier Chassot.
Section 7.1 Introduction • Describe the content of the right to development.
Section 7.2 The Right to Development • Describe the content of the right to healthy environment.
Section 7.3 The Right to a Healthy • Describe the content of the right to peace.
Environment • Understand the difficulties associated with enforcing
Section 7.4 The Right to Peace and implementing these rights.
• Appreciate the impact of the theoretical perspectives
discussed in Lesson 6 on the rights to development, a
healthy environment, and peace.
151
LESSON 7 | Collective Rights II: The Rights to Development, Environment, and Peace
In Manatuto, Timor-Leste, a farmer uses a shovel to prepare field to later plough with buffalo before planting the rice crop.
23 April 2009. UN Photo #389868 by Martine Perret.

In Lesson 6, we introduced the concept of collective
rights and examined the content of the only group right that
is formally included in the international bill of human rights:
the right to self-determination. In this lesson, we will discuss
three other collective rights: the right to development, the
right to a healthy environment, and the right to peace.

videos/200/lesson-7-collective-rights-ii-
the-rights-to-development-environment-
and-peace/>.
152
Each of these third-generation rights has received some recognition under international law. The African Charter
on Human and Peoples’ Rights, for example, recognizes all three. But none are included in a binding treaty at the UN
level, and many observers still question whether they are or should be rights at all:
“Economic development, the protection of the environment, the

common heritage of mankind and peace: are these concepts
‘rights’ in any meaningful sense? They can, and should, be
objectives of social policy. They may be items in a political
programme. However, they are certainly not legally enforceable
claims. Most people no doubt prefer peace. But if one’s country
is at war, it is certain that there is no legally enforceable ‘right
to peace.’ Naturally, it would be possible to define ‘rights’ in
such a way as to include all desirable objectives of social policy,
and in that event, the ‘new human rights’ would become ‘rights’
by virtue of that definition. But this would be to distort the
ordinary meaning given to the term ‘human rights’ and, more
seriously, would run together goals which enlightened humanity
ought to pursue with claims which are already protected
by international law … If one wishes to see some objective
achieved — a clean and healthy environment, for example —
it is tempting to say that this is a right to which we are all
entitled. But it is not a good idea to take wishes for reality.”1
As you read through this lesson, try to keep in mind the issues raised in Lesson 6’s discussion of theoretical
perspectives on group rights. Ask yourself in each case why proponents might believe that recognizing a group right
is the best way to protect these important values. What is added by the use of rights language? Why are individual
rights not enough? Why have these rights not been included in a binding UN treaty? Are they “desirable objectives of
social policy” rather than “rights”, as the author quoted above argues?
Section 7.2 The Right to Development
Development and human rights
The right to development is among the most widely discussed, promoted, defended, and criticized of the
collective rights. It has functioned as one of the primary hinges in the conflict between global North and global South,
and its content and implications have been the subject of extensive — and sometimes quite heated — debate. While
suggestions of the important linkages between human rights and development have been around for some time, it is
only fairly recently that the international community has recognized a full-fledged collective right to development. It
is this notion that development is a legally enforceable right that has stirred up such a storm.
“Development”, in this context, refers broadly to the process of economic, social, and cultural growth, and can
occur on an individual, group, national, regional, or international level (although generally speaking, the term is used
in reference to States). Historically the concept of development was viewed almost exclusively in economic terms,
with “progress” measured by increased income or Gross Domestic Product (GDP). In recent years, however, the
notion has expanded to include non-economic dimensions such as health, education, environmental protection, and
gender equality. This shift is partially reflected in the move from speaking of development to speaking of sustainable
1) A.H. Robertson, Human Rights in the World, J.G. Merrills, ed. (Third Edition) (Manchester: Manchester University Press, 1989), 255–259.
153
development — the idea that development cannot focus solely on achieving greater levels of income, but must also
be respectful of human and environmental well-being and be maintainable over long periods of time.
Human rights and development are linked in many ways, and are often mutually reinforcing. From a human rights
perspective, development is important because increased collective capacity — economic, social, and political —
can lead to increased rights protection. Maintaining a well-functioning economy, eradicating poverty, promoting
education, and improving the health and welfare of the people — all components of development — are essential for
fulfilling individual human rights. Without a certain degree of material security and collective development, a State
will not be in a position to aid individuals and protect their human rights. Indeed, as the first World Conference on
human rights put it: “The achievement of lasting progress in the implementation of human rights is dependent upon
sound and effective national and international policies of economic and social development.”2
Conversely, from a development perspective, human rights is important because increased individual capacity
(economic, social, and political) is correlated with increased development. Promoting each individual’s economic
security, education, civil, and political engagement, and health and well-being — all goals of human rights — is essential
for national development. Without ensuring the material, physical, and political security of individuals, a society will
find it difficult to prosper.
Nobel Prize–winning economist Amartya Sen famously described the linkages between development and human
rights by characterizing development as both the means and ends of freedom:
“[My approach] is mainly an attempt to see development as

a process of expanding the real freedoms that people enjoy.
In this approach, expansion of freedom is viewed as both (1)
the primary end and (2) the principal means of development.
They can be called respectively the ‘constitutive role’ and the
‘instrumental role’ of freedom in development. The constitutive
role of freedom relates to the importance of substantive
freedom in enriching human life. The substantive freedoms
include elementary capabilities like being able to avoid such
deprivations as starvation, under-nourishment, escapable
morbidity and premature mortality, as well as the freedoms
that are associated with being literate and numerate, enjoying
political participation and uncensored speech and so on. In this
constitutive perspective, development involves expansion of
these and other basic freedoms. Development, in this view, is
the process of expanding human freedoms, and the assessment
of development has to be informed by this consideration.”3
Of course, not everyone agrees that development and human rights are complementary. Among the “major
criticisms directed at human rights by development specialists” are “the claim that human rights are political, that
they are unrealistic, that they are abstract and incapable of practical application, that they cannot cope with notions
of change over time, and that an emphasis on law does little to help the poor”.4 Human rights advocates have been
2) The Proclamation of Teheran, para. 13, in Final Act of the International Conference on Human Rights, UN Doc. A/CONF.32/41, 1968.
3) Amartya Sen, Development as Freedom (New York: Knopf, 1999), 35.
4) Philip Alston and Mary Robinson, “The Challenges of Ensuring the Mutuality of Human Rights and Development Endeavours,” in Human Rights and
Development: Towards Mutual Reinforcement, Philip Alston and Mary Robinson eds. (New York: Oxford University Press, 2005), 5 (describing criticisms
by development specialists).
154
equally critical of development work, charging that it focuses much too heavily on economic growth at the expense of
social and community work, and that the lack of an integrated human rights perspective can lead development experts
to solve one problem by creating others.
Development and human rights are closely linked. And it is clear that, in spite of their tensions, they are often
complementary. But how did development become a right in and of itself?
History of the right to development
The roots of the right to development can be traced back to the founding documents of the international human
rights system. Under the UN Charter, Member States agreed to “promote social progress and better standards of life
in larger freedom” and “to achieve international cooperation in solving international problems of an economic, social,
cultural or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental
freedoms for all without distinction as to race, sex, language or religion”.5 The UDHR, too, contains a number of
provisions that pertain to the right to development, such as the right to an adequate standard of living and the right
to a social and international order in which human rights and fundamental freedoms can be fully realized.6 These
provisions implied from the outset that development was important for achieving human rights protection. However,
they never explicitly guaranteed a right to development as such.
Only very recently has a right to development emerged out of the blending of human rights and development
practice. The first explicit mention of such a right came during the 1970s in the context of the New International
Economic Order (NIEO), a set of policies advocated by a coalition of third-world States. The NIEO called for all
countries to eliminate injustice and inequality among nations, and sought to enact a number of policies that would aid
in the development of the global South (including programmes intended to redistribute wealth unfairly concentrated
in the global North and mandating reparations for the evils of colonialism).7 In some sense, the NIEO positioned
the right to development as the economic dimension of the right to self-determination: the former colonies had
attained political independence, but were still bound to their past by dependency, poverty, and exploitative economic
relationships.
The Commission on Human Rights’ Resolution 4 of 1977 was the first official document to formally recognize
the right to development at the international level.8 The first legally binding document to recognize the right was the
African Charter on Human and Peoples’ Rights of 1981. The key UN instrument on the subject — the UN “Declaration
on the Right to Development” — was adopted in 1986.
The birth of the right to development in the NIEO, and its early inclusion in the African Charter demonstrate its
importance for the global South. Lack of support — or outright opposition — by the global North is evident in the
voting record of the General Assembly: the “Declaration on the Right to Development” was adopted with 146 votes
in favour, eight abstentions (mainly from Western industrialized States), and only one country — the United States —
opposed.9
5) Charter of the United Nations.

6) Universal Declaration of Human Rights, Art. 28.
7) See: E/CN.4/1334 (1978), Report of the Secretary General, “The International Dimensions of the Right to Development as a Human Right in Relation
with Other Human Rights Based on International Cooperation, Including the Right to Peace, Taking Into Account the Requirements of the New
International Economic Order and the Fundamental Human Needs”.
8) Commission on Human Rights Resolution 4 (XXXIII), 21 February 1977.
9) The eight abstaining countries were: Denmark, Finland, Federal Republic of Germany, Iceland, Israel, Japan, Sweden, and the United Kingdom.
155
In the following years, the right to development has become a part of the human rights system — although
it remains controversial, as we shall see — and the last two decades have seen increasing amounts of activity
surrounding its implementation. In 1993, a unanimous General Assembly finally brought international consensus on
the existence of the right to development when it adopted the “Vienna Declaration and Programme of Action”, which
reaffirmed the “right to development as established in the declaration, as a universal and inalienable right and an
integral part of fundamental rights”.10 The Commission on Human Rights (now Human Rights Council) established
an Intergovernmental Working Group on the Right to Development in 1998, which since that time has continued to
monitor, review, and advise the Council on the promotion and implementation of the right to development. In 2004,
the Commission established a High-Level Task Force on the Implementation of the Right to Development, an expert
body that assists the Working Group and provides advice and information to other relevant actors, including the
Council.
From its birth in the NIEO to its current status as quasi-international law, the fortunes of the right to development
have risen and fallen with changing political times. As is evident from States’ shifting support for the right and their
disagreements about what it should entail, material and geopolitical concerns have often dominated the debate. In
particular, arguments over the role of redistribution of wealth and foreign aid in the development process have been
front and centre. As you read through the rest of this lesson, keep in mind the international political implications of
recognizing the right to development. Why might States support or oppose it at a given time in world history? What
do these explicitly political machinations tell us about human rights?
The collective right to development has now been recognized as a part of the international human rights
system — although it has yet to be included in a legally enforceable treaty at the UN level. But what is the “right to
development”, exactly? What is its content? Who can enforce it? What duties does it entail?
Content of the right to development
Despite all of the recent conferences, publications, and expert committee reports, the scope of the right to
development remains murky. As Professor Makau Mutua wrote, “the Declaration on the Right to Development has
been mired in a normative swamp, unable to claim a definitive jurisprudence or an academic consensus on its
meaning and contours”.11 So what do we know about the right to development?
According to Article 1 of the “Declaration on the Right to Development”:
“The right to development is an inalienable human right by

virtue of which every human person and all peoples are entitled
to participate in, contribute to, and enjoy economic, social,
cultural and political development, in which all human rights
and fundamental freedoms can be fully realized.”12
Notice that Article 1 addresses the right to development both to individuals (“every human person”) and to
groups (“all peoples”), creating a sort of two-tiered right with application at both the individual and collective level.
Recalling the right to self-determination, these two tiers might be seen as the “internal” and “external” dimensions
of the right to development — the internal dimension focusing on the rights of individuals within the State, and the
external dimension focusing on the rights of States within the international community.13
10) “Vienna Declaration and Programme of Action”, A/CONF.157/23, 1993.

11) Makau Mutua, “Standard Setting in Human Rights: Critique and Prognosis”, Human Rights Quarterly, vol. 29, 2007, 563.
12) “Declaration on the Right to Development”, A/RES/41/128, 1986, Art. 1.
13) Margot E. Salomon, London School of Economics Law, Society and Economy Working Papers 16/2008, “Legal Cosmopolitanism and the Normative
Contribution of the Right to Development”, 2008, 2.
156
This definition is supplemented by the preamble, which emphasizes the idea of development as a process:
“Development is a comprehensive economic, social, cultural

and political process, which aims at the constant improvement
of the well-being of the entire population and of all individuals
on the basis of their active, free and meaningful participation
in development and in the fair distribution of benefits resulting
therefrom.”14
According to the preamble, simple economic development is not enough — “development” here is a comprehensive
social, cultural, economic, and political process. Likewise, development that benefits only the wealthy while widening
the gap between rich and poor is not adequate — it must aim at constantly improving the well-being of the entire
population.
Development, then, is addressed to both individuals and groups, is a process, and includes economic, social,
cultural, and political aspects. But what does the right to development actually entail? According to the “Declaration
on the Right to Development”, it includes:
• Full sovereignty over natural resources;
• Self-determination;
• Popular participation in development;
• Equality of opportunity; and
• The creation of favourable conditions for the enjoyment of other civil, political, economic, social, and cultural
rights.15
On the Content of the Right to Development »

“The 1986 Declaration … specifies that the nature of the right that is claimed as a human right
in Article 1, is a particular process of development. There may be many different ways that a
country can develop — a sharp increase in GDP or rapid industrialization or export-led growth
— which may result in growing inequalities, regional or international disparity, fluctuating
employment with little social security, together with a concentration of wealth and economic
power, without a commensurate reduction in poverty or improvement in social indicators of
education, health, gender development or environmental protection. More importantly, it is
possible for a country to grow in conventional terms with no improvement in the fulfillment of
civil and political rights or of equity and social justice. These processes of development would
not be regarded as part of the process of development protected by the 1986 Declaration, as
objects of claim as a human right. It is only that process of development in which all human
rights and fundamental freedoms can be fully realized which can be the entitlement of every
human person as universal human right.”
–Second Report of the Independent Expert (Arjun Sengupta) to the Human Rights
Commission, A/55/306, 17 August 2000, para. 15.
14) A/RES/41/128, 1986, Preamble.

15) Ibid., Arts. 1–6, 8.
157
Interestingly, most of the “rights” contained in the declaration are framed as duties of the State, rather than
as rights of an individual or group. This construction makes the positive content of the right difficult to identify.
The primary thrust of these duties involves ensuring that all people have access to the conditions necessary for
the full enjoyment of their civil, political, economic, social, and cultural rights. But this is an extremely open-ended
list that could be interpreted as a “right to everything”.16 Indeed, it is easy to imagine an expansive inventory of
obligations that could be defended as “necessary for development”. At the “internal” level, support for development
might come in the form of providing education, safety from crime, food, shelter, and phone and Internet lines;
promoting government transparency and accountability; and eliminating corruption. At the “external” level, support
for development could range from developing cooperative professional training programmes; to providing monetary
or technical assistance; to reforming the system of international economic governance to be more development
friendly.
The most recent attempt to define specific content for the right to development came from the United Nations
“Millennium Declaration” of 2000, which outlined a list of eight Millennium Development Goals (MDGs). The
“Millennium Declaration” expressed the commitment of the UN “to making the right to development a reality for
everyone and to freeing the human race from want”.17 Its eight goals, which set a target date of 2015, are:
• Ending poverty and hunger;
• Universal education;
• Gender equality;
• Child health;
• Maternal health;
• Combating HIV/AIDS;
• Environmental sustainability; and
• Global Partnership for development.
While they help to define the right to development by focusing attention on a more limited set of factors, the
MDGs remain extremely open-ended. Furthermore, the MDGs were not intended to be an exhaustive list of everything
necessary to fulfil the right to development. So the problem of theoretically unlimited obligations remains.
Because of the potentially far-reaching implications of the right to development, discussions have focused on
articulating its limits and narrowing and specifying the types of rights and duties that it entails. The battle over what
duties it might contain, and to whom they might be addressed, is far from over.
The two-tiered formulation of the right to development — which is held by “every human person” as well as “all
peoples” — implies a corresponding division of responsibilities among multiple duty-holders. In situations where the
right-holder is an individual or a group of individuals, then the State holds the duty to respect, protect, and fulfil
the right. The burden is on each national government to create and maintain the internal conditions necessary for
growth. This relatively uncontroversial reading parallels the standard rights/duties framework of individual human
rights.
16) Felix Kirchmeier, “The Right to Development — Where do we stand?” (Geneva: Friederich Ebert Stiftung, 2006), 4.
17) A/RES/55/2, 2000.
158
However, in situations where the right-holder is the State itself, as representative of the people, the duty to
respect, protect, and fulfil the right to development must fall on the international community, or some subset thereof.
Reading the right to development as a right between States, in which wealthier nations and/or the international
community as a whole have a duty to assist their poorer neighbours, is much more controversial. The declaration lends
support to the idea that the right to development creates duties between States; Article 6(1), for example, calls on
States to “co-operate with a view to promoting, encouraging, and strengthening universal respect for and observance
of all human rights and fundamental freedoms”.18 Calling on States to cooperate, though, is a far cry from mandating
direct intervention and assistance. Developed States have fought to contain the more expansive reading, arguing
that the right to development does not necessarily entail a “right to development assistance” that would require
industrialized countries to provide financial and technical assistance to the less developed world.19
On the other side, a group of African States has insisted that rewriting international trade rules and debt
forgiveness are a crucial part of implementing the right to development.20 Cuba, on behalf of the Non-Aligned
Movement, has argued that foreign aid and technology transfer to developing States are a necessary piece of the
puzzle.21 Scholars like Margot Salomon have argued that the right to development implies that wealthy States
have a responsibility “to demonstrate prima facie that their policies and decisions — whether taken individually or
collectively — are not hurting the world’s poor”.22
As it stands, these issues have not yet been resolved, and the debate over whether the obligations of the
international community (in reality, the obligations of the wealthy developed States) should be framed broadly or
narrowly is likely to continue. In the meantime, “the murky status of the right to development has ensured that it is
not likely to be encoded in a binding treaty any time soon”.23
The Importance of the Right to Development »

“The right to development is a fundamental right, the precondition of liberty, progress,
justice and creativity. It is the alpha and omega of human rights, the first and last
human right, the beginning and the end, the means and the goal of human rights, in
short it is the core right from which all the others stem ...
In reality the international dimension of the right to development is nothing other than
the right to an equitable share in the economic and social well-being of the world.
It reflects an essential demand of our time since four fifths of the world’s population
no longer accept that the remaining fifth should continue to build its wealth on their
poverty.”
–Mohammed Bedjaoui
from “The Right to Development”
18) “Declaration on the Right to Development”, Art. 6(1).

19) Henry J. Steiner, Ryan Goodman, and Philip Alston, International Human Rights in Context: Law, Politics, Morals (Third Edition) (New York: Oxford
20) A/HRC/4/47, UN Human Rights Council, “Report of the Working Group on the Right to Development on its Eighth Session,” (Geneva: 26 February — 2
March 2007).
21) Ibid.
22) Margot E. Salomon, London School of Economics Law, Society and Economy Working Papers 16/2008, “Legal Cosmopolitanism and the Normative
Contribution of the Right to Development”, 2008, 9.
23) Makau Mutua, 574.
159
Protected from external dangers, an elephant family roam peacefully in the Mikumi
National Park in Tanzania. 1 January 1980. UN Photo #149107 by B Wolff.
Section 7.3 The Right to a Healthy Environment
The environment and human rights
The right to a clean and healthy environment is the third example of a collective human right that has been
recognized in some international treaties and other instruments. As we will see, however, its recognition and
enforcement under international law remains patchy at best.
From a human rights perspective, a clean and healthy environment is important because ecological degradation
can have a profoundly negative effect on human health and welfare. Ensuring a healthy environment is critical for
individuals and groups to survive and to thrive. Many civil, political, economic, social, and cultural rights can be
imperilled by a toxic or unhealthy environment, including:
• The right to life;
• The right to health;
• The right to water;
• The right to food;
• The right to housing and shelter;
• The right to culture; and
• The right to work.24
Conversely, from an environmental perspective, human rights are important because they give individuals the
power to prevent environmental degradation. Without the right to participate in decision-making processes, freedom
of association, freedom of speech, and access to justice, people cannot protect their environment from powerful
polluters or self-interested actors. Political freedom, access to information, development, economic security, and
physical health enable individuals and groups to speak, to act, and to think beyond their immediate needs.
24) See: OHCHR, “Report of the Office of the United Nations High Commissioner for Human Rights on the Relationship between Climate change and
Human Rights”, A/HRC/10/61, 15 January 2009.
160
Human rights and the environment are also related from a distributional or equity perspective. Both on an
“external” (inter-State) and “internal” (inter-community) level, minorities, indigenous populations, and the poor
are often disproportionately saddled with the effects of environmental pollution.25 Distribution is also problematic
from an inter-generational perspective. A depleted environment harms not only the people of today, but future
generations as well. Species, resources, and ecosystems, once gone, are gone for good.
The relationship between environmental protection and human rights can also be antagonistic. Protecting human
rights may require environmentally destructive activity. For example, fulfilling the right to food may entail destroying
forest to create farmland. Likewise, protecting the environment may require action that infringes on human rights.
For example, safeguarding the ecological diversity of a wetland may involve prohibiting the use of pesticides that
kill mosquitoes in the name of malaria prevention, and protecting an endangered species may involve prohibiting
hunting activities that are crucial for the cultural or economic survival of rural communities.
More fundamentally, some observers worry that seeing environmental protection through a human rights
lens will lead to the subordination of environmental values to human needs, and vice versa. As a result, some
scholars have rejected the linkages between environmental protection and human rights, seeing the two regimes as
fundamentally incompatible.
More common than the “always complementary” and “always in conflict” perspectives is a third view, described
by Professor Dinah Shelton as the dominant one in current law and policy:
“[This view] sees human rights and environmental protection

as representing different, but overlapping, societal values. The
two fields share a core of common interests and objectives,
although obviously not all human rights violations are
necessarily linked to environmental degradation. Likewise,
environmental issues cannot always be addressed effectively
within the human rights framework, and any attempt to force
all such issues into a human rights rubric may fundamentally
distort the concept of human rights. This approach thus
recognizes the potential conflicts between environmental
protection and human rights, but also the contribution each
field can make to achieving their common objectives.”26
Strong support for this view of the interconnections between the environment and human rights has led to a
burgeoning movement to add a new human right — a “right to environment” or “right to a healthy environment” —
to the catalogue of international human rights law.
History of the right to environment
Contemporary international environmental law emerged in the late 1960s, and over the past half-century,
international and regional treaties have created a growing network of international environmental norms and
enforcement mechanisms. International conventions regulate the depletion of the ozone layer; marine, river, and air
pollution; trade in endangered species; disposal of hazardous wastes; depletion of fisheries; biodiversity; and many
other topics of concern to the international community. However, in all of these treaties, human rights are mentioned
only in passing, if at all.
25) See: Clifford Rechtschaffen and Eileen Gauna, Environmental Justice: Law, Policy & Regulation (Durham: Carolina Academic Press, 2003).
26) Dinah Shelton, “Human Rights, Environmental Rights, and the Right to Environment”, Stanford Journal of International Law, vol. 28, 1991, 105.
161
On the Importance of the Right to Environment »

“The environment is man’s first right.”
–Ken Saro-Wiwa
from “Stand by Me and the Ogoni People”
Saro-Wiwa and eight other activists were hanged in Nigeria in 1995, ostensibly for
incitement to murder. However, many believe that they were executed for raising
environmental concerns about Royal Dutch Petroleum’s oil development activities in
their ancestral Ogoni lands. For more, see: Ike Okonta and Oronto Douglas, Where
Vultures Feast: Shell Human Rights and Oil in the Niger Delta, 2003.
Likewise, environmental rights were not explicitly mentioned anywhere in the international bill of human rights.
The ICESCR does contain some implicit references to environmental issues — Article 1 protects the “right of peoples
to self-determination and to freely dispose of their natural wealth and resources”; Article 11 mandates that countries
must develop “programmes to improve methods of production, conservation and distribution of food; disseminating
knowledge of principles of nutrition; measures to achieve the most efficient development and utilization of natural
resources; equitable distribution of world food supplies”; and Article 12 calls for “steps to be taken for the …
improvement of all aspects of environmental and industrial hygiene”. The Committee on Economic, Social and
Cultural Rights has also issued a general comment finding a “right to water” as a derivative of Articles 11 and 12.27
But nowhere was a clean and healthy environment given the status of an independent human right.
The links between human rights and environmental protection first began to be recognized in the 1960s and
1970s.28 At that time, environmental awareness experienced an international renaissance, and people began to see
ecological health as important both for its own sake as well as for the realization of human rights and fundamental
freedoms.
Since that time, international instruments have taken several different approaches to linking the environment
and human rights.29 First, many instruments have focused on the effects of environmental damage on human health.
Environmental health is seen as important because of its impact on human rights: pollution and other forms of
ecological damage should be prevented because they might negatively affect human well-being. This view was
reflected in the “Stockholm Declaration on the Human Environment” in 1972, the first international document that
articulated the right to a healthy environment:
“Man has the fundamental right to freedom, equality and

adequate conditions of life, in an environment of a quality that
permits a life of dignity and well-being, and he bears a solemn
responsibility to protect and improve the environment for
present and future generations.”30
27) E/C.12/2002/11 (2002), Committee on Economic, Social and Cultural Rights, “General Comment No. 15”.
28) The publication of Rachel Carson’s The Silent Spring in 1962 is frequently cited as a landmark in bringing environmental concerns into the public eye,
and a forerunner to the first Earth Day, which took place in 1970.
29) For more discussion of the evolution of approaches to human rights and environmental protection, see: Dinah Shelton, “Environmental Rights”, in
Peoples’ Rights, Philip Alston, ed. (New York: Oxford University Press, 2001), 187–189; and Right to Environment, “Changes in Approach”.
30) United Nations Environment Programme, “Stockholm Declaration on the Human Environment”, 1972, Principle 1.
162
The “environmental health for human health” approach can also be seen in other treaties from this period. The
1989 Convention on the Rights of the Child, for example, refers to the need to consider environmental protection in
respecting children’s right to health.31 The African Charter on Human and Peoples’ Rights proclaims that “all peoples
have the right to a general satisfactory environment favorable to their development”.32 The Additional Protocol
to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights declares that
“everyone shall have the right to live in a healthy environment”.33 A 1990 General Assembly resolution reaffirmed
the link between environmental protection and human rights by asserting that “all individuals are entitled to live in
an environment adequate for their health and well-being”.34 Recently, this approach has also crept into the realm
of international humanitarian law, with the Rome Statute establishing the International Criminal Court (ICC) listing
wanton destruction of the environment as a war crime subject to individual international criminal liability.35
A second approach to linking human rights and environmental protection proceeds from the environmental
perspective. According to this view, sometimes known as the “rights-based approach to environmental protection”,
human rights — particularly procedural rights like the right to information and access to justice — are crucial because
without them people cannot take action to protect the environment. On the other hand, where people are empowered
with adequate information, opportunities to participate in decision-making processes, and access to justice, they can
use these tools to improve their environment and prevent its exploitation. The 1992 “Rio Declaration on Environment
and Development” is illustrative:
“Environmental issues are best handled with participation of all

concerned citizens, at the relevant level. At the national level,
each individual shall have appropriate access to information
concerning the environment that is held by public authorities,
including information on hazardous materials and activities
in their communities, and the opportunity to participate in
decision-making processes. States shall facilitate and encourage
public awareness and participation by making information
widely available. Effective access to judicial and administrative
proceedings, including redress and remedy, shall be provided.”36
The rights-based approach to environmental protection was also taken in Agenda 21, adopted in 1992;37 the
1998 United Nations Economic Commission for Europe’s Convention on Access to Information, Public Participation in
Decision-making and Access to Justice in Environmental Matters, more commonly known as the Aarhus Convention;
ILO Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries;38 and in environmental
treaties like the Protocol on Environmental Protection on the Conservation of Antarctic Fauna and Flora,39 the
Framework Convention on Climate Change,40 and the Convention on Biological Diversity,41 to name a few.42
31) Convention on the Rights of the Child, 1989, Art. 24.

32) African Charter on Human and Peoples’ Rights, Art. 27.
33) Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (1988), Art. 11.Z AQ.
34) A/45/40, 1990, The Need to Ensure a Healthy Environment for the Well-Being of Individuals, General Assembly Res. 45/94, UN General Assembly,
45th Sess., Supp. No. 49A, at 178, Art. 1.
35) A/CONF.183/9. Rome Statute of the International Criminal Court, Art. 8(2)(b)(iv), July 17, 1998. See: Jessica C. Lawrence and Kevin Jon Heller,
“The First Ecocentric Environmental War Crime: The Limits of Article 8(2)(b)(iv) of the Rome Statute”, Georgetown International Environmental Law
Review, vol. 20, 2007. For further discussion of international humanitarian and criminal law, see Lessons 12 and 13.
36) “Rio Declaration on Environment and Development”, 1992, Principle 10.
37) Agenda 21, Chapter 23, 1992.
38) ILO Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries, Geneva, 27 June 1989), Arts. 2, 4, 6, 7, 12, 15, and 30.
39) Protocol on Environmental Protection on the Conservation of Antarctic Fauna and Flora, 1991, Annex II.
40) Framework Convention on Climate Change,1992, Arts. 4 and 6.
41) Convention on Biological Diversity, Arts. 13 and 15.
42) See: United Nations Environment Programme and Office of the High Commissioner for Human Rights, “Background Paper No. 1”, Joint UNEP-OHCHR
Expert Seminar on Human Rights and the Environment (2002).
163
A third approach to linking the environment and human rights is to view human rights and environmental
protection as interdependent and indivisible, and thus reposition environmental well-being as an independent human
right of its own. Here environmental protection is seen as a right in and of itself, as well as a precondition for the
exercise of other human rights like the right to health. This approach was taken by the 1994 UN “Draft Declaration
of Principles on Human Rights and the Environment”, which States that: “Human rights, an ecologically sound
environment, sustainable development and peace are interdependent and indivisible.”43 It has become fully evident
in treaties like the 2007 UN “Declaration on the Rights of Indigenous Peoples”, which proclaims: “Indigenous peoples
have the right to the conservation and protection of the environment.”44
Content of the right to environment
The “Draft Declaration of Principles on Human Rights and the Environment” sets out an extensive list of concrete
rights contained within the framework of the right to environment. These include rights intended to protect human
health and well-being, rights intended to promote procedural justice, and rights that protect the environment for its
own sake. For example:
• The right to “freedom from pollution, environmental degradation and activities that adversely affect the
environment, threaten life, health, livelihood, well-being or sustainable development within, across or
outside national boundaries”;
• The right to “protection and preservation of the air, soil, water, sea-ice, flora and fauna, and the essential
processes and areas necessary to maintain biological diversity and ecosystems”;
• The right to “the highest attainable standard of health”;
• The right to “safe and healthy food and water”;
• The right to “a safe and healthy working environment”;
• The right to “adequate housing, land tenure and living conditions”;
• The right to “information concerning the environment”;
• The right to “hold and express opinions and disseminate ideas and information regarding the environment”;
• The right to “environmental and human rights education”; and
• The right to “effective remedies and redress in administrative or judicial proceedings for environmental
harm or the threat of such harm”.45
The Draft Declaration is still a draft — it has not yet been adopted, and has no legal force.
International and regional human rights bodies have further elaborated the content of the right to environment.
While the right to environment is not contained in any of the major UN human rights documents, treaty bodies like
the Human Rights Commission and the Committee on Economic, Social and Cultural Rights46 have recognized the
environmental dimensions of rights such as the right to livelihood, control over natural resources, culture, and water.
Regional bodies like the European Court of Human Rights,47 the African Commission on Human and Peoples’ Rights,
and the Inter-American Court of Human Rights have begun to develop an international jurisprudence linking human
43) “Draft Declaration of Principles on Human Rights and the Environment”, Principle 1.
44) United Nations “Declaration on the rights of Indigenous Peoples”, Art. 29.
45) “Draft Declaration of Principles on Human Rights and the Environment”, Arts. 5–20.
46) See: Committee on Economic, Social and Cultural Rights General Comments Nos. 12 and 14, clarifying that the rights to food and health imply State
responsibility to maintain appropriate environmental policies.
47) The Council of Europe, however, has rejected proposals to codify an explicit right to a healthy environment in the European Convention on Human
Rights.
164
rights and the environment. In one famous decision, the African Commission declared in 2001 that Nigeria had
violated the African Charter’s right to a satisfactory environment:
“The right to a general satisfactory environment … imposes

clear obligations upon a government. It requires the State to
take reasonable and other measures to prevent pollution and
ecological degradation, to promote conservation, and to secure
an ecologically sustainable development and use of natural
resources …
Government compliance … must also include ordering or at

least permitting independent scientific monitoring of threatened
environments, requiring and publicizing environmental and
social impact studies prior to any major industrial development,
undertaking appropriate monitoring and providing information
to those communities exposed to hazardous materials and
activities and providing meaningful opportunities for individuals
to be heard and to participate in the development decisions
affecting their communities.”48
Despite these materials that affirm — directly or indirectly — the existence of a right to a clean and healthy
environment, there remains a great deal of uncertainty as whether it can truly be supported as a freestanding
collective human right. There is no mention of a right to environment in any of the legally binding human rights
treaties at the global level. As a result, supporters must derive the right to environment from an amalgamation of
articles in regional agreements and non-binding declarations, along with the implications of individual rights like the
right to health.
Moreover, many argue that the right to environment is not a collective right because it is reducible to its
individual rights components. Procedural justice and health, the two most commonly cited components of the right
to environment, are not group-based rights. As Philip Alston notes:
“It is not surprising then that the vast majority of scholarly

assessments of the right to environment reach a negative
conclusion as to both the existence and the potential significance
of such a right. Instead, their focus is consistently on the
synergies which can be achieved by linking the two subject areas
in creative ways and by using existing human rights provisions in
both substantive and procedural ways to promote different parts
of the environmental agenda.”49
If the right to environment is not a right of its own, but merely a shorthand for describing how environmental
values fit into the human rights agenda, and vice versa, what does this mean for the movements to link the two
areas together? What value is lost by re-imagining the right to environment as a right of individuals, attached to their
rights to health, life, and political access, rather than as a right of peoples?
48) The Social and Economic Rights Action Center and the Center for Economic and Social Rights v. Nigeria, African Commission on Human and Peoples’ Rights,
Comm. No. 155/96, 2001, paras. 52–53.
49) Philip Alston, “Peoples’ Rights: Their Rise and Fall”, in Peoples’ Rights, Philip Alston, ed. (New York: Oxford University Press, 2001), 282–283.
165
These questions about the existence and nature of the collective right to environment are unlikely to find definitive
answers in the near future. Confusion over the right’s legal and conceptual status will not aid its implementation.
However, as we saw with the right to development and will discuss further below, the right to environment is not the
only collective right with definitional and ontological problems.
Writing Exercise 7: Environmental Planning »

You have been hired as a consultant for a new NGO called Environmental Rights Now (ERN).
ERN’s goal is to get the peoples’ right to a healthy environment included in a binding human
rights treaty at the global level. They have asked you to assist them in developing a strategic
plan for their work.
• What do you think are the biggest obstacles to including the right to a healthy
environment in a binding and legally enforceable treaty at the global level?
• Do you think that these obstacles can be overcome? Why, or why not?
• How do you think your NGO should spend its available time and resources?
Section 7.4 The Right to Peace
Peace and human rights
It is easy to draw connections between peace and the protection of human rights. In times of conflict, the civil,
political, economic, social, and cultural rights of individuals are often compromised. Resources that would otherwise
go to the fulfilment of rights are redirected. Freedom is subordinated to security. As former Director-General Federico
Mayor of the United Nations Educational, Scientific, and Cultural Organization (UNESCO) wrote:
“Lasting peace is a prerequisite for the exercise of all human

rights and duties. It is not the peace of silence, of men and
women who by choice or constraint remain silent. It is the
peace of freedom — and therefore of just laws — of happiness,
equality, and solidarity, in which all citizens count, live together
and share.”50
Likewise, human rights promote international peace and security. Respect for human rights can help to create an
environment in which people are able to exercise their rights, in which governments are respectful of individuals, and
in which different racial, ethnic, linguistic, gender, and religious groups enjoy conditions of equality: an environment
in which external and internal conflict are less likely. As the Preamble to the UDHR States: “The recognition of
the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of
freedom, justice and peace in the world.”51
50) Federico Mayor, former Director-General of the United Nations Educational, Scientific and Cultural Organization, “The Human Right to Peace”, UNESCO
Doc. SHS-97/WS/6, 1997.
51) Universal Declaration of Human Rights, Preamble.
166
Residents participate in the observance of

the International Day of Peace, organized by
the Southern Sudanese Peace Commission,
United Nations Mission in Sudan, and the
War Child Holland. 22 September 2008. UN
Photo #198163 by Tim McKulka.
Peace in this context includes both negative aspects (the absence of war, conflict, and instability) that will
prevent the violation of human rights, and positive aspects (the creation of conditions of equality, social justice, and
human rights protection) that will prevent violence and recourse to the use of force.
The UN system is dedicated to protecting and preserving international peace, and the prohibition of the use
of force contained in the UN Charter contributes directly to this end. As with some of the other collective rights
discussed in this lesson, however, the intimate relationship between human rights and peace does not necessarily
translate into the existence of a collective right to peace as such. Whether such a right exists and the significance of
its impact, continue to be matters of debate.
History of the right to peace
The idea of a “right to peace” has been around for some time. The earliest mention of such a right can be found
in the preamble of the Japanese Constitution of 1946, which recognizes “that all peoples of the world have the right
to live in peace, free from fear and want” and binds Japan to “forever renounce war as a sovereign right of the nation
and the threat or use of force as means of settling international disputes”.52
The first mention of a collective right to peace in the UN system is found in the Commission on Human Rights
Resolution 5 of 1976. As with other group rights, this early assertion of the right to peace was pressed by a coalition
of socialist and developing States and formed a part of the NIEO movement (see discussion in Lesson 6). Following
the adoption of Resolution 5, there was a push for the recognition of a right to peace by the General Assembly. The
effort succeeded in 1978, when the UN General Assembly adopted the “Declaration on the Preparation of Societies
for Life in Peace”, affirming that: “Every nation and every human being, regardless of race, conscience, language or
sex, has the inherent right to life in peace.”53 This declaration focused primarily on urging governments to prepare
future generations for life in peace by discouraging racial hatred and the advocacy of violence and war, but did little
in the way of standard setting.
The next official recognition of the collective right to peace came in 1981 in the African Charter on Human and
Peoples’ Rights, Article 23 of which specifies: “all people shall have the right to national and international peace and
security”.54
52) Djacoba Liva Tehindrazanarivelo and Robert Kolb, “International Protection of the Right to Peace”, Max Planck Encyclopedia of Public International
Law, 2009.
53) A/Res/33/73, 1978, Principle 1.
54) African Charter on Human and Peoples’ Rights, 1981, Art. 23.
167
Fast on the heels of the African Charter came the UN “Declaration on the Right of Peoples to Peace”, which
solemnly proclaimed that “the peoples of our planet have a sacred right to peace” and “that the preservation of
the right of peoples to peace and the promotion of its implementation constitute a fundamental obligation of each
State”.55 The declaration’s adoption was bound up with concerns over nuclear conflict, and the idea that nuclear
disarmament may form a part of the content of the right to peace is supported by the Preamble, which States: “the
will and the aspirations of all peoples to eradicate war from the life of mankind and, above all, to avert a world-wide
nuclear catastrophe”. The “Declaration on the Right of Peoples to Peace” contains no specific obligations or rights
other than this broad programmatic Statement, and the exhortation that States should “do their utmost to assist in
implementing the right of peoples to peace through the adoption of appropriate measures at both the national and
international level”.
During the 1990s, the fight for recognition of a human right to peace was taken up by then-Director General
of UNESCO Federico Mayor. Largely through UNESCO’s efforts, discussions on the right to peace began again, and
several conferences and expert discussions were held. In 1997 Mayor issued a “Declaration of a Human Right to
Peace” in his capacity as Director General of UNESCO, calling on nations to eliminate the root causes of conflict
and focus on education as means of achieving international peace, and in 1998, a UNESCO-convened expert group
received a draft “Declaration on the Human Right to Peace as the Foundation of the Culture of Peace”, which had been
prepared by the Norwegian Institute for Human Rights. This draft declaration consisted of a number of provisions
notable for their ambition and lack of specificity, for example:
“Every human being has the right to peace, which is inherent

in the nature of the human person; it must be recognized,
respected and implemented without any discrimination in
either internal or international contexts by all States and other
members of the international community.
Violence in all its forms is intrinsically incompatible with the

right of every human being to peace; since inequalities,
exclusion and poverty are liable to lead to violations of
international peace and internal peace, the right of every
human being to peace requires the promotion of social justice
through appropriate national and international policies aimed at
sustainable human development.”56
At the meeting of experts, there was a heated debate over the draft declaration, which Canadian Senator
Douglas Roche describes as a battle between north and south:
“One European country after another either attacked or

expressed reservations about the right to peace and accused
Mayor of overstepping his mandate. Countries from the South
struck back, accusing the North of wanting to protect their arms
industries. At the end, Paraguay stated, ‘this rich discussion
shows that the culture of peace is the central issue … and that
the Human Right to Peace is needed for individuals and States.’
55) A/RES/39/11, 1984, Arts. 1–2.

56) UNESCO Doc. 154 EX/40, 1998, Annex II, paras. 3 and 4.
168
Noting that the debate split North and South, Paraguay added,
‘Perhaps peace is a greater concern in the South where scarce
resources are being diverted to war.’”57
In the end, the government experts significantly altered the original draft, removing all mention of the right to
peace from its operative provisions. The UN General Assembly adopted the resulting watered-down declaration and
Programme of Action on a Culture of Peace on 13 September 1999. This declaration spoke of “culture” rather than
“right”, and defined eight areas of action for developing an international culture of peace:
• Education;
• Sustainable economic and social development;
• Respect for human rights;
• Equality between men and women;
• Democratic participation;
• Understanding, tolerance and solidarity;
• Participatory communication and the free flow of information and knowledge; and
• International peace and Security.
In 2002, the General Assembly adopted a Resolution on the Promotion of the Right of Peoples to Peace, which
reaffirmed the 1984 “Right to Peace Declaration” and calls on States to promote international peace and security
through disarmament.58 Similarly, in 2003 and 2005 the General Assembly adopted a series of resolutions on the
Promotion of Peace as a Vital Requirement for the Full Enjoyment of All Human Rights by All.59
The 2003 Protocol to the African Charter on Human And Peoples’ Rights on the Rights of Women in Africa affirms
the right of all women “to a peaceful existence and the right to participate in the promotion and maintenance of
peace”.60
In the end, despite the linkages between peace and human rights, and the frequent reaffirmation of the existence
of a right to peace by the UN General Assembly, the right has not been included in any binding legal document at
the UN level. Moreover, Statements of the right to peace continue to be largely aspirational, and little work has been
done to clearly define its content.
Content of the right to peace
As mentioned above, there are suggestions that the content of the right to peace includes disarmament,
prohibition of aggression, and the creation of conditions that will prevent recourse to the use of force. Perhaps the list
of eight factors included in the “Declaration and Programme of Action on a Culture of Peace” can also be added to the
definition. The Spanish Society for the Advancement of International Human Rights Law, a group of Spanish scholars,
goes much further in their 2006 “Luarca Declaration on the Human Rights to Peace”, and would incorporate into the
right to peace everything from development, to employment, to protection of the environment and civil rights.61
57) Douglas Roche, The Human Right to Peace (Toronto: Novalis Press, 2003), 122–44.
58) UN General Assembly Res. 57/216, 2002.
59) UN General Assembly Res. 58/192, 2003; UN General Assembly Res. 60/163, 2005.
60) OAU Doc. CAB/LEG/66.6, 2003, Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa.
61) Spanish Society for the Advancement of Human Rights Law, “Luarca Declaration on the Human Right to Peace”, 2006.
169
Ultimately, the content of the right will be a function of the answer to the question: what is peace? If the concept
includes both a positive and negative dimension, where do its boundaries lie? Political scientist Johan Galtung has
argued that peace is the absence of “structural” as well as “direct” violence, and defined structural violence as the
“way that surplus is extracted from the lower levels [of society] and transferred upwards, making the higher levels
richer at the expense of the lower levels, producing the famous ‘gaps’ in development [that result in] often highly
differential morbidity and mortality rates between rich and poor countries, districts, and individuals”.62 If this is the
case, is peace just a code word for the fulfilment of all human rights? Can it ever be legally enforceable?
As a result of all this confusion, in recent years the right to peace has dropped somewhat off the map of
international human rights law. As Professor Philip Alston explains:
“The collective (peoples’) right to peace … does not have a clear

legal meaning and cannot be translated into meaningful action.
However, many individual rights can be exercised with the view
of defending peace …”63
Because of its lack of clarity and development, most observers agree that the collective right to peace is all but a
dead letter; the right to peace may be “a concept whose time had long since passed”.64
On the other hand, some — notably UNESCO under former Director-General Federico Mayor, former Pope John
Paul II, Senator Douglas Roche of Canada, and Judge Antônio A. Cançado Trindade of the International Court of
Justice — have continued to champion the right to peace. As Senator Roche wrote in 2005:
“The work already accomplished in the UN system to develop

the concept of the human right to peace is one of the world’s
best-kept secrets. The culture of war so pervades public opinion
that it has drowned out voices asserting that the human right
to peace is a fundamental right of every human being and is, in
fact, the major precondition for all human rights. The time has
come to emphasize that the peoples of the world have a sacred
right to peace.”65
In the end, whether the right to peace will become a binding obligation with an effective mechanism for
enforcement, while unlikely, remains to be seen.
Conclusion
In this lesson we have examined the rights to development, environment, and peace, each in isolation. It should
be evident, though, that these collective rights are all connected with one another. As Indian lawyer Clarence J. Dias
wrote:
“There is no peace where human rights are systematically

violated and where there is no development to bring about
poverty elimination. The absence of peace creates conditions
62) Johan Galtung, “Nonterritorial Actors and the Problem of Peace”, in The Creation of a Just World Order, Saul H. Mendlovitz, ed. (New York: The Free
Press, 1975), 151–152.
63) Vojin Dimitrijevic, “Human Rights and Peace”, in Human Rights: New Dimensions and Challenges, J. Symonides, ed. (Brookfield, VT: Ashgate
Publishing, 1998), 64.
64) Philip Alston, 279.
65) Douglas Roche, 122.
170
Arms are destroyed by fire during the “Flame of Peace” ceremony to signify the beginning of the country’s disarmament and
reconciliation process in Bouake, Côte d’Ivoire. 30 July 2007. UN Photo #149796 by Basile Zoma.
that make development difficult and that breeds massive and

widespread violations of human rights. Respect and promotion
of human rights, however, create an environment favorable to
both development and peace.”66
These rights, though they remain mostly aspirational in practice, protect important social --values and seek to
maintain an environment in which individual civil, political, economic, social, and cultural rights can be exercised. All
have received some recognition under international law. However, as we have seen, none are contained in a binding
treaty at the global level, and whether and to what extent they exist as binding collective human rights is open to
debate.
Partially, their contested status is bound up with the fact that each of these collective rights is the product of larger
geopolitical and ideological struggles. The rights to development, a healthy environment, and peace have arisen at
particular historical moments and out of particular social and political contexts. As such, is has been much more difficult
to ground them in the same theoretical bases as first- and second-generation rights. The future of these rights, like
their past, will likely be determined by the geopolitical climate in which they stand.
In the next three lessons, we will turn to a set of mixed group and individual rights regimes that protect the
human rights of “vulnerable groups” that have traditionally suffered increased instances of human rights abuses as
a result of their belonging to a group.
66) Clarence J. Dias, “Human Rights, Development, and Environment”, in The Universal Declaration of Human Rights: Fifty Years and Beyond, Yael
Danieli, Elsa Stamatopoulou, and Clarence J. Dias, eds. (Amityville, NY: Baywood Publishing Company, 1999), 395.
171
Further reading
• Georges Abi-Saab, “The Legal Formulation of a Right to Development”, in The Right to Development at the
International Level, Hague Academy of International Law, 1980.
• Philip Alston, ed., Peoples’ Rights, 2001.
• Philip Alston and Mary Robinson, eds., Human Rights and Development: Towards Mutual Reinforcement,
2005.
• Jack Donnelly, “In Search of the Unicorn: the Jurisprudence and Politics of the Right to Development”,
California Western International Law Journal, vol. 15, 1985.
• Douglas Roche, The Human Right to Peace, 2003.
• Amartya Sen, Development as Freedom, 1999.
• Dinah Shelton, “Human Rights, Environmental Rights, and the Right to Environment”, Stanford Journal of
International Law, vol. 28, 1991.
• OHCHR’s webpage: <www.ohchr.org/>.
172
1. Which of the following best defines the 5. Which of the following is NOT one of
concept of “development” as used in the the UN Millennium Development Goals
human rights field? (MDGs)?
A. An increase in a country’s gross domestic A. Ending poverty and hunger
product (GDP) B. Universal education
B. An increase in the number of human rights C. Nuclear disarmament
complaints brought by a country’s citizens D. Gender equality
C. An increase in cost of living
D. An increase in a country’s overall economic, 6. Which of the following best describes
how human rights and environmental
social, and cultural capacity.
protection are related?
2. Which of the following best describes A. Human rights and environmental protection
the relationship between development are always complementary
and human rights? B. Human rights and environmental protection
A. Development and human rights are are always contradictory
complementary C. Human rights and environmental protection
B. Development and human rights are are sometimes complementary and
contradictory sometimes contradictory
C. Development is unrelated to human rights D. Human rights and environmental protection
D. Development cannot happen until after all are unrelated
human rights are achieved
7. Which of the following is NOT an
3. Which group of States has been approach that has been used to link
the biggest advocate of the right to human rights and environmental
development? protection in international treaties?
A. The developed countries A. Using human rights as a justification for
B. The global South destroying the environment
C. The West B. Using human rights (particularly procedural

rights) to further environmental protection
D. The global North
C. Using environmental protection to further
4. The UN “Declaration on the Right to human rights
Development” was adopted in _____. D. Seeing environmental protection and human
A. 1948 rights as inextricably linked
B. 1966
8. The UN “Draft Declaration of Principles
C. 1986
on Human Rights and the Environment”
D. 1992 is _____.
A. a binding treaty with strong enforcement
mechanisms
B. a non-binding draft with no legal force
C. a non-binding draft with strong legal force
D. a binding treaty with no enforcement
mechanisms
173
9. The right to a healthy environment

_____.
A. is firmly established at the global level, but
not in any regional treaties
B. does not exist
C. is firmly established at both the global and
regional level
D. is firmly established in some regional
systems, but not at the global level
10. The “negative” aspect of the right to

peace is _____.
A. the fact that perpetual peace would be bad
for some countries;
B. the fact that some people do not believe a
human right to peace exists;
C. the absence of war, conflict, and instability;
D. the creation of conditions of equality, social
justice, and human rights protection.
Answer Key »
1. D
2. A
3. B
4. C
5. C
6. C
7. A
8. B
9. D
10. C
174
HUMAN RIGHTS
LESSON
Human Rights of Vulnerable
8 Persons and Groups I:

Women’s Rights
There are some persons and

groups who, for historical,
cultural, structural, or other
reasons, are especially
vulnerable to victimization
and human rights abuses.
UN Photo #723566 by Harandane Dicko.
Section 8.1 Introduction • Define the meaning of “vulnerable group”.
Section 8.2 Theoretical Perspectives • Identify a number of vulnerable groups that receive
special protection under international human rights

Section 8.3 Women’s Rights
law.
Annex IV Convention on the Elimination
• Describe the reasons why vulnerable groups are in
of All Forms of Discrimination
need of additional protection.
Against Women (CEDAW)
• Understand the issues raised by providing special
protection to vulnerable groups.
• Describe the global and regional systems in place for
the protection of women’s rights.
175
LESSON 8 | Human Rights of Vulnerable Persons and Groups I: Women’s Rights
Voters came in large numbers, especially among women, to exercise their right to elect new regional, parliamentary, and presidential
representatives in the notably orderly and peaceful Parliamentary and Presidential elections in the Kurdistan region of Iraq. UN election
observers from the Independent High Electoral Commission (IHEC) organized and carried out the elections. Voter at polling station in
Erbil. 25 July 2009. UN Photo #405133 by Rick Bajornas.
What is a vulnerable group?
As we learned in Lessons 1, 2, and 3, human rights treaties
like the UDHR, ICCPR, and ICESCR aim to protect persons
against violations of their human rights and fundamental
freedoms. They apply to all persons equally, without regard
for race, sex, age, language, religion, national or social origin, View a video introduction of this lesson
property, birth, or any other status. However, there are some
videos/217/lesson-8-human-rights-
persons and groups who, for historical, cultural, structural, or of-vulnerable-persons-and-groups-i-
other reasons, are especially vulnerable to victimization and womens-rights/>.
human rights abuses. Because they are more likely to suffer
violations of their human rights and fundamental freedoms,
some vulnerable groups are provided with additional protections
under international law.
176
These additional protections take the form of conventions and standards protecting both individuals and groups,
and giving their needs special consideration. These instruments directly address the plight of vulnerable persons,
providing targeted support in areas that are overlooked or underserved by more general human rights treaties.
Thematic human rights instruments are important not only because of the protection they provide, but also because
they give status and visibility to vulnerable groups, drawing international attention to areas of particular concern.
In the next three lessons, we will focus on six groups that have received additional protection under international
human rights law because they are especially vulnerable to abuses of their human rights and fundamental freedoms:
• Women;
• Children;
• Disabled Persons;
• Ethnic, Religious, and Linguistic Minorities;
• Indigenous Peoples; and
• Refugees.
These vulnerable groups have been selected for study because the international legal regimes that protect them
are among the most well-established. However, it is important to remember that there are many more groups that
are considered especially vulnerable for the purposes of international human rights law, and still more that suffer
discrimination and oppression in their daily lives but have not yet been recognized by the international human
rights movement. Internally displaced persons (IDPs);1 Stateless persons;2 lesbian, gay, bisexual, and transgender
(LGBT) persons;3 migrant workers;4 the elderly; people living with HIV and AIDS; and people living in rural areas, for
example, are all vulnerable groups that might have each received their own section in this lesson.
Human rights as overlapping and linked
One important thing to remember when reading through this lesson is that the protections afforded to the
various vulnerable groups are overlapping and linked to one another.
These human rights regimes are overlapping in at least two ways: first, because every person in each vulnerable
group has the same basic general human rights and is protected under the UDHR, ICCPR, and ICESCR, as well as
under the special treaties that provide them with additional protection, and second, because the same person may
belong to more than one vulnerable group.
For example, an eight-year-old girl who is a member of a national minority group is protected under the
international bill of human rights as well as under the women’s conventions, children’s conventions, and minorities’
conventions all at the same time. Multiple overlapping protections are particularly important in cases like these,
because persons who are members of more than one vulnerable group may be subject to “double discrimination” as
a result of their intersectional identities. Because rights overlap in this way, a State that fails to uphold an individual’s
rights may be in violation of multiple conventions under international human rights law. Similarly, a person who has
been the victim of a human rights violation may have a number of different enforcement options to choose from.
1) Issues surrounding the protection of IDPs will be discussed briefly in the context of refugee rights in Lesson 10.
2) See: Convention on the Reduction of Statelessness, 1961; Convention Relating to the Status of Stateless Persons,1954.
3) We will discuss the emerging regime for the protection of LGBT persons in Lesson 15.
4) The International Convention on the Protection of All Migrant Workers and Members of their Families (ICRMW), overseen by the Committee on Migrant
Workers (CMW), is one of the nine “core” human rights treaties in the UN system. For more information, visit the CMW’s page on the OHCHR website:
<https://www.ohchr.org/EN/HRBodies/CMW/Pages/CMWIndex.aspx>.
177
On the Need for Thematic Instruments »

“All human rights instruments are based on the principle of equal protection and non-
discrimination, which are the pre-eminent norms of the human rights movement. [But]
the existence of general scope human rights documents, in which everyone is protected …
does not obviate the need for a specific instrument targeted at a particular class of
people or problem. That is why the female gender, which is guaranteed by all the rights
in the ICCPR, still needs its own specific normative framework to address the particular
problems and conditions that attach to it by virtue of its difference. The same is true
with racial groups, minorities, indigenous peoples, workers, children, and other classes,
categories, or groups with shared historical, ethnic, religious, social, linguistic, cultural,
or other characteristics. It is only by recognizing these differences and specifically
addressing them that society can ensure the victims equal protection.”
–Makau Mutua
from “Standard Setting in Human Rights: Critique and Prognosis”
The special human rights regimes are linked because the protections afforded by one regime can be critical for
upholding human rights in another. For example, the protection of children’s rights is closely related to the protection
of women’s rights. Before birth, a child’s health and development are contingent on the security and well-being of
her mother. After birth, women remain the primary caregivers of young children in most countries, and protecting
caregivers is crucial to the healthy development of the child. Ensuring the rights of women is therefore strongly
linked with ensuring the rights of their children.
Section 8.2 Theoretical Perspectives

Establishing special protections for vulnerable groups can help to publicize their issues, provide recognition for
their struggles, promote equality, and ultimately prevent human rights abuses, but it can also have divisive effects.
In particular, providing separate and special protection for vulnerable groups can cement perceptions of difference
between the vulnerable group and others, and can lead to the marginalization of their rights. Each of the regimes
described in the next three lessons must navigate this difficult path between inclusion and exclusion, between
equality and difference, and between universalism and relativism. The development of international human rights
law has been profoundly influenced by these balancing acts. How can providing vulnerable groups with special
protections have these effects?
Reinforcing divisions, affirming segregation
To begin with, special protections may reinforce barriers, rather than breaking them down. In some cases, this
may be desirable. A minority group with a different language, culture, or religion from the majority population may
wish to prevent the dilution of their unique traditions by claiming special protections for the group. In many cases,
though, reinforcing barriers will be undesirable. Providing separate special regimes for women, children, minorities,
and other vulnerable groups helps to reinforce the idea that they are “others” who are different from “normal” people.
For example, one might ask why women should receive additional help from the international human rights
community if they are exactly the same as men. Doesn’t this suggest that women are different? Isn’t that suggestion
178
contrary to the principle of equality that is so important for human rights? In response, supporters of the special
protection regimes argue that differences do exist — both with respect to physical capacity as well as training,
economic position, and social and cultural roles — but these are differences in how society treats and interprets men
and women. They are not differences between men and women as moral agents, or as bearers of human rights.
These differences are not natural, but rather socially or culturally constructed. The provision of additional support is
meant to correct for these culturally constructed notions of difference.
Even when special protection regimes do not reinforce the idea that the groups they protect are different, they
tend to compartmentalize their needs. The special protections system implies that the needs of each group are
“taken care of” within the regime organized for their protection, and that it is therefore not necessary to consider
“their” issues in the context of general human rights treaties. This ghettoization can be pernicious, leading to the
further marginalization of vulnerable groups and their human rights.5
Equality in law v. equality in fact
The ideals of equality and non-discrimination are at the heart of the UN system. The UDHR is premised on the
idea that all people are born “free and equal in dignity and rights,” and every one of the “core” international human
rights treaties includes a non-discrimination clause. If the goal of providing special protections for vulnerable groups
is to prevent discrimination against them, why aren’t the protections contained in the international bill of human
rights enough? Discrimination and unequal treatment are already prohibited under international human rights law,
so why do vulnerable groups require more?
One answer to this question hinges on the difference between de jure and de facto equality — the difference
between equality in law and equality in fact, also known as formal equality and substantive equality. Equality in law
or formal equality is an equality that treats everyone exactly the same, regardless of their circumstances. Equality
in fact or substantive equality is an equality that treats some people differently, depending on the relevant social,
historical, or cultural context.
While at first glance it may seem intuitive that “equality” should mean treating everyone exactly the same, in
practice this does not always produce the most “equal” results. Treating every person the same by insuring a lack of
discrimination in law and practice will not necessarily result in equality among peoples. If two people approach the
law from highly unequal positions, then ignoring these initial differences and treating them equally will cement the
status quo. For example, suppose that a national government passes a law declaring that every person must pay a
tax of $5,000 in order to be eligible to vote. This law is “neutral”, or formally equal, because it applies to all citizens
without distinction. Every person must pay the fee, regardless of his or her race, sex, gender, age, language, religion,
birth, property, or other status. However, it is substantively unequal, because it affects some people much more than
others. The poor (who are also frequently made up of a disproportionate number of women, national minorities,
indigenous people, and other vulnerable groups) will be unable to pay the tax, and thus be denied their right to vote.
In place of formal equality, therefore, some argue that oppressed or disadvantaged groups and individuals should
receive special attention and assistance to promote their full participation and enjoyment of rights. Additional help
can compensate for historical inequality, and eventually allow vulnerable groups to gain true substantive equality.6
For example, a law requiring courts to hire 50 per cent women as judges is formally unequal because it makes a
5) Some groups — notably women’s rights activists — have attempted to use the tactic of “mainstreaming” to counter this tendency. See discussion
below.
6) See: Martha Albertson Fineman, The Illusion of Equality, 1991; Committee on Economic, Social and Cultural Rights, “General Comment No. 16”, 2005
(noting that gender-neutral laws “can fail to address or even perpetuate inequality between men and women because they do not take account of
existing economic, social and cultural inequalities, particularly those experienced by women”.).
179
direct distinction based on gender. However, it may promote substantive equality because it helps women to gain the
proportion of seats they would hold if it were not for the effects of historical and continuing discrimination.
The substantive equality approach is sometimes used to justify affirmative action programmes that provide
special assistance to vulnerable groups, as in the form of government subsidies or hiring policies. However, affirmative
action programmes are controversial. They may lead to backlash and charges of “reverse discrimination” by groups
that feel negatively affected by these policies.
This is the “equality paradox” in a nutshell: achieving substantive equality may require different formal treatment,
but different formal treatment may be discriminatory.
The formal versus substantive equality conundrum reappears in many political debates, and people often hold
strong opinions about the issue. Most protection regimes have attempted to broker a compromise between the formal
and substantive positions, providing some special assistance to vulnerable groups, but limiting it in order to avoid
charges of discrimination. Agreements like the ICCPR and ICESCR might be said to take a more “formal” approach,
providing few targeted protections, while agreements like the Convention on the Rights of Persons with Disabilities
(CRPD) might be said to take a more “substantive” approach, articulating protections specifically designed to improve
the lives of a particular vulnerable group. Ultimately, however, there is no easy answer to this question of where the line
between formal and substantive equality should be drawn.
Individuals and groups
Another difficulty with special protection regimes is that the line dividing individual rights from group rights in
this context is somewhat murky. Women, children, disabled persons, minorities, indigenous people, and refugees
all enjoy special protections as individuals under international human rights law. However, some also enjoy special
protections as groups. For example, minorities have the right to exercise their culture in combination with other
members of their group, and indigenous persons have the right to self-determination as peoples.
In Lesson 6, we discussed the many theoretical difficulties that plague the category of collective rights. All of
these issues apply again in the context of the rights of vulnerable groups. The question of whether each right belongs
to the individual or to the group is front and centre. Keep the idea of collective rights in mind when reading through
the next three lessons, and ask yourself whether each set of rights should be categorized as “collective” and, if so,
why?
On the Perils of Formal Equality »

“[The poor] must labour in the face of the majestic equality of the laws,
which forbid rich and poor alike to sleep under the bridges, to beg in the
streets, and to steal their bread.”
–Anatole France
from The Red Lilly (1894)
180
The limitedness of groups
One final theoretical difficulty attached to the protection of groups stems from their limitedness. Defining which
groups are vulnerable for the purpose of providing special protections is a complex and value-laden affair. Boundaries
must be set, and choices must be made about which individuals and contexts deserve special treatment and which
do not. Women, children, disabled persons, minorities, indigenous peoples, and refugees have all suffered various
forms of discrimination and ill treatment at the hands of society. However, the individuals within these groups
are extremely varied. Individual members of vulnerable groups may be rich as well as poor, socially privileged or
unprivileged, culturally connected or isolated. Similarly, individual members of dominant groups may suffer from
poverty, marginalization, and inequality as well as wealth and privilege. As feminist and international law scholar
Professor Martha Fineman puts it:
“From a political and policy perspective, the current model of

equality is further limited as an anti-discrimination principle
because its protections do not appear to extend to everyone.
Politically, this limitedness is problematic because it can and
has resulted in significant backlash. Even more significant in
the long run has been the fact that the goal of confronting
discrimination against certain groups has largely eclipsed,
even become a substitute for, the goal of eliminating material,
social, and political inequalities that exist across groups.
In this regard, identity categories are both over and under
inclusive. The groups that traditional equal protection analyses
recognize include some individuals who are relatively privileged
notwithstanding their membership in these identity groups.
Indeed, while race or gender may complicate and compound
disadvantage, individual successes about across these and
other categories … At the same time, identity categories are
too narrow. Poverty, denial of dignity, and deprivation of basic
social goods are “lack-of-opportunity categories” that the
current framework of identity groups does not recognize; such
disadvantage transcends group boundaries.”7
Writing in the context of United States equal protection law, Professor Fineman suggests replacing the system of
vulnerable groups with a system based on the concept of the “vulnerable subject”, a “post-identity” inquiry focused
on discrimination and disempowerment in general, rather than on particular group identities.8 Would such a system
be preferable? Would it overcome the limitations of the vulnerable groups model? Or would it merely reinstitute a
policy of wilful blindness toward entrenched discrimination against disadvantaged groups?
Despite these difficulties, special regimes for the protection of vulnerable groups have become an essential
feature of the international human rights landscape. We will now take a look at the rights of several of these groups
in turn, beginning in this lesson with the rights of women. While reading, keep in mind the theoretical perspectives
discussed in this section, and try to see what implications they might have for the goals of increasing equality and
protecting human rights. Do the theoretical debates matter? Why, or why not?
7) Martha Albertson Fineman, “The Vulnerable Subject: Anchoring Equality in the Human Condition”, Yale Journal of Law and Feminism, vol. 20, 2008, 4.
8) Ibid.
181
Section 8.3 Women’s Rights
Women as a vulnerable group
Women make up at least half of the world’s population, and enjoy the same basic protections as men under
the international bill of human rights. Non-discrimination, including on the basis of sex, is a cornerstone of the
international human rights system: the UN Charter reaffirms “faith in fundamental human rights, in the dignity and
worth of the human person, in the equal rights of men and women”; the UDHR proclaims that everyone — without
distinction on the basis of sex — is entitled to equality before the law; and the ICCPR and ICESCR confirm that the
rights contained therein apply to all persons regardless of sex.
With all of these protections against sex discrimination in the international bill of human rights, why is there a
need for a separate rights regime addressed specifically to women? Supporters point broadly to two reasons:
“First, as a practical matter, women in fact remain second-class

citizens, subordinated throughout the world, despite their equal
treatment in these foundational human rights instruments.
Second, from a more theoretical perspective, focusing on
women’s rights exposes the gendered assumptions of human
rights discourse itself. That is … human rights law incorporates
a gender perspective; it focuses on issues or problems that
affect men more than women, or that affect men differently
from women.”9
Women have held, and in many places continue to hold, a position inferior to that of men in the home, at school,
at work, in religion, and in government. As discussed in Lesson 3 in the context of economic, social, and cultural
rights, throughout much of the past several centuries women were sequestered in the private sphere of home,
family, and unpaid or low-wage work, and were denied the right to participate in the public sphere of politics. Women
have also been disadvantaged economically, and make up a majority of the world’s poor — a situation known as the
“feminization of poverty”.
Women’s subordination was historically justified on the basis of “natural” differences between the sexes
(categories based on the biological characteristics of men and women) in terms of size, strength, and reproductive
capacity. It continues to be justified on the basis of gender differences (the socially constructed roles of men and
women) in perceived social and behavioural preferences.
Because of their historical and ongoing subordination and lack of political and economic power, women’s particular
needs and experiences were not considered in the establishment of the UN or the drafting of the international bill of
human rights. The types of human rights violations that particularly affect women — including gender-based violence
and economic and social marginalization — were either left out of the major international human rights covenants,
or relegated to a secondary status as “special interests”. As a result, feminist scholars argued that the substance of
and institutions created by international human rights institutions gave preference to male values and perspectives:
human rights were men’s rights.10
9) Barbara J. Stark, “Women’s Rights”, Encyclopedia of Human Rights, David Forsythe, ed. (New York: Oxford University Press, 2009).
10) See: Rebecca J. Cook, ed., Human Rights of Women: National and International Perspectives (Philadelphia: University of Pennsylvania Press, 1994);
Julie Peters and Andrea Wolper, eds., Women’s Rights, Human Rights: International Feminist Perspectives (New York: Routledge, 1995).
182
The women’s rights regime generally enjoys broad support. But not everyone is convinced that a full half of the
human population should be granted special protections as a group. Consider the following passage by human rights
scholar Jack Donnelly:
“Although women have a sad history of near-universal,

systematic suffering in virtually every area of the globe, the
idea of group human rights for women is fatally undermined by
problems of collective agency for a diverse group that includes
half of humanity. It is also unclear what rights women as a
group might be held to possess. Unless we accept gender roles
that postulate qualitative differences between men and women,
the obvious candidates for special women’s rights seem to me
best formulated in gender-neutral terms.
For example, family rights, reproductive rights, and protection

against domestic violence are not special rights of women.
Although the majority of adult victims of violence in the home
are women, this no more makes protection against domestic
violence a (group) right of women than the fact that the
majority of those exercising or suffering violations of trade
union rights are men makes the right to bargain collectively a
(group) right of men. The principle in each case is independent
of sex or gender. No one should be subject to violent assault by
anyone, including a domestic partner. Everyone is entitled to
bargain collectively.”11
This debate echoes others that attempt to balance equality and difference, and weigh the costs and benefits
of equality in law against equality in fact. Should there be a special class of women’s rights? Do such rights help to
correct historical injustices and promote equality? Or do they cement the idea that men and women are different,
and that women are weaker and in need of extra help?
What is Gender? »
“The term ‘gender’ refers to the socially constructed roles of women
and men that are ascribed to them on the basis of their sex, in public
and in private life. The term ‘sex’ refers to the biological and physical
characteristics of women and men … Gender roles are learned and
vary widely within and between cultures. As social constructs, they can
change.”
–Kofi Annan
from HRI/MC/1998/6 (1998)
11) Jack Donnelly, Universal Human Rights in Theory and Practice (Ithaca: Cornell University Press, 2003), 211–212.
183
A brief history of women’s rights in international law
The International Labour Organization (ILO) was one of the first international organizations to support special
rights for women, adopting Convention No. 3 on Maternity Protection and Convention No. 4 on Night Work of Women
in 1919. These two treaties split international women’s groups: although they were innovative in introducing special
protection for women at the global level and sought to improve working conditions by putting an end to long hours
and uncompensated maternity leave, they were also uncomfortably paternalistic. Why, opponents asked, should
women be considered more vulnerable than men to the rigours of night work?
Beginning in 1946, pressure from women’s groups led to the formation of the Committee on the Status of Women
(CSW) within the UN system.12 Since its establishment, the CSW has prepared numerous recommendations on urgent
problems in the field of women’s rights, and has developed several important declarations, proposals, and conventions
that protect and promote the human rights and fundamental freedoms of women. Among these are:
• The Convention on the Political Rights of Women (1952);13
• The Convention on the Nationality of Married Women (1957);14
• The Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages (1962);15
and
• The Recommendation on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages
(1965).16
In an effort to consolidate these new standards, the General Assembly asked the CSW to prepare a draft
“Declaration on the Elimination of Discrimination Against Women”.17 The drafting process was plagued by disagreement
and entrenched cultural differences on equality in marriage, the family, and employment. Nevertheless, a non-binding
declaration was finally completed, and was adopted by the UN General Assembly in 1967.
As the decade progressed, however, it became clear that this non-binding declaration would be insufficient for
addressing women’s continued subordination,18 and the CSW began the process of drafting a binding convention in
1974. The drafting process was given a boost when the General Assembly designated 1975 as International Women’s
Year, and the accompanying World Conference of the International Women’s Year in Mexico City defined a World Plan of
Action for the Implementation of the Objectives of the International Women’s Year that included a call for a convention
with effective implementation procedures.19
Convention on the Elimination of All Forms of Discrimination Against Women
The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) is the premier
international women’s rights treaty. It was adopted by the UN General Assembly on 18 December 1979, by a vote of
130 to none, with 10 abstentions.20 Currently, 187 countries — over 90 per cent of the UN — are parties to CEDAW.21
» Take a moment now to read through CEDAW, attached as Annex IV.

12) For more on the Commission on the Status of Women (CSW) in the context of the Economic and Social Council (ECOSOC), see Lesson 4.
13) General Assembly Resolution 640 (VII).
14) General Assembly Resolution 1040 (XI).
15) General Assembly Resolution 1763 A (XVII).
16) General Assembly Resolution 2018 (XX).
17) A/Res/1921 (XVIII).
18) United Nations Blue Book Series, The United Nations and the Advancement of Women 1945–1996 (New York: United Nations Publications, 1996), 30.
19) Ibid., 35.
20) The voting record of the UN General Assembly can be found at <http://www.un.org/en/ga/documents/voting.asp>.
21) Numbers current as of October 2011. An updated list of all State parties to CEDAW can be found in the UN Treaty Collection website: <http://treaties.
un.org/>.
184
CEDAW expands on the list of women’s rights set out in the international bill of human rights. It is built around
three related premises. First, CEDAW requires the elimination of both de jure and de facto discrimination, which it
defines as:
“any distinction, exclusion or restriction made on the basis of

sex which has the effect or purpose of impairing or nullifying
the recognition, enjoyment or exercise by women, irrespective
of their marital status, on a basis of equality of men and
women, of human rights and fundamental freedoms in the
political, economic, social, cultural, civil or any other field.”22
Second, it authorizes affirmative action to reverse historical patterns of discrimination. Third, it obliges States
to work towards the elimination of economic, social, and cultural conditions that contribute to the subordination of
women, “to embody the principle of equality of men and women in their national constitutions or other appropriate
legislation”, and to adopt laws or other measures “including sanctions where appropriate, prohibiting all discrimination
against women”.23
While CEDAW has been a milestone achievement for women’s rights “on paper”, some argue that its “goals —
especially with respect to the protection of women in the private sphere — have been foiled”.24 In significant part,
CEDAW’s effectiveness has been undermined because it “has the dubious distinction of having the highest number of
reservations by the States party to it”.25
Under the principles of international law, States can make reservations, or exceptions, to any international treaty
as long as these reservations do not undermine the object and purpose (the primary aim) of the agreement.26 Many
States have taken advantage of this rule, and have made reservations to CEDAW seeking to preserve national laws
and religious or cultural traditions that would otherwise be incompatible with the convention. Despite the prohibition
of reservations that go against the object and purpose of the treaty, some of these reservations to CEDAW have been
quite broad and have the effect of diluting many of its protections. Reservations to Articles 2 and 16, on State laws
and marriage and the family, have been particularly pernicious. For example, a number of States have indicated that
they will only comply with CEDAW’s rules eliminating discrimination against women — particularly with respect to
discrimination in laws on marriage and the family — to the extent that these do not conflict with the provisions of the
Islamic Shariah, or with current cultural practices.27 While over the past several decades many States have withdrawn
their reservations to the treaty, a large number still remain.
Religious and cultural reservations to CEDAW have been particularly regressive. While some States and the UN
itself have challenged them as being contrary to the object and purpose of the treaty, activists have been “cowed into
silence by charges of religious intolerance and cultural imperialism”28 and “accusations that these were tantamount
to Western attacks on Islam and/or the Third World”.29 The problem of reservations thus raises the recurring question
of universalism versus cultural relativism that we discussed in Lesson 1. Has the UN, as some scholars have argued,
22) Convention on the Elimination of All Forms of Discrimination Against Women, A/RES/34/180, 1979, Art. 1.
23) Ibid., Art. 2.
24) Madhavi Sunder, “Piercing the Veil”, Yale Law Journal, vol. 112, 2003, 1425.
25) Ibid.
26) For more on the effect of reservations, see box “How a State Becomes Legally Bound” in Lesson 2.
27) A list of all reservations made by State Parties to CEDAW can be found on the UN Treaty Collection website: <http://treaties.un.org/>.
28) Madhavi Sunder, “Piercing the Veil”, Yale Law Journal, vol. 112 (2003), 1426.
29) Ann Elizabeth Mayer, “A ‘Benign’ Apartheid: How Gender Apartheid Has Been Rationalized”, UCLA Journal of International Law and Affairs, vol. 5,
2001, 271.
185
“acquiesced to the cultural relativist position on human rights” in failing to eliminate these reservations to CEDAW?30
Should States be forced to ignore their religious and cultural traditions in the name of women’s rights? Or is the
choice “between religion and rights” a false one, based on a simplistic view of religion and culture that ignores
reformist voices within these communities?31
In addition to the problem of reservations, some women’s rights activists have been critical of CEDAW because it
lacks a provision specifically prohibiting domestic violence against women. The CEDAW Committee has endeavoured
to address this issue by adopting a General Recommendation on Violence Against Women, which States that “Gender-
based violence is a form of discrimination which … impairs or nullifies the enjoyment by women of human rights and
fundamental freedoms.”32 Violence against women has also been gaining increased attention at the UN. In 1993,
the General Assembly adopted a “Declaration on the Elimination of Violence Against Women”; the Fourth World
Conference on Women in Beijing in September 1995 declared that “violence against women constitutes a violation of
basic human rights and is an obstacle to the achievement of the objectives of equality, development and peace”;33
and an influential Secretary-General’s report on the subject was released in 2006.34
CEDAW is overseen by the Committee on the Elimination of Discrimination Against Women (CEDAW Committee),
which monitors and assists States in implementing the treaty. The CEDAW Committee is empowered to monitor the
human rights situation in Member States, issue general recommendations interpreting CEDAW, and review State
reports on “the legislative, judicial, administrative or other measures they have adopted to give effect to the provisions
of the Convention”.35
In 2000, the CEDAW Committee’s powers expanded with the entry into force of the Optional Protocol to CEDAW.36
The Optional Protocol authorized the CEDAW Committee to hear complaints from individuals or groups who claim that a
State has violated their rights under the treaty. The Committee hears complaints privately, and then issues non-binding
recommendations to the State party against whom the complaint was made. If necessary, the Committee can also
request that the State take urgent measures to prevent an immediate and irreparable harm from being done to the
petitioner. After the State party receives the recommendations of the Committee, it has six months in which to consider
the Committee’s views and submit a reply detailing the measures it has taken in response. If the CEDAW Committee
is not satisfied with the measures taken by the State, it may request further information or additional reports, or even
undertake a confidential investigation of the State if it has received reliable information regarding grave or systematic
violations of CEDAW.
CEDAW’s complaints mechanism has been invoked less frequently than those of other treaties: to date, the
CEDAW Committee has heard only 18 cases, and dismissed six of these as inadmissible.37 By way of comparison, the
Human Rights Committee concluded 83 cases in 2010 alone.38
30) Ann Elizabeth Mayer, “Cultural Particularism as a Bar to Women’s Rights: Reflections on the Middle Eastern Experience”, WLUML Dossier 16 (November
1996), 21–32.
31) Madhavi Sunder, 1412.
32) CEDAW Committee, “General Recommendation on Violence Against Women”, 1992.
33) Report of the Fourth World Conference on Women, Beijing, 4–15 September 1995, A/CONF.177/20/Rev. 1.
34) A/61/122/Add.1 (2006), Report of the Secretary General, “In-Depth Study on All Forms of Violence Against Women”.
35) A/RES/34/180 (1979), Art. 18. For a detailed discussion on the powers of treaty bodies like the CEDAW Committee, see Lesson 4.
36) An updated list of all State parties to the Optional Protocol to CEDAW can be found in the UN Treaty Collection website: <http://treaties.un.org/>.
37) Current as of January 2012. For all recommendations on individual complaints issued so far, see the OHCHR’s CEDAW Committee jurisprudence page
at: <http://www2.ohchr.org/english/law/jurisprudence.htm>.
38) Annual Report of the Human Rights Committee, 2011, A/66/40, vol. I, 97.
186
Women’s rights at the global level
Over the past few decades, the global system of women’s rights has continued to grow, and there are now
multiple specialized agencies, programmes, and funds working together for the protection and promotion of women’s
human rights and fundamental freedoms. In addition to the CEDAW Committee and the CSW, which continues its
work as a commission under ECOSOC, there is UN Women39 and the Inter-Agency Network on Women and Gender
Equality (IANWGE).40
The Human Rights Council (then Commission) has also appointed a Special Rapporteur on Traditional Practices
affecting the Health of Women and the Girl Child (through 2005); a Special Rapporteur on Violence Against Women,
its Causes and Consequences; and a Special Rapporteur on Trafficking in Persons.
A number of new protocols, conventions, and declarations on women’s issues have also been signed:
• Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children,
supplementing the United Nations Convention against Transnational Organized Crime (2000);41
• “Declaration on the Elimination of Violence Against Women” (1994);42 and
• “Declaration on the Protection of Women and Children in Emergencies and Armed Conflicts” (1974).43
The ILO has also continued to be active in concluding conventions for the protection of women’s labour rights.
These include conventions on work by women in mines, equal pay, social security, discrimination, and family
responsibilities. Moreover, the ILO has set up a Bureau for Gender Equality; an International Programme on More and
Better Jobs for Women; and a Capacity-building Programme on Gender, Poverty and Employment.
Another victory44 for advocates of special protections for women’s international human rights has been the
increasing attention paid to violence against women during wartime. Although rape in war has long been illegal under
international humanitarian law, sexual atrocities were ignored at the Nuremberg Tribunal and were raised only in part
at the Tokyo Trials.45 Women’s rights activists successfully fought for the inclusion of “rape, sexual slavery, enforced
prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity”
as crimes against humanity and war crimes under the 1998 Rome Statute establishing the International Criminal
Court,46 as well as under the Statutes of the International Criminal Tribunals for Rwanda47 and Yugoslavia.48 As a
result of this activism, individuals who commit sexual violence during wartime can now be held criminally responsible
for their acts under international criminal law.49
39) More information on UN Women can be found on their website: <www.unwomen.org>.

40) More information on IANWGE can be found on their website: <http://www.un.org/womenwatch/ianwge/>.
41) A/Res/55/25, 2000 (entry into force 2003).
42) A/Res/48/104, 1994.
43) A/9631, 1974.
44) For a more sceptical view of these developments, see: Karen Engle, “Feminism and Its (Dis)Contents: Criminalizing Wartime Rape in Bosnia and
Herzegovina”, American Journal of International Law, vol. 99, 2005; Janet Halley et al., “From the International to the Local in Feminist Legal Responses
to Rape, Prostitution/Sex Work and Sex Trafficking: Four Studies in Contemporary Governance Feminism”, Harvard Journal of Law and Gender, vol.
29, 2006; Janet Halley, “Rape in Berlin: Reconsidering the Criminalisation of Rape in the International Law of Armed Conflict”, Melbourne Journal of
45) Catharine A. MacKinnon, “Women’s September 11th: Rethinking the International Law of Conflict”, Harvard International Law Journal, vol. 47, 2006,
15.
46) A/CONF.183/9, 1998, Art. 7(1)(g) and Art. 8(2)(b)(xxii).
47) Arts. 3(g) and 4(e).
48) Art. 5(g).
49) See Lessons 12 and 13 for additional discussion of the International Criminal Court (ICC), International Criminal Tribunal for Rwanda (ICTR),
International Criminal Tribunal for the former Yugoslavia (ICTY), and the application of international human rights law during wartime.
187
Gender mainstreaming and the Beijing Platform for Action
In recent years, concerns have arisen that sequestering women’s issues into a separate human rights regime —
while it has promoted awareness and provided a forum for advocacy, monitoring, and enforcement — has also
tended to marginalize women’s concerns and experiences. Women’s rights activists worry that governments may
conclude that it is not necessary to give special attention to women when drafting conventions because women are
already “taken care of” under CEDAW and other women’s rights treaties. Instead of integration and equality, in other
words, in some instances the women’s rights regime may have encouraged further segregation, and pushed women
out of other, supposedly “universal” rights protection schemes. As Professor Hilary Charlesworth describes it:
“This dilemma pervades modern international legal responses

to the unequal position of women: the attempt to improve
women’s lives through general laws can allow women’s
concerns to be submerged in what are deemed more global
issues; however the price of creating separate institutional
mechanisms for women has been the building of a ‘women’s
ghetto’ with less power, resources, and priority than the
‘general’ human rights bodies.”50
In order to combat this tendency toward ghettoization, women’s groups began to advocate gender mainstreaming.
Gender mainstreaming broadly refers to the process of bringing a gender perspective into all policies and programmes
at their initial phases of development, so that women and men are able to benefit equally:
“Gender mainstreaming is the process of assessing the

implications for women and men of any planned action,
including legislation, policies and programmes, in all areas and
at all levels, and as a strategy for making women’s as well as
men’s concerns and experiences an integral dimension of the
design, implementation, monitoring and evaluation of policies
and programmes in all political, economic and social spheres
so that women and men benefit equally and inequality is not
perpetuated. The ultimate goal is to achieve gender equality.”51
In other words, “the idea behind gender mainstreaming is that questions of gender must be taken seriously in
central, mainstream, ‘normal’ institutional activities and not simply left in a marginalized, peripheral backwater of
specialist women’s institutions”.52
At the Fourth World Conference on Women in Beijing in 1995, gender mainstreaming was endorsed by the UN
as a strategy for promoting equality between men and women.53 Today, it is a part of all human rights policies at the
UN. Even the Security Council has begun to adopt a gender perspective: In 2000, it adopted resolution 1325, which
calls for, among other things, increased participation by women in all aspects of decision-making, monitoring, and
conflict resolution.54
50) Hilary Charlesworth, “Not Waving but Drowning: Gender Mainstreaming and Human Rights in the United Nations”, Harvard Human Rights Journal, vol.
18, 2005, 1.
51) ECOSOC 1997/2.
52) Hilary Charlesworth, 1.
53) Report of the Fourth World Conference on Women, Beijing, 4-15 September 1995, A/CONF.177/20/Rev. 1, calling for “mainstreaming a gender
perspective … so that, before decisions are taken, an analysis is made of the effects on women and men, respectively”.
54) S/Res/1325, 21 October 2000.
188
Observers have been somewhat ambivalent about the results of gender mainstreaming. Dr. Dianne Otto,
Director of the International Human Rights Law Program of the Institute for International Law and the Humanities,
for example, celebrates the fact that “feminist ideas have spread throughout the UN system in the last decade, in the
wake of official commitments to system-wide gender mainstreaming,” but laments that much of the “emancipatory
content” of feminist ideas has been diluted in the process: “Stripped of its political content, the gender mainstreaming
project is a long way from fundamentally changing women’s inequality, let alone the gendered assumptions that
underpin the discipline of international law.”55 Similarly, Hilary Charlesworth, Director of the Centre for International
Governance and Justice at the Australian National University, worries that “the strategy of gender mainstreaming
has deployed the idea of gender in a very limited way”, “has allowed the mainstream to tame and deradicalize claims
to equality”, and “has made issues of inequality between women and men harder to identify and to deal with”.56
She notes that “almost a decade of gender mainstreaming has revealed its limited impact,” and cautions that true
mainstreaming requires “more than allowing women into international institutions; it must require transforming the
structures and assumptions of the international order”.57
Women’s rights at the regional level
All of the major regional human rights systems also include special protections for the human rights of women
and girls. The regional women’s rights systems echo the primary guarantees provided to women at the global level,
but each also adds its own twist on the global system. This combination of fidelity to a universal ideal and the
freedom to interpret and expand women’s rights in the regional context has provided an opportunity to bridge the
“universalism/cultural relativism” divide. As Stanford Law Professor Helen Stacy writes:
“Regional human rights courts, commissions and tribunals

can play an important role in interpreting the tension between
universal standards and cultural or group identity. They can
provide a moderated universalism and moderated localism.
Regional bodies can act as a clearinghouse between the
assumptions of female homogeneity that underlie CEDAW, and
claims to cultural difference. Regional forums can listen to both
the universal claim of women’s autonomy, and the local claim
of group identity and loyalty to local practice. Regional human
rights institutions are a vital part of developing a women’s
jurisprudence of human rights in a globalized world.”58
Regional instruments for the protection of women’s rights can provide increased legitimacy because they are less
likely to be seen as distant interlopers than global bodies. They may be better placed to resolve tensions between national
and international standards because they can better understand cultural practices that are shared across the region. In
addition, regional systems may be able to attain consensus on issues that remain divisive at the global level. Regional
initiatives can also be more targeted than global bodies, focusing increased attention on the specific harms that most
affect their regions.59
55) Dianne Otto, “The Exile of Inclusion: Reflections on Gender Issues in International Law Over the Last Decade”, Melbourne Journal of International Law,
vol. 10, 2009.
56) Hilary Charlesworth, 3.
57) Ibid., 11 and 18.
58) Helen Stacy, “Equality and Difference: Regional Courts and Women’s Human Rights”, Stanford Public Law and Legal Theory Working Paper Series,
2004.
59) Ibid.
189
Women’s Rights are Human Rights »

“I believe that, on the eve of a new millennium, it is time to break our silence. It is time for us to
say here in Beijing, and the world to hear, that it is no longer acceptable to discuss women’s rights
as separate from human rights …
It is a violation of human rights when babies are denied food, or drowned, or suffocated, or their
spines broken, simply because they are girls.
It is a violation of human rights when women are doused with gasoline, set on fire and burned to
death because their marriage dowries are deemed too small.
It is a violation of human rights when individual women are raped in their own communities and
when thousands of women are subjected to rape as a tactic or prize of war.
It is a violation of human rights when a leading cause of death worldwide among women ages 14
to 44 is the violence they are subjected to in their own homes.
It is a violation of human rights when young girls are brutalized by the painful and degrading
practice of genital mutilation.
It is a violation of human rights when women are denied the right to plan their own families, and
that includes being forced to have abortions or being sterilized against their will.
If there is one message that echoes forth from this conference, it is that human rights are
women’s rights …
And women’s rights are human rights.
–Hillary Rodham Clinton

from “Statement at the United Nations Fourth World Conference on Women”
Beijing, China (5 September 1995)
In Europe, the ECHR does not explicitly mention women’s rights, but does prohibit any distinction based on
grounds of sex, and Protocol No. 7 added the principle of equality between spouses to the convention. The European
Social Charter sets out a number of specific protections for women, including equal pay, protection of mothers,
protection of working women, and social and economic protection for women and children. The 1988 Additional
Protocol to the European Social Charter also includes the right to equal employment treatment and opportunities.
The European Court of Human Rights has been active in promoting women’s rights, hearing cases on topics ranging
from discrimination under social security schemes60 to immigration law,61 and the European Court of Justice has also
contributed to advancing the cause of women’s rights.
60) Wessels Bergervoet v. The Netherlands, App. 34462/97, European Court of Human Rights, 2002.
61) Jabari v. Turkey, No. 40035/98, European Court of Human Rights, 2000; Abdulaziz, Cabales and Balkandali v. United Kingdom, 94 European Court of
Human Rights (ser. A), 1985.
190
Writing Exercise 8: Water for Women »

You are working for a small NGO called Water for All (WFA) that focuses on advocating for the
right to water. The head of your organization has decided to institute a new policy of gender
mainstreaming throughout all of WFA’s activities. To that end, she has appointed you as the
new Special Adviser on Gender Mainstreaming. Your job is to advise WFA and its employees
about how to mainstream gender in their work.
• What might it mean to mainstream gender in this context?
• What kinds of policies would you establish to help WFA implement its gender
mainstreaming initiative?
• How will gender mainstreaming change the way the organization is run? How will it
affect the advocacy work of WFA’s employees?
In Africa, the African Charter on Human and Peoples’ Rights includes non-discrimination provisions and specifies
that women, along with children, have the right to “special measures of protection”.62 The African Charter on the
Rights and Welfare of the Child includes important rights for girls, including the prohibition of children marrying
under the age of 18.63 Africa’s primary treaty relating to women’s rights is the 2003 Protocol to the African Charter
on Human and Peoples’ Rights on the Rights of Women in Africa. As Frans Viljoen describes:
As a supplement to the African Charter, the Protocol Primarily

brings into the open the Charter’s shrouded premise that
women are included in its protective scope. Compared to
CEDAW, the Protocol speaks in a clearer voice about issues
of particular concern to African women, locates CEDAW in
African reality, and returns some casualties of quests for global
consensus into its fold.64
In some respects, the Protocol goes further in its protection against harmful practices than do the equivalent
treaties in Europe and the Americas or the regional instruments. Article 5, for example, provides that States should
adopt criminal legislation in order to combat the practice of female genital mutilation.65 It is the first treaty to place
medical abortion, HIV/AIDS, polygamy, and domestic violence in a binding human rights instrument. It provides
additional specificity with respect to concepts such as the protection of women in armed conflict, harmful practices,
violence against women, and discrimination.66 It contains special protections for rural women, and, importantly, it
includes within its purview violations in the private sphere, such as domestic violence.67
62) African Charter on Human and Peoples’ Rights, Arts. 2, 5, and 18.
63) African Charter on the Rights and Welfare of the Child, Art. 21.
64) Frans Viljoen, International Human Rights Law in Africa (Oxford: Oxford University Press, 2007), 271.
65) Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, Art. 5.
66) Ibid.
67) Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, Art. 4.
191
In the Inter-American system, both the “American
Declaration on the Rights and Duties of Man” and
the American Convention on Human Rights prohibit
discrimination on the basis of sex and provide additional
protections in the area of family life, trafficking, and
marriage.68 Early treaties including the Inter-American
Convention on the Nationality of Women (1933), the
Inter-American Convention on the Granting of Political
Rights to Women (1948), and the Inter-American
Convention on the Granting of Civil Rights to Women
(1948), all directly address women’s human rights Three young girls in the Bam Sarai village in Bamyan province
prepare for exams as part of an effort in which UNICEF and
issues. Most recently, the OAS has adopted the Inter-
the Government of Afghanistan aim to increase girls’ primary
American Convention on the Prevention, Punishment school attendance by 20 per cent by the end of 2008. 17
and Eradication of Violence Against Women (Convention November 2007. UN Photo #167255 by Shehzad Noorani.
of Belem do Para) (1995). The Convention of Belem do
Para is particularly significant because, like the African Protocol on Women’s Rights, it addresses a woman’s right to
be free from violence in both the public and private sphere.69 It is also more specific about the content of rights than
some global instruments, setting out clear instructions for States on how they should implement the convention.
Conclusion
In this lesson we have introduced the concept of vulnerable groups, discussed some of the theoretical difficulties
associated with their protection, and taken a look at one such regime: the global and regional systems for the special
protection of women’s human rights. In Lessons 9 and 10, we will continue our examination of vulnerable groups and
the systems designed to protect them.
Further reading
• Hilary Charlesworth, “Not Waving but Drowning: Gender Mainstreaming and Human Rights in the United
Nations”, Harvard Human Rights Journal, vol. 18, 2005.
• Rebecca J. Cook, ed. Human Rights of Women: National and International Perspectives, 1994.
• Barbara J. Stark, “Women’s Rights”, in Encyclopedia of Human Rights, David Forsythe, ed., 2009.
• Madhavi Sunder, “Piercing the Veil”, Yale Law Journal, vol. 112, 2003.
• Julie Peters and Andrea Wolper, eds., Women’s Rights, Human Rights: International Feminist Perspectives,
1995.
• UN Committee on the Status of Women (CSW): <www.unwomen.org/en/csw>
• CEDAW Committee: <www.ohchr.org/EN/HRBodies/CEDAW/Pages/CEDAWIndex.aspx>
• University of Toronto Women’s Human Rights Resources Database: <https://library.law.utoronto.ca/
womens-human-rights-resources-programme-whrr>
68) “American Declaration on the Rights and Duties of Man”, Arts. 5, 7, 9, and 30; American Convention on Human Rights, Arts. 6, 11, 17, and 24.
69) Inter-American Convention on the Prevention, Punishment, and Eradication of Violence Against Women, Art. 3.
192
Convention on the Elimination of All Forms of Discrimination Against

Women
PREAMBLE
Noting that the Charter of the United Nations reaffirms faith in fundamental human rights, in the dignity and worth
of the human person and in the equal rights of men and women,
Noting that the Universal Declaration of Human Rights affirms the principle of the inadmissibility of discrimination
and proclaims that all human beings are born free and equal in dignity and rights and that everyone is entitled to all
the rights and freedoms set forth therein, without distinction of any kind, including distinction based on sex,
Noting that the States Parties to the International Covenants on Human Rights have the obligation to ensure the
equal rights of men and women to enjoy all economic, social, cultural, civil and political rights,
Considering the international conventions concluded under the auspices of the United Nations and the specialized
agencies promoting equality of rights of men and women,
Noting also the resolutions, declarations and recommendations adopted by the United Nations and the specialized
agencies promoting equality of rights of men and women,
Concerned, however, that despite these various instruments extensive discrimination against women continues to
exist,
Recalling that discrimination against women violates the principles of equality of rights and respect for human
dignity, is an obstacle to the participation of women, on equal terms with men, in the political, social, economic
and cultural life of their countries, hampers the growth of the prosperity of society and the family and makes more
difficult the full development of the potentialities of women in the service of their countries and of humanity,
Concerned that in situations of poverty women have the least access to food, health, education, training and
opportunities for employment and other needs,
Convinced that the establishment of the new international economic order based on equity and justice will contribute
significantly towards the promotion of equality between men and women,
Emphasizing that the eradication of apartheid, all forms of racism, racial discrimination, colonialism, neo-colonialism,
aggression, foreign occupation and domination and interference in the internal affairs of States is essential to the full
enjoyment of the rights of men and women,
193
Affirming that the strengthening of international peace and security, the relaxation of international tension, mutual
co-operation among all States irrespective of their social and economic systems, general and complete disarmament,
in particular nuclear disarmament under strict and effective international control, the affirmation of the principles
of justice, equality and mutual benefit in relations among countries and the realization of the right of peoples under
alien and colonial domination and foreign occupation to self-determination and independence, as well as respect for
national sovereignty and territorial integrity, will promote social progress and development and as a consequence will
contribute to the attainment of full equality between men and women,
Convinced that the full and complete development of a country, the welfare of the world and the cause of peace
require the maximum participation of women on equal terms with men in all fields,
Bearing in mind the great contribution of women to the welfare of the family and to the development of society,
so far not fully recognized, the social significance of maternity and the role of both parents in the family and in the
upbringing of children, and aware that the role of women in procreation should not be a basis for discrimination but
that the upbringing of children requires a sharing of responsibility between men and women and society as a whole,
Aware that a change in the traditional role of men as well as the role of women in society and in the family is needed
to achieve full equality between men and women,
Determined to implement the principles set forth in the Declaration on the Elimination of Discrimination against
Women and, for that purpose, to adopt the measures required for the elimination of such discrimination in all its
forms and manifestations,
Have agreed on the following:
PART I
Article 1
For the purposes of the present Convention, the term “discrimination against women” shall mean any distinction,
exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the
recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and
women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.
Article 2
States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and
without delay a policy of eliminating discrimination against women and, to this end, undertake:
(a) To embody the principle of the equality of men and women in their national constitutions or other appropriate
legislation if not yet incorporated therein and to ensure, through law and other appropriate means, the practical
realization of this principle;
(b) To adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all
discrimination against women;
194
(c) To establish legal protection of the rights of women on an equal basis with men and to ensure through
competent national tribunals and other public institutions the effective protection of women against any act of
discrimination;
(d) To refrain from engaging in any act or practice of discrimination against women and to ensure that public
authorities and institutions shall act in conformity with this obligation;
(e) To take all appropriate measures to eliminate discrimination against women by any person, organization or
enterprise;
(f) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations,
customs and practices which constitute discrimination against women;
(g) To repeal all national penal provisions which constitute discrimination against women.
Article 3
States Parties shall take in all fields, in particular in the political, social, economic and cultural fields, all appropriate
measures, including legislation, to ensure the full development and advancement of women, for the purpose of
guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality
with men.
Article 4
1. Adoption by States Parties of temporary special measures aimed at accelerating de facto equality between
men and women shall not be considered discrimination as defined in the present Convention, but shall in no
way entail as a consequence the maintenance of unequal or separate standards; these measures shall be
discontinued when the objectives of equality of opportunity and treatment have been achieved.
2. Adoption by States Parties of special measures, including those measures contained in the present Convention,
aimed at protecting maternity shall not be considered discriminatory.
Article 5
States Parties shall take all appropriate measures:
(a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the
elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or
the superiority of either of the sexes or on stereotyped roles for men and women;
(b) To ensure that family education includes a proper understanding of maternity as a social function and
the recognition of the common responsibility of men and women in the upbringing and development of their
children, it being understood that the interest of the children is the primordial consideration in all cases.
195
Article 6
States Parties shall take all appropriate measures, including legislation, to suppress all forms of traffic in women and
exploitation of prostitution of women.
PART II
Article 7
States Parties shall take all appropriate measures to eliminate discrimination against women in the political and
public life of the country and, in particular, shall ensure to women, on equal terms with men, the right:
(a) To vote in all elections and public referenda and to be eligible for election to all publicly elected bodies;
(b) To participate in the formulation of government policy and the implementation thereof and to hold public
office and perform all public functions at all levels of government;
(c) To participate in non-governmental organizations and associations concerned with the public and political life
of the country.
Article 8
States Parties shall take all appropriate measures to ensure to women, on equal terms with men and without any
discrimination, the opportunity to represent their Governments at the international level and to participate in the
work of international organizations.
Article 9
1. States Parties shall grant women equal rights with men to acquire, change or retain their nationality. They shall
ensure in particular that neither marriage to an alien nor change of nationality by the husband during marriage
shall automatically change the nationality of the wife, render her Stateless or force upon her the nationality of
the husband.
2. States Parties shall grant women equal rights with men with respect to the nationality of their children.
PART III
Article 10
States Parties shall take all appropriate measures to eliminate discrimination against women in order to ensure to
them equal rights with men in the field of education and in particular to ensure, on a basis of equality of men and
women:
(a) The same conditions for career and vocational guidance, for access to studies and for the achievement of
diplomas in educational establishments of all categories in rural as well as in urban areas; this equality shall be
ensured in pre-school, general, technical, professional and higher technical education, as well as in all types of
vocational training;
196
(b) Access to the same curricula, the same examinations, teaching staff with qualifications of the same standard
and school premises and equipment of the same quality;
(c) The elimination of any stereotyped concept of the roles of men and women at all levels and in all forms of
education by encouraging coeducation and other types of education which will help to achieve this aim and, in
particular, by the revision of textbooks and school programmes and the adaptation of teaching methods;
(d ) The same opportunities to benefit from scholarships and other study grants;
(e) The same opportunities for access to programmes of continuing education, including adult and functional
literacy programmes, particularly those aimed at reducing, at the earliest possible time, any gap in education
existing between men and women;
(f) The reduction of female student drop-out rates and the organization of programmes for girls and women who
have left school prematurely;
(g) The same Opportunities to participate actively in sports and physical education;
(h) Access to specific educational information to help to ensure the health and well-being of families, including
information and advice on family planning.
Article 11
1. States Parties shall take all appropriate measures to eliminate discrimination against women in the field of
employment in order to ensure, on a basis of equality of men and women, the same rights, in particular:
(a) The right to work as an inalienable right of all human beings;
(b) The right to the same employment opportunities, including the application of the same criteria for selection
in matters of employment;
(c) The right to free choice of profession and employment, the right to promotion, job security and all benefits
and conditions of service and the right to receive vocational training and retraining, including apprenticeships,
advanced vocational training and recurrent training;
(d) The right to equal remuneration, including benefits, and to equal treatment in respect of work of equal value,
as well as equality of treatment in the evaluation of the quality of work;
(e) The right to social security, particularly in cases of retirement, unemployment, sickness, invalidity and old
age and other incapacity to work, as well as the right to paid leave;
(f) The right to protection of health and to safety in working conditions, including the safeguarding of the
function of reproduction.
2. In order to prevent discrimination against women on the grounds of marriage or maternity and to ensure their
effective right to work, States Parties shall take appropriate measures:
(a) To prohibit, subject to the imposition of sanctions, dismissal on the grounds of pregnancy or of maternity
leave and discrimination in dismissals on the basis of marital status;
197
(b) To introduce maternity leave with pay or with comparable social benefits without loss of former employment,
seniority or social allowances;
(c) To encourage the provision of the necessary supporting social services to enable parents to combine
family obligations with work responsibilities and participation in public life, in particular through promoting the
establishment and development of a network of child-care facilities;
(d) To provide special protection to women during pregnancy in types of work proved to be harmful to them.
3. Protective legislation relating to matters covered in this article shall be reviewed periodically in the light of
scientific and technological knowledge and shall be revised, repealed or extended as necessary.
Article 12
1. States Parties shall take all appropriate measures to eliminate discrimination against women in the field of health
care in order to ensure, on a basis of equality of men and women, access to health care services, including those
related to family planning.
2. Notwithstanding the provisions of paragraph I of this article, States Parties shall ensure to women appropriate
services in connection with pregnancy, confinement and the post-natal period, granting free services where
necessary, as well as adequate nutrition during pregnancy and lactation.
Article 13
States Parties shall take all appropriate measures to eliminate discrimination against women in other areas of
economic and social life in order to ensure, on a basis of equality of men and women, the same rights, in particular:
(a) The right to family benefits;
(b) The right to bank loans, mortgages and other forms of financial credit;
(c) The right to participate in recreational activities, sports and all aspects of cultural life.
Article 14
1. States Parties shall take into account the particular problems faced by rural women and the significant roles
which rural women play in the economic survival of their families, including their work in the non-monetized
sectors of the economy, and shall take all appropriate measures to ensure the application of the provisions of the
present Convention to women in rural areas.
2. States Parties shall take all appropriate measures to eliminate discrimination against women in rural areas
in order to ensure, on a basis of equality of men and women, that they participate in and benefit from rural
development and, in particular, shall ensure to such women the right:
(a) To participate in the elaboration and implementation of development planning at all levels;
(b) To have access to adequate health care facilities, including information, counselling and services in family
planning;
198
(c) To benefit directly from social security programmes;
(d) To obtain all types of training and education, formal and non-formal, including that relating to functional
literacy, as well as, inter alia, the benefit of all community and extension services, in order to increase their
technical proficiency;
(e) To organize self-help groups and co-operatives in order to obtain equal access to economic opportunities
through employment or self employment;
(f) To participate in all community activities;
(g) To have access to agricultural credit and loans, marketing facilities, appropriate technology and equal
treatment in land and agrarian reform as well as in land resettlement schemes;
(h) To enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water
supply, transport and communications.
PART IV
Article 15
1. States Parties shall accord to women equality with men before the law.
2. States Parties shall accord to women, in civil matters, a legal capacity identical to that of men and the same
opportunities to exercise that capacity. In particular, they shall give women equal rights to conclude contracts
and to administer property and shall treat them equally in all stages of procedure in courts and tribunals.
3. States Parties agree that all contracts and all other private instruments of any kind with a legal effect which is
directed at restricting the legal capacity of women shall be deemed null and void.
4. States Parties shall accord to men and women the same rights with regard to the law relating to the movement
of persons and the freedom to choose their residence and domicile.
Article 16
1. States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating
to marriage and family relations and in particular shall ensure, on a basis of equality of men and women:
(a) The same right to enter into marriage;
(b) The same right freely to choose a spouse and to enter into marriage only with their free and full consent;
(c) The same rights and responsibilities during marriage and at its dissolution;
(d) The same rights and responsibilities as parents, irrespective of their marital status, in matters relating to
their children; in all cases the interests of the children shall be paramount;
(e) The same rights to decide freely and responsibly on the number and spacing of their children and to have
access to the information, education and means to enable them to exercise these rights;
199
(f) The same rights and responsibilities with regard to guardianship, wardship, trusteeship and adoption of
children, or similar institutions where these concepts exist in national legislation; in all cases the interests of the
children shall be paramount;
(g) The same personal rights as husband and wife, including the right to choose a family name, a profession and
an occupation;
(h) The same rights for both spouses in respect of the ownership, acquisition, management, administration,
enjoyment and disposition of property, whether free of charge or for a valuable consideration.
2. The betrothal and the marriage of a child shall have no legal effect, and all necessary action, including legislation,
shall be taken to specify a minimum age for marriage and to make the registration of marriages in an official
registry compulsory.
G.A. Res. 2200A (XXI), UN Doc A/6316 (1966)
200
1. Which of the following is NOT considered 4. Which of the following is NOT a goal of
a vulnerable group for the purposes the Convention on the Elimination of All
of providing special human rights Forms of Discrimination Against Women
protections? (CEDAW)?
A. Women A. The elimination of both de jure and de facto
B. Children discrimination
C. Indigenous Peoples B. Providing special assistance to women so
D. Democracies that they will become superior to men

C. Authorizing affirmative action to reverse
2. A 12-year-old girl is protected by _____. historical patterns of discrimination
A. the international bill of human rights only D. Obliging States to work toward the
B. the international bill of human rights and the elimination of economic, social, and
children’s conventions cultural conditions that contribute to the
C. the international bill of human rights, the subordination of women
children’s conventions, and CEDAW
5. Which of the following best describes
D. the CEDAW only
the problem that State reservations have
posed for CEDAW?
3. The Committee on the Status of Women
(CSW) is _____. A. No States have made reservations to the
treaty, which means that it will not enter into
A. a UN body under ECOSOC that has been
force
instrumental in the development of women’s
rights treaties B. A large number of States have made
reservations to the treaty, but it is not a
B. the treaty body that oversees the
problem because the reservations are minor
implementation of the Convention on the
Elimination of All Forms of Discrimination C. A large number of States have made
Against Women (CEDAW) reservations to the treaty, which means that

States do not think that CEDAW goes far
C. an NGO that lobbies for the advancement of
enough in protecting women
women
D. A large number of States have made
D. a regional body set up to provide expert
reservations to the treaty, and these
advice on the status of women in the region
reservations undermine some of CEDAWs
crucial protections
201
For questions 6–10, match the term with its definition:
6. Formal Equality A. An equality that treats some people

differently, depending on the relevant
social, historical, or cultural context.
B. Physical and biological differences

7. Substantive Equality
between women and men.
C. The process of bringing a gender

8. Sex perspective into the development of
all policies and programmes.
D. An equality that treats everyone

9. Gender exactly the same, regardless of their
circumstances.
E. The socially constructed roles assigned

10. Gender Mainstreaming
to women and men
Answer Key »
1. D
2. C
3. A
4. B
5. D
6. D
7. A
8. B
9. E
10. C
202
HUMAN RIGHTS
LESSON Human Rights of Vulnerable Persons
9 and Groups II: Children's Rights and

the Rights of Persons with Disabilities
In this lesson, we will

examine the special regimes
that protect two more
vulnerable groups: children
and disabled persons.
UN Photo #1401 by Milton Grant.
Section 9.1 Introduction • Understand the international system for protecting
children’s right.
Section 9.2 Children’s Rights
• Understand the international system for protecting the
Section 9.3 The Rights of Persons with
rights of disabled persons.
Disabilities
• Identify some theoretical issues with respect to the
Annex A Convention on the Rights of
application of these special rights regimes.
Persons with Disabilities (CRPD)
• Describe the additional protection for children and
persons with disabilities provided by the regional
systems.
203
LESSON 9 | Human Rights of Vulnerable Persons and Groups II: Children's Rights and the Rights of Persons with Disabilities
A view of indigenous children from the Embera people, displaced by armed conflict. There are over two million internally displaced
persons in Colombia and while forced displacement is always a very difficult experience, it is doubly catastrophic for indigenous
communities. Indigenous culture is closely linked to the land and displacement often leads to the total collapse of traditional authority
and cultural patterns. 14 June 2006. UN Photo #138803 by Mark Garten

In Lesson 8, we introduced the concept of vulnerable
groups and discussed one group that receives additional
protection at the global and regional levels: women. In this
lesson, we will examine the special regimes that protect two
more vulnerable groups: children and disabled persons.
As you read through this lesson, keep in mind the

discussion of theoretical perspectives from Lesson 8. The at <https://www.peaceopstraining.org/
issues of reinforcing difference, equality in law versus equality
of-vulnerable-persons-and-groups-
in fact, collective rights, and the limitations of groups apply
ii-childrens-rights-and-the-rights-of-
persons/>.
204
to both of the groups that we will discuss in this lesson as well. Additionally, try to compare each of the special
protection regimes described below with the regime for the protection of women’s rights that we discussed in Lesson
8. How do the systems for the protection of children’s rights and the rights of disabled persons resemble the system
for the protection of women’s rights? How do they differ? What might explain the differences that you observe?
Section 9.2 Children’s Rights
Children as a vulnerable group
“Children” are defined in international law as “every human being below the age of eighteen unless under the
law applicable to the child, majority is attained earlier”.1 Children are considered a vulnerable group and afforded
special protection under international law because, as stated in the “Declaration on the Rights of the Child” and the
Convention on the Rights of the Child (CRC), “the child, by reason of his physical and mental immaturity, needs
special safeguards and care, including appropriate legal protection, before as well as after birth”.2 When young,
children must rely on others to provide them with food, shelter, and clothing. Because they have no right to vote,
children must rely on adults to protect their political and legal interests. Additionally, children’s dependency on adults
makes them especially vulnerable to abuse and exploitation.
The CRC is the most universally accepted of all human rights treaties under international law. But this does not
mean it is wholly uncontroversial.
To begin with, the ambiguous legal position of children has caused disagreements among people with different
ideas about children’s autonomy and dependency. Under international human rights law, children are given extra
protections in some areas (education, labour, armed conflict, sexual exploitation), and denied protection in others
(political participation, autonomous decision-making). These distinctions are justified on the basis of their immaturity
and inability to act rationally. However, if children really lack rationality and autonomy in this sense, can they be
holders of rights at all? The CRC attempts a balancing act, weighing children’s dependency against their capacity for
autonomy, their integration into families and communities against their individuality. However, not everyone agrees
that it has been successful in achieving a proper balance.
Some observers believe that the line has been drawn too far toward the “autonomy” end of the spectrum. They
argue that assigning rights to children corrodes parental rights and authority, and is thus destructive of traditional
family values.3
Others believe that the balance has been tipped too far in the direction of “dependency”, and have argued from
a radical egalitarian perspective that assigning children fewer rights than adults amounts to oppression and age
discrimination.4
Another point of contention is the CRC’s definition of “children”. According to the convention, a “child” is anyone
that falls below a temporal age-based cut-off. Under this formulation, there is no difference between a four-year-
old and a 17-year-old, despite the fact that a 17-year-old may consider herself an adult, and has far more capacity
for autonomy and rational decision-making than a four-year-old. Advocates for a more nuanced position propose a
graduated approach taking into account children’s differentiated capacities. But others claim that this would be too
difficult to enforce, and disagreement among nations would be too substantial.
1) Convention on the Rights of the Child, 20 November 1989, Art. 1.

2) CRC, Preamble; “Declaration on the Rights of the Child”, resolution 1386, 1959, Preamble.
3) See: Christian Coalition, A Contract with the American Family, Ralph Reed, ed. (New York: Random House, 1994).
4) See: John Holt, Escape from Childhood (New York: E. Dutton, 1973).
205
Finally, a number of observers have made the cultural relativist point that the CRC and other global protection
schemes rely exclusively on Western notions of children and childhood, and do not take into account practices in
different cultures:
“[The special protection system for children] has been

developed within a framework based on middle-class Western
ideals about childhood as a time of dependency and innocence
during which children are socialized by adults and become
competent social actors. Economic and social responsibilities
are generally mediated by adults so that the children can grow
up free from pressures of responsibilities such as work and child
care. Children who are not raised in this way are considered
“victims” who have had their childhood stolen from them. This
framework views universal concern for children as transcending
political and social divides; assumes a universally applicable
model of childhood development; presupposes a consensus
on what policies should be in place to realize the best interest
of the child; assumes that child victims have universal needs
(such as a need for rehabilitation); and promotes a therapeutic
model of service provision.”5
As you read through the following sections detailing the children’s rights regime, keep in mind these tensions
between autonomy and dependency, between universalism and cultural relativism. How has the human rights system
navigated these debates? Has it been successful in doing so?
A brief history of children’s rights in international law
The protection of children’s rights under international law dates back to 1924, when the League of Nations
adopted the “Geneva Declaration on the Rights of the Child”. This declaration contained five basic principles granting
special protection to children, including:
• The right to food and shelter;
• The right to relief in times of distress;
• The right to adequate preparation for earning a livelihood; and
• The right to be “brought up in the consciousness that its talents must be devoted to the service of fellow
men”.6
After the formation of the United Nations, the General Assembly adopted a retooled “Declaration on the Rights of
the Child” in 1959. The United Nations Children’s Fund (UNICEF), a UN specialized agency, was established in 1946 to
provide European children with food, clothing, and health care in the aftermath of the Second World War. From these
roots, UNICEF quickly expanded to become a primary advocate of children’s rights at the global level.
5) Elzbieta M. Gozdziak, “On Challenges, Dilemmas, and Opportunities in Studying Trafficked Children”, Anthropological Quarterly, vol. 81, 2008.
6) “Geneva Declaration on the Rights of the Child”, 1924, Principle 5.
206
The treaties that make up the international bill of human rights mention children in several different contexts.
The Universal Declaration of Human Rights (UDHR) proclaims that childhood (along with motherhood) is “entitled
to special care and assistance” and assures that “all children, whether born in or out of wedlock, shall enjoy the
same social protection”.7 The International Covenant on Civil and Political Rights (ICCPR) gives special protection
to children in the event of the dissolution of the family,8 and declares that: “Every child shall have, without any
discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such
measures of protection as are required by his status as a minor, on the part of his family, society and the State”
including the right to a name, legal registration, and a nationality.9 The International Covenant on Economic, Social
and Cultural Rights (ICESCR) also makes special mention of children:
Special measures of protection and assistance should be

taken on behalf of all children and young persons without any
discrimination for reasons of parentage or other conditions.
Children and young persons should be protected from economic
and social exploitation. Their employment in work harmful to
their morals or health or dangerous to life or likely to hamper
their normal development should be punishable by law. States
should also set age limits below which the paid employment of
child labour should be prohibited and punishable by law.10
The UN General Assembly declared 1979 the International Year of the Child. In recognition of this event, the
General Assembly pressed the Commission on Human Rights to begin drafting a new convention that would put the
rights of children into a separate instrument. Though a Working Group on the issue was immediately formed, it would
be 10 years before the resulting treaty was ready to be voted on in the General Assembly.
Convention on the Rights of the Child
The UN Convention on the Rights of the Child (CRC) sets out all of the protected rights of children in a single
legally binding document. Unlike other human rights treaties, the CRC specifically addresses children and protects
them as separate, autonomous beings. It reformulates many civil and political and economic, social, and cultural
rights in terms that focus on the special needs of children. For example, the CRC explains that a child’s right to health
includes measures to diminish infant mortality, the provision of prenatal and post-natal care for mothers, access to
education, and access to knowledge of child health and nutrition, breastfeeding, and hygiene.11
The CRC was adopted by the General Assembly on 20 November 1989 and entered into force on 2 September
1990. Today, the CRC is one of the most widely ratified treaties in the international system. Currently, 193 countries
have ratified the CRC, representing every member of the United Nations with the exception of Somalia and the
United States of America.12
Under the convention, children are entitled to an extensive set of civil, political, economic, social, and cultural
rights. These rights have been elaborated on the basis of four core “general principles” (as identified by the Committee
on the Rights of the Child), which inform and structure all of the other protections granted by the CRC:
7) Universal Declaration of Human Rights, 1948, Art. 25.

8) International Covenant on Civil and Political Rights, 1966, Art. 23.
9) ICCPR, Art. 24.
10) International Covenant on Economic, Social and Cultural Rights, 1966, Art. 10.
11) CRC, Art. 24.
12) Current as of October 2011. An updated list of all State parties to the CRC can be found in the UN Treaty Collection website: <http://treaties.
un.org/>.
207
• The principle of non-discrimination;
• Devotion to the best interests of the child;
• The right to life, survival, and development; and
• Respect for the views of the child.13
The multitude of protections afforded to children by the treaty fall into four general categories of rights:
• Survival rights: including the right to adequate living standards, and access to health services;
• Developmental rights: including the right to an education, access to information, recreation, cultural
activities, and freedom of thought, conscience, and religion;
• Protection rights: including the right to protection against economic exploitation, sexual exploitation,
cruelty, arbitrary separation of children from families, and abuses in the justice system; and
• Participation rights: including the child’s right to be involved in decisions on critical issues.
Additional protection and support is granted to children who have been separated from their parents, have been
victims of abuse or exploitation, are refugees, or have any kind of disability.14
The CRC created a treaty body — the Committee on the Rights of the Child (CRC Committee) — to oversee
the implementation of the convention. Like CEDAW, the CRC requires Member States to submit periodic reports on
measures they have taken to implement the convention. The primary duties of the Committee are to review and
comment on the periodic reports submitted by Member States and to monitor State compliance with the CRC. The
CRC Committee also interprets the convention by issuing General Comments.
Unlike the CEDAW Committee, the CRC Committee has no power to receive individual or inter-State complaints.
However, because a number of the children’s rights contained in the CRC are also contained in the ICCPR and other
international human rights treaties, some children have been able to bring their complaints before the Human Rights
Committee or another international human rights body.
In 2000, the UN General Assembly adopted two Optional Protocols to the convention. The first concerns the
recruitment and involvement of children in armed conflicts. Signatories to the Optional Protocol on Children in Armed
Conflict agree to take all feasible measures to ensure that persons under the age of 18 are not forced to serve in the
armed forces, and also to ensure that any persons under age 18 who are a part of the military do not directly take
part in hostilities. Interestingly, this Optional Protocol is one of the few that directly addresses non-State actors:
Article 4 unconditionally prohibits armed groups that are not a part of the armed forces of the State from recruiting
or using persons under the age of 18 in hostilities.15 As of 2011, 143 of the CRC’s 193 signatories have ratified the
Optional Protocol on Children in Armed Conflict.16
The second is the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography. Under
the second Optional Protocol, State Parties must ensure that the sale of children, child prostitution, and child
pornography are criminalized both within and outside of their territories. It also requires States to either prosecute or
extradite any offenders found within their borders, and establishes extensive enforcement jurisdiction, allowing State
Parties to prosecute persons who violate these laws whenever the offence was committed in the State’s territory, by
13) CRC, Arts. 2, 3, 6, and 12.

14) CRC, Arts. 20, 22, 23, and 30.
15) For more on the application of international law to non-State actors, see the discussion in Lesson 14.
16) Current as of October 2011. An updated list of all State parties to the Optional Protocol on Children in Armed Conflict can be found in the UN Treaty
Collection website: <http://treaties.un.org/>.
208
a national of the State, or against a victim who is a national of the State.17 The Optional Protocol also requires the
confiscation of materials and assets that were involved in crimes against children and allows for protective measures
to be taken on behalf of victims. As of 2011, 150 parties have ratified this Optional Protocol.18
Children’s rights at the global level
The United Nations Children’s Fund (UNICEF) remains one of the key global organizations concerned with
children’s rights. Its mission has expanded considerably since its early days in the 1940s, and it is now tasked with
improving the lives of children across the globe. Among its many projects, UNICEF does advocacy work, provides
technical support and assistance to national governments, and is one of the world’s foremost vaccine suppliers.
Several other international organizations also have programmes related to children’s rights, and some of these
provide even greater protection than is mandated by the CRC. The ILO, for example, has implemented strict rules
on working conditions for children as part of the fight to eliminate child labour. Under the CRC’s “most favourable
treatment” rule, any rules that offer children extra protection supersede less protective rules in the CRC for those
countries to which they apply. For example, CRC Article 32 provides that:
“States Parties recognize the right of the child to be protected

from economic exploitation and from performing any work
that is likely to be hazardous or to interfere with the child’s
education, or to be harmful to the child’s health or physical,
mental, spiritual, moral or social development.”
The Article goes on to require that State Parties adequately regulate the conditions under which children may
work. It does not, however, State a minimum age for employment. The ILO has set much more specific regulations.
The 1973 ILO Convention 138, Concerning Minimum Age for Admission to Employment stipulates that the minimum
age for employment is to be no less than 15 years of age, except in developing countries, which may initially specify
a minimum age of no less than 14 years. ILO 138 also provides that for certain types of employment, such as
employment in hazardous industries, the minimum age of employment shall be no less than 18 years. In addition,
the 1999 ILO Convention 182, Concerning the Prohibition and Immediate Action for the Elimination of the Worst
Forms of Child Labour, calls on Member States to take immediate measures to eliminate:
“all forms of slavery or practices similar to slavery, such as the

sale and trafficking of children, debt bondage and serfdom and
forced or compulsory labour, including forced or compulsory
recruitment of children for use in armed conflict;
the use, procuring or offering of a child for prostitution, for the

production of pornography or for pornographic performances;
the use, procuring or offering of a child for illicit activities, in

particular for the production and trafficking of drugs as defined
in the relevant international treaties;
17) For more on the topic of jurisdiction under international law, see the discussion of universal jurisdiction in Lesson 12.
18) Current as of October 2011. An updated list of all State parties to the Optional Protocol on the Sale of Children, Child Prostitution and Child
Pornography can be found in the UN Treaty Collection website: <http://treaties.un.org/>.
209
work which, by its nature or the circumstances in which it is

carried out, is likely to harm the health, safety or morals of
children.”
Because these ILO standards are stricter than those in the CRC, States must abide by the higher standard in the ILO
Conventions, where applicable.
The Geneva Conventions also provide some standards of protection that are higher than those outlined in the
CRC. For example, while the CRC forbids the recruitment or use in hostilities of children under the age of 15,19
Protocol I to the Geneva Conventions of 1949 extends the period of extra protection to children between the ages of
15 and 17.20
Periodic international conferences and summits help to reaffirm the need for special protections of children’s
rights, and develop strategies for their enforcement and implementation. For example, the 1990 World Summit for
Children outlined numerous commitments for attending governments that were reaffirmed by the 2000 Millennium
Development Goals and the twenty-fourth special session of the United Nations General Assembly on “A World Fit for
Children”, held in 2002.
Children’s rights at the regional level
Each of the major regional systems provides further protections for the rights of children.
In Europe, children receive protection through many different channels. The European Social Charter mandates
special protection for children in employment,21 and the right of children and young persons to social, legal, and
economic protection.22 The 1967 European Convention on the Adoption of Children, the 1975 European Convention
on the Legal Status of Children born out of Wedlock, and the 1996 European Convention on the Exercise of Children’s
Rights provide additional protection to children within the European system. Article 24 of the European Charter
of Fundamental Rights also specifically addresses the rights of children. In addition to these treaties, hundreds of
directives, framework decisions, and green papers address children’s issues.23 Furthermore, the European Court of
Human Rights and the European Court of Justice have both heard a number of cases dealing with children’s issues.
As Professor Frans Viljoen of the University of Pretoria notes: “With some 44 percent of its population under
the age of 15, the adage that ‘children are the future’ rings more true in Africa than anywhere else.”24 Recognizing
the importance of children’s rights, the Organization of African Unity (now the African Union) adopted a “Declaration
on the Rights and Welfare of the Child” in 1979, and translated this into the legally binding African Charter on the
Rights and Welfare of the Child in 1990.25 The African Children’s Charter goes farther than the CRC in addressing
issues of particular importance to children in Africa, including the situation of children living under apartheid, factors
disadvantaging the female child, harmful practices such as female genital mutilation, illiteracy, child soldiers, and the
role of the community in bringing up children.26 The African Children’s Charter is overseen by the African Committee
of Experts on the Rights and Welfare of the Child, which examines State reports, receives individual complaints, and
19) CRC, Art. 38. Countries that have become party to the Option Protocol on Children in Armed Conflict have agreed to raise this age to 18.
20) Protocol Additional (I) to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts
(1977), Art. 77.
21) European Social Charter, 1961, rev. 1996, Art. 7.
22) Ibid., Art. 17.
23) Over 30 of these initiatives were developed just between 2000 and 2005. Sandy Ruxton, European Children’s Network, What About Us? Children’s
Rights in the European Union: Next Steps (Brussels: The European Children’s Network, 2005), 25.
24) Frans Viljoen, International Human Rights Law in Africa (New York: Oxford University Press, 2007), 260.
25) For the text of the African Charter on the Rights and Welfare of the Child and a list of current ratifications, see the African Union website: <http://
www.african-union.org/>.
26) Frans Viljoen, 262.
210
conducts on-site investigations. An African Youth Charter that focuses on youth participation and basic rights for
young people was agreed upon by the African Union in 2006, and came into force on 8 August 2009.27
There is no single instrument dealing specifically with children’s rights in the Inter-American system. However,
a number of instruments include some form of protection for children. The American Convention on Human Rights
mandates that children have equal rights whether born in or out of wedlock and that “every minor child has the right
to measures of protection … on the part of his family, society, and the State”.28 The 1989 Inter-American Convention
on the International Return of Children, the 1984 Inter-American Convention on the Conflict of Laws Concerning
the Adoption of Minors, and the 1994 Inter-American Convention on International Traffic in Minors all offer specific
protections for children living in the Americas. A Special Rapporteur on Child Rights appointed by the Commission can
receive communications and carry out on-site investigations. Additionally, the Inter-American Court of Human Rights
has ruled on several cases involving children’s rights, and has adopted an Advisory Opinion establishing that the rights
of children included in the American Convention are to be read in conjunction with the CRC.
From the most widely accepted regime for the protection of vulnerable groups, we will now turn to one of the
newest: the rights of persons with disabilities.
Section 9.3 The Rights of Persons with Disabilities
Persons with disabilities as a vulnerable group
Over 600 million people — approximately 10 per cent of the world’s population — have some form of disability.
Over two-thirds of these live in developing countries.29
Persons with disabilities have long suffered from discriminatory and harmful treatment at the hands of society.
For much of modern history, persons with disabilities were considered less than human and denied their basic rights.
Persons with disabilities have been the victims of genocide, eugenics, and discrimination.30 Even when not subject
to such gross abuses, they have suffered forced institutionalization, denial of legal capacity, and immobilization by
barriers in the social, educational, and built environments. They have been denied the right to bear and rear children,
to marry, to inherit, to access insurance or loans, and to own property. They have been segregated in education,
housing, and employment. To make matters worse, “these abuses remain hidden, normalized through widespread
assumptions that conflate disability with inability, even incompetence”.31
Assistance for the disabled traditionally came in the form of the medical model, an approach that views people
with disabilities as clinical objects rather than subjects, as medical problems or curiosities rather than rights-holders.
Under this view, when persons with disabilities experience difficulties, the problem is located within the persons
themselves, and arises due to their specific impairments, rather than in the way in which social, cultural, and
economic practices accommodate (or fail to accommodate) their differences. Solutions under the medical model
frequently came in the form of segregation and institutionalization. Disabled persons themselves were largely
invisible.
27) For the text of the African Youth Charter and a list of current ratifications, see the African Union website at <http://www.african-union.org/>.
28) American Convention on Human Rights, Arts. 17(5) and 19.
29) Gerard Quinn and Theresia Degener, Human Rights and Disability: The Current Use and Future Potential of United Nations Human Rights Instruments
in the Context of Disability, 2002, 1.
30) See Sally M. Rogow, “Persecution and Genocide of Children and Young People with Disabilities in Nazi Germany,” 26(2), Developmental Disabilities
Bulletin, 1998; Disabled People and the Right to Life: The Protection and Violation of Disabled People’s Most Basic Human Rights, Luke Clements and
Janet Read, eds., 2007.
31) Tara J. Melish, “The UN Disability Convention: Historic Process, Strong Prospects, and Why the US Should Ratify,” 14(2) Human Rights Brief 1, 2007,
7.
211
On Disability and Human Rights »

“Disability is a human rights issue! I repeat: disability is a human rights issue.
Those of us who happen to have a disability are fed up with being treated by the society and
our fellow citizens as if we did not exist or as if we were aliens from outer space. We are human
beings with equal value, claiming equal rights …
If asked, most people, including politicians and other decision makers, agree with us. The problem
is that they do not realize the consequences of this principle and they are not ready to take action
accordingly.”
–Bengt Lindqvist
from “Speech at the 19th Congress of Rehabilitation International” (2000)
Gradually, the medical model of disability has been replaced by a human rights model. The human rights model
focuses on the inherent dignity and worth of the human being, and only secondarily on specific limitations. It centres
the individual in decision-making (the goal of disability rights activists’ “nothing about us without us” campaign) and
locates “problems” in society’s lack of responsiveness, rather than solely in each person’s difference. Following the
“social model”, it tends to view disability as a socially constructed category: that is, as an idea that is not innate, but
rather applied to persons on the basis of their deviation from what we think of as “normal”. The human rights model
recognizes the fact that the social construct of disability sets people apart and keeps them separated by refusing
to accommodate differences from the norm.32 The road from medical to human rights model, from invisibility to
visibility, however, has been long and slow.
A brief history of the rights of persons with disabilities in international law
Although persons with disabilities are entitled to all of the human rights and fundamental freedoms protected by
the international bill of human rights, disability was not specifically mentioned anywhere in the ICCPR or ICESCR.33
Nor does it appear in CEDAW,34 the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment (CAT), the International Convention on the Protection of All Migrant Workers and their Families
(ICRMW), or the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). The UDHR
mentions disability only once — in the context of receiving social security.35
The CRC is the only one of the “core” human rights treaties that includes specific protections for persons with
disabilities.36 The CRC explicitly includes “the child’s or his or her parent’s or legal guardian’s … disability” as a
prohibited ground of discrimination in Article 2.37 It also sets out special protections for children with disabilities
32) Gerard Quinn and Theresia Degener, Human Rights and Disability: The Current Use and Future Potential of United Nations Human Rights Instruments
in the Context of Disability, United Nations publication, E.02.XIV.6, 15.
33) The Committee on Economic, Social and Cultural Rights “General Comment No. 5” (1994) on Persons with Disabilities attempts to ameliorate this
situation by explaining at length States’ responsibilities with respect to persons with disabilities under the ICESCR.
34) The Committee on the Elimination of Discrimination against Women’s “General Recommendation 18”, 1991, on disabled women expresses particular
concern about “the situation of disabled women, who suffer from a double discrimination linked to their special living conditions,” and recommends
that States include information on the status of women with disabilities in their periodic reports.
35) Universal Declaration of Human Rights, Art. 25(1).
36) See: Committee on the Rights of the Child “General Comment No. 9”, 2006, providing guidance and assistance to States in their efforts to implement
the CRC with respect to children with disabilities.
37) Convention on the Rights of the Child, Art. 2(1).
212
in Article 23, based on the premise that “a mentally or physically disabled child should enjoy a full and decent
life, in conditions which ensure dignity, promote self-reliance and facilitate the child’s active participation in the
community”.38
The lack of attention to disability in the general human rights conventions is partially a result of the virtual
invisibility of persons with disabilities. The historic marginalization and medicalization of the disabled led to a situation
in which governments and the international community could turn a blind eye to the particular needs of persons with
disabilities; their problems were seen as medical, not social. As Frédéric Mégret of McGill University explains:
“What these international human rights treaties have “missed”

when it comes to persons with disabilities is a variety of things.
First, they have been insufficiently alert to the fact that persons
with disabilities might be flatly denied their rights and missed
the obvious fact that it would help, for example, to specify
that disability can be a ground for discrimination. Second, they
have been inattentive to the extent to which different rights
may mean different things for different persons, so that certain
rights can only be fully realized if their content and the road to
their implementation are quite narrowly defined (in the treaties
themselves), bearing in mind the particular circumstances of
those they seek to protect. Third, the existing international
human rights regime has historically badly understood the fact
that the State is not always the main threat to the realization
of human rights of some, and the risk that social structures,
prejudices, the community or the family pose in processes of
exclusion, oppression, discrimination, or violence. Fourth and
at a deeper level, a concept of human rights that presupposes
that all individuals are equal because they are all fundamentally
alike can become oblivious to the fact that persons with
disabilities, for example, are not autonomous in the same way
as persons without disabilities.”39
Little by little, recognition of these lacunae grew, and the international community began to pay more attention
to the needs of disabled persons. Some early signs of a shift away from the medical and towards a human rights
model came in the 1970s, when the UN General Assembly adopted the “Declaration on the Rights of Mentally
Retarded Persons” (1971) and the “Declaration on the Rights of Disabled Persons” (1975). These agreements were
significant because both State that disabled persons enjoy the same civil and political rights as other persons.
The 1980s marked “an irreversible shift” towards the human rights model.40 To increase awareness, the UN
declared 1981 the International Year of Disabled Persons, and then proclaimed the decade from 1983 to 1992 the
International Decade of Disabled Persons. The General Assembly adopted the World Programme of Action Concerning
Disabled Persons in 1982,41 and the Standard Rules on the Equalization of Opportunities for Persons with Disabilities
in 1993.42 Additionally, in 1994 the UN appointed a Special Rapporteur on Disability.
38) Ibid., Art. 23(1).

39) Frédéric Mégret, “The Disabilities Convention: Human Rights of Persons with Disabilities or Disability Rights?” Human Rights Quarterly, vol. 30, 2008.
40) Gerard Quinn and Theresia Degener, 30.
41) World Programme of Action Concerning Disabled Persons, A/37/351, 1982.
42) Standard Rules on the Equalization of Opportunities for Persons with Disabilities, A/Res/48/96 1993.
213
At the beginning of the twenty-first century, a global consensus had emerged that “the architecture of the
current human rights regime — despite its universal application to persons with disabilities and clear prohibitions
of discrimination on the basis of disability — [had] proved ineffective in ensuring equal rights for persons with
disabilities in practice”.43 The determinative push to draft a binding Disability Convention came in 2001, and the UN
General Assembly established an Ad Hoc Committee on a Comprehensive and Integral International Convention
on Protection and Promotion of the Rights and Dignity of Persons with Disabilities that was mandated “to consider
proposals for a comprehensive and integral international convention to promote and protect the rights and dignity of
persons with disabilities, based on the holistic approach in the work done in the fields of social development, human
rights and non-discrimination”.
The drafting process was characterized by an unprecedented level of NGO and civil society input and engagement.
Over the course of its work, the Ad Hoc Committee consulted with a broad spectrum of NGOs, disabled persons
organizations, academia, UN agencies, intergovernmental organizations, and national human rights institutions to
draft the convention and its Optional Protocol.44 Civil society participation was recognized as a necessity in all stages
of the treaty drafting and implementation process: UN and State officials lacked specialized expertise in disability
issues, and therefore turned to NGOs and disabled persons organizations for assistance.
Convention on the Rights of Persons with Disabilities
The Convention on the Rights of Persons with Disabilities (CRPD) is the newest comprehensive convention for
the protection of a vulnerable group. The CRPD and its Optional Protocol were unanimously adopted on December
13, 2006, and opened for signature on March 30, 2007.45 On the first day, the CRPD received signatures from a
record 81 States.46 The CRPD entered into force on May 3, 2008, and currently boasts 106 State parties.47
The goal of the CRPD is “to promote, protect and ensure the full and equal enjoyment of all human rights and
fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity”.48 It defines
persons with disabilities as “those who have long-term physical, mental, intellectual or sensory impairments which
in interaction with various barriers may hinder their full and effective participation in society on an equal basis with
others”.49 The CRPD protects key rights such as the rights to make decisions, to marry, to have a family, to work, and
to education. Article 3 lists eight “general principles” which underlie the protections provided by the CRPD:
• Respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and
independence of persons;
• Non-discrimination;
• Full and effective participation and inclusion in society;
• Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity;
• Equality of opportunity;
• Accessibility;
• Equality between men and women; and
43) Tara J. Melish, “The UN Disability Convention: Historic Process, Strong Prospects, and Why the US Should Ratify”, Human Rights Brief, vol. 14, no. 2,
2007, 7.
44) Ibid., 3.
45) Convention on the Rights of Persons with Disabilities, A/61/611, 2006.
46) “Independent Rights Expert Calls for More Support for UN Treaty on Disabilities,” UN News Centre, 12 April 2007.
47) Current as of October 2011. For an updated list of State parties to the CRPD, visit the UN Treaty Service website: <http://treaties.un.org/>.
48) Convention on the Rights of Persons with Disabilities, A/61/611, 2006, Art. 1.
49) Ibid.
214
• Respect for the evolving capacities of children with disabilities and respect for the right of children with
disabilities to preserve their identities.50
The CRPD attempts to do several things.51 First, it restates the application of existing human rights to persons
with disabilities, reaffirming that disabled persons are entitled to civil, political, economic, social, and cultural human
rights, and have the right to enjoy them “on an equal basis with others”.52 This affirmation that “the rights of disabled
persons are human rights” (to paraphrase the slogan used by women’s rights activists) is particularly important
given the long history of dehumanization and mistreatment of persons with disabilities.
Second, the CRPD reformulates and clarifies how certain human rights apply in the context of persons with
disabilities. It instructs States to adopt, modify or repeal laws, mainstream disability issues, undertake research and
development, launch public awareness campaigns, build or adapt infrastructures, train specialized personnel, employ
certain individuals, provide certain services or assistance, and consult with disability rights groups.53 For example,
the CRPD explains that for persons with disabilities, the right to equal recognition before the law, protected by the
ICCPR, means having access to “the support they may require in exercising their legal capacity” and being protected
by “appropriate and effective safeguards to prevent abuse in accordance with international human rights law”.54
“Where the ‘able-bodied’ may be in a position to maximize their rights in a context of ‘laissez-faire’, the disabled
typically require a much more complex social, political, economic and institutional set-up to enjoy rights on an equal
basis.”55 By specifying particular measures that States must take to ensure that persons with disabilities can enjoy
the same economic, social, cultural, civil, and political rights as others, the CRPD moves away from the model of
formal equality implicitly adopted in the international bill of human rights and toward a model of substantive equality
that recognizes the effect of different starting positions and historical inequalities. It attempts to ensure that persons
with disabilities can enjoy their human rights in practice. As Professor Frédéric Mégret writes:
“If ever there was a group that has suffered from [the formal
equality] model, it is arguably persons with disabilities, who
have been consistently excluded from partaking in the many
human rights advances of the last fifty years not so much
because they were not covered in theory by existing rights,
than by the failure of States to focus their attention on their
particular difficulties. “Laissez faire” rights policies when
it comes to people with disabilities can have particularly
catastrophic consequences, in light of the complex needs of
these persons both to keep the State and society at bay on
the one hand, but enlist their help in security autonomy and
participation on the other.”56
50) CRPD, Art. 3.

51) See discussion in: Frédéric Mégret, “The Disabilities Convention: Human Rights of Persons with Disabilities or Disability Rights?” Human Rights
Quarterly, vol. 30, 2008.
52) Convention on the Rights of Persons With Disabilities. The phrase “on an equal basis with others” is repeated more than 30 times in the CRPD.
53) CRPD, Arts. 4, 7–9, 13, 15, 16, 19–21, 23–30, and 32.
54) Ibid., Art. 12.
55) Frédéric Mégret, “The Disabilities Convention: Towards a Holistic Conception of Rights”, International Journal of Human Rights, vol. 12, 2008.
56) Frédéric Mégret, “The Disabilities Convention: Human Rights of Persons with Disabilities or Disability Rights?”
215
Third, the CRPD articulates several additional rights that are specific to persons with disabilities. These include
rights to “full and effective participation and inclusion in society”,57 similar to but more extensive than the rights to
participate in political and social and cultural life described by the ICCPR and ICESCR, and to “autonomy”, including
the right to “personal mobility”,58 “accessibility”,59 and the “right to live independently”.60 These participation and
autonomy rights are indicative of the overall tone of the treaty, which focuses on “capability and inclusion: on
lifting the environmental and attitudinal barriers that prevent persons with disabilities from full inclusion and equal
participation in all aspects of community life”, rather than on “inability and sorting of impairment as a way to ‘parallel
track’ difference and socially justify exceptions to universally-held human rights”.61 Disability rights activist Tara
Melish praises this shift from exclusion to inclusion: “Under this approach, the disability problematic is no longer how
to provide for those deemed ‘unable’ to integrate into mainstream society, but rather how to make society accessible
to all persons, on an equal, non-separate basis”.62
The CRPD is overseen by a Committee on the Rights of Persons with Disabilities (CRPD Committee) that can
review periodic State reports, and issue general comments and recommendations. An Optional Protocol to the CRPD
establishes an individual complaints mechanism and inquiry procedure for State parties.63 In addition, the CRPD has
introduced one new mechanism not present in the other core human rights treaties: a biennial Conference of States
Parties for the discussion of best practices, difficulties in implementation, and other CRPD-related matters.
Writing Exercise 9: Creating Accessibility »

You are working in a small country that is party to the ICCPR, ICESCR, and CRPD. Hearing of
your expertise on this new human rights convention, the Minister of Education approaches you
to ask your advice on what steps she should take to make the system of primary education
comply with the CRPD.
• Read through the provisions of the CRPD. What does the convention say about
education?
• What steps can the Minister take to help implement the CRPD in the primary education
system? Which of these has the highest priority? What impact will these changes have
on the country’s budget? Do you think the Minister will comply with your suggestions?
• What difference do you think these steps will make for children with disabilities?
» Take a moment now to read through the selected provisions of the CRPD, attached
as Annex IV.
57) CRPD, Arts. 3, 19, 29, and 30.

58) Ibid., Art. 20.
59) Ibid., Arts. 3 and 9.
60) Ibid., Art. 19.
61) Tara J. Melish, 2.
62) Ibid., 8.
63) As of October 2011, 63 States are party to the Optional Protocol to the CRPD. For an updated list, see the UN Treaty Service website at <http://
treaties.un.org/>.
216
Amputees play in a football game, part of

the activities planned in observance of the
International Day of Peace, organized by the
United Nations Mission in Liberia (UNMIL).
21 September 2008. UN Photo #200143 by
Christopher Herwig.
The rights of persons with disabilities at the global level
In addition to the CRPD and the other instruments adopted through the General Assembly, several other
intergovernmental organizations have been involved in the protection of persons with disabilities.
The International Labour Organization (ILO) has been active in the area of disability and work, promoting
the inclusion and employability of persons with disabilities. One of the earliest international acknowledgements of
disability was made by the ILO in Recommendation No. 71 of 1944, which stated that disabled workers, “whatever the
origin of their disability, should be provided with full opportunities for rehabilitation, specialized vocational guidance,
training and retraining, and employment on useful work”.64 The ILO has developed a number of programme in this
area, such as the 1983 Convention No. 159 Concerning the Vocational Rehabilitation and Employment of Disabled
Persons, and the 2002 Code of Practice on Managing Disability in the Workplace.
The United Nations Educational, Scientific and Cultural Organization (UNESCO) has been active in highlighting the
educational needs of disabled persons. For example, UNESCO adopted the “Salamanca declaration and Framework of
Action for special educational needs” in 1994.
Finally, the World Health Organization (WHO) has focused on disability from the perspective of prevention and
rehabilitation.
The rights of persons with disabilities at the regional level
Over the past several decades, the European system has adopted a number of instruments specifically addressing
the situation of persons with disabilities. The European Social Charter was the first international human rights
treaty to specifically mention development, acknowledging that disabled persons have the right to independence,
social integration, and participation in community life.65 The Council of Europe issued a 1992 “Coherent Policy for
the Rehabilitation of People with Disabilities” that includes detailed sections on prevention, education, vocational
guidance and training, employment, social integration and environment, legal protection, and research.66 The EU’s
Employment Equality Directive of 2000 prohibits discrimination, including against persons with disabilities, in the
area of employment. In order to raise awareness, the European Union declared 2003 the European Year of People
with Disabilities.
In the Americas, the Inter-American Convention on the Elimination of All Forms of Discrimination Against Persons
with Disabilities was adopted in 1999. This Convention prohibits “discrimination against persons with disabilities”,
64) Employment (Transition from War to Peace) Recommendation No. 71, 1944.
65) ESC, Art. 15.
66) Council of Europe, Recommendation No. R (92) 6, 9 April 1992.
217
which it defines as any distinction, exclusion, or restriction based on a disability, record of disability, whether present
or past, which has the effect or objective of impairing or nullifying the recognition, enjoyment, or exercise by a
person with a disability of his or her human rights and fundamental freedoms.67 The OAS declared 2006–2016
the “Decade of the Americas for the Rights and Dignity of Persons with Disabilities”. And the Additional Protocol
to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights includes specific
protections for the disabled.68
There is no African equivalent to the CRPD, but the Protocol to the African Charter on the Rights of Women in
Africa, the African Charter on the Rights and Welfare of the Child, and the African Youth Charter all include special
protection for persons with disabilities.69 The African Charter on Human and Peoples’ Rights States that disabled
persons have the right to special measures of protection and provides that every individual shall have the right to
enjoy the best attainable State of physical and mental health.70 In order to further promote visibility and action, the
AU declared 1999–2009 to be the African Decade of Disabled People and developed a Continental Action Plan to
promote disability rights.71
The Asian and Arab States have also been active in this area. In April 1992, the UN Economic and Social
Commission for Asia and the Pacific declared 1993–2002 the Asian and Pacific Decade of Disabled Persons, and
extended the period to a second Decade from 2003–2012. The Arab States declared an Arab Decade of Disabled
Persons from 2003–2012.
Conclusion
In Lessons 8 and 9, we have examined the concept of special regimes for the protection of vulnerable groups,
and have looked in-depth at three such regimes: those for women, children, and persons with disabilities. In Lesson
10, we will conclude our discussion of vulnerable groups by studying three more groups that receive protection under
international law: ethnic, linguistic, and religious minorities; indigenous peoples; and refugees.
Further reading
• Mark Ensalaco and Linda C. Majka, Children’s Human Rights, 2005.
• Gerard Quinn and Theresia Degener, Human Rights and Disability: The Current Use and Future Potential of
United Nations Human Rights Instruments in the Context of Disability, 2002.
• Tara J. Melish, “The UN Disability Convention: Historic Process, Strong Prospects, and Why the US Should
Ratify”, Human Rights Brief, vol. 14, no. 2, 2007.
• Frédéric Mégret, “The Disabilities Convention: Human Rights of Persons with Disabilities or Disability
Rights?” Human Rights Quarterly, vol. 30, 2008.
• CRC Commission: <www.ohchr.org/EN/HRBodies/CRC/Pages/CRCIndex.aspx>
• OHCHR Disability site: <www.ohchr.org/en/issues/disability/pages/disabilityindex.aspx>
• UNICEF: <www.unicef.org>
67) Inter-American Convention on the Elimination of all Forms of Discrimination against Persons with Disabilities, 1999, Art. 1.2.
68) Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, Art. 18.
69) Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, Art. 23; African Charter on the Rights and Welfare of
the Child, Art. 13; African Youth Charter, Art. 24.
70) African Charter on Human and Peoples’ Rights, Arts. 16 and 18.
71) Useful information is available on the website of the African decade: <www.africandecade.org/>.
218
Annex IV: Convention on the Rights of Persons with Disabilities
Convention on the Rights of Persons with Disabilities
(Selected Provisions)
PREAMBLE
(a) Recalling the principles proclaimed in the Charter of the United Nations which recognize the inherent dignity
and worth and the equal and inalienable rights of all members of the human family as the foundation of freedom,
justice and peace in the world,
(b) Recognizing that the United Nations, in the Universal Declaration of Human Rights and in the International
Covenants on Human Rights, has proclaimed and agreed that everyone is entitled to all the rights and freedoms set
forth therein, without distinction of any kind,
(c) Reaffirming the universality, indivisibility, interdependence and interrelatedness of all human rights and
fundamental freedoms and the need for persons with disabilities to be guaranteed their full enjoyment without
discrimination,
(d) Recalling the International Covenant on Economic, Social and Cultural Rights, the International Covenant on
Civil and Political Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the
Convention on the Elimination of All Forms of Discrimination against Women, the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment, the Convention on the Rights of the Child, and the
International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families,
(e) Recognizing that disability is an evolving concept and that disability results from the interaction between
persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation
in society on an equal basis with others,
(f) Recognizing the importance of the principles and policy guidelines contained in the World Programme of
Action concerning Disabled Persons and in the Standard Rules on the Equalization of Opportunities for Persons with
Disabilities in influencing the promotion, formulation and evaluation of the policies, plans, programmes and actions
at the national, regional and international levels to further equalize opportunities for persons with disabilities,
(g) Emphasizing the importance of mainstreaming disability issues as an integral part of relevant strategies of
sustainable development,
(h) Recognizing also that discrimination against any person on the basis of disability is a violation of the inherent
dignity and worth of the human person,
(i) Recognizing further the diversity of persons with disabilities,
(j) Recognizing the need to promote and protect the human rights of all persons with disabilities, including those
who require more intensive support,
(k) Concerned that, despite these various instruments and undertakings, persons with disabilities continue to
face barriers in their participation as equal members of society and violations of their human rights in all parts of the
world,
219
(l) Recognizing the importance of international cooperation for improving the living conditions of persons with
disabilities in every country, particularly in developing countries,
(m) Recognizing the valued existing and potential contributions made by persons with disabilities to the overall
well-being and diversity of their communities, and that the promotion of the full enjoyment by persons with disabilities
of their human rights and fundamental freedoms and of full participation by persons with disabilities will result in
their enhanced sense of belonging and in significant advances in the human, social and economic development of
society and the eradication of poverty,
(n) Recognizing the importance for persons with disabilities of their individual autonomy and independence,
including the freedom to make their own choices,
(o) Considering that persons with disabilities should have the opportunity to be actively involved in decision-
making processes about policies and programmes, including those directly concerning them,
(p) Concerned about the difficult conditions faced by persons with disabilities who are subject to multiple or
aggravated forms of discrimination on the basis of race, colour, sex, language, religion, political or other opinion,
national, ethnic, indigenous or social origin, property, birth, age or other status,
(q) Recognizing that women and girls with disabilities are often at greater risk, both within and outside the of
violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation,
(r) Recognizing that children with disabilities should have full enjoyment of all human rights and fundamental
freedoms on an equal basis with other children, and recalling obligations to that end undertaken by States Parties to
the Convention on the Rights of the Child,
(s) Emphasizing the need to incorporate a gender perspective in all efforts to promote the full enjoyment of
human rights and fundamental freedoms by persons with disabilities,
(t) Highlighting the fact that the majority of persons with disabilities live in conditions of poverty, and in this
regard recognizing the critical need to address the negative impact of poverty on persons with disabilities,
(u) Bearing in mind that conditions of peace and security based on full respect for the purposes and principles
contained in the Charter of the United Nations and observance of applicable human rights instruments are
indispensable for the full protection of persons with disabilities, in particular during armed conflicts and foreign
occupation,
(v) Recognizing the importance of accessibility to the physical, social, economic and cultural environment, to
health and education and to information and communication, in enabling persons with disabilities to fully enjoy all
human rights and fundamental freedoms,
(w) Realizing that the individual, having duties to other individuals and to the community to which he or
she belongs, is under a responsibility to strive for the promotion and observance of the rights recognized in the
International Bill of Human Rights,
(x) Convinced that the family is the natural and fundamental group unit of society and is entitled to protection
by society and the State, and that persons with disabilities and their family members should receive the necessary
protection and assistance to enable families to contribute towards the full and equal enjoyment of the rights of
persons with disabilities,
220
(y) Convinced that a comprehensive and integral international convention to promote and protect the rights and
dignity of persons with disabilities will make a significant contribution to redressing the profound social disadvantage
of persons with disabilities and promote their participation in the civil, political, economic, social and cultural spheres
with equal opportunities, in both developing and developed countries,
Have agreed as follows :
Article 1 - Purpose
The purpose of the present Convention is to promote, protect and ensure the full and equal enjoyment of all
human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent
dignity.
Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments
which in interaction with various barriers may hinder their full and effective participation in society on an equal basis
with others.
Article 3 - General principles
The principles of the present Convention shall be:
(a) Respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and
independence of persons;
(b) Non-discrimination;
(c) Full and effective participation and inclusion in society;
(d) Respect for difference and acceptance of persons with disabilities as part of human diversity and
humanity;
(e) Equality of opportunity;
(f) Accessibility;
(g) Equality between men and women;
(h) Respect for the evolving capacities of children with disabilities and respect for the right of children with
disabilities to preserve their identities.
Article 5 - Equality and non-discrimination
1. States Parties recognize that all persons are equal before and under the law and are entitled without any
discrimination to the equal protection and equal benefit of the law.
2. States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with
disabilities equal and effective legal protection against discrimination on all grounds.
221
3. In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to
ensure that reasonable accommodation is provided.
4. Specific measures which are necessary to accelerate or achieve de facto equality of persons with disabilities
shall not be considered discrimination under the terms of the present Convention.
Article 7 - Children with disabilities
1. States Parties shall take all necessary measures to ensure the full enjoyment by children with disabilities of all
human rights and fundamental freedoms on an equal basis with other children.
2. In all actions concerning children with disabilities, the best interests of the child shall be a primary consideration.
3. States Parties shall ensure that children with disabilities have the right to express their views freely on all
matters affecting them, their views being given due weight in accordance with their age and maturity, on an equal
basis with other children, and to be provided with disability and age-appropriate assistance to realize that right.
Article 8 - Awareness-raising
1. States Parties undertake to adopt immediate, effective and appropriate measures:
(a) To raise awareness throughout society, including at the family level, regarding persons with disabilities,
and to foster respect for the rights and dignity of persons with disabilities;
(b) To combat stereotypes, prejudices and harmful practices relating to persons with disabilities, including
those based on sex and age, in all areas of life;
(c) To promote awareness of the capabilities and contributions of persons with disabilities.
2. Measures to this end include:
(a) Initiating and maintaining effective public awareness campaigns designed:
(i) To nurture receptiveness to the rights of persons with disabilities;
(ii) To promote positive perceptions and greater social awareness towards persons with disabilities;
(iii) To promote recognition of the skills, merits and abilities of persons with disabilities, and of their
contributions to the workplace and the labour market;
(b) Fostering at all levels of the education system, including in all children from an early age, an attitude of
respect for the rights of persons with disabilities;
(c) Encouraging all organs of the media to portray persons with disabilities in a manner consistent with the
purpose of the present Convention;
(d) Promoting awareness-training programmes regarding persons with disabilities and the rights of persons
with disabilities.
222
Article 9 - Accessibility
1. To enable persons with disabilities to live independently and participate fully in all aspects of life, States
Parties shall take appropriate measures to ensure to persons with disabilities access, on an equal basis with others,
to the physical environment, to transportation, to information and communications, including information and
communications technologies and systems, and to other facilities and services open or provided to the public, both
in urban and in rural areas. These measures, which shall include the identification and elimination of obstacles and
barriers to accessibility, shall apply to, inter alia:
(a) Buildings, roads, transportation and other indoor and outdoor facilities, including schools, housing,
medical facilities and workplaces;
(b) Information, communications and other services, including electronic services and emergency services.
2. States Parties shall also take appropriate measures to:
(a) Develop, promulgate and monitor the implementation of minimum standards and guidelines for the
accessibility of facilities and services open or provided to the public;
(b) Ensure that private entities that offer facilities and services which are open or provided to the public take
into account all aspects of accessibility for persons with disabilities;
(c) Provide training for stakeholders on accessibility issues facing persons with disabilities;
(d) Provide in buildings and other facilities open to the public signage in Braille and in easy to read and
understand forms;
(e) Provide forms of live assistance and intermediaries, including guides, readers and professional sign
language interpreters, to facilitate accessibility to buildings and other facilities open to the public;
(f) Promote other appropriate forms of assistance and support to persons with disabilities to ensure their
access to information;
(g) Promote access for persons with disabilities to new information and communications technologies and
systems, including the Internet;
(h) Promote the design, development, production and distribution of accessible information and
communications technologies and systems at an early stage, so that these technologies and systems
become accessible at minimum cost.
Article 24 - Education
1. States Parties recognize the right of persons with disabilities to education. With a view to realizing this right
without discrimination and on the basis of equal opportunity, States Parties shall ensure an inclusive education
system at all levels and life long learning directed to:
(a) The full development of human potential and sense of dignity and self-worth, and the strengthening of
respect for human rights, fundamental freedoms and human diversity;
223
(b) The development by persons with disabilities of their personality, talents and creativity, as well as their
mental and physical abilities, to their fullest potential;
(c) Enabling persons with disabilities to participate effectively in a free society.
2. In realizing this right, States Parties shall ensure that:
(a) Persons with disabilities are not excluded from the general education system on the basis of disability,
and that children with disabilities are not excluded from free and compulsory primary education, or from
secondary education, on the basis of disability;
(b) Persons with disabilities can access an inclusive, quality and free primary education and secondary
education on an equal basis with others in the communities in which they live;
(c) Reasonable accommodation of the individual’s requirements is provided;
(d) Persons with disabilities receive the support required, within the general education system, to facilitate
their effective education;
(e) Effective individualized support measures are provided in environments that maximize academic and
social development, consistent with the goal of full inclusion.
3. States Parties shall enable persons with disabilities to learn life and social development skills to facilitate their
full and equal participation in education and as members of the community. To this end, States Parties shall take
appropriate measures, including:
(a) Facilitating the learning of Braille, alternative script, augmentative and alternative modes, means and
formats of communication and orientation and mobility skills, and facilitating peer support and mentoring;
(b) Facilitating the learning of sign language and the promotion of the linguistic identity of the deaf
community;
(c) Ensuring that the education of persons, and in particular children, who are blind, deaf or deafblind, is
delivered in the most appropriate languages and modes and means of communication for the individual, and
in environments which maximize academic and social development.
4. In order to help ensure the realization of this right, States Parties shall take appropriate measures to
employ teachers, including teachers with disabilities, who are qualified in sign language and/or Braille, and to train
professionals and staff who work at all levels of education. Such training shall incorporate disability awareness and
the use of appropriate augmentative and alternative modes, means and formats of communication, educational
techniques and materials to support persons with disabilities.
5. States Parties shall ensure that persons with disabilities are able to access general tertiary education,
vocational training, adult education and lifelong learning without discrimination and on an equal basis with others. To
this end, States Parties shall ensure that reasonable accommodation is provided to persons with disabilities.
UN Doc A/61/611 (2006)
224
1. Which of the following best describes 7. Which of the following treaties is the
the set of treaties to which an 8-year- only one of the “core” human rights
old girl might be able to apply when her treaties other than the Disability
rights have been violated? Convention that specifically addresses
the rights of persons with disabilities?
A. The women’s conventions only
B. The children’s conventions only A. CEDAW
C. Both the women’s convention and B. ICESCR
international bill of human rights C. CRC
D. The women’s conventions, children’s D. ICCPR
conventions, and international bill of human

8. The Convention on the Rights of Persons
rights
with Disabilities was adopted in _____.
2. The principle UN treaty for the protection A. 1948

of children’s rights is the _____. B. 1966
C. 1989
3. Which of the following is NOT one of the
D. 2006
core principles informing the protection
of children’s rights at the global level?
9. Which of the following institutions has
A. Deference in all cases to the parents of the been active in promoting the rights of
child disabled persons at work?
B. The principle of non-discrimination A. The ILO
C. Devotion to the best interests of the child B. UNICEF
D. Respect for the views of the child C. The CEDAW Committee
D. The Security Council
4. Which of the following is NOT a power
of the Committee on the Rights of the 10. Which of the following regions has
Child? NOT declared a decade of persons with
A. Monitoring State compliance disabilities?
B. Receiving individual complaints A. Africa
C. Reviewing periodic State reports B. Antarctica
D. Issuing general comments C. The Americas
D. Asia
5. The UN specialized agency that focuses
on promoting the rights of children is
_____.
A. UNICEF
B. UNIFEM
C. the General Assembly
D. The FAO
6. The principle UN treaty for the protection

of the rights of disabled persons is the
_____.
225
Answer Key »
1. D
2. CRC or Convention on the Rights of the

Child
3. A
4. B
5. A
6. CRPD or Convention on the Rights of

Persons
7. C
8. D
9. A
10. B
226
HUMAN RIGHTS
LESSON Human Rights of Vulnerable Persons
10 and Groups III: The Rights of Minorities,

Indigenous Peoples, and Refugees

examine the special regimes
that protect three additional
vulnerable groups: ethnic,
linguistic, and religious
minorities; indigenous
peoples; and refugees.
UN Photo #99575 by Evan Schneider.
Section 10.1 Introduction • Understand the regime for protecting ethnic, linguistic,
and religious minorities at the global level.

Section 10.2 The Rights of Ethnic, Linguistic,
and Religious Minorities • Understand the system for protecting indigenous
peoples at the global level.

Section 10.3 Indigenous Peoples’ Rights
• Understand the special protection regime for refugees.
Section 10.4 The Protection of Refugees
• Identify regional initiatives for the protection of
minorities, indigenous peoples, and refugees.
• Understand the intersections between the systems for
the protection of various vulnerable groups.
227
LESSON 10 | Human Rights of Vulnerable Persons and Groups III: The Rights of Minorities, Indigenous Peoples, and Refugees
People in the minority part of the town of Orahovac (Rahovec) in Kosovo, Serbia. 24 April 2007. UN Photo #UN7697030 by Flaka Kuqi.

In Lessons 8 and 9, we introduced the concept of
vulnerable groups and discussed three such groups that
receive additional protection at the global and regional
levels: women, children, and persons with disabilities. In this
lesson, we will examine the special regimes that protect three
additional vulnerable groups: ethnic, linguistic, and religious

minorities; indigenous peoples; and refugees.
videos/87/lesson-10-human-rights-of-
vulnerable-persons-and-groups-ii-the-
rights-of-minorities-indigenous-peopl/>.
228
As you read through this lesson, keep in mind the discussion from the theoretical perspectives section in Lesson 8.
The issues of reinforcing difference, equality in law versus equality in fact, collective rights, and the limitations of
groups apply to each of the systems that we will discuss in this lesson. Additionally, try to compare each of the
special protection regimes described below with the regimes for the protection of women’s rights, children’s rights,
and the rights of disabled persons. How do the systems discussed in this lesson resemble the others that we have
examined? How do they differ? What might explain the similarities and differences that you observe?
Section 10.2 The Rights of Ethnic, Religious, and Linguistic

Minorities
Ethnic, religious, and linguistic uniformity in a country is today the exception, rather than the rule. Of the world’s
more than 191 officially designated States, at least 175 are “multi-ethnic”, meaning that minority groups make up
more than 5 per cent of their population.1 The average State is a hodgepodge of languages, religions, and ethnicities.
While many countries may have a culturally homogenous majority population, nearly all have national, ethnic,
linguistic, and religious minorities as well.2
There is no universally accepted definition of a “minority” in international human rights law. This may be because
minorities live in such a wide variety of situations: they may live together in well-defined and separate enclaves, or
they may be scattered throughout one or more nations; they may have a strong sense of group identity and a well-
defined history and culture; or they may have only a fragmented knowledge of their common heritage.3
The Special Rapporteur on Prevention of Discrimination and Protection of Minorities, Mr. Francesco Capotorti,
proposed the following working definition in a 1979 report:
“A group numerically inferior to the rest of the population of

a State and in a non-dominant position, whose members …
possess ethnic, religious or linguistic characteristics differing
from those of the rest of the population and show, if only
implicitly, a sense of solidarity, directed towards preserving
their culture, traditions, religion or language.”4
As is implied by this definition, it should be noted at the outset that while non-dominant minority groups are
considered “vulnerable” for the purposes of human rights, not all minorities are subject to oppression. Minority groups
may hold a variety of social, economic, and political positions within a society; may have happy or hostile relations
with the majority and other minority groups; and may be well integrated, rejected by the majority, or resistant to
assimilation. Differences among majority and various minority groups may be dramatic or inconsequential. Minorities
may even be economically or politically dominant within a society, as was the case with the white minority in
apartheid South Africa.
1) Abdulrahim Vijapur, “International Protection of Minority Rights”, International Studies, vol. 43, 2006.
2) The term “minorities” as used in international human rights law refers only to persons belonging to ethnic, religious, or linguistic minorities, not to
persons belonging to other identity groups (such as persons with disabilities or LGBT persons) sometimes referred to as minorities in common usage.
3) OHCHR, “Toward Developing Country Engagement Strategies on Minorities”, 2008, 2.

4) Francesco Capotorti, “Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities”, E/CN.4/Sub.2/384/Rev.1, 1979,
para. 568. Mr. Capotorti originally included a criterion of “nationality in the State” in this definition, but such qualification is no longer valid under
international law, and Capotorti himself dropped it in later works. See: Francesco Capotorti, “Minorities”, Encyclopedia of Public International Law, vol.
8, R. Bernhardt, ed., 1985.
229
Despite this diversity of circumstance, minorities in general have disproportionately been the targets of
xenophobia, racism, aggressive nationalism, economic and political discrimination, anti-Semitism, religious
fanaticism, and other forms of intolerance and oppression. Ethnic and religious difficulties have led to civil and
international war and violations of the peace, and are therefore matters of heightened global concern. The recent
tragedies of Rwanda, the former Yugoslavia, and Sudan illustrate these problems all too well.
The minority protection regime, like protections for vulnerable groups discussed in Lessons 8, 9, and 10, must
navigate the path between inclusion and exclusion, between equality and difference. Should the special protection
system exist at all? Why is it not enough to prohibit discrimination? Here, this dilemma takes the form of a conflict
between ideals — the ideal of protecting and encouraging diversity, and the ideal of equal protection — set against a
background of the familiar debate between universalism and cultural relativism.5 Should international law recognize
the right of self-determination for minorities? Should different rules apply to minority groups? How far should
respect for diversity extend? Should human rights law only protect against outright discrimination (promote formal
equality), or should it include a positive component, requiring States to assist minorities in gaining equality (promote
substantive equality)? Does affording special protections to minorities reinforce barriers, or break them down? As
Professor Patrick Macklem of the University of Toronto writes:
“Why should international human rights law vest members of

a minority community — either individually or collectively —
with rights that secure a measure of autonomy from the State
in which they are located? To the extent that the field offers
answers to this question, it does so from its deep commitment
to the protection of certain universal attributes of human
identity from the exercise of sovereign power. It protects
minority rights on the assumption that religious, cultural and
linguistic affiliations are essential features of what it means
to be a human being. But its acceptance of this assumption is
wary and partial. Minority rights might protect key features of
human identity, but they possess the capacity to divide people
into different communities, create insiders and outsiders,
pit ethnicity against ethnicity, and threaten the universal
aspirations that inform the dominant understanding of the
mission of the field.”6
A brief history of minority rights under international law
Protecting minorities is one of the oldest human rights causes addressed by international law. Human rights
scholar Professor Abdulrahim Vijapur points out that as early as the seventh century, the Prophet Mohammad drafted
the “Constitution of Medina”, which, following the laws of the Koran, proscribed tolerance toward other faiths, and
allowed protected minority groups (particularly the “people of the book”, meaning Christians and Jews) to practise
their religions and cultures and self-administer their personal laws.7 In Europe, the protection of national and religious
minorities was one of the precursors of modern-day human rights, and has roots going back to the seventeenth
5) See discussion in Lesson 1.

6) Patrick Macklem, “Minority Rights in International Law”, International Journal of Constitutional Law, vol. 6, 2008.
7) Abdulrahim Vijapur, supra note 1, 368.
230
Minority Rights and Conflict Prevention »

“We must do more to prevent conflicts happening at all. Most conflicts happen in … countries …
which are badly governed or where power and wealth are very unfairly distributed between ethnic
or religious groups. So the best way to prevent conflict is promote political arrangements in which
all groups are fairly represented, combined with human rights, minority rights and broad-based
economic development.”
–Kofi Annan
from “Statement on Presenting his Millennium Report” (2000)
century and the emergence of the Westphalian State.8 Because religious conflicts were the cause of a great deal of
strife on the European continent, early peace treaties often included provisions protecting religious minorities. In the
eighteenth and nineteenth centuries, for example, Western Europeans were concerned with the situation of Christian
minorities in the Ottoman Empire, and sought treaties protecting their rights in the East.9
The breakup of the Austro-Hungarian and Ottoman empires during the First World War refocused attention on the
protection of minority groups in the twentieth century. As the idea of “the nation” became increasingly important, the
creation of ethnically homogenous States became a popular goal. The European powers broke up these former empires
into pieces based on their own conceptions of where borders should be, transforming former national minorities into
majorities and creating new minority populations in the process. Realizing that perfect homogeneity was not possible,
the League of Nations established a regime to protect the rights of minority groups in Central and Eastern Europe (the
victorious Western European States rejected the application of such protections within their own borders). However, the
fact that this protective regime was limited to only certain countries and certain minority groups, in combination with the
weakness of the League of Nations, made it fairly ineffectual.10
Discrimination on the basis of ethnicity was a particular concern of early human rights activists, and was viewed
as being of primary importance in the context of the Second World War. As a UNESCO document from 1945 stated:
“the great and terrible war which has now ended was a war made possible by the denial of democratic principles
of the dignity, equality, and mutual respect for men, and by the propagation, in their place, through ignorance and
prejudice, of the doctrine of the inequality of men and races”.11
The 1948 UDHR makes no mention of minority rights, but does prohibit discrimination on the basis of “race,
colour … , language, religion … , national or social origin … or other status”.12 The Convention on the Prevention and
Punishment of the Crime of Genocide (the Genocide Convention), signed the same year, likewise makes no specific
mention of “minorities”, but provides protection against acts intended “to destroy, in whole or in part, a national,
ethnical, racial or religious group”.13 And the 1966 International Convention on the Elimination of All Forms of Racial
Discrimination (CERD), the second of the core UN human rights treaties to be adopted by the General Assembly,
prohibits “distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin
8) See discussion of the history of human rights in Lesson 1.

9) Henry J. Steiner, Philip Alston, and Ryan Goodman, International Human Rights in Context: Law, Politics, Morals (New York: Oxford University Press,
2008), 96.
10) Ibid., 97–8.
11) UNESCO, Conference for the Establishment of the United Nations Educational, Scientific, and Cultural Organization, ECO/CONF./29, 16 November
1945, 93.
12) UDHR, Art. 2.

13) Convention on the Prevention and Punishment of the Crime of Genocide, 1950, Art. II. One hundred and forty-two States are currently party to the
Genocide Convention. For an updated list, see the website of the UN Treaty Service at: <http://treaties.un.org/>
231
which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing,
of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public
life”.14
Despite the omission of any explicit mention of “minorities” from these treaties, in 1948 the General Assembly
established a Sub-Commission on Prevention of Discrimination and Protection of Minorities, which was instructed to
undertake “a thorough study of the problem of minorities”.15 It was at this Sub-Commission’s behest that explicit
protections for minorities were finally included in the 1966 ICCPR.
Protection of minority rights at the global level
Over the past 40 years, there has been a major shift in the protection of minorities from a model based on
encouraging assimilation into the dominant culture, to a “multicultural model” that respects and preserves ethnic,
linguistic, and religious differences through separate institutional mechanisms.16 Today, the protection of minorities at
the global level is based on a so-called “two pillar” structure:17
“I. Reiterating the general human rights that are of special

importance to minorities, such as the right to freedom of
association, freedom of religion, and the right of parents to
choose an education for their children;
II. Providing extra protections for minorities in the areas of:
1. Promoting substantive equality (equality in fact); and
2. Protecting minorities’ right to their cultural, linguistic,

and ethnic identity (including by prohibiting forced
assimilation).”
Importantly, these pillars focus on the individual rights of members of minority groups, rather than on their
rights as a group. Professor Patrick Thornberry argues that there are three basic reasons for this:
“The first is that the corporate conception challenges State

monopoly on power and loyalty, purporting to create an
‘entity’ with a legal and moral existence, capable of reaching
international law directly over the heads of governments. The
second is self-determination: it is sensed that reifying the
group will contribute to the intensification of its potential for
separatism. This also affects perceptions of the legitimacy of
autonomy — applauded but not mandated by international
law. The third is cultural — the literature is full on ‘cultural
14) International Convention on the Elimination of All Forms of Racial Discrimination, 1966, Art. 1. One hundred and seventy-five States are currently
party to CERD. For an updated list, see the website of the UN Treaty Service at: <http://treaties.un.org/>.
15) General Assembly Res. 217A(III), 10 December 1948. The Sub-Commission later morphed into the Sub-Commission on the Promotion and Protection
of Human Rights, and later into the Human Rights Council Advisory Body. See Lesson 4 for further discussion of the Advisory Body and its work today.
16) Will Kymlicka, Multicultural Odysseys: Navigating the New International Politics of Diversity (New York: Oxford University Press, 2007), 3. The rise of
“integration” laws in some European States may indicate, however, a swing back toward the assimilationist paradigm in some places.
17) Kristin Henrard, “International Protection of Minorities”, in Max Planck Encyclopedia of Public International Law, 2009. Available from: <http://www.
mpepil.com>.
232
relativism’, often and unfairly carrying the assumption that

minorities are peculiarly oppressive of women, dissidents,
etc. All this washes over minority rights with insinuations of
inadmissible practices.”18
Because of concerns that protecting minorities’ group rights would lead to claims of external self-determination
and encourage secessionist movements,19 or would disadvantage the “minority within the minority” (such as women,
children, persons with disabilities, or other historically disempowered groups who also belong to a minority ethnic,
linguistic, or religious group) by being too deferential to minority claims of cultural relativism,20 countries have been
very careful to ensure that the protection of minorities proceeded on an individual-rights, non-discrimination basis.
Because minority persons’ individual rights to cultural, linguistic, and ethnic identity must be exercised in
conjunction with other members of the group, however, minority rights cannot entirely escape their intrinsically
collective character. For this reason, they are sometimes known as hybrid rights. The hybrid formation is evident in
ICCPR Article 27, which has become the pre-eminent norm for the protection of minority rights:
“In those States in which ethnic, religious or linguistic minorities

exist, persons belonging to such minorities shall not be denied
the right, in community with the other members of their group,
to enjoy their own culture, to profess and practice their own
religion, or to use their own language.”21
The Human Rights Commission has attempted to clarify the individual versus collective content of Article 27 in
its General Comment No. 23, coming down firmly against the idea that minorities are entitled to the right to self-
determination:
“The Covenant draws a distinction between the right to self-

determination and the rights protected under article 27. The
former is expressed to be a right belonging to peoples and is
dealt with in a separate part (Part I) of the Covenant …
The enjoyment of the rights to which article 27 relates does

not prejudice the sovereignty and territorial integrity of a State
party.”22
With respect to the content of minority rights under Article 27, the Human Rights Committee has made it clear
that States have positive obligations to secure the rights of minorities, particularly with respect to preserving their
cultures, languages, and religions, and prohibiting forced assimilation. These rights apply not only to citizens, but to
any minorities that exist within the borders of a State.23
18) Patrick Thornberry, “An Unfinished Story of Minority Rights”, in Diversity in Action, Anna-Mária Bíró and Petra Kovács, eds. (Budapest: Local
Government and Public Service Reform Initiative, 2001), 70–71.
19) See discussion of self-determination in Lesson 6.
20) See: Susan Moller Okin (with respondents), “Is Multiculturalism Bad for Women?”, in Is Multiculturalism Bad for Women?, Joshua Cohen, Matthew
Howard, and Martha Nussbaum, eds. (Princeton: Princeton University Press, 1999); Ayelet Shachar, Multicultural Jurisdictions: Cultural Differences
and Women’s Rights (Cambridge, Cambridge University Press, 2001). But see: Will Kymlicka (arguing that minority rights do not infringe on individual
rights).
21) ICCPR, Art. 27.
22) Human Rights Commission, General Comment No. 23, para. 3.1 and 3.2.
23) Human Rights Commission, General Comment No. 23, para. 5.2.
233
For several decades, ICCPR Article 27 was the primary global document for protecting minority rights. In 1992,
however, “in a climate of renewed nationalism evidenced by the breakdown of the Soviet Union and the stirrings
of conflict in Yugoslavia”,24 the United Nations General Assembly adopted the “Declaration on the Rights of Persons
Belonging to National or Ethnic, Religious or Linguistic Minorities”. Though non-binding, the “Declaration on the Rights
of Minorities”, as it is more commonly known, specifically protects minorities’ right to their identities and stresses the
importance of substantive equality.25 It declares that minorities have the right to enjoy their own culture, practise
their own religion, and use their own language; as well as to participate in cultural, religious, social, economic, and
public life; to participate in decisions at the national and regional level; and to associate with other members of their
own and other minority groups.26 Notably, it also casts its protections in individualistic term, referring to “persons
belonging to minorities” rather than “minority peoples”.
In addition, a Working Group on Minorities, which has since 2007 been transformed into the Forum on Minority
Issues, was established in 1995 to oversee the implementation of the declaration.27 And in 2005, the High Commissioner
for Human Rights appointed an Independent Expert on Minority Issues to provide advice on minority concerns.
UN Specialized Agencies like the ILO and UNESCO have also contributed to protecting the right to work and the
cultural artefacts of minority groups.
Protection of minority rights at the regional level
Europe is the only region that has developed specific additional protections for the rights of minorities. The
European Charter of Human Rights, adopted in 1950, expressly prohibits discrimination based on “association with
a national minority”.28 The Organization for Security and Cooperation in Europe (OSCE) has been instrumental in
the protection of minorities. The Concluding Document of the Copenhagen Meeting of the Conference on the Human
Dimension of the OSCE of 29 June 1990, for example, urges States to protect and promote minority identities and
assist minorities in achieving substantive equality. A number of recommendations on issues related to the protection
of minorities have also been issued.
Perhaps most prominently, the OSCE established a High Commissioner on National Minorities in 1992.29 The
work of the High Commissioner, who gives recommendations and reports on the status of minority populations in
OSCE Member States, has been significant for the protection of minority rights in the past decade.
Within the Council of Europe, the 1992 European Charter for Regional and Minority Languages and the 1995
Framework Convention for the Protection of National Minorities are the two human rights documents addressed to
minority communities. The latter document is particularly important, as it is legally binding and imposes enforceable
obligations on Member States.
The Commonwealth of Independent States and the Central European Initiative have also produced nonbinding
documents protecting the rights of minorities, particularly referencing the plight of the Roma people.30
24) Yousef T. Jabareen, “Toward Participatory Equality: Protecting Minority Rights Under International Law”, Israeli Law Review, vol. 423, no. 3, 2008,
648.
25) “Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities”, 1992, Arts. 1–3.
26) Ibid.
27) For more information, see the OHCHR’s Forum on Minority Issues page at: <http://www2.ohchr.org/english/ bodies/hrcouncil/minority/forum.htm>.
28) European Convention on the Protection of Human Rights and Fundamental Freedoms, 1950, Art. 14.
30) Patrick Thornberry, 50–51.
234
Section 10.3 Indigenous Peoples’ Rights

As with ethnic, religious, and linguistic minorities, there is no generally accepted definition of “indigenous
peoples” in international law. Many proposals stress the idea of having a separate cultural, religious, and linguistic
identity. This definition would position indigenous peoples very close to or as a subset of ethnic, religious, and
linguistic minorities. Indeed, indigenous persons are entitled to protection as minorities under ICCPR Article 27.31
However, some indigenous peoples reject being classified as minorities as it obscures the long-term, geographically
based, and colonially tied nature of their claims and dilutes their unique position in international law.
In an influential 1986 report, UN Special Rapporteur José Martinez Cabo developed what has become the
generally accepted working definition of indigenous peoples:
“Indigenous communities, peoples and nations are those

which, having a historical continuity with pre-invasion and pre-
colonial societies that developed on their territories, consider
themselves distinct from other sectors of the societies now
prevailing on those territories, or parts of them. They form at
present non-dominant sectors of society and are determined
to preserve, develop and transmit to future generations their
ancestral territories, and their ethnic identity, as the basis of
their continued existence as peoples, in accordance with their
own cultural patterns, social institutions and legal systems.”32
The UN Permanent Forum on Indigenous Issues (PFII) estimates that there are currently some 370 million
indigenous peoples spread throughout the world.33
Indigenous peoples are considered a “vulnerable group” under international human rights law. Their vulnerable
status results from a long history of discrimination that has led to an inequitable distribution of social and material
conditions between indigenous and non-indigenous persons. As Professor S. James Anaya, Special Rapporteur on the
situation of human rights and fundamental freedoms of indigenous people, describes:
“In the contemporary world, indigenous peoples

characteristically exist under conditions of severe disadvantage
relative to others within the States constructed around them.
Historical phenomena grounded on racially discriminatory
attitudes are not just blemishes of the past but rather translate
into current inequities. Indigenous peoples have been deprived
of vast landholdings and access to life-sustaining resources,
and they have suffered historical forces that have actively
suppressed their political and cultural institutions. As a result,
indigenous peoples have been crippled economically and
socially, their cohesiveness as communities has been damaged
or threatened, and the integrity of their cultures has been
31) Human Rights Commission, General Comment No. 23, paras. 3.2 and 7.
32) E/CN.4/Sub.2/1986/7/Add.4. Prepared by the Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities
José R. Martinez Cobo in his 1986 “Study on the Problem of Discrimination against Indigenous Populations”, para 379.
33) PFII, “Frequently Asked Questions: Declaration on the Rights of Indigenous Peoples”, 2.
235
undermined. In both industrial and less-developed countries

in which indigenous people live, the indigenous sectors almost
invariably are on the lowest rung of the socioeconomic ladder,
and they exist at the margins of power.”34
There are compelling reasons for including special protections for indigenous peoples’ rights in international
human rights law. Nevertheless, this set of special protections faces many of the same questions that recurs for each
of these regimes; questions of equality and difference, inclusion and exclusion, universality and cultural relativism.
Do special protections for indigenous peoples reinforce the idea that they are different from other groups? Is this a
bad thing? Why should indigenous peoples be treated better or worse than any other minority group? Is protecting
indigenous peoples paternalistic? Does protecting indigenous peoples entail allowing them to continue cultural
practices that are against national or international law? Should it?
A brief history of indigenous peoples’ rights under international law
For much of history, international law was focused not on assisting indigenous peoples, but on facilitating their
conquest and colonization by European empires. The doctrines of discovery, conquest, terra nullius, conversion, and
the infamous “white man’s burden” to civilize the “barbarous” ruled the day.
Early efforts at making indigenous rights a
prominent part of international human rights law
were fairly unsuccessful. In 1923, for example,
Haudenosaunee Chief Deskaheh of Ontario travelled
to the League of Nations on behalf of indigenous
peoples and their rights, but was denied the
opportunity to speak.
The second half of the twentieth century has
seen a reversal of this pattern, and international
human rights law now protects both the individual
and collective rights of indigenous peoples.
Indigenous peoples’ rights can be generally divided
into five categories:35
• Non-discrimination: ensuring the equal
treatment of indigenous individuals and
groups;
• Cultural integrity: protecting linguistic,
religious, cultural, and other aspects of
indigenous society;
One of the participants of the seventh session of the United
• Social welfare and development:
Nations Permanent Forum on Indigenous Issues on the theme,
promoting economic development for “Climate change, bio-cultural diversity and livelihoods: the
indigenous peoples; stewardship role of indigenous peoples and new challenges”. April
2008. UN Photo #174915 by Paulo Figueriras.
34) S. James Anaya, Indigenous Peoples in International Law (Second Edition) (New York: Oxford University Press, 2004), 4.
35) Ibid., 8–9.
236
• Lands and natural resources: protecting the physical environment in which indigenous peoples live, both
ecologically and by protecting their land tenure; and
• Self-government: the right to make autonomous political choices.
The first three of these categories — non-discrimination, cultural integrity, and social welfare and development —
parallel protections afforded to all ethnic, linguistic, and cultural minorities.
The fourth category of protections — covering lands and natural resources — recognizes the deep and enduring
connections between indigenous peoples, their lands, and the environment, and focuses attention on the historical
wrongs done to indigenous communities via the confiscation of their property.
The final category — concerning self-government — alludes to the right to self-determination. The right to self-
determination is particularly important for indigenous peoples. Indigenous groups all over the world share a common
history of colonialism and conquest. As a result, indigenous claims, unlike those of other minorities, recall the
decolonization struggles of the twentieth century. Because of this, the international community has been more willing
to recognize indigenous claims for autonomy and self-rule. In particular, indigenous peoples have been successful in
promoting a model of self-government that provides collective autonomy within existing State borders (rather than
calling for secession).
The International Labour Organization (ILO) was one of the pioneers in protecting the rights of indigenous
persons at the international level. ILO Convention No. 107 on Indigenous and Tribal Populations (1957) was among
the earliest documents affording special protections for indigenous groups. The convention was criticized, however,
for its paternalistic model of integration or assimilation rather than respect for autonomy. As the 1986 World Council
of Indigenous Peoples voiced its disapproval of Convention No. 107:
“The integrationist language of Convention No. 107 is outdated,

and … the application of this principle is destructive in the
modern world. In 1956 and 1957, when Convention No. 107
was being discussed, it was felt that integration into the
dominant national society offered the best chance for these
groups to be part of the development process of the countries
in which they live. This had, however, resulted in a number
of undesirable consequences … In practice it had become a
concept which meant the extinction of ways of life which are
different from that of the dominant society. The inclusion of this
idea in the text of the Convention has also impeded indigenous
and tribal peoples from taking full advantage of the strong
protections offered in some parts of the Convention, because of
the distrust its use has created among them. In this regard, it
was recalled that the Sub-Commission’s Special Rapporteur had
stressed in his study … the necessity of adopting an approach
which took account of the claims of indigenous populations.
In his opinion, the policies of pluralism, self-sufficiency, self-
management and ethno-development appeared to be those
237
that would give indigenous populations the best possibilities

and means of participating directly in the formulation and
implementation of official policies.”36
In response to these criticisms, in 1989 the ILO adopted a new Convention No. 169 on Indigenous and Tribal
Peoples. Convention No. 169 recognizes “the aspirations of [indigenous] peoples to exercise control over their own
institutions, ways of life and economic development and to maintain and develop their identities, languages and
religions, within the framework of the States in which they live”.37 In furtherance of this goal, it includes protections
in each of the five areas of concern mentioned above.
Convention No. 169 was an improvement over Convention No. 107. However, advocates of indigenous rights
argued that it was too weak, and did not adequately limit State governments’ control over indigenous peoples.
Additionally, Convention No. 169 waffled on the inclusion of the word “peoples” because of its associations with self-
determination and secession, and the final text included a caveat specifying that “use of the term peoples in this
Convention shall not be construed as having any implications as regards the rights which may attach to the term
under international law”.38 Despite this concession, the convention received only 22 ratifications, mostly from the
Americas.39 Nevertheless, it brought attention to and consolidated the specific human rights of indigenous peoples,
and made the need for a UN document apparent.
As a result of ongoing indigenous organizing and advocacy at the global level, the issue of indigenous peoples’
rights was finally planted on the agenda of the UN in the 1990s. In recognition of this growing international attention
to indigenous peoples’ rights, the General Assembly declared 1995–2004 the International Decade of the World’s
Indigenous People, and a Second Decade of the World’s Indigenous People from 2005–2015. During this period, the
UN Working Group on Indigenous Populations, founded in 1982, began to formulate a draft declaration on the rights
of indigenous peoples, along with the assistance of the indigenous community.
“Declaration on the Rights of Indigenous Peoples”
In 2007, after more than 20 years of work, the UN General Assembly adopted the most important global
document on the rights of indigenous peoples: the “Declaration on the Rights of Indigenous Peoples”. The declaration
was adopted with 143 votes in favour, four opposed (Canada, Australia, New Zealand, and the United States), and
11 abstentions.40
The “Declaration on the Rights of Indigenous Peoples” protects indigenous life, integrity, and security. It
addresses genocide, the education of indigenous children, and the military use of indigenous land. It includes a
variety of land rights, such as the right to engage in traditional activities, control over natural resources, and the
right to develop and manage indigenous lands. It also addresses concerns about intellectual property41 and redress
for past injustices.
36) Report of the Meeting of Experts, para. 46, reprinted in part in Partial Revision of the Indigenous and Tribal Populations Convention, 1957 (No. 107),
Report 6(1), International Labour Conference, 75th Session, 1988, 100–118.
37) Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries, June 27, 1989, International Labour Conference (entered
into force Sept. 5, 1991), Preamble.
38) Convention No. 169, Art. 1, para. 3.
39) An updated list of all signatories to ILO Convention No. 169 can be viewed at: <http://www.ilo.org/>.
40) The voting record of the General Assembly on the “Declaration on the Rights of Indigenous Peoples” can be viewed at: <http://www.un.org/en/ga/
documents/voting.asp>.
41) See Lesson 15 for a discussion of intellectual property and human rights.
238
In contrast with minorities more generally, indigenous peoples are unambiguously understood to hold some
collective rights. The declaration explicitly recognizes the right to self-determination, the right to autonomy or self-
government, and the right to be free of genocide and the forcible removal of children in addition to individual rights.
The protection of indigenous peoples’ right to self-determination is considered by many to be the cornerstone of the
declaration, without which the other rights it protects would not be effective.42 Like ethnic, linguistic, and religious
minorities, indigenous peoples enjoy hybrid rights, such as the prohibition of forced assimilation, that are held by
individuals but apply only in the context of the group.
In general, the declaration’s protection of indigenous peoples’ rights is stronger and contains fewer qualifiers
than do comparable protections for ethnic, religious and linguistic minorities. All five categories of rights necessary for
the preservation of indigenous integrity, identity, and autonomy are present. The term “peoples” is used throughout,
and the caveat appended to ILO Convention No. 169 has been eliminated.
The “Declaration on the Rights of Indigenous Peoples” is a declaration, not a convention, and therefore contains
no legal enforcement mechanisms. However, it emphasizes the “urgent need to respect and promote the inherent
rights of indigenous peoples” and, like ILO Convention No. 169, provides an aspirational basis from which the UN,
NGOs, and States can begin to work.
Indigenous rights at the global level
In addition to ILO Convention No. 169 and the UN “Declaration on the Rights of Indigenous Peoples”, several
other agreements and institutions protect the rights of indigenous peoples at the global level.
A Permanent Forum on Indigenous Issues (PFII) has been established under ECOSOC to provide information and
raise awareness on indigenous peoples rights.43 The Permanent Forum met for the first time in 2002, and since then
has issued a number of recommendations in its six mandated areas of concern:
• Economic and social development;
• Culture;
• Environment;
• Education;
• Health; and
• Human rights.
A UN Voluntary Fund for Indigenous Populations, created in 1985, provides financial assistance to representatives
of indigenous communities and organizations for the purpose of attending and participating in UN discussions on
indigenous issues. An Expert Mechanism on the Rights of Indigenous Peoples provides thematic assistance on
Indigenous issues to the Human Rights Council. In addition to these permanent agencies, the Human Rights Council
oversees a Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people,
as well as an Expert Mechanism on the Rights of Indigenous Peoples, both of which play a role in promoting and
implementing the declaration.
42) Megan Davis, “Indigenous Struggles in Standard-Setting: the United Nations Declaration on the Rights of Indigenous Peoples”, Melbourne Journal of
43) For more on the Permanent Forum on Indigenous Issues (PFII) in the context of the Economic and Social Council (ECOSOC), see discussion in
Lesson 4.
239
A number of the other international human rights treaties also specifically address indigenous persons. The CRC
protects the rights of indigenous children to culture, religion, and language. The CEDAW Committee noted the special
circumstances faced by indigenous women in General Recommendation No. 24 on women and health. The Human Rights
Committee has favoured an interpretation of Article 27 that includes strong indigenous land rights.44 And the Committee
on Economic, Social and Cultural Rights’ General Comment 14 recognizes the right of indigenous peoples to control their
own health and medical care.
The CERD Committee has been especially active, issuing several general recommendations on indigenous issues:
General Recommendation No. 23 on Indigenous Rights under the International Convention on the Elimination of Racial
Discrimination established that CERD’s non-discrimination norms apply to aspects of indigenous culture, language,
development, participatory rights, and rights over territories and resources;45 General Recommendation No. 25 on
gender related dimensions of racial discrimination recognized indigenous peoples’ particular vulnerability to gender-
based human rights violations; and General Recommendation No. 31 on the prevention of racial discrimination in
the administration and functioning of the criminal justice system addressed indigenous persons’ special needs in the
judicial context.
A number of international environmental agreements have also paid special attention to the needs of indigenous
people. The Rio Declaration, Agenda 21, the Convention on Biological Diversity,46 and others all make particular
mention of indigenous peoples, their connection with tribal lands, the value of traditional knowledge, and the need to
protect the environment that sustains them.
Indigenous rights at the regional level
At the regional level, the Inter-American Commission and Court have been particularly active in protecting
the rights of indigenous peoples, and have interpreted the “Declaration of the Rights and Duties of Man” and the
American Convention on Human Rights to take into account the needs of indigenous communities. For example, in
the case of Mayagna (Sumo) Community of Awas Tingni v. Nicaragua, the Court ruled against Nicaragua for having
granted a private corporation a concession for exploiting natural resources located in the Awas Tingni indigenous
community’s ancestral territory. The Court deemed that the concession was in violation of the American Convention’s
right to property, which encompasses “the [collective] rights of members of the indigenous communities within
the framework of communal property … [which] is not centred on an individual but rather on the group and its
community”.47 This was the first binding international decision to recognize indigenous peoples’ collective right to
property in their traditional lands even outside the formal system of deeds and contracts.
The African system has also expanded its protection of indigenous rights. The African Commission on Human
and Peoples’ Rights established a Working Group on indigenous peoples/communities in 2002. The Working Group
published its first report in 2003, in which it confirmed that indigenous peoples are “discriminated in particular ways
because of their particular culture, mode of production and marginalized position within the State”.48 The Commission
has also decided several cases dealing with indigenous peoples’ rights. Most famous among these is the 2001 case of
44) CCPR/C/73/D/779/1997, Äärelä and Näkkäläjärvi v. Finland, HRC, Communication No. 779/1997, 24 October 2001.
45) CERD Committee, General Recommendation No. 23, 1997.
46) Convention on Biological Diversity, Art. 8(j).
47) Mayagna (Sumo) Community of Awas Tingni v. Nicaragua, Inter-American Court of Human Rights, Series C No. 79, Judgment of 31 August 2001,
para. 148.
48) African Commission on Human and Peoples’ Rights, Report of the African Commission’s Working Group of Experts on Indigenous Populations/
Communities, 2005, 88.
240
the indigenous Ogoni People of Nigeria, in which the Commission held that pollution and environmental degradation
caused by oil exploration in Ogoni ancestral territory was in violation of the right to a satisfactory environment under
the African Charter.49
Section 10.4 The Protection of Refugees
Refugees as a vulnerable group
Population displacement is a phenomenon that has grown in both size and complexity over the past century.
People may be forced to leave their homes for a variety of reasons: due to war or armed conflict; disease; lack of basic
necessities; persecution; natural disaster; economic hardship; or any combination thereof. Some of these displaced
people will move across international borders, others will travel to a new location within their home State. Some will
find assistance and shelter, others will encounter hardship and rejection. All of these people will face difficulties as a
result of their displacement. But only some are refugees.
According to international law, refugees are persons who flee their homes to seek asylum from certain types of
persecution in another country, and who are unwilling or unable to return to their State of origin. This definition is
fairly restricted, and only those who meet all of the necessary criteria can be legally considered “refugees”. The United
Nations High Commissioner for Refugees (UNHCR) estimates that at the end of 2008 there were approximately 42
million people worldwide who had been displaced by armed conflict, an additional 25 million who had been displaced
by natural disasters, and countless others who left their homes due to hardships of other kinds. Of these, only16
million were classified as refugees.50
Refugees are granted special protection under international law. Historically, this was because when a refugee
fled her State of origin she either lost or was unable or unwilling to invoke the protection of her government. This was
a major problem under the Westphalian system of the nineteenth and early twentieth century, in which individuals
had no direct rights under international law and had to rely on the diplomatic protection of their State.51 Without a
government that could intervene on their behalf, refugees were particularly vulnerable to abuse and exploitation.
While today individuals are directly protected under international law, refugees remain in a precarious position.
As you read through the following summary of international human rights law as it applies to refugees, you
will notice that perhaps the most important component of the regime is the classification process. When a person is
classified as having refugee status (as opposed to an economic migrant or internally displaced person, for example),
this identity becomes the key that unlocks all of the benefits and special protections available under international law.
Activists have fought to expand this definition and extend protection to additional categories of peoples. Others have
sought to limit it, arguing that refugee status should be reserved for only the most desperate cases of persecution.
The fight over definitions is sometimes fierce. There are many contested categories: what types of risks, harm, and
suffering make a person deserving of refugee status? Bodily harm? Psychic trauma? Economic oppression? Must
a person have left their country of origin to be considered a refugee? Or is leaving one part of the country to find
refuge in another enough? How great must the risk of harm upon returning be?
49) The Social and Economic Rights Action Center and the Center for Economic and Social Rights v. Nigeria, African Commission on Human and Peoples’
Rights, Comm. No. 155/96, 2001.
50) UNHCR, 2008 Global Trends: Refugees, Asylum-seekers, Returnees, Internally Displaced and Stateless Persons, 2009, 3.
51) See discussion of the Westphalian system in Lesson 1.
241
Who is a Refugee? »
Under the 1951 Refugee Convention and its 1967 Protocol, a refugee is someone who:
» Has a well-founded fear of persecution because of his or her:
• Race;
• Religion;
• Nationality;
• Membership in a particular social group; or
• Political Opinion;
» Is outside his or her country of origin or habitual residence; and
» Because of fear of persecution, is unable or unwilling to seek the protection of that

country or to return there.
Under this definition, all three criteria must all be met for a person to qualify as a refugee.
A brief history of refugees’ rights in international law
The protection of refugees was an early target of international human rights and humanitarian law. The League
of Nations launched several programmes for assisting and repatriating refugees following the First World War. It
established a High Commissioner for Russian Refugees in 1921 to support refugees in the wake of the Soviet
revolution. In 1933, the League appointed a High Commissioner for Refugees coming from Germany, who helped find
permanent homes — many in Palestine — for refugees fleeing Hitler’s Reich. Finally, in 1938 the League established
a High Commissioner for Refugees and Intergovernmental Committee on Refugees initially concerned with forced
emigration from Germany and Austria, and later with all refugees groups in Europe during the Second World War.52
During the Second World War, some 1.2 million people were dislodged from their homes. Large numbers fled
across national borders seeking shelter from the war in safer territories. The protection and resettlement of these
refugees was one of the immediate concerns of the newly formed United Nations. In 1947, the UN founded the
International Refugee Organization (IRO), the first international agency to deal comprehensively with the protection
of refugees. The right to seek and enjoy asylum was included as Article 14 of the UDHR. When the IRO fell out of
favour, in 1950 the General Assembly established the Office of the United Nations High Commissioner for Refugees
(UNHCR) to provide, on a non-political and humanitarian basis, international protection to refugees and to seek
permanent solutions for their repatriation or resettlement.53
The 1951 Refugee Convention
In addition to establishing UNHCR, governments adopted the Convention Relating to the Status of Refugees
(Refugee Convention) in 1951. Today, the Refugee Convention is the most comprehensive international legal
document providing protection for refugees. It defines who is a refugee and sets standards for assistance and
treatment.
52) UNHCR, An Introduction to International Protection: Protecting Persons of Concern to UNHCR, 2005, 5–6.
53) Ibid., 6–7.
242
New residents of the Roghani Refugee Camp in Chaman, a Pakistani border town. Children and young people make up a large
percentage of the population at Roghani Refugee Camp. 1 December 2001. UN Photo #31609 by Luke Powell.
During the drafting process, governments were split over whether the Refugee Convention should include a
general legal commitment to help refugees or a more limited mandate focusing on the needs of persons displaced
during the Second World War. This debate crystallized around the definition of who should be considered a refugee
under the convention. One group of States proposed an open-ended definition that would apply generally to all
refugees, while a second group wanted to limit the definition to what already existed under prior treaties. The
compromise position that eventually emerged contained a general definition of “refugee” based on the concept of
a “well-founded fear of persecution”, but was limited by (1) a temporal constraint that the convention applied only
to those who had become refugees “as a result of events occurring before I January 1951”; and (2) an optional
geographical limitation that could be imposed by interpreting the word “events” to mean “events in Europe”. The
Refugee Convention thus defines a refugee as:
“any person who … as a result of events occurring before

1 January 1951 and owing to well-founded fear of being
persecuted for reasons of race, religion, nationality,
membership of a particular social group or political opinion, is
outside the country of his nationality and is unable, or owing to
such fear, is unwilling to avail himself of the protection of that
country; or who, not having a nationality and being outside
243
the country of his former habitual residence as a result of such

events, is unable or, owing to such fear, is unwilling to return to
it.”54
Under this definition, persons fleeing natural disasters are not refugees. Nor are persons who flee armed conflict,
but do not cross an international border. Neither are persons who leave their countries solely to improve their
economic situation. Further, persons who flee the “indiscriminate effects” of conflict do not qualify: a “refugee” must
suffer targeted persecution on the basis of one of the convention grounds.
This definition was altered by the 1967 Protocol to the Convention Relating to the Status of Refugees, which
broadened the definition of a refugee and removed the temporal and geographical limitations of the 1951 Refugee
Convention.
Arguably the most important protection under the Refugee Convention is the obligation of non-refoulement (“not
to send back”). This principle forbids States from returning a refugee to a territory in which her life or freedom would
be in danger as a result of her membership in a protected class:
“1. No Contracting State shall expel or return (‘refouler’) a

refugee in any manner whatsoever to the frontiers of
territories where his life or freedom would be threatened on
account of his race, religion, nationality, membership of a
particular social group or political opinion.
2. The benefit of the present provision may not, however, be

claimed by a refugee whom there are reasonable grounds
for regarding as a danger to the security of the country
in which he is, or who, having been convicted by a final
judgment of a particularly serious crime, constitutes a
danger to the community of that country.”55
The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) also
prohibits non-refoulement:
“No State Party shall expel, return (‘refouler’) or extradite a

person to another State where there are substantial grounds
for believing that he would be in danger of being subjected to
torture.”56
In contrast with the Refugee Convention, CAT’s prohibition of non-refoulement is absolute: protection against
return to a country where a person may be subjected to torture is not contingent on a well-founded fear of persecution
on account of race, religion, nationality, membership of a particular social group, or political opinion. There are no
exceptions to this protection.
54) Convention Relating to the Status of Refugees, G.A. Res. 2198 (XXI) (1951), Art. 1(A)(2).
55) Refugee Convention, Art. 33(1).
56) CAT, Art. 3(1).
244
Non-refoulement does not require a country to grant asylum to all persons seeking entry, but it does mean that
if a country refuses asylum to a group of refugees, it must send the refugees on to another safe destination and not
back to a country in which they may suffer harm. It is generally accepted that non-refoulement has become a part
of customary international law,57 so all States are required to respect this principle even if they are not party to the
Refugee Convention or the CAT.58
Certain groups can be denied the protection of the Refugee Convention if they fall under one of the exclusion
clauses. According to Article 1(f), refugee status under the convention does not apply if there are “serious reasons”
for believing that the asylum-seeker has committed one of the following crimes:
Crimes against peace, war crimes, or crimes against humanity;
• Serious non-political crimes; or
• Acts contrary to the purposes and principles of the United Nations.59
Additionally, the Refugee Convention’s protections only apply during a limited period of time. According to the
convention’s “cessation clauses”, a person ceases to be a protected refugee if she:
• Voluntarily re-avails herself of the protection of the country of nationality;
• Voluntarily reacquires her lost nationality;
• Acquires a new nationality and the protection of a new country;
• Voluntarily re-establishes herself in the country which she previously fled due to fear of prosecution; or
• The circumstances that caused the person to become a refugee have ceased to exist.60
The UNHCR — an independent UN specialized agency, not a treaty body — is charged with monitoring the
implementation of the Refugee Convention and its 1967 Protocol. Unlike in many other treaties we have studied,
there is no periodic reporting requirement in the Refugee Convention, and no individual complaints procedure
has been established. However, the convention and protocol do oblige States to submit information to the UNHCR
regarding the status of refugees and national progress on implementation.
Refugee rights at the global level
The mission of UNHCR has expanded steadily over time, and today it is one of the largest and most important
humanitarian agencies in the UN system. With a staff of over 6000 and a presence in some 110 countries, UNHCR has
become a primary player in safeguarding the rights and well-being of refugees. Since 1950, the General Assembly and
ECOSOC resolutions have greatly expanded UNHCR’s responsibilities. UNHCR continues to monitor implementation of
the Refugee Convention and related aspects of international refugee law. It now also provides basic services such as
food, water, and shelter to persons caught in humanitarian emergencies, and it provides protection and assistance to
a wide array of “persons of concern” other than refugees, including:
• Returnees: former refugees who have returned to their homeland;
• Internally displaced persons (IDPs): those who were forced to flee their homes but have not crossed
international border; and
• Stateless persons: those who have no nationality or are of disputed nationality.
57) See box in Lesson 1.

58) Guy Goodwin-Gill and Jane McAdam, The Refugee in International Law (Third Edition) (New York: Oxford University Press, 2007), 345–54. See
discussion of customary international law in the context of the UDHR in Lesson 1.
59) Refugee Convention, Art. 1(f).
60) Ibid., Art. 1(c).
245
Although refugee protection has made serious headway in the decades since the Refugee Convention was signed,
there remain large gaps in the protection of this vulnerable group. Many of these lacunae are the result of the strict
and limited definition of a “refugee” as someone who has a well-founded fear of persecution based on race, religion,
nationality, membership in a particular social group, or political opinion.
One such gap results from the omission of “persecution based on gender” from this list. Many forms of
persecution target women, particularly women who transgress social and gender norms. Traditionally, women who
were persecuted simply because of their gender did not qualify for protection under the Refugee Convention. In
recent years, however, there has been growing movement to recognize persecution based on gender under the
rubric of “membership of a particular social group”. In 1985 the Executive Committee of the High Commissioner for
Human Rights recommended that countries consider women persecuted for violating social and cultural traditions
as members of a particular social group,61 and the 1991 UNHCR Guidelines on the Protection of Refugee Women
focused specifically on the problems faced by women in refugee situations and reiterated the High Commissioner’s
recommendation.62 Nevertheless, the situation of those persecuted on the basis of gender remains insecure, and
States may choose whether or not to recognize the refugee status of women so persecuted. As a result, women’s
rights groups continue to advocate for the inclusion of a sixth ground of persecution in the definition of refugee:
gender.
Another gap concerns the problem of internally displaced persons (IDPs). IDPs are people who have been
displaced by wars, natural catastrophes, or generalized violence, but who have not crossed an international border.
Instead, IDPs have moved internally to safer areas within their home countries. Because they have not crossed an
international border, IDPs technically still enjoy the legal protection of their home governments, and are therefore
not covered under the Refugee Convention. This is true even when IDPs have fled from their homes due to a well-
grounded fear of persecution based on one of the five permitted grounds in the Refugee Convention.
The number of IDPs has ballooned over the last several decades to nearly double the number of traditional
refugees: UNHCR estimates that at the end of 2007 there were approximately 26 million IDPs displaced by war
or armed conflict, in comparison with 16 million refugees and asylum-seekers.63 In recent years the international
community has begun to recognize that the legal protection afforded to IDPs is in many cases illusory, and that this
group of vulnerable persons should be afforded protection under international law. In December 2005, UNHCR and
several other international agencies endorsed the “Cluster Approach” for situations of internal displacement. Under this
new arrangement, UNHCR is responsible for three of nine “clusters” of IDP services: protection, emergency shelter, and
camp-coordination and management. As a result, UNHCR now provides assistance to just over half of the world’s 26
million internally displaced persons.64
Despite these advances, IDPs still have no targeted special protection regime under global human rights law, and
activists continue to press for reforms.
Refugee rights at the regional level
In the European system, Article 3 of the European Convention on Human Rights prohibits refoulement. The
European States are in the process of implementing a Common European Asylum System, and the European
institutions have been fairly active in ensuring the protection of refugees and asylum seekers.
61) ExCom Conclusion No. 39 (XXXVI) Refugee Women and International Protection (1985), paras. B and k.
62) See: UNHCR, Guidelines on International Protection: Gender-Related Persecution within the Context of Article 1A(2), HRC/GIP/02/01, 7 May 2002.
63) UNHCR, 2008 Global Trends: Refugees, Asylum-seekers, Returnees, Internally Displaced and Stateless Persons, 2009, 2.
64) Ibid., 3.
246
In the African system, the African Charter on Human and Peoples’ Rights recognizes the right “to seek and
obtain asylum in other countries”.65 The Organization of African Unity (OAU) has adopted the 1969 Convention
Governing the Specific Aspects of Refugee Problems in Africa. Article 1(2) of this treaty expands on the definition of
a refugee contained in the 1951 Refugee Convention, including in addition to the standard definition:
“every person who, owing to external aggression, occupation,

foreign domination or events seriously disturbing public order
in either part or the whole of his country of origin or nationality,
is compelled to leave his place of habitual residence in order
to seek refuge in another place outside his country of origin or
nationality.”
In the Inter-American system, the “American Declaration of the Rights and Duties of Man” establishes that “Every
person has the right, in case of pursuit not resulting from ordinary crimes, to seek and receive asylum in foreign
territory, in accordance with the laws of each country and with international agreements.”66 The American Convention
on Human Rights recognizes the “right to seek and be granted asylum” and prohibits refoulement.67 Additionally,
Conclusion 3 of the 1984 “Cartagena Declaration on Refugees”, like the African Convention Governing the Specific
Aspects of Refugee Problems in Africa, expands the Refugee Convention definition of a refugee to include:
“persons who have fled their country because their lives, safety
or freedom have been threatened by generalized violence,
foreign aggression, internal conflicts, massive violation of
human rights or other circumstances which have seriously
disturbed public order.”
The Cartagena Declaration is not binding on States, but is applied in practice in a number of Latin American
countries.
In addition, certain Asian, Middle Eastern, and African States adopted the Bangkok Principles on the Status and
Treatment of Refugees in 1966. The principles, updated in 2001, also include a broader definition of “refugee”.
Conclusion
We have now completed our examination of the protection of vulnerable persons and groups under international
human rights law. As mentioned at the beginning of Lesson 8, there are many other vulnerable groups in addition
to the six that we have discussed, and some of these also receive special protection under international law. Now
that you are familiar with a number of special protection regimes, you should be able to examine, analyse, compare,
and critique these regimes on your own. The fundamental questions — of equality and difference, inclusion and
exclusion, individuals and groups, universalism and cultural relativism — echo across each of them in a similar way.
In Lessons 11, 12, and 13 we will turn to another special segment of international human rights law, focusing
on its application in times of war and conflict and its intersections with international humanitarian and criminal law.
65) African Charter on Human and Peoples’ Rights, Art. 12.

66) “American Declaration of the Rights and Duties of Man”, Art. XXVII.
67) American Convention on Human Rights, Art. 22.
247
Writing Exercise 10: Am I a Refugee? »

You are working for a humanitarian organization in a small country that has just undergone
a civil war. Many people have been displaced from their homes as a result of the violence,
and some have crossed into neighbouring States. Some have suffered intimidation, threats,
and worse from the government as a result of their political views. Your supervisor has asked
you to collect statistics on the situation so that she can request assistance from international
agencies.
• Which of the displaced people in this country are potentially refugees? Which are IDPs?
• What criteria are relevant for making this distinction?
• What types of protections do refugees have that IDPs do not? Why might a displaced
person prefer to be classified as a refugee?
Further reading
• S. James Anaya, Indigenous Peoples in International Law (Second Edition), 2004.
• Guy Goodwin-Gill and Jane McAdam, The Refugee in International Law (Third Edition), 2007.
• Will Kymlicka, Multicultural Odysseys: Navigating the New International Politics of Diversity, 2007.
• Alexandra Xanthaki, “Indigenous Rights in International Law Over the Last 10 Years and Future
Developments”, Melbourne Journal of International Law, vol. 10, 2009.
• OHCHR Minorities page: <www.ohchr.org/en/issues/minorities/pages/minoritiesindex.aspx>.
• PFII: <www.un.org/development/desa/indigenouspeoples/>.
• UNHCR: <www.unhcr.org>.
248
1. Which of the following is a “minority” 5. Which of the following is the only region
for the purposes of international human that has developed specific protections
rights law? for minorities?
A. A small group of persons with a different A. Africa
ethnicity from the majority population B. Europe
B. A small group of persons with a different C. Asia
sexual orientation or gender identity from D. The Americas
the majority population
C. A large group of persons who practise a 6. Which of the following is NOT an
important category of current
religion that is popular in their country, but
protections for indigenous peoples under
unpopular in global terms
international human rights law?
D. A small group of persons with disabilities
A. Self-determination
2. Which of the following best describes B. Non-discrimination

the situation of minorities? C. Assimilation
A. Minorities are always victims of oppression D. Cultural integrity
B. Minorities are always rejected by the majority

7. Which of the following
population
intergovernmental organizations was the
C. Minorities always assimilate into the majority author of the first major international
population conventions for the protection of
D. Minorities may be dominant or non-dominant, indigenous peoples’ rights?
and may assimilate into, be rejected from, or A. The International Labour Organization (ILO)
choose to remain separate from the majority B. The Human Rights Council
population C. The Permanent Forum on Indigenous Issues
(PFII)
3. Which of the following is NOT a reason
why the international community has D. The United Nations Educational, Scientific
articulated minority rights as individual and Cultural Organization (UNESCO)
rather than group rights?
8. The UN “Declaration on the Rights of
A. Fear that protecting minorities as a group will
Indigenous Peoples” was adopted in
lead to increased claims for secession and _____.
self-determination
A. 1948
B. Fear that protecting minorities as a group will
B. 1966
lead to the oppression of “minorities within
C. 1989
the minority”
D. 2007
C. Many States do not believe that minorities
exist
D. Fear that protecting minorities as a group will
challenge State power
4. Article ______ of the ICCPR is the pre-

eminent provision for the protection of
minority rights.
249
9. The “Declaration on the Rights of 10. Which two regions have been most
Indigenous Peoples” protects _____. active in protecting the rights of
indigenous peoples?
A. only individual rights
B. both individual and group rights A. Africa and the Americas
C. only group rights, and revokes the individual B. Europe and the Americas
rights of indigenous peoples C. Africa and Europe
D. neither individual nor group rights D. Europe and Asia
Answer Key »
1. A
2. D
3. C
4. 27
5. B
6. C
7. A
8. D
9. B
10. A
250
HUMAN RIGHTS
LESSON Human Rights During Armed
11 Conflict I: Jus ad Bellum and

the Responsibility to Protect
Human rights abuses can

be both symptoms and
causes of conflict.
UN Photo #405076 by Tim McKulka.
Section 11.1 Introduction • Appreciate the differences between jus ad bellum,
international humanitarian law, international criminal

Section 11.2 Jus ad Bellum
law, and international human rights law.
Section 11.3 Responsibility to Protect
• Understand the relationship between human rights and
armed conflict.
• Describe the current jus ad bellum.
• Identify and explain the two exceptions to the
prohibition on the use of force.
• Understand the debate over humanitarian intervention
and the Responsibility to Protect.
251
LESSON 11 | Human Rights During Armed Conflict I: Jus ad Bellum and the Responsibility to Protect
Sandra Doinita Visan, member of the Romanian contingent of the United Nations Integrated Mission in Timor-Leste (UNMIT),
participates in a ceremony in observance of the International Day for United Nations Peacekeepers in honour of the service of female
peacekeepers. 28 May 2009. UN Photo #397643 by Martine Perret.
Human rights and conflict
Human rights abuses can be both symptoms and causes
of conflict.
Armed conflict can be the cause of human rights
violations, both directly and indirectly. Warring parties kill,

rape, torture, and maim their enemies, often indiscriminately.
Instability and insecurity force people from their homes and videos/98/lesson-11-human-rights-
during-armed-conflict-i-jus-ad-bellum-
into vulnerable positions as refugees or internally displaced
and-the-responsibility-to-protect/>.
persons. Damage to the environment and infrastructure
endangers human rights like the rights to health, work, and
food.
252
Conversely, the deprivation of human rights can cause conflict. Governments that ignore abuses of minorities
encourage the build-up of tensions, which can lead to ethnic violence. An abused population may revolt against
conditions of deprivation and disrespect for their human dignity. Leaders may whip up support for a war by calling
on the public to take revenge for historical abuses of human rights. Serbian leaders in the former Yugoslavia, for
example, urged Serbs to join them in their separatist struggle by invoking real and imagined Second World War–era
violations of Serbian human rights by other Yugoslav national groups.1 Long-term systemic abuses of human rights
can serve to dehumanize a population, threatening individual and group security. This dehumanization can cause one
group to begin to commit violence against another, as happened in Rwanda, when Hutu leaders used propaganda
and now-infamous radio broadcasts to dehumanize and later incite genocide against the Tutsi opposition. Moreover,
demands for rights can cause conflict outright, as value systems clash:
“Human rights principles themselves and the values that

they seek to legalize often contribute to conflicts over State
making and State breaking. Differing human rights come into
conflict with one another, and the principles and discourse of
human rights themselves can contribute to violent conflict.
Human rights are not simply something that may or may not
be abridged or enforced amid or after a conflict; they are often
what the conflict is about.”2
Likewise, human rights abuses can be invoked by States or by the international community as a justification for
armed intervention or pre-emptive war. US President George H. W. Bush, for example, drummed up support for the first
Iraq war by citing abuses committed by Iraqi soldiers during their invasion of Kuwait.3 And President George W. Bush
pointed to violations of women’s rights as a partial justification for the US invasion of Afghanistan.4
The deprivation of human rights can also intensify an ongoing conflict. As Louis Kriesberg, Professor Emeritus
at the University of Syracuse notes, “inhumane treatment deepens the antagonism and the desire to continue the
struggle and even to seek revenge. The callous and indiscriminate use of violence, intended to intimidate and suppress
the enemy, is frequently counterproductive, prolonging a struggle and making an enduring peace more difficult to
attain.”5 Dehumanization of troops by labelling them animals, subhuman, or evil prepares the way for future abuses.
Ignoring complaints of violations can ramp up the intensity of a fight. Brutality during war can make it difficult to reach
a peaceful settlement — memories last long. Human rights groups themselves may unintentionally fan the flames by
issuing condemnations that are subsequently used to encourage retaliatory violence.
Given these intersections, it is evident that human rights and conflict are intimately linked. Reflecting these linkages,
the laws of war and the laws of human rights have significant overlaps. It is this overlap that we will examine in Lessons
11, 12, and 13.
The discussion will proceed roughly chronologically — from the outbreak of violent conflict, to the conduct of
forces during hostilities, to transitional justice and post-conflict strategies. We will ask: How does the international
1) Ellen L. Lutz, “Understanding Human Rights Violations in Armed Conflict”, in Julie A. Mertus and Jeffrey W. Helsing, eds., Human Rights & Conflict:
Exploring the Links between Rights, Law, and Peacebuilding (Washington, D.C.: United States Institute of Peace, 2006).
2) Michael S. Lund, “Human Rights: A Source of Conflict, State Making, and State Breaking”, in Julie A. Mertus and Jeffrey W. Helsing, eds., Human
Rights & Conflict: Exploring the Links between Rights, Law, and Peacebuilding (Washington, D.C.: United States Institute of Peace, 2006), 39.
3) Ibid., 27.
4) See: Karen Engle, “Liberal Internationalism, Feminism, and the Suppression of Critique: Contemporary Approaches to Global Order in the United
States”, Harvard International Law Journal, vol. 46, 2005; Ratna Kapur, “Un-Veiling Women’s Rights in the War on Terrorism”, Duke Journal of Gender
Law and Policy, vol. 9, 2002.
5) Louis Kriesberg, Constructive Conflicts: From Escalation to Resolution (Lanham, MD: Rowman & Littlefield Publishers, 2003).
253
community attempt to prevent violent conflict? If violent conflict nonetheless breaks out, what laws protect the
human rights and fundamental freedoms of combatants and non-combatants? Should the international community
have a responsibility to respond to violent conflicts? If so, how? When? After a violent conflict has ended, should
human rights abusers be punished?
But before we begin, a few preliminary points.
What is peace?
As you read through the next three Lessons, keep in mind the distinction between “peace” and “conflict”, and
ask yourself what is meant by each term. Is peace merely the absence of war? Or does it mean something else?
Johan Galtung famously theorized a distinction between negative peace, defined as the absence of violent conflict,
and positive peace, the long-term process of creating a society that is just and peaceful.6 Likewise, Galtung defined
violence as tripartite, including direct violence (intentional killing, massacre), structural violence (violence by avoidable
social ills, such as malnutrition), and cultural violence (violence by cultural assumptions that blind people to human
suffering). Does adopting an alternative definition of peace and/or conflict alter your view of what is necessary for the
protection of human rights? Is positive peace the same thing as human rights protection? Is ending war enough to
prevent the violation of rights?
Types of international law
We will be dealing in these lessons with four different systems of international law, as well as with a number of
non-legal mechanisms for protecting and promoting human rights during times of conflict. The four legal fields are:
• Jus ad bellum: the law that governs whether a war is “just”, meaning legally begun;
• International humanitarian law (IHL) or jus in bello: the law that governs State conduct towards
opposing forces, civilians, and non-combatants during wartime;
• International human rights law: the law that governs State conduct towards individuals under its
jurisdiction at all times; and
• International criminal law (ICL): the law that governs individual conduct towards opposing forces during
wartime and ensures accountability for serious international crimes.
It is easy to confuse these legal regimes, but important to distinguish them. Each applies at different times,
addresses different actors, and protects different categories of individuals. The fact that a war is justly begun does
not legitimate the otherwise unlawful conduct of governments and individuals during the fighting and will not excuse
a commander from individual criminal responsibility once the conflict has ended. As scholar Michael Walzer wrote:
“It is perfectly possible for a just war to be fought unjustly and for an unjust war to be fought in strict accordance
with the rules.”7
It is equally important, however, to avoid drawing a firm line between the various legal regimes that apply
before, during, and after a conflict. Each of these bodies of law overlaps and influences the others throughout an
armed conflict. We will problematize the distinctions between these bodies of law somewhat as we proceed through
Lessons 11, 12, and 13, but for now, be sure that you understand the basics of what is meant by jus ad bellum, IHL,
human rights law, and ICL, and how they differ from one another.
6) See: Johan Galtung, Peace by Peaceful Means: Peace and Conflict, Development and Civilization (London: SAGE Publications, 1996).
7) Michael Walzer, Just and Unjust Wars (New York: Basic Books, 1977), 21.
254
International International Human International

Jus ad Bellum
Humanitarian Law Rights Law Criminal Law
Conduct during Conduct during

Governs: Initiation of conflict Conduct at all times
conflict conflict
Addressed to: States States States Individuals
Opposing forces, All persons on the Opposing forces,

Protects: States civilians, territory or under the civilians,
non-combatants jurisdiction of the state non-combatants
Human rights during armed conflict
Human rights law, which applies to governments during peacetime, generally continues to apply during armed
conflict. Because there is a particular danger that human rights and fundamental freedoms will be violated during
wartime, it is especially important to protect human rights during hostilities. However, a State’s need for security is
also heightened during times of armed conflict. In order to ensure its security, a State may need to deviate from its
normal obligations under international human rights law, for example by imposing limitations on the right to freedom
of movement or by withdrawing money from State-funded assistance programmes.
Recognizing that it may sometimes be necessary to balance the rights and freedoms of individuals against the
State’s need for security, human rights law permits States to limit or suspend (derogate from) some rights in times of
emergency, including situations of armed conflict.8 Limitation and derogation clauses provide legal ways for States to
justify their failure to uphold some human rights and fundamental freedoms, but they do not permit States to ignore
their obligations altogether. Derogations must always be proportional to the situation, must be non-discriminatory in
their application, and must not contravene other rules of international law (including IHL). In addition, there is a set
of protections known as the “hard core” of human rights from which States may never deviate. These absolute and
non-derogable rights include:
• The right to life and limitations on the death penalty;
• The right to be free from torture and cruel, inhuman, or degrading treatment;
• The right to be free from slavery and servitude;
• The prohibition of imprisonment for debt;
• The prohibition of retrospective punishment;
• The right to recognition as a person before the law; and
• The right to freedom of thought, conscience, and religion.
As you read through Lesson 12 on international humanitarian law, you may note that the rules making up the
hard core of human rights are very similar to the fundamental guarantees provided by IHL. Indeed, some scholars
have argued that human rights law is effectively displaced by IHL during armed conflict.9 However, the International
Court of Justice (ICJ), along with several of the UN human rights treaty bodies, has clarified that human rights law is
not entirely replaced by IHL, and can still be directly applied during conflict:
8) See the discussion of limitation and derogation from the ICCPR and ICESCR in Lessons 2 and 3.
9) See: G.I.A.D. Draper, “Humanitarian Law and Human Rights”, Acta Juridica, 1979.
255
“The protection offered by human rights conventions does

not cease in case of armed conflict, save through the effect of
provisions for derogation of the kind to be found in Article 4
of the International Covenant on Civil and Political Rights. As
regards the relationship between international humanitarian law
and human rights law, there are thus three possible situations:
some rights may be exclusively matters of international
humanitarian law; others may be exclusively matters of human
rights law; yet others may be matters of both these branches of
international law.”10
In other words, the hard core of the ICCPR and all other rights that the State does not need to limit or derogate
from — including the right to respect economic, social, and cultural rights — are still applicable in times of war.
overseen by
Treaty Treaty Body
In addition to the hard core of the ICCPR and ICESCR, international human rights law has also developed
several other mechanisms for protecting and preserving human rights and fundamental freedoms during wartime.
For example, as mentioned in Lesson 9, the Convention on the Rights of Children (CRC) and its Optional Protocol on
the involvement of children in armed conflict sets a minimum age below which children may not participate in war.
The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) specifies
that: “No exceptional circumstances whatsoever, whether a State of war or a threat of war … may be invoked as a
justification of torture.”11 The “Declaration on the Rights of Indigenous Peoples” also restricts military activities in the
lands and territories of indigenous peoples.12
Regional human rights bodies also assist in protecting human rights during wartime. Individuals whose rights
are violated by their government during wartime can bring claims before regional human rights courts like the
European Court of Human Rights (ECtHR) or the Inter-American Court of Human Rights (IACtHR), and some regional
human rights treaties contain special provisions relating to the protection of human rights during armed conflict, as
well as special limitation and derogation rules.
While reading through the next three lessons, keep in mind the fact that human rights law operates in the
background at the same time as these specialized branches of international law designed to limit the effects of war.
Ask yourself how far human rights should extend in times of conflict, and whether the balance that has been struck
between rights and security is a good one. Should States be able to derogate from human rights in times of conflict?
Which rights? Why? Are the laws of war sufficient for protecting human rights and fundamental freedoms before,
during, and after a conflict?
10) ICJ, “Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory”, Advisory Opinion, ICJ Reports 2004, 9 July 2004. See:
ICJ, “Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda)”, Judgment, ICJ Reports 2005, 19 December
2005; CCPR/C/21/Rev.1/Add.11, 2001, Human Rights Committee, General Comment 29, States of Emergency (Art. 4); E/C.12/1/Add.69, Concluding
Observations of the Committee on Economic, Social and Cultural Rights: Israel, 2001.
11) Convention Against Torture, Art. 2.
12) “Declaration on the Rights of Indigenous Peoples”, Art. 30.
256
Section 11.2 Jus ad Bellum

Because human rights abuses are a symptom of violent conflict, preventing the initiation of hostilities is key to
protecting individual human rights and fundamental freedoms. Likewise, because human rights abuses can trigger
or intensify violent conflicts, protecting human rights is key to securing peace. The twin objectives of promoting
peace and protecting human rights are foundational purposes of the United Nations. As stated in Article 1 of the UN
Charter:
“The purposes of the United Nations are:
1. To maintain international peace and security, and to

that end: to take effective collective measures for the
prevention and removal of threats to the peace, and for
the suppression of acts of aggression or other breaches of
the peace, and to bring about by peaceful means, and in
conformity with the principles of justice and international
law, adjustment or settlement of international disputes or
situations which might lead to a breach of the peace;
2. To develop friendly relations among nations based

on respect for the principle of equal rights and self-
determination of peoples, and to take other appropriate
measures to strengthen universal peace;
3. To achieve international co-operation in solving international

problems of an economic, social, cultural, or humanitarian
character, and in promoting and encouraging respect for
human rights and for fundamental freedoms for all without
distinction as to race, sex, language, or religion; and
4. To be a centre for harmonizing the actions of nations in the

attainment of these common ends.”13
The key international law governing the initiation of hostilities is jus ad bellum (also spelled ius ad bellum), the
law that governs whether a war is just, meaning legally begun. Historical examples of just war theory date back
centuries, and include the bellum Romanum of the Roman era and St. Augustine’s writings in the fifth century.14 For
much of its early history, the theory of just war was elaborated principally in theological terms, but over the centuries
jus ad bellum has shifted to a secular ethical model.
Modern jus ad bellum is most notably contained in several treaties from the first half of the twentieth century. In
the Kellogg-Briand Pact of 1928, parties condemned “recourse to war for the solution of international controversies”,
renouncing it “as an instrument of national policy in their relations with one another”, and agreeing that “the
settlement or solution of all disputes or conflicts of whatever nature or of whatever origin they may be, which may

14) The Romans believed that a war was just if a foreign nation had violated its duties toward them. Within these limits of jus ad bellum, there were no
further limits on conduct. Robert D. Sloane, “The Cost of Conflation: Preserving the Dualism of Jus ad Bellum and Jus in Bello in the Contemporary
Law of War”, Yale Journal of International Law, vol. 34, 2009, 57.
257
arise among them, shall never be sought except by pacific means”.15 Similarly, the London Agreement and Charter
establishing the Nuremberg War Crimes Tribunal condemned crimes against peace, “namely, planning, preparation,
initiation or waging a war of aggression, or a war in violation of international treaties, agreements or assurances, or
participation in a common plan or conspiracy for the accomplishment of any of the foregoing”.16
The UN Charter, which expresses the current jus ad bellum, confirmed this sentiment, and committed all Member
States to the peaceful settlement of disputes. According to Article 2 of the UN Charter:
“3. All Members shall settle their international disputes by

peaceful means in such a manner that international peace
and security, and justice, are not endangered.
4. All Members shall refrain in their international relations from

the threat or use of force against the territorial integrity or
political independence of any State, or in any other manner
inconsistent with the Purposes of the United Nations.”17
Paragraph 4 imposes a so-called “prohibition on the use of force” on all UN Member States. This rule is generally
accepted to be a part of customary international law,18 and has been proclaimed a cornerstone of the UN Charter.19
The UN Charter gives the Security Council the “primary responsibility for the maintenance of international peace
and security” and the enforcement of the prohibition on the use of force.20 In order to carry out this responsibility,
the Charter gives the Security Council a number of powers: to call upon parties to settle disagreements by peaceful
means, to investigate disputes, to make recommendations, to impose sanctions, and even to authorize armed
intervention, in some cases.
There are two exceptions to this prohibition on the use of force, meaning that according to the UN Charter there
are two circumstances under which force may justly be used against another nation:
• Security Council enforcement: As mentioned, if the Security Council deems it necessary for the
restoration of international peace and security, it may authorize the use of force to halt an armed conflict:
“[The Security Council] may take such action by air, sea,

or land forces as may be necessary to restore international
peace and security. Such action may include demonstrations,
blockade, and other operations by air, sea, or land forces of
Members of the United Nations.”21
• Self-defence: If one country aggressively attacks another, then the victim has the right to use force to
defend itself:
“Nothing in the present Charter shall impair the inherent right

of individual or collective self-defence if an armed attack occurs
15) Treaty Providing for the Renunciation of War as an Instrument of National Policy (“Kellogg-Briand Pact”), 27 August 1928.
16) Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, and Charter of the International Military Tribunal
(“London Charter”), 8 August 1945, Art. 6(a).
17) UN Charter, Art. 2(4).
18) Christine Gray, International Law and the Use of Force, 3d ed., 2008, 31.
19) Armed Activities on the Territory of Congo, ICJ Reports 168, 2005, para. 148.
258
against a Member of the United Nations, until the Security

Council has taken measures necessary to maintain international
peace and security.”22
The exception for Security Council enforcement, also known as “collective security measures”, has been used on
several occasions, although rarely before the 1990s. Until the end of the Cold War, unanimous support from the five
permanent Members — which included both the United States and the Soviet Union — was difficult to achieve. As a
result of this general lack of unanimity, in the first 45 years of the UN’s existence, from 1945 to 1990, the use of force
was authorized on only three occasions.
The first and only significant authorization of the use of force before 1990 was during the Korean War in 1950.23
At that time, the Soviet Union was boycotting Security Council meetings in protest against Taiwan’s representation of
China at the UN. The other Member States took advantage of the USSR’s absence to vote that a breach of the peace
had occurred in Korea, and to authorize the use of force by a unified command led by the United States. Minor uses
of force were also authorized to prevent civil war in the Congo in 1961,24 and to stop the delivery of oil to Southern
Rhodesia in 1966.25
With the end of the Cold War it has become much easier to reach consensus among the five permanent Members
of the Security Council. As a result, since the 1990s the Security Council has been far more active in authorizing the
use of force in the maintenance of international peace and security. Its interpretation of a “threat to the peace” has
broadened; the idea of international peacekeeping and humanitarian intervention has come into vogue; and more
frequent use has been made of the Security Council’s authority under Chapter VII of the UN Charter.26 In the last two
decades, the use of force has been authorized against Iraq after its invasion of Kuwait in 1990,27 and as a part of
peacekeeping or humanitarian interventions in the former Yugoslavia,28 Somalia,29 Sierra Leone,30 and Haiti,31 among
others.32
The self-defence exception has also been used on a number of occasions. Self-defence is authorized when a
State is under “an armed attack” by an aggressor.33 On its face, this rule may seem relatively straightforward, but in
practice, it has proven quite difficult to apply.
To begin with, in an armed conflict it is not always clear which State is the “aggressor” and which is the
“defender”. The case of Cameroon v. Nigeria, decided by the ICJ in 2002, provides a good example. In 1987,
Cameroon and Nigeria were engaged in a border dispute over a piece of territory claimed by both States. When
fighting broke out over the region, each country claimed that it was peacefully occupying the territory, that the

23) S/1511, Security Council resolution 83, 1950; Security Council resolution 84, 1950.
24) S/4741, Security Council resolution 161, 1961; Security Council resolution 169, UN Doc. S/5002, 1961.
25) S/RES/221, Security Council resolution 221, 1966.
26) Niels Blokker, “Is Authorization Authorized? Powers and Practice of the UN Security Council to Authorize the Use of Force by ‘Coalitions of the Able and
Willing’”, European Journal of International Law, vol. 11, 2000, 542.
27) Security Council resolution 665; Security Council resolution 678, 1990.
28) Security Council resolutions 770, 787, 816, 836, 908, 1031, 1088, 1174, 1244, and 1247
29) Security Council resolution 794
30) Security Council resolution 1132
31) Security Council resolutions 875 and 940
32) Other authorizations include, for example, Albania, Rwanda, the Great Lakes region, Central African Republic, Guinea-Bissau, and East Timor.
33) This formulation is sometimes known as the “Webster-Ashburton doctrine”, after the correspondence between US Secretary of State Daniel Webster and
British Special Minister Lord Ashburton in which it was first articulated. Letter from Daniel Webster, US Secretary of State, to Lord Ashburton, British
Special Minister (July 27, 1842), in Treaties and Other International Acts of the United States of America: 1836-46, vol. 4, Hunter Miller, ed. (1934), 449.
259
Members of the Jordanian Special Weapons and Tactics (SWAT) team of the United Nations Stabilization Mission
in Haiti (MINUSTAH) take position during a drug seizure exercise. 22 December 2008. UN Photo #267584 by
Marco Dormino.
opposing side had begun the aggression, and that any force used was in self-defence.34 In a situation like this, how
can we determine whose use of force was legal, and whose was in violation of the UN Charter?
Second, it is not always clear what constitutes an “armed attack”. According to the ICJ’s opinion in the Nicaragua
case, not all measures that “involve a use of force” are sufficiently “grave” to be considered armed attacks.35 In that
case, the Court ruled that in evaluating violence by insurgents during the Nicaraguan civil war, the key factor was
whether their action “because of its scale and effects, would be classified as an armed attack, rather than as a mere
frontier incident had it been carried out by regular armed forces”.36
Third, the scope of the right is unclear. It is clear that a State may exercise the right to self-defence when an
armed attack is ongoing. But must it wait until the attack has begun? Particularly in the nuclear age, is this not
tantamount to saying that the State must give itself up to destruction? In recognition of this danger, many States
and commentators have argued that a State does not have to wait for its adversary’s “first, perhaps decisive, military
strike” before it can use force to defend itself.37 Defence against “imminent attacks” was understood to be within the
scope of the customary right to self-defence well before the dawn of the Second World War: in the 1837 The Caroline
Case, a State was agreed to have the right to self-defence not only in the event of an ongoing attack, but also where
it could “show a necessity of self-defence, instant, overwhelming, leaving no choice of means and no moment for
deliberation”.38
34) ICJ, “Case Concerning the Land and Maritime Boundary Between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening)”,
Judgment, ICJ Reports 2002, 10 October 2002. Although both sides had produced extensive arguments on the use of force, the ICJ did not make a
determination on which State was the “defender” and which the “aggressor” in this case.
35) ICJ, “Military and Paramilitary Activities (Nicaragua v. United States)”, Judgment, ICJ Reports, 1986, 110.
36) Ibid., 103.
37) Thomas M. Franck, Recourse to Force: 5State Action Against Threats and Armed Attacks (New York: Cambridge University Press, 2002), 98.
38) The Caroline (Exchange of Diplomatic Notes between the United Kingdom of Great Britain and Ireland and the United States of America), Letter from
Mr. Webster to Mr. Fox, 24 April 1841.
260
Reflecting this early understanding, there is currently widespread agreement that States may use force in
anticipatory self-defence, so long as the use of force is necessary to prevent the attack (“leaving no choice of
means”) and the attack is imminent (“instant” and leaving “no moment for deliberation”).39
Some States have attempted to extend the boundaries of anticipatory self-defence beyond imminent attacks to
include a broader set of pre-emptive actions. For example, the United States government attempted to argue at the
outset of the 2003 Iraq War that it should not have to wait “until the threat is imminent” to act in self-defence.40 Instead,
officials argued that there should be a right to “anticipatory self-defence” that would include pre-emptive actions taken
in response to longer-term threats. As John Yoo and Will Trachman wrote in the Chicago Journal of International Law:
“Today … the United Nations’ rules on the use of force have become obsolete”; “Modern warfare demands that States
enjoy more flexibility in the use of force than that permitted under a strict reading of the UN Charter’s rules.”41 The
majority of States, however, reject this view.42 In fact, the so-called “Bush doctrine” of pre-emptive self-defence has
been pilloried by many observers, with some going so far as to claim that it signalled the downfall of the UN Charter
system:
“[The war in Iraq] is one of the few events of the UN Charter

period holding the potential for fundamental transformation, or
possibly even destruction, of the system of law governing the
use of force that had evolved during the twentieth century.”43
Both Security Council enforcement and the self-defence exception must be exercised with due respect for the
principle of proportionality — that the resort to force must be proportional to the asserted casus belli (the cause for
war). Proportionality is related to the size, duration, and target of the response. It is the principle that “self-defence
must not be retaliatory or punitive; the aim should be to halt and repel an attack”.44
Self-Defence as Right and Duty »

“Self-defence against an unjust attack is not only a right which every Nation has, but it is a
duty, and one of its most sacred duties.”
–Emmerich de Vattel
from The Law of Nations, or the Principles of Natural Law, Applied to the Conduct and to
the Affairs of Nations and of Sovereigns (Charles G. Fenwick, trans.) (1916)
39) A/59/565, UN High Level Panel on Threats, Challenges and Change, A More Secure World: Our Shared Responsibility, para. 188 (2 December
2004). See: Secretary-General, In Larger Freedom: Towards Development, Security and Human Rights for All, A/59/2005, 21 March 2005, para.
124 (“Imminent threats are fully covered by Article 51, which safeguards the inherent right of sovereign States to defend themselves against armed
attack. [This] covers an imminent attack as well as one that has already happened”.).
40) President’s Address Before a Joint Session of Congress on the State of the Union, 28 January 2003.
41) John C. Yoo and Will Trachman, “Less than Bargained for: The Use of Force and the Declining Relevance of the United Nations”, Chicago Journal of
International Law, vol. 5 (2005), 381 and 394.
42) Christine Gray, International Law and the Use of Force (Third Edition) (New York: Oxford University Press, 2008, 160.
43) Lori Fisler Damrosch and Bernard H. Oxman, “Editors’ Introduction”, American Journal of International Law, vol. 97, 2003, 553.
44) Christine Gray, 150.
261
Section 11.3 The Responsibility to Protect

In addition to Security Council enforcement and self-defence, scholars and activists have long argued that
international law should recognize a third exception to the prohibition on the use of force for humanitarian
intervention.45 Humanitarian intervention is defined as “the threat or use of armed force by a State, a belligerent
community, or an international organization, with the object of protecting human rights”.46
Following the end of the Cold War, States seemed increasingly willing to intervene in the affairs of other nations
for humanitarian reasons. The Security Council authorized humanitarian actions in places like Somalia and Haiti, Sierra
Leone and the Democratic Republic of the Congo. States grouped together to undertake unilateral actions as well.
In March 1999, for example, the North Atlantic Treaty Organization (NATO) launched air strikes against the Federal
Republic of Yugoslavia, without Security Council authorization, out of humanitarian concerns.
Unauthorized interventions like NATO’s Kosovo action were problematic from an international legal perspective.
On the one hand, they seemed to fill a gap in the international human rights protection regime, allowing States
to stop or prevent gross violations of individual rights.47 On the other hand, because they were neither authorized
by the Security Council nor necessary for self-defence, these humanitarian interventions were clearly in breach of
the UN Charter’s prohibition on the use of force. While many saw them as morally justifiable, therefore, they were
generally agreed to be in violation of international law, and States expressed fear that less desirable unilateral
actions might follow.48 Illustratively, Richard Goldstone, head of the UN’s Kosovo Commission, concluded that NATO’s
intervention was “illegal but legitimate”.49
Despite the greater willingness of States to intervene in situations of humanitarian crisis, the 1990s were
witness to several unmitigated human rights disasters. As Professor Simon Chesterfield explains: “Since the death
of 18 US army Rangers in Mogadishu in 1993, the reality has been that Western powers in particular have lacked
the political will to intervene meaningfully anywhere that their interests are not substantially engaged.”50 In places
45) Henry J. Steiner, Philip Alston, and Ryan Goodman, International Human Rights in Context: Law, Politics, Morals (Third Edition) (New York: Oxford
University Press, 2007), 837. Attempts have been made both to argue that a new customary norm has created an additional exception to the
prohibition as well as to limit the scope of the prohibition of the use of force. Simon Chesterman, “No More Rwandas vs No More Kosovos: Intervention
and Prevention”, in La protección internacional de los derechos humanos: un reto en el siglo XXI, Ana Covarrubias Velaso and Daniel Ortega Nieto,
eds., 2007 Interestingly, States have proven reluctant to embrace such a right — even when it would justify their own actions.
46) Ian Brownlie, “Humanitarian Intervention”, in Law and Civil War in the Modern World, John N. Moore, ed., 1974, 217. Less-intrusive actions such
as the provision of food, medicine and shelter, are more properly termed “humanitarian assistance”. Simon Chesterman, Just War or Just Peace?
Humanitarian Intervention and International Law, 2001, 3.
47) See: Peter van Ham, “The Rise of the Brand State: The Postmodern Politics of Image and Reputation”, Foreign Affairs (September–October 2001)
(discussing how the bombing of Serbia improved the reputation of NATO members by demonstrating their willingness to take action to stop genocide).
48) The recent action in Iraq has been cited by some as vindicating these concerns. Simon Chesterman, “No More Rwandas vs No More Kosovos:
Intervention and Prevention”, in La protección internacional de los derechos humanos: un reto en el siglo XXI, Ana Covarrubias Velaso and Daniel
Ortega Nieto, eds., 2007. See: Deborah M. Weissman, “The Human Rights Dilemma: Rethinking the Humanitarian Project”, Columbia Human Rights
Law Review, vol. 35, 2004 (describing how human rights concerns were used by “human rights hawks” to rationalize US military intervention into
Iraq). Indeed, commentators argued for intervention in Iraq on just these grounds. See: Anne-Marie Slaughter, “Good Reasons for Going Around the
UN”, New York Times, 8 March 2003.
49) Independent International Commission on Kosovo, The Kosovo Report, 23 October 2000, 4.
50) Simon Chesterman, “No More Rwandas vs No More Kosovos: Intervention and Prevention”, in La protección internacional de los derechos humanos:
un reto en el siglo XXI, Ana Covarrubias Velaso and Daniel Ortega Nieto, eds., 2007. See: Melissa S. Williams, “The Jury, the Law, and the Primacy
of Politics”, in Humanitarian Intervention: Nomos XLVII, Terry Nardin and Melissa S. Williams eds., 2006, 255–256: “Evidence on the resistance
of democratic publics to humanitarian intervention is mixed. American public opinion polls suggest that most people are willing to put troops and
resources at risk to protect human rights, at least in some circumstances. One year after the Rwanda genocide, for example, 70 per cent of Americans
surveyed thought that the United States should “have gone in with a large military force to occupy and stop the killings”. The withdrawal of US troops
from Somalia was driven more by congressional reaction to the loss of American lives than by popular outrage; public opinion polls taken shortly after
the failed operation in Mogadishu showed that more than 60 per cent of Americans continued to support the humanitarian mission. More recently,
69 per cent of respondents to a survey on the humanitarian crisis in western Sudan thought that, if the UN determined that human rights abuses in
Darfur constitute a genocide, the United States should participate in an intervention, even if doing so required the use of military force. This suggests
that where there is strong political leadership to make sense of the moral duties of humanitarian intervention to democratic citizenries, there is a
foundation of already-existing public opinion to appeal to. If the international community fails to undertake humanitarian interventions when such
interventions could support human rights without threatening security, we should understand nonintervention as a failure of political and moral
leadership, not the nation-centred choice of democratic publics.
262
like Rwanda and Bosnia, neither the Security Council nor any unauthorized force stepped in to halt mass atrocities.
Failure to intervene in several critical cases brought the debate over the “right to humanitarian intervention” into
sharp focus. Then-Secretary-General Kofi Annan presented the dilemma in stark terms in his 1999 annual report to
the UN General Assembly:
“To those for whom the greatest threat to the future

international order is the use of force in the absence of a
Security Council mandate, one might ask — not in the context
of Kosovo — but in the context of Rwanda: If, in those dark
days and hours leading up to the genocide, a coalition of States
had been prepared to act in defence of the Tutsi population,
but did not receive prompt Council authorization, should such a
coalition have stood aside and allowed the horror to unfold?”51
The failure of the international community to intervene in the face of genocide in Rwanda and other humanitarian
debacles led to “extensive soul-searching” with respect to the nature and purpose of humanitarian intervention.52
On the Responsibility to Protect »

“In my address to the General Assembly last September, I called on Member States to unite in
the pursuit of more effective policies to stop organized mass murder and egregious violations
of human rights. Although I emphasized that intervention embraced a wide continuum of
responses, from diplomacy to armed action, it was the latter option that generated most
controversy in the debate that followed.
Some critics were concerned that the concept of ‘humanitarian intervention’ could become
a cover for gratuitous interference in the internal affairs of sovereign States. Others felt
that it might encourage secessionist movements deliberately to provoke governments
into committing gross violations of human rights in order to trigger external interventions
that would aid their cause. Still others noted that there is little consistency in the practice
of intervention, owing to its inherent difficulties and costs as well as perceived national
interests — except that weak States are far more likely to be subjected to it than strong ones.
I recognize both the force and the importance of these arguments. I also accept that the
principles of sovereignty and non-interference offer vital protection to small and weak States.
But to the critics I would pose this question: if humanitarian intervention is, indeed, an
unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebrenica —
to gross and systematic violations of human rights that offend every precept of our common
humanity?”
–Kofi Annan
from We the Peoples: The Role of the United Nations in the 21st Century (2001)
51) Secretary-General Presents His Annual Report to the General Assembly, UN Doc. SG/SM/7136-GA/9596, 20 September 1999.
263
A UN inquiry into Rwanda condemned the failure to “prevent, and subsequently, to stop the genocide in Rwanda”
as a failure by the UN system.53 Others blamed the lack of international response on “the capriciousness of State
interest”.54 And activists began searching for a way to ensure that such failures did not happen again in the future.
The concept of Responsibility to Protect (R2P), developed most elaborately by the Canadian-sponsored
International Commission on Intervention and State Sovereignty (ICISS) in 2001,55 sought to address these twin
problems of legitimacy and lack of political will. Its proponents argued that there is no right to humanitarian
intervention that would allow States to intervene for humanitarian purposes when they choose to do so. Instead,
States have a responsibility to protect individuals from gross violations of their human rights. As the ICISS
wrote, “the primary responsibility for the protection of its people lies with the State itself”, but where a State is
“unwilling or unable” to prevent serious and systematic harm to its population, “the principle of non-intervention
yields to the international responsibility to protect”.56
Under this formulation, the international community is morally responsible for using force in “defence of others”
when a State is either unwilling or unable to prevent or put an end to grave ongoing human rights abuses. R2P
applies even when the abuses taking place are purely internal and pose no threat to international peace and security,
and even in the absence of Security Council authorization. Intervention in the name of R2P could range in tactic from
actual war fighting to armed peace enforcement to providing protection for safe areas, aid convoys, or humanitarian
corridors, and States are seen as having a moral and political responsibility to act.
Writing Exercise 11: Arcadia and Dystopia »

You have been hired as a humanitarian affairs adviser to the State of Arcadia. Arcadia is
a large, wealthy developed country with a strong military and a substantial international
presence. The Arcadian government has expressed concern about ongoing human rights
violations occurring in Dystopia, a neighbouring State. Refugees have fled across the border
into Arcadia, bringing with them tales of mass executions and genocide. Arcadia requested
the Security Council to consider authorizing intervention, but one of the permanent five
vetoed the action (14 in favour, one against), saying that events in Dystopia pose no threat
to international peace and security. The Arcadian government has asked you to analyse their
options with respect to armed intervention into Dystopia.
• What does jus ad bellum say about Arcadia’s proposed intervention?
• Should ongoing debates about humanitarian intervention and the Responsibility to

Protect (R2P) affect Arcadia’s decision? If so, how?
• Should Arcadia intervene in Dystopia? What implications might such an intervention

have for relations between the two States? For Arcadia’s standing in the international
community? For the prohibition on the use of force in general? Is unilateral action
morally acceptable? Is it legally acceptable?
53) S/1999, Report of the Independent Inquiry into the Actions of the United Nations During the 1994 Genocide in Rwanda. In drafting this report, the
ICISS built on the ideas of Francis Mading Deng, Sovereignty as Responsibility: Conflict Management in Africa, 1996.
54) Simon Chesterman.
55) International Commission on Intervention and State Sovereignty, Responsibility to Protect, 2001.
56) Ibid.
264
The legal basis for R2P, like that for humanitarian intervention, remains “cloudy”.57 While the UN endorsed the
concept in the 2005 World Summit Outcome Document, its language was far from recognizing a firm legal obligation
to use force or any new exception to the prohibition on the use of force in Article 2(4) of the UN Charter.58
The ideas of humanitarian intervention and R2P remain highly controversial. To begin with, the international
community’s obligation to respect State sovereignty is in conflict with its obligation to promote and protect human
rights up to and including through armed intervention. Proponents of the R2P paradigm argue that preventing mass
atrocities is so important that Westphalian conceptions of sovereignty and the traditional limits of international
relations should be put aside, but many States continue to insist on the primacy of State sovereignty.
Furthermore, the very idea of unauthorized humanitarian intervention is directly contradictory to the principle
of non-intervention.59 Article 2(7) of the UN Charter prohibits interference in the domestic affairs of Member
States: “Nothing contained in the present Charter shall authorize the United Nations to intervene in matters that
are essentially within the domestic jurisdiction of any State or shall require the Members to submit such matters
to settlement under the present Charter.”60 Formally allowing humanitarian intervention without Security Council
authorization would open up a Pandora’s box of unilateral action.
From an ethical perspective, some argue that the concept of humanitarian intervention is an oxymoron: can
military intervention ever actually be humanitarian? Numerous commentators have floated propositions to eliminate
the term altogether, or to alter it to something like “humanitarian war” or “humanitarian military intervention” in
order to “make clear the bloody costs as well as the benefits”.61 Others point to realist considerations, questioning
the motives of powerful governments that offer to intervene and arousing suspicion that humanitarian intervention
might be little more than a cover for Eurocentric imperialism or self-interested pursuit of gain.
On War »
“Depuis six mille ans la guerre
Plaît aux peuples querelleurs,
Et Dieu perd son temps à faire
Les étoiles et les fleurs.”
(For six thousand years war

Has pleased quarrelsome peoples,
And God wastes time making
Stars and flowers.)
–Victor Hugo
from Les Chansons des rues et des bois (1865)
57) Andrew Clapham, “Rights and Responsibilities: A Legal Perspective”, in From Rights to Responsibilities: Rethinking Intervention for Humanitarian
Purposes, PSIS Special Study 7, O. Jütersonke and K. Krause eds., 2006.
58) UN General Assembly, 2005 World Summit Outcome, A/Res/60/1, 2005.
61) Thomas G. Weiss, Humanitarian Intervention: Ideas in Action (Boston: Polity, 2007), 11 (discussing proposals by David Rieff and Taylor Seybolt). See:
George Orwell, “Politics and the English Language”, 1946 (discussing the use of euphemism in political language “to name things without calling up
mental pictures of them”).
265
Humanitarian intervention and the R2P continue to raise a number of old questions: How and when would a
humanitarian exception be exercised? By individual States, or only by the collectivity? Under whose authority? Would
it ever be exercised against powerful States? Is unilateral action ever desirable? Or does it undermine the collective
security system and the prohibition on the use of force so carefully articulated in the UN Charter? Does it matter
whether humanitarian intervention and the R2P are legal or not?
Effectiveness and Evolution
It should be noted that despite the limited circumstances under which the use of force is authorized under
international law, there have been dozens, perhaps hundreds, of wars in the years since the UN Charter came into
force. By one estimate, the twentieth century saw 175 million war-related deaths.62 The prohibition of the use of
force, in other words, seems to be much more commonly honoured in the breach than in the observance. This
raises questions not only about the enforceability and effectiveness of jus ad bellum — a topic to which we will
return in Lesson 15 — but also the idea of jus ad bellum as law. When a law is routinely violated by its subjects,
can it still be called law?63 Must it evolve to meet the changing needs of the regulated? Should jus ad bellum
“evolve” to permit pre-emptive self-defence or allow a humanitarian exception?64
Conclusion
Despite these challenges, the UN Charter’s prohibition of the use of force except in self-defence or when
authorized by the Security Council remains the governing jus ad bellum. Whether an armed conflict is just or
unjustly begun, however, is only the beginning of the story. Once States (or groups within States) have entered
into conflict with one another, what rules protect the human rights and fundamental freedoms of combatants and
non‑combatants? This will be the subject of Lesson 12.
Further reading
• Niels Blokker, “Is Authorization Authorized? Powers and Practice of the UN Security Council to Authorize the
Use of Force by ‘Coalitions of the Able and Willing’,” European Journal of International Law, vol. 11, 2000.
• Simon Chesterman, Just War or Just Peace? Humanitarian Intervention and International Law, 2001.
• International Commission on Intervention and State Sovereignty, Responsibility to Protect, 2001.
• Julie A. Mertus & Jeffrey W. Helsing eds., Human Rights & Conflict: Exploring the Links between Rights, Law,
and Peacebuilding, 2006.
• J.L. Holzgrefe & Robert O. Keohane eds., Humanitarian Intervention: Ethical, Legal and Political Dilemmas,
2003.
• UN Security Council: <www.un.org/Docs/sc>.
• ICISS: <www.iciss.ca>.
62) Zbigniew Brzezinski, Out of Control: Global Turmoil on the Eve of the Twenty-First Century (New York: Scribner, 1993).
63) See: Michael J. Glennon, Limits of Law, Prerogatives of Power (New York, Palgrave Macmillan, 2003), 2 (arguing that “there is, today, no coherent
international law concerning intervention by States”).
64) See: Eric A. Posner and Alan O. Sykes, “Optimal War and Jus ad Bellum”, Georgetown Law Journal, vol. 93, 2005 (arguing that both humanitarian
intervention and pre-emptive self-defence should be allowed under an evolved jus ad bellum).
266
For questions 1–4, match the following organs with their descriptions:
1. Jus ad bellum A. The law that governs State conduct

toward individuals under its
jurisdiction at all times.
B. The law that governs State conduct

2. International human rights law towards opposing forces, civilians,
and non-combatants during wartime.
C. The law that governs individual

conduct toward opposing
3. International humanitarian law (IHL) individuals during wartime and
ensures accountability for serious
international crimes.
D. The law that governs whether a war is

4. International criminal law (ICL)
“just”, meaning legally begun.
5. All of the following are absolute or non- 7. The current doctrine of jus ad bellum is
derogable rights EXCEPT _____. contained in which document?
A. the right to life A. The ICCPR
B. the right to be free from torture B. The Genocide Convention
C. the right to freedom of thought, conscience, C. The UDHR
and religion D. The UN Charter
D. the right to freedom of peaceful assembly
8. _____ and _____ are the two exceptions
6. When does international human rights to the prohibition on the use of force
law apply? recognized by the UN Charter.
A. Both during wartime and peacetime

B. Only during wartime
C. Only during peacetime
D. Human rights law does not really exist
267
9. The Security Council has authorized the 10. When can States act in self-defence?
use of force into which of the following
A. When a State is under attack
countries?
B. When a State is under attack or is
A. Haiti
threatened with imminent attack that can
B. The United States only be stopped by the use of force
C. Georgia C. When a State is under attack, is threatened
D. The Security Council has never authorized with imminent attack, or believes that
the use of force another State may attack at some point in
the future
D. Any time it feels threatened in any way
Answer Key »
1. D
2. A
3. B
4. C
5. D
6. A
7. D
8. Security Council enforcement and self-

defence
9. A
10. B
268
HUMAN RIGHTS
12 Conflict II: International

Humanitarian Law
Once States or groups of States

have entered into conflict with one
another (whether legally or not), jus
ad bellum fades into the background,
and international humanitarian law
(IHL), also known as jus in bello
(“law in war”) begins to apply.
UN Photo #123781 by Mark Garten.
Section 12.1 Introduction • Understand the purposes of international
humanitarian law.
Section 12.2 International Humanitarian Law
• Identify some of the major principles contained in
Section 12.3 Law and War
the Geneva Conventions.
• Understand the application of international
humanitarian law during non-international armed
conflicts.
• Explain the concept of grave breaches.
• Define the meaning of universal jurisdiction.
• Describe some mechanisms for the enforcement of
international humanitarian law.
• Appreciate the theoretical issues related to the
application of law to war.
269
LESSON 12 | Human Rights During Armed Conflict II: International Humanitarian Law
A mine laid by the Iraqi occupation forces has been exposed by the shifting sands in the desert near the oil-fields of Al Wafra in
Southern Kuwait. 29 March 1991. UN Photo #87880 by John Isaac.

In Lesson 11, we introduced the topic of human rights
and armed conflict, and identified the different bodies of
law that apply during war. We focused initially on jus ad
bellum — the law that governs whether a conflict is “just”,
meaning legally begun — and emerging doctrines such as the
Responsibility to Protect (R2P).

during-armed-conflict-ii-international-
humanitarian-law/>.
270
In Lesson 12, we will take this discussion one step further. Once States or groups of States have entered
into conflict with one another (whether legally or not), jus ad bellum fades into the background, and international
humanitarian law (IHL), also known as jus in bello (“law in war”) begins to apply.
This lesson will begin with a discussion of the history and content of IHL, followed by an exploration of its
scope and the system set up to enforce it. It will then turn to a brief discussion of the theoretical implications of
humanitarian law, asking what the consequences might be of trying to use law to contain the effects of war.
Section 12.2 International Humanitarian Law

Once a conflict has begun, the legality of the cause under jus ad bellum is put to the side, and jus in bello —
international humanitarian law (IHL) — takes over. IHL and international human rights law share a common ideal:
the protection of the dignity and integrity of the person. Whereas international human rights law applies at all times,
however, IHL applies only during situations of armed conflict. It does not apply during peacetime, to isolated acts of
violence, or to internal tensions or disturbances. Such “peacetime” violence is governed by domestic criminal law.
Once armed conflict has begun, however, IHL applies equally and symmetrically to all parties, regardless of who
initiated the hostilities, and whether or not the war was justly begun according to jus ad bellum.
The primary goal of IHL is to reduce unnecessary damage resulting from armed conflict. Generally speaking, IHL
covers two areas:
• Protecting non-combatants: providing protection for those who are not taking part in the fighting
(including civilians, humanitarian workers, and medical or religious personnel), or are no longer able to do
so (including the wounded, sick, and shipwrecked, as well as prisoners of war);
• Restricting the means and methods of warfare: forbidding certain weapons and tactics, particularly
those that do not discriminate between combatants and non-combatants, those that cause excessive injury
or unnecessary suffering, and those that cause severe or long-term damage to the environment.
We will discuss each of these functions, their application in different contexts, and the systems developed to
enforce them, below.
A brief history of international humanitarian law
The birth of IHL, like that of jus ad bellum, preceded the development of international human rights law. The
concept of the “law of war” dates back to ancient times, and the historical record confirms that the Roman, Israelite,
and Islamic traditions all contained some regulation of individual conduct during wartime.1 Modern international
humanitarian law can be traced back to several milestones that occurred during the mid-1800s: the founding of the
International Committee of the Red Cross (ICRC) in 1859; the promulgation of the so-called Lieber Code regulating
the conduct of government soldiers during the United States’ Civil War;2 the drafting of the First Geneva Convention
of 1864: the Convention for the Amelioration of the Condition of the Wounded in Armies in the Field;3 and the “St.
Petersburg Declaration of 1868 Renouncing the Use in Times of War of Explosive Projectiles Under 400 Grammes
Weight”.4
1) Ronald C. Slye and Beth Van Schaack, International Criminal Law: The Essentials (New York: Aspen Publishers, 2008).
2) Francis Lieber, Instructions for the Government of Armies of the United States in the Field, General Orders No. 100, 24 April 1863, “Lieber Code”,
reprinted in The Law of War: A Documentary History, vol. 1, Leon Friedman, ed., 1972.
3) Convention for the Amelioration of the Condition of the Wounded in Armies of the Field, Geneva, 1864.
4) “Declaration Renouncing the Use in Time of War, of Explosive Projectiles Under 400 Grammes Weight”, 29 November–11 December 1868.
271
These treaties and codes established the first wave of protections for civilians and prohibitions of indiscriminate and
unusually destructive means and methods of warfare. But it should be noted that they grew out of and applied primarily
to the European context — the consensus in the nineteenth century was that the law of nations, including the law of war,
applied only to “civilized” (meaning European) peoples. In the words of the nineteenth century British philosopher John
Stuart Mill:
“To suppose that the same international customs, and the

same rules of international morality, can obtain between one
civilized nation and another, and between civilized nations and
barbarians, is a grave error, and one which no Statesman can
fall into …”5
Even after the adoption of the early IHL instruments, means and methods of warfare considered to be banned
or despicable in Europe continued to be used against non-European peoples, and any decision by European and
American commanders to apply international humanitarian law in the colonies was considered entirely discretionary
and “merely as a result of charity or chivalry”.6
Meanwhile, after the adoption of the First Geneva Convention of 1864, the “civilized” nations came together on
a not infrequent basis to codify the laws of war in international treaties. A number of humanitarian law conventions
were agreed prior to the Second World War. Most prominent among these were:
» The Hague Conventions of 1899:
• On the Pacific Settlement of International Disputes (Hague I);
• On the Laws and Customs of War on Land (Hague II);
• On Maritime Warfare (Hague III);
• On the Launching of Projectiles and Explosives from Balloons (Hague IV, 1);
• On Asphyxiating Gases (Hague IV, 2);
• On Expanding Bullets (Hague IV, 3);
» The Hague Conventions of 1907:
• On the Opening of Hostilities (Hague III);
• On the Rights and Duties of Neutral Powers and Persons in Case of War on Land (Hague V);
• On the Status of Enemy Merchant Ships at the Outbreak of Hostilities (Hague VI);
• On the Laying of Submarine Automatic Contact Mines (Hague VIII);
• On the Bombardment by Naval Forces in Time of War (Hague IX);
• On the Discharge of Projectiles and Explosives from Balloons (Hague XIV);
» The 1925 Geneva Gas Protocol; and
» The 1929 Geneva Convention on the treatment of prisoners of war.
5) John Stuart Mill, “A Few Words on Non-Intervention”, in XXI Collected Works, John M. Robson, ed.,1984, 118.
6) Frédéric Mégret, “From ‘Savages’ to ‘Unlawful Combatants’: A Postcolonial Look at International Humanitarian Law’s ‘Other’”, in International Law and
Its Others, Anne Orford, ed., 2006, 282.
272
Some of the Hague Conventions of 1899 and 1907 included a section in their preambles that has become known
as the Martens Clause (named for the Russian diplomat who proposed it). The Martens Clause provided that:
“Until a more complete code of the laws of war has been issued,
the High Contracting Parties deem it expedient to declare that,
in cases not included in the Regulations adopted by them, the
inhabitants and the belligerents remain under the protection
and the rule of the principles of the law of nations, as they
result from the usages established among civilized peoples,
from the laws of humanity, and the dictates of the public
conscience.”7
Although the Martens Clause was not viewed as particularly significant at the time it was drafted, it has come
to hold an important place in IHL. Today, the Martens Clause stands for the principle that international humanitarian
law is law, not just moral suggestion, and that this law is bigger than what is contained in the conventions.8 Its
contemporary significance is derived mainly from the Clause’s references to the “usages established among civilized
peoples” and “the laws of humanity, and the dictates of public conscience”. The former phrase has been interpreted
as reiterating the point that the customary law developed among States9 is applicable during all conflicts regardless of
whether it has been included in a treaty. The latter has sometimes been seen as creating new norms of international
humanitarian law based on “the laws of humanity” or “the dictates of public conscience”. The exact legal impact of
the Clause is ambiguous. But whether it is read broadly or narrowly, the Martens Clause “has responded to a deeply
felt and widespread demand in the international community: that the requirements of humanity and the pressure of
public opinion be duly taken into account when regulating armed conflict”.10
In the colonial context, the Martens Clause brought some relief, as its reference to the “laws of humanity”
seemed to include non-European peoples. But for the next several decades, the bulk of the laws of war would
continue to apply only among the “civilized”.
“The Martens clause would seem to have marginally improved

the condition of ‘non-civilized’ peoples. Few for example would
have gone so far as to advocate that the clause did not apply
to ‘savages’, and the consensus was that it did. But whereas in
its supplemental, gap-filling function, the Martens clause was a
welcome safety net for European combatants whose protection
on the field of battle was otherwise guaranteed by abundant
rules, the fact that for ‘savages’ it was the only legal protection
they could rely on would have made it a meager consolation.
The benefit of precisely what the Hague Regulations had sought
to achieve — the moving of humanitarianism from the province
of moral or chivalrous compulsion to positive law obligation —
was thus denied to non-European peoples, effectively leaving
7) 1899 Hague Convention (II) containing the Laws and Customs of War on Land; 1907 Hague Convention (IV) respecting the Laws and Customs of War
on Land. Translation reported in The Hague Conventions and Declarations of 1899 and 1907, J.B. Scott, ed., 1915, 101-102.
8) Antonio Cassese, “The Martens Clause: Half a Loaf or Simply Pie in the Sky?” European Journal of International Law, vol. 11, no. 1, 2000, 188–192.
9) See Lesson 1 for a discussion of customary international law.
10) Antonio Cassese, 212.
273
Europeans’ relations with them in a pre-modern realm of fragile

natural obligations.”11
It was not until after the Second World War, and particularly following the decolonization struggles of the 1970s,
that the Third World would be granted the full benefit of international humanitarian law.12
The Geneva Conventions
The 1864, 1899, 1907, 1925, and 1929 Hague and Geneva Conventions and other pre-Second World War
humanitarian law instruments continue to apply today, and prohibit the use of some particularly noxious means and
methods of war. However, a number of additional agreements have been developed since that time, and today the
primary treaties governing the international law of war are the four Geneva Conventions of 1949 (generally referred
to simply as the Geneva Conventions) and their Protocols.
The four Geneva Conventions and their Additional Protocols provide protection to individuals who are not directly
involved in combat, including:
• The sick and wounded in the field (Geneva Convention I);
• The sick and wounded at sea (Geneva Convention II);
• Prisoners of war (Geneva Convention III); and
• Civilians and non-combatants (Geneva Convention IV).
The Conventions and their Additional Protocols are quite extensive, and set out specific obligations with respect to
minimizing the damage to the sick and wounded, persons captured during a military conflict, and civilians and other
protected persons (including journalists, medical personnel, religious personnel, and humanitarian aid workers) in a
war zone.
To begin with, under the Geneva Conventions forces must abide by the principle of distinction, which requires
them to differentiate between soldiers and civilians, respect and protect these groups to the best of their ability,
and observe their rights under IHL. The principle of distinction is the cornerstone of the law of international armed
conflict.13 It prohibits intentional attacks on non-combatants, and requires that attacks be limited strictly to legitimate
military objectives, which it defines as “those objects which by their nature, location, purpose or use make an
effective contribution to military action and whose total or partial destruction, capture or neutralization, in the
circumstances ruling at the time, offers a definite military advantage”.14 This rule forbidding the direct targeting
of civilians is generally considered to have achieved the status of customary law, and is therefore binding on all
countries regardless of whether they are party to the Geneva Conventions.15
Soldiers, on the other hand, may be attacked at any time, so long as they have not been wounded, captured,
or surrendered. Soldiers who have been wounded are deemed hors de combat (out of combat) and are entitled to
protections similar to those that apply to civilians and non-combatants.16 Soldiers who are captured or surrender
become prisoners of war (POWs), and are entitled to an extensive list of protections and guarantees of humane
treatment under the Third Geneva Convention.
11) Frédéric Mégret, 283 (footnotes omitted).

12) Ibid.
13) Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (Cambridge: Cambridge University Press, 2004), 115.
14) Protocol I, Art. 52(2).
15) Michael Byers, War Law: Understanding International Law and Armed Conflict (London: Atlantic Books, 2005), 116.
16) Ibid., 127.
274
In order to be considered a soldier, an individual must be in a chain of command, wear identifiable insignia, carry
her weapons openly, and act in accordance with the laws of war.17 If she violates these rules, she will not be eligible
for POW status and the protections afforded by that designation. This rule both encourages “fair” fighting and helps
to distinguish soldiers from civilians, thereby maximizing civilian protection.18
According to Geneva Convention rules, hostile forces must take a number of precautions with respect to civilians
and other non-combatants:
“1. In the conduct of military operations, constant care shall be

taken to spare the civilian population, civilians and civilian
objects.
2. With respect to attacks, the following precautions shall be

taken:
a. those who plan or decide upon an attack shall:
i. do everything feasible to verify that the objectives to be

attacked are neither civilians nor civilian objects and are
not subject to special protection but are military objectives
...
ii. take all feasible precautions in the choice of means and

methods of attack with a view to avoiding, and in any
event to minimizing, incidental loss of civilian life, injury to
civilians and damage to civilian objects;
iii. refrain from deciding to launch any attack which may

be expected to cause incidental loss of civilian life, injury
to civilians, damage to civilian objects, or a combination
thereof, which would be excessive in relation to the
concrete and direct military advantage anticipated;
b. an attack shall be canceled or suspended if it becomes

apparent that the objective is not a military one or is subject
to special protection or that the attack may be expected to
cause incidental loss of civilian life, injury to civilians, damage
to civilian objects, or a combination thereof, which would
be excessive in relation to the concrete and direct military
advantage anticipated.”19
17) Hague Convention II, Annex: Regulations Respecting the Laws and Customs of War on Land, Article 1; Geneva Convention III, Art. 4A(2).
18) Michael Byers, 118.
19) Protocol Additional (I) to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts,
adopted 8 June 1977, Art. 57(1)–(2).
275
Indiscriminate attacks — including those that directly target civilians or civilian objects — are forbidden. Also
forbidden are means and methods of warfare that cause “unnecessary suffering or superfluous injury”.20
Protocol I Additional to the Geneva Conventions further requires all military actions to be taken with regard to the
principle of proportionality — that attacks should be carefully constructed, and are forbidden where damage to civilians,
civilian objects, non-combatants, and other protected groups “would be excessive in relation to the concrete and direct
military advantage anticipated”.21 On its face, this rule seems relatively straightforward: before every military attack,
forces are required to weigh potential military advantages against potential collateral damage to civilians, and to
proceed only where the former exceeds the latter.
In practice, however, the principle of proportionality is notoriously difficult to apply. As the Committee Established
to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia22 noted:
“The main problem with the principle of proportionality is not

whether or not it exists but what it means and how it is to be
applied. It is relatively simple to State that there must be an
acceptable relation between the legitimate destructive effect and
undesirable collateral effects. For example, bombing a refugee
camp is obviously prohibited if its only military significance
is that people in the camp are knitting socks for soldiers.
Conversely, an air strike on an ammunition dump should not
be prohibited merely because a farmer is plowing a field in
the area. Unfortunately, most applications of the principle of
proportionality are not quite so clear cut. It is much easier to
formulate the principle of proportionality in general terms than
it is to apply it to a particular set of circumstances because the
comparison is often between unlike quantities and values. One
cannot easily assess the value of innocent lives as opposed to
capturing a particular military objective.”23
Non-international armed conflicts
IHL makes a distinction between international armed conflicts and non-international armed conflicts. The four
Geneva Conventions primarily govern international armed conflicts — conflicts between two or more States. However,
Common Article 3 (“common” because the same article appears in each of the conventions) also applies to conflicts
“not of an international character” — those that are restricted to the territory of a single State. Non-international
armed conflicts generally involve either government armed forces fighting against armed rebels or dissidents, or
else armed groups fighting against one another. Common Article 3, along with Protocol II (which elaborates on the
minimum standards applicable in non-international armed conflicts), has become particularly important in recent
decades, as increasingly, the majority of conflicts do not cross over international borders. Between 1993 and 2003,
20) Ibid., Art. 35(2).

21) Ibid., Arts. 51(5)(b), 57(2)(a)(iii), and 57(2)(b). Note that one may never deliberately attack civilians, no matter how great the military advantage of
doing so. Attacks must always be directed at a legitimate military target, and civilian deaths must occur only collaterally. Compare with the discussion
in Lesson 11 of the proportionality requirement in jus ad bellum.
22) For more on NATO’s bombing campaign in Kosovo, see discussion in Lesson 11.
23) Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia,
para. 48.
276
for example, there was an average of less than one international conflict per year, but between 11 and 22 internal
conflicts annually.24
Common Article 3, which has been called a “convention in miniature”, imposes obligations on all parties to a
non-international armed conflict. It provides that:
“In the case of armed conflict not of an international character

occurring in the territory of one of the High Contracting
Parties, each Party to the conflict shall be bound to apply, as a
minimum, the following provisions:
1. Persons taking no active part in the hostilities, including

members of armed forces who have laid down their arms
and those placed hors de combat by sickness, wounds,
detention, or any other cause, shall in all circumstances be
treated humanely, without any adverse distinction founded
on race, colour, religion or faith, sex, birth or wealth, or any
other similar criteria.
To this end the following acts are and shall remain

prohibited at any time and in any place whatsoever with
respect to the above-mentioned persons:
a. violence to life and person, in particular murder of all

kinds, mutilation, cruel treatment and torture;
b. taking of hostages;
c. outrages upon personal dignity, in particular humiliating

and degrading treatment;
d. the passing of sentences and the carrying out of

executions without previous judgment pronounced by
a regularly constituted court, affording all the judicial
guarantees which are recognized as indispensable by
civilized peoples.
2. The wounded and sick shall be collected and cared for.
The rules set out in Common Article 3 act as what the International Court of Justice (ICJ) has called a “minimum
yardstick”, or lowest common denominator of acceptable behaviour, for all State and non-State actors involved in armed
conflicts: its prohibitions reflect “elementary considerations of humanity”.25
24) Human Security Centre, Human Security Report 2005: War and Peace in the 21st Century (2005), 148 and 151.
25) Nicaragua case, ICJ Reports, 1986, 114.
277
Common Article 3 regulates not just the actions of the officially recognized State, but also of any non-State
entities engaged in an internal armed conflict. This means that once internal violence has risen to the level of
an armed conflict (as opposed to ordinary violence, which is dealt with under domestic criminal law), non-State
belligerents must respect IHL and can take advantage of the protections offered under the Geneva Conventions. It is
not always easy, however, to determine when a dispute has crossed the line from “violence” to “armed conflict”. The
Geneva Conventions contain no express definition of this term. The International Criminal Tribunal for the Former
Yugoslavia (ICTY) has held that an “armed conflict exists whenever there is … protracted armed violence between
governmental authorities and organized armed groups or between such groups within a State”.26 However, this
definition still leaves a great deal of ambiguity with respect to borderline situations.
Historically, States have been resistant to external regulation of internal conflicts. Following the fundamental
Westphalian assumption that the international community should not interfere in the relationship between a State
and its nationals, countries reserved the right to treat internal foes as common criminals, and to deal with them
under domestic law.27 International law only granted rights to rebel groups once they graduated to the status of
“insurgents” who had “effective control over some part of the territory”, and even this determination was left up to
individual States, which could acknowledge or withhold recognition of the insurgency as they wished.28
While today international law increasingly reaches within the borders of sovereign States, the decision to
classify an internal dispute as an “armed conflict”can still be controversial. First, States may be concerned that
designating internal violence as “armed conflict” will grant a degree of political legitimacy to insurgent or rebel
groups. Second, a country may be hesitant to embrace restrictions on its ability to employ any means necessary in
suppressing rebellious activity. Third, a State may be wary of introducing IHL into internal conflicts, which brings with
it monitoring bodies such as the ICRC.29 On the other hand, as Professor David Kretzmer points out, a declaration of
‘armed conflict’ can also be useful to a State: in addition to providing protection to State forces and citizens, it also
legitimates the State’s use of force and indefinite detention of members of opposition groups without the need for
specific justifications or criminal trials in each case.30
Even with the application of Common Article 3, however, the number and reach of rules applying to
non‑international armed conflict are much more limited than those applying to inter-State conflict. Because of the
reduced scope of IHL and the fact that hostilities are between a State and its own nationals, human rights law
becomes particularly important for protecting civilians and non-combatants in non-international armed conflicts.
Grave breaches
Like international human rights law, IHL places restrictions on how States can act in relation to individuals. In
addition, however, IHL indirectly regulates individual behaviour by requiring States to pass laws prohibiting grave
breaches of the Geneva Conventions. Geneva Conventions I–IV list the following grave breaches of international
humanitarian law:
• Wilful killing;
26) Prosecutor v. Tadic, Case No. IT-94-1-I, Decision on Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 70.
27) David Glazier, “Playing by the Rules: Combating al Qaeda Within the Law of War”, William & Mary Law Review, vol. 51, 2009. In 1912, the ICRC
drafted a convention on the role of the Red Cross in civil wars and insurrections. However, its applications to do relief work in internal conflicts were
“treated as unfriendly attempts to interfere in the domestic affairs of the country concerned”. Commentary on Geneva Convention (IV) Relative to the
Protection of Civilian Persons in Times of War, J.S. Pictet, ed., 1958, 27.
28) Antonio Cassese, International Law (Second Edition) (New York: Oxford University Press, 2005), 125.
29) Andrew Clapham, “Human Rights Obligations of Non-State Actors in Conflict Situations”, International Review of the Red Cross, vol. 88, 2006; David
Kretzmer, “Rethinking Application of IHL in Non-International Armed Conflicts”, Israel Law Review, vol. 42, 2009.
30) David Kretzmer, “Rethinking Application of IHL in Non-International Armed Conflicts”, Israel Law Review, vol. 42, 2009 (discussing Israel’s use of the
“armed conflict” designation to justify its actions in the West Bank and Gaza).
278
• Torture or inhuman treatment, including biological experiments;
• Wilfully causing great suffering or serious injury to body or health;
• Extensive destruction and appropriation of property, not justified by military necessity and carried out
unlawfully and wantonly;
• Unlawful deportation or transfer or unlawful confinement of a protected person;
• Compelling a prisoner of war to serve in the forces of the hostile power;
• Willingly depriving a prisoner of war of the rights of fair and regular trial; and
• Taking hostages.31
Universal Jurisdiction »
Traditionally, States have jurisdiction (legal empowerment) to prosecute suspected
criminals on one of four grounds:
Territorial: the offence was committed in the territory of the State;
• Active Nationality: the perpetrator was a citizen of the State;
• Passive Nationality: the victim was a citizen of the State; or
• Protective: the offence endangers the sovereignty of the State (e.g. treason,
producing counterfeit currency).
In order to prosecute an offender, a State had to have a connection with the crime based
on one of these four principles. A Canadian killer who murdered three Americans in
Quebec could not be prosecuted by a Mexican court — the Mexican police would instead
have to extradite the killer for prosecution in either Canada or the United States.
Recently, however, a fifth category of jurisdiction has also been recognized: universality.
Universal jurisdiction allows for the prosecution of crimes by any State, regardless
of whether the crime was committed on its territory, by or to one of its nationals, or
endangers the sovereignty of the State. Universal jurisdiction is based on the principle
that some acts are so heinous that it is in the interest of the whole international
community to see them punished. As such, universal jurisdiction applies only for the
prosecution of very serious international crimes such as piracy, torture, genocide,
terrorism, and war crimes.
31) Geneva Convention (I) for the Amelioration of the Conditions of the Wounded and Sick in Armed Forces in the Field, 12 August 1949, Art. 50; Geneva
Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949, Art. 51;
Geneva Convention (III) relative to the Treatment of Prisoners of War, 12 August 1949, Art. 130; Geneva Convention (IV) relative to the Protection of
Civilian Persons in Time of War, 12 August 1949, Art. 147.
279
IHL requires States to punish individuals who commit any of these grave breaches, and recognizes universal
jurisdiction for the prosecution of these crimes.32 The Geneva Conventions specifically provide that:
“Each High Contracting Party shall be under the obligation

to search for persons alleged to have committed, or to have
ordered to be committed, such grave breaches, and shall bring
such persons, regardless of their nationality, before its own
courts. It may also, if it prefers, and in accordance with the
provisions of its own legislation, hand such persons over for
trial to another High Contracting Party concerned, provided
such High Contracting Party has made out a prima facie case.”33
This means that each State has the right and responsibility to prosecute persons responsible for grave breaches
of the Geneva Conventions, regardless of whether the State has a particular connection to the circumstances of the
breach. It was under this theory, for example, that Adolf Eichmann, architect of Hitler’s “final solution”, was abducted
from Argentina in 1962 and tried in Israel for crimes committed in Europe against European citizens during the
Second World War.
Other instruments
Other modern treaties supplement the regulations contained in the Hague and Geneva Conventions, prohibiting
the use of certain weapons and tactics and protecting certain categories of people and property. These include:
• The Convention on the Prevention and Punishment of the Crime of Genocide (1948);
• The Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954);
• The Biological Weapons Convention (1972);
• The Convention on the Prohibition of Military or any other Hostile Use of Environmental Modification
Techniques (1976);
• The Conventional Weapons Convention (1980);
• The Chemical Weapons Convention (1993);
• The Convention on the Prohibition of the Use, Stockpiling, Production and Trasnfer of Anti-Personnel Mines
(1997);
• The Optional Protocol to the CRC on the involvement of children in armed conflict (2000); and
• The Convention Banning Cluster Munitions (2010).
Enforcement
All of these treaties form a complex web of international humanitarian law intended to protect civilians and non-
combatants from unnecessary harm during armed conflict. Enforcement of these norms is primarily the responsibility
of States, supplemented by the supervisory efforts of the International Committee of the Red Cross (ICRC). The
ICRC, a private Swiss organization with long-standing recognition under international law, was established during the
first wave of IHL in the mid-1800s. The ICRC’s founder, Henry Dunant, was traveling through Lombardy in June of
1859, when he happened to witness a battlefield in the aftermath of a conflict at Solferino. He was so shocked and
32) Compare with the discussion in Lesson 13 of universal jurisdiction in the context of international criminal law.
33) Geneva Convention (I), Art. 49; Geneva Convention (II), Art. 50; Geneva Convention (III), Art. 129; Geneva Convention (IV), Art. 146.
280
Writing Exercise 12: Conflict in Utopia »

You are working in a small country called Utopia that is party to all of the Hague and Geneva
Conventions and their Protocols, as well as the ICCPR, ICESCR, and several other major
human rights treaties. Utopia is currently in the midst of a recognized non-international armed
conflict, with government troops fighting against a rebel guerrilla movement in the south of the
country. The rebels do not wear identifiable uniforms, and have been known to use weapons
indiscriminately. Some members of the Utopian government have argued that the army should
retaliate by taking rebel hostages and using them as human shields to prevent the rebels from
continuing to use prohibited means and methods of warfare.
• Does international humanitarian law apply in this context? What factors are relevant to making this
determination?
• What types of potential violations of IHL can you identify?
• How does the logic of reciprocity function in this case? Do you think that it is wise for the government
to abandon its commitment to upholding the laws of war? Will this tactic work in preventing further
indiscriminate rebel attacks? Why, or why not?
dismayed at the carnage he saw there that in 1862 he wrote a book called A Memory of Solferino, describing the
horrors of war.34 The book also included two proposals: (1) the creation of permanent “relief societies for the purpose
of having care given to the wounded in wartime”; and (2) the formulation of an “international principle, sanctioned
by a Convention inviolate in character,” that would recognize the neutrality of this relief organization and allow it
to provide aid in the conflict zone.35 The first of these two proposals led to the establishment of the ICRC, and the
second to the signing of the First Geneva Convention. In recognition of these accomplishments, Henry Dunant was
co-recipient of the first Nobel Peace Prize in 1901.36
Since that time, the ICRC has been a primary catalyst in the development and implementation of humanitarian
law. It performs a number of functions with respect to the promotion of international humanitarian law, pushing States
to adopt IHL treaties and respect human dignity, and otherwise maintains a rigorous independence and neutrality vis-
à-vis State politics. The ICRC has a permanent mandate to provide services and support, and to advocate on behalf of
prisoners, the wounded and sick, and civilians who have been adversely affected by armed conflict. It distributes food
and medical assistance, evacuates populations in danger, and assists in restoring contact between family members
displaced by conflicts. It maintains an advisory service that assists States in implementing IHL within their territories,
and its 12,000 staff spread over 80 countries work to coordinate the efforts of national Red Cross and Red Crescent
societies in addition to providing direct support for humanitarian work.37 In addition, the ICRC’s presence in the field
34) Henry Dunant, A Memory of Solferino, 1962. The full text of this book is available on the ICRC website at: <http://www.icrc.org/eng/assets/files/
other/icrc_002_0361_memory_of_solferino.pdf>.
35) Ibid.
36) Irwin Abrams, The Nobel Peace Prize and the Laureates: An Illustrated Biographical History, 1901–2001 (Canton, MA: Science History Publications,
2001), 46–48.
37) International Committee for the Red Cross, Overview of Operations 2009, 2009, 10 and 20.
281
The protected emblems of the International Red Cross and Red Crescent Movement.
can help to remind hostile forces of their obligations under IHL, and puts the organization in a unique position for
monitoring the humanitarian situation during conflict. The emblems of the ICRC — the red cross, red crescent, and
red crystal38 — and any person, vehicle, or object marked with those emblems are protected under IHL. The misuse of
these emblems is strictly prohibited because it jeopardizes the neutrality of the ICRC, undermines the significance of
the symbols, and thus threatens the entire protective system established under international law.
States are legally required to abide by the Geneva Conventions and other IHL instruments. In the event that
they do not, they may be “named and shamed” by the ICRC and other international organizations or NGOs, such as
Amnesty International and Human Rights Watch. This will damage their reputation among other nations, and could
lead to the denial of some of the benefits of good standing with the international community, such as trade deals,
foreign aid, and similar “carrots”. A State that has been a victim of violations of IHL may bring suit against another
State before an international court or tribunal such as the International Court of Justice (ICJ).39
In addition, States are compelled to obey IHL out of respect for the principle of reciprocity. Reciprocity has
historically been an important tool for encouraging compliance and “marketing the law of war to its end users:
combatants and commanders”.40 If a State fails to comply with IHL when engaged in hostilities, it then must face the
possibility that the opposing force will also cease complying with the rules. IHL protects civilians and non-combatants
and bans indiscriminate and unduly harmful means and methods of war for the benefit of all parties to the conflict, not
merely one side or the other. When a State or other armed force stops complying with IHL, therefore, it endangers not
only its enemies, but also its own civilian population.
38) The “red crystal” was added as a third, non-denominational protected symbol of the ICRC by Additional Protocol III, 2005.
39) See the cases brought by Bosnia and Herzegovina and by Croatia alleging genocide by Serbia and Montenegro and Yugoslavia. Application of the
Convention on the Prevention and Punishment of Genocide, Bosnia and Herzegovina v. Serbia and Montenegro; Croatia v. Yugoslavia.
40) Sean Watts, “Reciprocity and the Law of War”, Harvard International Law Journal, vol. 50, no. 2, 2009, 366.
282
Reciprocity, however, is not always enough to ensure compliance. For instance, after the attacks of September
11, some in the United States infamously argued that the application of the Geneva Conventions should be restricted
in the context of the “War on Terror”. As Alberto R. Gonzales, legal counsel to United States President George W.
Bush, wrote in a 2002 memorandum to the President: “the war against terrorism is a new kind of war”, which
“renders obsolete Geneva’s strict limitations on questioning of enemy prisoners and renders quaint some of its
provisions”.41 This memo paved the way for the employment of so-called “enhanced interrogation techniques” (i.e.
torture), and the refusal to grant detainees prisoner-of-war (POW) status and protection under the Third Geneva
Convention. Opponents of this view argued that the failure to fully respect the Geneva Conventions during the War
on Terror would ultimately backfire, leaving American troops exposed and denying them reciprocal protections.42
Section 12.3 Law and War

Debates like the one that occurred in the United States over the applicability of the Geneva Conventions have led
many commentators to question whether war can really be contained by law, or whether States will simply abandon
it when push comes to shove; whether in the battle between war and law, war will always win out.
In responding to this question, one should keep in mind the fact that even during its debate over the application
of the Geneva Conventions the United States government did not abandon IHL altogether, but rather sought to limit
its application through the use of creative legal arguments. In planning its strategy in the War on Terror, the Bush
administration did not deny the applicability of the Geneva Conventions outright, but rather engaged in a “hyper-
technical legal analysis” aimed at uncovering and exploiting their ambiguities.43 Legal justifications were not pushed
to the side — they have been incorporated so fully into the waging of war in the modern era that hostile parties frame
their ideas in legal terms, taking into consideration the restrictions on treatment of civilians and non-combatants,
means and methods of warfare, and proportionality as a matter of course. The arguments are about legal strategy —
which law applies, not whether law applies at all.
Legal scholar Michael Byers’ description of how the US government applied IHL during the first Iraq War in the
early 1990s provides a perfect illustration:
“During the 1991 Gulf War, [IHL] obligations were taken

seriously … Some 200 US military lawyers were dispatched to
the Gulf. Legal experts vetted every targeting decision. A strike
on a statue of Saddam Hussein in Baghdad was ruled out on
the basis that only targets that contribute to the war effort are
permissible under international humanitarian law. Those legal
controversies that arose stemmed from differing interpretations
of the law, rather than any desire to ignore legal constraints.
At least five British officers resigned their commissions after
the United States used cluster bombs and fuel-air explosives
to attack Iraqi weaponry, with devastating effects on enemy
soldiers. A similar divergence of views arose over the use of
earthmovers and tank-mounted ploughs to bury Iraqi soldiers
41) Memorandum from Alberto R. Gonzales, Counsel to the President, Office of Counsel to the President, to George W. Bush, President of the US, 25 January
2002, reprinted in The Torture Papers, Karen J. Greenberg and Joshua L. Dratel, eds. (New York: Cambridge University Press, 2005).
42) Neil A. Lewis and Eric Schmitt, “Lawyers Decided Bans on Torture Didn’t Bind Bush”, New York Times, 8 June 2004 (noting that State Department
lawyer William H. Taft IV warned that “such a position would weaken the protections of the Geneva Conventions for American troops”.).
43) Geoffrey S. Corn, “When the Law of War Becomes Over-lawyered”, Jurist, 25 November 2005.
283
alive in their trenches, thus avoiding the dangers of hand-to-

hand combat. International humanitarian law forbids methods
of warfare that cause “unnecessary suffering or superfluous
injury”, but where one sets the balance between military
necessity and humanitarian concerns also depends, perhaps
inevitably, on where one is coming from …” 44
In other words, there is no “battle” between war and law, merely a battle between different interpretations of
the law. Legality has become part and parcel of conflict. As Harvard Law Professor David Kennedy writes:
“To resist war in the name of law, to exalt law as an external

ethical restraint on the frequency and violence of war, to praise
law for bringing the calculations of cool reason to the passions
of warfare, is to misunderstand the delicate partnership of
war and law. The laws of force provide the vocabulary not
only for restraining the violence and incidence of war — but
also for waging war and deciding to go to war. Although legal
and military professionals may seem to march to different
drummers, law no longer stands outside violence, silent or
prohibitive. Law also permits injury, as it privileges, channels,
structures, legitimates, and facilitates acts of war. We should
be clear — this bold new vocabulary beats ploughshares into
swords as often as the reverse. As a result, law has become
a tool of strategy for soldiers, Statesmen, and humanitarians
alike. Law separates the wheat of just action from the chaff of
aggression, wanton violence, or self-interest as an assertion, a
tactic, or a strategy.”45
International humanitarian law has been the cornerstone of the international community’s efforts to protect human
rights during armed conflict. However, in addition to protecting certain individuals and groups from what are deemed
the worst ills of war, it has also had the corresponding effect of legitimizing acts that are carried out in compliance with
the Geneva Conventions and other international instruments. As one scholar noted:
“Use of the term ‘international humanitarian law’, recently

described … as ‘Orwellian’, tends to obscure the fact that we are
not talking only about rules to protect potential victims of armed
conflicts — we are in fact talking about the whole body of law
relating to armed conflict, jus in bello or the laws and customs
of war, as they were once called, which rest on assumptions
relating to the power of parties to employ measures that are
clearly incompatible with a human rights regime.”46
44) Michael Byers, War Law: Understanding International Law and Armed Conflict (New York: Grove Press, 2005), 119–120.
45) See: David Kennedy, Of War and Law (Princeton: Princeton University Press, 2006), 167.
46) David Kretzmer, “Rethinking Application of IHL in Non-International Armed Conflicts”, Israel Law Review, vol. 42, 2009 (footnotes omitted).
284
While we may like to think of IHL as progressively moving toward the elimination of war, this has not been the
case. As Professor Nathaniel Berman writes: “Rather than opposing violence, the legal construction of war serves
to channel violence into certain forms of activity engaged in by certain kinds of people, while excluding other forms
engaged in by other people.”47
The forms of violence that are deemed acceptable under IHL — killing by suitably identified soldiers, using precise
means and methods, with respect for recognized civilians and non-combatants — are protected and legitimated by
international law. The “collateral” killing of civilians is condoned, so long as the “anticipated military advantage” of
doing so outweighs the value of their lives. Persons who engage in killing that follows these rules may do so without
fear of punishment.
Individuals who stray from the rules of IHL, however, killing hostile forces indiscriminately, using banned means
and methods of combat, failing to identify themselves properly, misusing protected signals, or ignoring distinctions
between civilians and soldiers, will find themselves on the wrong side of international law.
Some observers have made the additional critical point that the types of war that are permitted and prohibited
under IHL fall very neatly along the line dividing wealthy, developed societies from poor, disempowered groups.
There are few international players who have the material and technological resources necessary to build smart
bombs, conduct surgical strikes, and engage in extensive surveillance activities. Many conflicting parties must resort
to less advanced techniques — 1980s-era missiles, guerrilla warfare, suicide bombs. IHL thus serves, in some sense,
to privilege combat by wealthy established powers, and punish combat by underdogs, disenfranchised separatists,
freedom fighters, and terrorists.48
These existential questions are not easily answerable. But it is important for students of human rights to grapple
with all of the potential criticisms of and challenges to international human rights and humanitarian law. How can these
debates inform our decision-making processes? Are they useful? What can thinking about alternative perspectives tell
us about the nature of law and of human rights? The goal of protecting citizens from grave harm remains elusive. Can
thinking about these issues help us to do a better job?
Conclusion
In Lesson 11, we discussed the laws that govern when war can be justly begun — jus ad bellum. In this lesson,
we turned to the law governing what opposing forces may or may not do once an armed conflict is underway —
international humanitarian law. Finally, in Lesson 13 we will examine the law that governs individual conduct during
wartime and ensures accountability for serious international crimes — international criminal law.
47) Nathaniel Berman, “Privileging Combat? Contemporary Conflict and the Legal Construction of War”, Columbia Journal of Transnational Law, vol. 43,
2004, 5.
48) See: Frédéric Mégret, “From ‘Savages’ to ‘Unlawful Combatants’: A Postcolonial Look at International Humanitarian Law’s ‘Other’”, 305.
285
Further reading
• Nathaniel Berman, “Privileging Combat? Contemporary Conflict and the Legal Construction of War”, Columbia
Journal of Transnational Law, vol. 43, 2004.
• Michael Byers, War Law: Understanding International Law and Armed Conflict, 2005.
• Cordula Droege, “The Interplay Between International Humanitarian Law and International Human Rights Law
in Situations of Armed Conflict”, Israeli Law Review, vol. 40, 2007.
• David Kennedy, Of War and Law (2006); Catharine MacKinnon, “Women’s September 11th: Rethinking the
International Law of Conflict”, Harvard International Law Journal, vol. 47, no. 1, 2006.
• Francisco Forrest Martin et al., International Human Rights and Humanitarian Law: Treaties, Cases, & Analysis,
2006.
• Frédéric Mégret, “From ‘Savages’ to ‘Unlawful Combatants’: A Postcolonial Look at International Humanitarian
Law’s ‘Other’”, in International Law and Its Others, Anne Orford, ed., 2006.
• Robert D. Sloane, “The Cost of Conflation: Preserving the Dualism of Jus ad Bellum and Jus in Bello in the
Contemporary Law of War”, Yale Journal of International Law, vol. 34, 2009.
• ICRC: <www.icrc.org>.
286
1. The four Geneva Conventions of 1949 4. According to the principle of
provide specific protections for all of the _____, attacks are forbidden where
following groups EXCEPT _____. damage to civilians, civilian objects,
non‑combatants, and other protected
A. the sick and wounded in the field
groups “would be excessive in relation
B. prisoners of war to the concrete and direct military
C. domestic criminals advantage anticipated”.
D. civilians and non-combatants
5. _____ is the “convention in miniature”
2. According to the principle of _____, that makes some international
attacking forces must distinguish humanitarian law rules applicable to
between soldiers and civilians, and may non-international armed conflicts.
not direct attacks at civilians.
3. Which of the following is prohibited by

international humanitarian law?
A. The use of “smart bombs” to single out
military targets for attack
B. Indiscriminate attacks
C. Collaterally killing civilians
D. Taking prisoners of war
For questions 6–10, match the type of jurisdiction with its definition:
6. Territorial Jurisdiction A. Jurisdiction over offences committed

by a citizen of the State.
B. Jurisdiction over serious international

crimes, regardless of where they took
place, by or against whom they were
7. Active Personality Jurisdiction
committed, or whether the offence
endangers the sovereignty of the
State.
C. Jurisdiction over offences that

8. Passive Personality Jurisdiction endanger the sovereignty of the
State.
D. Jurisdiction over offences committed

9. Protective Jurisdiction
in the territory of the State.
E. Jurisdiction over offences committed

10. Universal Jurisdiction against a victim who is a citizen of the
State.
287
Answer Key »
1. C
2. Distinction
3. B
4. Proportionality
5. Common Article
6. D
7. A
8. E
9. C
10. B
288
HUMAN RIGHTS
13 Conflicts III: International

Criminal Law

turn to a final branch of
law that helps protect
human rights during
wartime: international
criminal law (ICL).
UN Photo #398225 by Eskinder Debebe.
Section 13.1 Introduction • Understand the purposes of international criminal
law.
Section 13.2 International Criminal Law
• Appreciate the history of international criminal
Section 13.3 Transitional Justice
responsibility.
Annex A The Rome Statute of the
• Identify the crimes over which international courts
International Criminal Court
have jurisdiction.
• Understand the system set up to enforce
international criminal law.
• Appreciate the difficult nature of post-conflict
situations.
• Identify some pros and cons of pursuing trials in
international courts.
289
LESSON 13 | Human Rights During Armed Conflicts III: International Criminal Law
Member of the newly trained Emergency Response Unit of the Liberian National Police, after identifying a suspect, conducts a search of
his body for drugs and illegal weapons, during patrol downtown. 9 November 2008. UN Photo #205892 by Christopher Herwig.

In the previous two lessons, we discussed the laws that
govern when a State can go to war, and how it can act once it
does. In this lesson, we will turn to a final branch of law that
helps protect human rights during wartime: international
criminal law (ICL).
Section 13.2 International

Criminal Law View a video introduction of this lesson
International criminal law videos/103/lesson-13-human-rights-

during-armed-conflict-iii-internaional-
International criminal law (ICL) seeks to achieve criminal-law/>.
accountability for individuals who commit gross violations
of international human rights and humanitarian law during
armed conflict. These rules protect values that are deemed
important to the international community as a whole, and are
therefore considered binding on and enforceable against all
peoples of all nations.
290
ICL has two primary aims:
• Prohibiting conduct: ICL sets rules proscribing certain types of conduct during hostilities. The prohibited
forms of conduct include war crimes, crimes against humanity, genocide, torture, aggression, and extreme
forms of international terrorism.
• ICL does not include prohibitions against drug trafficking, smuggling weapons, money laundering, or human
trafficking. These offences, which are generally committed by private individuals or criminal organizations,
remain under the jurisdiction of the State and its domestic criminal law.
• Punishing violators: ICL makes persons who engage in prohibited conduct criminally liable for their
actions. In order to do so, it establishes courts and enforcement mechanisms to apprehend, try, and punish
international criminals.
We will discuss each of these functions, their application in different contexts, and the systems developed to
enforce them, below.
A brief history of international criminal law
The antecedents of international criminal law can be traced back to the early days of international human rights
action, drawing on nineteenth century anti-piracy laws, the regulation and eventual abolition of the slave trade,1
jus ad bellum,2 and IHL.3 Despite its deep roots, however, ICL has grown along a crooked path, with many periods
of dormancy and changes of direction. With the exception of the International Criminal Court (ICC), ICL has been
constructed largely on an ad hoc basis, with treaties and tribunals established as needed in response to specific
events, rather than through a coherent long-term drafting process. Rules and crimes have been drawn from a
mixture of national law, IHL, human rights, and the basic principles of public international law. Courts have differed
from one another both with respect to the rules they apply and the contexts in which they apply them. It was not
until very recently that a coherent corpus of international criminal law proper began to coalesce and distinguish itself
from other branches of law.
Modern international criminal law began to take shape in 1945 and 1946, with the establishment of the International
Military Tribunal for the Trial of German Major War Criminals (IMT or Nuremberg Tribunal) and the International Military
Tribunal for the Far East (IMTFE or Tokyo Tribunal), respectively. The victorious Allied forces established the Nuremberg
and Tokyo Tribunals after the Second World War, with the idea that they would be the “Trials to End All Wars”.4 The
purpose of these courts was to prosecute high-level German and Japanese military and civilian authorities for the
newly created charges of crimes against peace (violations of jus ad bellum), war crimes, and crimes against humanity
(violations of the laws of war):
“The following acts, or any of them, are crimes coming

within the jurisdiction of the Tribunal for which there shall be
individual responsibility:
a. Crimes Against Peace: namely, planning, preparation,

initiation or waging of a war of aggression, or a war
in violation of international treaties, agreements or
1) See discussion of the early human rights battle against the slave trade in Lesson 1.
4) David Luban, Legal Modernism (Ann Arbor: University of Michigan Press, 1994), 336.
291
assurances, or participation in a common plan or conspiracy

for the accomplishment of any of the foregoing;
b. War Crimes: namely, violations of the laws or customs of

war. Such violations shall include, but not be limited to,
murder, ill-treatment or deportation to slave labour or for
any other purpose of civilian population of or in occupied
territory, murder or ill-treatment of prisoners of war or
persons on the seas, killing of hostages, plunder of public
or private property, wanton destruction of cities, towns or
villages, or devastation not justified by military necessity;
c. Crimes Against Humanity: namely, murder, extermination,

enslavement, deportation, and other inhumane acts
committed against any civilian population, before or during
the war, or persecutions on political, racial or religious
grounds in execution of or in connection with any crime
within the jurisdiction of the Tribunal, whether or not
in violation of the domestic law of the country where
perpetrated.”5
The Nuremberg and Tokyo Trials have been criticized as legally unjust because they punished the accused for
wrongs that were moral but not legal crimes at the time of commission, thereby violating the prohibition against
retroactive criminal prosecutions. They have also been pilloried as “victor’s justice” because the crimes of the Allied
governments — notably the firebombing of Dresden and Tokyo — escaped the scrutiny of the courts.6 Nevertheless,
the Tribunals have been generally lauded, and represented an important step in ICL that cemented the idea that
individuals could be held directly legally responsible for violations of international human rights and humanitarian
law.7 The principles they set forth were officially recognized by the UN in the 1950 Nuremberg Principles.8
On the heels of the Nuremberg and Tokyo Tribunals came the adoption of the Convention on the Prevention and
Punishment of the Crime of Genocide (Genocide Convention) in 1948, which officially recognized genocide as a crime
under international law.9
Over the next several decades, however, the development of international criminal law stalled. It was not until
after the end of the Cold War that ICL experienced a resurgence of attention. At the end of the 1980s, a coalition of
States came together to kick-start the project of international criminal justice, and the International Law Commission
(a group of lawyers that produces studies and legal analyses for the UN10) began drafting a statute for a permanent
international criminal court.
In the meantime, war broke out in Yugoslavia, and reports of deportations, concentration camps, and ethnic
5) Nuremberg Charter annexed to the London Agreement of 8 August 1945, Art. 6.

6) See: Mark Osiel, Mass Atrocity, Collective Memory, and the Law (Piscataway, NJ: Transaction Publishers, 1997), 122.
7) See discussion of the tribunal’s faults in Lesson 1. Historically, there have been other instances of certain conduct being held to be a direct violation
of international law: piracy, for example, was long considered a “universal crime” punishable by all nations. Henry J. Steiner, Philip Alston, and Ryan
Goodman, International Human Rights in Context: Law, Politics, Morals (Third Edition), 2007, 116.
8) See: A/1316, Report of the International Law Commission Covering its Second Session, 5 June–29 July 1950.
9) See Lesson 10 for a discussion of the role of the Genocide Convention in protecting minority rights.
10) UN Charter, Art. 13(1) (“The General Assembly shall initiate studies and make recommendations for the purpose of … encouraging the progressive
development of international law and its codification.”).
292
cleansing sparked outrage in the international community. In response to calls for justice, the Security Council
unanimously voted in 1993 to establish an International Criminal Tribunal for the former Yugoslavia (ICTY). The ICTY,
framed after the Nuremberg model, was to prosecute persons responsible for serious violations of IHL during the
armed conflict. As of November 2011, the ICTY had concluded 161 cases, and had 35 cases still ongoing.11 Although it
has hit some snags along the way — for example, its star case against former Yugoslav President Slobodan Milosevic
ended when the defendant died of a heart attack four years into the trial12 — the ICTY has been instrumental in the
development of international criminal law standards. Its goal is to complete all proceedings by 2012.
In 1994, when outrage at the Rwandan genocide took hold at the UN, the Security Council repeated its earlier
move, establishing an International Criminal Tribunal for Rwanda (ICTR) to punish those responsible for the conflict’s
worst atrocities. As of November 2011, the ICTR had concluded 69 cases, had six cases still ongoing, and had one
case awaiting trial.13 Despite charges of inefficiency and “glacial” slowness in completing trials,14 the tribunal has
made some noteworthy achievements, securing the first genocide conviction against a head of government15 and
helping to establish the precedent that rape can be a tactic of genocide. Its goal was to complete all proceedings by
2010,16 but as of January 2012, there were still a number of cases in progress.
In addition to these purely international criminal tribunals, several hybrid international criminal tribunals have
been established to try violators of national and international criminal law. These hybrid tribunals apply a blend of
international and domestic rules, and are developed ad hoc for the purpose of one particular conflict situation. Hybrid
courts include the Special Court for Sierra Leone (SCSL), the East Timor Special Panels, the Extraordinary Chambers in
the Courts of Cambodia (ECCC), and the Special Tribunal for Lebanon (STL).17
The International Criminal Court
The success of the ICTY and ICTR along with continuing frustration with the ad hoc nature of ICL spurred further
efforts to create a permanent international criminal court that could prosecute serious violations of IHL wherever
they occur. As former-Secretary-General Kofi Annan wrote in a New York Times op-ed:
“[The ICTY and ICTR] showed that there is such a thing as

effective international justice.
But these ad hoc tribunals were not enough. People the world
over wanted to know that wherever and whenever the worst
atrocities were committed — genocide, war crimes or crimes
against humanity — there would be a court to bring to justice
anyone in a government hierarchy or military chain of command
who was responsible. That principle would be applied without
exception, whether to the lowliest soldier or the loftiest ruler.”18
After several years of preparatory work, the Rome Statute establishing the International Criminal Court (ICC)
11) A summary of current caseload figures is available on the ICTY website: <http://www.icty.org/>.
12) Marlise Simons & Alison Smale, “Slobodan Milosevic, 64, Former Yugoslav Leader Accused of War Crimes, Dies,” New York Times, 12 March 2006.
13) A summary of current caseload figures is available on the ICTR website under “Cases”: <http://www.ictr.org>.
14) See: James C. McKinley Jr., “On 1994 Blood Bath in Rwanda, Tribunal Hews to a Glacial Pace”, New York Times, 21 November 1997.
15) James C. McKinley Jr., “Ex-Rwandan Premier Gets Life in Prison on Charges of Genocide in ’94 Massacres”, New York Times, 5 September 1998.
16) Marc Lacey, “Rwanda Also Awaits Justice,” New York Times, 23 July 2008.
17) One scholar has even proposed the creation of a “Nuremberg for Guantánamo” that would try the detainees currently held at Guantánamo Bay in a
hybrid international criminal tribunal. Guénaël Mettraux, “A Nuremberg for Guantánamo”, New York Times, 19 August 2009.
18) Kofi Annan, “Africa and the International Criminal Court”, New York Times, 29 June 2009.
293
was adopted at a 1998 Diplomatic Conference. Of 120 attendees, seven States voted against the formation of the
ICC: the United States, China, Israel, Qatar, Libya, Iraq, and Yemen.19
The Rome Statute entered into force in 2002, with its ratification by the sixtieth State. As of January 2012, there
were 120 State parties to the statute and thus subject to the jurisdiction of the Court.20 Despite its ever-increasing
number of State parties, several countries remain strongly opposed to conceding jurisdiction to the ICC. Notable
among these is the United States, whose hostility toward the Court was so great that the US Congress passed an act
in 2002 prohibiting the provision of military aid to countries that had ratified the Rome Statute unless they were NATO
members, major non-NATO allies, or had signed a bilateral “Article 98” agreement indicating that they would under
no circumstances refer an American citizen for prosecution.21 The US attitude toward the ICC has softened under the
Obama administration, but it remains to be seen how much this relationship will change.22
» Take a moment now to read through the Rome Statute, attached as Annex V.
The ICC statute gives it jurisdiction over four categories of crimes:
• War crimes;
• Crimes against humanity;
• Genocide; and
• Aggression.
The first three of these crimes — war crimes, crimes against humanity, and genocide — were all included in the
original Rome Statute, and the ICC has begun to prosecute accused international criminals under these rules. The
fourth type of international crime — crimes against peace, or “aggression” in today’s parlance — was also proposed
for inclusion in the Rome Statute, but was initially rejected by the drafters. The category of crimes against peace,
which appeared in the statutes of the Nuremberg and Tokyo Tribunals, was chiefly intended to supplement jus ad
bellum by making individuals liable for inciting wars of aggression. But the drafters of the Rome Statute were unable
to come to a consensus definition of “aggression”, and as a result, it was not included in the final treaty. Article 5(2)
of the Rome Statute, however, promised that “the Court shall exercise jurisdiction over the crime of aggression
once a provision is adopted defining the crime and setting out the conditions under which the Court shall exercise
jurisdiction with respect to this crime”, and a Working Group was set up for this purpose.23 In June 2010, after years
of debate and preparatory work, the Review Conference of the Rome Statute (held in Kampala, Uganda) finally
adopted amendments that included and defined the crime of aggression in the Rome Statute. Though it is now a part
of the ICC’s mandate, however, the Court will not be able to exercise jurisdiction over the crime until January 1, 2017
at the earliest, after which two-thirds of the State parties can make a decision to activate it. As such, there will be no
prosecutions under this new rule for several years at least.
The ICC lacks jurisdiction over terrorism. This contrasts with some other international tribunals, which do have
jurisdiction over terrorist activities — for example, the ICTR, the Special Court for Sierra Leone, and the Special
Tribunal for Lebanon. There are no concrete plans for adding terrorism to the classes of crimes under the jurisdiction
19) A/CONF.183/13 (Vols. I–III).

20) An updated list of all State parties to the Rome Statute can be found on the UN Treaty Collection website: <http://treaties.un.org/>.
21) American Service-Members Protection Act of 2002, available on the US Department of State website: <http://www.State.gov/>; See: Rome Statute,
Art. 98. Former Republican House leader Tom DeLay called the ICC a “kangaroo court” and that was a “clear and present danger” to US citizens
fighting terrorism abroad. Roger Cohen, “A Court for a New America”, New York Times, 3 December 2008.
22) Obama’s national security spokeswoman has said that “President-elect Obama strongly supports the I.C.C.’s efforts to investigate and prosecute those
responsible for atrocities in Sudan.” Ibid.
23) Rome Statute, Art. 5(2).
294
of the ICC. However, any act of terrorism that amounts to a crime against humanity as defined in the Rome Statute
could be prosecuted on that ground.24
The International Criminal Court does, however, have jurisdiction to prosecute gender-based war crimes,
and crimes against humanity, including “rape, sexual slavery, enforced prostitution, forced pregnancy, enforced
sterilization, or any other form of sexual violence of comparable gravity”.25 As noted in Lesson 8, in the context of
women’s rights, although rape in war has long been illegal under international humanitarian law, sexual atrocities
were ignored at the Nuremberg Tribunal and raised only in part at the Tokyo Trials.26 Observing this gender differential
in the prosecution of crimes of war, women’s rights groups fought hard to see that these crimes were included in the
Rome Statute, as well as in the statutes of the ICTR and ICTY. As a result of their efforts, “IHL and ICL now contain
some of the world’s most feminist rules on rape and related sexual violence.”27
As mentioned above, ICL is a relatively new branch of law. One important consequence of its youth is that the
exact contours of many of the international crimes it prohibits have not yet been established. The State parties to the
ICC have adopted various instruments in order to assist interpretation, such as the Rules of Procedure and Evidence
and the Elements of Crimes, but because the Court has as of yet only taken on a handful of cases, it remains to be seen
how these regulations will apply in practice.
The ICC opened its first trial — Prosecutor v. Thomas Lubanga Dyilo — on 26 January 2009. Mr. Lubanga is
accused of war crimes, including the use of child soldiers as young as 9 years old in his militia in the Ituri region of
eastern Congo.28 Since that time, the ICC has brought cases against defendants from a number of different conflict
situations, including several other defendants from the situation in the Democratic Republic of the Congo, the situation
in the Central African Republic, the situation in Uganda, the situation in Darfur, the situation in the Republic of Kenya,
the situation in Libya, and the situation in Côte d’Ivoire.29
Looking at the list of situations in the previous paragraph over which the ICC has taken jurisdiction to date, you
may be able to guess the nature of one of the biggest criticisms of the Court’s practice: so far, it has only begun cases
against African defendants. The Court’s defenders have pointed out that several of the situations in which the ICC
has issued warrants were referred to the Court by the African countries themselves, and that the ICC has also begun
investigations in Afghanistan, Georgia, Palestine, and Colombia. However, the fact remains that no warrants have
been issued in non-African situations. What do you think? Why has the Court spent so much time on Africa? Is the
ICC’s African focus unfair? Is it merely a matter of time before the geographical scope of prosecutions widens?
Enforcement of ICL
In order to enforce its prohibition of war crimes, crimes against humanity and genocide, ICL assigns violators
individual criminal liability. This means that under ICL individuals — not just the State — can be held responsible for
24) For more on the international response to terrorism, see Lesson 14.
25) Rome Statute, Art. 7(1)(g). See: Rome Statute, Arts. 8(2)(b)(xxii) and 8(2)(e)(vi).
26) Catharine A. MacKinnon, “Women’s September 11th: Rethinking the International Law of Conflict”, Harvard International Law Journal, vol. 47, 2006,
15.
27) Janet Halley, “Rape in Berlin: Reconsidering the Criminalisation of Rape in the International Law of Armed Conflict”, Melbourne Journal of International
Law, vol. 9, 2008 (quoting a term from Elizabeth Bernstein, “the Sexual Politics of the ‘New Abolitionism’”, differences: A Journal of Feminist Cultural
Studies, vol. 18, no. 3, 2007, 143. Some scholars have questioned this emphasis on prosecution and punishment, however. Professor Janet Halley, for
example, asks whether “this new ‘carceral feminism’ — intent on criminalizing, indicting, convicting, and punishing perpetrators of sexual violence in
numerous domains of domestic law as well as IHL and ICL — [is] going to have entirely good effects in the family, the workplace, the public sphere?”
Id. Will increased criminalization “weaponize” rape, making it more effective (and thus more frequently used) as a tool of war? Does it disempower
women by eroding the idea that they have the capacity to consent? Id. Will it encourage war in the name of protecting women’s honour? Karen Engle,
“‘Calling in the Troops’: The Uneasy Relationship Among Women’s Rights, Human Rights, and Humanitarian Intervention”, Harvard Human Rights
Journal, vol. 20, 2007.
28) Marlise Simons, “International Court Begins First Trial”, New York Times, 26 January 2009.
29) A list of the ICC’s current cases can be found at: <http://www.icc-cpi.int/>
295
breaking the rules.
As we learned in previous lessons, international law generally addresses States. It orders the relations among
them, describes what they can and cannot do with respect to other States, and sets out the customary formalities
that they should observe when interacting with one another. International human rights law represents a break
from this traditional structure because it addresses States’ behaviour not toward other States but toward individuals
within their own borders.30
In the realm of law and war, both State-State and State-individual models exist. Jus ad bellum — the law that
governs whether a war is just, or legally begun — governs relations between States at the time a conflict begins. IHL,
or jus in bello — the law of war — governs the protection of civilians and non-combatants during an armed conflict,
whether the opposing forces are nationals of another State, or (to a lesser degree) intra-State rebels. International
human rights law continues to protect a country’s own citizens during wartime.
International criminal law differs from jus ad bellum, international humanitarian law, and human rights law
because it is addressed directly to individuals, prohibiting them from committing abuses against other individuals, and
assigning them direct criminal liability under international law in the event of a breach. In other words, international
criminal law speaks directly to the individual as a subject of international law. As we will discuss further in Lesson
14, addressing individuals directly is a major innovation in international law, and a significant alteration of the
Westphalian model.
The cornerstone of the international criminal enforcement system is the principle of aut dedere aut judicare:
the duty to prosecute or extradite. According to this maxim, countries that discover an individual who has violated
a norm of international criminal law are required either to investigate and prosecute her, or else to send her to a
country that will. There are no statutes of limitations that prevent a person from being tried, and, as was the case
with grave breaches of IHL, States have universal jurisdiction to prosecute.31
States have the initial and primary responsibility for prosecuting violators of ICL. It is only when States
are unwilling or unable to prosecute individuals accused of committing international crimes, or when States
or the Security Council explicitly ask for its assistance, that the ICC can step in and take jurisdiction over a
case.32 This system of dual levels of enforcement that work side-by-side, rather than hierarchically, is known as
complementarity.
Once it has jurisdiction over a situation, the ICC can prosecute any individual accused of any of the crimes
listed in the Rome Statute, including both those who are directly responsible, as well as those who have aided,
abetted, or otherwise assisted in the commission of the crime. Under the principle of command responsibility, military
commanders and other superiors can be held responsible for the crimes of persons under their charge if they knew,
or had reason to know, that their subordinates were committing crimes and failed to take all feasible steps to prevent
or stop the violations.33
The ICC, unlike States, does not have universal jurisdiction to prosecute crimes. Instead, it can exercise
jurisdiction only if:
• The accused is a national of a State that has accepted the jurisdiction of the ICC;
• The crime took place in the territory of a State that has accepted the jurisdiction of the ICC; or

31) See discussion of universal jurisdiction in Lesson 12.
32) Rome Statute, Arts. 13–15.
33) Rome Statute, Art. 28. See: Geneva Convention (III), Art. 12.
296
• The UN Security Council has referred the case to the Prosecutor.34
Additionally, the jurisdiction of the ICC is limited to only those crimes that were committed after 1 July 2002, or after
the date that the Rome Statute entered into force for the referring country, if later.35
Section 13.3 Transitional Justice
Post-conflict situations: peace v. justice?
ICL applies both during an armed conflict as well as in the post-conflict period, when it can play a role in
transitional justice — the response to systematic or widespread violations of human rights — and assist in the
changeover from a conflict to a post-conflict society. The place of international criminal law in post-conflict situations,
however, is disputed terrain.
Once a conflict has come to an end, a country has important choices to make about how to move from a time of
war to a time of peace. ICL can be instrumental in this move when it allows countries to punish those who committed
atrocities and disregarded IHL and human rights law during wartime. Bringing perpetrators to justice can be an
important part of the psychological healing process, which is necessary for obtaining a real and lasting peace. It
can also be cathartic for the international community, as States may feel compelled to send a strong Statement to
violators in the name of deterrence.
However, the pursuit of justice can also obstruct the move toward peace. It may keep old wounds open, spark
renewed hostilities among previously quiescent parties, or prevent leaders from making deals that could end the
conflict, thereby prolonging or exacerbating human rights violations.36 As Richard H. Solomon, president of the
United States Institute for Peace, writes:
“Newcomers to the field of international relations may be

surprised to learn that efforts to advance human rights are
often at odds with attempts to halt violent conflicts. In the
experience of practitioners, however, it is unfortunately a
commonplace that the promotion of human rights and the
practice of conflict resolution, while both admirable endeavors
in themselves, are by no means necessarily complementary
objectives.
The international landscape is littered with episodes in which

advocates of the two objectives have pointed accusing fingers
at one another, charging that their own best efforts have been
undermined, ignored, or counteracted by actions taken by
counterparts from the other camp. In Bosnia, for instance,
human rights activists spent years pressing NATO’s Stabilization
Force to arrest indicted war criminals, a move that many
diplomats and soldiers felt would only further destabilize an
34) Rome Statute, Art. 12.

35) Rome Statute, Art. 11.
36) See: J. Goldsmith and Stephen D. Krasner, “The Pitfalls of Idealism” Daedelus, vol. 132, 2003; Julian Ku and Jide Nzelibe, “Do International Criminal
Tribunals Deter or Exacerbate Humanitarian Atrocities?” Washington University Law Quarterly, vol. 84, 2007. But see: Hunjoon Kim and Kathryn
Sikkink, “Do Human Rights Trials Make a Difference?” Paper Presented at the Minnesota International Relations Colloquium, 15 October 2007 (finding
that transitional countries with more frequent human rights trials have reduced levels of human rights abuses).
297
already volatile situation. In Pakistan, US policymakers have

had to contend with charges that they have turned a blind eye
to torture and other human rights abuses of the government in
return for cooperation of the regime in Islamabad in the fight
against al Qaeda. In a host of cases, from the Middle East to
the Balkans to West Africa, would-be peacemakers have seen
their best efforts to reach negotiated settlements challenged,
if not undermined, by groups protesting the inclusion in peace
talks of leaders who have used terror, genocide, and ethnic
cleansing to advance their political goals.”37
Cases in point are the recent debates over the wisdom of the ICC’s arrest warrant for Sudanese President Omar
Hassan al-Bashir,38 and Ugandan Lord’s Resistance Army leader Joseph Kony’s refusal to surrender until the ICC
indictment against him is cancelled.39
The pursuit of justice in the post-conflict period also suffers from “Nuremberg syndrome”: “the tendency to
try the vanquished while the victors remain sheltered from judicial scrutiny”.40 Accusations of “victor’s justice” can
contribute to a sense of unfairness, and rekindle old feelings of animosity and hatred. As Professor Antonio Cassese
notes: “It is a fact that neither the accusations widely made against NATO airmen attacking Serbia in the 1999 war
nor those made against the Tutsi leadership for the 1994 genocide have ever been verified or examined through
judicial inquiry.”41
International trials are just one of several options available on the modern transitional justice menu. Other
methods of transitioning to a post-conflict society include:
• Doing nothing;
• Vetting and removing military and political officers involved in the conflict;
• Providing amnesty or exile for offenders;
• Instituting disarmament, demilitarization, and reintegration (DDR) programmes;
• Initiating reparations programmes;
• Creating museums and memorials to past abuse;
• Establishing truth and reconciliation commissions; and
• Initiating domestic trials for those who committed war crimes, crimes against humanity, genocide, or other
serious crimes.
Post-conflict societies may elect to pursue any or all of these strategies, in whatever combination seems most
suited to their needs. Sierra Leone, for example, has both a truth commission and hybrid international court,42
and the Colombian peace process has involved domestic trials and an alternative punishment system that grants
37) Richard H. Solomon, “Foreword”, in Human Rights & Conflict: Exploring the Links between Rights, Law, and Peacebuilding,Julie A. Mertus and Jeffrey
W. Helsing, eds. (2006), ix.
38) Compare: Franklin Graham, “Put Peace Before Justice”, New York Times, 2 March 2009: The removal of Mr. Bashir will make it harder to negotiate an
end to the crisis in Sudan. Ultimately, justice will be served by a power higher than the International Criminal Court. In the meantime, justice without
peace would be a hollow victory. With: Desmond Tutu, “Will Africa Let Sudan Off the Hook?” New York Times, 2 March 2009: African leaders argue
that the court’s action will impede efforts to promote peace in Darfur. However, there can be no real peace and security until justice is enjoyed by the
inhabitants of the land. There is no peace precisely because there has been no justice. As painful and inconvenient as justice may be, we have seen
that the alternative — allowing accountability to fall by the wayside — is worse.
39) See: Jeffrey Gettleman and Alexis Okeowo, “Warlord’s Absence Derails Peace Effort in Uganda”, New York Times, 12 April 2008.
40) Antonio Cassese, “Clemency Versus Retribution in Post-Conflict Situations”, Columbia Journal of Transnational Law, vol. 46, 2007, 9.
41) Ibid.
42) See: William A. Schabas, “The Sierra Leone Truth and Reconciliation Commission”, in Transitional Justice in the Twenty-First Century: Beyond Truth
Versus Justice, Naomi Roht-Arriaza and Javier Mariezcurrena, eds., 2006.
298
suspensions of criminal sentences in exchange for demobilization, resocialization, and the payment of reparations to
victims.43
Each of these forms of transitional justice has its strengths and weaknesses. Doing nothing may not provide
victims of crimes with a feeling of justice,44 but it could allow a country to move quietly into a time of peace.45 Vetting
and removing military and political officers who had a primary role in provoking or fanning the flames of conflict
may be enough to signal a break with a violent past, but may not satisfy the desires of victims and activists seeking
accountability. Providing amnesty or exile for offenders may offer a way to end a conflict quickly and reduce the
chances of renewed violence, but it may also seem grossly unjust when brutal leaders are allowed to end their days in
peace in a gilded exile.46 Similarly, granting reparations to victims may be a positive way of acknowledging guilt and
responsibility and giving something back to those who were most injured during the conflict. But without accompanying
trials or truth commissions, such payouts may seem like “blood money” purchasing the silence of the abused.
Truth and reconciliation commissions have sometimes functioned as a compromise between formal trials and
doing nothing; allowing healing by airing and creating a record of atrocities, while seeming less confrontational than
criminal prosecutions. South Africa’s Truth and Reconciliation Commission, chaired by Archbishop Desmond Tutu, for
example, is often held up as a model that proved “capable of striking a balance between the establishment of guilt
and reconciliation, between justice and forgiveness”.47 However, where violence is widespread, official, and severe,
anything less than criminal trials may seem to be a default of justice. Additionally, where truth commissions are not
accompanied by reparations or some other form of compensation for victims or sanction of violators, they may re-
traumatize victims by making their personal stories seem meaningless.48
When a country does decide that it wants to prosecute individuals who violated ICL, it has two options: it may
prosecute accused violators in its own domestic courts, or it may ask that they be prosecuted before an international
court (either through the creation of a hybrid or international ad hoc tribunal, or by referring the case to the ICC).
There are costs and benefits associated with each of these choices. Some benefits of international criminal trials,
include:49
• Impartiality: International courts may be more impartial than domestic courts, as judicial officials have no
links with the country where the crimes occurred.50 Domestic officials, on the other hand, may be swayed
by national politics, personal prejudices, or media reactions. A telling example is the Iraqi High Tribunal
that conducted the Dujail trial against Saddam Hussein — a proceeding that by all accounts had “manifestly
fallen afoul of basic standards of fair justice”.51
43) See: Maria José Guembe and Helena Olea, “No Justice, No Peace: Discussion of a Legal Framework Regarding the Demobilization of Non-State Armed
Groups in Colombia”, in Transitional Justice in the Twenty-First Century: Beyond Truth Versus Justice, Naomi Roht-Arriaza and Javier Mariezcurrena,
eds., 2006.
44) Indeed, the Inter-American Court of Human Rights in 2001 struck down a Peruvian amnesty law as invalid because “they are intended to prevent
the investigation and punishment of those responsible for serious human rights violations such as torture, extrajudicial, summary or arbitrary
execution and forced disappearance, all of them prohibited because they violate non-derogable rights recognized by international human rights law”.
Chumbipuma Aguirre et al. v. Peru (Barrios Altos case), 2001 Inter-American Court of Human Rights (Series C), no. 75, 14 March 2001, para. 41.
45) For example, as Solomon Berewa, Vice President of Sierra Leone, explained his opinion that the war crimes trial of Charles Taylor, ex-President of
Liberia, should be held “somewhere else”: “We don’t want to be reminded of those atrocities every day … We want to put it behind us and move
forward.” Lydia Polgreen and Marlise Simons, “Sierra Leone Asks to Move Liberian’s Trial”, New York Times, 31 March 2006.
46) For example, use of this strategy allowed former dictator and President of Zaire Mobutu Sese Seko to live out the remainder of his life in Morocco, and
Ferdinand Marcos to leave the Philippines for exile in a Hawaiian villa. Graham Bowley, “How to Show a Dictator the Door”, New York Times, 27 April
2008.
47) Antonio Cassese, “Clemency Versus Retribution in Post-Conflict Situations”, Columbia Journal of Transnational Law, vol. 46 (2007), 10.
48) In response to such concerns, South African President Thabo Mbeki pledged to make a one-time payment of $3,900 to the family of each of 19,000
victims of apartheid crimes who testified before South Africa’s Truth and Reconciliation Commission. Ginger Thompson, “South Africa to Pay $3,900
to Each Family of Apartheid Victims”, New York Times, 16 April 2003.
51) Antonio Cassese, “Clemency Versus Retribution in Post-Conflict Situations”, 7. See: John F. Burns, “Western Lawyers Say Iraq Discarded Due Process
in Hussein Trial,” New York Times, 24 September 2008 (quoting one lawyer involved in the Dujail trial who referred to the prosecution of Saddam
Hussein as “tragic”, “not … because a brutal dictator was put to death without proper legal controls … [but] because they demonstrated once again
299
Writing Exercise 13: Justice in Valhalla »

You are working in a small State named Valhalla that is party to all of the major human
rights and humanitarian conventions. After 10 long years of civil war, rebel forces in Valhalla
have surrendered, and peace is returning to the country. The Valhallan government, in
cooperation with the UN, has decided to establish an international criminal tribunal to aid in
the transitional justice process. Because of your expertise on transitional justice issues, you
have been asked to consult with the new International Criminal Tribunal for Valhalla (ICTV) on
the task of selecting individuals for prosecution. Like other international tribunals, the ICTV
will be able to try only a limited number of people responsible for committing crimes during
the civil war.
• How will you go about selecting individuals for prosecution? What factors are most
important in making his decision?
• What should happen to the rest of the people who committed international crimes?
• Expertise: International judges have expertise in prosecuting international crimes. While domestic judges
are highly experienced in handling criminal offences such as theft, murder, and tax evasion, they likely have
little knowledge of the law of genocide, crimes against humanity, and war crimes.
• Transnational reach: International courts are better able to try cases that cross national borders. Whereas
domestic courts may have access only to citizens of their home State, international courts can reach across
State boundaries to collect witnesses and evidence from multiple countries.
• International moral authority: In some sense, international courts can claim to speak on behalf of
the international community. They can bring their moral authority to bear to condemn crimes that have
offended humanity as a whole, and thereby send a strong signal of deterrence to all States.52
• Uniformity: International courts must apply international criminal law in a uniform and predictable way.
Domestic courts, on the other hand, may differ in their interpretation of international rules, undermining the
predictability (and therefore the legitimacy) of international criminal law.
• Security: In situations where a real and lasting peace has not yet been achieved, and where tensions
between hostile parties still run high, there is a real danger that participants in domestic trials could be
subject to threats, harassment, and potentially life-threatening assault, or that renewed tensions could
erupt in the wake of controversial prosecutions. International tribunals situated in faraway countries can
allow such trials to be conducted in safety. For example, despite the fact that Sierra Leone had a functioning
hybrid international tribunal — the Special Court for Sierra Leone — located on its own soil, it requested
that the Netherlands provide a venue for the war crimes trial of former Liberian president Charles Taylor.
Because Mr. Taylor still had many loyalists in the region, the government worried that his presence could
lead to instability and pose a threat to the peace in both Liberia and Sierra Leone.53
On the other hand, there are many downsides to trying violators in international courts. For example:
that fair and neutral justice and more importantly the rule of law in the new Iraq is not terribly different than it was in the old Iraq”.).
52) Ibid. Although, as Antonio Cassese, professor and former judge at the ICTY, recounts, the establishment of the ICTY in 1994 did nothing to halt the
Serbian Generals of the Republika Srpska from committing genocidal massacres at Srebrenica with the strong support of Milosevic.
53) Lydia Polgreen and Marlise Simons, “Sierra Leone Asks to Move Liberian’s Trial”, New York Times, 31 March 2006.
300
• Distance: International courts may be seen as distant, uncaring, and out of touch. Because they are not
an integrated part of local society, they can be subject to charges of colonial imposition, or imperialism.
President Omar Hassan al-Bashir of Sudan and his supporters, for example, have called the ICC a hangover
from colonial times and the indictment against him a ploy to take control of Sudanese oil and other
resources.54
• Inflexibility: Relying on uniform international standards eliminates opportunities for alternative, context-
specific peace and reconciliation processes. Trying to squeeze all violators into the same international
criminal mould may work in some cases, but it could be unjust in others. Domestic trials allow for greater
experimentation and customization.55
• Inefficiency: International trials generally take a lot of time. Years can be spent gathering evidence,
rounding up the accused, and litigating each prosecution. The ICTR’s trial of Colonel Theoneste Bagosora,
for example, lasted over six years.56 Domestic courts — both due to their number and their proximity
to evidence, witnesses, and other necessary trial components — may be better equipped to conduct
prosecutions rapidly and effectively.57
• Expense: International trials are expensive. The ICTR, for example, has an annual budget exceeding
$100 million,58 and the ICTY receives over $150 million per year.59 Particularly when considering how few
individuals can be prosecuted by each international court, setting up the physical and legal machinery
necessary for each trial costs many times more than an equivalent domestic trial. Is this the best use of
international and national money during the transitional period?
• Partiality: In situations of mass atrocity there may be a huge number of individuals who committed, ordered,
or abetted war crimes, crimes against humanity, and genocide.60 In Rwanda, for example, some 100,000
people have been charged domestically with offences related to the 1994 conflict.61 Given the constraints of
their limited budgets, international courts can select only a limited number of individuals to prosecute. A mere
handful of those responsible for committing atrocities, therefore, will ever see the inside of an international
courtroom. This selectiveness in prosecutions raises several issues.
To begin with, is it fair that only a small number of people should be prosecuted, when many are responsible?
Is assigning individual liability the proper means of dealing with mass atrocities? Should guilt fall instead
on the group as a whole? What is the role of the social, political, and economic structure of society in
contributing to situations where war crimes, crimes against humanity, and genocide can occur? What is
the purpose of punishing only a few when many are guilty? Meting out retribution for offences committed?
Deterring future crimes? Expressing condemnation of the events that occurred?
Second, how should the international community choose whom to prosecute from among all of the
individuals charged with committing war crimes, crimes against humanity, and genocide? Should it attempt
to be representative across gender and ethnic group? Should it seek the persons whose crimes seem the
greatest? Should it prosecute those whose military or political rank is the highest? Who should get to make
54) Neil MacFarquhar and Marlise Simons, “Bashir Defies War Crime Arrest Order”, New York Times, 5 March 2009.
55) See: Phil Clark, “Hybridity, Holism and ‘Traditional’ Justice: The Case of the Gacaca Courts in Post-Genocide Rwanda”, George Washington International
Law Review, vol. 39, 2007.
56) Lydia Polgreen, “Rwandan Officer Found Guilty of 1994 Genocide”, New York Times, 18 December 2008.
57) See: Alex Whiting, “In International Criminal Prosecutions, Justice Delayed Can Be Justice Delivered” Harvard International Law Journal,
vol. 50, no. 2, 2009 (arguing that delay in international war crimes prosecutions can be “essential and beneficial to the pursuit of justice”).
58) ICTR, “General Information”, available from <www.ictr.org>.
59) “Report of the International Tribunal for the Former Yugoslavia”, A/63/210, 4 August 2008, para. 111.
60) See: John Mueller, “The Banality of ‘Ethnic War’”. International Security, vol. 25, 2000 (arguing that mass atrocities are generally committed not by
large percentages of the population, but rather by roving bands of criminals directed by a few powerful political elites).
61) Marc Lacey, “Kanombe Journal: After the Horror, Truth and Some Healing, Maybe”, New York Times, 20 June 2002.
301
these choices?
Balancing the need to end ongoing human rights abuses by any means necessary against the need for justice,
healing, and the potential deterrence of future human rights abuses is a difficult task. Ultimately, the question
of what strategies a State should adopt in a post-conflict transition is highly context-specific. What works in one
situation will not necessarily work in another. Justice and peace may sometimes go hand in hand in a post-conflict
society, but they may also conflict with and undermine one another.
International criminal law and international trials can certainly play a role in the transition from conflict to
a peaceful society. IHL and ICL have been designed to prevent and deter gross violations of human rights and
fundamental freedoms to the maximum extent possible. However, there are many other factors to consider in any
given situation, and it is important to keep in mind both the strengths and weaknesses of various approaches to
enforcing and punishing violations of international norms.
Conclusion
As noted at the outset of this lesson, human rights violations can be both the cause and the result of conflict.
Protecting human rights and fundamental freedoms is important for preventing war as well as for mitigating its
worst effects on civilians and non-combatants. Jus ad bellum, IHL, and ICL have been developed for the respective
purposes of preventing, prohibiting, and punishing serious violations of human dignity during armed conflict. These
three bodies of law work hand in hand with the international human rights regime to protect individuals from abuse.
However, as we have seen, they face ongoing issues with respect to their effectiveness, application, and the need for
evolution to meet modern challenges. In our final two lessons, we will return to this issue of modern challenges, and
examine some of the major issues facing the international human rights system today.
Further reading
• Antonio Cassese, International Criminal Law (Second Edition), 2008.
• Antonio Cassese, “Clemency Versus Retribution in Post-Conflict Situations”, Columbia Journal of Transnational
Law, vol. 46, 2007.
• Mark Osiel, Mass Atrocity, Collective Memory, and the Law, 1997, 122.
• Transitional Justice in the Twenty-First Century: Beyond Truth Versus Justice, Naomi Roht-Arriaza and
Javier Mariezcurrena, eds., 2006.
• ICC: <www.icc-cpi.int>.
• ICTY: <www.icty.org>.
• ICTR: <www.ictr.org>.
302
Annex V: the Rome Statute of the ICC
Rome Statute of the International Criminal Court
PREAMBLE
The States Parties to this Statute,
Conscious that all peoples are united by common bonds, their cultures pieced together in a
shared heritage, and concerned that this delicate mosaic may be shattered at any time,
Mindful that during this century millions of children, women and men have been victims
of unimaginable atrocities that deeply shock the conscience of humanity,
Recognizing that such grave crimes threaten the peace, security and well-being of the
world,
Affirming that the most serious crimes of concern to the international community as a
whole must not go unpunished and that their effective prosecution must be ensured by taking
measures at the national level and by enhancing international cooperation,
Determined to put an end to impunity for the perpetrators of these crimes and thus to
contribute to the prevention of such crimes,
Recalling that it is the duty of every State to exercise its criminal jurisdiction over those
responsible for international crimes,
Reaffirming the Purposes and Principles of the Charter of the United Nations, and in
particular that all States shall refrain from the threat or use of force against the territorial integrity
or political independence of any State, or in any other manner inconsistent with the Purposes of
the United Nations,
Emphasizing in this connection that nothing in this Statute shall be taken as authorizing
any State Party to intervene in an armed conflict or in the internal affairs of any State,
Determined to these ends and for the sake of present and future generations, to establish an
independent permanent International Criminal Court in relationship with the United Nations
system, with jurisdiction over the most serious crimes of concern to the international community
as a whole,
Emphasizing that the International Criminal Court established under this Statute shall be
complementary to national criminal jurisdictions,
Resolved to guarantee lasting respect for and the enforcement of international justice,
Have agreed as follows:
PART 1. ESTABLISHMENT OF THE COURT
Article 1
The Court
An International Criminal Court (“the Court”) is hereby established. It shall be a
permanent institution and shall have the power to exercise its jurisdiction over persons for the
most serious crimes of international concern, as referred to in this Statute, and shall be
complementary to national criminal jurisdictions. The jurisdiction and functioning of the Court
shall be governed by the provisions of this Statute.
303
Article 2
Relationship of the Court with the United Nations
The Court shall be brought into relationship with the United Nations through an agreement
to be approved by the Assembly of States Parties to this Statute and thereafter concluded by the
President of the Court on its behalf.
Article 3
Seat of the Court
1. The seat of the Court shall be established at The Hague in the Netherlands (“the host
State”).
2. The Court shall enter into a headquarters agreement with the host State, to be approved by
the Assembly of States Parties and thereafter concluded by the President of the Court on its behalf.
3. The Court may sit elsewhere, whenever it considers it desirable, as provided in this
Statute.
Article 4
Legal status and powers of the Court
1. The Court shall have international legal personality. It shall also have such legal capacity
as may be necessary for the exercise of its functions and the fulfilment of its purposes.
2. The Court may exercise its functions and powers, as provided in this Statute, on the
territory of any State Party and, by special agreement, on the territory of any other State.
PART 2. JURISDICTION, ADMISSIBILITY AND APPLICABLE LAW
Article 5
Crimes within the jurisdiction of the Court
1. The jurisdiction of the Court shall be limited to the most serious crimes of concern to the
international community as a whole. The Court has jurisdiction in accordance with this Statute
with respect to the following crimes:
(a) The crime of genocide;
(b) Crimes against humanity;
(c) War crimes;
(d) The crime of aggression.
2. The Court shall exercise jurisdiction over the crime of aggression once a provision is
adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions
under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall
be consistent with the relevant provisions of the Charter of the United Nations.
Article 6
Genocide
For the purpose of this Statute, “genocide” means any of the following acts committed
with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
Further Reading »
To read the entire document, visit: <https://legal.un.org/icc/statute/english/rome_
statute(e).pdf>.
304
1. One downside of internationals trials is: 6. _____ is a term that refers to a country’s
response to systematic or widespread
A. International courts are expensive;
violations of human rights and how they
B. International courts are not “real” courts; make the changeover from a conflict to a
C. International courts cannot be impartial; post-conflict society.
D. International courts have never before been
established. 7. In a post-conflict situation, the goals of
peace and justice:
2. The _____ is the international treaty
A. Are never in conflict;
that established the International
B. Are always in conflict;
Criminal Court.
C. Can sometimes conflict;
3. The ICC has jurisdiction over all of the D. Have nothing to do with one another.
following crimes EXCEPT:
8. Which of the following is NOT a possible
A. War crimes;
method of transitional justice?
B. Terrorism;
A. Doing nothing;
C. Crimes against Humanity;
B. Providing amnesty for offenders;
D. Genocide.
C. Establishing truth and reconciliation
4. The ICC opened its first trial in: commissions;

D. Beginning a new armed conflict.
A. 1945;
B. 1966; 9. Hybrid tribunals differ from other
C. 1994; international criminal tribunals like the
D. 2009. ICTY, ICTR, and ICC because they:
A. Can only prosecute states, not individuals;
5. What does the principle aut dedere aut
B. Are developed ad hoc for the purpose of one
judicare stand for?
particular conflict situation;
A. The duty to prosecute or extradite;
C. Apply a blend of international and domestic
B. The responsibility to protect;
law;
C. The prohibition against retroactive criminal
D. Have never been established in practice.
prosecutions;
D. The right to use force in self-defense. 10. Initiating trials in international criminal
tribunals is:
A. Always the right way to respond to a post-
conflict situation;
B. Never the right way to respond to a post-
conflict situation;
C. An idea that remains untested;
D. A strategy that may be positive or negative
depending on the context.
305
Answer Key »
1) A
2) Rome Statute
3) B
4) D
5) A
6) Transitional Justice
7) C
8) D
9) C
10) D
306
HUMAN RIGHTS
LESSON Contemporary Debates on
14 Human Rights I: Non-State

Actors and Terrorism
In the next two lessons, we

will finish the course with a
discussion of where human
rights is going, by analysing
some current debates, and
thinking about the future of
the system.
UN Photo #426484 by Jean-Marc Ferré.
Section 14.1 Introduction • Understand the barriers to applying international

human rights law directly to non-State actors;
Section 14.2 Non-State Actors
• Describe recent global attempts at regulating
Section 14.3 Human Rights and Terrorism transnational corporations;
• Appreciate the theoretical difficulties with respect to

the regulation of transnational corporations;
• Understand the history of international attempts to

regulate terrorism;
• Appreciate the difficulty of defining terrorism under

international law;
• Describe the ways in which terrorists can violate

individual rights;
• Describe the ways in which States can violate

individual rights while trying to prevent terrorism;
and
• Describe the ways in which States can violate the

rights of terrorists.
307
LESSON 14 | Contemporary Debates on Human Rights I: Non-State Actors and Terrorism
A woman working at a fabric factory in Bangkok. 9 March 2000. UN Photo #50812 by Eskinder Debebe.

The first 13 lessons of this course have provided a general
overview of the international human rights system. First, we
looked at where this system came from: we examined the
philosophical and theoretical foundations of human rights,

videos/106/lesson-14-contemporary-
debates-on-human-rights-i-non-state-
actors-and-terrorism/>.
308
and traced the historical origins of international human rights law. Then, we looked at the system as it exists today:
we studied the three treaties that make up the international bill of human rights (the UDHR, ICCPR, and ICESCR);
discussed the concept of collective rights and the protection of vulnerable groups; and studied the intersection
between international human rights law, jus ad bellum, IHL, and ICL. In the next two lessons, we will finish the
course with a discussion of where human rights is going, by analysing some current debates, and thinking about the
future of the system.
Throughout the course, we have considered not only the legal, political, and material advances that have been
prompted by the human rights system, but also the challenges and pitfalls of applying this framework in the modern
world. During this process, we have uncovered several major critical themes and points of controversy. For example:
• The moral and philosophical foundations of human rights;
• Universalism versus cultural relativism;
• Generations of rights;
• The concept of collective rights;
• The global North/South split;
• The equality paradox;
• The notion of inclusivity and reinforcement of differences; and
• The relationship between war and law.
We looked at how these theoretical debates apply in many different circumstances, and how they continue to
shape on-the-ground debates over topics like:
• The role of the Security Council;
• The relationship between global and regional human rights mechanisms;
• The desirability of special protection regimes;
• The meaning of “self-determination”;
• The existence of collective rights;
• The need for legally binding treaties;
• R2P; and
• The role of international criminal law in transitional justice.
In Lessons 14 and 15, we will explore some additional topics that are currently sparking controversy among
scholars, practitioners, and politicians concerned with human rights. First, we will look at the discussion over whether
and how human rights law should govern non-State actors, in particular large multi-national corporations. Second,
we will examine the application of human rights norms in the context of terrorism and the fight to control it. Third,
we will look at the emergence of a new special protection regime for lesbian, gay, bisexual, and transgender (LGBT)
persons. Fourth, we will take a brief look at the field of human rights and technology. Finally, we will conclude with a
discussion of the overarching question of effectiveness: whether international human rights law and the system set
up to enforce it actually helps to protect human rights and improve people’s lives.
As you read through these final two lessons, try to imagine the ways that each of these debates is connected
to what we have learned about the wider system of human rights protection. For example, how would recognizing
corporate responsibility for human rights violations affect the right to development? Should terrorists be dealt with
309
under the normal rules of IHL? Are LGBT rights group rights? Is the effectiveness of human rights law hampered
by the fragmentation of rights into so-called generations? Just as human rights are indivisible, interconnected, and
interrelated, so too are these conceptual issues. Everything is intertwined.
Section 14.2 Non-State Actors
Non-State actors in international human rights law
Traditionally, as we have seen, the human rights system orders relations between individuals and the State. It sets
the boundaries of what States can and cannot do with respect to persons and property under their control. International
human rights law is addressed to States: its rules govern State behaviour, and the consequences of violating its norms
fall on the shoulders of national governments.
Likewise, regulating the conduct of individuals has traditionally been the exclusive responsibility of the State
in whose territory the individuals live. States have the power — indeed, they have the duty1 — to set rules limiting
the behaviour of individuals, groups, companies, churches, and any other private entities in their jurisdiction. And
States are responsible for enforcing these rules and punishing violators. International norms that attempt to regulate
individual conduct have historically had to do so through the intermediary of the State, by requesting that a country
pass regulations to control individuals. If individuals violated these international rules, it was up to the State to hold
them accountable, and if no action was taken, it was the State, not the individual, who could be held liable under
international law.
As a result, international human rights norms have historically had no horizontal effect: they are enforceable
only “vertically”, between an individual and the State, not “horizontally”, between one individual and another.2 This
means that private individuals cannot bring claims against other private individuals or entities in a human rights
forum — they can only bring claims against the State.
Over the last century, however, non-State actors (NSAs) have begun to play increasingly important roles in
international life. The umbrella term NSA is very broad, including, in Philip Alston’s words, “anything that is not a
State, whether it be me, IBM, the IMF, Shell, Sendero Luminoso, or Amnesty International”.3 NSAs include groups
such as:
• Non-governmental organizations (NGOs);
• Religious groups;
• Civil society;
• Individuals;
• International organizations;
• Transnational corporations (TNCs);
• Businesses;
• Rebel groups;
1) In accordance with their obligation to “protect” human rights, States must take steps to prevent private actors from violating individual human rights.
In order to do this, the State may have to establish an appropriate policy framework, write laws, and actively enforce them. See Lesson 2 for a
complete discussion of the “respect, protect, ensure” framework.
2) See: Human Rights Committee, General Comment No. 31, 2004, para. 8.
3) Philip Alston, “The ‘Not-a-Cat’ Syndrome: Can the International Human Rights Regime Accommodate Non-State Actors?” in Non-State Actors and
Human Rights, Philip Alston, ed. (New York: Oxford University Press, 2005), 4.
310
• Terrorist organizations;
• Military contractors; and
• Armed opposition groups.
NSAs guide policy, start wars, undermine governments, support governments, and both help and harm individual
citizens. In some cases, they have power and resources (economic, military, and persuasive) equal to or exceeding
that of some States.
As the reach and influence of NSAs has grown, the extent to which they are involved in both protecting and
violating human rights norms has become clear. And the international community has begun to realize that “a human
rights regime which addresses itself effectively only to States will become increasingly marginalized in the years
ahead”.4 As a result, developments in the human rights field have begun to chip away at the hard and fast rule that
international law may address only States:
“Increasingly, international norms and institutions are reaching

beyond the State to regulate large categories of non-State
actors, from political associations and business corporations
to ordinary individuals. They do so directly under international
law, through treaty norms defining personal international
crimes like crimes against humanity that cover State and
non-State actors. They also do so indirectly, and far more
broadly, by requiring State parties to protect their population
against rights-violating conduct of non-State actors, often
through treaties that specify what non-State activity — such as
discriminatory corporate employment, or family violence — the
State must proscribe and act against. Whatever its accuracy at
the movement’s foundation, the notion that the human rights
movement regulates only State conduct is at best an historical
observation. As it develops, human rights law continues to
erode the long-standing notion of a public-private divide, in the
sense of State and non-State actors, where only the former is
subject to regulation under international law.”5
We discussed one example of this erosion in Lesson 13, when we explored international criminal law (ICL), which
directly addresses individuals and seeks to regulate their behaviour during armed conflict. We encountered another
instance in Lesson 9, when we noted that the first Optional Protocol to the Convention on the Rights of the Child
(CRC) on Children in Armed Conflict prohibits armed groups, including non-State forces, from recruiting or using
persons under the age of 18 in hostilities. In this section, we will focus on how international human rights law has
attempted to articulate and enforce human rights obligations with respect to a third group of NSAs: transnational
corporations (TNCs).6
4) Henry J. Steiner, Philip Alston, and Ryan Goodman, International Human Rights in Context: Law, Politics, Morals (Third Edition) (New York: Oxford
5) Henry J. Steiner, “Human Rights: The Deepening Footprint”, Harvard Human Rights Journal, vol. 20, 2007.
6) TNCs are also known as Multinational Corporations (MNCs). We will use the former in this lesson, but either term is appropriate.
311
The State
Vertical Effect,
but no
Horizontal Effect
under international
human rights law
Individuals
Transnational corporations and international human rights law
In the past several decades, the wealth and power of TNCs have witnessed a tremendous expansion. Although
globalized economic actors are nothing new,7 the extent and reach of transnational corporations in the modern
world has grown to immense proportions. There are today more than 60,000 firms and 800,000 subsidiaries with
operations spanning more than one country.8 Indeed, we now inhabit a world in which the annual revenue of the
largest TNC is greater than that of all but the 30 wealthiest nations.9 And as their scope and influence have grown,
TNCs have increasingly had the ability to protect, as well as to infringe on, individual human rights:
“The corporate world touches the lives of people more closely

than any other constituency, giving it immense potential for
good or harm … [In addition to its great benefits, it also does]
some collateral damage — to individuals, to the environment,
to communities. Whether directly or indirectly, companies
encounter problems which we would now classify under the
generic heading of human rights. In their supply chains they
can meet exploitative child labour, discrimination, risks to
health and life, forced labour. The extractive industries can
be involved in the spoliation of the environment and the
destruction of communities. In contexts of conflict and human
rights violations they confront a need for security which is too
often provided by ill-disciplined State security forces.
7) See: Karl Moore and David Charles Lewis, The Origins of Globalization, 2009 (arguing that “to a surprising degree, quite a few of today’s business forms
and business cultures existed in ancient times. Globalization, multinational enterprises, commercial partnerships, foreign joint ventures, and embryonic
forms of mass production all had their precursors or prototypes in the very remote past”.).
8) John Ruggie, “American Exceptionalism, Exemptionalism and Global Governance”, John F. Kennedy School of Government Working Paper No. RWP04-
006, 2004, 14.
9) Philip Alston, 4 and 17.
312
Simply through their presence, companies provide economic

support and moral sanction to oppressive governments. If they
lack appropriate policies and principles, companies risk the
legitimate charge of complicity with oppression in pursuit of
profit.”10
TNCs can violate human rights directly through acts such as maintaining exploitative labour practises,
discriminating against certain groups of employees on the basis of race, sex, or other categories, or hiring security
forces to intimidate and assault trade unionists. They can also violate human rights indirectly by being complicit in or
“aiding and abetting” the violations of their associates, or by failing “to ensure that their operations do not depend
upon, benefit from, or contribute to human rights abuses committed by others”, such as governments or rebel
groups.11
Stories of corporate human rights abuses, as well as corporate complicity in abuses committed by others are
numerous and stretch back at least to the British East India Company and its involvement in the slave trade in the
seventeenth century. Recent tales about Royal Dutch-Shell’s actions in Nigeria’s Ogoni region,12 Chiquita’s complicity
with paramilitary forces in Colombia,13 and Enron’s entanglement in India’s Dabhol power project14 have all attracted
international attention and led to judicial action against the corporations involved.
Because of TNCs’ enormous potential to affect human rights, activists and lawyers have sought ways to bring
corporations into the fold of international human rights law and to ensure that they respect human rights standards
and can be held accountable when violations occur. Traditionally, the responsibility for controlling the actions of these
private entities lay with the governments of their home State (the State in which they were based) and their host
States (the States in which they operated), but problems have arisen that have prevented national governments
from exercising sufficient control.
Home States have not been able to halt abuses because they often lack jurisdiction to regulate corporate
behaviour that takes place outside of their borders, and host States have faced a huge array of regulatory hurdles. To
begin with, regulating TNCs can be difficult. Governments have limited financial and human resources. And often, TNCs
are much bigger than government regulatory bodies. They have more lawyers, more accountants, more experience,
and an incentive to resist regulation. In the face of this, governments may feel disempowered and unable to match the
legal and economic savvy of the companies they are supposed to regulate. Often, countries do not even possess the
10) G. Chandler, “Corporate Liability: Human Rights and the Modern Business”, Conference organized by JUSTICE and Sweet & Maxwell, 12 June 2006,
quoted in Henry J. Steiner, Philip Alston, and Ryan Goodman, 1388.
11) Human Rights Watch, On the Margins of Profit: Rights at Risk in the Global Economy, February 2008, 11. The specific content of “complicity” remains
a contested area. As John Ruggie argues: “no consensus exists, even among advocates, on where to draw the boundaries around corporate ‘non-
complicity’ in human rights abuses”. John Gerard Ruggie, “Symposium: ‘Trade, Sustainability and Global Governance’: Keynote Address”, Columbia
Journal of Environmental Law, vol. 27, 2002, 304. See: Klaus M. Leisinger, “On Corporate Responsibility for Human Rights”: In what cases does
a company become ‘complicit’ in human rights abuses through its normal business activities? What kind of proximity to abuses by the State, by
terrorists, by individuals, or by other companies would justify the negative judgment of being complicit in human rights violations? These questions
are answered in many ways by different stakeholders…
12) See: Human Rights Watch, The Price of Oil: Corporate Responsibility and Human Rights Violations in Nigeria’s Oil Producing Communities, 1999,
(describing how Shell collaborated with Nigerian armed forces, attempted to import weapons, threatened activists, and failed to report or protest
human rights abuses committed against community members). Royal Dutch Shell recently agreed to pay $15.5 million to settle a civil human rights
case brought by Ogoni community members, including Ken Saro-Wiwa Jr., son of the executed human rights activist. Despite its payment, which it
called a “humanitarian gesture”, the company continues to deny that it had any role in the elder Ken Saro-Wiwa’s death. Jad Mouawad, “Shell to Pay
$15.5 Million to Settle Nigerian Case”, New York Times, 8 June 2009.
13) Chiquita, one of the world’s largest banana producers, has admitted to paying some $1.7 million to right-wing paramilitary groups in Colombia
between 1997 and 2004. It was fined $25 million by the US Justice Department as a result. Simon Romero, “Colombia May Extradite Chiquita
Officials”, New York Times, 19 March 2007. Chiquita has also admitted to paying money to the Revolutionary Armed Forces of Colombia (FARC).
Carmen Gentile, “Families Sue Chiquita in Deaths of 5 Men”, New York Times, 17 March 2008.
14) See: Human Rights Watch, The Enron Corporation: Corporate Complicity in Human Rights Violations, 1999 (detailing how the Dabhol Power Company,
a subsidiary of Enron, benefited from State repression of dissent against the project).
313
basic tools they need to impose effective regulation — lack of experts on global finance, obfuscation by companies, and
the complexity of the system can make it difficult for government regulators to discern which company is responsible
for what, where they are located, or how much their assets are worth.
Additionally, host governments may be loath to regulate TNCs because they worry it could make their country
seem unattractive to investors. Heavy competition for business investments among States has meant that each
country must become as appealing as possible to foreign capital. Implementing and enforcing labour or environmental
standards may make investing seem costlier, and drive companies into the arms of competitors. This fear that
competition to attract investment will lead countries to lower their regulatory standards is sometimes known as the
“race to the bottom”.15
As a result of these difficulties, States have frequently been either unable or unwilling to regulate TNCs to the
extent that human rights activists would desire. As Professor John G. Ruggie, UN Special Representative on the issue
of human rights and transnational corporations and other business enterprises, wrote:
The root cause of the business and human rights predicament

today lies in the governance gaps created by globalization —
between the scope and impact of economic forces and
actors, and the capacity of societies to manage their adverse
consequences. These governance gaps provide the permissive
environment for wrongful acts by companies of all kinds
without adequate sanctioning or reparation. How to narrow and
ultimately bridge the gaps in relation to human rights is our
fundamental challenge.16
Growing recognition of these governance gaps has led to a surge of interest in making international human
rights standards directly applicable to corporations, and establishing enforcement mechanisms under international
law.17 This burst of activism coincided with increased willingness to regulate on the part of governments, which was
brought about as a result of public outcry over some well-publicized human rights disasters like those mentioned
above. As a result, efforts to work towards international agreement on the regulation of TNCs are underway.
Global initiatives
As of yet, there are no clear, universally applicable, and enforceable rules addressing human rights abuses by
TNCs.18 However, several initiatives promoting corporate social responsibility have been developed.
15) Evidence is mixed as to whether a “race to the bottom” is, in fact, occurring. See: Dan Bodansky and Jessica C. Lawrence, “Trade and Environment”,
in The Oxford Handbook of International Trade Law (New York: Oxford University Press, 2008), 511.
16) John G. Ruggie, Protect, Respect and Remedy: A Framework for Business and Human Rights, A/HRC/8/5, 7 April 2008, para. 3.
17) Human rights activists have also advocated other strategies, such as increased regulation by home States and the mobilization of consumer opinion.
See: Christen Broecker, Note, “‘Better the Devil You Know’: Home State Approaches to Transnational Corporate Accountability”, New York University
Journal of International Law and Politics, vol. 41, 2008 (arguing for an increased focus on host State accountability).
18) A few countries have developed interesting domestic mechanisms for enforcing human rights standards against TNCs. In the United States, for
example, human rights activists have increasingly sought to use the Alien Tort Claims Act (ATCA), originally established in 1789 for the purpose of
fighting piracy, to litigate human rights cases. The ATCA allows non-US citizens to bring civil (not criminal) suits against US residents (including former
foreign government officials and US branches of TNCs) alleging violations of international law. Thus far, no company has been found guilty in an ATCA
suit. But a number — such as the Royal Dutch Shell case mentioned above — have resulted in substantial settlements. See: Elliot J. Schrage, “Judging
Corporate Accountability in the Global Economy”, Columbia Journal of Transnational Law, vol. 42, 2003, 157–161.
314
In 1999, then UN Secretary-General Kofi Annan announced the launch of the Global Compact, which has been
acclaimed as “the world’s largest and most widely embraced corporate citizenship initiative”.19 The Global Compact
sets out 10 principles intended to encourage corporate responsibility with respect to the environment, labour, human
rights, and corruption. On the topic of human rights, the Compact asks businesses to uphold the following:
» Human Rights
Principle 1: support and respect the protection of international

human rights within their sphere of influence;
Principle 2: make sure their own corporations are not complicit

in human rights abuses.
» Labour Standards
Principle 3: freedom of association and the effective recognition

of the right to collective bargaining;
Principle 4: the elimination of all forms of forced and

compulsory labour;
Principle 5: the effective abolition of child labour;
Principle 6: the elimination of discrimination in respect of

employment and occupation.20
Companies who wish to participate in the Global Compact must send a letter stating their intentions to the
Secretary-General, after which they are expected to make changes to business operations, publicly advocate the
Compact and its principles, and publish an annual sustainability report highlighting steps taken to implement
the principles.21 As of July 2009, the Global Compact boasted “more than 6700 participants, including over 5200
businesses in 130 countries around the world”.22
The Global Compact is not a regulatory instrument — it contains no binding rules, includes no enforcement
mechanisms, and defines no detailed standards or benchmarks. Rather, it establishes a framework for “public-private
cooperation” based on communication and dialogue between TNCs, governments, labour organizations, and NGOs;
public accountability; and enlightened self-interest.23
Another recent initiative is the Voluntary Principles on Security and Human Rights, developed in 2000 by the
US and UK governments in conjunction with several TNCs and NGOs. These principles were designed “to guide
extractives companies in maintaining the safety and security of their operations within an operating framework that
ensures respect for human rights”.24 The Voluntary Principles focus on risk assessment and the relationship between
TNCs and security forces in both the public and private sectors.
19) Global Compact Office, The United Nations Global Compact: Advancing Corporate Citizenship, 2005, 1.
20) Global Compact. Available from: <http://www.unglobalcompact.org>.
21) Surya Deva, “Global Compact: A Critique of the UN’s ‘Public-Private’ Partnership for Promoting Corporate Citizenship”, Syracuse Journal of International
Law and Commerce, vol. 34, 2006, 115.
22) United Nations Global Compact, “UN Global Compact Participants”. Available from: <http://www.unglobalcompact.org/>.
23) Surya Deva, 116.
24) Voluntary Principles on Security and Human Rights. Available from: <http://www.voluntaryprinciples.org>.
315
The OECD, ILO, and International Finance Corporation have also developed guidelines for corporate social
responsibility that provide recommendations to TNCs on a number of areas of business ethics, including human
rights.25 Some industries have adopted NGO-sponsored voluntary initiatives to certify that their activities have been
conducted in human rights-friendly ways.26
Each of these efforts at establishing a global framework for corporate social responsibility has met with mixed
reviews. Some governments have been supportive, while others have argued that the regulations are overly intrusive.
A number of companies have signed on and agreed to abide by the rules, some have signed on and then disregarded
their obligations, and others have ignored them altogether.
NGOs and human rights advocates have generally supported these international efforts as a first step, but have
pointed out several structural flaws in their design. To begin with, the Global Compact, Voluntary Principles, and OECD
and ILO guidelines are all entirely voluntary. TNCs sign on to these documents at their own convenience. Second, many
of the existing rules are industry-specific. The Voluntary Principles, for example, only apply to the extractive industries.
Third, even when companies do sign on, the rules contained in these documents are vague and “hardly provide
adequate and concrete guidance to corporations about the conduct expected from them”.27 Finally, there is no system
of independent monitoring or mechanism for punishing violations or providing remedies when they occur.28
The first comprehensive attempt to construct a legally binding mechanism for enforcing the human rights
obligations of businesses came in 2003, when the Sub-Commission on Human Rights developed the draft UN Norms
on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights
(UN Norms).29 The UN Norms provided that “within their respective spheres of activity and influence, transnational
corporations and other business enterprises have the obligation to promote, secure the fulfilment of, respect, ensure
respect of and protect human rights recognized in international as well as national law”. Paragraph 12 imposed a
threefold human rights obligation on TNCs, requiring them to respect human rights, contribute to their realization,
and refrain from violating them:
“Transnational corporations and other business enterprises shall

respect economic, social and cultural rights as well as civil and
political rights and contribute to their realization, in particular
the rights to development, adequate food and drinking water,
the highest attainable standard of physical and mental health,
adequate housing, privacy, education, freedom of thought,
conscience, and religion and freedom of opinion and expression,
and shall refrain from actions which obstruct or impede the
realization of those rights.”30
25) OECD “Declaration on International Investment and Multinational Enterprises”, 1976, revised 2000. Available from <http://www.oecd.org/>; ILO,
“Tripartite Declaration of Principles Concerning Multinational Enterprises & Social Policy”, 2000; International Finance Corporation’s Policy and
Performance Standards on Social & Environmental Sustainability, 2006.
26) See: the Kimberly Process for diamond certification: <http://www.kimberleyprocess.com/>; and the Extractive Industries Transparency Initiative at:
<http://eitransparency.org/>.
27) Surya Deva, 129.
28) The Global Compact does contain a sort of complaints mechanism, by which the Global Compact Office can receive communications, and if it
determines that they are non-frivolous, ask the named company to comment on the issues in the complaint. This mechanism is entirely non-legal,
and “enforcement” is done merely through establishing a dialogue. United Nations Global Compact, “Note on Integrity Measures”.
29) Commission on Human Rights, UN Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human
Rights, E/CN.4/Sub.2/2003/12/Rev.2, 26 August 2003.
30) Ibid., para. 12.
316
Textile mill in Nicaragua established by Nicaraguan, Colombian and Central American Common
Market organizations, with assistance from the World Bank’s International Finance Corporation. 1
May 1971. UN Photo #132410 by Yutaka Nagata.
The UN Norms were quite far-reaching in their attempt to assign responsibility to TNCs. As a result, many
business leaders viewed them with hostility. Opposition was so pronounced that when the Norms were submitted to
the former Commission on Human Rights, they were rejected after a cold reception from States. The Commission
ultimately declared that the UN Norms had “no legal standing,” and instructed that “the Sub-Commission should not
perform any monitoring function in this regard”.31
After the failure of the UN Norms, activists sought other ways to further the business and human rights agenda
at the global level. Responding to these desires, in 2005 the Secretary-General appointed a Special Representative on
the issue of human rights and transnational corporations and other business enterprises. The Special Representative,
Professor John G. Ruggie, has produced several Statements over the past several years, with the most influential
being the 2008 Report of the Special Representative of the Secretary-General, “Protect, Respect and Remedy: A
Framework for Business and Human Rights”, also known as the “2008 Ruggie Report”.32 The Report sets out a three-
part framework for promoting business accountability for human rights. This framework is based on:
• The State’s duty to protect individuals against human rights abuses, including by third parties such as TNCs;
• TNCs’ duty to respect human rights; and
• The need for effective and accessible remedies.
Ruggie’s framework assigns TNCs the responsibility to respect human rights. However, it rejects the UN Norms’
attempt to impose binding international human rights obligations on TNCs. Instead, Ruggie argued that States should
be encouraged to strengthen their domestic regulatory infrastructures and provide mechanisms for the enforcement
of human rights norms.
31) See: UN Commission on Human Rights, “Report to the Economic and Social Council on the Sixtieth Session of the Commission”, E/CN.4/2004/L.11/
Add.7, 2004, 81–82.
32) John G. Ruggie, Protect, Respect and Remedy: A Framework for Business and Human Rights, A/HRC/8/5, 7 April 2008.
317
The voluntary standards developed thus far have clearly not been enough to prevent TNCs from committing or
being complicit in human rights abuses. In response to the need for more stringent enforcement, the Ruggie Report
calls for an increase in State oversight. Others contend that what is needed is a UN declaration or other international
human rights instrument that would clearly articulate global standards for TNCs with respect to human rights.33 But
is this really the best way of dealing with international corporations?
Theoretical difficulties with the regulation of non-State actors
Making TNCs and other types of non-State actors directly responsible under international law might encourage
them to take their human rights obligations seriously, but it also has its downsides Andrew Clapham, professor at
the Graduate Institute of International Studies, has summarized the problems with recognizing non-State actors as
falling into two general categories:34
• Legitimacy problems: to hold NSAs accountable for violations of human rights is, in a sense, to recognize
them as autonomous participants in the international sphere. This may impart a veneer of legitimacy to
otherwise “illegitimate” actors, or grant companies a status equal to sovereign States.
• Dilution problems: holding non-State actors to account for violating human rights might allow States
to “pass the buck” and evade responsibility for protecting individuals under their jurisdiction. Recognizing
corporate human rights obligations may dilute State human rights obligations by spreading out responsibility
across a wider array of actors.
What responsibilities should corporations have with respect to human rights? Are binding legal norms
appropriate? Are they feasible? Should they be regulated by the international community, or should control be left
to the States? Does assigning TNCs and other non-State actors direct responsibility under international human
rights law give them too much legitimacy? Does it dilute State responsibility to “respect, protect, and fulfil” human
rights?
These questions of legitimacy and dilution are not unique to TNCs, but apply equally to other groups of NSAs,
including the one we will discuss in the next section of this lesson: terrorists.
Section 14.3 Human Rights and Terrorism
Human rights and terrorism
In the years since 11 September 2001, the question of how protecting human rights should be reconciled with the
need to prevent and punish terrorism has become one of the most discussed issues in human rights circles. Terrorism
is not new. But following the events of that day, on which nearly 3,000 people were killed as a result of terrorist
attacks on the World Trade Center in New York and the Pentagon in Washington, D.C., international terrorism became
a global priority. Wars have begun, national and international laws have been adopted, and individuals have been
killed, detained, and abused in the name of combating this threat. At the same time, activists and commentators
have begun searching for ways to protect individual rights from harm inflicted both by terrorists as well as by States
zealously engaged in counter-terrorism actions.
33) See: Human Rights Watch, On the Margins of Profit: Rights at Risk in the Global Economy, February 2008, 51. Available from: <http://www.hrw.
org/>.
34) Andrew Clapham, “Non-State Actors”, in Post-Conflict Peace-Building: A Lexicon, Vincent Chetail, ed. (New York: Oxford University Press, 2009).
318
Human rights and terrorism intersect on a number of different levels. First, and most obviously, terrorism
directly violates human rights. Terrorist attacks kill and injure individual people, destroy property, and cause a host
of other problems. Second, in the struggle to fight terrorism, governments may limit or infringe the human rights of
individuals in their territory. These limitations may come in the form of reduced freedoms for the general population,
such as incursions on the right to privacy or freedom of movement, or as institutionalized discrimination against
particular ethnic, religious, or national groups. Third, in attempting to punish offenders and prevent future attacks,
governments may violate the human rights of terrorists themselves. For example, a State may employ torture or
other prohibited means in order to extract information, or may deny suspected terrorists due process rights during
imprisonment and trial.
This section will address each of these three human rights/terrorism linkages in turn. But first, it will take a brief
look at the existing international machinery for dealing with the threat of terrorist activity.
Current international legal framework on terrorism
Since the 1970s, the international community has adopted a wide variety of international laws intended to
prohibit, prevent, and punish particular facets of terrorist activity. Even prior to the attacks of 11 September
anti‑terrorism conventions existed on topics such as:
• The safety and security of aircraft and airports;35
• The murder or harm of internationally protected persons, their homes, or their means of transport;36
• Unlawful possession, use, transfer, theft, or threat to use nuclear material;37
• The safety and security of ships;38
• The safety and security of fixed platforms;39
• The manufacture or transportation of unmarked plastic explosives;40
• The delivery, placing, discharging, or detonation of an explosive or other lethal device in a public place,
State, or government facility, public transport system, or infrastructure facility;41
• Taking hostages;42 and
• Financing terrorist activities.43
In addition, terrorist activity that takes place during wartime is prohibited under IHL and ICL, both directly —
through prohibitions on terrorist activities44 — as well as indirectly — through the prohibition of crimes against
humanity such as murder, torture, serious injury, and indiscriminate attacks committed as part of widespread attack
on the civilian population.
35) Tokyo Convention on Offences and Certain Other Acts Committed on Board Aircraft, 1963; Hague Convention for the Suppression of Unlawful Seizure
of Aircraft, 1970; Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, 1971; Montreal Protocol for the
Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, 1988.
36) Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, Including Diplomatic Agents, 1973.
37) Vienna Convention on the Physical Protection of Nuclear Material, 1980.
38) Rome Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 1988.
39) Rome Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf, 1988.
40) Montreal Convention on the Marking of Plastic Explosives for the Purpose of Detection, 1991.
41) International Convention for the Suppression of Terrorist Bombings, 1997.
42) International Convention on the Taking of Hostages, 1979.
43) International Convention for the Suppression of the Financing of Terrorism, 1999.
44) Geneva Convention IV, Art. 33(1); Protocol I, Art. 51(2); Protocol II, Arts. 4(2)(d) and 13(2); Statute of the International Criminal Tribunal for
Rwanda, 1994, Art. 4(d); Statute of the Special Court for Sierra Leone, 2000, Art. 3(d).
319
Following 11 September 2001, there was a surge in anti-terrorist legal activity. International organizations were
quick to issue condemnations and to classify the strike on the World Trade Center as an “armed attack”, triggering
the right to use force in self-defence under the UN Charter.45 A few weeks later, the Security Council determined
that international terrorism was a threat to international peace and security, passed a resolution requiring all States
to take financial, penal, and other measures against individuals and groups involved in terrorism. It then used its
Article VII powers to establish a Counter-Terrorism Committee (CTC) to monitor implementation of this resolution.46
The General Assembly issued Statements condemning terrorist acts and urging “international cooperation to prevent
and eradicate acts of terrorism”.47 And new declarations and treaties were signed criminalizing additional aspects of
terrorist activity and obliging Member States to undertake steps to combat terrorism.48
NGOs, however, charged that these measures
failed to take adequate care to ensure that States
upheld human rights obligations either with respect
to their own citizens or the terrorists themselves.
Countries were left with almost complete freedom
in deciding how to implement counter-terrorism
policies. The CTC, in particular, was criticized for
its failure to consider whether governments’ anti-
terrorism measures complied with international
human rights law.
In response to these concerns, in 2004
the Security Council adopted two resolutions
“reminding States that they must ensure that any
measures taken to combat terrorism comply with
all their obligations under international law, and
should adopt such measures in accordance with
international law, in particular international human
rights, refugee, and humanitarian law”.49 In 2006,
the CTC adopted a policy guidance advising its
Executive Directorate to confer with the OHCHR A view of the UN Headquarters complex in Algeria destroyed
on how best to ensure that State policies were in by the 11 December terrorist attack. The bombing claimed the
lives of 17 United Nations workers. 18 December 2007. UN
compliance with international human rights law,
Photo #166343 by Evan Schneider.
IHL, and refugee law.
Regional bodies, too, adopted a range of counter-terrorism instruments. The Organization of American
States (OAS) passed the Inter-American Convention against Terrorism to prevent the financing of terrorist acts,
enhance cooperation among law enforcement officials, and promote mutual legal assistance efforts.50 The Council
of Europe adopted a Protocol to the European Convention on the Suppression of Terrorism extending the list of
extraditable offences, and passed an additional Convention on the Prevention of Terrorism; and the EU adopted
45) See the discussion of self-defence in the context of jus ad bellum in Lesson 11.
46) Security Council resolution 1373, 2001.
47) A/RES/56/1, 2002, para. 4.
48) See: International Convention for the Suppression of Acts of Nuclear Terrorism, 2005; UN Global Counter-Terrorism Strategy, A/RES/60/288, 2006.
49) Security Council resolutions 1535 and 1566, 2004.
50) Inter-American Convention against Terrorism, 2002.
320
a Framework Decision on Combating Terrorism.51 The African Union (AU), South Asian Association for Regional
Cooperation, Association of Southeast Asian Nations (ASEAN), the Organization of the Islamic Conference (OIC), the
Commonwealth of Nations, and the Organization for Security and Cooperation in Europe (OSCE) have also developed
a variety of regional instruments.
Despite the adoption of these global and regional instruments and the increased attention to the subject in
the wake of 11 September 2001, however, there remains no broad-based comprehensive international treaty on
terrorism.
One of the primary reasons for the lack of an international umbrella treaty dealing with all aspects of terrorism
is that the international community has not yet been able to agree on how “terrorism” should be defined. This
battle — which has been raging since the 1970s — centres around one contentious question: whether “freedom
fighters” in national liberation movements like the Palestine Liberation Organization (PLO) and the African National
Congress (ANC) can and/or should be classified as terrorists. As one scholar wrote: “The perverse logic at the heart
of attempts to define terrorism is well known: everyone tries to include one’s adversaries in the definition while
keeping one’s allies and one’s own (actual or potential) activities outside it.”52 To paraphrase the old adage: one
person’s terrorist is another person’s freedom fighter.
Despite the lack of a comprehensive definition of terrorism, there has been growing international consensus on
what is meant by the term. The 1999 UN Convention for the Suppression of the Financing of Terrorism, various UN
General Assembly and Security Council resolutions, and the Draft Comprehensive Convention on Terrorism, as well
as regional terrorism conventions like the Arab Convention for the Suppression of Terrorism, the OAU Convention
on the Prevention and Combating of Terrorism, and the Convention of the Organization of the Islamic Conference on
Combating International Terrorism all contain similar notions of what “terrorism” entails:
“(i) acts normally criminalized under any national penal system,

or assistance in the commission of such acts whenever they are
performed in time of peace; those acts must be (ii) intended to
provoke a State of terror in the population or to coerce a State
or an international organization to take some sort of action;
and finally (iii) are politically or ideologically motivated; that is,
are not based on the pursuit of private ends.”53
Professor Antonio Cassese argued that while disagreement still prevents the inclusion of a solid definition in
international treaty law, the disputed terrain is primarily now limited to the question of whether there should be an
exception for freedom fighters engaged in wars of national liberation, and, if so, what the scope of that exception
should be.54 Other scholars argue that this position ignores “the continuing tendency of many developing States to
differentiate between freedom fighters and terrorists”, which “goes to the heart of the question whether customary
international law recognizes a comprehensive definition of terrorism”.55 Either way, the definitional battle has yet to
be concluded.
51) Council of Europe Protocol amending the European Convention on the Suppression of Terrorism, 2003; Council of Europe Convention on the Prevention
of Terrorism, 2005; EU Framework Decision on Combating Terrorism, 2002.
52) Jarna Petman, “Evil and International Law”, International Law Forum du droit internationale, vol. 5, 2003.
53) Ibid., 165.
54) Ibid.
55) Robert Barnidge Jr., Non-State Actors and Terrorism (The Hague: T.M.C. Asser Press, 2007), 31–32.
321
On the Definition of Terrorism »

“‘Terrorism’ is a term without legal significance.”
–Rosalyn Higgins
from “The General International Law of Terrorism” (1997)
Another major disagreement is centred on the question of whether terrorism should be dealt with under a
military model that treats terrorist groups as opposing military forces or under a criminal justice model that treats
terrorists as individual criminals. The distinction is not merely academic. The application of a military model would
authorize States to use military force and military tactics against terrorist groups, and would require them to respect
the principles of IHL. The use of a criminal justice model, on the other hand, would authorize policing actions against
individuals or groups of terrorists aimed at prosecuting and punishing them for specific crimes. Keep these two
different paradigms in mind as you continue reading through this lesson — we will return to the military versus
criminal model question below.
Terrorists as violators of individual human rights
As has been reaffirmed in a number of UN documents over the last several decades, terrorism poses a direct and
immediate threat to the protection of human rights:
“The acts, methods and practices of terrorism in all its forms and
manifestations [are] activities aimed at the destruction of human
rights, fundamental freedoms and democracy, threatening the
territorial integrity and the security of States and destabilizing
legitimately constituted Governments, undermining pluralistic
civil society, and having adverse consequences for the economic
and social development of States.”56
Terrorist acts seriously jeopardize basic human rights such as the rights to life, liberty, and freedom, as well as a
range of other civil, political, economic, social, and cultural rights. Terrorism threatens human security and the ability
to enjoy the human rights and fundamental freedoms to which each individual is entitled.
Because terrorism is responsible for causing serious violations of human rights, it is important to prevent terrorist
acts from occurring. Methods of preventing terrorism have ranged from initiating armed conflict, to assigning criminal
liability for terrorist acts under national and international law, to active counter-terrorism surveillance, to aggressive
law enforcement programmes.
Despite these efforts, in many cases States have been unable to suppress terrorist groups. Terrorist organizations
and rebel groups that use terrorist tactics, like Al Qaeda in Afghanistan, the Basque separatist group Euskadi Ta
Askatasuna (ETA) in Spain, and the Revolutionary Armed Forces of Colombia (FARC), have been around for a long
time, and have resisted ongoing State attempts at eradication. In cases where terrorist groups are substantial and
entrenched, how can we best ensure the protection of individual human rights?
56) Human Rights and Terrorism, A/RES/59/195, 2005, para. 1.
322
Writing Exercise 14: Defining A Terrorist »

You are working as an adviser to the government of Copernica, a small State that is a party
to all of the major international human rights and humanitarian law instruments. Copernica
is currently in the midst of a civil war, with government forces fighting against a rebel group
called the Mylons. Copernica’s government has not yet recognized the situation as an “armed
conflict” subject to Common Article 3 of the Geneva Conventions. The Mylons have, in the
past, used terrorist tactics and committed direct attacks against the civilian population.
Despite years of effort, the government of Copernica has been unable to quash the Mylon
movement. Now, in an attempt to reduce civilian casualties, it is considering whether it should
negotiate with Mylon leaders for the purpose of obtaining commitments on human rights and
IHL.
• Should the government of Copernica attempt to obtain human rights commitments from
the Mylons? What are the chances that the Mylons would make such commitments?
Why would they do so?
• What repercussions will this decision have with respect to international recognition
of the Mylon cause? With respect to the protection of civilians? Are these outcomes
problematic? Are they desirable?
One way is to encourage these groups to comply with IHL and human rights law. As we learned in Lesson 12,
IHL already applies to armed opposition groups engaged in non-international armed conflicts. And even though most
human rights law does not directly address non-State groups, it may be possible to convince “terrorists”, “freedom
fighters”, and other armed opposition movements to adopt these norms.
Some armed groups (terrorists, freedom fighters, and others) have, in fact, been willing to commit themselves
to abiding by IHL and human rights laws. The Special Representative of the UN Secretary-General for Children and
Armed Conflict, for example, obtained human rights commitments from the Sudan People’s Liberation Movement,
the Revolutionary United Front (RUF) in Sierra Leone, the Liberation Tigers of Tamil Eelam (LTTE) in Sri Lanka, and
FARC.
One reason these groups may agree to be bound by IHL and human rights law is that it provides some legitimacy
on the international stage: playing by the rules makes these groups seem less like “terrorists” and more like “freedom
fighters”. Another reason is that they might hope to take advantage of the logic of reciprocity and obtain similar
commitments from the governments fighting against them. States may be more likely to uphold the rules themselves
if they believe their opponents will also do so.
As noted in Lesson 12, however, States may sometimes be unwilling to accept the application of IHL.57 Accepting
the applicability of IHL to a fight against “terrorists” provides some legitimacy to these NSAs, boosting them “from
a lowly position within the State criminal system … to a place more solidly on the international plane”.58 In 2004, for
57) See discussion of non-international armed conflict in Lesson 12.

58) Mary Ellen O’Connell, “Enhancing the Status of Non-State Actors Through a Global War on Terror?”, Columbia Journal of Transnational Law, vol. 43,
2005, 436.
323
example, the US and the EU voted against a resolution in the Commission on Human Rights that referred to “gross
violations of human rights perpetrated by terrorist groups”, on the grounds that this formulation equated States with
terrorist groups.59
States as violators of individual human rights
One of the most difficult and fundamental problems in human rights is the struggle to balance the liberty of
individuals (protected by human rights) against the security needs of the State. Questions of national security,
self-determination, and ideology can cause States to chip away at the edges of what are otherwise absolute ethical
proscriptions — such as the prohibition of torture or attacking civilians. Self-defence is a powerful motivator, and
governments may take extreme actions when they fear for their safety or national integrity. Nations have been
struggling with different aspects of the “liberty versus security” question for centuries. And since the 1970s, terrorism
has been one of the key contexts in which this conflict between freedom and safety has reared its head.60
As we noted in Lessons 2, 3, and 12, human rights conventions generally allow for some form of limitation or
suspension of rights (excepting the “hard core” of human rights) during times of emergency. Suspending rights
during exceptional times is nothing new — subordinating individual liberty to the security of group is a practice as
old as the State. But is the “war on terror” really an emergency situation requiring these kinds of suspensions? If
it is, how far should they be allowed to go? Should concerns about safety justify derogations from human rights
protections? Which ones? Is anti-terrorist rhetoric really just a device for hiding opportunistic abuse of political
opponents?
In the aftermath of 11 September and the beginning of the War on Terror, governments have infringed on
individual rights in a variety of ways. Law enforcement agencies have been granted new and sweeping surveillance,
investigative, and detention powers.61 Countries have begun to closely monitor the international movement of goods
and people, and the rights to freedom of speech, association, press, and conscience have all been circumscribed in
various ways.
Discrimination against those from certain national, ethnic, and religious backgrounds has become commonplace.
Enhanced police measures have been directed disproportionately against groups deemed dangerous due to their
national, ethnic, or religious heritage.62 Racial profiling and selectively heightened immigration regulations have been
used to screen out persons from particular countries and faiths.63 As one scholar wrote: in balancing liberty against
security, “what are being weighed against each other may, in reality, be the majority’s security on the one hand and
the liberty of only a minority — and of a very specific minority for that matter — on the other”.64

60) Michael Ignatieff, The Lesser Evil: Political Ethics in an Age of Terror (Princeton: Princeton University Press, 2004).
61) In the US, the National Security Agency used wiretaps to intercept and monitor emails and phone calls of private citizens with little necessary in the
way of justification. Eric Lichtblau and James Risen, “Officials Say US Wiretaps Exceeded Law”, New York Times, 15 April 2009. Law enforcement
agencies are keeping tabs on “suspicious activities” such as purchasing police or firefighter uniforms, taking pictures of power plants, and espousing
extremist views. Eric Schmitt, “Surveillance Effort Draws Civil Liberties Concern”, New York Times, 28 April 2009. In Britain, laws have been passed
allowing authorities to hold terrorism suspects without charge for up to 42 days. John F. Burns, “Terror Bill Passes Narrowly in Britain”, New York
Times, 12 June 2008.
62) For example, an operation in the US in 2004 that was intended to question some 2,500 “suspicious foreigners” without discrimination based on
ethnicity, religion, or nationality ended up involving more than 2,000 immigrants from predominantly Muslim countries, almost all of whom were
found to have done nothing wrong. Eric Lichtblau, “Inquiry Targeted 2,000 Foreign Muslims in 2004”, New York Times, 20 October 2008.
63) In the months following 11 September, for example, the United States detained more than 1,200 immigrants from predominantly Muslim countries,
the vast majority of whom were detained on minor immigration violations. Office of the Inspector General, US Department of Justice, “The September
11 Detainees: A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Attacks”,
June 2003.
64) Daniel Moeckli, Human Rights and Non-discrimination in the ‘War on Terror’ (Oxford: Oxford University Press, 2008), 3.
324
On the Violations of Rights in the Name of Security »

“On the appointed day the unarmed crowd of the Gothic youth was carefully collected in the
square or forum; the streets and avenues were occupied by the Roman troops, and the roofs
of the houses were covered with archers and slingers. At the same hour, in all the cities of
the East, the signal was given of indiscriminate slaughter; and the provinces of Asia were
delivered, by the cruel prudence of Julius, from a domestic enemy, who in a few months might
have carried fire and sword from the Hellespont to the Euphrates. The urgent consideration of
the public safety may undoubtedly authorize the violation of every positive law. How far that
or any other consideration may operate to dissolve the natural obligations of humanity and
justice is a doctrine of which I still desire to remain ignorant.”
–Edward Gibbon
from The Decline and Fall of the Roman Empire (1776)
Chaffing at these incursions on individual liberty, some began to question whether the new restrictions were
truly necessary for the preservation of national security, or whether, instead, governments were using the threat of
terrorism as a smokescreen to hide their real motives for imposing restrictive and discriminatory policies. According
to Human Rights Watch, for example: “many countries around the globe cynically attempted to take advantage of
this struggle to intensify their own crackdowns on political opponents, separatists and religious groups, or to suggest
they should be immune from criticism of their human rights practices”.65 As Professor Daniel Moeckli of the University
of Zurich described:
“Some States have deployed the international legitimacy

conferred by Council authorization to define terrorism to
repress or de-legitimize political opponents, and to conflate
them with Al-Qaeda. Thus, China bluntly characterizes
Uighur separatists in Xinjiang as terrorists; Russia asserts
that Chechen rebels are terrorists, even though many are
fighting in an internal conflict; and India seldom distinguishes
militants from terrorists in Kashmir. In Indonesia, insurgencies
in Aceh and West Papua have been described and combated
as terrorism, as have a Maoist insurgency in Nepal and an
Islamist movement in Morocco. Predictably, Israel has identified
Palestinians with Al-Qaeda, with Ariel Sharon Calling Arafat ‘our
Bin Laden.’”66
65) Human Rights Watch, “Opportunism in the Face of Tragedy: Repression in the Name of Anti-Terrorism”. Available from: <http://www.hrw.org/>.
66) Ben Saul, “Definition of ‘Terrorism’ in the UN Security Council: 1985–2004”, Chinese Journal of International Law, vol. 4, 2005.
325
These curtailments of individual liberty are made in the name of national security, defined as the protection of
the sovereign State. This definition of security places the State at the pinnacle of the security pyramid, and makes
the country — with its borders, institutions, citizenry, and ideology — the means as well as the end of national
security. In their quest for self-protection, States may infringe on the rights of individuals within their borders; this
is justified, because the ultimate goal is protection of the State. But “national security” is not the only available
paradigm.
In opposition to this traditional conception of “security” defined as “national security” is the emerging concept
of “human security”. Rather than the security of the State, human security puts the security of the individual — her
life, dignity, liberty, and rights — at the centre of focus. According to this view, liberty and security are not in conflict
with one another, but instead are intrinsically related. A loss of liberty or a limit placed on individual rights is not a
justifiable means of protecting the State; it is itself a threat to security.67
If we begin to move from a “national security” to a “human security” paradigm, what impact does this have on
our vision of counter-terrorism policy? Should the threat of terrorism result in restrictions of individual liberty, or
should it instead expand the protection of human rights and fundamental freedoms? Which is the bigger threat to
security — terrorism, or the State’s attempts to limit personal liberty?
States as violators of the human rights of terrorists
In the fight against terrorism, States have attempted to limit not only the human rights of the general public, but
also the rights of the terrorists themselves.
Counter-terrorism measures have included the commission of torture and the infliction of cruel, inhuman, and
degrading treatment on terrorist suspects. US Attorney General Alberto Gonzales infamously argued that certain
kinds of extreme tactics (i.e. torture) were permissible because the war on terror is “a new kind of war” requiring “a
new approach … towards captured terrorists”68 During the Iraq War, Abu Ghraib became an international watchword
for police brutality and military sadism.69 Reports detailing some of the methods of interrogation used against
prisoners at Guantánamo Bay painted a disturbing picture of abuse.70
Following 11 September, the United States detained hundreds of prisoners at Guantánamo Bay, Cuba without
charge or trial. The Bush government denied these terror suspects the protections afforded by either domestic
criminal law or IHL, claiming that suspected terrorists were “enemy combatants” and therefore neither criminals nor
prisoners of war (POWs) deserving of civil or Geneva Convention rights. This stripping of both civil and international
legal protections from terror suspects led some commentators to decry Guantánamo as a “legal black hole” in which
detainees are “entirely removed from the law and from judicial oversight”.71
In response to this situation, in 2002 the Inter-American Commission on Human Rights issued a request for
precautionary measures, asking the US to “take the urgent measures necessary to have the legal status of the detainees
at Guantánamo Bay determined by a competent tribunal”.72 The Commission determined that “absent clarification
67) Daniel Moeckli, 7–9.

68) Alberto Gonzales, Memorandum for the President, Subject: Decision Re Application of the Geneva Convention on Prisoners of War to the Conflict with
Al Qaeda and the Taliban, 25 January 2002.
69) See: Mark Danner, Torture and Truth: America, Abu Ghraib, and the War on Terror, 2004.
70) See: Mark Mazzetti and Scott Shane, “C.I.A. Abuse Cases Detailed in Report on Detainees”, New York Times, 24 August 2009.
71) Giorgio Agamben, State of Exception, Kevin Attell, trans., 2005, 4. In contrast, many critical scholars contend that far from being a place without law,
Guantánamo is filled to the brim with rules and regulations. See: Claudia Aradau, “Law Transformed: Guantánamo and the ‘Other’ Exception”, Third
World Quarterly, vol. 28, 2007; Nasser Hussain, “Beyond Norm and Exception: Guantánamo”, Critical Inquiry, 2007; Fleur Johns, “Guantánamo Bay
and the Annihilation of the Exception”, European Journal of International Law, vol. 16, 2005. See further discussion of law and war in Lesson 12.
72) Inter-American Commission on Human Rights, Organization of American States, Detainees in Guantánamo Bay, Cuba: Request for Precautionary
Measures, 13 March 2002.
326
of the legal status of detainees, … the rights and protections to which they may be entitled under international or
domestic law cannot be said to be the subject of effective legal protection by the State”.73 However, the United States
rejected this request on the grounds that the Commission’s competence extended only to the American Convention on
Human Rights, not to IHL.74
Similarly, the United Kingdom’s Parliament passed the Anti-Terrorism, Crime and Security Act in 2001, Part 4 of
which permitted the indefinite detention of non-British nationals suspected of terrorist activity.75 This law was used to
justify the long-term detention of a number of terror suspects at Belmarsh and other high-security prisons. In 2004,
however, the Law Lords found that Part 4’s detention policy was in violation of the European Convention on Human
Rights (ECHR).76 As British lawyer Lord Nicholls of Birkenhead wrote: “Indefinite imprisonment without charge or trial
is anathema in any country which observes the rule of law.”77
All of these human rights violations — torture, cruel and degrading treatment, illegal detention, and deprivation of
civil rights — have been justified on the grounds that the threat of terrorism is so great that it must be dealt with in an
unconventional manner. But does the special threat posed by international terrorism justify the suspension of human
rights? Is the War on Terror really a new kind of war that requires terrorists to be treated differently than traditional
prisoners of war or ordinary criminals? If so, why? And how much differently?
Conclusion
In this lesson, we have taken a look at how international human rights law is evolving to deal with two categories
of NSAs: transnational corporations and terrorists. In our final lesson, we will discuss three more current topics of
debate in international law: the rights of LGBT persons, human rights and technology, and the effectiveness of
international human rights.
Further reading
• Philip Alston, Non-State Actors and Human Rights, 2005.
• Surya Deva, “Global Compact: A Critique of the UN’s ‘Public-Private’ Partnership for Promoting Corporate
Citizenship”, Syracuse Journal of International Law and Commerce, vol. 34, 2006.
• Michael Ignatieff, The Lesser Evil: Political Ethics in an Age of Terror, 2004.
• Daniel Moeckli, Human Rights and Non-discrimination in the ‘War on Terror’, 2008.
• A/HRC/8/5, 7 April 2008.
• John G. Ruggie, Protect, Respect and Remedy: A Framework for Business and Human Rights.
73) Ibid.
74) Response of the United States to Request for Precautionary Measures, Detainees in Guantánamo Bay, Cuba, 15 April 2002, 41 I.L.M. 1015, 2002.
75) Anti-Terrorism, Crime, and Security Act, 2001, c.24 (Eng.).
76) A v. Secretary of State for the Home Department, 2004, UKHL 56, 2005, 2 A.C. 68 (appeal taken from Eng.) (UK).
77) Ibid., para. 74 (opinion of Lord Nicholls).
327
• Global Compact: <www.unglobalcompact.org>.
• Voluntary Principles on Security and Human Rights: <www.voluntaryprinciples.org>.
• Commission on Human Rights, Norms on the Responsibilities of Transnational Corporations and Other
Business Enterprises with Regard to Human Rights, E/CN.4/Sub.2/2003/12/Rev.2, 26 August 2003:
<https://digitallibrary.un.org/record/501576>.
• UN Business & Human Rights Resource Centre: <www.business-humanrights.org/SpecialRepPortal/Home>.
328
1. Traditionally, international law was 6. Why might regulating transnational

addressed only to _____. corporations be difficult?
A. States A. Transnational corporations are not subject to
B. individuals domestic law
C. the international community B. Transnational corporations are able to
D. transnational corporations overthrow governments if they disagree with

regulatory decisions
2. International human rights norms have C. Governments are prohibited under
traditionally had vertical effect, between
international human rights law from
individuals and the State, but no _____,
attempting to regulate transnational
between one individual and another.
corporations
3. All of the following groups are non-State D. Governments may lack the financial and
actors EXCEPT _____. human resources they need to impose
A. terrorists effective regulation
B. transnational corporations
7. What is the current situation of the
C. governments UN Norms on the Responsibilities of
D. NGOs Transnational Corporations and Other
Business Enterprises with Regard to
4. Which of the following best describes Human Rights?
a situation in which a transnational
A. The UN Norms were rejected by corporations
corporation was “complicit” in a human
and States, and have no legal effect
rights violation?
B. The UN Norms were adopted unanimously
A. A corporation hired security forces to assault
by the general assembly and are now
trade unionists
legally enforceable against transnational
B. A corporation benefitted when the
corporations
government attacked and incarcerated anti-
C. The draft of the UN Norms was never
corporate protesters
completed because human rights NGOs
C. A corporation refused to hire women
were no longer interested in regulating
D. A corporation employed children in its
transnational corporations
dangerous production facility
D. The UN Norms were voluntarily adopted by
transnational corporations, who now comply
5. The corporate social responsibility
initiative launched by Kofi Annan in 1999 with their obligations without the need for
is called the ______. legal enforcement mechanisms
329
8. What is the “race to the bottom”? 10. Which of the following best describes
why it has been difficult to come
A. The fear that competition to attract
to a definition of “terrorism” under
investment will lead countries to lower their
international law?
regulatory standards
A. Some powerful countries have maintained
B. The fear that countries who violate human
that there are no such thing as terrorists
rights will quickly be overthrown by
B. Countries have been unable to agree on
rebellious citizens
whether all wars are really “terrorist” wars
C. A situation in which two countries are
C. Countries have been unable to agree on how
competing to be the first to extract all
to distinguish “terrorists” from “freedom
resources from a shared deposit of natural
fighters” and whether an exception should
resources
be made for the latter group
D. A situation in which a government tries its
D. Some powerful countries have maintained
hardest to provide assistance to the lowest
that only countries, not individuals, can be
income earning people in society
terrorists
9. Which of the following best describes

the “dilution problem” with respect to
holding NSAs accountable for violations
of human rights?
A. If NSAs are held responsible for human
rights violations, this will erode the special
meaning of human rights
B. If NSAs are held responsible for human
rights violations, States may try to “pass the
buck” and limit their own responsibility
C. If NSAs are held responsible for human
rights violations, they will no longer be able
to function in the globalized economy
D. If NSAs are held responsible for human
rights violations, this will impart a veneer of
legitimacy, and could imply that they have a
status equal to that of States
Answer Key »
1. A
2. Horizontal Effect
3. C
4. B
5. Global Compact
6. D
7. A
8. A
9. B
10. C
330
HUMAN RIGHTS
LESSON Contemporary Debates on
15 Human Rights II: LGBT Rights,

Technology, and Effectiveness
In our final lesson, we will

continue our discussion of
contemporary debates in
human rights.
UN Photo #462309 by Eric Kanalstein.
Section 15.1 Introduction • Understand the nascent system for the protection
of LGBT rights.
Section 15.2 LGBT Rights
• Identify some potential intersections between
Section 15.3 Human Rights and Technology
human rights and technology.
Section 15.4 Effectiveness
• Appreciate the ways in which censorship can injure
human rights.
• Describe several ways in which the intellectual
property regime can impact human rights.
• Understand the connections between information
technology, privacy, and human rights.
• Describe the significance of the digital divide.
• Appreciate the implications of the effectiveness
critiques for human rights practice.
331
LESSON 15 | Contemporary Debates on Human Rights II: LGBT Rights, Technology, and Effectiveness
An HIV/AIDS test is conducted in one of Jordan’s Ministry of Health labs, Amman. 1 January 2001. UN Photo #20019 by G Pirozzi.

In our final lesson, we will continue our discussion of
contemporary debates in human rights. In Lesson 14, we
looked at how international human rights law is evolving to
deal with two very different types of non-State actors (NSAs):
transnational corporations (TNCs) and terrorist groups. In this
lesson, we will examine three final themes: the emergence

of a new special protection regime for lesbian, gay, bisexual
and transgender (LGBT) persons;1 the growing field of human videos/108/lesson-15-contemporary-
rights and technology; and the perennial question of the debates-on-human-rights-ii-lgb-rights-

technology-and-effectiveness/>.
effectiveness of human rights norms.
1) While LGBT is the most commonly used acronym in the international sphere,
students may encounter other acronyms that refer to a similar group of
rights. For example, LGBTQ (Q for “queer”) and LGBTQI (I for “intersex”)
are also sometimes used.
332
Section 15.2 LGBT Rights

Over the last several decades, there has been growing recognition of the vulnerable position of gay, lesbian,
bisexual and transgender persons, and increasing efforts to establish a special human rights regime for their protection.
LGBT persons and allies have raised awareness about sexual orientation and gender identity issues through lobbying,
education, and pride events. Activists have made claims at the regional and international levels using the anti-
discrimination and privacy provisions in the International Bill of Human Rights and other human rights instruments.
More and more countries have decriminalized homosexual activities, passed laws prohibiting discrimination against
LGBT citizens, and recognized same-sex partnerships and marriage under civil law. At the beginning of the twenty-first
century, LGBT issues are becoming increasingly established as part of the human rights agenda.
Despite the trend towards increased protection, lesbian, gay, bisexual and transgender people continue to suffer
from widespread discrimination and human rights abuses. In countries all over the world, LGBT persons have been
subject to murder, imprisonment, torture, harassment, and other abuses on account of their sexual orientation
and/or gender identification. Homosexual relationships are still criminalized in nearly 80 countries, and sanctions
can include incarceration, corporal punishment, and even the death penalty.2 Abuse and harassment by police are
common.3 In addition, actual or perceived LGBT status has been the basis for assault and discrimination by private
parties.4 Governments have all too frequently refused to intervene to protect LGBT persons from violations of their
rights, and in some places governments and State authorities themselves have been the perpetrators of abuse. The
lack of enforcement and failure to apply legal sanctions has created a culture of impunity in which abuses against
LGBT people are allowed to continue and even to escalate.
Moreover, many continue to strongly oppose rights for LGBT persons. Arguments against protecting LGBT rights
are often the product of moral or religious convictions against homosexuality, as well as of the historical influence of
British colonial laws prohibiting sodomy.5 Opponents of LGBT rights have argued that the lack of explicit protection
in international human rights treaties coupled with the right of each sovereign State to make its own laws regarding
these issues mean that international law does not, and was never meant to, include protections for persons on the
basis of their sexual orientation or gender identity.
LGBT rights in international law
As we learned in Lesson 1, perhaps the most significant driving force behind the adoption of the UDHR
was international outrage over atrocities committed during the Holocaust. Despite the fact that Nazi authorities
explicitly sought the extermination of homosexuals as part of their eugenics programme (34,000 were murdered at
Sachsenhausen concentration camp in Orianenberg alone),6 when the first set of human rights treaties was being
drafted after the Second World War, LGBT issues were not considered a priority. Not one of the major human rights
instruments explicitly mentions sexual orientation or gender identity.
2) Homosexuality is subject to the death penalty in at least six countries. Neil MacFarquhar, “In a First, Gay Rights are Pressed at the UN”, New York
Times, 18 December 2008.
3) See: Amnesty International, Stonewalled: Police Abuse and Misconduct Against Lesbian, Gay, Bisexual and Transgender People in the US, 2005;
Human Rights Watch, These Everyday Humiliations: Violence Against Lesbians, Bisexual Women, and Transgender Men in Kyrgyzstan, 2008.
4) See: Human Rights Watch, “They Want Us Exterminated”: Murder, Torture, and Sexual Orientation and Gender in Iraq, 2009 (documenting a wide-
reaching campaign of extrajudicial executions, kidnappings, and torture of gay men in Iraq).
5) See: Human Rights Watch, This Alien Legacy: The Origins of “Sodomy” Laws in British Colonialism, 2008. Available from: <http://www.hrw.org/>
6) See: Phillip Tahmindjis, “Sexuality and International Human Rights Law”, in Sexuality and Human Rights: A Global Overview, Helmut Graupner and
Phillip Tahmindjis, eds. (London: Routledge, 2005), 11.
333
The invisibility of LGBT issues in international human rights law continued largely unchallenged for many
decades. Despite appeals by LGBT rights groups, the human rights community long remained silent on the issue
of sexual orientation. Some argued that the time for championing gay rights was not yet ripe; that knowledge and
attitudes must first be allowed to shift. Others argued that promoting rights for LGBT persons would trivialize human
rights by focusing on “non-essential” issues. Sexuality became “the ‘dessert’ after the ‘meat and potatoes’ problems”
were solved; a question to be addressed “one day”, once “the ‘basic’ problems” had been dealt with.7 But as Eric
Heinze writes:
“Sexual orientation is basic. It counts among the most

determinative forces of human personality and social
organization. Those facing the entire range of human rights
violations due to their actual or imputed sexual orientation
rank on par with those facing racism, sexism, and all other
internationally recognized forms of persecution. The rights
involved are equally fundamental and equally urgent. Indeed,
the rights sought — rights of personhood, liberty, equality,
conscience, expression, and association — are largely
identical.”8
Over the last several decades, however, attitudes have shifted, and emerging practice now identifies LGBT
rights as protected by international human rights law.9 A growing number of national and international decisions
have recognized LGBT rights as a part of existing rights to privacy, equality, and non-discrimination. The Human
Rights Committee has found that “adult consensual sexual activity in private is covered by the concept of ‘privacy’”
under ICCPR article 17,10 and that ICCPR Articles 2(1) and 26, which prohibit discrimination on the basis of sex, also
forbid discrimination on the basis of sexual orientation.11 It has also criticized a number of countries for maintaining
laws that discriminate, criminalize, or fail to prevent human rights abuses against LGBT persons.12 Following this
precedent, the UN Committee on Torture, the UN Working Group on Arbitrary Detention, and the Committee on the
Rights of the Child have also criticized governments for discrimination based on sexual orientation. The Committee on
Economic, Social and Cultural Rights’ General Comment 14 clarifies that there may be no discrimination in access to
health care based on sexual orientation.13 And the Charter of Fundamental Rights of the European Union has become
the first human rights treaty to grant explicit rights to non-discrimination on the basis of “sexual orientation”.14
7) Eric Heinze, Sexual Orientation: A Human Right (Boston: Martinus Nijhoff Publishers, 1995), 21.
8) Ibid.
9) As Professor Aaron Xavier Fellmeth writes, “The acceptance within the international community that some, if not all, international human rights laws
should protect sexual minorities specifically, and unconventional sexual practices generally, is both recent and radical.” Aaron Xavier Fellmeth, “State
Regulation of Sexuality in International Human Rights Law and Theory” William and Mary Law Review, vol. 50, 2008, at 800–801.
10) Toonen v. Australia, Communication No. 488/1992, CCPR/C/50/D/488/1992, 31 March 1994, para. 8.2 (finding that a Tasmanian law criminalizing
homosexual behaviour was in violation of the right to privacy under ICCPR, Art. 17).
11) Ibid., para. 8.7 (noting that “the reference to ‘sex’ in Art. 2, para. 1 and Art. 26 is to be taken as including sexual orientation” and finding that the
State violated the applicant’s right to be free of discrimination on the basis of sex). The European Court of Human Rights has likewise interpreted the
non-discrimination and privacy provisions of the European Convention on Human Rights as including protections for LGBT persons. See: European
Court of Human Rights, Salguero da Silva Mouta, 1999, App No 33290/96, paras. 34–36 (holding that denial of parenting rights based on sexual
orientation was an unacceptable instance of discrimination); European Court of Human Rights Dudgeon v. UK, 1983, App no 7525/76, ECHR, Series
A, No. 45 (holding that a law prohibiting homosexual activity in Northern Ireland violated the applicant’s right to privacy).
12) See: CCPR/CO/83/GRC, 2005, Human Rights Committee, “Concluding Observations: Greece”, para. 19; CCPR/CO/70/TTO, 2003, Human Rights
Committee, “Concluding Observations: Trinidad and Tobago”, para. 11; CCPR/C/USA/CO/3, 2006, Human Rights Committee, “Concluding
Observations: United States of America”, para. 25.
13) UNCESCR, General Comment 14 on the Right to the Highest Attainable Standard of Health, E/C.12/2000/4, 11 August 2000, para. 18.
14) Charter of Fundamental Rights and Freedoms of the European Union, Art. 21. For further discussion of the European Charter, see Lesson 5.
334
In 2006, a group of legal experts developed the Yogyakarta Principles on the Application of International Law
in Relation to Issues of Sexual Orientation and Gender Identity (Yogyakarta Principles).15 The Yogyakarta Principles
consolidate and elaborate principles of international human rights law in the context of sexual orientation and
gender identity. They focus in particular on concerns such as extrajudicial executions, torture, access to justice,
privacy, non-discrimination, health, immigration and refugee issues, and a range of other rights. The development
of the Yogyakarta principles represented an important first step toward the development of a special regime for the
protection of LGBT rights, and they have already been cited by UN agencies,16 governments, and NGOs.17 However,
they remain only a non-binding set of expert recommendations.
The “Declaration on Sexual Orientation and Gender Identity”
A significant milestone for LGBT activists came in December 2008, when 66 countries18 (now 6719) supported
a non-binding “Declaration on Sexual Orientation and Gender Identity” presented in the United Nations General
Assembly. This declaration — the first Statement condemning human rights violations based on sexual orientation
and gender identity to be read aloud in a General Assembly plenary session — was in part based on a similar
Statement adopted by the General Assembly of the Organization of American States (OAS) in June 2008.20 Originally
intended to be a resolution, the sponsors of the Statement were ultimately forced to present the text as a Declaration
due to lack of support.21
The 13-point declaration condemns discrimination and abuse based on sexual orientation and gender identity.22
Its signatories are “disturbed that violence, harassment, discrimination, exclusion, stigmatization and prejudice are
directed against persons in all countries in the world because of sexual orientation or gender identity”, and call on all
States to “promote and protect human rights of all persons, regardless of sexual orientation and gender identity”.23
The controversial declaration prompted a backlash, however, and opponents led by the Organization of the Islamic
Conference (OIC) drafted a counterstatement that was signed by 57 countries.24 This rival Statement, which was read
out in the General Assembly by Syria, affirmed the “principles of non-discrimination and equality”, but contended
that universal human rights do not justify “the attempt to focus on the rights of certain persons”.25 Troublingly, it
also expressed “alarm” at the contents of the declaration and condemned the use of the term “sexual orientation” as
15) Available at: <www.yogyakartaprinciples.org/>.

16) See: UNHCR, “Guidance Note on Claims for Refugee Status Under the 1951 Convention Relating to Sexual Orientation and Gender Identity”, 2008.
17) Stephanie Farrior, “Human Rights Advocacy on Gender Issues”, Journal of Human Rights Practice, vol. 1, no. 1, 2009, 88.
18) United Nations, “General Assembly: 70th and 71st plenary meeting, morning session, 02:25:10–02:32:00”, 18 December 2008. Available from:
<http://www.un.org/webcast/ga2008.html>. Countries supporting the declaration were Albania, Andorra, Argentina, Armenia, Australia, Austria,
Belgium, Bolivia, Bosnia and Herzegovina, Brazil, Bulgaria, Canada, Cape Verde, Central African Republic, Chile, Colombia, Croatia, Cuba, Cyprus,
Czech Republic, Denmark, Ecuador, Estonia, Finland, France, Gabon, Georgia, Germany, Greece, Guinea-Bissau, Hungary, Iceland, Ireland, Israel,
Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Mauritius, Mexico, Montenegro, Nepal, Netherlands, New Zealand, Nicaragua,
Norway, Paraguay, Poland, Portugal, Romania, San Marino, Sao Tome and Principe, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, the
former Yugoslav Republic of Macedonia, Timor-Leste, United Kingdom, Uruguay, and Venezuela.
19) The United States has also subsequently endorsed the declaration. See: Robert Wood, US Department of State Spokesman, Press Release, “UN
Statement on ‘Human Rights, Sexual Orientation, and Gender Identity’”, 18 March 2009. Available from: <http://www.State.gov/>.
20) Human Rights, Sexual Orientation, and Gender Identity, AG/RES. 2435 (XXXVIII-O/08), adopted 3 June 2008.
21) Niel MacFarquhar, “In a First, Gay Rights are Pressed at the UN”, New York Times, 18 December 2008.
22) “Declaration on Sexual Orientation and Gender Identity".
23) Ibid.
24) United Nations, “General Assembly: 70th and 71st plenary meeting, morning session, 02:32:00–02:43:42”, 18 December 2008. Available from: <http://
www.un.org/webcast/ga2008.html>. Countries opposing the declaration, signatories to the counterstatement, were Afghanistan, Algeria, Bahrain,
Bangladesh, Benin, Brunei, Cameroon, Chad, Comoros, Cote d’Ivoire, Djibouti, Egypt, Eritrea, Ethiopia, Fiji, the Gambia, Guinea, Indonesia, Iran, Iraq,
Jordan, Kazakhstan, Kenya, Kuwait, Lebanon, Libya, Malawi, Malaysia, Maldives, Mali, Mauritania, Morocco, Niger, Nigeria, North Korea, Oman, Pakistan,
Qatar, Rwanda, Saint Lucia, Saudi Arabia, Senegal, Sierra Leone, Solomon Islands, Somalia, Sudan, Swaziland, Syria, Tajikistan, Tanzania, Togo, Tunisia,
Turkmenistan, Uganda, United Arab Emirates, Yemen, and Zimbabwe.
25) Ibid.
335
On LGBT Rights »
“Sadly, … there remain too many countries which continue to criminalize sexual relations
between consenting adults of the same sex in defiance of established human rights law.
Ironically many of these laws, like Apartheid laws that criminalized sexual relations between
consenting adults of different races, are relics of the colonial era and are increasingly
becoming recognized as anachronistic and as inconsistent both with international law and with
traditional views of dignity, inclusion and respect for all … ”
–Navanethem Pillay
from Statement to High-Level Panel Discussion on Human Rights, Sexual Orientation and
Gender Identity (2008)
promoting “the social normalization and possibly the legitimization of many deplorable acts including pedophilia”.26
Despite the controversy surrounding the declaration, advocates insist that the mere act of breaking the taboo on
discussing sexual orientation rights at the UN is a significant achievement.27
Marriage equality
The broad struggles for recognition of LGBT rights under international law encompass a number of different
issues related to non-discrimination and freedom from abuse and oppression. One issue that has been particularly
controversial over the past decade is the fight for marriage equality.
The right of consenting adults to enter into marriage is protected under UDHR Article 16: “Men and women
of full age, without any limitation due to race, nationality or religion, have a right to marry and to found a family.
They are entitled to equal rights as to marriage, during marriage and at its dissolution.”28 While this formulation
does not specifically mention the rights of LGBT persons, UN treaty bodies have interpreted Article 16 as prohibiting
discrimination. The denial of equal recognition to the civil marriages of LGBT couples therefore constitutes a denial
of their human rights.
The right to marry is closely linked with other human rights — such as the right to housing and social security —
and denial of the right to marry can negatively impact these as well. Where LGBT couples are not allowed to marry,
the consequences may include:
• Prohibiting a partner from making decisions on a partner’s behalf when she or he is sick;
• Prohibiting a partner from visiting a partner’s child in hospital;
• Preventing couples from sharing equal rights and equal responsibility for children in their care;
• Preventing a partner and children from receiving employment-based benefits and being covered by health
insurance; or
• Preventing inheritance from a deceased partner going to a surviving partner if he or she dies without a valid
will.29
26) Ibid.
27) Niel MacFarquhar, “In a First, Gay Rights are Pressed at the UN”, New York Times, 18 December 2008.
28) Universal Declaration of Human Rights, Art. 16.
29) Amnesty International, “Marriage Equality”, available from <http://www.amnestyusa.org/>.
336
Moreover, denial of the equal right to marry may legitimize discrimination and abuse based on sexual orientation
and gender identities in other areas.
International and national judicial bodies are increasingly recognizing that discrimination based on sexual
orientation and gender identity is a violation of human rights standards. As a result, there is a growing trend toward
protecting the equal rights of LGBT couples to recognition under civil law.
In 2001, The Netherlands became the first country to offer full marriage equality to LGBT couples. Since then,
Belgium (2003), Canada (2005), Norway (2009), South Africa (2006), and Spain (2005) have also recognized full
rights to marriage equality. In addition, civil unions or domestic partnerships are recognized in Andorra, the Czech
Republic, Denmark, Finland, France, Germany, Iceland, Luxembourg, New Zealand, Slovenia, Sweden, Switzerland,
the United Kingdom, and Uruguay.30
Universalism and cultural relativism
The debate over whether LGBT persons should be protected as a vulnerable group under international human
rights law foregrounds once more the universalism versus cultural relativism debate that we have encountered on
a number of prior occasions.
Countries that have resisted LGBT rights claims have often done so using the language of culture, tradition, and
religion. They have argued that cosmopolitan notions of sexual identity and sexual orientation should not or cannot
be imposed in their specific contexts; that Western ideals of individual (sexual) freedom should not trump community
values. In the post-colonial context, some southern African States have used the rhetoric of neocolonialism to
paint homosexuality as an “abhorrent Western import”, a tool of the “white colonizer” who sought to “exploit and
contaminate the colonized sexually”.31 For example, President Robert Mugabe of Zimbabwe argued at a book fair
in 1995 that homosexuality was a white man’s disease, foreign to African tradition.32 As Professor Carl F. Stychin
describes this clash of values:
“Thus, theoretically, we can often find ourselves in a cul-de-sac

of rights claims spawned by the globalization of human rights
and sexual identities. Resistance to gay rights is grounded
in communitarian claims to difference, specificity, cultural
authenticity, and history, which are also, in turn, grounded in
the language of rights of self-determination of a people. The
question is then about which self, which group, and which right
to protect. What ‘trumps’ what?”33
Communitarian relativist arguments, however, can themselves be turned in favour of LGBT rights. Activists have
pointed out that in many instances, it was British colonial laws, not pre-colonial society, that first began to criminalize
homosexuality,34 and that it was imported Christian values, not indigenous morality that stigmatized same-sex
30) Ibid.
31) Carl F. Stychin, “Same-Sex Sexualities and the Globalization of Human Rights Discourse” McGill Law Journal/Revue de droit de McGill, vol. 49, 2004,
956.
32) “Zimbabwe Leader Condemns Homosexuality”, New York Times, 2 August 1995. For an interesting analysis, see Matthew Engelke, “‘We Wondered
What Human Rights He Was Talking About’: Human Rights, Homosexuality and the Zimbabwe International Book Fair”, Critique of Anthropology, vol.
19, 1999.
33) Carl F. Stychin, 957.
34) See: Human Rights Watch, This Alien Legacy: The Origins of “Sodomy” Laws in British Colonialism.
337
desire.35 They have worked to multiply identity categories, pointing out that sexual minorities are not merely foreign
imports, but neighbours who exist within the community.
Should human rights step in to protect LGBT persons? Or should it be up to each individual State to determine
whether and how LGBT issues should be handled within their borders? How universal are human rights? Should pro-
LGBT activists be permitted to overrule religious and cultural objections in other States? Is this tantamount to neo-
colonialism? Or are the objections themselves the byproduct of a colonial past?
Section 15.3 Human Rights and Technology

Technology holds great promise for assisting in the promotion and protection of human rights. The modern
web of information and social networks can help to fulfil the right to education and allow people to participate in
cultural life. Technological advancements can improve health and well-being, can make agriculture more productive,
and prevent environmental degradation. Access to information allows individuals to learn about other societies,
compare them critically with their own, and demand change from domestic legislators, and personal communication
technologies enable free speech, freedom of association, freedom of the press, and give individuals a voice in the
political realm.36
But technology can also be used to restrict human rights. Countries can censor the information they allow people
within their borders to see, or cut off access to international media in order to prevent the release of news from
inside the State. Strict intellectual property protections can prevent access to scientific and cultural advancements.
Monitoring and distributing information about the use of technology use can infringe on individual privacy. Many
people around the world continue to lack access to information technology, leaving them increasingly marginalized
from the economic and cultural mainstream.
How has international human rights community has responded to these issues?
Human rights and censorship
With the spread of the Internet throughout the globe, people of all types, even in previously isolated countries,
have gained access to an enormous amount of information and a powerful networking tool. Information technology has
been used to transmit both good and bad content, for legal and illegal sharing, and to help as well as harm individual
users. In order to mitigate the negative aspects of the Internet boom, countries have applied their legal systems to
curtail violations of domestic law online. Indeed, most States are either currently active in or are seeking in the future
to regulate Internet content. There are many legitimate reasons for doing so — such as protecting users from fraud,
viruses, spam, and child pornography; safeguarding national security; or maintaining the structural integrity of the
network.37
Other restrictions, though, are more questionable from a human rights perspective. Governments concerned
with suppressing dissent have seen YouTube, Google, Twitter, Facebook, and other online tools become avenues
for bypassing official channels and maintaining lines of communication during political crises. One need look no
further than the events in Iran — where dissidents used Twitter, blogs, Facebook, and Farsi-language Internet sites
to organize protests against the 2009 re-election of President Ahmadinejad — or during what has become known
35) See: Stephen O. Murray and Will Roscoe, eds., Boy-Wives and Female Husbands: Studies of African Homosexualities (New York, Palgrave, 1998);
Shashank Prabhat Kumar, working paper, “Tightening the Noose Around Anti-Sodomy Laws: Global and Local Perspectives on Human Rights and
Homosexuals”, 2009.
36) See: Mary Rundle and Chris Conley, The Ethical Implications of Emerging Technologies: A Survey (Paris: UNESCO, 2007).
37) See: Robert Faris and Nart Villeneuve, “Measuring Global Internet Filtering”, in Access Denied: The Practice and Policy of Global Internet Filtering,
Ronald Deibert et al., eds. (Cambridge: The MIT Press, 2008), 9.
338
as the “Arab Spring” — in which activists have used technology to communicate with the outside world, to ensure
freedom of speech, to facilitate freedom of association, and to organize and implement demonstrations and civil
disobedience — to see the importance of modern technology to political dissidents.38
Because these tools can undermine authoritarian efforts at repression, governments seeking to maintain power
by controlling information flows have attempted to cut off or limit access to communications technology. Broad
censorship of Internet content, however, can have a profound impact on human rights. As Surya Deva argues:
“Internet censorship … degrades important human rights such

as the freedom of speech and expression, right to privacy, right
to seek, receive and impart information, freedom of the press,
right to communication, and right to protest. In some cases,
Internet citizenship might also violate the freedom of persons
and endanger the very survival of … citizens.”39
One country in which the topic of Internet censorship has come under considerable scrutiny is China. It is worthy
of note, however, that China is not the only country in the world that censors Web content for political reasons. North
Korea and Cuba have extensive censorship regimes. Several Western democratic countries, among these France and
Germany, censor Nazi and anti-Semitic Web content on political grounds.40 However, some activists have argued
that censorship in China is important from a human rights perspective. They assert that because China is the most
populous country in the world, on a numerical level, restrictions put in place within China affect a larger proportion of
the world’s population. Second, China is ruled by a largely undemocratic form of government where some restrictions
on freedom of speech, press, and information remain. China’s Internet censorship serves a legitimate function in that
it restricts harms such as fraud and child pornography. But some critics assert it is meant to stifle political dissent
by limiting access to websites critical of the Communist Party or China’s human rights record. In this regard, several
Western NGOs have protested against the transnational corporations (TNCs) — including Yahoo!, Microsoft, Skype,
and Google — for what these NGOs see as the TNC’s complicity in the censoring of online content in China.41
Since their arrival in China, these Internet companies have all operated within the legal framework of the
nation by maintaining lists of blocked words, phrases, and Web addresses, and filtering out search results that
contain references to “human rights”, “democracy”, “freedom”, “Dalai Lama”, or “Tiananmen massacre”, among
other phrases. Some have gone further than this. Yahoo!, for example, received a great deal of criticism in
2003, when it began to turn over electronic information on cyber-dissidents.42 These are developing legal topics
concerning the boundaries between one nation’s sovereign right to establish what it sees as domestic law, with what
outsiders may see as freedom of communication across international borders.
In their defence, Google, Yahoo!, Microsoft, and other Internet-based businesses have argued that they were
38) See: Brad Stone and Noam Cohen, “Social Networks Spread Defiance Online”, New York Times, 16 June 2009.
39) Surya Deva, “Corporate Complicity in Internet Censorship in China: Who Cares for the Global Compact or the Global Online Freedom Act?” George
Washington International Law Review, vol. 39, 2007, (footnotes omitted), 264.
40) See: Mary Rundle and Chris Conley, 24. Yahoo!’s refusal to comply with French censorship rules provides an interesting contrast to its behaviour
in China. In a case between Yahoo! and the French government over the issue, Yahoo!’s lawyer railed against the “French imperialism” implicit in
France’s attempt to regulate the California-based Internet company. A French judge, in response, declared Yahoo! “la plus grande enterprise de
banalisation du nazisme qui soit”. Exchange described in Anupam Chander, “Trade 2.0”, Yale Journal of International Law, vol. 34, 2009, 293.
41) See Amnesty International, Undermining Freedom of Expression in China: The Role of Yahoo!, Microsoft and Google, 2006; Human Rights Watch,
“Race to the Bottom”: Corporate Complicity in Chinese Internet Censorship, 2006.
42) Amnesty International, Undermining Freedom of Expression in China: The Role of Yahoo!, Microsoft and Google, 2006, 18. Yahoo!’s actions have
sparked at least one suit under the Alien Tort Claims Act (ACTA), a US law that allows non-US citizens to sue American residents (including companies)
for violations of international law. In that case, the wife of a Chinese dissident currently serving a 10-year sentence in China, along with several
other parties, accuses Yahoo! of complicity in torture, and seeks damages and an injunction barring Yahoo! from identifying dissidents to the Chinese
government. Miguel Helft, “Chinese Political Prisoner Sues in US Court, Saying Yahoo Helped Identify Dissidents,” New York Times, 19 April 2007.
339
required to participate in China’s censorship regime as a condition of doing business in that country.43 Failure to
comply with local laws, they argued, would have led to their expulsion from the country, and ultimately harmed the
Chinese people, who would have had less access to the Web than ever.
This argument raises a particularly interesting question with regard to the regulation of TNCs:44 how can
companies supplying Web-based services in repressive regimes comply with local laws without being complicit in
violations of human rights? Must they refuse to do business in non-democratic countries? Do business, but break
local laws? Comply with local laws, but perhaps be complicit in human rights violations?
Human rights and intellectual property
In addition to focusing on abuses of State power such as censorship, human rights activists have increasingly
turned their attention to the issue of intellectual property.
Intellectual property laws assign rights to the inventors or creators of books, music, art, and scientific discoveries;
protect the use of company names and logos; and prohibit the release of corporate secrets. The major types of
intellectual property are:
• Copyrights (for books, music, and other productions);
• Patents (for scientific processes and products);
• Trademarks (for names and logos); and
• Trade secrets (for closely held recipes or designs).
Under intellectual property law, the creator of a work of art, scientific invention, or other protected object or idea
receives a temporary monopoly that gives that person or company the sole right to produce and distribute their work
for a certain period of time. For example, the author of a human rights textbook has an intellectual property right to
its contents, and no one else can produce, distribute, or claim authorship of the book without her permission. The
purpose of granting these temporary monopolies is to spur the production of inventions and art by giving authors,
scientists, and others an economic incentive to create.
At the international level, intellectual property rights are primarily governed by the World Intellectual Property
Organization (WIPO) and the World Trade Organization (WTO), with its Agreement on Trade-Related Aspects of
Intellectual Property Rights (TRIPS). TRIPS establishes a worldwide system of intellectual property protection within
the WTO framework, and includes rules relating to all of the major intellectual property types. TRIPS was intended
to stimulate international trade and spur economic growth by promoting uniformity in intellectual property laws.
Increased conformity among intellectual property laws was supposed to alleviate the problem of TNCs being deterred
from investing in a particular country because of insufficient copyright, patent, or trademark enforcement rules.
Businesses have praised this effort at harmonization, but many human rights activists have criticized TRIPS for its
failure to pay sufficient attention to the human rights implications of intellectual property rules. As UC Law professor
Madhavi Sunder explains: “intellectual property is understood almost exclusively as being about incentives … It does
not ask who makes the goods or whether the goods are fairly distributed to all who need them”.45
43) Miguel Helft, “Chinese Political Prisoner Sues in US Court, Saying Yahoo Helped Identify Dissidents,” New York Times, 19 April 2007.
44) See Lesson 14 for a thorough discussion of efforts to hold TNCs accountable at the global level for direct and indirect violations of human rights.
45) Madhavi Sunder, “IP3”, Stanford Law Review, vol. 59, 2006, 259.
340
The problem with intellectual property from a human rights perspective is that providing temporary monopolies
on cultural and scientific property necessarily entails restricting access to protected works. When only one person or
company has the right to make, sell, distribute, or use a particular item or idea, the right-holder may drastically limit
or deny access to other individuals or companies. These limits can have beneficial effects when they provide incentives
for new research and creation, but they can have harmful effects when they restrict access to information or goods
necessary for the protection of human rights. Restricting access can impact a broad range of human rights issues,
including public health, education, food, privacy, and free expression.46 For example, patents on medicines make them
more expensive, and thus reduce access to life-saving drugs for the sick. Copyrights on art, literature, and artefacts
can make access prohibitively expensive and may thereby exclude the economically disadvantaged from participation
in the cultural life of the community.
These issues have raised the recurring theme of conflict between the global North and global South: while
industrialized nations have continued to press for new and more restrictive intellectual property rules, developing
States and consumer groups have called for greater attention to public access to knowledge and to non-proprietary
systems.47
Both incentives and access are a part of the human rights framework. The UDHR, for example, protects
authors’ “moral and material interests” in their “scientific, literary or artistic production[s]”,48 as well as the right
“to seek, receive and impart information and ideas through any media and regardless of frontiers” and the “right
to freely participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement
and its benefits”.49 The challenge for the international community has been to determine where the author’s right of
protection should end and the public’s right of access should begin.
Indigenous peoples and traditional knowledge
As we learned in Lesson 10, indigenous peoples’ rights became prominent on the UN human rights agenda
beginning in the early 1990s. As part of the struggle for self-determination, indigenous peoples argued that
international law should recognize their right to control their culture, including traditional knowledge of agricultural
techniques, medicines, biodiversity, and artistic productions. However, the intellectual property regime did not
recognize indigenous knowledge rights, either because they did not qualify as “inventions” in the traditional sense,
or because the indigenous people themselves did not have a system for recognizing individual property.50 Because
indigenous people could not claim intellectual property rights over their traditional knowledge, it has been freely
available for access and exploitation by third parties, including States, TNCs, and scholars. Occasionally, these
parties have used the knowledge they learned from indigenous groups to obtain their own patents and copyrights on
so-called “downstream” innovations derived from these earlier techniques. When they profited from these patents
and copyrights, TNCs, States, and scholars almost never shared the resulting financial or technological benefits with
the indigenous community.51 This practice, which became known as bio-prospecting, or, more forcefully, bio-piracy,
received a great deal of media and NGO attention during the past several decades, and eventually spurred some
high-level action at the UN.
46) See: Laurence R. Helfer, “Toward a Human Rights Framework for Intellectual Property”, University of California, Davis Law Review, vol. 40, 2007, 973.
47) Ibid.
48) UDHR, Art. 27.
49) UCHR, Arts. 19 and 27(1).
50) Laurence R. Helfer, “Toward a Human Rights Framework for Intellectual Property”, University of California, Davis Law Review, vol. 40, 2007, 983.
51) See: Lakshmi Sarma, “Biopiracy: Twentieth Century Imperialism in the Form of International Agreements”, Temple International and Comparative
Law Journal, vol. 13, 1999, 128–129 (describing TNC exploitation of traditional communities in India and Nicaragua); Michael M. Phillips, “Bitter
Remedies: The Search for Plants That Heal Generates International Feuding”, Wall Street Journal, 7 June 2001 (relating a conflict between a Swiss
research institution and the University of Zimbabwe over patent rights to a plant traditionally used in Zimbabwe).
341
In order to prevent bio-piracy and give indigenous peoples more control over their cultural and traditional
knowledge, human rights activists began to advocate intellectual property rights for indigenous groups. As a result,
the “Declaration on the Rights of Indigenous Peoples” includes specific protections for traditional knowledge:
“Indigenous peoples have the right to maintain, control, protect

and develop their cultural heritage, traditional knowledge and
traditional cultural expressions, as well as the manifestations of
their sciences, technologies and cultures, including human and
genetic resources, seeds, medicines, knowledge of the properties
of fauna and flora, oral traditions, literatures, designs, sports
and traditional games and visual and performing arts. They
also have the right to maintain, control, protect and develop
their intellectual property over such cultural heritage, traditional
knowledge, and traditional cultural expressions.”52
The DRIP was an important step in the international recognition of indigenous rights to cultural and traditional
knowledge. And indigenous peoples have begun to exercise their intellectual property rights affirmatively, bringing
lawsuits against national governments for misuse of traditional knowledge.53 However, some observers have argued
that expanding intellectual property protection to cover traditional knowledge may create more problems than
solutions.54 Is further limiting access to knowledge really the best way to protect indigenous peoples’ rights?
Pharmaceutical patents and the right to health
Another important challenge has been reconciling incentives and access in the area of pharmaceutical patents.
The development of new medicines and treatments is an important social goal. Pharmaceutical patents attempt to
encourage research and development by granting companies a temporary monopoly on the drugs they create, which
allows them to recoup the expenses they incurred during the development phase. When TRIPS came into effect in
1994, it extended strong protections for pharmaceutical patents across the globe. However, many human rights
groups feared that TRIPS would have a negative impact on the right to health by increasing costs and limiting access
to medications. This concern became particularly important in the context of the HIV/AIDS pandemic, and in light of
reports that pharmaceutical patents were preventing developing countries from providing antiretroviral treatment to
their citizens.55 These accusations led to several resolutions and Statements by the human rights bodies of the UN
stressing the importance of access to medicines in the context of pandemics, the impacts of intellectual property on
public health, and other topics at the intersection of TRIPS and human rights.56
52) A/61/L.67 (2007), “United Nations Declaration on the Rights of Indigenous Peoples”, Art. 31.
53) See: Phil Patton, “Trademark Battle Over Pueblo Sign”, New York Times, 13 January 2000 (describing a lawsuit by a Native American tribe against the
State of New Mexico for using the tribe’s spiritual sun symbol on the State flag without its permission); Lenore Keeshig-Tobias, “Stop Stealing Native
Stories”, in Borrowed Power: Essays on Cultural Appropriation, Bruce Ziff and Pratima V. Rao, eds. (Piscataway, NJ: Rutgers University Press, 1997),
72 (discussing actions by indigenous Canadians seeking copyrights in traditional stories).
54) See: Michael F. Brown, Who Owns Native Culture? (Cambridge: Harvard University Press, 2003) (expressing worries that indigenous intellectual
property will threaten traditions of free speech and the public domain).
55) See: Donald G. McNeil Jr., “Patents or Poverty? New Debate Over Lack of AIDS Care in Africa”, New York Times, 5 November 2001.
56) The High Commissioner for Human Rights, for example, argued that intellectual property laws must promote access to knowledge and emphasized
States’ responsibility to provide affordable medicines to fight HIV/AIDS. E/CN.4/Sub.2/2001/13, 2001, OHCHR, “Report of the High Commissioner
on the Impact of the Agreement on Trade-Related Aspects of Intellectual Property Rights on Human Rights”, paras. 10–5 and 27–58. Similarly, the
Commission on Human Rights passed a series of resolutions on “Access to Medication in the Context of Pandemics such as HIV/AIDS, Tuberculosis
and Malaria”, which urged States to ensure access to pharmaceuticals. E/CN.4/RES/2003/29, 2003, Commission on Human Rights, Res. 2003/29; E/
CN.4/RES/2001/33, 2001, Commission on Human Rights, Res. 2001/33; E/CN.4/RES/2002/32, 2002, Commission on Human Rights, Res. 2002/21.
342
A local farmer harvests sorghum produced from

seeds donated by the Food and Agriculture
Organization (FAO) through the “Improving Seeds”
project. 11 December 2006. UN Photo #134570 by
Fred Noy.
The battle over access to HIV/AIDS medications eventually culminated in the adoption of a special 2001 “Doha
Ministerial Declaration on TRIPS and Public Health” by the WTO. This ministerial declaration reiterated that countries
could be exempted from rules governing pharmaceutical patents in times of national health crises. However, the
exemption is quite limited in scope, and activists have criticized it as ineffective in addressing the needs of developing
States.57
Plant and seed patents and human rights
A third area in which intellectual property protections and human rights have come into conflict is with respect
to the patentability of seeds and plant varieties. Under TRIPS, countries must allow companies to acquire patents or
patent-like protections on seeds and plants that they have developed, for example through genetic modification.58
Supporters of plant and seed patents argue that they will encourage the development of new and innovative plant
species that are healthier and more resistant to disease and drought. Human rights activists, on the other hand,
have argued that protecting intellectual property rights in seeds and plant varieties could negatively affect the
rights to food, work, and economic security.59 Farmers who choose to plant patented seed and plant varieties must
purchase new seeds and the right to plant them every year. They are not allowed to save seed from the year before,
and can be subject to fines and lawsuits if they breach a seed contract.60 Because farmers are prohibited from saving
seed, and must re-purchase the rights to plant every year, they have little insurance to tide them over when times
are rough.61
The issue of incentives versus access pervades the intellectual property and human rights debate. And many
scholars are working to redefine the meaning of incentives and intellectual property protection.62 Where should the
line be drawn to best protect human rights and fundamental freedoms? Should the public have rights of access to
patented medicines? Should indigenous persons have protection for their intellectual property? Should plants and
seeds be patentable? These questions and others like them will play a major role in determining what the human
rights impact of new technologies will be.
57) See: Fanni (Faina) Weitsman, “TRIPS, Access to Medicines and the “North-South” Conflict After DOHA: The End or The Beginning?”, Asper Review of
International Business and Trade Law, vol. 6, 2006, 90–92.
58) Agreement on Trade-Related Aspects of Intellectual Property (1994), Art. 27(3)(b).
59) See: Vandana Shiva, Stolen Harvest: The Hijacking of the Global Food Supply (New York: South End Press, 2000).
60) See: Adam Liptak, “Saving Seeds Subjects Farmers to Suits Over Patent”, New York Times, 2 November 2003.
61) For a thorough discussion of the evolution of global intellectual property rules on plant genetic resources, see: Keith Aoki, Seed Wars: Controversies
and Cases on Plant Genetic Resources and Intellectual Property (Durham, NC: Carolina Academic Press, 2008).
62) See: Madhavi Sunder, “IP3”.
343
On the Paradox of Human Rights »

“Never have violence, inequality, exclusion, famine, and … economic oppression affected
as many human beings in the history of the earth and humanity … let us never neglect this
macroscopic fact, made up of innumerable singular sites of suffering: no degree of progress
allows one to ignore that never before, in absolute figures, have so many men, women and
children been subjugated, starved or exterminated.”
—Jacques Derrida
from Specters of Marx (1994)
Human rights and privacy
Privacy is a fundamental human right recognized in the UDHR, ICCPR, and other international and regional
human rights instruments.63 It guarantees human dignity, helps to ensure personal security, protects identity, and
promotes freedom of expression and association.
Modern technology can assist people in maintaining their personal privacy. Encryption technologies help to
ensure the confidentiality of communications. Surveillance devices assist private parties in protecting their homes and
identities. The Internet can afford anonymity for whistle-blowers and political dissidents and allow people to share their
views without fear of retribution.64
On the other hand, information and communications technologies can also be used to infringe the right to privacy.
As Valerie Steeves writes: “On the Internet, the very design of the network necessitates an open environment, where
everyone can listen in, watch, follow and pry into the online actions of their neighbours. In other words, in a wired world
there is no reasonable expectation of privacy.”65 Governments use surveillance technologies such as wiretapping and
biometrics to monitor the activities of political opponents, journalists, human rights workers, and other individuals.66 As
one writer rather dramatically put it: “What took the East German Stasi 500,000 secret informers — 10,000 of which
were needed just to transcribe citizens’ phone calls — can now be accomplished much more simply with sophisticated
new technologies.”67 States can force private companies, such as airlines and Internet search engines, to hand over
sensitive data about consumers.68 And they can conduct Orwellian monitoring of online activity in order to identify and
enable prosecution (or persecution) of suspected criminals, members of opposition movements, and ordinary citizens.69
Not only governments can use this technology. Individuals use the anonymity of the Internet to leak private
information and to harass strangers and acquaintances.70 Employers in the US and elsewhere commonly monitor
their employees’ email and online browsing at work,71 and may discriminate against prospective hires on the basis of
information found through a Google or Facebook search. TNCs and other corporations mine databases of information
to compile profiles of their clients’ personal lives, and cookies and spyware track browsing habits and transfer
information to online vendors.
63) UDHR, Art. 12;

64) Valerie Steeves, “Privacy, Free Speech and Community: Applying Human Rights to Cyberspace”, in Human Rights and the Internet, Steven Hick,
Edward F. Halpin, and Eric Hoskins, eds. (New York: St. Martin’s Press, 2000), 187.
65) Ibid., 190.
66) See discussion of wiretapping in the context of State anti-terrorism policies and abuses of individual rights in Lesson 14.
67) Steve Wright, “Political Control and the Internet”, in Human Rights and the Internet, 200.
68) See discussion above of Yahoo!’s actions in China.
69) See: Lawrence Lessig, Code: Version 2.0 (New York: Basic Books, 2006), 208–209.
70) See: Daniel J. Solove, The Future of Reputation: Gossip, Rumor, and Privacy on the Internet (New Haven: Yale University Press, 2007).
71) One survey indicated that 55 per cent of major US companies retain and review employee email communications, and 76 per cent monitor Internet
communications. American Management Association & ePolicy Institute, Electronic Monitoring & Surveillance Survey: Survey 3, 2005, 6.
344
As awareness of the dangers posed by information technology has grown, human rights advocates have become
increasingly concerned with potential violations of privacy, and have called for a coordinated international response.
Global consensus, however, has been difficult to attain. Companies have attempted to head off legislation by introducing
voluntary initiatives, such as the Global Network Initiative launched by Google, Microsoft and Yahoo in 2008.72 Regions
and nations differ greatly with respect to their approach to privacy and technology. In the US, information privacy
is protected by a mishmash of single-issue anti-abuse laws. The Asia-Pacific Economic Cooperation (APEC) released
a non-binding Privacy Framework in 2004. And the European Union has passed some of the strongest legal privacy
protections in the world, with its far-reaching 1995 Directive on Data Protection and 2006 Directive on Data Retention.73
Because its regulations are among the most stringent, the EU has become “the most influential voice in global privacy
regulation”.74
Technology, human rights, and the “digital divide”
Despite the falling costs of hardware, software, and telecommunications services, and the ever-increasing spread
of technology, there remains a wide gap between the rich and the poor in terms of access to digital information. Both
within and between States, minorities, persons with disabilities, people living in rural areas, and the economically
disadvantaged report far lower rates of Internet use. A large portion of the developing world lacks the material conditions
necessary for Internet access: a stable power supply, telephone lines, optical cables, computers, and Internet service
providers are often in short supply. Where the physical infrastructure does exist, the price of Internet access remains
unaffordable for many people. And even where both the physical and financial conditions are met, many potential users
in developing countries lack training in computer skills, or do not speak a language common on the Internet. This gap
between the technological “haves” and “have nots” is known as the digital divide.
Addressing the digital divide is important because access to technology can facilitate political participation, social
interaction, education, and economic growth. It is also critical for promoting global equality. People living on the
periphery of global society are further marginalized by their lack of access to technology. In the words of educator
and author Titus Alexander, “In a world governed by information, exclusion from information is as devastating as
exclusion from land in an agricultural age.”75 As long as this divide persists, the economic, social, and political gap
between the technological “haves” and “have nots” will continue to widen. As a result, information technology
equality has been described by some authors as the civil rights issue of the new millennium.76
Evidence suggests that the gap is slowly narrowing. While there are still more Internet users in the United States
than in any other single country, Asia as a whole already has twice as many Internet users as North America, and
is predicted to have three times as many by 2012.77 Technology companies are spending hundreds of millions of
dollars each year to expand non-English language Web content.78 Non-profit projects like One Laptop Per Child have
produced sturdy, low-budget computing equipment, and loaded it with open source software in order to make it
affordable for people in developing countries.79 New initiatives are popping up on every continent.80
72) For more information on the Global Network Initiative, see: <http://www.globalnetworkinitiative.org/>.
73) Daniel J. Solove, Marc Rotenberg, and Paul M. Schwartz, Information Privacy Law (New York: Aspen Publishers, 2006), 869.
74) Tim Wu, “The International Privacy Regime”, in Securing Privacy in the Internet Age, Anupam Chander, Lauren Gelman, and Margaret Jane Radin, eds.
(Stanford: Stanford University Press, 2008), 104.
75) Titus Alexander, Unveiling Global Apartheid: An Overview of World Politics (Cambridge, Polity Press, 1996), 195.
76) See: Patricia F. First and Yolanda Y. Hart, “Access to Cyberspace: the New Issue in Educational Justice”, Journal of Law and Education, vol. 31, 2002.
77) Daniel Sorid, “Writing the Web’s Future in Numerous Languages”, New York Times, 30 December 2008.
78) Ibid.
79) John Markoff, “At Davos, the Squabble Resumes on How to Wire the Third World”, New York Times, 29 January 2007.
80) See: Cat Contiguglia, “New Undersea Cables to Expand Broadband in Africa”, New York Times, 9 August 2009 (discussing the opening of the first of
10 new undersea fibre-optic cables that will extend broadband access to millions of people in Southern and Eastern Africa by the middle of 2010);
Stephanie Hanes, “Bridging the African digital divide — with a ‘toaster’”, Christian Science Monitor, 17 June 2008 (describing an initiative by a
South African company to install “Freedom Toasters” — machines on which the public can burn CDs of open-source software without having to pay
hefty bandwidth usage fees — in Cape Town); Sara Miller Llana, “Where has Chávez taken Venezuela?” Christian Science Monitor, 2 February 2009
(reporting on the Venezuelan leader’s efforts to extend wireless access and open-source training programmes to rural areas).
345
Writing Exercise 15: Health vs. Profits »

You are working in a small developing country that is party to all of the major international
human rights treaties. Unfortunately, this country suffers from regular and deadly outbreaks
of tuberculosis. Recently, a European company called MedCorp announced that after five
years and $10 million in research and development, it has produced an effective vaccine
against tuberculosis. However, the medicine is patented, and MedCorp has put a high price
tag on each dose. The government is too poor to purchase and supply the vaccine to its
whole population, and few individuals have the means to acquire the drug on their own. The
government has attempted to negotiate with MedCorp to purchase the vaccine in bulk at a
discount rate, but MedCorp has refused, saying it needs to recoup the costs of research and
development.
• How has the intellectual property regime impacted the right to health in this case?
• What can the government do to try to obtain the vaccines? Does it have any options?
• Would it make a difference in this case if TNCs like MedCorp could be held liable for
violations of international human rights law? Why, or why not?
• If MedCorp were required to provide the vaccine at little or no cost, what effect do you
think this would have on innovation and research to develop new drugs?
• Can you think of any way to balance the competing interests in this case?
In the coming years, these technologies — and the human rights issues that go with them — will only become
cheaper, more prevalent, and more embedded in our lifestyles. As they do, problems such as those associated with
censorship, intellectual property rules, privacy, and equal access to information technologies will become increasingly
important. Human rights advocates will need to find ways to harness the benefits of modern technology, while
protecting the rights of those that are adversely affected. The best ways to do so — whether through the use of
existing human rights instruments or the development of new mechanisms — remains to be seen.
Section 15.4 Effectiveness

We will end our final lesson with a brief look at the topic of effectiveness. Now that we have learned the ins
and outs of the international system for the protection of human rights, we must ask what is perhaps the ultimate
question from a pragmatic standpoint: does the international human rights system actually protect peoples’ human
rights?
Former American Society of International Law president Louis Henkin famously wrote: “It is probably the case
that almost all nations observe almost all principles of international law and almost all of their obligations almost all
of the time.”81 Yet, despite the fact that the past century has seen an explosion of human rights agreements that
have been signed and praised by almost every State on the planet, violations — even grievous violations — still
occur on a frequent basis. According to one estimate, over 80 per cent of States that ratified the Convention Against
81) Louis Henkin, How Nations Behave (Second Edition) (New York: Columbia University Press, 1979) (emphasis in original).
346
Torture (CAT) violated the agreement in the year of ratification.82 Costas Douzinas calls this mismatch between
rhetoric and reality the “paradox of human rights”:
“The record of human rights violations since their ringing

declarations at the end of the eighteenth century is quite
appalling … If the twentieth century is the epoch of human
rights, their triumph is, to say the least, something of a
paradox. Our age has witnessed more violations of their
principles than any of the previous and less “enlightened”
epochs. The twentieth century is the century of massacre,
genocide, ethnic cleansing, the age of the Holocaust. At no
point in human history has there been a greater gap between
the poor and the rich in the Western world and between the
north and the south globally.”
The paradox of human rights has led some to sharply criticize the hypocrisy of States that “talk the talk” of rights
but fail to “walk the walk” of protection:
“World leaders owe an apology for failing to deliver on the

promise of justice and equality in the Universal Declaration of
Human Rights, adopted 60 years ago. In the past six decades,
many governments have shown more interest in the abuse
of power or in the pursuit of political self-interest, than in
respecting the rights of those they lead. This is not to deny
that progress has been made … But for all the good, the fact
remains that justice, inequality and impunity are still the
hallmarks of our world today.”83
In fact, some scholars have found evidence that States who accede to human rights treaties are, at least some
of the time, “less likely, rather than more likely, to conform to the requirements of the treaties than countries that
do not ratify these treaties”.84 Yale Law professor Oona Hathaway argues that this may be the result of countries’
desire to express their commitment to human rights, even — and perhaps especially — when that commitment is not
matched by intent to change. “Where, as is usually the case in the area of human rights, there is little monitoring or
enforcement, combined with strong pressure to comply with norms that are embodied in treaty instruments, treaty
ratification can serve to offset, rather than enhance, pressure for real change in practices.”85
Indeed, States with bad human rights records may sign these treaties simply because making a commitment, in
and of itself, is perceived as “doing something” about the problem. The Human Rights Committee or another treaty
body may criticize the State every few years for failing to live up to its treaty obligations — but if its human rights
82) Emilia J. Powell and Jeffrey K. Staton, “Domestic Judicial Institutions and Human Rights Treaty Violation”, International Studies Quarterly, vol. 53,
2009, 149.
83) Amnesty International Report 2008, State of the World’s Human Rights, 2008.
84) Oona A. Hathaway, “Do Human Rights Treaties Make a Difference?” Yale Law Journal, vol. 111, 2002, 1989.
85) Ibid., 2020. For some theoretical and empirical responses to Hathaway, see: Ryan Goodman and Derek Jinks, “Measuring the Effects of Human Rights
Treaties”, European Journal of International Law, vol. 14, 2003 (arguing that “broad ratification of human rights treaties plays an important role in
the process of building national human rights cultures); Eric Neumayer, “Do Human Rights Treaties Improve Respect for Human Rights?” Journal of
Conflict Resolution, vol. 50, 2005 (showing that ratification of human rights treaties is correlated with improved human rights protection in democratic
countries with strong civil societies).
347
record was poor to begin with, what does it have to lose? As University of California professor Lynn Hunt wrote,
unfortunately “human rights are still easier to endorse than to enforce”.86
What should we conclude from all of this? Has human rights failed in its task?
The answer to this question depends partially on the answer to another, prior one: What exactly do we expect
from human rights? How much good do we think the international legal regime can do?
Human rights treaties may indeed prevent States from abusing individual rights in some circumstances, but
this is not all they do. Human rights treaties legitimize monitoring and enforcement actions by States and the
international community. They promote awareness and empower individuals to demand accountability from their
governments. Perhaps most importantly, human rights treaties make human rights a part of the standard discourse
of expectations and play a role in the process of building national and transnational cultures.
“The act of speaking (via treaty ratification) holds the potential

to transform the understandings and practices of not only the
State that engages in that speech (by solidifying, or perhaps
opening a door to, internalization of those norms) but also the
international community (by shaping the shared understanding
of acceptable State practice.”87
In other words, merely talking about rights can help to promote them. As Louis Henkin, wrote in 1990:
“Human rights is the idea of our time, the only political-moral

idea that has received universal acceptance. The Universal
Declaration of Human Rights, adopted by the United Nations
General Assembly in 1948, has been approved by virtually
every one of today’s 170 States …
Despite this universal consensus, as all know, the condition

of human rights differs widely among countries, and leaves
more-or-less to be desired everywhere. This may suggest
that the consensus … is at best formal, nominal, perhaps even
hypocritical, cynical. If it be so, it is nonetheless significant
that it is this idea that has commanded universal moral
acceptance … Even if it be hypocrisy, it is significant — since
hypocrisy, we know, is the homage that vice pays to virtue
— that human rights is today the single, paramount virtue
to which vice pays homage, that governments today do not
feel free to preach what they may persist in practicing. It is
significant that all States and societies have been prepared
to accept human rights as the norm, rendering deviations
abnormal, and requiring governments to conceal and deny, or
show cause, lest they stand condemned. Even if half or more of
the world lives in a State of emergency with rights suspended,
86) Lynn Hunt, Inventing Human Rights: A History (New York: W. W. Norton, 2007), 208.
87) Oona Hathaway, “Testing Conventional Wisdom”, European Journal of International Law, vol. 14, no. 1, 2003, 195.
348
that situation is conceded, indeed proclaimed, to be abnormal,

and the suspension of rights is the touchstone and measures of
abnormality.”88
Or does it? Can talking about human rights, articulating our needs in the vocabulary of rights and freedoms,
really help to achieve the goals of preventing abuse and promoting mutual respect and non-discrimination?
Some scholars have challenged the privileged position of human rights discourse in “the struggle to create
a more humane, egalitarian and democratic society”.89 This “critique of rights” argues that human rights fail as a
strategic tool; they are too vague and indeterminate to be useful in determining legal outcomes90; “rights”, as a
concept, are too ideological, too manipulable, and too likely to reify the privileges of existing social arrangements;
and their inherent instability makes them a treacherous mooring for activist ships. As Robert Gordon wrote:
“The rhetoric of rights can be dangerously double-edged …

Floor entitlements can be turned into ceilings (you’ve got
your rights, but that’s all you’ll get). Formal rights without
practical enforceable content are easily substituted for real
benefits. Anyway, the powerful can always assert counterrights
(to vested property, to differential treatment according to
‘merit’, to association with one’s own kind) to the rights of the
disadvantaged.”91
Scholars like Professor David Kennedy have even questioned whether human rights may sometimes be “more
part of the problem in today’s world than part of the solution”.92 In particular, he sets out a list of 10 criticisms, which,
as he notes, “have been around for a long time”:
• “Human Rights Occupies the Field of Emancipatory Possibility”, making alternative strategies seem less
imaginable, available, and desirable;93
• “Human Rights Views the Problem and the Solution Too Narrowly”, foregrounding certain definitions and
experiences at the expense of others;94
• “Human Rights Generalizes Too Much”, propagating overly universalized and abstract ideas about people,
politics, and society;
• “Human Rights Particularizes Too Much”, encouraging a focus on the individual and individual rights-holding
identities at the expense of more communitarian understandings;
• “Human Rights Expresses the Ideology, Ethics, Aesthetic Sensibility and Political Practice of a Particular
Western Eighteenth- through Twentieth-Century Liberalism”;95
• “Human Rights Promises More than It Can Deliver”, encouraging false hope with respect to the potential for
knowledge, justice, community, neutral intervention, and emancipation;
88) Louis Henkin, The Age of Rights (New York: Columbia University Press,1990), ix–x.
89) Duncan Kennedy and Karl Klare, “A Bibliography of Critical Legal Studies”, Yale Law Journal, vol. 2, 1984.
90) Duncan Kennedy, A Critique of Adjudication (Cambridge: Harvard University Press, 1997), 305.
91) Robert Gordon, supra note XX, 657–8.
92) David Kennedy, “The International Human Rights Movement: Part of the Problem?” European Human Rights Law Review, vol. 3, 2001, 101.
93) See: Balakrishnan Rajagopal, International Law From Below: Development, Social Movements and Third World Resistance (Cambridge: Cambridge
University Press, 2003).
94) See: Robin West, “From Choice to Reproductive Justice: De-Constitutionalizing Abortion Rights”, Yale Law Journal, vol. 118, 2009; Kevin Kolben,
“Labor Rights as Human Rights?” Virginia Journal of International Law, vol. 50, 2010.
95) See: Makau Mutua, “The Transformation of Africa: A Critique of the Rights Discourse,” in Human Rights and Diversity: International Human Rights Law
in a Global Context, Felipe Gomez Isa and Koen de Feyter, eds., 2009.
349
• “The Legal Regime of ‘Human Rights’, Taken as a Whole, Does More To Produce and Excuse Violations than
To Prevent and Remedy Them”, treating symptoms rather than structural causes, and legitimating protected
forms of violence;
• “The Human Rights Bureaucracy Is Itself Part of the Problem”, separating human rights “professionals” from
“clients”, and encouraging false solidarity, bad faith, and irresponsible intervention;
• “The Human Rights Movement Strengthens Bad International Governance”, promoting a rules and
institutions model of governance and encouraging the fantasies of clean hands and global governance; and
• “Human Rights Promotion Can Be Bad Politics in Particular Contexts”.96
These are serious issues. And ones from which we should not shy away. Any regime that gains power — as
human rights has over the past 60 years — deserves to be carefully scrutinized. Understanding the costs as well as
the benefits of human rights allows us to be more conscious of the effects of our actions, both positive and negative.
And knowing the dangers can help us avoid or minimize them.
Conclusion
Each of the issues highlighted in these final two lessons is at the forefront of an ongoing debate within the field
of human rights. All of these uncertainties may give students the impression that human rights law and practice is
confusing and unsettled. In many respects, that is indeed the case. However, it is important to remember that the
international human rights regime is a relatively new arrival on the scene. It emerged out of a heavily contested
environment, rent by diverging political, social, and economic theories, and populated by a huge variety of different
actors, including States, individuals, NGOs, and TNCs. The fact that scholars, activists, and ordinary individuals
continue to debate the specific applications of human rights should not be seen only as a cause for anxiety, but also
as the organic extension of a growing system, and as providing an opportunity for those who would step in and speak
for change.
Further reading
• Surya Deva, “Corporate Complicity in Internet Censorship in China: Who Cares for the Global Compact or
the Global Online Freedom Act?” George Washington International Law Review, vol. 39, 2007.
• Oona A. Hathaway, “Do Human Rights Treaties Make a Difference?” Yale Law Journal, vol. 111, 2002.
• Laurence R. Helfer, “Toward a Human Rights Framework for Intellectual Property”, University of California,
Davis Law Review, vol. 40, 2007.
• Human Rights Watch, This Alien Legacy: The Origins of “Sodomy” Laws in British Colonialism, 2008.
• David Kennedy, “The International Human Rights Movement: Part of the Problem?” European Human Rights
Law Review, vol. 3, 2001.
• Mary Rundle and Chris Conley, The Ethical Implications of Emerging Technologies: A Survey, 2007.
• Carl F. Stychin, “Same-Sex Sexualities and the Globalization of Human Rights Discourse”, McGill Law
Journal/Revue de droit de McGill, vol. 49, 2004.
• The Yogyakarta Principles: <www.yogyakartaprinciples.org>.
96) David Kennedy, “The International Human Rights Movement: Part of the Problem?” European Human Rights Law Review, vol. 3, 2001, 108–125.
350
1. The UN “Declaration on Sexual 5. Which of the following is NOT considered

Orientation and Gender Identity” is to be a legitimate reason for censoring
_____. Internet content?
A. a binding international human rights A. Reducing the spread of child pornography
treaty that protects LGBT persons from B. Protecting users from viruses
discrimination and abuse C. National security
B. a set of recommendations developed by D. The suppression of political opponents
experts that have no legal force
C. a new UN Charter body set up for the 6. The “paradox of human rights” is _____.
purpose of protecting LGBT persons A. The fact that the century that witnessed
D. a non-binding declaration presented by a the proliferation of human rights treaties
group of States in the UN General Assembly was also a century in which human rights
violations and atrocities were widespread
2. LGBT persons have the right to marriage B. The fact that human rights treaties are
equality in _____.
frequently signed by countries with poor
A. all countries human rights records
B. most countries C. The fact that human rights may cause
C. few countries problems by occupying the field of
D. no countries emancipatory possibility
D. The fact that since the UDHR was signed
3. What is a patent?
in 1948, there have been no more major
A. A temporary monopoly granted to the human rights tragedies
inventor of a scientific discovery that gives
the inventor the sole right to produce the 7. Which of the following international
invention for a certain period of time agreements protects the human right to
privacy on the Internet?
B. A permanent monopoly granted to the
inventor of a scientific discovery that gives A. The “International Declaration on Internet
the inventor the sole right to produce the Privacy”
invention forever B. The International Covenant on Digital Rights
C. An award given by the UN to scientists who C. The “Declaration on Human Rights and
invent particularly useful goods or processes Information Technology”
D. A temporary right to access a scientific D. There is no international agreement

discovery in the case of a national addressing human rights and privacy on the
emergency Internet
4. The gap between the information

technology “haves” and “have nots” is
known as the _____.
351
8. Countries have opposed LGBT rights 10. Which of the following best describes a
for all of the following reasons EXCEPT reason why it may be good to ask critical
_____. questions about human rights?
A. LGBT rights are against their religious beliefs A. Because human rights create injustice in all
B. LGBT persons are never harassed and are cases
not in need of protection B. Because human rights have never helped
C. LGBT rights are colonial impositions anyone
D. LGBT rights will open the door to pedophilia C. Because human rights do not really exist,
and this must be proven
9. The Yogyakarta Principles on the D. Because understanding the limitations of
Application of International Law in human rights helps us to avoid problems
Relation to Issues of Sexual Orientation
and Gender Identity were developed in
what year?
A. 1948
B. 1966
C. 1971
D. 2006
Answer Key »
1. D
2. C
3. A
4. Digital Divide
5. D
6. A
7. D
8. B
9. D
10. D
352
THE ROLE OF UNITED NATIONS POLICE IN PEACE OPERATIONS
Appendix A: List of Acronyms
Acronym Meaning
AICHR ASEAN Intergovernmental Commission on Human Rights
AIDS Acquired Immune Deficiency Syndrome
APEC Asia Pacific Economic Cooperation
ASEAN Association of South-East Asian Nations
ATCA Alien Tort Claims Act
AU African Union
CAT Convention against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment
CEDAW Convention on the Elimination of All Forms of Discrimination Against Women
CERD International Convention on the Elimination of All Forms of Racial

Discrimination
CIS Commonwealth of Independent States
CPT Committee for the Prevention of Torture
CRC Convention on the Rights of the Child
CRPD Convention on the Rights of Persons with Disabilities
CSCE Conference on Security and Cooperation in Europe
CSW Commission on the Status of Women
CTC Counter-Terrorism Committee
DDR Disarmament, demilitarization, and reintegration
DESA Department of Economic and Social Affairs
DRIP Declaration on the Rights of Indigenous Peoples
ECCC Extraordinary Chambers in the Courts of Cambodia
ECHR European Convention on Human Rights
ECtHR European Court of Human Rights
ECOSOC United Nations Economic and Social Council
ETA Euskadi Ta Askatasuna
EU European Union
FAO Food and Agriculture Association
FARC Revolutionary Armed Forces of Colombia
GDP Gross Domestic Product
HIV Human Immunodeficiency Virus
353
HRC Human Rights Council
IACtHR Inter-American Court of Human Rights
IASC Inter-Agency Standing Committee
ICC International Criminal Court
ICCPR International Covenant on Civil and Political Rights
ICESCR International Covenant on Economic, Social and Cultural Rights
ICISS International Commission on Intervention and State Sovereignty
ICJ International Court of Justice
ICL International Criminal Law
ICRC International Committee of the Red Cross
ICRMW International Convention on the Rights of All Migrant Workers and their
Families
ICTR International Criminal Tribunal for Rwanda
ICTY International Criminal Tribunal for the Former Yugoslavia
IDD Inter-Agency Internal Displacement Division
IDP Internally Displaced Person
IHL International Humanitarian Law
ILO International Labour Organization
IMT International Military Tribunal
IMTFE International Military Tribunal for the Far East
IOM International Organization for Migration
LGBT Lesbian, Gay, Bisexual and Transgender Persons
LTTE Liberation Tigers of Tamil Eelam
MDGs Millennium Development Goals
MNC Multinational Corporation
NATO North Atlantic Treaty Organization
NGO Non-Governmental Organization
NHRI National Human Rights Institution
NIEO New International Economic Order
NSA Non-State Actor
OAS Organization of American States
OAU Organization of African Unity
354
OCHA Office for the Coordination of Humanitarian Affairs
OECD Organization for Economic Cooperation and Development
OHCHR Office of the High Commissioner for Human Rights
OIC Organization of the Islamic Conference
OPCAT Optional Protocol to the Convention Against Torture
OSCE Organization for Security and Cooperation in Europe
PFII Permanent Forum on Indigenous Issues
PLO Palestine Liberation Organization
POW Prisoner of War
R2P Responsibility to Protect
RUF Revolutionary United Front in Sierra Leone
SCSL Special Court for Sierra Leone
SG Secretary-General of the United Nations
STL Special Tribunal for Lebanon
TNC Transnational Corporation
TRIPS Agreement on Trade-Related Aspects of Intellectual Property Rights
UDHR Universal Declaration of Human Rights
UN United Nations
UN Women United Nations Entity for Gender Equality and the Empowerment of Women
UN-Habitat United Nations Human Settlements Programme
UNAIDS Joint United Nations Programme on HIV/AIDS
UNDP United Nations Development Programme
UNESCO United Nations Educational, Scientific and Cultural Organization
UNFPA United Nations Population Fund
UNHCR United Nations High Commissioner for Refugees
UNICEF United Nations Children’s Fund
UNMAS United Nations Mine Action
UPR Universal Periodic Review
WHO World Health Organization
WIPO World Intellectual Property Organization
WTO World Trade Organization
355
Appendix B: Current Peacekeeping Missions
UNITED NATIONS PEACEKEEPING OPERATIONS

MINUSMA MINURSO UNAMID UNMIK UNFICYP UNIFIL UNMOGIP
Mali Western Sahara Darfur Kosovo Cyprus Lebanon India and Pakistan
MINUJUSTH MINUSCA MONUSCO UNMISS UNISFA UNTSO UNDOF

Haiti Central African Republic Dem. Rep. of the Congo South Sudan Abyei Middle East Syria
Map No. 4259 Rev. 25 (E) UNITED NATIONS Department of Field Support
April 2018 Geospatial Information Section (formerly Cartographic Section)
UN Peacekeeping Map from the UN Cartographic Section, October 2017: <www.un.org/Depts/Cartographic/map/dpko/P_K_O.pdf>.

MINURSO United Nations Mission for the Referendum in Western Sahara established: 1991
MINUSCA United Nations Multidimensional Integrated Stabilization Mission in the established: 2014
Central African Republic
MINUSMA» Looking for statistics
United Nations Multidimensionalor otherStabilization
Integrated data about Mission in Mali established: 2013
MINUJUSTHpeacekeeping around the world today? Visit
United Nations Mission for Justice Support in Haiti established: 2017
MONUSCO United Nations Organization Stabilization Mission in the Dem. Republic of the Congo established: 2010
UNAMID theAfrican
UN Union-United
Peacekeeping resource
Nations Hybrid Operationpage
in Darfurfor the established: 2007
UNDOF most up-to-date
United information
Nations Disengagement about current
Observer Force established: 1974
UNFICYP United Nations Peacekeeping Force in Cyprus established: 1964
UNIFIL peacekeeping operations
United Nations Interim Force in Lebanon and other UN established: 1978
UNISFA United Nations Interim Security Force for Abyei established: 2011
missions:
UNMIK United Nations Interim Administration Mission in Kosovo established: 1999
UNMISS <https://peacekeeping.un.org/en/where-we-
United Nations Mission in South Sudan established: 2011
UNMOGIP United Nations Military Observer Group in India and Pakistan established: 1949
operate>.
UNTSO United Nations Truce Supervision Orginization established: 1984
356
About the Author: Jessica C. Lawrence
Jessica C. Lawrence is currently a Ph.D. candidate at the University of Amsterdam where she participates in the
faculty research programme called “Boundaries of Law.” The programme re-examines the established foundations
of transnational law as they are being challenged by global governance and globalization, and asks, among other
core questions, the following: Is sovereignty still a valid concept in a globalizing world in which power seems to be
dispersed? and To what extent can the legal regimes beyond the state be considered legitimate? She also conducts
research in a project called “Minding Other States’ Business: Free Trade, Fair Trade and Clean Trade in the EU.”
In 2003, she graduated from American University in Washington, D.C., earning two degrees: a BA in International
Development and a BA in Environmental Policy. In 2007, she earned her JD from the University of Georgia School of
Law in Athens, Ga.
She has held researcher/analyst posts for several organizations, including the European Environmental Bureau,
the Pew Initiative on Food and Biotechnology, the South Asia Human Rights Documentation Centre, and the New
Zealand Human Rights Commission, and served as a consultant and visiting professor for the University of Peace in
2009–2010.
In addition to international human rights law, her areas of expertise include international trade law, European
internal market law, free movement of goods, and international environmental law.
357
Instructions for the End-of-Course Examination
Format and Material
The End-of-Course Examination is a multiple-choice exam that is accessed from the Online Classroom. Most
exams have 50 questions. Each question gives the student four choices (A, B, C, and D), and only one is the correct
answer. The exam covers material from all lessons of the course and may also include information found in the
annexes and appendices. Video content will not be tested.
» Access the exam from your Online Classroom

by visiting <www.peaceopstraining.org/users/
courses/> and clicking the title to this course.
Once you arrive at the course page, click the red
“Start Exam” button.
Time Limit
There is no time limit for the exam. This allows the student to read and study the questions carefully and to
consult the course text. Furthermore, if the student cannot complete the exam in one sitting, he or she may save the
exam and come back to it without being graded. The “Save” button is located at the bottom of the exam, next to the
“Submit my answers” button. Clicking on the “Submit my answers” button will end the exam.
Passing Grade
To pass the exam, a score of 75 per cent or better is required. An electronic Certificate of Completion will be
awarded to those who have passed the exam. A score of less than 75 per cent is a failing grade, and students who
have received a failing grade will be provided with a second, alternate version of the exam, which may also be
completed without a time limit. Students who pass the second exam will be awarded a Certificate of Completion.
Continue your POTI training experience »

• Visit <www.peaceopstraining.org/courses/> for a list of all current courses.
• If a particular category of study interests you, such as Human Rights,

Logistics, or Military Studies, consider the POST Certificate programme
available in six areas of specialization. See the requirements at
<www.peaceopstraining.org/specialized-training-certificates/>.
• Stay connected with POTI by visiting our community page and engaging
with other students through social media and sharing photos from your
mission. Visit <www.peaceopstraining.org/community> for more. Once you
pass your exam, see your name featured on the Honour Roll as well.
358

Derechos Humanos HR1 - en - 121203

Uploaded by

Copyright:

Available Formats

You might also like

Derechos Humanos HR1 - en - 121203

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Derechos Humanos HR1 - en - 121203

Uploaded by

Copyright:

Available Formats

Human Rights

UPEACE Course Coordinator

Cover Photo: UN Photo #428063 by Olivier

UPEACE Course Coordinator

Peace Operations Training Institute

First edition: February 2012 by Jessica C. Lawrence, J.D.

Method of Study xi

History and Philosophical Foundations of Human Rights 12

Section 1.1 Human Rights: Conceptual and Philosophical Foundations 13

Annex I: Universal Declaration of Human Rights 30

Developing Legally Binding Human Rights Treaties I: The ICCPR

Section 2.1 Introduction 39

Developing Legally Binding Human Rights Treaties II: The

PEACE OPERATIONS TRAINING INSTITUTE

Section 3.1 Introduction 64

Section 3.2 Economic, Social, and Cultural Rights 65

Section 3.4 Theoretical and Practical Issues 75

Enforcement Mechanisms I: the UN System 87

Section 4.1 Introduction 88

Section 4.2 Charter Bodies 91

Section 4.3 Treaty Bodies 100

Enforcement Mechanisms II: Regional and Other Actors 107

Section 5.1 Introduction 108

Section 5.2 The European System 110

Section 5.3 The Inter-American System 115

Section 5.4 The African System 119

Section 5.5 Other Regional Efforts 123

Section 5.6 Other Actors 126

Collective Rights I: Theoretical Perspectives and the Right to

Section 6.1 Introduction 134

Section 6.2 Theoretical Perspectives 136

Section 6.3 The Right to Self-Determination 140

Collective Rights II: The Rights to Development, Environment,

Section 7.1 Introduction 152

Section 7.2 The Right to Development 153

PEACE OPERATIONS TRAINING INSTITUTE

Section 7.3 The Right to a Healthy Environment 160

Section 7.4 The Right to Peace 166

Human Rights of Vulnerable Persons and Groups I: Women’s

Section 8.1 Introduction 176

Section 8.2 Theoretical Perspectives 178

Section 8.3 Women’s Rights 182

Human Rights of Vulnerable Persons and Groups II: Children's

Section 9.1 Introduction 204

Section 9.2 Children’s Rights 205

Section 9.3 The Rights of Persons with Disabilities 211

Annex IV: Convention on the Rights of Persons with Disabilities 219

Human Rights of Vulnerable Persons and Groups III: The

Section 10.1 Introduction 228

Section 10.3 Indigenous Peoples’ Rights 235

Section 10.4 The Protection of Refugees 241

Human Rights During Armed Conflict I: Jus ad Bellum and the

Section 11.1 Introduction 252

Section 11.2 Jus ad Bellum 257

Section 11.3 The Responsibility to Protect 262

PEACE OPERATIONS TRAINING INSTITUTE

Human Rights During Armed Conflict II: International

Section 12.1 Introduction 270