Topic 4

International Human Rights Law

Concept of Human Rights
HR is a “new” concept – only after WW2
& UN
Replace the notion of natural rights which
flourished in Age of Enlightenment.
Categorisation of HRs:
1. Civil & political rights
2. Economic, social & cultural rights
3. Group or peoples’ rights
 Civil & Political Rights
Include freedom of expression, freedom of
assembly, freedom from torture, freedom from
arbitrary arrest & detention, right to a fair trial
Derived from natural rights/law theory
Protect the governed from encroachment of the
govt
Western countries give priority to this type of
rights
 Other Categories of Human
Rights
Economic, Social & Cultural Rights
 Emerged with socialism
 Attain ESCRs first then can attain CPRs.

Group or Peoples’ rights

 Collective right rather than individual (e.g. right to
development & right to self-determination)
 Supported by developing countries.
 Attitude of developing countries towards CPRs…shaped
by political, economic & social factors.
 2 Isms of Human Rights

1. Universalism – HR is universal in nature

2. Relativism – HR is relative - diverse political
systems, cultures, values, religions must be
taken into account
Islam & Human Rights
Difference between Western & Islamic
perspectives.
Secularism vs Divine submission?
Leading to different views on freedom of
religion & rights of women by Muslim
countries.
Also to distinct HR code in 1981 (Islamic
Declaration of HR)
 Evolution of Int’l HR Law
 UNC provisions – very general

 But preamble – “peoples of UN have reaffirmed

their faith in fundamental HRs, in the dignity &
worth of human person, in equal rights of men &
women…”

 Article 1 – among main purposes of UN – achieving

international cooperation in promotion of HRs &
fundamental freedoms for all without distinction as
to race, sex, language or religion
 Evolution of Int’l HR Law

 Art 55 – UN has duty to promote universal respect for, and

the observance of HR & for fundamental freedoms for all
without distinction as to race, sex language or religion

 Also Art 56 – joint/separate action pledged for the

achievement of the purposes in Art 55 – issue: binding @
not?
- 1st view - “pledge” – so UN Member States are bound;
- 2nd view – pledge is for something in the future – what they
agree to be bound (majority view)
 Evolution of Int’l HR Law
 Art 2(7) UN Charter – non-intervention

 “Nothing in UNC can authorise UN to intervene in

matters of domestic jurisdiction…”

 Does this means HR conflict with Art. 2(7) – is HR

an exclusive domestic law matter?

 Exception for Art 2(7) – enforcement actions for

MIPS – Chapter VII (collective intervention for
gross violation of HR)
 Evolution of Int’l HR Law
 1948 – UNGA adopted Universal Declaration
on HR (Saudi Arabia & several communist
countries abstained)
 UDHR – covers both CPR (e.g. right to liberty,
prohibition of torture, prohibition of arbitrary
arrest, right to fair trial, freedom of thought &
religion, freedom of opinion & expression,
freedom of peaceful assembly) & ESCR (right
to social security, right to work, right to
education)
 Evolution of Int’l HR Law
 UDHR – biased towards Western values
 Not legally binding (“pledge”)
 But still significant –
(1)shape future treaties,
(2)impact on constitution of new States &
(3)become new CIL (e.g. prohibition of torture)
 Human Rights Treaties
 Were made later incorporating UDHR principles.
 2 types:
1. General
2. Specific

(1) General HR treaties:

 Universal level - Int’l Covenant on Civil & Political
Rights (ICCPR) & Int’l Covenant on Economic, Social &
Cultural Rights (ICESCR) [1966]
 Regional - European Conventn of HR (1950), Inter-
American Conventn on HR (1969) & African Charter on
Human & Peoples’ Rights (1981)
 Human Rights Treaties
(II) Specific HR treaties – e.g. Conventn on Genocide
(1948), Convention on Racial Discrimination (1966),
Convention on Discrimination against Women (1979),
Convention against Torture (1984), Convention against
the Rights of the Child (1989) & Convention on
Protection of the Rights of Migrant Workers (1999)
SUBSTANTIVE HUMAN RIGHTS

Civil& political rights

Economic, social and cultural rights
Women’s rights
Children’s rights
Refugee’s rights
CIVIL AND POLITICAL RIGHTS
The International Covenant on Civil and
Political Rights 1966 (ICCPR)
The International Covenant on Civil and
Political Right (ICCPR) was adopted by
the GA on 16 December 1966.
As of now, there are more than160 State
parties to the ICCPR.
 Obligations of States parties & applicability
Article 2 •Applies to acts of
govt & private persons
1. Each State Party to the present Covenant undertakes to
respect and to ensure to all individuals within its •Failure to take due
territory and subject to its jurisdiction the rights diligence to prevent,
punish, investigate,
recognized in the present Covenant, without redress harm caused
distinction of any kind, such as race, colour, sex, by private persons
language, religion, political or other opinion, national
or social origin, property, birth or other status. •ICCPR rights are
available to persons
outside jurisdiction
2. …each State Party …undertakes to take the necessary
steps, in accordance with its constitutional processes •Also available to
and with the provisions of the present Covenant, to persons, non-citizens.
adopt such laws or other measures as may be
necessary to give effect to the rights recognized in the
present Covenant. ICCPR in armed
conflicts?
 Derogation in times of national emergency
Article 4 (1)
In time of public emergency which
threatens the life of the nation and the
existence of which is officially
proclaimed, the States Parties …may
take measures derogating from
certain obligations to the extent
strictly required by the exigencies of
the situation, provided that such
measures are not inconsistent with
their other obligations under
international law and do not involve
discrimination.
Must have the following (Greek
case):
•Actual / imminent
•Effects involve the whole nation
•Continuance of organised life of
community is threatened
•Crisis/danger is exceptional –
normal measures permitted by
Convention for maintenance of public
safety, health & order are plainly
inadequate
Proportionate in terms of duration,
geographical coverage & material
scope of the state of emergency
Non-Derogable Rights

Art. 4(2):
No derogation from articles 6 (right to life), 7
(prohibition against torture), 8 (paragraphs I and
2) (prohibition of slavery & slave trading), 11
(no imprisonment for failure of contractual
obligation), 15 (non-retroactivity of criminal
law), 16 (recognition as a person before the law)
and 18 (freedom of thought, conscience &
religion) may be made under this provision.
 Art. 6: The Right to life
1. Every human being has the inherent
right to life. This right shall be
protected by law. No one shall be
arbitrarily deprived of his life.
2. In countries which have not abolished
the death penalty, sentence of death
may be imposed only for the most
serious crimes in accordance with the
law in force at the time of the
commission of the crime (and not
contrary to the provisions of the
present Covenant and to the
Convention on the Prevention and
Punishment of the Crime of
Genocide).
Deprivation not only by
criminal acts but also
acts of police & security
forces
Police raids & arbitrary killings of
suspected criminals – Guerrero v
Colombia
Death in detention – obligation is
imposed to provide medical care
to detainees regardless of cost
Duty to punish who commits
arbitrary killings
Second Optional Protocol to the ICCPR, aiming at
the abolition of the death penalty, 1989

No one within the jurisdiction of states

parties to the Second Optional Protocol
may be executed and States are required
to take all necessary measures to abolish
the death penalty within their jurisdiction.
Art. 7: Torture
 No one shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment.

 Definition of torture (in Convention Against Torture)

◦ Infliction of severe pain or suffering
◦ Infliction is intentional
◦ Torture is inflicted for a purpose
◦ Pain & suffering is inflicted by… a public official…

 In Ambrosini v Uruguay, immediately after his detention, the accused

was subjected to various forms of torture such as (i) being forced to
remain standing for 14 hours at a time, (ii) electric shocks, and (iii)
physical blows to the body. The Committee considered that these facts
disclosed violation of Art. 7.

 The Committee also found violation of Art. 10(1) because he was

detained under conditions seriously detrimental to his health; Art. 9(3)
because he was not brought to trial within a reasonable time; art. 9(4)
because he was denied any effective remedy to challenge his arrest
and detention; and Art. 10(1) because he was held incommunicado for
months and was denied the right to be visited by any family member.
 Art. 9: Deprivation of liberty;
Freedom from arbitrary arrest or detention
1. Everyone has the right to liberty and security of person. No
one shall be subjected to arbitrary arrest or detention….
2. Anyone who is arrested shall be informed, at the time of
arrest, of the reasons for his arrest and shall be promptly
informed of any charges against him.
3. Anyone arrested or detained on a criminal charge shall be
brought promptly before a judge or other officer authorized
by law to exercise judicial power and shall be entitled to trial
within a reasonable time or to release….
4. Anyone who is deprived of his liberty by arrest or detention
shall be entitled to take proceedings before a court, in order
that that court may decide without delay on the lawfulness of
his detention and order his release if the detention is not
lawful.
Freedom from arbitrary arrest or detention [Cont.]

 The question of arbitrariness - Art. 9(1):

inappropriateness, injustice and lack of due process of
law.
 Bringing a detainee ‘promptly’ before a competent court
- Art. 9(3):
In Kennedy v Trinidad and Tobago, the accused was not
brought before a judge until 6 days after arrest. The
Human Rights Committee (HRC) stated that delays
should not exceed a few days. In the current case, the
Committee considered that the accused was not brought
‘promptly’ before a judge, in violation of Art. 9(3).
Freedom from arbitrary arrest or detention [Cont.]

Art. 9(4) - Habeas Corpus: This paragraph

guarantees the right of every person deprived of
liberty by arrest or detention to take proceedings
before a court, in order to determine, without
delay, the lawfulness of the detention and order
the person’s release if the detention is not
lawful.
This falls squarely within the traditional
common law writ of habeas corpus.
Holding a person incommunicado has been seen
as an effective bar against the ability to
challenge the validity of one’s arrest, and thus in
breach of Art. 9(4).[Muteba v Zaire]
Art. 10: The rights of detainees

1. All persons deprived of their liberty shall be

treated with humanity and with respect for the
inherent dignity of the human person.
- Allowing visits, in particular by family
members, is a measure that is required for
reasons of humanity.
- A lack of sanitation, light, ventilation and
bedding can be treated as a violation of Art.
10(1).
 Art. 14: The right to a fair trial

1. …everyone shall be entitled to a fair and public hearing by a

competent, independent and impartial tribunal established by
law.
2. Everyone charged with a criminal offence shall have the right
to be presumed innocent until proved guilty.
3. …everyone shall be entitled to the following minimum
guarantees…:
(a) To be informed promptly and in detail … of the nature and
cause of the charge against him;
(b) To have adequate time and facilities for the preparation of
his defence and to communicate with counsel of his own
choosing;
(c) To be tried without undue delay;
(d) To be tried in his presence, and to defend himself in person
or through legal assistance of his own choosing.
Art. 18: Freedom of thought, conscience and
religion
1. Everyone shall have right to freedom of thought,
conscience and religion. This right shall include
freedom to have or to adopt a religion or belief of his
choice, and freedom, either individually or in
community with others and in public or private, to
manifest his religion or belief in worship, observance,
practice and teaching.
2. No one shall be subject to coercion which would impair
his freedom to have or to adopt a religion or belief of
his choice.
3. Freedom to manifest one's religion or beliefs may be
subject only to such limitations as are prescribed by law
and are necessary to protect public safety, order, health,
or morals or the fundamental rights and freedoms of
others.
Freedom of Expression (Art. 19)
Everyone has the right to hold opinions without
interference,
Everyone has the right to freedom of expression –
right to seek, receive & impart information…
The exercise of the right to FoE has duties &
responsibilities. So can be subject to restrictions:
◦ Provided by law
◦ Imposed to protect rights & reputations of others or
protect national security, public order & public
health/morals
◦ Justified as necessary
 Art. 26: Equality and Non-discrimination

 Equality of treatment and the prohibition of discrimination is a

pervasive theme of the ICCPR to which reference can be found
in Arts. 2(1), 3, 4(1), 14(1), 20, 23, 24, 25 and 26.

 HRC has identified Art. 26 as a autonomous right, i.e., a

general right of non-discrimination which exists independently
of other rights.

 Art. 26: All persons are equal before the law and are entitled
without any discrimination to the equal protection of the law.
In this respect, the law shall prohibit any discrimination and
guarantee to all persons equal and effective protection against
discrimination on any ground such as race, colour, sex,
language, religion, political or other opinion, national or social
origin, property, birth or other status.
WOMEN’S RIGHTS
 Convention on Elimination of All Forms of
Discrimination Against Women 1979 (CEDAW)
 Entered into force – 3 September 1981
(with185 Member States)
 meaning of discrimination (Art. 1) –
distinction, exclusion @ restriction made on the
basis of sex – effect/purpose impairs @
nullifies recognition, enjoyment or exercise by
women, irrespective of their marital status, on a
basis of equality, of men & women, of human
rights & fundamental freedoms in the political,
economic, social, cultural, civil or other fields
 Convention on Elimination of All Forms of
Discrimination Against Women 1979 (CEDAW)
 Art 2 (the core of the Convention) – lays down basic
obligations on State parties:
1. To embody principle of equality of men & women in their
national constitutions @ other appropriate legislation…;
2. To adopt appropriate legislative & other measures including
sanctions where appropriate, prohibiting all discrimination
against women:
3. To establish legal protection of the rights of women on an
equal basis with men to ensure through competent national
tribunals
4. To take all appropriate measures, including legislation to
modify @ abolish existing laws, regulations, customs &
practices which constitute discrimination against women
 Convention on Elimination of All Forms of
Discrimination Against Women 1979 (CEDAW)
 Art 16 – “marriage & family relations”:
 (1) State Parties shall take all appropriate measures to
eliminate discrimination against women in all matters
relating to marriage and family relations & in particular shall
ensure, on the basis of equality of men and women:
1. The same right to enter marriage
2. The same right to freely choose a spouse & to enter into marriage
only their free & full consent
3. The same rights & responsibility during marriage & at its
dissolution
4. The same rights & responsibilities…guardianship, wardship,
trusteeship & adoption of children, or similar institutions where
these concepts exist in national legislation
5. The same personal rights as husband & wife including the right to
choose a family name , a profession & occupation
 Convention on Elimination of All Forms of
Discrimination Against Women 1979 (CEDAW)
 Art 17 – establishes the CEDAW Committee – oversee
implementation of CEDAW.
› Major function:
 review reports submitted by State parties (covering
legislative, judicial & administrative measures) every
four years
 Make recommendations & suggestions to be reported
to UNGA through ECOSOC
 Optional Protocol to CEDAW – create two mechanisms to
hold governments accountable:
1. A communications procedure where individuals/grp of ind can
lodge complaints with CEDAW Committee
2. Inquiry procedure - CEDAW Committee can conduct inquiries
into serious & systematic abuses of women’s rights
 Reservations to CEDAW
 Not only by Muslim countries (only 24 out of
57 States)
 For Muslim countries, their reservations are
mainly to provisions which contradict Shariah
 Malaysia’s reservations – to provisions which
conflict with Islamic Sharia law & FC
 During accession process – reserved provisions
– Art 2(f), 5(a), 7(b), 9 & 16
 1998 – Malaysia made partial withdrawal –
now have reservations only to Art 5(a), 7(b),
9(2), 16(a), 16(c), 16(f) & 16(g)
CHILDREN’S RIGHTS
 Convention on the Rights to the
Child
 Adopted by GA in 1989 & entered into force in
1999
 Has 193 State parties (acceptance is almost
universal)
 Art 1- `child’ – below age of 18, but can be less if
according to law applicable to the child
 Rights enjoyed – right to life, to a name & to a
nationality
 Also enjoy right of freedom of expression, thought
& conscience
 States must protect child from mental & physical
violence, sexual exploitation etc
REFUGEE’S RIGHTS
Sources of rules providing for such
rights
Convention Relating to Status of
Refugees 1951 & its 1967 Protocol
Customary international law
Domestic law?
Who is a refugee?
Under 1951 Refugee Convention &
…owing to well-founded fear of being persecuted
for reasons of race, religion, nationality,
membership of a particular social group or
political opinion, is outside the country of his
nationality and is unable or, owing to such fear, is
unwilling to avail himself of the protection of that
country; or who, not having a nationality and
being outside the country of his former habitual
residence as a result of such events, is unable or,
owing to such fear, is unwilling to return to it.
Non-applicability of Refugee
Convention (Art. 1.F)
The provisions of this Convention shall not
apply to any person with respect to whom
there are serious reasons for considering that:
◦ (a) he has committed a crime against peace, a war
crime, or a crime against humanity, as defined in
the international instruments drawn up to make
provision in respect of such crimes;
◦ (b) he has committed a serious non-political crime
outside the country of refuge prior to his
admission to that country as a refugee;
◦ (c) he has been guilty of acts contrary to the
purposes and principles of the United Nations.
Obligation of Refugee
Every refugee has duties to the country in
which he finds himself, which require in
particular that he conform to its laws and
regulations as well as to measures taken
for the maintenance of public order
(Article 2).
Human rights of refugee
Application of the Refugee Convention
without discrimination as to race, religion
or country of origin.
ECONOMIC, SOCIAL AND CULTURAL
RIGHTS
 International Covenant on Economic,
Social and Cultural Rights (ICESCR)
 Provides for right of self-determination for all
peoples, right to work, right to form trade unions
& to strike, right to health, right to education &
certain cultural rights
 Obligation of MS – only to take steps for full
realisation of the rights – not “to respect &
ensure” as under ICCPR
 Developing countries also can determine how far
economic rights can be guaranteed to non-
nationals after taking HR & national economy
into account
 Enforcement mechanism – not specific & strong
like ICCPR
 Enforcement of IHR Law:
Universal Level
Monitoring mechanisms – compromise between
State sovereignty & the need to comply with
int’l stds
Mechanisms established by UN
1. Commission on HR (replaced by HR Council) –
more to standard setting (UDHR & HR treaties),
persuasion, public criticism & isolating the
offending State . But none of its monitoring &
enforcement works are legally binding. So its
works were highly politicised
 Enforcement of IHR Law:
Universal Level
2. HR Council
◦ Consists of 47 Member States based on
equitable geographical distribution.
◦ Strives to end the politicisation of the UN
HR system
◦ Subsidiary organ of UNGA
 Enforcement of IHR Law:
Universal Level
Monitoring mechanisms established by treaties –
the procedures:
1. Period reports submitted by State parties
2. Inter-State complaints – on when the State
parties concerned have accepted a special
clause providing for such procedure
3. Complaints (communications) by individuals
 Enforcement of IHR Law:
Regional Level
 Europe – European Convention for the Protection of
HR & Fundamental Freedoms adopted in 1950 by
Council of Europe & entered into force in 1953
 Stresses on protection of civil & political rights
 2 organs were created – Commission & European Ct.
of HR (ECHR)
 Protocol No. 11 to the Convention, 1994 (entered into
force in 1998) – a single ECHR was created – deals
with both admissibility & merits issues.
 2 types of grievance procedures – inter-State &
individual complaint procedure (if States violate HR,
the affected citizen can sue his govt).
 In case of non-conformity – Committee of Ministers of
the Council of Europe can enforce it
 Enforcement of IHR Law:
Regional Level
America:
 American Convention on HR (ACHR) adopted by
OAS in 1969 – consists of both the Commission &
Inter-American Ct of HR (IACHR)
Africa:
 OAU adopted African Charter of Human &
Peoples’ Rights (1981)
 Establishes the African Commission on Human &
Peoples’ Rights (ACHPR)
 Unlike ECHR & IACHR, ACHPR lacks judicial
functions
 IHRL & International Custom
 no agreement among IL writers as to whether
proliferation of HR treaties led to emergence of
CIL on HR.
 But some principles have attained the status of
CIL – e.g. prohibition on torture, right to equality
& prohibition of genocide, slavery, racial
discrimination & right to self-determination.
 Such rules also create obligation erga omnes &
some are jus cogens.
 HR & Int’l Criminal Law
 Individuals are directly liable for violation of
HR, not States
 The conducts fall under the category of crimes
under IL
 Nuremberg Judgment
“crimes against IL are committed by men, not
by abstract entities & only by punishing the
individuals concerned can the provisions of IL
be enforced”
 Can cover both HR violations & violations of
IHL