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Riccardo Pisillo Mazzeschi
International
Human Rights
Law
Theory and Practice
International Human Rights Law
Riccardo Pisillo Mazzeschi
International Human
Rights Law
Theory and Practice
Riccardo Pisillo Mazzeschi
Department of Political and International Sciences
University of Siena
Siena, Italy
Revised and updated translation of the Italian language edition: Diritto internazionale dei diritti umani -
Teoria e prassi. Ristampa emendata by Riccardo Pisillo Mazzeschi, # G. Giappichelli Editore 2020.
Published by G. Giappichelli Editore. All Rights Reserved.
This Springer imprint is published by the registered company Springer Nature Switzerland AG.
The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland
To my little grandsons Marco and Alessandro,
with the wish that they will grow up in a
society more open to the universal values of
equality and fraternity
Preface
This book has a didactic purpose, for the students of the specialized courses of
international protection of human rights; but also of consultation for scholars and
practitioners in the field of international law and human rights. I have tried to provide
a sufficiently complete and systematic overview of the subject, as I think is necessary
for a textbook, even though the field of international human rights law has now taken
on such a large dimension that it is difficult to deal with it in a small volume. The
book seeks to give an account of the most relevant practice and case-law, but also to
deal with theoretical issues. Hence its title, which deliberately recalls the work of an
authoritative scholar of international law.1
One might wonder what the reasons that led me to write a new book on human
rights are, given the large number of manuals already published in recent decades,
especially in English and French. There are, in summary, three reasons. The first
consists in my desire to give a different approach and structure to this volume, trying
to reconcile its didactic and scientific purposes. In fact, many of the existing
textbooks, and, in particular, those of Anglo-American doctrine, privileging the
didactic and expositive purpose of the subject, focus on the description of the
institutional part of the international protection of human rights (conventional
systems, organs, and procedures) or deal only with some human rights. In my
opinion, this structural choice is not convincing. In fact, even if one wanted to
place oneself in a predominantly didactic perspective, it must be considered that
students do not need to receive much information and detailed descriptions, which
they can easily find on the Internet and which they soon tend to forget, but rather to
reflect on concepts, theories, and systematic framings. Only these reflections are
formative for young jurists and help to understand how the law works, including
international human rights law. In other words, for me, there is no conflict, but rather
a necessary synergy, between the educational and scientific purpose of a textbook.
Of course, this does not mean that my intention to combine theory, practice, and a
certain completeness of the subject in the book has really succeeded.
The second, even more important, reason derives from my conviction that
international human rights law should not be studied (as occurs in almost all
manuals) as a specific legal regime, separate and autonomous from the overall
1
O. Schachter, International Law in Theory and Practice (1991).
vii
viii Preface
system of international law; but as a regime that is fully integrated into the interna-
tional legal order, which follows the inspiring principles of the latter, and which has,
in turn, had a strong impact on the structure and content of contemporary interna-
tional law. This book has as its dominant theme the mutual relationship between
international human rights law and general international law. Following this
approach, I have chosen to devote little space to the institutional aspects (Part IV)
and to deepen instead the themes of the impact of human rights on the entire
international order (Part I), on the sources (Part II), on obligations (Part III), as
well as the part of the book that deals with the content of “fundamental” human
rights (Part V), without neglecting other rights (Part VI). I am aware that this choice
may have had some negative effects on the homogeneity of the book, since it has led
to a deeper study of some subjects and a more concise treatment of others.
Finally, the third motivation for this book is linked to my general conception of
international law, from the point of view of the theory of law. The volume is the
result of reflections I have been doing for a couple of decades on human rights; but
which are linked to studies on more general themes of international law, which have
led me to follow a fil rouge that has developed over time and which has come to be
linked to a certain conception on the deontological foundation of law. This scientific
path, influenced by my growing attention to human rights, has led me to a critical
attitude towards the theory of formal positivism (while recognizing the rigor of its
method) and to cultivate an interest in “anti-formalist” theories (e.g., the modern
normative theory of law), which recover an openness to the ethical-political values
of law. From this general approach also derived the idea that it is intellectually
stimulating to study not only the law of rules and “what the law is,” but also the law
of principles and values and the direction towards which the law is moving;2 and this
especially in an area, such as international law, which has recently undergone strong
processes of change. In fact, in my scientific path, I have proposed attempts to
systematically relocate some classical institutions (breach of treaties, fault and due
diligence, exhaustion of domestic remedies) and attempts to revisit, in a key that I
believe is more modern, other general issues (theory of international obligations,
State responsibility for violation of human rights, international subjectivity, new role
of the individual, general principles of international law, international immunities,
access to justice). Readers will note that many of these topics have inevitably ended
up, albeit incidentally, in this book as well.3
I would like to thank Alessandra Viviani, Federico Lenzerini, Eugenio Carli, and
Federico Travan for reading the book or parts of it and for their useful comments. Of
course, I am solely responsible for any errors and omissions.
2
Cf. A. Cassese, Self-Determination of Peoples. A Legal Reappraisal (1995), p. 3.
3
I hope readers will forgive me if, in an attempt to provide further references on these topics, I have
often cited my earlier writings.
Preface ix
Advisory Notice
xi
xii Contents
4 Treaties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
4.1 Possible Reasons for the “Specialty” of Human Rights
Treaties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
4.1.1 Non-Reciprocity and Obligations Erga Omnes
Partes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
4.1.2 Theory on the “Objective” Nature of Conventional
Human Rights Obligations. Criticism . . . . . . . . . . . . . 68
4.1.3 Theory on the Peremptory Character of Human
Rights Norms. Criticism . . . . . . . . . . . . . . . . . . . . . . . 69
4.1.4 Theory on the “Constitutional” Nature of Human
Rights Treaties. Criticism . . . . . . . . . . . . . . . . . . . . . . 70
4.1.5 Individuals as Addressees of Human Rights Treaties . . . 72
4.1.6 Provisional Conclusions: Impact of the Principles
of Primacy of the Individual and Universality of
Human Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
4.2 Effects of the Two Principles on the Stability and Continuity
of the Treaties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
4.2.1 Reservations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
4.2.2 State Succession in Treaties . . . . . . . . . . . . . . . . . . . . 76
4.2.3 Causes of Treaty Termination . . . . . . . . . . . . . . . . . . . 78
4.2.3.1 Material Breach of Treaty . . . . . . . . . . . . . 78
4.2.3.2 Effects of Armed Conflict . . . . . . . . . . . . . 79
4.2.3.3 Withdrawal Not Provided for in the
Treaty . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
4.3 Effects of the Two Guiding Principles on Treaty Interpretation . . . 81
4.3.1 Dynamic and Evolutionary Interpretation . . . . . . . . . . 82
4.3.2 “Autonomous” Legal Concepts . . . . . . . . . . . . . . . . . . 83
4.3.3 Positive Obligations and “Positive Procedural”
Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
4.3.4 Theory of “Horizontal Effects” of Human Rights . . . . . 88
4.4 Limits to the Two Principles: The Prerogatives of States . . . . . . 89
4.4.1 Subsidiarity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
4.4.1.1 Exhaustion of Domestic Remedies . . . . . . . 91
4.4.1.2 Right to an Effective Domestic Remedy . . . 94
4.4.2 Restriction Clauses . . . . . . . . . . . . . . . . . . . . . . . . . . 95
4.4.3 Derogation Clauses . . . . . . . . . . . . . . . . . . . . . . . . . . 97
4.4.4 State Margin of Appreciation . . . . . . . . . . . . . . . . . . . 105
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
5 Sources Envisaged in International Treaties . . . . . . . . . . . . . . . . . . 111
5.1 Binding Decisions of International Organizations . . . . . . . . . . . 111
5.1.1 Decisions of the UN Security Council . . . . . . . . . . . . . 112
5.1.2 Secondary Legislation of the European Union . . . . . . . 114
5.2 Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
xiv Contents
1. Websites . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 503
2. Table of Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 505
Permanent Court of International Justice (PCIJ) . . . . . . . . . . . . . . . . . 505
International Court of Justice (ICJ) . . . . . . . . . . . . . . . . . . . . . . . . . . 505
Iran-United States Claims Tribunal (IUSCT) . . . . . . . . . . . . . . . . . . . 507
Other Arbitration Tribunals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 507
Human Rights Committee (HRCtee) . . . . . . . . . . . . . . . . . . . . . . . . . 507
Committee Against Torture (CteeAT) . . . . . . . . . . . . . . . . . . . . . . . . 509
Committee on the Elimination of Discrimination Against Women
(CteeEDAW) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 509
Committee on the Elimination of Racial Discrimination (CteeERD) . . . 509
European Commission of Human Rights (ECmHR) . . . . . . . . . . . . . . 510
European Court of Human Rights (ECtHR) . . . . . . . . . . . . . . . . . . . . 510
European Committee of Social Rights (ECteeSR) . . . . . . . . . . . . . . . . 518
European Court of Justice (ECJ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 518
Court of First Instance (CFI) (now European General Court) (EGC)) . . 518
Inter-American Commission on Human Rights (IACmHR) . . . . . . . . . 519
Inter-American Court of Human Rights (IACtHR) . . . . . . . . . . . . . . . 519
African Commission on Human and Peoples’ Rights (ACmHPR) . . . . 521
African Court on Human and Peoples’ Rights (ACtHPR) . . . . . . . . . . 522
ECOWAS Community Court of Justice (CCJ) . . . . . . . . . . . . . . . . . . 522
International Military Tribunal of Nuremberg (IMT) . . . . . . . . . . . . . . 522
International Criminal Tribunal for the Former Yugoslavia (ICTY) . . . 522
International Criminal Tribunal for Rwanda (ICTR) . . . . . . . . . . . . . . 523
Special Tribunal for Lebanon (STL) . . . . . . . . . . . . . . . . . . . . . . . . . 523
National Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 524
Canada . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 524
France . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 524
Germany . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 524
Greece . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 524
xxiv Contents
Italy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 524
Netherlands . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 525
Poland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 525
United Kingdom . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 526
United States of America . . . . . . . . . . . . . . . . . . . . . . . . . . . . 526
3. Table of Treaty-Bodies’ Comments and Recommendations . . . . . . . . 527
Human Rights Committee (HRCtee) . . . . . . . . . . . . . . . . . . . . . . . . . 527
Committee on Economic, Social and Cultural Rights (CteeESCR) . . . . 528
Committee on the Elimination of Racial Discrimination (CteeERD) . . . 529
Recommendations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 529
Committee Against Torture (CteeAT) . . . . . . . . . . . . . . . . . . . . . . . . 529
General Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 529
Selective Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 531
Abbreviations
Acronyms
xxv
xxvi Abbreviations
The notion of “human rights” is apparently simple; but it is actually quite complex.
In fact, these rights have been, in the history of juridical philosophy, gradually
defined with different terms (natural, innate, original, moral, fundamental rights);
their historical origin is situated at different times; their legal foundation has been
explained from varying perspectives by naturalism, positivism, juridical realism,
institutional law theory; and the very notion of “human rights” has progressively
widened.
According to some authors,1 human rights are those freedoms, immunities and
benefits which, in conformity with accepted contemporary values, all human beings
should be able to demand, as real rights, from the society in which they live.
According to others, human rights are those that have the nature of fundamental
and essential rights of the person and are therefore imprescriptible, inalienable,
indispensable and universal.2 According to others, human rights constitute an
impassable minimum for every human being that the law must protect at any cost.3
These definitions are rather similar; however, they do not seem sufficiently
precise to clearly distinguish human rights from other “ordinary” rights. Therefore,
the problem of the legal basis of human rights opens up, especially from the point of
view of the international legal order.
From one point of view, a certain right can be considered a “human right” when it
corresponds to human nature, that is, to the reason and will typical of the human
species. This view has a basic naturalistic law approach and has the disadvantage of
leaving a margin of subjectivity in finding a definition of “human nature” that is
universally accepted in the contemporary multicultural world.
1
Henkin (1995), p. 886.
2
Zanghì (2013), p. 5.
3
Focarelli (2008), p. 342.
Other authors have supported the theory of the “self-evidence” of human rights.
They would be so obvious and so immediate that they would not require a rational
justification and legal basis. But even this view lends itself to different subjective
interpretations by different groups of States with different traditions, religions and
cultures.
The third theory, in my view the most convincing, is that human rights are based
simply on consensus. In other words, human rights are those rights that are
recognized as such in a given legal system on the basis of a general consensus of
the subjects of that system. In the international legal order it will be the consensus of
the international community to determine which rights can be defined as “interna-
tional human rights”. A different problem (the answer to which is more restrictive) is
to ascertain which human rights are truly universal because they are well established
in general international law.4
To this third theory another concept, in my opinion, can be added; namely that
human rights are, of all rights, those that best express the essential and noblest
function of law: that of a legitimate instrument in the fight against force, power and
abuse. In international human rights, this function is realized above all in the
opposition between the person and the State.5
If one wants to go back to ancient times, one can argue that the idea of certain human
rights can be found in the Bible, in the Hammurabi Code, in the laws of Greek cities
like Athens, as well as in some precepts of various religions or philosophies, such as
Buddhism, Confucianism and Hinduism.
However, a more interesting development occurs many centuries later with some
English national documents, such as the famous Magna Charta Libertatum of 1215,
the Habeas Corpus Act of 1679 and the Bill of Rights of 1689. In modern times,
some American declarations are of great importance, such as the Virginia Declara-
tion of Rights of June 12, 1776,6 the American Declaration of Independence of July
4, 1776,7 and the Bill of Rights adopted in 1789 and ratified in 1791.8 Finally,
4
See below, Sects. 1.4 and 13.1–13.3.
5
This contrast evokes, mutatis mutandis, the image of the State as Leviathan. See Hobbes (1651).
6
Art. 1: “[. . .] all men are by nature equally free and independent, and have certain inherent rights
[. . .]”.
7
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by
their Creator with certain inalienable Rights, that among these are Life, Liberty and the pursuit of
Happiness . . .”.
8
These are ten amendments to the US Constitution of 1787.
1.2 Historical Precedents 5
French documents include the Declaration of Human and Citizen’s Rights of 1789.9
Subsequently, many States followed the examples of the USA and France in their
constitutional charters.10
However, it should be noted that, in these instruments, beyond the universalistic
language, human rights are essentially understood as citizens’ rights; and that they
are relevant to domestic constitutional law and not to international law. The idea that
a State can assert the human rights of persons against another State, and especially
against the State of nationality of the person, is in fact extraneous. In other words,
human rights had no impact on international relations between States in the eigh-
teenth and nineteenth centuries and little impact during the first half of the twentieth
century.
According to the concept of classical international law, predominant until the middle
of the twentieth century, individuals were not subjects of international law, their role
was essentially irrelevant and they were submitted to the exclusive power of
government of the State of which they were “subjects”. International law formally
regulated only relations between States. Also from a substantive point of view,
international law dealt almost exclusively with interstate relations and therefore
the way in which the State treated its subjects was a matter of “domestic jurisdiction”
of that State. In reality, certain limits to the territorial sovereignty of States already
existed in classical international law; but individuals derived only an indirect benefit
from such limits and not true rights under international law. Let us look briefly at
these limits.
Traditional international law has recognized since the early centuries of its develop-
ment that States have an obligation to protect aliens who are on their territory or
under their jurisdiction from offences relating to their person or property, through
preventive and repressive measures that conform to certain minimum standards of
civilization and justice. But this obligation, of a customary nature, was conceived
only as operating between the territorial State and the State of nationality of the alien;
the individual victim was considered only as a possible “de facto beneficiary” of this
obligation. Therefore, when the foreign individual suffered a violation of this
9
Art. 1: “Men are born and remain free and equal in rights. Social distinctions can only be based on
common utility”; Art. 2: “The aim of every political association is the preservation of natural and
inscribed human rights. These rights are freedom, property, security and resistance to oppression”.
10
See, for example, The Netherlands (1798), Sweden (1809), Spain (1812), Norway (1814),
Belgium (1831), the Kingdom of Sardinia (1848), Denmark (1849), Prussia (1850).
6 1 The Foundation and Historical Development of International Human Rights
obligation of protection by the territorial State, only the nation-State of the individual
had the right to take international action against the offending State, according to the
rules on diplomatic protection and those on international responsibility of States.
In essence, the individual was an “object” and not a “subject” of international law;
and he did not even have a true right to receive from his own nation-State the
reparation that the latter might have been able to obtain from the offending State.
In the nineteenth century, the strictly interstate conception of international law was
largely dominant; but there was the possibility, albeit in rare and isolated cases, that a
State, through a bilateral or multilateral treaty, would assume obligations to grant
certain rights to individuals. In this way the treatment of individuals became the
subject of an international obligation between the States Parties and went beyond the
sphere of the “domestic jurisdiction” of those States.12 This process of “internation-
alization” of individual interests already had its start with the Congress of Vienna
of 1815.
The Congress adopted a Declaration on the Slave Trade, which recommended its
abolition to States, affirming that slavery was incompatible with the principles of
humanity and international morality. Later, this objective was included in a series of
bilateral treaties, in a multilateral treaty of 1842 between European and Latin-
American States, in the Berlin Congo Act of 1885 and in the General Act of the
1890 Brussels Conference on the abolition of slavery. In the twentieth century, as we
11
Buergenthal et al. (2004), p. 3.
12
Buergenthal et al. (2004), p. 6.
1.2 Historical Precedents 7
shall see,13 the subject was taken up in the important 1926 Slavery Convention of the
League of Nations and other subsequent treaties.
Similar developments occurred with regard to the protection of religious
minorities. As early as the seventeenth century, a number of treaties contained
provisions protecting religious minorities. Thus, the Congress of Vienna imposed
an obligation on some States to guarantee non-discrimination of religious minorities
and the freedom to practice the Catholic religion in certain territories. Later, in the
Treaty of Berlin of 1878 a special legal status was granted to certain religious
groups.14
International humanitarian law (originally called jus in bello) deals with the protec-
tion of the victims of armed conflict and the prohibition of certain means and
methods of warfare considered inhuman, with the aim of “humanizing” armed
conflict as far as possible through legal rules. Its origin is much older than interna-
tional human rights law, although at present these two legal fields tend to be closer
and complementary.
The birth of modern international humanitarian law dates back to the
mid-nineteenth century, when the Swiss Henry Dunant proposed measures for the
protection of war victims, which led to the creation of the International Committee of
the Red Cross and the drafting of the 1864 Geneva Convention for the Amelioration
of the Condition of the Wounded in Armies in the Field.15 In the meantime, in 1863,
US President Lincoln had issued the so-called “Lieber Code”, which established a
set of rules and instructions for military operations during the American Civil War.
The next step in this development process was the St. Petersburg Declaration of
1868, which prohibited the use of certain weapons and in whose Preamble it was
solemnly declared that “the only legitimate purpose that States should pursue during
the war is to weaken the military forces of the enemy”.
Subsequent developments, of great importance, were the Hague Conventions of
1899 and those of 1907. Particularly significant is the 1907 Hague Convention
(IV) respecting the Laws and Customs of War on Land, whose Preamble contains
the famous “Martens Clause”, according to which, in the absence of a specific legal
rule applicable to the case, 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.
13
See below, Sect. 16.1.
14
Buergenthal et al. (2004), p. 7.
15
Kälin and Künzli (2009), p. 11.
8 1 The Foundation and Historical Development of International Human Rights
It should be noted that these first norms of international humanitarian law were
based on the principle of reciprocity and were structurally conceived within the
framework of traditional international law of an interstate nature; and therefore did
not attribute real rights to individuals under international law. However, most of
these norms were, in fact, designed to protect individual interests as well, and thus
represented a sign of the growing role of the individual in international law.
International humanitarian law was revised, updated and further developed in the
twentieth century, especially after the Second World War.16 There is no doubt that
the legal position of the individual has changed substantially in contemporary
humanitarian law.
Some important developments in relation to specific human rights occurred after the
First World War. US President Woodrow Wilson presented to Congress in 1918 his
“Fourteen Points”, an ambitious program aimed at creating a more peaceful and just
international community. He called, among other things, for the realization of the
principle of self-determination of peoples, albeit limited to Western States, through a
redetermination of borders based on the principle of nationality and the recognition
of statehood to nation-entities seeking autonomy. The principle was not accepted;
but it exerted a certain influence on the League of Nations.
In reality the Covenant of the League of Nations, approved on April 28, 1919 and
included in the Versailles Peace Treaty of June 28, 1919,17 did not contain any
general provisions dedicated to human rights. The idea that human rights, in general,
should be protected at international level was not yet mature in the international
community. However, the Covenant contained two provisions, Articles 22 and
23, which were intended to have an influence on the development of certain
human rights.
Article 22 of the Covenant established the system of mandates of the League of
Nations, which applied to the colonies and non-autonomous territories of the States
that had lost the First World War and which transformed these colonies into
Mandates of the League entrusted in administration to the winning Powers. The
final purpose of the mandates was to achieve the self-determination of these colonies
and territories over time. In the meantime, the Powers entrusted with the mandate
undertook with the League to administer the territories promoting the material and
moral well-being, and social progress, of the inhabitants. The Mandates Commission
of the League gradually acquired more and more powers over time to control the
administration of the mandates and the way in which the native populations were
treated. However, the dissolution of the League of Nations put an end to this
development. In its place, the United Nations established the Trusteeship System,
16
See below, Sect. 2.4.1.
17
The Treaty of Versailles was signed by 44 States and came into force on 10 January 1920.
1.2 Historical Precedents 9
which was entrusted with controlling powers over the remaining mandates and other
non-autonomous territories.
The Versailles Peace Treaty recognized the need to protect workers, since it stated
that world peace “can only be established if it is based on social justice”. Article
427 of the Treaty set out a number of more specific objectives with regard to the
protection of workers.18
Besides, Article 23 of the League of Nations Covenant dealt, inter alia, with
issues relating to “fair and humane working conditions for men, women and
children”; and provided for the creation of an international organization to promote
this objective. In fact, the International Labour Organization (ILO) was created,
which quickly managed to prepare and have adopted some important conventions,
such as the 1919 Hours of Work Convention, the 1919 Maternity Protection
Convention, the 1919 Night Work of Young Persons Convention, and the 1930
Forced Labour Convention.
The League of Nations has also played an important role in the creation of an
international system for the protection of minorities. This matter was not regulated
by the League of Nations Covenant. However, some Central and Eastern European
States, which had been created after the collapse of the Ottoman Empire and the
Austro-Hungarian Empire, included ethnic, linguistic and religious minority groups
on their territory. These groups had historical reasons to fear that the new States
would not respect their cultural autonomy. Therefore, the victorious States of the
First World War succeeded in imposing unilateral treaties or declarations on these
States, which contained guarantees of protection for those minorities. One may recall
the peace treaties with Austria, Bulgaria, Hungary and Turkey; the special
agreements with Czechoslovakia, Greece, Poland, Romania and Yugoslavia; and
the unilateral declarations of Albania, Finland, Estonia, Lithuania and Latvia.
These States were obliged not to discriminate against members of protected
minorities and to guarantee them protection of life and personal security, freedom
of religious belief and practice, and certain linguistic rights. In order to strengthen the
fulfilment of these obligations, the States in question agreed that their obligations
should be placed under the guarantee of the League of Nations. The latter exercised
its monitoring function by developing a system for dealing with petitions from
minorities who complained of violations of their rights. Petitions were examined
by a committee of three members of the League Council to which the States
18
See Kälin and Künzli (2009), pp. 12–13.
10 1 The Foundation and Historical Development of International Human Rights
concerned could submit their observations; and, when appropriate, the Permanent
Court of International Justice (PCIJ) was asked to give an advisory opinion on
controversial legal issues.
This system of international protection of minorities was an interesting experi-
ment at the time. However, it is also true that the treaties on the protection of
minorities remained in line with traditional international law, since they only
established obligations of States towards other States and the League of Nations,
and did not create genuine substantive rights, at international level, either for
minorities as collective bodies or for individual members of minorities. The latter
only had the right to submit petitions to the League.
By taking up the case of one of its subjects and by resorting to diplomatic action or
international judicial proceedings on his behalf, a State is in reality asserting its own
right – its rights to ensure, in the person of its subjects, respect for the rules of international
law.19
1.3 The Turning Point After the Second World War: Human
Rights Theory Imposes Itself Internationally
In the post-World War II period, under the pressure of world public opinion, the
efforts for an international protection of human rights, with a general and not only a
sectoral aspect, are multiplying. Individuals are considered as human beings to be
protected as such, and therefore also from their own nation-State. Therefore, the
issue of human rights, as a whole, becomes a central issue on the international scene.
19
PCIJ, Mavrommatis Palestine Concessions, p. 12.
1.3 The Turning Point After the Second World War: Human Rights Theory Imposes. . . 11
The most important reason for this radical change is certainly the awareness on
the part of the international community that the Nazi system and other totalitarian
regimes had shown, before and during the war, an absolute contempt for the most
essential human rights and that the protection of human rights through the
constitutions of individual States was not sufficient. Instead, a new world order
had to be created, based on peace and the international protection of human rights.
These ideas were initially supported primarily by Western States, by virtue of their
constitutional traditions; they were included in the Atlantic Charter of 1941; and they
were taken up at the Dumbarton Oaks Conference in 1944, which proposed the
establishment of the United Nations (UN).
Finally, the Western Powers, at the San Francisco Conference in 1945, created the
United Nations, entrusting it with the promotion and protection of human rights as an
important part of its mandate. The basic idea was to develop human rights principles
to guide the work of the UN and its Member States, with the aim of gradually
creating a comprehensive system of human rights protection in peacetime, through
its progressive codification in a series of international treaties and guarantee
mechanisms. This aim has been achieved over time, giving rise to the so-called
UN human rights protection system.20 It is a system that tends to operate at a
universal level. Over time, it has been joined by a number of human rights protection
systems operating at regional level, sometimes more advanced than the UN
system.21
We can therefore speak today, in a more general and overall sense, of an
“international system of protection of human rights”. This international system has
been progressively implemented through conventional norms and guarantee
mechanisms (monitoring bodies and procedures), whose broad path of evolution I
will discuss later on. For the time being, it is sufficient to note that the international
movement for the protection of human rights, which has developed in a generalized
manner, and no longer only in a limited and sectoral way, since the entry into force of
the UN Charter, has taken the form, in legal terms, of the adoption of many acts of
soft law, the conclusion of numerous treaties on a universal and regional scale22 and
also the creation of certain norms of general international law.23 It may also be
recalled that, thanks to the work of the international monitoring bodies set up by
some of the above-mentioned treaties, there is now an extensive international,
judicial and quasi-judicial practice in the field of human rights.
Ultimately, it can be said that the theory of human rights strongly characterized
the phase of development of the international community that took place after the
Second World War and that this theory led to the affirmation and progressive
20
See below, Chap. 10.
21
See below, Chaps. 11–12.
22
These agreements contain both a detailed catalogue of human rights that States Parties are obliged
to grant to all individuals under their jurisdiction and instruments of guarantee and control.
23
These rules include customs, principles of international law and general principles of law
recognized by civilized nations in domestic courts.
12 1 The Foundation and Historical Development of International Human Rights
consolidation of a new, vast and important area of the international legal order, the
so-called international law of human rights.
Moreover, it is worth pointing out that the theory of human rights has also
exercised a wider role, since, by taking root deeply in the life of the international
community, it has ended up producing a great influence on the general principles that
regulate this community and therefore also, as we shall see,24 an impact on the
international legal order as a whole. In this sense, we can speak of a process of
structural change in international law.
In my view, there are basically two related reasons for this. The first is that the
theory of human rights is by its very nature “subversive” or “revolutionary”25 with
respect to the traditional structure of relations between States, because it runs counter
to the principle of sovereignty, which is the basic principle of traditional interna-
tional law and which has long prevented States from interfering in the internal
organization of other States and in the way they treat their citizens. The second
reason is that this theory focuses on the individual, who is no longer considered as an
object of State sovereignty, but considered in him or herself, as a human person, and
tends to assume an increasingly important and central role in the life of the interna-
tional community. In this sense too, the theory of human rights is “subversive”,
because it runs counter to the traditional conception that only States and other
sovereign bodies are the subjects of the international order.
In the next chapter, I will look more deeply at the impact of the human rights
theory on the structure of international law.
At the beginning of this chapter I have dealt, in a nutshell, with the main theories on
the notion and foundation of human rights. It is now appropriate to address the
problem of the general objectives pursued by these rights in international law. In
summary, it can be said that international human rights norms simultaneously pursue
two general aims: (a) to protect the dignity of the human person and to defend it in
relation to the State; (b) to become a universal value of the contemporary interna-
tional legal order.
The first aim is very obvious. Under the pressure of various historical factors,
which I have briefly described, the international community was convinced that it
was necessary to create an international legal regime for the protection of the
individual with regard to the State, and especially with regard to its own State.
This also means that international human rights law tends to create a legal regime for
the protection of individual interests which tend to take precedence over State
24
See below, Chap. 2.
25
Cf. Cassese (1984), p. 321; Id. (2003–2004), vol. II, pp. 83–84.
1.4 General Aims of Human Rights 13
interests, simply because human rights are, in principle, rights which the individual
has against the State. In this sense, in my view, the principle of the primacy of the
individual (or human person) can be considered a guiding principle of international
human rights law.
The second purpose is closely linked to the first. In fact, under the impetus of the
protection of the essential interests of individuals, the international norms on human
rights today also aim to realize a community interest of the States, which overrides
their individual and “selfish” interests. This is because it is recognized that the
protection of human rights pursues high objectives of humanity, civilization and
morality, and constitutes a central and universal value for the contemporary interna-
tional community. Therefore, the principle of the universality of human rights can be
considered a second guiding principle of international human rights law.
However, this second conclusion is not taken for granted, since the very concept
of universalism of human rights is controversial and has to deal with phenomena of
particularism and multiculturalism that are present in the reality of the international
community. The problem deserves some reflection.
The problem of the universalism of human rights will only be addressed from a legal
point of view.26 In common language, it is often taken for granted that human rights
are universal in the twofold sense that they belong to all people and are globally
recognized. But in reality the question is more complex, and can be summed up and
simplified into one question: is the universalism of human rights possible in a
multicultural world27? And in a contemporary reality that sees the rebirth of nation-
alism and particularism? What exactly does universalism of human rights mean in
international law?
In my opinion, the universalist vocation of human rights is sure and cannot be
called into question, if one does not want to renounce belief in the very existence of
international human rights. These are, by definition, rights that should belong to all
human beings and that all States should recognize. The idea that all States should
guarantee fundamental rights to all human beings, and to the same extent, is clear
from Article 1 of the Universal Declaration of Human Rights, according to which:
All human beings are born free and equal in dignity and rights [. . .].28
Moreover, as stated above, the idea of the central and universal value of the
protection of human rights has also been affirmed in the international community of
26
And therefore neglecting the philosophical, historical, social, cultural aspects.
27
See, recently, Lenzerini (2014).
28
UDHR, Art. 1.
14 1 The Foundation and Historical Development of International Human Rights
States; and therefore it can be said that the principle of universality is a guiding
principle that operates in the whole field.
However, this universalistic vocation of human rights must come to terms with a
multicultural world in which there are different conceptions of what rights and
values are truly fundamental; and with legal reality, for which only certain human
rights are governed by general international law. In summary, there are two opposing
trends or, if you like, two conflicting principles: universalism and multiculturalism/
particularism. But, since, in human rights theory, multiculturalism is also recognized
as a value to be defended,29 there is a need to try to reconcile the two principles in
some way. This need also responds to the requirement to harmonize the utopian
aspects of universalism, which would like to achieve equality in respect and enjoy-
ment of human rights for all States and for all human beings, with the more realistic
aspects of particularism, which take into account the differences concretely existing
in the international community. One could say, with a synthetic expression, that it is
a matter of reconciling, in some way, the values of equality with those of diversity. In
other words, it is a matter of conciliating a common heritage of humanity with a
plurality and diversity of values and traditions.
In my opinion, this conciliation is possible if it is recognized that, in international
law, a balance (or compromise) between universalism and multiculturalism has so
far been achieved: the universalist vocation of human rights operates as the driving
force of the whole area, but it has been fully realized, from a legal point of view, only
in part; that is, for the limited number of human rights that are regulated by general
international law (principles of international law, customary law, general principles
of law recognized in foro domestico). In other words, this vocation has been realized
for those human rights which enjoy the general consent of the international commu-
nity, a consent which is expressed in different ways in the various above-mentioned
sources of general international law.30 Moreover, as we shall see,31 this general
consensus of the international community is also reinforced by the fact that human
rights regulated by general international law almost always (but not always) end up
coinciding with human rights regulated by jus cogens; that is, recognized as essential
and peremptory values of the entire international community.
However, the legal universalism of human rights still has many limitations,
because most human rights, as we shall see, are governed only by conventional
international law; in other words, by norms that only bind States that have voluntar-
ily accepted and ratified them. It is in this aspect that the principle of multicultural-
ism/particularism is expressed: it is clear that those human rights that are regulated
only by treaties, and by treaties ratified only by a part of the existing States, cannot be
considered concretely as universal, from a legal point of view. Those rights do not
belong to all human beings and do not oblige all States. In other words, conventional
29
Cf. Lenzerini (2014); Crawford (2013), pp. 325–341. See also the UNESCO Convention on the
Protection and Promotion of the Diversity of Cultural Expressions, 20 October 2005.
30
See below, Chaps. 3–5.
31
See below, Sects. 13.3.4 and 13.3.5.
1.4 General Aims of Human Rights 15
international law leaves States free, even on the basis of their own culture of human
rights, to accept or not to be bound by the respect of certain rights. To give an
example (though not edifying), if those treaty norms which establish the principle of
equality between men and women are not accepted by the States of the Muslim
world, this prevents them from becoming norms of general international law. A
similar discourse could be made for other human rights that are accepted only by
some States, such as, for example, the prohibition of the death penalty.
Furthermore, consider another aspect in which the relationship between univer-
salism and multiculturalism/particularism is expressed; that is, the fact that the
content of the customary norm on a given human right is not identical to that of
the corresponding conventional norms on the same right. Usually, the content of the
customary norm is more general, simpler and more essential, as we shall see later.
For example, the right to life in customary law means, in essence, the prohibition of
arbitrary deprivation of life.32 On the other hand, in many conventional rules the
right to life has more complex and detailed content, with restrictions and exceptions,
as well as criteria for better defining the concept of arbitrariness. To give another
example, the right of access to justice, in customary law, has a synthetic and essential
content,33 while in the conventional rules it is specified in detailed provisions on fair
trial and effective domestic remedies, which establish a complex legal regime, with a
series of substantive and procedural guarantees. And these treaty provisions vary
according to the different treaties and different human rights systems, leaving room
for particularism and regionalism.
But it should be noted that conventional human rights law does not only express
the trend towards multiculturalism. It can also, in the difficult balance between the
two trends, reflect the universalistic vocation. In fact, in the first place, some human
rights treaties have been ratified by a very large number of States34 and therefore
they are “quasi-universal”. Secondly, as we shall see,35 treaty law can, under certain
conditions, have a considerable impact on the progressive development of general
international law (especially customary law). In the third place (and this point will be
explored in more detail later36), the universalist principle exerts an influence on
certain “special” features of human rights treaty law, since it tends to favor the widest
possible participation by States in such treaties and to widen their scope of
application.
In summary, in my view, the relationship between universalism and multicultur-
alism of human rights can be visually represented by two concentric circles: the
largest represents all human rights, while the smallest, within the former, represents
human rights governed by general international law, which I define, for the moment
32
See below, Sect. 14.1.
33
See below, Sect. 17.1.
34
See, e.g., the Convention on the Rights of the Child (below, Sect. 10.4.2.7).
35
See below, Sect. 3.1.
36
See below, Sects. 4.2 and 4.3.
16 1 The Foundation and Historical Development of International Human Rights
References
Buergenthal T, Shelton D, Stewart DP (2004) International human rights in a nutshell, 3rd edn (2nd
rep). West Group, St. Paul
Cassese A (1984) Il diritto internazionale nel mondo contemporaneo. Il Mulino, Bologna
Cassese A (Gaeta P ed) (2003–2004) Diritto internazionale, vol. I: I lineamenti, vol. II: Problemi
della comunità internazionale. Il Mulino, Bologna
Crawford J (2013) Change, order, change: the course of international law. General course on public
international law. RC 365:9–389
Focarelli C (2008) Lezioni di diritto internazionale, vol I. Cedam, Padova
Henkin L (1995) Human rights. EPIL 2:886–893
Kälin W, Künzli J (2009) The law of international human rights protection. OUP, Oxford-New
York
Lenzerini F (2014) The culturalization of human rights law. OUP, Oxford
Zanghì C (2013) La protezione internazionale dei diritti dell’uomo, 3rd edn. Giappichelli, Torino
37
For a closer examination of this notion see below, Chap. 13. As we shall see, it can be added that,
within the smaller circle, there is another even smaller circle represented by human rights protected
by jus cogens.
The Impact of Human Rights
on International Law 2
As mentioned above, human rights theory has gradually taken on a central role in
international law and has become deeply rooted in the dynamics of contemporary
international society.
This means, in my view, that this theory has also produced a phenomenon of
innovation and modernization both in some general and structural aspects of inter-
national law and in many specific areas of that law.1 In this regard, a part of the
doctrine has spoken of a process of “humanization” of international law, wanting to
mean that classical or traditional international law, essentially formed by so-called
“state-centric” norms (i.e., protective of interstate relations), while remaining largely
current also in the contemporary world, has gradually and progressively left a space
also for a “new” international law, formed by so-called “human-centric” norms (i.e.,
aimed at protecting also and above all, the human person).2
However, it must be warned that another part of the doctrine does not agree with
the existence of such a process of modernization and “humanization” of international
law; or at least it tends to diminish its importance.3
These two different opinions correspond, to a large extent, to two very different
general theories on the coherence and completeness of the international legal order
and on the related problem of the existence or non-existence of the so-called
1
See, for classical works, Friedmann (1964), Jennings (1979), Simma (1994), Tomuschat (1993),
Carrillo Salcedo (1997).
2
See, in particular, Simma (1993), Meron (2003), Meron (2006), Pisillo Mazzeschi (2004a),
pp. 16–36; Id. (2008), pp. 198–220; Sicilianos (2012); Pisillo Mazzeschi and De Sena (2018).
3
See, e.g., Weil (1983), Weil (1992), esp. pp. 25–39 e 66–81; Combacau (1986), Combacau and Sur
(2006), pp. 17–28; Pellet (2000).
4
On the theory of self-contained regimes, see Simma (1985), Simma and Pulkowski (2006), Pisillo
Mazzeschi (2014a), pp. 278–287; Crawford (2013), pp. 275–309; Treves (2019), pp. 339–373.
5
On the problem of the so-called “fragmentation” of international law see ILC, Fragmentation of
International Law: Difficulties Arising from the Diversification and Expansion of International
Law, Report of the Study Group of the International Law Commission (Finalized by Martti
Koskenniemi), A/CN.4/L.682 of 13 April 2006; Koskenniemi and Leino (2002). For critical
comments see Conforti (2007); Benvenisti (2008); Simma (2009).
2.2 International Human Rights Law as a Self-Contained Regime? 19
result for human rights advocates, because it means, in a certain sense, closing this
sector in a sort of “ghetto” and admitting that it cannot affect the entire international
legal order.
On the contrary, in an inverse and opposite way, another part of internationalist
doctrine (formed especially by so-called “generalist” scholars), starts from a very
different basic conception about the very structure of international law and considers
this law as a single legal system, and with strong characteristics of completeness and
systematic coherence (a “universalist” conception of international law). This doc-
trine, to which I adhere, tends in principle to reject the concept of self-contained
regimes, understood as systems totally closed to the outside world, and instead to
accept only the possibility of special regimes, mainly of a conventional nature,
which function within the framework of the normal relations between general law
and special law. Moreover, the existence of a special regime, derogating from
general international law, should result from sure elements; namely, from the fact
that the States parties to a special treaty regime have clearly expressed this desire for
derogation.
This general conception also applies to the specific field of human rights. The
doctrine under examination shows the tendency not to “isolate” international human
rights law with respect to general international law and other specialized areas of that
law; and therefore to consider that international protection of human rights, while
constituting in some respects a regime that may derogate from general international
law, on the basis of the criterion of specialty, is nevertheless part of the general
system and interacts with that system and other specific regimes, through the
possibility of mutual influences, interactions and coordination. It is clear that this
doctrine is much more inclined to admit that the above-mentioned process of
“humanization” of international law has taken place. Therefore, it must be concluded
that it is the generalist authors, rather than human rights specialists, who more easily
recognize the innovative impact of these rights on the entire system of
international law.
Ultimately, it must be stressed that, even beyond the theoretical and doctrinal
premises of departure, it is the concrete examination of the reality of contemporary
international law that demonstrates the correctness of the second theory described
above. In fact, as we shall see immediately, it is very difficult to deny that the theory
of human rights, transported to an international level, has produced a significant
impact on the international legal order.6 For systematic reasons, I will distinguish
between two phenomena of change: (a) a real process of structural modification of
the international system; (b) an impact on a number of specific areas of
international law.
6
See Pisillo Mazzeschi (2014b).
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eräässä vanhassa niittyladossa, joka on tuolla alangossa.
Muutamana yönäpä tunsinkin unissani, että nyt on susi lähellä, ja
kohta ilmestyikin hukka ladon ovelle ja näytti pitkiä hampaitaan — ne
olivat noin pitkät ja keltaiset sen hampaat, niin ettei niiden lähettyville
ole tuollaisen maidon lakkijan ollenkaan mentävä kuin sinä penikka
olet — mutta enhän minä ennenkään ollut susia säikähtänyt ja niin
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muka olen. Silloin minulle juolahti, niinkuin sanotaan, koiruus
mieleen ja minä päätin, että annahan kun minä jymähdytän tuota
hukkaa niinkuin isäntä ryssää, ja niin minä sille sitte vastasin, että
minä olen suutari, ja oikein ulosoppinutta lajia. No se hullu heti uskoi
ja rupesi kärttämään saappaan tekoon, kun on, sanoi, niin kova
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Mutta jos noutanet tänne vasikan, niin voihan noita koettaa tehdä
sinulle saappaita. Ja eihän mitä! Siinä samassa oli susi tiessään ja
toihan se kuin toikin minulle vasikan saappaan aineiksi ja kysyi,
milloin ne valmistuvat. Sovittiin siinä sitten, että saa käydä kahden
viikon kuluttua kysymässä.»
»Sitä en muista. Sen vain tiedän, että hyvin tyhmä tuomari se oli,
aivan lakia ymmärtämätön. Näet kun susi esitti vaatimuksensa ja
tahtoi, että korvaukseksi kengän aineiden menetyksestä hänen
täytyykin päästä kylään ja koirain pitääkin mennä metsään, käski
tuomari asiallisten poistua, että oikeus saisi neuvotella. Sisään
käskettyä sitten tuomari julisti päätöksen, että koska sanottu Merkki
Ilmolan kylän Kääpälän talosta ei ole edes väittänytkään, ettei hän
olisi väärin ilmoittanut olevansa ulosoppinut suutari ja sillä varjolla
houkutellut Susi Hukkalalta saappaan aineiksi vasikkaa, sikaa ja
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kaiken niin olevan kuin kantaja on esittänyt, harkitsee oikeus
kohtuulliseksi tuomita hänet maksamaan kantajalle takaisin kaikki,
mitä on häneltä petoksella vienyt, sekä lisäksi muuttamaan pois
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oikeus tämän jälkeen päästä, ja on tähän päätökseen tyytymättömän
tehtävä siitä valitus kolmenkymmenen päivän kuluessa tästä
lukien… Tuollainen tuomari saa mennä kissan häntään, ajattelin
minä mielessäni ja käänsin selkäni koko oikeuspaikalle sekä ilmaisin
sen ovenpieleen halveksimiseni. Mutta siinä samassa jo susi töytää
metsään hakemaan muita susia, että nyt tässä mukamas oikein
tuomarin päätöksellä päästään muuttamaan Kääpälään. 'Kuule,
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koetetaan, kumpi nutun pitää. Se, joka voittaa, muuttakoon
Kääpälään!' Susi suostui ja viikon perästä piti sitten kokoonnuttaman
sille samalle saappaanvalmistus-niitylle. Mutta eihän niitä susia
montakaan löytynyt, kun minä sen sijaan toin siihen torapaikalle
Toverit, hain Hallit, saattelin Sepelit, siihen Mustit myödättelin, siihen
pistin Pilkkikoirat, peräti Penitkin kokosin. Kyllä siinä oli tuota koiran
nimellistä vähän eri tavalla! Kysyivät akat kylässä ihmetellen: 'Mikä
on, kun käypi yhtenään jyrinä kuin isäisellä säällä?' Vastaavat siihen
toiset akat: 'Ei ole isäinen pilvi, vaan Merkki ja hänen koiransa tuolla
niityllä haukkua luskuttavat.' Taas kysyvät akat: 'Mikä on, kun tuulen
viuhina yhtenänsä käypi kuin olisi kova myrsky?' 'Ei ole myrsky, vaan
Merkki ja hänen koiransa tuolla niityllä häntää heiluttavat', vastaavat
siihen taas toiset akat. Niin oli minulla silloin kauhean paljon koiria
koolla, kun piti tapeltaman siitä, kumpi saisi kylään jäädä, susi vai
koira. Ja itse minä niitä siinä johdin.
»Mutta kun ruvettiin siellä katsomaan taas sitä pöytäkirjaa, niin sitä
ei löytynytkään. Aletaan kovistaa siinä sitä tuuheahäntäistä ja
sanotaan: 'Sinä nostit häntäsi pystyyn, kun menit veteen,
mokomakin! Siinä sinulta putosi pöytäkirja!' Mutta tuuheahäntäinen
vänkää vastaan: 'Nostin kyllä, mutta nostittehan tekin! Ja oletteko
varmat, että se pöytäkirja juuri minun häntäni alta putosi?' Ruvetaan
tutkimaan, olisiko se mahdollisesti joutunut jollekin toiselle, mutta ei
— hävinnyt se oli. Ja niin se on ollut kateissa tähän päivään saakka,
vaikka koirat aina sitä toistensa hännän alta hakevat. Ja siitä alkaen
on koira ollut kissalle vihainen ja kissa hiirelle — kaikki vain sen
pöytäkirjan vuoksi.
Oli siinä sitten tiellä vanha jauhokulin kuori ja äijät seisattuivat sitä
katsomaan. Lopuksi sanoi pukki pässille: »Mitä tieltä löydetään, sitä
tiellä tarvitaan, heitä kuli sarvillesi.» No, pässi otti sen jauhomaton
siitä sarvilleen ja niin lähdetään taas kulkemaan.
*****
Kovasti oli nyt sudella nälkä eikä auttanut muu kuin edelleen vain
mennä palan hakuun. Näkipä hän siinä sitten tamman varsoineen,
ihastui taas ja arveli: