CHAPTER ONE

Conceptual Framework
Understanding
• Human: A member of the Homo sapiens
species; a man, woman or child; a person.
• Rights: Things to which you are entitled or
allowed; freedoms that are guaranteed.
• Human Rights: The rights you have simply
because you are human.
• Human rights are simply defined as the
rights, which every human being is entitled to
enjoy and to have protected
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• Different Scholars have given different definitions of

human rights.
• But All agreed that human rights emanate from
fundamental human dignity and worth.
• For Mariek Piechowiak: HRs are “rights of all
human beings acknowledged independently of
law”
• For Amparo Tomas: HRs are “universal legal
guarantees that belong to all human beings and that
protect individuals and/or groups from actions and
omissions of the State and some non-State actors that
affect fundamental human dignity”
• ‘a common standard of achievement for all peoples
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• Jack Donnelly : “ Human rights are rights, not benefits,

duties, privileges, or some other perhaps related practice.
Rather special entitlements of persons”
• Not just any benefit is a right; only those benefits to which one is
entitled are, may be rights.
• Not even all benefits that another person is obliged to render to
one are one’s rights. For example,
• A may be obliged to confer a benefit on B out of considerations of
charity, without B having a right to that benefit. which mean
Although we are morally obliged to aid the needy, a
particular destitute person does not, ipso facto(by that very
fact), have a right to our money or even a right to assistance
from us. We may be obliged to aid him, but he is not entitled to
that aid from me; i.e., he does not have a right to it from us.
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Therefore, Human rights are

 internationally agreed values, standards or rules
regulating the conduct of states towards their own
citizens and towards non-citizens.
 Rules Which States Have Imposed Upon Themselves,
Serve To Restrict Their Freedom To Act Towards Their
Entire Population: Citizens As Well As Non-citizens, Men
As Well As Women, Adults As Well As Children, Whites
And Non-whites, Believers And Non-believers, Married
Persons And The Unmarried.
 universal legal guarantees protecting individuals and
groups against actions by governments, which interfere
with fundamental freedoms and human dignity
 accepted principles of fairness and justice.
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 Rules protecting individuals and groups against

actions and omissions on fundamental freedoms,
entitlements and human dignity.
 Of the Examples human rights include: civil and
political rights, such as the right to life and
liberty, freedom of expression, and equality
before the law; and economic, social and cultural
rights, including the right to participate in
culture, the right to food, the right to work, and
the right to education and equality before the
law.
 Understanding “Right”
• In human rights language the word “right” is understood as
entitlements and as just doing the right thing (righteousness).
• When we talk of righteousness, the verb characteristically is
used to be:
• like in “It is right for you to help her”; “What is right
here?”; “It wouldn't be right to leave now”. ”it is the
right thing to do”.
• when we talk of “rights” as Entitlements, we talk of having
or holding rights. Hence ;
• To violate someone’s right is not merely to fail to do what is
right but also to commit a special and important personal
offense against the right- holder by failing to give him his
due, that to which he is entitled.
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• Hence the concept of human rights is based on the

belief that every human being is entitled to enjoy
her/his rights without discrimination.(non-
discrimination)
• Human rights differ from other rights in two
respects.
• Firstly, they are characterised by being:
• Inherent in all human beings by virtue of
their humanity alone (they are not to be
purchased or to be granted);
• Inalienable (within qualified legal
boundaries); and
• Equally applicable to all. 
 How Does Human Rights Emerge ?
• The term “human right” came into being very recently
particularly after WWII.
• It replaced early notions like “Natural rights”/ “the rights of
man”.
• The history of rights reflects the various demands forwarded
by human beings at different times and conditions.
• Human beings demand the realization of diverse values to
ensure their individual and collective being.
• the prevalence of exploitation, oppression and persecution
led to the emergence of the consciousness about human rights.
• Human rights are understood to represent individual and
group demands shaping and sharing of power, wealth,
enlightenment and other values.
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• Earlier, the term “human rights” was defined as those

rights guaranteed by the International Bill of Human
Rights (comprised of UDHR, ICESCR, and ICCPR
with its Optional Protocols).
• Over the years, international and regional human
rights instruments have made more explicit rights
set forth in the International Bill of Human Rights.
• “Human rights” are now defined with far more detail
and specificity.
• International human rights law is NOW more
protective of vulnerable individuals and
groups(children, indigenous groups, refugees and
displaced persons and women)
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• Most human rights are perceived as

individual rights vis-à-vis the Government
• HOWEVER, human rights norms may also
apply to non-State actors (such as armed
opposition groups, corporations,
international financial institutions and
individuals who perpetrate domestic
violence) and to those who commit human
rights abuses.
• The campaign to abolish slavery, one of the
oldest efforts to protect human rights, was an
attempt to prevent private actors from
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• E.g. By Common Article 3 of the 1949 Geneva

Conventions and their 1977 Protocols, international
humanitarian law applies to armed opposition groups.
• Further, a series of treaties exist relating to hijackers,
kidnappers of diplomats, etc.
• Human rights are expressed in treaties, customary
international law, bodies of principles and other
sources of law.
• Human rights law places an obligation on states to
act in a particular way and prohibits states from
engaging in specified activities.
• However, the law does not establish human rights.
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• Human rights are inherent entitlements which

come to every person as a consequence of
being human.
• Treaties and other sources of law generally
serve to protect formally the rights of
individuals and groups against actions or
abandonment(OMISIONS) of action by
governments which interfere with the
enjoyment of their rights.
 WHAT ARE TREATY, CONVENTIONS AND
PROTOCLES?
• “TREATY” refers to an international agreement between and among
parties, members or nations. on a global scale, the term refers to an
agreement between two or many countries.
• It Is “an international agreement concluded among States in written
form and governed by international law” (Council of Europe)
• “CONVENTION” is something that happens prior to a treaty being
formed.
• people come together to decide and agree on the issue before it is
published in a legal, binding document or a treaty.
• The objective is that multiple countries must come together, meet and
discuss an issue at hand before signing a treaty or a legally binding
contract.
• “PROTOCOL”: A protocol is basically quite similar to an amendment.
• It is a document that is legally binding that allows alterations and
amendments to the main treaty.
 Normative Structure of Human Rights
• Huma rights have two dimentions of relationship between
the natuarl person and the state.
1. Vertical Dimension : the most important one ,which aimed
at having the most fundamental human value and needs
protected against exercise interference and ignorance (action
or omission) by the state.
2. Horizontal Dimension(horizontal effect) : focuses on the
relationship between private parities.
• It implies, that a government not only has an obligation to
refrain from violating human rights, but also has a duty to
protect the individual from infringements by other individuals.
e.g. The right to life thus means that the government must strive
to protect people against homicide by their fellow human
beings.
 Human rights obligations
Subject, Object and Duty Holder of HR
• A Subject (Right Holder): an individual (natural person),
a group of individuals entitled to the rights conferred in a
legal rule.
• A duty holder(bearer): an entity, normally a state
(government) obliged either to realize the subject’s
demands or to create the condition necessarily for their
realization.
• Hence As the duty bearer the state has the obligation to
respect, protect and assist and fulfill.
• An object; the content of any given right and any
corresponding duty of the bipolar parties (the holder of the
right and the duty bearer) in realization of the rights.
 Duty bearers
Enabled to respect,
A protect and fulfill P
c rights a
c r
o
Fulfils Furthering the t
u Claims i
n responsibility realization of right c
t towards Human Rights for from i
a p
b
all a
i (equality and non- t
l discrimination) i
i o
t Rights holders n
y Enabled to hold duty bearer
to account
 HOW HUMAN RIGHTS EVOLVE TO BE AN
ENTITLEMENT
the following stages of evolution of how human rights are identified
1. IDEALISATION STAGE; which means notions about human
rights have emerged initially as ideas refelecting
• a growing consciousness against injustic and oppression or inadiquate
performance by state authorities
2. CONCEPTUALISATION STAGE: this is characterised as an
examination of thoretical and feasibility aspect of a positivisation.
3. POSETIVISATION STAGE : after support for the concept of the
right becomes sufficient, posituvisation will take place. human rights
hence first permeated in to both domestic and international law.
4. REALISATION STAGE: at this stage the whole social and political
order is transformed so as to follow every one equal enjoyment of all
human rights.
 Historical and Philosophical Foundations of Human Rights
1. The Western Tradition
Based on liberal political philosophy of the West, particularly the revolutions in France, England and North America.
1. Development in French

• It came up with a declaration of the rights of man and

citizen in 1789
• It stated ”The aim of all political association is the
conservation of the natural and inalienable rights of
man.
• These rights are liberal, property, security and
resistance to operation”
• Many believes the principles of the declaration are
deduced from the nature of man as a conscious and
intelligent being,
• yet others, drawing inspiration from the Bible, from the
nature of man created by the Almighty in his own
image.
• others believe the doctrine of natural law has
contributed to the belief in ‘natural rights’.
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 Doctrine natural law holds that there are laws of nature or

laws of God above and beyond positive law made by man
 The notion of natural rights is an acknowledgement that
there exist certain rights antecedent and superior to all
positive law.
 The French Declaration proclaimed - all men are born and
remain free and equal in their rights,
 equality before the law,
 freedom from arrest except in conformity with the law,
 the presumption of innocence, protection against the
retroactivity of the law,
 freedom of opinion, freedom of expression,
 and the well definition of liberty as freedom to do anything
which is not harmful to others.
 Development in In England
• HRs concept existed since the
time of King John who in
1215 was forced to sign the
Magna Carta (Great Charter)
• It guaranteed freedom from
imprisonment, dispossession of
property ,prosecution and exile
unless the law of the land.
• Recognized the right to fair
trial in the famous words: ‘To
none will we sell, deny or
delay right of justice’.
• Then in 1688 Glorious Revolution led to the Bill of
Rights of 1689
• It assured the supremacy of parliament
• the right to free election,
• freedom of speech,
• the right to bail,
• freedom from cruel and unusual punishment
• the right to trial by jury.
• The independence of the judiciary and freedom of the
press were established.
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• The philosopher John Locke devised a

influential political theory to sustain
constitutional arrangements.
• He held that “sovereignty pertains not to the
monarch but to the people as a whole, and
that government is an instrument for
securing the lives, the property and the well-
being of the governed without enslaving
them in any way”
• ‘Government is not their master; it is created
by the people voluntarily and maintained by
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• certain rights self-evidently pertain to
individuals as human beings (because they
existed in the ‘state of nature’ before
humankind entered to civil society);
• Among them are the rights to life, liberty and
property; that, upon entering civil society
(pursuant to a ‘social contract’), humankind
surrendered to the state only the right to
enforce these natural rights
 DEVELOPMENT IN NORTH AMERICA
• The political philosophy of Western
Europe was inherited by North America.
• Thomas Jefferson asserted that the
Americans were a ‘free people claiming
their rights as derived from the laws of
nature and not as a gift of their Chief-
Magistrate’.
• The American Declaration of rights of
1774 considered ‘the immutable laws of
nature, as the principal source from which
the colonies derived their rights”
• Natural law was reflected in The
Declaration of Independence in
1776 /‘Virginia Bill of Rights’ as follows;
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• ‘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’.
• This has much in common with the French
Declaration idea of the rights of man are ‘natural and
inalienable’.
• Jefferson selects the three cardinal rights, i.e. life,
liberty and the pursuit of happiness,
• Whereas the French declaration chooses liberty,
property and security.
• However, it didn’t form part of the positive law,
and it was not made part of the Federal
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• through amendments fundamental rights

were included in the constitution, which
came into force in 1791,
• They are generally known as the Bill of
Rights, including civil and political rights.
• The notion of natural rights had played a
significant role in the above three historical
contexts
• The concept of natural law as implying
natural rights was elaborated in the 17th
18thc. philosophers.
• i.e. Montesquieu, John Locke Voltaire and
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• John Locke and others formulated and

postulated the notion of natural rights as
derived from natural law as the underlying
principle of any political association.
• individuals have natural rights and the
legitimacy of the government depends on the
protection of these naturally existing rights.
 SKEPTICISM ON NATURAL LAW AND RIGHT
• Some philosophers have rejected the concept as
baseless.
• Conservatives like, Edmund Burks and David
Hume criticized the concept saying “the public
affirmation of natural rights would lead to social
upheaval”
• Jeremy Bentham, one of the founders of
Utilitarianism, criticized it as follows; ‘Rights is the
child of law; from real law come real rights; but
from imaginary laws, from ‘law of nature’ come
imaginary rights…. A natural right is simply non-
sense.”
• David Hume asserted: ‘Natural law and natural
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• John Stuart Mill proclaimed: ‘rights ultimately

are found on utility’
• Others have emphasized that ‘rights are a
function of cultural an environmental variables
unique to particular communities’.
• Jurist John Austin and the philosopher
Ludwig Wittgenstein insisted, respectively, that
“the only law is the command of the sovereign’
(a phrase of Thomas Hobbes) and that “the only
truth is that which can be established by
verifiable experience”
 The Universal Tradition
• Argues human rights have their origin not only in
the west but also in non-western societies and
cultures.
• stated that other societies had some form of
concern for the protection of the individual and the
limitation of power of rulers even if they might
have not used the language of ‘rights’.
• At the International Conference on Human Rights
in Tehran, in 1968, the Shah of Iran noted in his
opening address rights of man was promulgated in
his country by Cyrus the Great about 2000 years
ago.
• The author Christian Dubie has recounted the
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• Pharaohs of Egypt quoted ‘ When a petitioner arrives from

Lower or Upper Egypt……Make sure that all is done
according to the law, that custom is observed and the right of
each man respected’.
• The code of Hammurabi, king of Babylon 2000 years before
Christ, reads as ‘to make justice reign in the kingdom, to
destroy the wicked and the violent, to prevent the strong from
oppressing the weak….to enlighten the country and promote
the good of the people’.
• culture have been contributed to the elaboration and
dissemination of the ‘rights of man’ ‘natural rights’ or ‘human
rights’
• In International Human Rights Year in 1968, UNESCO
published a collection of texts gleaned from different cultural
traditions and periods of history, which tried to show the
universality of the notion of individual rights.
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• Not all human societies have subscribed to similar

values,
• But the moral worth of the individual is an idea which
no culture can claim as uniquely its own.
• The idea of individual worth can be found in the work
of sages, philosophers, prophet’s and poets from
different countries and many faiths in all continents.
• the premise for human rights is as old as history itself,
• it concerns the need to protect the individual against
the abuse of power by monarch, tyrant or the state
since time in memorial
 summery of pointers of human rights principles
• Hammurabi Code (Babylon, c. 1700 BCE) – freedom
of speech, proportionality of sentence (bearing in mind
this is very very old – torture was still acceptable)
• Plato, Aristotle (Greece, c. 350-360 BCE) – property
rights, just societies (Again bearing in mind slavery
was not a problem in ancient Greece!)
• Confucianism – economic and social rights, removal
of a tyrant (372-289 BCE)
• Asoka “The Edicts” (India, c. 272-231 BCE)
Religious freedom, discrimination, non-violence
• Kautilya, “The Arthashastra” (India, c. 200 BCE) –
rule of law, labor rights
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• Judaism, Islam, Christianity - Various – but

including tolerance/universalism, religious
freedom, right to life
• Liberalism (Milton, Locke, Mill, Voltaire,
Kant) Various civil rights such as freedom of
expression, freedom of religion
• Communism – Marx – universal suffrage,
labour rights, economic and social rights
 Classification of Human Rights

• There Is No Complete Agreement On The

Classification Of Human Rights.
• This Is Because The Difference On The Grounds
For And The Purposes For Classifications.
• For Instance, Based On The Type Of The Right
Holder; Individual Rights And Group Rights.
• Based On The Type Of State Obligation :As
Negative Rights And Positive Rights.
• Classification based on their evolution/generation
in human history: Three-generations(by French
jurist Karel Vakas)
 THREE ‘GENERATIONS’ OF HUMAN RIGHTS
1. First generation rights
• include civil and political rights.
• They are primarily the result of the 17th and 18th century
reformist theories associated with the English, American
and French Revolution.
• They are the result of liberal political philosophy of
individualism.
• the realization of these rights require state abstention rather
than state intervention.
• However, civil and political rights can not be realized by
mere non-interference. For example, the right to security
and the right to fair and public trial necessarily require
positive state action.
• The rights contained under Article 2-22 of
the UDHR and most of the rights contained
in the ICCPR may be classified as first-
generation rights.
• First-generation rights (Core rights) are
rights that are indispensable for an existence
in human dignity
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2. Second Generation rights
• They include economic, social and cultural rights.
• The origin is associated with the socialist movements of
the 19th century and the 1917 Bolshevik Revolution.
• Their realization requires state intervention.
• are progressively rights.
• But the right to equality and the principles of non-
discrimination has to be implemented immediately.
• the state has not only positive obligation, but also negative
obligation
• the obligation to refrain from retrogressive measures.
• Includes rights from Article 22-27 of the UDHR and most
of the rights contained in the ICESCR.  
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2ND GENERATION RIGHTS

• The right to work and the ‘right in work’
• The right to form/join trade unions
• The right to education
• The right to social security
• The right to health
• The right to adequate standard of living
• The right to participate in cultural life
3. Third-Generation rights
• Include collective or group rights.
• Associated with the emergence of Third World nationalism
and its demand for global redistribution of power, wealth
and other values.
Theses rights are :
• The right to self-determination (political, economic, social and
cultural self-determination)
• The right to development
• The right to participate in and benefit from the ‘common
heritage of mankind’
• The right to peace
• The right to healthy and balanced environment
• The right to humanitarian disaster relief
• The right to one’s own natural resources
 Core Principles of Human Rights
• Universal: All individuals are equal as human beings and
by virtue of the inherent dignity of each human person.
• Inalienable: All people everywhere in the world are
entitled to human rights. A person cannot voluntarily give
them up. Nor can others take them away from him or her.
• Indivisible,interrelated, interdependent : Rights are
completely interdependent and depend on each other for
their effectiveness.
• Non-discrimination: Everyone is entitled to human rights
without discrimination
• Empowerment/participation: These rights endow
people the power to claim them from their governments,
as opposed to charity which is an act of generosity.
• Accountability: Governments have certain duties
and obligations to respect, protect and fulfil human
rights. (Individuals and non-state actors also have
duties to others)
• Human rights are eternal: As far as human
society exists, human rights continue to exist. In
addition, any change in government and any
change in social, political/economic outlooks do
not have any impact on human rights.
• Human rights are not absolute. Rights are
subjected to limitations/restrictions whenever such
is necessary to protect some legitimate public or
individual interest.
 Non-discrimination – a dual obligation

• Negative: The state must not

discriminate against specific individuals
or groups
• Positive: the state must take steps to
identify vulnerable individuals or
groups in need of extra attention to
ensure their rights are guaranteed
 International Human Rights Law
• It is formal expression of inherent human rights
• It is a series of international human rights treaties
and other instruments since 1945
• United Nations provided an ideal forum for the
development and adoption of international human
rights instruments.
• Regional and human rights instruments also
adopted from the IHL.
• International human rights law consists mainly of
treaties and customs as well as declarations,
guidelines and principles.
 Sources of IHL
Treaties
• A treaty is an agreement by States to be bound by particular rules.
• have different designations such as covenants, charters, protocols,
conventions, accords and agreements.
• A treaty is legally binding on those States which have consented to
be bound by the provisions of the treaty.
• A State can become a party to a treaty by ratification, accession or
succession.
• Ratification is a State’s formal expression of consent to be bound by
a treaty. Only a State that has previously signed the treaty (during
the period when the treaty was open for signature) can ratify it.
• Ratification consists of two procedural acts: on the domestic level,
it requires approval by the appropriate constitutional organ (usually
the head of State or parliament).
• On the international level, the instrument of ratification shall be
formally transmitted to the depositary OF united nations.
• Accession entails the consent to be bound by a State that has not
previously signed the instrument.
• Succession takes place by virtue of a specific treaty provision or
by declaration. Most treaties are not self-executing.
• In some States treaties are superior to domestic law, whereas in
other States treaties are given Constitutional status.
• A State may enter reservations to A treaty, indicating it does not
agree to be bound by certain specific provisions.
• However, a reservation may not defeat the object and purpose
of the treaty.
• States still be bound treaty provisions which have become part
of customary international law or constitute peremptory rules of
international law
Custom
• Customary international law (or simply. custom.) is the term used to
describe a general and consistent practice followed by States deriving
from a sense of legal obligation.
• While the Universal Declaration of Human Rights is not in itself a
binding treaty, some of its provisions have the character of customary
international law.
Declarations AND resolutions adopted by UN organs
• has no binding legal effect on States
• represent a broad consensus on the part of the international community
• have a strong and undeniable moral force on States.
• The value of such instruments rests on their recognition and
acceptance by a large number of States
• without binding legal effect; they may be seen as declaratory of
broadly accepted principles within the international community. E.g.
UDHR
 Theories of Human Rights
• The validity of human rights is taken for granted.
• HRs appear self-evidently true and universally valid
moral principles and perceived as empirical facts.
• Of course HRs do exist and people act in accordance
• But their validity can not be proved by only claiming
the empirical facts and observations.
• They need to be valid as norms as a moral doctrine
not facts.
• In order to achieve this, one has to turn to moral
philosophy.
• They need to have theoretical foundations.
• The two theoretical approaches to the question of the
 1. The Interests Theory Approach
• Argue the principal function of HRs is to protect and
promote certain essential human interests.
• Securing the essential interests is the principal ground
upon which HRs are morally justified.
• Primarily concerned to identify the social and
biological prerequisites for human beings to lead a
minimally good life.
• The universality of HRs is grounded by some basic,
indispensable, attributes for human well-being.
• for example, an interest each of us has in respect of
our own personal security. This serves to ground our
claim to the right.
• Other rights are derivations for prerequisites to
• Philosopher John Finnis (1980) argues that human rights are
justifiable on the grounds of their instrumental value for securing
the necessary conditions of human well-being.
• He identifies seven fundamental interests/ ‘basic forms of
human good’, providing the basis for human rights. These are:
• life and its capacity for development;
• The acquisition of knowledge, as an end in itself;
• Play, as the capacity for recreation;
• Aesthetic/Artistic expression;
• sociability and friendship;
• practical reasonableness,
• The capacity for intelligent and reasonable thought processes;
• religion, or the capacity for spiritual experience
• An interests-based approach attempts to
provide ‘prudential reasons’ in support of
human rights.
• It claim that all human beings possess basic
and fundamental interests.
• each individual owes a basic and general duty
to respect those interests.
• The basis for duty is not mere benevolence or
altruism, but individual self-interest.
• Protecting one’s own fundamental interests
requires others’ willingness to recognize and
respect these interests.
• This requires reciprocal recognition and respect
of the fundamental interests of others.
• the interests approach provides a
philosophically powerful defense of the
doctrine of human rights.
• It has the apparent advantage of appealing to
human commonality, to those attributes we all
share
• It offers a relatively broad-based defense of the
plethora of human rights considered by many to
be fundamental and inalienable
 Criticism of the Interests Theory Approach
1. Its account of human nature
• It is operating with an implicit account of human
nature.
• Appeals to human nature have proven to be highly
controversial.
• Hard to achieve the degree of consensus required for
establishing the legitimacy of any moral
doctrine.human nature could complicated by social
and cultural diversity.
• As Amartya Sen (1999) has argued, the minimal
conditions for a decent life are socially and culturally
relative.
 2. Its appeal to self-interest
• It may not provide clear basis for fully
respecting the rights of all human beings.
• The assumption that individuals occupy a
condition of relatively equal vulnerability to one
another may not always true.
• the claim that a self-interested agent must
respect the interests of much less powerful or
geographically distant individuals, if she/he
wishes to secure her/his own interests.
• This cannot adequately be defended
 3. neglected constructive human agency
• A more philosophically oriented criticism.
• alleged neglect of constructive human agency as a
fundamental component of morality generally.
• It tends to construe peoples fundamental interests as
pre-determinants of human moral agency.
• It subordinate the importance of the exercise of
freedom as a principal moral ideal.
• One might seek to include freedom as a basic human
interest,
• but freedom is not constitutive of our interests on this
account.
 2.The Will Theory Approach

• Attempts to establish the philosophical validity of human

rights upon a single human attribute: the capacity for
freedom.
• argue that what is distinctive about human agency is the
capacity for freedom and that this ought to constitute the
core of any account of rights.
• view human rights as originating in, or reducible to, a single,
constitutive right, or alternatively, a highly limited set of
purportedly fundamental attributes
• Hart (1955) argues that all rights are reducible to a single,
fundamental right, i.e. ‘Equal right of all men to be free.’
• E.g. The rights to political participation or to an adequate
diet, can be reducible to individuals’ equal right to liberty.
• Henry Shue, on the other hand argues that liberty alone is not
ultimately sufficient for grounding all of the rights.
• he grounds rights upon liberty, security, and subsistence.
• Alan Gewirth argues that the justification of basic human rights is
grounded in the distinguishing characteristic of human beings:
i.e. the capacity for rationally purposive agency.
• the validity of human rights is a logical corollary of recognizing
oneself as a rationally purposive agent.
• the possessions of rights are the necessary means for rationally
purposive action.
• He argues all human action is rationally purposive.
• Every human action is done for some reason, irrespective of
whether it be a good or a bad reason.
• argues that in rationally endorsing some end, one must logically
endorse the means to that end.
• For Gewirth freedom and well-being are necessary
conditions rationally purposive agents required for
rationally purposive action.
• They are necessary means to acting in rationally
purposive fashion.
• They are essential prerequisites for being human
• being human possess the capacity for rationally
purposive action.
• each individual is entitled access to them as essential
prerequisite
• argues each individual cannot simply will their own
enjoyment of without due concern for others.
• He bases the necessary concern for others’ human
• each individual’s claim for rationally purposive
action is based on an appeal to a general, rather than,
specific attribute of all relevant agents.
• One cannot logically claims to basic human rights
without simultaneously accepting the equal claims of
others .
• an absolute right to life possessed separately and
equally by all of us.
• For Will theorists the validity of human rights is
established upon the ideal of personal autonomy
• rights are a manifestation of the exercise of personal
autonomy.
• the validity of human rights is necessarily tied to the
 Criticisms of Will Approach

• The first civism focuses on ‘marginal cases’

• It is on human beings who are temporarily or
permanently incapable of acting in a rationally
autonomous fashion.
• E.g. individuals with dementia, schizophrenia,
clinical depression, and in a comatose condition.
• If the capacity for acting in a rationally purposive
manner is a condition, those incapable fulfilling
criteria have no claim to HRs.
• this conclusion morally unacceptable and HRs is
extended towards so-called ‘marginal cases’.
• The will theorists’ criteria result in the exclusion of
 Schools of thought on human
rights
 Based on an analysis of the human rights
academic literature, Dembour(2010) identifies
four schools of thought on human rights.
These are:
The Natural School
Deliberative School
Protest School
Discourse School
I. The Natural School:
 embraces the most common and well-known definition of
HRs
 They are rights one possesses simply by being human and
are given
 They are entitlements that, at their core, are negative in
character and thus, are absolute.
 These entitlements are based on “nature,” a short-cut which
can stand for God, the Universe, reason, or another
transcendental source.
 Natural scholars believe HRs are founded in nature.
 They believe HRs exist independently of social recognition.
 For natural scholars, HRs derive from nature; their
universality is therefore a given.
II. Deliberative School
 The orthodoxy is increasingly moving towards this
school. It
 reject the natural element of HRs rather conceives
they are political values liberal societies choose to
adopt
 see human rights as emerging from agreement
 They would like to see human rights become universal
also recognise it needs time
 this will happen when everybody is convinced that
HRs are the best possible legal and political standards
 hold constitutional law as one of the prime ways to
express the HRs values that have been agreed upon.
III. The protest school
is concerned first and foremost with redressing injustice.
HRs articulate rightful claims made by or on behalf of the poor, the
unprivileged, and the oppressed.
They look at HRs as claims and aspirations that allow the status quo to
be contested in favor of the oppressed.
They are not particularly interested in the premise that HRs are
entitlements (though they do not reject it).
advocate relentlessly fighting for HRs, as one victory never signals the
end of all injustice.
accept that the ultimate source of HRs lies on a transcendental plane,
but more concerned with the concrete source of HRs in social
struggles, which are as necessary as they are perennial.
they tend to view HRs law with suspicion assuming it tends to favour
the elite and thus may be far from embodying the true HRs idea.
IV. The Discourse School
• lack of reverence towards human rights.
• Argues HRs exist only because people talk about
them.
They are convinced by neither human rights are
given nor that they constitute the right answer to the
ills of the world, but they do recognize that the
language surrounding human rights has become a
powerful language with which to express political
claims.
• They fear the imperialism of HRs imposition and
stress the limitations of an ethic based on
individualistic HRs.
 CHAPTER TWO

INSTRUMENTS OF HUMAN RIGHTS

At the end of this chapter you will be able to
identify and analyze:
International Instruments of Human
Rights:
Regional Instruments of Human Rights:
National Instruments of Human Rights:
• The modern conceptions of human rights are the result of
the recent and most horrific experience in human history.
• It Is Rooted In The Experiences Of What Is Called ‘Legal
Lawlessness’
• When Crimes Were Committed With Authorization Of
The Law,
• And When Some Human Beings Were Denied Their Status
As Such.
• This Experience Is The Experience Of The Second
World War (WWII).
• The Concept Of Human Rights Emerged Recently To
Replace The Phrases Like, ‘Natural Rights’, The Rights
Of Man, And Has Come To Every Day Use After WWII.
• By The First World War ,The Concept Of Natural Rights Came
Under Powerful Attack.
• The notion of human rights nonetheless endured in one form or
another.
• The rise and fall of Nazi Germany has brought the idea of human
rights truly into its own.
• The horrors of WWII gave momentum for the development of
modern human rights.
• It was recognized that domestic (national) laws and institutions are
not sufficient to protect individual and group interests and rights.
• Nazi Germany used national laws and institutions to deprive the
jews and other minorities of basic rights and freedom.
• The second world war showed the necessity of realizing the
principles of human rights and marked the birth of the international
human right movements.
 1. United Nations Charter
• The emergence of international human rights
system is basically related to that of United
Nations,
• It was established in 1945 by a Charter to
maintain international peace and security.
• UN is international organization of states
established to promote world peace and
cooperation.
• Its mission is to maintain world peace,
develop good relations between countries,
• promote cooperation in solving the world’s
• The UN is an organization of countries that agree to
cooperate with one another.
• It brings together countries that are rich and poor, large
and small, and have different social and political systems.
• Member nations pledge to settle their disputes peacefully,
to refrain from using force or the threat of force
against other countries,
• and to refuse help to any country that opposes UN actions.
• Thought the Charter does not incorporate bill of rights,
its preamble reaffirms a faith in international human rights,
• in the dignity and worth human persons, in the equal rights
of men and women of nations of large and small.
 2. The International Bill of Human Rights
• In 1946 the General Assembly gave the Commission
on Human Rights responsibility to prepare
international bill of human rights.
• In 1947 the Commission authorized Drafting
Committee consisting of 8 members of the
Commission to prepare the draft bill of human rights.
• The Drafting Committee decided to prepare two
documents: one in the form of a declaration which
would set forth general principles or standards of
human rights
• the other in the form of a convention which would
define specific rights and their limitations.
• the Committee transmitted to the Commission
draft articles of an international declaration and
an international convention on human rights.
• The Commission decided to apply the term
International Bill of Human Rights to the entire
series of documents in late 1947.
• On 10 December 1948,in Paris, the Universal
Declaration of Human Rights was adopted a day
celebrated each year as “Human Rights Day”.
• By 1950, the General Assembly passed a resolution
declaring that the enjoyment of civil and political
freedoms and of economic, social and cultural rights is
interconnected and interdependent.
• After lengthy debate, two covenants on human rights were
drafted by the commission: one for civil and political rights
and the other for economic, social and cultural rights.
• In 1966, two International Covenants on Human Rights
were completed
• The International Covenant on Economic, Social and
Cultural Rights (ICESCR) and the International
Covenant on Civil and Political Rights (ICCPR),
• They effectively translated the principles of the Universal
Declaration into treaty law.
• In conjunction with the Universal Declaration of Human
Rights, the two Covenants are referred to as the
International Bill of Human Rights”.
 A. The Universal Declaration of Human Rights(UDHR)
• The UDHR consists of a Preamble and 30 articles
• set out the human rights and fundamental freedoms to which all
men and women are entitled, without distinction of any kind.
• recognizes the inherent dignity of all members of the human
family
• It recognizes fundamental rights are the inherent rights of
human being
• Include the right to life, liberty and security of person; the right to
an adequate standard of living; the right to seek and enjoy asylum
from persecution in other countries;
• the right to freedom of opinion and expression; the right to
education, freedom of thought, conscience and religion; and the
right to freedom from torture and degrading treatment.
• Today, the Universal Declaration of Human Rights is widely
regarded as forming part of customary international law.
 B. The International Covenant on Economic, Social and
Cultural Rights(ICESCR)
• After 20 years of drafting debates, the ICESCR was adopted
in 1966 and entered into force in January 1976.
• greater international attention was given to civil and political
rights than to social, economic and cultural rights
• It leads to the erroneous presumption that violations of
economic, social and cultural rights were not subject to the
same degree
• This view neglected the underlying principles of indivisibility
and interdependent: the violation of one right may well
lead to the violation of another.
• Economic, social and cultural rights are fully recognized by
the international community and are progressively gaining
attention.
• ICESCR is designed to ensure the protection of people, based on the
expectation that people can enjoy rights, freedoms and social justice
simultaneously.
• The Covenant embodies some of the most significant international legal
provisions establishing economic, social and cultural rights. such as :
• rights relating to work in just and favorable conditions; to social
protection; to an adequate standard of living including clothing, food
and housing;
• to physical and mental health; to education and to the enjoyment of the
benefits of cultural freedom and scientific progress.
• States are required to take positive steps to the maximum of their
resources, in order to achieve the progressive realization of the rights
recognized in the Covenant,
• the Economic and Social Council is responsible to Monitor states
compliance
• It delegated this responsibility to a committee of independent experts
established for this purpose, namely the Committee on Economic,
Social and Cultural Rights
 C. The International Covenant on Civil and Political
Rights(ICCPR)
• ICCPR addresses the states traditional responsibilities for
administering justice and maintaining the rule of law.
• Many of the provisions in the Covenant address the
relationship between the individual and the State.
• States must ensure that human rights are respected, not only
those of the victim but also those of the accused.
• The civil and political rights include, the right to self-
determination; the right to life, liberty and security;
• freedom of movement, including freedom to choose a place
of residence and the right to leave the country
• freedom of thought, conscience, religion, peaceful assembly
and association;
• freedom from torture and other cruel and degrading
treatment or punishment;
• freedom from slavery, forced labor, and arbitrary arrest
or detention;
• the right to a fair and prompt trial; and the right to
privacy.
• The Covenant has two Optional Protocols
• The first establishes the procedure of complaints from
individuals claiming to be victims of violations
• The second envisages the abolition of the death penalty.
• Unlike the UDHR and ICESCR the ICCPR authorizes
a State to derogate from, or restrict, the enjoyment of
certain rights
• The derogate is allowed in times of an official public
emergency which threatens the life of a nation.
• Such limitations are permitted only to the extent strictly
required under the circumstances and must be reported
to the United Nations.
• some rights ,like the right to life and freedom from
torture and slavery, may never be suspended.
• Human Rights Committee monitor its implementation by
States parties.
• As of February 2017, the Covenant has 170 parties
• As of July 2013, the First Optional Protocol has 116 parties
• As of December 2017, the Second Optional Protocol had
85 parties
 Distinction of ICCPRs and ICESCRs
ICCPR
1. Objective is to ensure
freedom
2. Negative (freedom from)
3. Cost free (Individual
freedom)
4. Justiciable
5. Immediate Implementation
6. Absolute, Immutable
ICESCRs
1. Objective is to ensure
equality
2. Positive (right to)
3. Resources required
4. Political or programmatic
5. Progressive Implementation
6. Relative, responsive to
changing condition
 International Convention on the Elimination of all
3.
Forms of Racial Discrimination
• racial discrimination was one of the concerns behind the
establishment of the UN
• The Convention was adopted by the General Assembly in 1965 and
entered into force in 1969.
• Article 1 of the Convention defines the terms. racial
discrimination. As:
• “any distinction, exclusion, restriction or preference based on
race, colour, descent, national or ethnic origin with the purpose
or effect of nullifying or impairing the recognition, enjoyment or
exercise, on an equal footing, of human rights in any field of
public life, including political, economic, social or cultural life”
• definition encompasses a much wider range of grounds on which
discrimination can take place and covers not only intentional
discrimination, but also laws, norms and practices
• Parties to the Convention agree to eliminate discrimination in the
enjoyment of civil, political, economic, social and cultural rights;
• to provide effective remedies against any acts of racial
discrimination through national tribunals and State institutions.
• not to engage in acts or practices of racial discrimination against
individuals, groups of persons or institutions
• not to sponsor, defend or support racial discrimination by persons
or organizations;
• to review government, national and local policies and to amend or
repeal laws and regulations which create or perpetuate racial
discrimination;
• to prohibit and put a stop to racial discrimination by persons,
groups and organizations;
• and to encourage integration or multiracial organizations,
movements and other means of eliminating barriers between races
• as of January 2018, it has 179 parties.
4. Convention on the Elimination of all Forms
of Discrimination against Women
• was adopted by the General Assembly in
1979 and entered into force in 1981.
• a separate treaty for women was considered
necessary to combat the continuing evident
discrimination against women in all parts of
the world.
• specific areas where discrimination against
women has been flagrant are participation in
public life, marriage, family life and sexual
exploitation.
• The objective is to advance the status of women by utilizing a
dual approach.
• 1. requires States parties to grant freedoms and rights to women
on the same basis as men,.
• 2. It calls upon States parties to remove social and cultural
patterns, primarily through education, which perpetuate gender-
role stereotypes in homes, schools and places of work.
• States must take active steps to promote the advancement of
women as a means of ensuring the full enjoyment of human
rights.
• States parties need to make use of positive measures, including
preferential treatment, to advance the status of women and their
ability to participate in decision-making in all spheres of national
life.
• States parties agree, inter alia, to integrate the principle of the
equality of men and women into national legislation;
• to adopt legislative including sanctions where appropriate,
prohibiting discrimination again women;
• to ensure through national tribunals and other public
institutions the effective protection of women against
discrimination; a
• and to refrain from engaging in any discriminatory act or
practice against women in the private sphere.
• Article 17 of the Convention establishes the Committee on
the Elimination of Discrimination against Women to
oversee the implementation of its provisions.
• When the 1999 Optional Protocol enters into force, the
Committee’s functions will be expanded.
• As at March 2000, 165 States were parties to the
Convention.
5. Convention against Torture and other Cruel, Inhuman or
Degrading Treatment or Punishment
• Adopted on 10 December 1984 by the General Assembly,
• Aimed combating the practice of torture universally
• The Convention entered into force on 26 June 1987.
• Article 1 defines torture as:
“any act by which severe pain or suffering, whether physical or
mental, is intentionally inflicted on a person for such purposes
as obtaining from him or a third person information or a
confession, punishing him for an act he or a third person has
committed or is suspected of having committed, or intimidating
or coercing him or a third person, or for any reason based on
discrimination of any kind, when such pain or suffering is
inflicted by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an
official capacity”
• The overall objectives of the Convention are to prevent acts of
torture
• the Convention requires States parties to take preventive action
against torture
• criminalization of acts of torture and the establishment of laws
and regulations to promote respect for human rights
• Governments that are committed to eliminating torture must also
be committed to providing an effective remedy to alleged victims.
• This can be seen from the manner in which Governments address
complaints of torture.
• The existence of a functional system for the administration of
justice is critically important for victims of torture.
• The implementation of the Convention established a monitoring
body, the Committee against Torture.
• As at March 2000, 118 States were parties to the Convention.
 6. Convention on the Rights of the Child
• Both the League of Nations and the United Nations had
previously adopted declarations on the rights of the child
• specific provisions concerning children were
incorporated into a number of human rights and
humanitarian treaties.
• infant mortality, deficient health care and limited
opportunities for basic education, child exploitation,
prostitution, child labor and victims of armed conflict,
• led the United Nations to codify children’s rights in a
comprehensive and binding treaty.
• The Convention entered into force on 2 September 1990
within a year of its unanimous adoption by the General
Assembly(1989)
• The Convention embodies four general principles for guiding
implementation of the rights of the child:
1. non-discrimination ensuring equality of opportunity;
2. best interests of the child; That the best interests of the child
should be a primary consideration in all actions concerning
the child (art. 3);
3. The right to life, survival and development which includes
physical, mental, emotional, cognitive, social and cultural
development;
4. Children should be free to express their opinions, and such
views should be given due weight taking the age and
maturity of the child into consideration.
• Children’s rights include: free and compulsory primary
education; protection from economic exploitation, sexual abuse
and protection from physical and mental harm and neglect;
• The right of the disabled child to special
treatment and education; protection of children
affected by armed conflict; child prostitution;
and child pornography.
• the Committee on the Rights of the Child was
established to monitor the implementation of
the Convention by States parties.
• As at March 2000, an unprecedented 191
States were parties to the Convention:
• the largest number of ratifications of all
international instruments.
7. International Convention on the Protection of the
Rights of all Migrant Workers and Members of their
Families
• Throughout history, people have moved across borders for a
variety of reasons, including armed conflict, persecution or
poverty.
• Regardless of their motivation, millions of people are living
as migrant workers, as strangers in the States in which they
reside.
• Unfortunately, as aliens, they may be targets of suspicion or
hostility and this inability to integrate into society often places
them among the most disadvantaged groups in the host State.
• A vast number of migrant workers are uninformed and ill-
prepared to cope with life and work in a foreign country.
• Concern for the rights and welfare of migrant
workers led to the adoption of the International
Convention on the Protection of the Rights of All
Migrant Workers and Members of Their Families.
• The Convention was adopted by the General
Assembly on 18 December 1990 and will enter into
force following ratification or accession by 20
States.
• As at March 2000, only 12 States had ratified the
Convention.
• The Convention stipulates that persons who are
considered as migrant workers under its provisions
are entitled to enjoy their human rights throughout
the migration process,
• migrant workers are entitled to conditions equivalent to those
extended to nationals of the host States, including the right to
join trade unions, the right to social security and the right to
emergency health care.
• State parties are obliged to establish policies on migration,
exchange information with employers and provide assistance to
migrant workers and their families.
• the Convention stipulates that migrant workers and their
families are obliged to comply with the law of the host State.
• The Convention distinguishes between legal and illegal
migrant workers.
• It does not require that equal treatment be extended to illegal
workers but rather aims to eliminate illegal or clandestine
movements and employment of migrant workers in an irregular
situation
 REGIONAL HUMAN RIGHTS
• States in Africa, the Americas and Europe have
assumed binding human rights obligations at the
regional level.
• the Asian and Pacific region has not yet adopt
binding treaty
 1. Africa Human Rights System

• the African Charter on Human and

Peoples’ Rights was adopted In 1981
• It entered into force in October 1986,
• ratified by 53 States members of the
African Union.
• civil, political, economic, social and
cultural rights,
• collective rights of peoples to equality,
self-determination, discretion over their • Most of them are
wealth and natural resources,
solidarity
• development, national and international
peace and security and “a general rights(third
satisfactory environment "are rights generation rights)
recognized
• treaties in the areas of refugee protection and
children’s rights are also adopted.
• The Charter provides for a complaints procedure
before the African Commission on Human and
Peoples’ Rights, headquartered in Banjul, The
Gambia.
• complaints (or “communications”) may be
submitted by any person (including States and
any individual or collective entity, such as NGOs,
families, clans, communities or other groups)
• the legal question of the status of the victim does
not arise.
• The commission doesn't hear isolated complaints
• only communications suggesting the existence of a
pattern of serious or massive violations of human
and peoples’ rights are considered.
• An Additional Protocol to the Charter, adopted in
1998 providing the establishment of an African
Court on Human and Peoples’ Rights, entered into
force on 25 January 2004.
 2. The inter- Americas human
rights system
comprises two distinct processes,
1. The Charter of the Organization of
American States (OAS),
2. The Pact Of San José, Costa Rica (the
American Convention on Human Rights).
 the charter-based process is applicable
to all OAS(Member states)and is
weaker
 OAS has adopted
 The Convention, adopted in 1969 and in
special treaties on
force since 1978, focuses on civil and enforced
political rights disappearances,
 supplemented with an Additional Protocol torture, violence on
(1988-1999) addressing economic, social women,
and cultural rights. international
trafficking and
• The Convention provides for an inter-State and an individual
complaints procedure before the Inter American
Commission on Human Rights (IACHR) a quasi-judicial
monitoring body located in Washington, DC
• there is also the Inter-American Court of Human Rights,
located in San José (Costa Rica).
• Of the 35 States members of OAS, only 25 are parties to the
Convention.
• For the 10 States that have not ratified the Convention, only
the weaker, charter- based system
• Only States And The Commission Itself, Are entitled to bring
their cases before the Inter-American Court of Human Rights
Not individuals.
• To this date the court has adjudicated 50 cases of gross
human rights violation in the south America
 3. Arab League

In 1994 it adopted the Arab

Charter on Human Rights,
 none of the League’s 22
member States signed it.
 In 2003, the League Council
decided to redraft the Charter in
line with international human
rights law and standards.
A number of Arab
The draft was presented for
final discussion and adoption at States are in the
a Summit of the League of process of ratifying the
Arab States in May 2004, Charter.
• The charter is more advanced in respect of states of
emergency, fair trial guarantees, slavery, sexual
violence, disabilities and trafficking.
• it also provides a monitoring mechanism similar to
the UN Human Rights Committee,
• it paves the way for the establishment of one more
regional human rights protection and promotion
mechanism.
• But It does not envisage any individual complaints
procedure
• However, article 52 provides for the possibility of
adopting optional protocols.
 4. Asia and the Pacific

• No regional convention on
human rights.
• States focused on strengthening
regional cooperation to promote
respect for human rights.
• Established a framework of
cooperation in 1998 at Tehran

• agreed that the regional arrangements must address the

needs and priorities defined by the Governments of the
region.
• Roles, functions, tasks, outcomes and achievements are
to be determined by consensus.
 5. The Council Europe

• Established in 1949
• Its goal is protection of human
rights and fundamental
freedoms.
• it draw up the European
Convention for the Protection
of Human Rights and Social, economic and
Fundamental Freedoms, cultural rights are
signed in 1950 and came into enshrined in the
force in 1953. European Social Charter
• The Convention and its (1961-65)
Protocols constitute a general  and in its Additional
human rights treaty focused on Protocols and in the
civil and political rights. Revised European Social
Charter, 1996-99)
• The Council has adopted special treaties in the areas of
data protection, migrant workers, minorities, torture
prevention and biomedicine
• its Convention provides advanced system of human rights
monitoring at the supranational level.
• Under the Convention, any person, NGO or group of
individuals claiming to be a victim of a human rights
violation committed by one of the currently 47
member States is entitled, once all domestically
available possibilities of seeking remedy have been
exhausted, to file a petition to the European Court of
Human Rights, whose seat is in Strasbourg (France).
• The courts decisions are final and legally binding on the
States parties.
• implementation is monitored by the Committee of
 National Human Rights Institutions
• Human rights have been a core concern of the United Nations
since its inception.
• The responsibility to respect, protect and fulfil human rights
lies with States.
• They ratify international human rights instruments and are
required to create mechanisms to safeguard human rights.
• All parts of government are involved, together with other kinds
of national institutions and civil society
• include independent judiciary, law enforcements, legislative
bodies, and education systems with human rights programs at
all levels.
• Among these, national human rights institutions (NHRIs)
occupy a unique position.
What are National human rights Institutions?
• are State bodies with a constitutional and/or legislative
mandate to protect and promote human rights.
• are part of the State apparatus and are funded by the State.
• in compliance with the Paris Principles—they are the
cornerstone of national human rights protection systems,
• serve as relay mechanisms between international human
rights norms and the State.
• are unique and do not resemble other parts of government
• are not under the direct authority of the executive,
legislature or judiciary
• they are, as a rule, accountable to the legislature either
directly or indirectly.
Cont…
 They are at arm’s length from the Government and yet funded exclusively or
primarily by the Government.
 Their members are not elected, although they are sometimes appointed by
elected representatives.
are not NGOs
have a statutory legal basis and particular legal responsibilities as part
of the State apparatus.
 The differences between NGOs and NHRIs are the investigation of
complaints.
are neutral fact finders, not advocates for one side or another.
must be independent of the NGO sector, just as it must be
independent of the Government.
In investigation, NHRI may operate within a legally defined
framework
must comply with the general principles of justice and the rule of law.
 Cont…
 They are central elements of a strong national
human rights system:
they “bridge” civil society and Governments;
they link the responsibilities of the State to the
rights of citizens
 they connect national laws to regional and
international human rights systems.
NHRIs often find themselves criticizing the
actions of the very Governments that created and
fund them, which is not surprising since States are
frequently the targets of human rights complaints.
 Types of NHRIs
1. Human rights commissions፡
 They are State institutions with an explicit mandate to
protect and promote human rights. While many have
broad mandates, others have a specific focus, such as
women’s rights;
 They are typically headed by a number of full-time
and/or part-time members, who are decision makers;
 Investigation is a core function;
 Many can receive individual complaints
 Many have the authority to make recommendations
only, following investigation .
 Cont…
2. Human rights ombudsman institutions:
 They are State institutions, with a mandate to protect
and promote human rights;
 They are usually headed by a single member, who is
the decision maker (although some have deputies);
 They have a mandate to deal principally with human
rights, although they may be specialized in single
human rights issues such as women’s rights.
 They investigate human rights and can often receive
individual complaints;
Cont.…

• They are generally limited to making

recommendations.
• More recently, however, some have been given
authority to go to court or to a specialized tribunal in
specific instances where their recommendations have
been ignored or rejected. So this distinction does not
always hold.
• Ombudsman institutions with powers to make
recommendation—the majority—may be more
flexible and faster in handling complaints.
• While their decisions must be reasoned and supported
by evidence, they are not generally binding
3. Hybrid institutions ፡
 “Hybrid” NHRIs are single State institutions with
multiple mandates.
 They deal with human rights, but may also address
maladministration, corruption or environmental
matters.
4. Consultative and advisory bodies፡
 Consultative commissions tend to have a very broad
membership, with participation from many segments
of society.
 tend to focus on advising the Government on
major human rights issues and reporting on
particularly significant problems.
 They can make recommendations only and tend to
have broad research and advisory mandates across the
full range of human rights recognized by the State
 but do not generally have authority to entertain or
investigate individual complaints.
5. Institutes and centers
 A few institutions fall into the category of human
rights institutes or centers.
 Like consultative commissions, human rights
institutes or centers tend to have a very broad
membership that brings diverse representatives of
society together.
 They have not power to deal with individual
complaints.
 They differ from consultative commissions in that the
broad membership does not usually participate
directly in decision-making, which is left to a
professional staff, but rather sets the general policy
framework within which the center operates.
6. Multiple institutions
 An increasingly common phenomenon is multiple
institutions in the same country with responsibility
for promoting and protecting specific rights (e.g.,
rights related to gender, children or indigenous
peoples).
 Advantages of NHRIs
• enable States to meet their international responsibility “to
take all appropriate action” to ensure that international
obligations are implemented at the national level.
• As independent entities, but established by the Government
NHRIs occupy a unique terrain, one that can link civil
society to the Government
• Providing a neutral meeting point and focal point for human
rights encourages dialogue and facilitates cooperation
 The Roles of NHRIs
Human rights promotion፡
creating a national culture of human rights where
tolerance, equality and mutual respect thrive.
Human rights protection:
helping to identify and investigate human rights
abuses, to bring those responsible for human rights
violations to justice, and to provide a remedy and
redress for victims.
 Limitations and Derogations in Human Rights
Limitations
• Human rights Conventions and other instruments
may contain a number of restrictions or limitations to
the rights they stipulate.
• only few rights and freedoms are ‘absolute’.
• restrictions must be used only to establish the proper
limits of the protected right and not as an excuse for
undermining the right itself or destroying it
altogether.
• there must be a proportionate relationship between
the restriction of the right and the reason for the
restriction.
• International instruments contain provisions allowing
restrictions/limitations on human rights.
• Such provisions may take the form of general limitations. For
example,
• Article 4 of ICESCR stated rights may be limmited for the purpose
of  promoting general welfare in a democratic society.
• Article 32(2) of the American Convention on Human Rights
(ACHR) stated The rights of each person are limited by the rights of
others, by the security of all, and by the just demands of the general
welfare, in a democratic society’.
• The African Charter on Human and Peoples’ Rights Article 27(2)
on ‘duties’ has come to play the role of a general limitation clause
providing:
• ‘The rights and freedoms of each individual shall be exercised with
due regard to the rights of others, collective security, morality and
common interest.’
• Most HRs treaties contain specific provisions to specify
the limitations and restrictions
• specific limitation clauses include ‘prescribed by law’,
‘in a democratic society’, ‘public order (ordre public)’,
‘public health’, ‘public morals’, ‘national security’,
‘public safety’ and ‘rights and freedoms of others’.
• FOR freedom from torture or slavery no limitations
have been formulated.
• When a right is subject to a limitation, no other
limitations are permitted
• any limitation must comply with the following minimum
requirements:
1. The limitation must not be interpreted so as to
jeopardise the essence of the right concerned;
2. The limitation must be interpreted strictly in the light
3. The limitation must be prescribed by law and be
compatible with the object and purpose of the instrument;
4. The restriction must be based on a law;
5. The restriction must be necessary;(pressing social need,
assessed on a case-by-case basis; the law would be
useful is in itself not sufficient; be consistent with other
protected rights; be ‘necessary’ (in a democratic society)
6. The restriction must be justified by the protection of a
strictly limited set of well-defined public interest(grounds:
national security, public safety, public order (ordre public),
the protection of health or morals, and the protection of
the rights and freedoms of others)
 Derogations

• Derogation measures are temporary deviations that limit or detract

from the rights provided by human rights instruments.
• allow states to suspend certain individual rights under exceptional
circumstances.
• What constitutes these “exceptional circumstances” vary from
instrument to instrument.
• Under ICCPR they are referred as “times of public emergency
which [threaten] the life of the nation.
• The European Convention on Human Rights (“ECHR”) employ the
operative phrase “time of war or other public emergency
threatening the life of the nation.”
• the American Convention on Human Rights (“ACHR”) “outlines a
wider variety of situations” include “[times] of war, public danger,
or other emergencies that [threaten] the independence or
securityof a [state].
• states cannot merely invoke the existence of exceptional
circumstances to evade the obligations.
• A state that wants to derogate from its human rights obligations
has to immediately inform other states of its intention to do so,
and has to toprovide information regarding three matters:
1. “the provisions from which it has derogated;
2. the reasons by which it was actuated;
3. the date on which it terminates such derogation.
• This notification is essential to allow the bodies administering
the human rights to use instruments to assess whether the
measures “were strictly required by the exigencies of the
situation’
• And to evaluate the compliance of the state with the
requirements of the relevant instruments.
• Need domestic procedure to inform the
population about the emergency.
• failure tocomply with the procedural
obligations “will not necessarily deprive states
of its option to derogation.”
• However, states‘ non-compliance may be
taken as prima facie evidence of bad faith.
 Substantive requirements for derogation
• The Existence Of An Emergency ;It must be actual
or imminent such that “the continuance of the
organised life of the community(the state) must be
threatened.
• It must be exceptional such that it affects a state’s
“physical integrity, political independence or
territorial integrity, or the existence or function of
indispensable institutions designed to protect human
rights.
• Proportionality Of Measures ; the measure must be
proportional and be only “to the extent strictly
required” by the circumstances.
• taken for as long as the threat to the life of the nation
• Conformity With Other International Law
Obligations; The measure must not be inconsistent
with the state’s other international law obligations.
• Non-Discrimination; the measures may not
discriminate solely on the ground of race, colour,
gender, language, religion, or social origin
• Observance Of Non-Derogable Rights. while there
is no hierarchy concerning the importance of rights,
• there are certain rights the operation of which may
not be suspended even in times of emergency.
 UNIT THREE

HUMAN RIGHTS AND HUMAN

RIGHT INSTITUTIONS IN
ETHIOPIA
 Ethiopian Human rights experience

• It is believed by that human rights are generously

recognized in the contemporary constitutional
system of Ethiopia.
• the FDRE Constitution marks a departure from
the past.
• The constitutional past of the country suggests that
the concept and practice of human rights was not
developed.
• In the era of unwritten constitutions(before 1931)
citizens were mere subjects having privileges and
benefits emanating from the Omni-benevolent
Emperors merely on their goodwill.
• Citizens are not assumed to have rights in the
 Historical Sketch
• In the era of written constitutions the issue of human
rights trend continued unmitigated.
• The 1931 Constitution being an Imperial grant (to the
beloved subjects), it did not recognize human rights as such.
it stressed duties of the people.
• The being “entitled” to special privileges and benefits
depending on the whims and conjectures of the
Emperor.
• The state is considered to owe no duty to the people.
• There was hardly any constitutional limit to state power.
• The state power was tacitly imposed by religion and
tradition (the principal sources of legitimacy in Ethiopia
for centuries)
• In the Revised Constitution of 1955, continuity (rather
than change) was dominant.
• The monarchy continued to be absolute. The state
(and the bureaucracy) tended to be aristocratic.
• there was a stride made to embrace the ideals of
rudimentary democracy and human rights but there
was much to be desired in practice.
• There was recognition of a number of human
rights in the constitution (including the right to
assembly, association, and election, etc)
• but often constrained by the claw back clauses
marked by the phrase such as “in accordance with the
law”,or “as shall be determined by law”.
• One of the pressing problems of the time was the lack of access,
on the part of the peasants, to economic “facilities”
• That undermined the economic freedoms of large proportion of
the population.
• In 1974, the cumulative effect of long held popular
discontents led to a socialist revolution that dethroned the
Emperor.
• a Provisional Military Administrative Council (PMAC) of a
committee (Derg in Amharic) was established and control the sate
machinery
• suspended the constitution and dismissed the parliament.
• The group ruled the country for about 13 years without a formal
body of law (1974 to 1987).
• In that period the state of human rights deteriorated both
conceptually and practically.
• some human rights aspects where seen in that period
at least in rhetoric. Such as;
• The redistribution of land and urban houses(socio-
economic rights)
• The secularization of the state led to the
declaration of equality and non-discrimination on
the basis of religion albeit much less to freedom of
religion.
• Recognition of linguistic and cultural equality led to
the denunciation of discrimination on linguistic and
cultural grounds.
• This trend to emphasize socio-economic and
cultural rights was continued in the 1987
Constitution of the Peoples’ Democratic Republic of
• the derg followed a protectionist state that put a high premium on
the importance and primacy of economic, social, and cultural
rights.
• yet, there hardly was the concept of human rights as
entitlement.
• there was hardly a vibrant human rights culture that specially
fostered the assertion of civil and political rights.
• After the fall of the Derg in 1991, the new regime
promulgated a Transitional Charter which served as the interim
constitution of Ethiopia for the time of the transition.
• The Charter, extended guarantee to a host of rights as recognized
by the UDHR and other international instruments.
• The accent was on Civil and Political rights.
• And yet the practice left much to be desired even in these
times.
 The FDRE Constitution
• was adopted in 1994 to come into force in 1995.
• The FDRE Constitution is believed to be a
compact document with an admirable degree of
clarity and conciseness.
• It has 106 articles packed in 11 chapters.
• It offers a long list of rights that are divided
into two categories,
• ‘Human Rights’ and ‘Democratic Rights ‘ in its
chapter three (the chapter that can qualify for
being the Ethiopian Bill of Rights)
• The Preamble embodies the principles of self-
determination of Collectivities, rule of law,
democracy, development, fundamental rights and
freedoms (of individuals and peoples), equality
and non-discrimination, peace, affirmative action,
etc.
• chapter two, on the “Fundamental Principles”, five
principles were recognized.
• the principles of sovereignty of the Nations,
Nationalities, and Peoples of Ethiopia (art 8);
• constitutionalism and constitutional supremacy (art
9);
• sanctity of human rights (art 10);
• secularism (art 11);
• By virtue of the principle of popular sovereignty,
the principle of democracy (the power to make, run,
and even break one’s own government) was recognized.
• The perusal of art 8 gives the impression that direct,
indirect, and participatory democracy is anticipated.
• The principle of constitutionalism enshrined in art 9,
stresses that there shall be no ascent to, and exercise of,
power except in accordance with the.
• Art 9 also enshrined the principle of constitutional
supremacy thereby superimposing the constitution on
all other competing forms of law or practice.
Consequently, all laws, decisions, and practices that
were incompatible with the constitution are void.
• article also recognizes the fact that international
treaties adopted by Ethiopia are part and parcel of the
legal system.
• The principle of sanctity of human rights (art
10)stipulates the inviolability and inalienability of
fundamental rights and freedoms of ‘mankind’.
• The principle of secularism (art. 11) establishes
that state and religion are separate, that there is no
religion particularly favored by the state, and that
the two realms are mutually exclusive in the
sense that one does not interfere in the business of
the other.
• The separation of state and religion and the abolition
of state religion is a remarkable departure from
• The principle of mutual non- interference of the secular in
the sacred and of the sacred in the secular is also another
remarkable departure from the past in which state action
depended, to a large extent, on religion for its legitimacy.
• The principle of accountability and transparency of
government (art 12) establishes that government must be
both responsible and responsive to the electorate make its
operations public, open, and accessible to citizens.
• The notion of making government responsible for its
misdeeds, which was alien to Ethiopia’s constitutional
past, goes a long way in helping Ethiopians to take a
financial, power/mandate, and time audit of the
government
• The cumulative effect of these five fundamental
principles is that they create a friendly environment
for a better protection of human rights in
Ethiopia.
• One notes that these principles shape, influence,
and control the behavior of legal and political actors
in the public life of Ethiopia as they provide a
framework of understanding the system.
• The foundational principle that grips the
normative structure of human rights in Ethiopia is
the principle of sanctity of human rights enshrined
under Article 10 of the FDRE Constitution.
• It reads as follows: (1) “Human rights and
freedoms, emanating from the nature of mankind,
• This article enunciates the principle of sanctity of
human rights in unequivocal terms
• The phrase “human and democratic rights” seems to
make a distinction between the two.
• Pointing to the classification of the list of rights in
chapter three into two parts named “Human Rights”
(Arts 14-28) and “Democratic Rights” (Arts 29-
44).
• of the institutional structure, the primary
institutions responsible for the protection, promotion ,
and enforcement of human rights in Ethiopia are:
• the legislature ( [HPR] and [HoF]),
• the executive (especially those institutions such as the
police, prosecution, prisons who administer civil and
political rights and
• those who are in charge of providing public goods
and services such as education, health, social welfare,
clean environment, clean water, etc),
• and the judiciary (which includes the institutions
with the responsibility to adjudicate cases over
constitutional disputes such as the Council of
Constitutional Inquiry [CCI] and HoF)
• the primary institutions that are custodians of the
human rights norms in Ethiopia are the mainstream
institutions in charge of rights administration.
• In addition to the above mentioned institutions, the
Ethiopian Human Rights Commission (EHRC), the
Institution of the Ombudsperson, and some similar
institutions as special bodies that serve as ‘patrons’ of the
human right norms in Ethiopia
• It is important to stress that these institutions have a
secondary role compared to the role of the
mainstream rights administration institutions .
• The EHRC, for instance, is an institution whose
promotional task appears larger than its protection and
remedial tasks .
• on the law promulgated to establish the Commission,
Proclamation No. 210/2000-that it tends to focus on a
systemic problem rather than specific cases.
• Also the sanction that the HRC (or the Institution of
the Ombudsperson) has at its disposal is the
mobilization of shame on institutions( naming an
shaming) that perpetrate abuse (or neglect) of
rights through publicizing a report while also
doing the best it can to liaison with institutions
working towards securing relief to specific
victims of abuse.
 Limitation and Derogation of Rights under the Ethiopian Constitution

Limitations
• Most human rights are not absolute and have certain limits to
the exercise of rights.
• Limitations refer to infringements or encroachments on
guaranteed rights under narrowly contoured permissible
circumstances.
• There are internal individualized/specific limitation and
general limitation clauses
• The Ethiopian Constitution only contains claw-back clauses
within most of the protected rights.
• Some of the internal limitations simply refer to those
limitations determined or established by law
• while others are more detailed and require
compelling circumstances and specific laws
necessary to safeguard public security, peace, the
prevention of crimes, public morality, and the
protection of the rights and freedoms of others.
• There are therefore different standards depending
on which right the Constitution seeks to limit.
• There is the absence of a more sweeping general
limitation clause in the Constitution that would
have ensured uniformity of standards.
• The absence of a general limitations clause may have
advantages as it leaves some rights, which do not
have internal limitations, beyond limitations.
• For instance, the protection against torture and
inhuman treatment or punishment in the Ethiopian
Constitution may not in any way be limited.
• lack of a general limitation clause can have its
downsides, as it might invite arbitrary, limitless
limitations.
• Some in fact describe the general limitation clause as
the most important clause in a bill of rights.
• general limitation clause, may potentially limit every
rights
• and rights with internal limitation will be subjected
 Problems concerning limitation of rights under the
Ethiopian Constitution
1. There is no requirement in some cases, such as the right to life
and liberty, that the limitation be rationally connected to the
purpose it aspires to achieve, and be necessary and proportional
so long as the limitation is based on law.
• E.g. capital punishment on children Apparently, so long as the
limitation emanates from a law, whatever its purpose, it is a
permissible limitation.
2. There is no definition as to what ‘law’ means: does it include
parliamentary statutes only? Or does it also include regulations,
directives or even rules and practices of administrative
agencies? Should it moreover be a law of general application,
clear, precise and accessible allowing predictability?
• Are questions In determining the justifiability of limitations,
 Derogation
• FDRE Constitution recognizes possibilities require the
suspension of protected rights.
• Derogation permit the temporary suspension of the application
and enjoyment of rights in response to incidences of emergency
that threaten the life of a nation.
• There are certain rights, which may not be suspended even in
threatening situations.
• Article 93 of the Constitution prescribes the procedural and
substantive requirement for derogation.
• conditions that justify derogations are occurrence of an external
invasion, a breakdown of law and order which cannot be
controlled by the regular law enforcement agencies and personnel,
or the occurrence of a natural disaster or an epidemic.
• The Council of Ministers of the federal Ethiopian
government has the power to declare state of emergency
• The Regional States can declare state of emergency to avert
natural disaster or epidemic in their territories.
• The ultimate power to approve or annul a declaration of
emergency made by the Council of Ministers lies with the
House of Peoples’ Representatives (HPR).
• This decision is required to be made within 48 hours if the
HPR is in session or within 15 days if the HPR is not in
session at the time of the declaration of emergency.
• Upon approval by a 2/3 majority vote, the state of
emergency may remain up to 6 months subject to its renewal
for up to four months on each occasion through the same
procedure..
Non-derogable rights under FDRE
• prohibition against cruel, inhuman, and degrading
treatment or punishment, and slavery or servitude,
and trafficking (Article 18),
• the right to equality and equal protection of the law
(Article 25),
• and the right to self-determination up to secession
(Article 39).
• The Constitution requires the HPR to establish an ad
hoc State of Emergency Inquiry Board consisting of
seven members chosen and assigned by the House
from among its members and from legal experts.
• This body monitors and follows up the situation
• ensure no measure taken during the state of
emergency is inhuman
• ensures the “prosecution of perpetrators of
inhuman acts”.
• It does not provide for the duty of the Council of
Ministers or the HPR to publish the State of
Emergency declaration and ensure its
accessibility.
• it does not reaffirm the duty of the State to
inform, inter alia, member states to the ICCPR.
The Ethiopian Human Rights Commission (EHRC)
and Its Structure
• The Ethiopian Human Rights Commission and the office of
Ombudsman represents the semi-judicial human rights system
of Ethiopia.
• Article 3. proclamation No 210/2000 states the human rights
commission is an autonomous organ of the federal government
having its own juridical personality.
• the commission is responsible the house of the peoples'
representatives.
• Article 55 of the FDRE Constitution requires the Federal
government to establish a Human Rights Commission and an
Office of Ombudsman,
• Article 5 of Proclamation 210/2000 states that the objective of
the Human Rights Commission is to educate the public be
aware of human rights, to see that human rights are protected,
respected and fully enforced as well as to check whether the
• The Human Rights Commission and the Offices of
Ombudsman are mandated to promote human rights
nation-wide.
• expected to render awareness creation to the public
and members of relevant institutions and civil society
organizations.
• Structural organization of the HRs commission: as it
is stated under article 8 of the proclamation:
a) A council of commissioners
b) (1) A Chief commissioner
(2) A deputy chief commissioner
(3) A Commissioner heading the children and
women affairs
( 4) Others commissioners and
 Objectives of the commission

1. Human Rights Education- the core of this activity (using face to face; or via
the media, publications; supporting awareness raising education and promotion
2. Human Rights Protection (complaint investigation) – dealing with inherited
backlogs, filed complaints, sensitive or priority cases, systemic or group issues;
ensuring the application of remedies, attempting amicable resolution of cases as
well as ensuring the implementation of settlements.
3. Human Rights Monitoring –monitors places of detention; ensures the;
undertakes event monitoring.
4. Advising Government- provision of advice on existing legislation, policy and
practices; provision of advice on proposed legislation, policy and practices as
well as provision of advice on Treaty Bodies Reporting to the Government.
5. Human Rights Research-conduct in-house or contracted research into human
rights issues; the development of guidelines, policies, procedures, etc; program
delivery; encourages academic research into human rights issues and develop a
program of action research.
6. Democratic Institutions Program (DIP)- Major donors and UN
agencies have agreed to collectively support the strengthening of the
capacity of the main democratic institutions in the Country including
the Ethiopian Human Rights Commission (EHRC).
• The program aims at strengthening the capacity of the EHRC to be in
full compliance with international standards for national human
rights institutions (such as the Paris Principles) and pursues with the
objectives to:
a) Strengthening national capacity to respect, protect, promote and
fulfill human rights;
b) Facilitate the enhancement of skills relating to treaty reporting
obligations, documentation, public awareness and project development
and management; and
c) Strengthening of the public awareness of human rights and the
capacity of Ethiopian Civil Society to participate and network in the
promotion, protection, and awareness raising on human rights.
 The Ethiopian Institution of the
Ombudsman (EIO)
• The institution of ombudsman was established by the
house of peoples’ by The proclamation No.211/2000
• it is accountable to the house of peoples’
representatives.
• The institution has council of Ombudsman, a chief
Ombudsman, a deputy chief Ombudsman, an
Ombudsman heading the children and women affairs,
Ombudsman heading branch offices and the
necessary staff.
• the main function of the EIO is to prevent and rectify
maladministration and, to promote good governance.
• The EIO is designed to prevent and remedy
(rectify) arbitrary or unjust administrative
actions of the executive vis-à-vis its citizens,
• and to provide an easily accessible means to
the public to assure that the basic rights are not
violated by the executive
• its main objective is to duly rectify or prevent
the unjust decisions and orders of executive
organs, and officials thereof.
 CHAPTER FOUR
HUMANITARIAN LAW AND
HUMANITARIAN
ASSISTANCE
 International Humanitarian Law
• It is a law, set of rules which seek, for humanitarian reasons, to
limit the effects of armed conflict.
• protects persons who are not or are no longer participating in
the hostilities
• restricts the means and methods of warfare.
• also known as the law of war or the law of armed conflict.
• is part of international law, which is the body of rules
governing relations between States.
• It does not regulate whether a State may actually use force or
not rather how it uses its force
• whether a State may actually use force is governed by an
important, but distinct, part of international law set out in the
United Nations Charter.
• It is rooted in the rules of ancient civilizations and
religions
• warfare has always been subject to certain principles
and customs.
• Universal codification of international humanitarian law
began in the nineteenth century.
• States have agreed to a series of practical rules, based
on the bitter experience of modern warfare.
• These rules strike a careful balance between
humanitarian concerns and the military requirements of
States.
• an increasing number of States have contributed to the
development of those rules.
• International humanitarian law forms today a universal
body of law.
• A major part of IHL is contained in the four Geneva
Conventions of 1949.
• Nearly every State in the world has agreed to be bound
by them
• The Conventions have been developed and
supplemented by two further agreements: The
Additional Protocols of 1977 relating to the protection
of victims of armed conflicts.
• Other agreements prohibit the use of certain weapons
and military tactics and protect certain categories of
people and goods. include:
• the 1954 Convention for the Protection of Cultural Property
in the Event of Armed Conflict, plus its two protocols;
• the 1972 Biological Weapons Convention;
• the 1980 Conventional Weapons Convention and its five
protocols;
• the 1993 Chemical Weapons Convention;
• the 1997 Ottawa Convention on anti-personnel mines;
• The 2000 Optional Protocol to the Convention on the Rights
of the Child on the involvement of children in armed conflict.
• Many provisions of international humanitarian law are now
accepted as customary law – that is, as general rules by which
all States are bound.
• International humanitarian law applies only to armed conflict;
it does not cover internal tensions or disturbances such as
isolated acts of violence.
• The law applies only once a conflict has begun, and then
equally to all sides regardless of who started the fighting.
• International humanitarian law distinguishes between
international and non-international armed conflict.
• International armed conflicts are those in which at least
two States are involved.
• They are subject to a wide range of rules, including those set
out in the four Geneva Conventions and Additional Protocol I.
• Non-international armed conflicts are those restricted to the
territory of a single State,
• involving either regular armed forces fighting groups of
armed dissidents, or armed groups fighting each other.
• A more limited range of rules apply to internal armed
conflicts and are laid down in Article 3 common to the
four Geneva Conventions as well as in Additional
Protocol II.
International humanitarian law covers two areas:
• The Protection of those who are not, or no longer,
taking part in fighting;
• Restrictions on the means of warfare – in particular
weapons – and the methods of warfare, such as military
tactics.
 Protections
• protects those who do not take part in the fighting, such as
civilians and medical and religious military personnel.
• It also protects those who have ceased to take part, such as
wounded, shipwrecked and sick combatants, and prisoners
of war.
• These categories of person are entitled to respect for their
lives and for their physical and mental integrity.
• They also enjoy legal guarantees.
• They must be protected and treated humanely in all
circumstances, with no adverse distinction.
• it is forbidden to kill or wound an enemy who surrenders or
is unable to fight; the sick and
• wounded must be collected and cared for by the party in whose
power they find themselves.
• Medical personnel, supplies, hospitals and ambulances must all
be protected.
• The conditions of detention for prisoners of war and the way in
which civilians are to be treated when under the authority of an
enemy power.
• This includes the provision of food, shelter and medical care,
and the right to exchange messages with their families.
• The law sets out a number of clearly recognizable symbols
which can be used to identify protected people, places and
objects.
• The main emblems are the red cross, the red crescent and the
symbols identifying cultural property and civil defense facilities.
 Restrictions
• International humanitarian law prohibits all means and
methods of warfare which:
• fail to discriminate between those taking part in the
fighting and those, such as civilians, who are not,
• protect the civilian population, individual civilians and
civilian property;
• cause superfluous injury or unnecessary suffering;
• cause severe or long-term damage to the environment.
• banned the use of many weapons, including exploding
bullets, chemical and biological weapons, blinding
laser weapons and anti-personnel mines.
 State Compliance
• There are countless examples of violation of international
humanitarian law
• Increasingly, the victims of war are civilians.
• there were cases where international humanitarian law has made
a difference in protecting civilians, prisoners, the sick and the
wounded, and in restricting the use of barbaric weapons.
• Given that law applies during times of extreme violence,
implementing the law will always be a matter of great difficulty.
• striving for effective compliance remains as urgent as ever.
• Measures must be taken to ensure respect for international
humanitarian law.
• States have an obligation to teach its rules to their armed forces
and the general public.
• They must prevent violations or punish them if these
nevertheless occur.
• They must enact laws to punish the most serious violations of the
Geneva Conventions and Additional Protocols,
• The States must also pass laws protecting the red cross and red
crescent emblems.
• Measures have also been taken at an international level
• tribunals have been created to punish acts committed in two
recent conflicts (the former Yugoslavia and Rwanda).
• An international criminal court, with the responsibility of
repressing inter alia war crimes, was created by the 1998 Rome
Statute.
• Whether as individuals or through governments and various
organizations, we can all make an important contribution to
compliance with international humanitarian law
 The Geneva Conventions
• are series of international agreements that created and
developed international humanitarian law
• protect wounded combatants and those who assist
them, prisoners of war, and civilians during times of
war or other conflicts.
• The campaign for such laws began with the
publication of Un Souvenir de Solferino (A Memory of
Solferino, 1862; translated 1911) by Swiss
philanthropist Jean Henri Dunant.
• The book described the suffering of wounded soldiers
at the northern Italian battlefield of Solferino in June
1859.
• It advocated for the creation of a relief society
and the adoption of a treaty that would give
protection on the battlefield to the wounded
and those who assisted them.
• These proposals ultimately led to the adoption
of the Geneva Conventions and the founding
of the International Committee of the Red
Cross (ICRC),
• later became the International Committee of
the Red Cross and Red Crescent Movement.
 The Four Geneva Conventions
• There have been four Geneva Conventions, each of which has
subsequently been amended.
• The name derives from Geneva, Switzerland, the city where the
conventions were negotiated.
• The first Geneva Convention was adopted in 1864 and provided
for the protection of sick and wounded soldiers on the field of
battle.
• The second convention, formulated in 1906, extended those
protections to sailors wounded in sea battles.
• The third convention, in 1929, protected prisoners of war (POWs).
• It legislated that POWs were not criminals, should be treated
humanely, and should be released at the end of hostilities.
• The fourth convention, ratified in 1949, rewrote, expanded, and
replaced the language of the first three conventions.
• The fourth convention also provided for the protection of civilians during
wartime.
• prohibit murder, torture, hostage-taking, and extra-judicial sentencing and
executions.
• “the Geneva Conventions” refers to the three conventions that were
recodified in 1949 and the fourth convention that was added that same year.
• Humanitarian law is comprised of the Geneva Conventions and the 1899
and 1907 Hague Conventions.
• the Geneva Conventions primarily protect victims of war,
• The Hague Conventions and accompanying regulations primarily protect
combatants and noncombatants by limiting the methods and means of
combat.
• The Hague regulations protect prisoners of war; prohibit poisonous
weapons and weapons calculated to cause unnecessary suffering; and
killing or wounding an enemy who has surrendered.
• They also provide that an occupying power must respect “the laws in force
in the country.”
 The Two Additional Protocols
•In 1977 two protocols were added to the Geneva
Conventions of 1949.
•Protocol I extends the law relating to protections of victims
of armed conflicts
•Protocol II extends protection to victims of internal
conflicts in which an armed opposition controls enough
territory to enable it to carry out sustained military
operations.
 The Third Geneva Convention
• amended in 1949, 
• known as the Geneva Convention Relative to the
Treatment of Prisoners of War(PLOs),
• sets forth criteria to determine who is a POW, a protected
person under.
• a competent tribunal must decide PLO status Where a
doubt arises
• POWs are entitled at all times to humane treatment and
respect for their personal dignity and honor.
• Their lives and health must not be endangered.
• They must be protected against violence or intimidation,
insults, and public curiosity.
• They must be maintained in conditions as
favorable as those for the forces of the detaining
power.
• No physical or mental torture, nor any other form
of coercion, may be inflicted on POWs to secure
information from them.
• POWs who refuse to answer questions may not be
threatened insulted, or exposed to unpleasant or
disadvantageous treatment of any kind.
• POWs are bound to give only their surnames, first
names and rank, date of birth, and “army,
regimental, personal or serial number.”
 The Fourth Geneva Convention
• adopted in 1949, known as the Geneva Convention Relative to
the Protection of Civilian Persons in Time of War,
• Made explicit the protections that should be extended to
civilians during wartime.
• It requires that protected persons—civilians, the wounded,
and POWs—be treated humanely.
• Such persons are, in all circumstances, entitled to respect for
their honor and religion, and must be protected against insults
and public curiosity.
• No physical or moral coercion shall be exercised to obtain
information from them or third parties.
• Reprisals against protected persons and their property are
prohibited.
 Countries Belonging to the Conventions
• As of 2005, 192 countries had ratified (thus becoming parties to) all
four of the Geneva Conventions.
• Additional Protocol I had been ratified by 161 states and 156 countries
had ratified Additional Protocol II.
• Nearly every country has ratified the Geneva Conventions, so they are
now considered customary international law.
• The United States is a party to the four Geneva Conventions, but has
not ratified the two Additional Protocols.
• The United States refuses to ratify Protocol I because it claims the
protocol will legitimize groups involved in wars of national
liberation.
• The United States also decided not to ratify Protocol II, fearing that it
might enhance the status of rebels.
• Without the Additional Protocols, recent conflicts in Bosnia and
Herzegovina, Sierra Leone, and the Democratic Republic of the
Congo might not have been covered by humanitarian law.
 Grave Breaches and War Crimes
• The Geneva Conventions and Additional Protocol I require the
ratifying parties to repress grave breaches of the conventions,
• the ratifying parties—are required to search for persons who have
allegedly committed or ordered the commission of grave breaches of
the conventions
• bring those persons before their own courts, or hand them over to
another state party for trial.
• Grave breaches willful killing, torture or inhuman treatment,
including biological experiments;
• willfully causing great suffering or serious injury to body or health;
• compelling one to serve in the forces of a hostile power;
• willfully depriving one of the right to a fair trial.
• taking of hostages;
• extensive destruction and appropriation of property not justified by
military necessity
 Humanitarianism and humanitarian Intervention
• humanitarianism is an ethics of kindness, benevolence and
sympathy extended universally and impartially to all human
beings.
• It is an evolving concept historically but universality is a common
element in its evolution.
• No distinction is to be made in the face of human suffering or
abuse on grounds of tribal, caste, religious or national divisions.
• It is an ethic of active compassion, which became expressed in
philanthropy and social welfare.
• humanitarian action was led increasingly to vindication of the
respect owed to the individual human being.
• The idea, originating in stoic natural law, became, in its Christian
and secular manifestations, an important influence in European
thought.
• There are two fundamentally different paradigms of activities
that have been termed ‘humanitarian intervention’.
• The ‘Classic’ Paradigm involves the use of force by one or
more states in the territory of another for protecting the
latter’s people from human rights violations.
• Broadly it can be seen as the use of force by one state in
another state to protect anyone, including its own citizens
from human rights violations.
• Narrowly, actions involving the use of force by one state in
the territory of another in order to protect indigenous
populations
• acts intended to protect nationals of the intervening state
defined as acts of self-defense, not ‘humanitarian
intervention.’
• The second paradigm define it as acts that
involve the direct provision of humanitarian
services (e.g. medical care, food, shelter) in
the territory of other nations without the
consent of the recipient nation.
• state or non-state actors-
examples ,International Committee of the Red
Cross (ICRC) or Doctors without Borders may
provide it.
• Such activities fall under the definition of
humanitarian intervention,
 Evolution of Humanitarianism
• The universality of Humanitarianism is explained in religious
books
• The Enlightenment advanced the idea that humanity could be
improved by reform of laws and change in social structure.
• This idea combined with the humanitarian ethic of active
compassion.
• Both became the impelling influences upon humanitarian
social action from the 18th century.
• Humanism is associated with the Renaissance and the revival
of classical learning which took place in the 15th century. T
• both Humanitarianism and Humanism share a common view
as to the importance of 'Man'.
• Unlike Humanitarianism, humanism tends to exclude
any religious basis for that importance.
• A major difference is that Humanism was not
impelled to engage in action to protest abuses or move
collectively for the relief of human suffering.
• humanism and humanitarianism shared the value of
autonomy, articulated in the Enlightenment, and both
equally rejected superstition as a justification for
socially approved cruelty.
• In the 18th and 19th centuries the ethic of active
compassion coalesced with other ideas and the
interaction resulting from this turned humanitarianism
 The Core Principles of Humanitarianism
• There are many principles of humanitarianism. The
following are among the most important ones:
Relieve life-threatening suffering
• Humanitarian action should be directed towards a
relief on immediate life-threatening suffering.
• The response, or non-response of international
community however, influenced by considerations
like
• The injection of political agenda
• Bureaucratic Inertia-Governments
Proportionality to need:
• Humanitarian action should correspond to the
degree of suffering, wherever it occurs.
• It should affirm the view that life is as
precious in one part of the globe as another.
• proportionality is self-evident and
unobjectionable.
Non-Partisanship
• Humanitarian action responds to human
suffering without taking sides in conflicts.
Independence
• humanitarian organizations should be free of
interference from home or host political authorities.
• Humanitarian space is essential form effective action.
Appropriateness
• Humanitarian action should be tailored to local
circumstances and aim to enhance, not supplant,
locally available resources.
• require using humanitarian initiatives to strengthen
local capacity while taking into account local cultural
characteristics that don’t contradict international
norms.
Contextualization
• Effective humanitarian action should encompass a
comprehensive view of overall needs and impact
of interventions.
• Encouraging respect for human rights
• addressing the underlying causes of conflict are
essential elements.
• Accountability
• Humanitarian organization should report fully on
their activities to sponsors and beneficiaries.
• Humanitarian activities should be transparent.
Subsidiary of sovereignty
• Where humanitarianism and sovereignty clash,
sovereignty should defer to the relief of life
threatening suffering.
• This principle is undoubtedly the most
controversial.
• In today’s world the centuries old doctrine of
absolute and exclusive sovereignty no longer stands
• This new openness at the international level to
attach greater relative importance to humanitarian
imperatives
 The end !

Thank you ! To tare