INTERNATIONAL AND REGIONAL HUMAN RIGHTS Notes and Cases

INTERNATIONAL AND REGIONAL HUMAN RIGHTS
The concept of human rights
Human rights are commonly understood as inalienable fundamental rights to which a person is
inherently entitled simply because she or he is a human being. Human rights are commonly
understood as being those rights which are inherent in the mere fact of being human. The
concept of human rights is based on the belief that every human being is entitled to enjoy her/his
rights without discrimination. Human rights are characterized as being:
 Inherent in all human beings by virtue of their humanity alone (they do not have, e.g., to
be purchased or to be granted);
 Inalienable (within qualified legal boundaries);
 Equally applicable to all an
 Indivisible, interrelated and interdependent.
Human rights are basic entitlements or minimum standards to be met for individuals to live with
dignity.
Various schools of thought govern what amounts to a human right and what doesn’t.
a. Natural school of thought;
The belief that there is a certain standard of virtue of being human. It is quite similar to
religion but it cuts out God. (Aristotle)
b. Positivism.
Law sometimes results from morality. The sovereign then enacts this in the law.
Whatever is not provided for in the law does not create a human right. i.e a human right is
one prescribed by law.
c. Utilitarianism.
Utility is the aggregate rule. “I am because we are and we are because I am.” We have
our rights for as long as they are not against the common good. (read Hart or Rose)
d. Libertarianism
That rights are individual. For example, where utilitarianism would argue that the right of
a woman to abort is against the rest of the society since it prevents self-preservation,
libertarians would argue that the woman’s body is hers and she has a right to decide what
to do with it.
e. Universality v relativism.
TO GIVE AND NOT TO COUNT THE COST. SON OF LOYOLA FERDINANDIUS AMDG MAGIS
Universality denotes something that is the same throughout whereas relativism bases on
the particular social standards of a place. For example people’s argument that in Uganda
the police cannot be perfect is relative of Uganda but it’s not a universal argument.
Relativism was forwarded by Anthropologist Franz Boaz “The Mind of a Primitive man”
that human rights come from culture and are not universal. For example international
customary law.
Thomas Aquinas claims that Human Rights are inherent and applies to everyone.
For rights to be universal, it is crucial for them to conform to the cultural needs. Human rights
are dynamic and how they are practiced to some extent is due to the political, social and
economic development. However, the fact that some societies, culturally abuse rights does not
make it right.
The universality of human rights has been, and still is, a subject of intense debate, including in
anticipation of, during and after the 1993 World Conference on Human Rights. The Vienna
document itself states that the universal nature of human rights is ‘beyond question’. It also says:
‘all human rights are universal’; adding, however, that ‘the significance of national and regional
particularities and various historical, cultural and religious backgrounds must be borne in mind’.
This national ‘margin of appreciation’, as it is called, does not, however, according to the Vienna
document, relieve states of their duty to promote and protect all human rights, ‘regardless of their
political, economic and cultural systems
Classification of human rights.
Human rights are classified as civil, political, economic, social and cultural.
1. Classic and Social Rights
One classification used is the division between ‘classic’ and ‘social’ rights. ‘Classic’ rights are
often seen to require the non-intervention of the state (negative obligation), and ‘social rights’ as
requiring active intervention on the part of the state (positive obligations). In other words, classic
rights entail an obligation for the state to refrain from certain actions, while social rights oblige it
to provide certain guarantees. Lawyers often describe classic rights in terms of a duty to achieve
a given result (‘obligation of result’) and social rights in terms of a duty to provide the means
(‘obligations of conduct’)
The evolution of international law, however, has led to this distinction between ‘classic’ and
‘social’ rights becoming increasingly awkward. Classic rights such as civil and political rights
often require considerable investment by the state. The state does not merely have the obligation
to respect these rights, but must also guarantee that people can effectively enjoy them. Hence, the
right to a fair trial, for instance, requires well-trained judges, prosecutors, lawyers and police
officers, as well as administrative support. Another example is the organization of elections,
which also entails high costs.
On the other hand, most ‘social’ rights contain elements that require the state to abstain from
interfering with the individual’s exercise of the right. As several commentators note, the right to
food includes the right for everyone to procure their own food supply without interference; the
right to housing implies the right not to be a victim of forced eviction; the right to work
encompasses the individual’s right to choose his/her own work and also requires the state not to
hinder a person from working and to abstain from measures that would increase unemployment;
the right to education implies the freedom to establish and direct educational establishments; and
the right to the highest attainable standard of health implies the obligation not to interfere with
the provision of health care.
In sum, the differentiation of ‘classic’ rights from ‘social’ rights does not reflect the nature of the
obligations under each set of rights.
2. Civil, Political, Economic, Social and Cultural Rights
Civil rights
The term ‘civil rights’ is often used with reference to the rights set out in the first eighteen
articles of the UDHR, almost all of which are also set out as binding treaty norms in the ICCPR.
From this group, a further set of ‘physical integrity rights’ has been identified, which concern the
right to life, liberty and security of the person, and which offer protection from physical violence
against the person, torture and inhuman treatment, arbitrary arrest, detention, exile, slavery and
servitude, interference with one’s privacy and right of ownership, restriction of one’s freedom of
movement, and the freedom of thought, conscience and religion.
The difference between ‘basic rights’and ‘physical integrity rights’ lies in the fact that the former
include economic and social rights, but do not include rights such as protection of privacy and
ownership. Although not strictly an integrity right, the right to equal treatment and protection in
law certainly qualifies as a civil right. Moreover, this right plays an essential role in the
realization of economic, social and cultural rights.
Another group of civil rights is referred to under the collective term ‘due process rights’. These
pertain, among other things, to the right to a public hearing by an independent and impartial
tribunal, the ‘presumption of innocence’, the ne bis in idem principle and legal assistance (see,
e.g., Articles 9, 10, 14 and 15 of the ICCPR).
Political rights
In general, political rights are those set out in Articles 19 to 21 of the UDHR and also codified in
the ICCPR. They include freedom of expression, freedom of association and assembly, the right
to take part in the government of one’s country, and the right to vote and stand for election at
genuine periodic elections held by secret ballot (see Articles 18, 19, 21, 22 and 25 of the
ICCPR).
Economic and social rights
The economic and social rights are listed in Articles 22 to 26 of the UDHR, and further
developed and set out as binding treaty norms in the ICESCR. These rights provide the
conditions necessary for prosperity and wellbeing. Economic rights refer, for example, to the
right to property, the right to work, which one freely chooses or accepts, the right to a fair wage,
a reasonable limitation of working hours, and trade union rights. Social rights are those rights
necessary for an adequate standard of living, including rights to health, shelter, food, social care,
and the right to education (see Articles 6 to 14 of the ICESCR).
Cultural rights
The UDHR lists cultural rights in Articles 27 and 28: the right to participate freely in the cultural
life of the community, to share in scientific advancement, and the right to the protection of the
moral and material interests resulting from any scientific, literary or artistic production of which
one is the author (see also Article 15 of the ICESCR and Article 27 of the ICCPR).
Freedoms
Preconditions for a dignified human existence have often been described in terms of freedoms
(e.g., freedom of movement, freedom from torture, and freedom from arbitrary arrest). United
States President Franklin D. Roosevelt summarized these preconditions in his famous ‘Four
Freedoms Speech’ to the United States Congress on 26 January 1941:
• Freedom of speech and expression;
• Freedom of belief (the right of every person to worship God in his own way);
• Freedom from want (economic understandings which will secure to every nation a healthy
peace-time life for its inhabitants); and
• Freedom from fear (world-wide reduction of armaments to such a point and in such a thorough
fashion that no nation would be able to commit an act of physical aggression against any
neighbor).
Roosevelt implied that a dignified human existence requires not only protection from oppression
and arbitrariness, but also access to the primary necessities of life.
Individual and collective rights
Although the fundamental purpose of human rights is the protection and development of the
individual (individual rights), some of these rights are exercised by people in groups (collective
rights). Freedom of association and assembly, freedom of religion and, more especially, the
freedom to form or join a trade union, fall into this category. The collective element is even more
evident when human rights are linked specifically to membership of a certain group, such as the
right of members of ethnic and cultural minorities to preserve their own language and culture.
One must make a distinction between two types of rights, which are usually called collective
rights: individual rights enjoyed in association with others, and the rights of a collective.
The most notable example of a collective human right is the right to self-determination, which is
regarded as being vested in peoples rather than in individuals (see Articles 1 of the ICCPR and
ICESCR). The recognition of the right to self-determination as a human right is grounded in the
fact that it is seen as a necessary precondition for the development of the individual. It is
generally accepted that collective rights may not infringe on universally accepted individual
rights, such as the right to life and freedom from torture.
First, second and third generation rights
The division of human rights into three generations was first proposed by Karel Vasak at the
International Institute of Human Rights in Strasbourg. His division follows the principles of
Liberté, Égalité and Fraternité of the French Revolution.
First generation rights are related to liberty and refer fundamentally to civil and political rights.
The second generation rights are related to equality, including economic, social and cultural
rights. Third generation or ‘solidarity rights’ cover group and collective rights, which include,
inter alia, the right to development, the right to peace and the right to a clean environment. The
only third generation right which so far has been given an official human rights status - apart
from the right to self-determination, which is of longer standing - is the right to development (see
the Declaration on the Right to Development, adopted by the UNGA on 4 December 1986, and
the 1993 Vienna Declaration and Programme of Action (Paragraph I, 10)).
While the classification of rights into ‘generations’ has the virtue of incorporating communal and
collective rights, thereby overcoming the individualist moral theory in which human rights are
grounded, it has been criticized for not being historically accurate and for establishing a sharp
distinction between all human rights. Indeed, the concept of generations of rights is at odds with
the Teheran Proclamation and the Vienna Declaration and Programme of Action, which establish
that all rights are indivisible, interdependent and interrelated.
SYSTEMS OF ENFORCEMENT.
You can have the law and rights in place but this won’t make any meaning if you don’t have the
systems of implementation. These apply on four levels.
i. Universal level; organs that operate within the structures of the UN.
ii. Regional (continental level); African Union. European Union etc
iii. Sub-regional level; East African Community, ECOWAS, SADC.
iv. National level.
THE UNITED NATIONS
On New Year’s Day 1942, twenty-six governments signed the Declaration of the United Nations
in Washington, D.C., the United States, and another twenty one governments followed suit
before the end of the Second World War. In 1945, representatives of 50 countries met in San
Francisco at the United Nations Conference on International Organization to draw up the United
Nations Charter, an international treaty that sets out basic principles of international relations.
The UN Charter was signed on 26 June 1945 by the representatives of the 50 countries, making
international concern for human rights an established part of international law. The United
Nations officially came into existence on 24 October 1945, when the Charter had been ratified by
China, France, the Soviet Union, the United Kingdom, the United States and by a majority of
other signatories.
In the Preamble to the Charter, the signatories ‘reaffirm faith in fundamental human rights, in the
dignity and worth of the human person and in the equal rights of men and women [...]’, echoing
the belief of the era that the massive human rights violations committed during the Second
World War could have been prevented and the hope that they should never be repeated. Today,
nearly every nation in the world belongs to the UN; membership totals 191 countries.
The United Nations has six principal organs: the General Assembly, the Security Council, the
Economic and Social Council, the Trusteeship Council, the International Court of Justice and the
Secretariat (Article 7 UN Charter). In addition, it has several specialized agencies and a number
of other specialized bodies dealing with human rights.
Modern international human rights law is to a large extent founded on the standard-setting work
of the United Nations; through UN efforts governments have established many multilateral
agreements and this comprehensive body of international law, including human rights law, is one
of the UN’s greatest achievements. With its standard-setting work nearly complete, the UN is
shifting the emphasis of its human rights efforts to the implementation of human rights laws.
CONCEPTUALISATION OF HUMAN RIGHTS UNDER THE UN
THE UNITED NATIONS CHARTER
When states become members of the UN they accept the obligations of the UN Charter that sets
out the four main purposes of the UN: to maintain international peace and security; to develop
friendly relations among nations; to co-operate in solving international problems and in
promoting respect for human rights; and to be a centre for harmonizing the actions of nations.
The UN Charter refers to human rights in the Preamble and Articles 1, 8, 13,
55, 56, 62, 68 and 76:
Article 1 defines one of the objectives of the UN as: ‘[...] promoting and encouraging respect for
human rights and for fundamental freedoms for all without distinction as to race, sex, language
or religion’.
Article 8 states that ‘the United Nations shall place no restrictions on the eligibility of men and
women to participate in any capacity and under conditions of equality in its principal and
subsidiary organs [...]’.
Article 13 says that the responsibilities, functions and powers of the General Assembly shall
include ‘assisting in the realization of human rights and fundamental freedoms for all [...]’.
Article 55 describes the purposes of the UN in international co-operation, which include under
(c): ‘universal respect for, and observance of human rights and fundamental freedoms for all
without discrimination as to race, sex, language, or religion’.
Article 56 contains a pledge by all members ‘to take joint and separate action in co-operation
with the Organization for the achievement of the purposes set forth in Article 55’.
Article 62 contains similar provisions in describing the responsibilities, functions and powers of
the Economic and Social Council (ECOSOC).
Article 68 authorizes the ECOSOC to set up commissions ‘in economic and social fields and for
the promotion of human rights’. This committee thus created the commission on Human rights
and it’s this commission that laid down what human rights are.
Article 76 contains human rights provisions in the description of the international trusteeship
system.
Basically, at least the UN charter realizes the issue of human rights and sees that it is a matter of
international concern. However, the Charter does not establish any particular regime of human
rights. The cardinal principle remains peace.
Article 2(4)..peace is directly related to human rights.
The UN came at a time of war and chaos to address the weaknesses of the League of Nations.
Whatever it does revolves around the protection of international peace and security. They also
realize that the world war was because of the failure to realize the human rights especially of
nations; small and big, and that’s why it brings in the equality of states.
The principle organs of the UN, that is the General Assembly, the Security Council, ECOSOC
and ICJ, trusteeship council and the secretariat, all have a role to play in promotion of human
rights.
THE GENERAL ASSEMBLY (UNGA)
The General Assembly is composed of all member states of the United Nations, each state
having one vote. Article 13 UN Charter states that one of the functions of the UN General
Assembly is to initiate studies and make recommendations for the purpose of ‘promoting
international co-operation in the economic, social, cultural, educational and health fields and
assisting in the realization of human rights and fundamental freedoms for all without distinction
as to race, sex, language or religion’. Accordingly, the UNGA adopted the Universal Declaration
on Human Rights (UDHR) on 10 December 1948 and, since then, a number of other human
rights instruments.
Most human rights issues that the UNGA deals with are laid out in reports of the Economic and
Social Council (ECOSOC) or in resolutions adopted by the UNGA at earlier sessions. The
UNGA refers most issues regarding human rights to its Third Committee, which is responsible
for social, humanitarian and cultural issues. The Sixth Committee (Legal Committee) also deals
occasionally with human rights issues.
The UNGA has set up a number of subsidiary organs important in relation to human rights: the
Special Committee on the Situation regarding Implementation of the Declaration on the Granting
of Independence to Colonial Countries and Peoples (‘the Special Committee on
Decolonization’), the Special Committee to Investigate Israeli Practices Affecting Human Rights
of the Population of the Occupied Territories, and the Committee on the Exercise of the
Inalienable Rights of the Palestinian People. For many years, the UN also had a Special
Committee on Apartheid.
2. THE ECONOMIC AND SOCIAL COUNCIL (ECOSOC)
In contrast to the UNGA, the Economic and Social Council consists of only 54members. Article
62 of the UN Charter states that the ECOSOC ‘may make recommendations for the purpose of
promoting respect for and observance of human rights and fundamental freedoms for all’. The
ECOSOC may also submit draft conventions to the UNGA and organize international
conferences. Under the provisions of Article 68, the ECOSOC can set up commissions in
economic and social fields and for the promotion of human rights. Article 64 empowers the
ECOSOC to make arrangements with the UN member states and its Specialized Agencies to
obtain reports on the steps taken to put its own recommendations and those of the UNGA into
effect.
The ECOSOC debates the reports by the UN Human Rights Commission and deals with the
studies and draft resolutions the Commission has submitted to the Council. The ECOSOC takes
decisions on the most important organizational matters, but frequently refers policy matters to
the UNGA. Organizational matters are important, such as the powers, size and membership of
the Commission on Human Rights and other subsidiary organs of the ECOSOC concerned with
human rights.
The ECOSOC has established a number of important commissions in the sphere of human rights:
a) the UN Commission on Human Rights that has set up the Sub-Commission on the Promotion
and Protection of Human Rights; b) the Commission on the Status of Women; c) the
Commission for Social Development; and d) the Commission on Crime Prevention and Criminal
Justice. Furthermore, under Article 71 of the Charter, the ECOSOC may consult NGOs that are
involved with the work of the Council rights.
THE SECURITY COUNCIL
The Council has 15 members; five permanent members and 10 elected by the General Assembly
for two-year terms. In accordance with Article 24 of the UN Charter, the Security Council bears
primary responsibility for the maintenance of international peace and security. Actions taken by
the Security Council will generally impact human rights, as these invariably come to the fore
whenever international peace and security are threatened. The link between violations of human
rights and threats to international peace and security was discussed by the Security Council
Summit held in January 1992. The Security Council stated that: ‘Election monitoring, human
rights verification and the repatriation of refugees have in the settlement of some regional
conflicts, at the request or with the agreement of the parties concerned, been integral parts of the
Security Council’s effort to maintain international peace and security.’
The Security Council is increasingly concerned with human rights. With the gradual refocus of
the UN on human security as an integrated concept, many decisions of the Security Council have
an impact on human rights. Interventions authorized by the Security Council are nominally
undertaken in reaction to threats to international peace and security. Examples are, for instance,
the intervention in Haiti (2004) or Sierra Leone (1999). The arguments underlying such
interventions are often related to human rights. The Security Council, acting under Chapter VII
of the Charter of the United Nations, is also the institution that sets up ad hoc tribunals such as
the ones for former Yugoslavia and for Rwanda
The UN Security Council also intervened in Libya in 2011 on humanitarian grounds as cited in
its resolutions of 26th February 2011 and 1973 of 17th March 2011. In addition, several standing
and ad hoc committees under the Security Council are relevant to human rights, such as, sanction
committees, the Special Committee on Peacekeeping, and the International Tribunal Committee.
International Court of Justice (ICJ)
The general objective of the International Court of Justice is the administration of justice and the
supervision of the rule of law at the international level. The Court, seated at the ‘Peace Palace’ in
The Hague, The Netherlands, is the principal judicial organ of the United Nations. It began work
in 1946, when it replaced the Permanent Court of International Justice, and operates under a
statute similar to that of its predecessor. The Court has competence to address cases brought by
states, and the Security Council. The UNGA, ECOSOC, and other specific organs may request
advisory opinions from it. Individuals cannot bring cases before the court. The ICJ has ruled on
several cases involving human rights, e.g., Hayade la Torre (13 June 1951; asylum), Nottebohm
(6 April 1955; nationality), Barcelona Traction Light and Power Company (5 February 1970;
human rights as obligations erga omnes), the case on the Orders on Requests for the Indication
of Provisional Measures in the Case Concerning Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Bosnia v. Serbiaand Montenegro) (8
April and 13 September 1993; genocide) and the Case Concerning Avena and Other Mexican
Nationals (Mexico v. United States of America) (31 March 2004; consular protection). The Court
has also addressed human rights issues in its advisory opinions; for example, on genocide,
apartheid, and the immunity of UN human rights special rapporteurs.
However, the court has its weaknesses. It cannot exercise jurisdiction unless both states have
consented to it. For example despite Rwanda’s plunder of Congo, the court could not hear the
case as Rwanda refused its jurisdiction but did so against Uganda which had consented.
How the UN functions in terms of mechanisms and functions
The UN has two tracks.
i. The Charter based mechanisms. These flow directly from the Charter
ii. Treaty based mechanisms. This flows directly from the different treaties adopted by
states within the UN. Eg ICESCR ICCPR CRC CEDAW etc.
Charter Based
 Before 2006, these mechanisms came from the Economic and Social Council.
 Also flow from the UN agencies eg WHO, UNICEF, UNESCO, UNFPA, FAO,.
 Human rights council is the most important and it was put in place by the General
Assembly.
There were challenges in the work of the human rights commission since it was politicized
which in 2006 forced the UN to abolish it and replace it with the UN human rights council and
took over all the procedures which the former had created. It has put in place special procedures.
Transition from the commission on human rights to the human rights council.
UN Commission on Human Rights.
The UN Commission on Human Rights was one of the first functional commissions of the
ECOSOC and the main UN organ dealing with human rights. It was provisionally established by
the ECOSOC on 16 February 1946, with nine members serving in their personal capacity
(chaired by Eleanor Roosevelt), and became a permanent body with members from eighteen
countries on 21 June 1946. In 1979, the ECOSOC increased the number of members of the
Commission to 43 and extended the duration of its normal session to six weeks, with an
additional week for the working groups. In 1990, the ECOSOC further enlarged the membership
of the Commission to 53. The seats are distributed geographically: each of the five regional
groups has a fixed number of seats. The Commission meets every year in March and April.
Mandate
The original mandate of the Commission was to submit proposals, recommendations and reports
to the Council concerning:
a) An international statute on human rights;
b) International declarations or conventions on civil liberties, the status of women, freedom of

information and related matters;
c) The protection of minorities;
d) The prevention of discrimination on the grounds of race, sex, language or religion;
e) Any other matters concerning human rights.
The mandate was extended several times, especially in 1967 and 1970 when the Commission, in
addition to its standard-setting task, was given the task to deal with human rights practices all
over the world by ECOSOC Resolution 1235. In 1979, its mandate was extended to include
supporting the ECOSOC in the co-ordination of human rights activities within the UN system
The Commission played a central role in the supervision of human rights.
It had a sub-commission called the sub-commission on the promotion and protection of human
rights which was mandated to;
(a) undertake studies, particularly in the light of the Universal Declaration of Human Rights,
and to make recommendations to the Commission concerning the prevention of
discrimination of any kind relating to human rights and fundamental freedoms and the
protection of racial, national, religious and linguistic minorities;.
(b) To perform any other functions entrusted to it by the Council or the Commission
The commission came in after the Second World War to combat some of the issue. However it
had some shortcomings and that’s why it was replaced.;
- It was more of an experiment; it didn’t know how to handle human rights globally.
- It was politicized; failed to agree to certain issues. For example the US did not allow
Sudan to be part on a committee enforcing human rights.
- It failed to look into the big countries. eg US which would attack small countries like
Iraq. Some of the big countries started coming together to defend the other even where
there was clear human rights violation.
- The leadership became problematic; the chair started going to states that were re-known
abusers of human rights for example Libya Iran etc.
Due to the ineffectiveness of the commission the UN came up with a resolution in 2006 to form
the council. Kofi Anan indeed had felt that the commission had lost relevance.
UN Human Rights Council
The Human Rights Council is an inter-governmental body within the United Nations system
responsible for strengthening the promotion and protection of human rights around the globe and
for addressing situations of human rights violations and make recommendations on them. It has
the ability to discuss all thematic human rights issues and situations that require its attention
throughout the year. It meets at the UN Office at Geneva.
The Council is made up of 47 United Nations Member States which are elected by the UN
General Assembly. The Human Rights Council replaced the former United Nations Commission
on Human Rights. The General Assembly established the UNHRC by adopting a resolution
(A/RES/60/251) on 15 March 2006, in order to replace the previous CHR, which had been
heavily criticised for allowing countries with poor human rights records to be members. The
council works closely with the Office of the High Commissioner for Human Rights (OHCHR)
and engages the United Nations' special procedures
History
The Council was created by the United Nations General Assembly on 15 March 2006 by
resolution 60/251. Its first session took place from 19 to 30 June 2006. One year later, the
Council adopted its "Institution-building package" to guide its work and set up its procedures and
mechanisms. Among them were the Universal Periodic Review mechanism which serves to
assess the human rights situations in all United Nations Member States, the Advisory Committee
which serves as the Council’s “think tank” providing it with expertise and advice on thematic
human rights issues and the Complaint Procedure which allows individuals and organizations to
bring human rights violations to the attention of the Council.
The Human Rights Council also works with the UN Special Procedures established by the
former Commission on Human Rights and now assumed by the Council. These are made up of
special rapporteurs, special representatives, independent experts and working groups that
monitor, examine, advise and publicly report on thematic issues or human rights situations in
specific countries. Its current president is from El Salvador, Mr Joaquín Alexander Maza
Martelli
Mandate.
The council is mandated to protect and promote human rights. This is done through offering
educational services to various states. It also serves as a forum for dialogue. It makes
recommendations to the General Assembly. It has a complaints procedure.
Review of the Council
When creating the Human Rights Council in March 2006 the United Nations General Assembly
decided that the Council’s work and functioning should be reviewed five years after it had come
into existence at the level of the General Assembly
Challenges and way forward.
i. Tendency of states to promote traditional values. Some members want cultural

practices to interpret human rights that are supposed to be universal in nature.
ii. Funding. There are not enough funds to implement the resolutions of the council most
especially states from Africa. That’s why the big states who fund call the shots.
iii. Implementation of resolutions by the General Assembly. Some countries still gang
up. For example Sri-Lanka and Syria where there were gross human rights violations
and in 2009 as a number of civilians were killed in Syria, states like Russia and Sri-
Lanka defended Syria. In some states like North Korea the resolutions are abused but
the council defends them.
iv. LGBT issues. Some resolutions had been taken on some of the marginalized groups
but none for the LGBT.
v. Business and Human rights. The multinationals violate human rights and the council
must take a stand on this. For these multinationals are looking at profits and not the
rights of the people. For example the Ongoni people in Nigeria and Shell.
vi. Gender identity. The convention on non-discrimination against women is in place but
Islamic countries are still demeaning women. The council should make a stand.
vii. The council has a policy of suspension on members of the council who carry out
gross human rights violations. But in practice members haven’t been suspended
because most people who constitute it are the perpetrators.
Universal Periodic Review Working Group
The Universal Periodic Review (UPR) is a unique process which involves a review of the human
rights records of all UN Member States. The UPR is a State-driven process, under the auspices of
the Human Rights Council, which provides the opportunity for each State to declare what actions
they have taken to improve the human rights situations in their countries and to fulfil their human
rights obligations. As one of the main features of the Council, the UPR is designed to ensure
equal treatment for every country when their human rights situations are assessed. The UPR was
created through the UN General Assembly on 15 March 2006 by resolution 60/251, which
established the Human Rights Council itself. It is a cooperative process which, by October 2011,
has reviewed the human rights records of all 193 UN Member States. Currently, no other
universal mechanism of this kind exists. The UPR is one of the key elements of the Council
which reminds States of their responsibility to fully respect and implement all human rights and
fundamental freedoms. The ultimate aim of this mechanism is to improve the human rights
situation in all countries and address human rights violations wherever they occur. The new
mechanism is based on reports coming from different sources, one of them being contributions
from NGOs. Each country's situation will be examined during a three-and-a-half-hour debate.
The first cycle of the UPR took place between 2008 and 2012, and the second cycle of reviews
started in 2012 and was completed in 2016. The third cycle began in May 2017 and is expected
to be completed in October 2021. The General Assembly resolution establishing the Council,
provided that "the Council shall review its work and functioning five years after its
establishment”. The main work of the review was undertaken in an Intergovernmental Working
Group established by the Council in its Resolution 12/1 of 1 October 2009. The review was
finalized in March 2011, by the adoption of an "Outcome" at the Council’s sixteenth session,
annexed to Resolution 16/21.
First cycle: The following terms and procedures were set out in General Assembly Resolution
60/251:
 Reviews are to occur over a four-year period (48 countries per year). Accordingly, the
192 countries that are members of the United Nations shall normally all have such a
Review between 2008 and 2011;
 The order of review should follow the principles of universality and equal treatment;
 All Member States of the Council will be reviewed while they sit at the Council and the
initial members of the Council will be first;
 The selection of the countries to be reviewed must respect the principle of equitable
geographical allocation;
 The first Member States and the first observatory States to be examined will be selected
randomly in each regional group in order to guarantee full compliance with the equitable
geographical allocation. Reviews shall then be conducted alphabetically.
Second cycle: HRC Resolution 16/21 brought the following changes:
 Reviews are to occur over a four-and-a-half-year period (42 countries per year).
Accordingly, the 193 countries that are members of the United Nations shall normally all
have such a Review between 2012 and 2016;
 The order of review will be similar to the 1st cycle;
 The length of each Review will be extended from three to three-and-a-half hours;
 The second and subsequent cycles of the review should focus on, inter alia, the
implementation of the recommendations.
The Working Group on the UPR, which is composed of the HRC’s 47 Member States and
chaired by the HRC President, conducts country reviews.
Objectives and principles
HRC resolution 5/1 provides that the UPR should:
 Promote the universality, interdependence, indivisibility and interrelatedness of all

human rights
 Be a cooperative mechanism based on objective and reliable information and on
interactive dialogue
 Ensure universal coverage and equal treatment of all States
 Be an intergovernmental process, UN Member-driven and action oriented
 Fully involve the country under review
 Complement and not duplicate other human rights mechanisms, thus representing an
added value
 Be conducted in an objective, transparent, non-selective, constructive, non-
confrontational and non-politicized manner
 Not be overly burdensome to the concerned State or to the agenda of the HRC
 Not be overly long; it should be realistic and not absorb a disproportionate amount of
time or human and financial resources
 Not diminish the HRC’s capacity to respond to urgent human rights situations
 Fully integrate a gender perspective
 Take into account the level of development and specificities of countries
 Ensure the participation of all relevant stakeholders, including non-governmental
organizations (NGOs) and national human rights institutions (NHRIs).
The objectives of the UN-UPR are:
 The improvement of the human rights situation on the ground
 The fulfillment of the State’s human rights obligations and commitments and assessment
of positive developments and challenges faced by the State
 The enhancement of the State’s capacity and of technical assistance, in consultation with,
and with the consent of, the State concerned
 The sharing of best practice among States and other stakeholders
 Support for cooperation in the promotion and protection of human rights
 The encouragement of full cooperation and engagement with the HRC, other human
rights bodies and the Office of the UN High Commissioner for Human Rights (OHCHR).
 To address human rights violations all over the world.

 To provide technical support
 To encourage states to fulfill their obligations.
Challenges
 Cacooning of states. E.g. February 15th 2010, when Iran was appearing before the human
rights council for human rights violations, there was state cacooning, 27 members
supported them and 27 others condemned them.
 The recommendations are not binding. The country can apply them when it deems fit. For
example Russia removed some recommendations saying they were politically motivated.
 The need for consent for special rapporteurs to enter states
 Non-attendance of some members in their own reviews.
 The big states only look to review others but not themselves. It is a blame game.
However, where there is persistent non-cooperation, the council may take recourse, maybe
through naming and be shaming.
Stages
The process begins with self-evaluation (national report); things it has done and challenges (not
beyond 25 pages.), Report from treaty bodies. (10 pages), Report on behalf of NGO’s (10 pages),
Report of independent human rights experts and groups.
The working group tables its report; States are allowed to make recommendations
The state may accept, place under consideration or reject some recommendations
The state can also write a report indicating the steps it has taken to implement the
recommendation.
Has Uganda been reviewed?
Uganda was reviewed during the 12th session in 2011 and will be reviewed in the third cycle by
2021. Out of 171 recommendations, Uganda accepted 110, reserved 42 and rejected 11.
Role of civil society.
Lobbies the government to make voluntary commitments, partners with the government in
implementing the recommendations, it monitors and also prepares a report for the next review.
After the review, the government has the obligation to implement the recommendations that it
accepted.
The outcome of this review.
The Uganda Human Rights Watch Report.
The use of excessive force by the forces. The Joint Anti Terrorism Task Force which tortured
people and kept them in safe houses for example during the 2010 Kampala bombings.
Of the several killings by force, the RCC who used to carry out operation wembley. In 2010,
there was shooting of 4 people in Kyengera and this wasn’t looked into.
The UN special rapporteur on torture I 2006 was never given the information he required.
Abuse of due process;
Mainly by military court; there is barely fair hearing in these courts as judges have no legal
background.
Detention without trial for offences for more time.
There was the Public Order and Management Bill which had not yet been passed.
Recommendations.
Chad; That the human rights education be included in schools curriculum and in the security
agencies curriculum.
On death penalty;
Czechoslovakia and Spain; to abolish Morocco, Ghana, Australia; operationalizing of the

Domestic Violence Act; FGM Act, which are now in force. Harmonization of International
Convention Against Torture. Uganda; that the Public Order and Management Bill was in
contravention of some international obligations.
Rejected.
Publically denouncing the anti-homosexuality law
Removing the Public Order and Management Bill
Voluntary commitments.
To provide a focal point for the ministry to foster protection of human rights.
The department for international development has made reports to show that Uganda has
improved infra and budget support for health, however, women were not getting the proper care
and not using modern contraceptives. Uganda had no adoption law. (this has been provided for
under the Children Amendment Act 2016). Uganda has prepared a follow up report but its not
yet available. However it has enacted laws in line with international laws eg FGM Act, Children
Amendment Act 2016).
The forces established human rights posts.
That the death penalty in force but Uganda hasn’t executed any one from1999.
The government in 2014 set out to enact the National Action Plan on Human Rights which was
recently submitted before cabinet. A follow up report was recently drawn and submitted.
THE HIGH COMMISSIONER FOR HUMAN RIGHTS AND THE OFFICE OF THE UNITED
NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS (OHCHR)
The High Commissioner is the principal UN official with responsibility for human rights and is
accountable to the Secretary-General. The position of the High Commissioner for Human Rights
was created in 1993. Earlier efforts to establish the post had failed, chiefly due to the East-West
block division in UN decision making bodies, and the fear of a High Commissioner competent to
‘interfere in internal affairs’. The Vienna World Conference on Human Rights revived attempts
to establish the post, the debate being led by NGOs such as Amnesty International and Western
states.
After a lengthy process the Conference decided by consensus to ask the UNGA, when examining
the Conference report, ‘to begin, as a matter of priority, [with the] consideration of the question
of the establishment of a High Commissioner for Human Rights for the promotion and protection
of all human rights’ (Vienna Declaration and Programme of Action). On 20 December
1993, the UNGA decided, without a vote, to create the post of High Commissioner for Human
Rights.
The High Commissioner for Human Rights has the rank of Under-Secretary- General and reports
directly to the Secretary-General. The mandate (UNGA Resolution 48/141) entails, inter alia:
a) Promoting and protecting the effective enjoyment by all of all civil, cultural, economic,
political and social rights;
b) Carrying out the tasks assigned to him/her by bodies of the United Nations system in the field
of human rights and making recommendations to them with a view to improving the promotion
and protection of all human rights;
c) Promoting and protecting the realization of the right to development and enhancing support
from relevant bodies of the United Nations system for this purpose;
d) Providing, through the Centre for Human Rights and other appropriate institutions, advisory
services, technical, and financial assistance at the request of the state concerned and, where
appropriate, the regional human rights organizations, with a view to supporting actions and
programmes in the field of human rights;
e) Co-ordinating relevant United Nations education and public information programmes in the
field of human rights;
f) Playing an active role in removing the current obstacles and in meeting the challenges to the
full realization of all human rights and in preventing the continuation of human rights violations
throughout the world, as reflected in the Vienna Declaration and Programme of Action;
g) Engaging in a dialogue with all Governments on the implementation of his/her mandate with a
view to securing respect for all human rights;
h) Enhancing international co-operation for the promotion and protection of all human rights;
i) Co-ordination of the human rights promotion and protection activities throughout the United
Nations system;
j) Rationalization, adaptation, strengthening and streamlining of the United Nations machinery in

the field of human rights with a view to improving its efficiency and effectiveness. […]
The High Commissioner has a special role in the co-ordination of UN activities in the field of
human rights, while also co-operating with governments to strengthen national human rights
protection. The High Commissioner seeks to lead the international human rights movement by
acting as a moral authority and a voice for victims. The High Commissioner makes frequent
public statements and appeals on human rights crises.
The Office of the High Commissioner for Human Rights, based in Geneva at Palais Wilson, is
the main body within the UN Secretariat dealing with human rights. It should be noted that
though entrusted with many tasks, the Office of the High Commissioner has very limited funds
and manpower at its disposal.
Specialized UN agencies and how they have promoted human rights.
These are provided for by Article 57.
Article 22.
They are legally independent international organizations with their own rules, membership and
financial resources.
To cater for rising emergencies the UN came up with specialized agencies.
UNICEF; United Nations Children’s Fund
Established by the General Assembly resolution, it was charged with addressing the needs of
children in developing countries.
Mandate;
Priority areas are set out in the UNICEF medium strategy Plan.
Basic education, gender equality, protection from violence and abuse, protection of rights of
children etc. eg in refugee floods in South Sudan, UNICEF came in.
UNICEF does not only look into the rights of kids but also their parents. They support
governments, they don’t work in isolation and sometimes partner with other agencies.
They also work with parliament and advise them on laws plus lobbying. UINCEF played a role
in the 2016 Children Amendment Act in Uganda.
On the question of street children; interviewee says they are working to find a solution. They
also have a toll free line for helping street kids.
Challenges
The government is cooperating but there is a lot if bureaucracy. Lack of funding. The US hasn’t
been paying up what they are supposed to.
INTERNATIONAL LABOUR ORGANISATION ILO
The International Labour Organization (ILO) was founded in 1919. The ILO was the first
‘specialized agency’ to be given that status by the UN, under an agreement with the ECOSOC. It
focuses on those human rights related to the right to work and to working conditions, including
the right to form trade unions, the right to strike, the right to be free from slavery and forced
labor, equal employment and training opportunities, the right to safe and healthy working
conditions, and the right to social security.
The ILO also provides protection for vulnerable groups, having adopted standards on child labor,
employment of women, migrant workers, and indigenous and tribal peoples.
The ILO establishes international standards in the field of labour relations and the protection of
employees, through the adoption of conventions and recommendations.. Approximately two
thirds of the ratifications to the 185 ILO conventions have been made by the governments of
developing countries. The most important conventions in the field of human rights are the
conventions on:
• Forced Labor (ILO 29; 1930; by July 2004, ratified by 163 states).
• Freedom of Association and Protection of the Right to Organize (ILO 87; 1948; by July 2004,
ratified by 142 states).
• Right to Organize and Bargain Collectively (ILO 98; 1949; by July 2004, ratified by 154
states).
• Equal Remuneration (ILO 100; 1951; by July 2004, ratified by 161 states).
• Abolition of Forced Labour (ILO 105; 1957; by July 2004, ratified by 161 states).
• Discrimination (Employment and Occupation) (ILO 111; 1958; by July 2004, ratified by 160
states).
• Minimum Age (ILO 138; 1973; by July 2004, ratified by 134 states).
• Worst Forms of Child Labour (ILO 182; 1999; by July 2004, ratified by 150 states)
WORLD FOOD PROGRAMME. WFP
It has no enabling law to discharge its mandate in the Ugandan context.
Its mandate is to feed the vulnerable people. They aim at sustenance after a calamity is done.
After providing food they give things like seeds. They promote the right to life through providing
minimum standards of living.
WHO. WORLD HEALTH ORGANISATION.
It was founded in 1948 and it is guided by a number of UN agencies. Its core mandate is to direct
international health within the United Nations system.
The WHO's Constitution states that its objective "is the attainment by all people of the highest
possible level of health. Its current priorities include communicable diseases, in particular
HIV/AIDS, Ebola, malaria and tuberculosis; the mitigation of the effects of non-communicable
diseases; sexual and reproductive health, development, and ageing; nutrition, food security and
healthy eating; occupational health; substance abuse; and driving the development of reporting,
publications, and networking., thus promoting the right to health.
Treaty based mechanisms.
 The most important mechanisms here are the treaty bodies composed mainly of
independent experts with protective mandate.
 There is a state reporting system; states are expected to report on the measures they have
taken to implement the rights from the treaties.
 The treaty bodies also have quasi-judicial powers.
The various supervisory procedures established in human rights treaties can be divided into four
main groups:
• Reporting procedures
• Inter-state complaint procedure
• Individual complaint procedure
• Inquiries and other procedures
STATE REPORTING.
Reporting procedures
Most human rights treaties include a system of periodic reporting. States parties to them are
obliged to report periodically to a supervisory body on the implementation at the domestic level
of the treaty in question. As formulated, e.g., in Article 40 of the ICCPR, states parties shall
‘submit reports on the measures they have adopted which give effect to the rights recognized
herein and on the progress made in the enjoyment of those rights’. At the UN level, each treaty
body has formulated general guidelines regarding the form and contents of the reports to be
submitted by states parties (see HRI/GEN/2/Rev.2),and their own rules of procedures (see UN
HRI/GEN/3/Rev.1)
The report is analyzed by the relevant supervisory body, which comments on the report and may
request the state concerned to furnish more information. In general, reporting procedures under
the different treaty-based mechanisms are meant to facilitate and initiate a ‘dialogue’ between
the supervisory body and the state party.
Additional information provided by, in particular, NGOs and agencies of the United Nations
grant a wider perspective as to the actual situation in the country concerned. In an increasing
number of countries, NGOs prepare and submit to the treaty bodies alternative reports aimed at
counter balancing the information submitted by the state. In the light of all the information
available, the Committees examine the reports together with government representatives. Based
on this dialogue, the Committees decide on their concerns and recommendations to the state
concerned, referred to as ‘concluding observations.
All UN human rights conventions contain a reporting procedure: Article 16 ICESCR, Article 40
ICCPR, Article 9 CERD, Article 19 CAT, Article 44 CRC, Article 18 CEDAW and Article 73
CMW. Under the regional systems, reporting mechanisms are found under Article 21 of the
European Social Charter, Article 19 of the Protocol of San Salvador, and Article 62 of the
African Charter on Human and Peoples’ Rights.
THE REPORTING PROCEDURES UNDER THE ICESCR
All UN human rights treaties establish a reporting system. Although each Committee has
developed its own particular methods, most of them are similar. Under the ICESCR the reporting
mechanism works as follows:
The pre-sessional working group and the ‘list of issues’
Prior to each Committee session, five members of the Committee meet in order to identify in
advance the questions which will constitute the principal focus of discussion with state
representatives during the constructive dialogue. This ‘pre-sessional working group’ prepares a
list of issues to be taken into consideration when examining the state party report, which is
transmitted to the permanent delegation of the state concerned. The idea is to provide the state
with the possibility to prepare answers in advance and thereby to facilitate dialogue with the
Committee. The list of issues is not meant to be exhaustive and the dialogue may refer to other
points as well. States should provide written replies to the list of issues well in advance of the
session, in order to make these available to the Committee members in the respective working
languages. Generally, the ‘list of issues’ of a given country contains the points which are of
concern to the Committee or which have not been properly addressed by the state in its report.
The Constructive Dialogue
The Committee strongly encourages states to be present at the meeting when their reports are
examined. The discussion between government representatives and Committee members is
called the ‘constructive dialogue’. Representatives of specialized agencies concerned such as
ILO, WHO and UNICEF and other international bodies may also be invited to contribute at any
stage of the dialogue.
The dialogue with state representatives is a valuable opportunity for the Committee to explain
the normative content of particular provisions of the Covenant and to comment on difficulties in
the implementation of the Covenant. The summary records of such dialogues are made available
to the public through printed UN documents and are now also available through the Internet in
the database maintained by the OHCHR.
The dialogue is often very open and frank, and state experts frequently recognize the failures of
the states they represent and the difficulties encountered in the implementation of the Covenant.
Committee experts have the opportunity to provide a clear explanation of the scope of the
obligations concerned.
The Concluding Observations
The final phase of the examination of state reports is the drafting and adoption of the
Committee’s Concluding Observations. The Concluding Observations are usually made public
only on the last day of the session and are available to all interested parties. Since 1993, the
established structure of the ‘Concluding Observations’ is as follows: ‘introduction,’ ‘positive
aspects,’‘factors and difficulties impeding the implementation of the Covenant,’‘principal
subjects of concern,’ and ‘suggestions and recommendations’.
Despite the fact that this structure employs rather diplomatic language, the Committee has
become increasingly more adversarial and inquisitive in its work. Nowadays, the Concluding
Observations do not merely contain ‘suggestions and recommendations’ and careful examination
reveals that many Concluding Observations are to a greater or lesser extent formal declarations
of compliance or non-compliance.
THE STAGES
1st stage
Signing the treaty Ratification; after which the report is submitted. Compilation of report; some
states use consultants, some with the ministry of internal affairs, some consult the civil society
etc. State submits the report through the UN office of the High Commissioner for Human Rights
in Geneva.
2nd stage.
Civil society organizations (CSO’s) now have access to reports. They may choose to compile
shadow reports because usually states seek to praise themselves. These reports may contest what
the state has reported as false. They send their reports to Geneva. Those reports and the state
reports are transferred to the committee concerned.
3rd stage.
The committee sends special rapporteurs.
There is a pre-session where they form a committee to look into the reports. The CSO’s can
attend this. The outcome of the pre-session is a list of issues to seek clarification from the state
parties. The state is at liberty to provide answers immediately or can wait for the 4th stage.
4th stage.
The committee sits and the state presents the reports (usually by minister of foreign affairs) The
CSO’s attend and they try to lobby the members of the committee to ask certain questions, eg on
the human rights abuses in the state. Any member of the committee can pause questions
concerning the report.
5th stage.
The committee then issues concluding observations; it points out the areas of concern and praises
what has been done right away.
6th stage.
The state is expected to implement. Importance of state reporting.
It is a form of internal audit by the state.
It also helps the state to be audited in an international arena.
It helps the state to exchange best practices through looking into other’s reports.
In practice however; Very few states effectively report at all or in time and what does the
committee do in such circumstances? It sometimes reviews the state in its absentia (which states
do not want). For example Uganda had not submitted a report for more than 25 year under
ICESCR; where CSO’s came together to make an alternative shadow report and publicized their
exercise, the state reached out to them and promised to report but did not. The CSO’s then tried
to hand in to the committee in 2011. In 2014, the state made its own report and handed it over
and the CSO’s adjusted their report to respond to the state’s report.
A pre session was set up in Geneva. Some of the CSO’s actors attended and lobbied with the
committee members in 2014 who adopted their list of issues to which the state never responded.
There were other alternative reports from other NGO’s. The committee issued it concluding
observations. Since then, there has been a change in the response to economic, social and cultural
rights; they are now more seriously looked into.
Inter-state complaint procedure
Some human rights instruments allow states parties to initiate a procedure against another state
party, which is considered not to be fulfilling its obligations under the instrument. In most cases,
such a complaint may only be submitted if both the claimant and the defendant state have
recognized the competence of the supervisory body to receive this type of complaint.
The possibility to lodge complaints against another state party is contemplated in, inter alia,
Article 41 ICCPR; Article 21 CAT; Article 11 CERD; Article 33 ECHR; Article 45 ACHR; and
Article 54 ACHPR. Within the framework of the ILO there are two procedures for inter-state
complaints (see Article 26 of the Constitution and the procedure for freedom of association).
In practice, inter-state complaint mechanisms are seldom used. Inter-state relationships are
delicate and inter-state mechanisms may not be ideal procedures as states bringing complaints
may elicit reprisals. In addition, many states have not recognized the competence of the
supervisory bodies to receive inter-state complaints. The European Convention for the Protection
of Human Rights and Fundamental Freedoms and the African Charter on Human and Peoples’
Rights do not require any special authorization for a state party to be able to bring interstate
complaints. The European mechanism is the only inter-state mechanism that has been employed
several times; most recently in 2001 (Cyprus v. Turkey). One inter-state complaint has been
brought to the African Commission on Human and Peoples’ Rights (as of July 2004).
The Committee Against Torture
The prohibition of torture is contained in a wide variety of human rights and humanitarian law
treaties, and has become part of customary international law. Indeed it is now established as a
norm of jus cogens. Issues concerning torture have come before a number of human rights
organs, such as the Human Rights Committee, the European Court of Human Rights and the
International Criminal Tribunal on the Former Yugoslavia.
The Committee against Torture was established pursuant to article 17 of the Convention. It
consists of 10 experts of high moral standing and recognized competence in the field of human
rights. The experts, who must be nationals of States parties, are elected by those States by secret
ballot. They are elected for a term of four years and are eligible for re-election
The Committee receives states’ reports (article 19), has an inter-state complaint competence
(article 21) and may hear individual communications (article 22). In both the latter cases, it is
necessary that the state or states concerned should have made a declaration accepting the
competence of the Committee. Article 20 of the Convention provides that if the Committee
receives ‘reliable evidence’ that torture is being systematically practiced in the territory of a state
party, it may invite the state in question to co-operate in examining the evidence. The Committee
may designate one or more of its members to make a confidential inquiry. In doing so, it shall
seek the co-operation of the state concerned and, with the latter’s agreement; such an inquiry
may include a visit to its territory. The Committee will transmit the findings of the inquiry to the
state, together with appropriate comments or suggestions. The proceedings up to this point are to
be confidential, but the Committee may, after consulting the state, decide to include a summary
account of the results in its annual report. This additional, if cautiously phrased, power may
provide the Committee with a significant role. It should be noted that states parties have the
ability to ‘opt out’ of this procedure if they so wish at the time of signature or ratification, or
accession. The conduct of the reporting procedure bears much resemblance to the practice of the
UN Human Rights Committee. Guidelines have been issued for states parties and the discussions
with state representatives are held with a view to establishing a constructive dialogue. Many
problems facing other treaty bodies also appear with regard to the Committee Against Torture,
for example, overdue reports and problems relating to implementation of the Convention
generally. The Committee may also make comments on states’ reports in the form of concluding
observations and may issue general comments. Interim measures of protection may also be
granted under Rule 108(1) and this is monitored by the rapporteurs for new complaints and
interim measures. The first three cases before the Committee under article 22 were admissibility
decisions concerning Argentinian legislation exempting junior military officers from liability for
acts of torture committed during the 1976–83 periods and its compatibility with the Torture
Convention. The Committee noted that there existed a general rule of international law obliging
all states to take effective measures to prevent and punish acts of torture. However, the
Convention took effect only from its date of entry (26 June 1987) and could not be applied
retroactively to cover the enactment of legislation prior to that date. Therefore, the
communications were inadmissible. However, the Committee did criticize the Argentinean
legislation and stated that Argentina was morally bound to provide a remedy to the victims of
torture. In May 2002, the Committee revised its rules of procedure and established the function
of a Rapporteur for follow-up of decisions on complaints submitted under article 22. The
Committee has held that where substantial grounds exist for believing that the applicant would
be in danger of being subjected to torture, the expulsion or return of the applicant by the state
party concerned to the state in which he might be tortured would constitute a violation of article
3 of the Convention. The Committee has also emphasized that the risk of torture must be
assessed on grounds that go beyond mere theory or suspicion. The risk need not be highly
probable, but it must be personal and present. While the Committee does give considerable
weight to findings of fact made by the organs of the state party concerned, it is not bound by
these and has the power of free assessment of the facts arising in the circumstances of each case.
It has been particularly underlined that the prohibition enshrined in article 3 of the Convention
was an absolute one. It has also been noted that where complaints of torture are made during
court proceedings, it is desirable that they be elucidated by means of independent proceedings.
For the Committee to be able to admit and examine individual communications against a State
party, its competence in that regard must have been expressly recognized by the State concerned.
A complaint must be submitted by the alleged victim, or by a close relative or a duly authorized
representative, and must first be declared admissible.
Requirements ;
When considering a complaint, the Committee first examines its admissibility. Conditions
for admissibility are specified in the Convention and in the Committee’s rules of procedure. For
a communication to be declared admissible:
- It must not be anonymous or incompatible with the provisions of the Convention.
- It must not constitute an abuse of the right to submit a communication under article 22.
- It must not have been examined (or be under examination) under another procedure
of international investigation or settlement.
- The complainant must have exhausted all available and effective domestic remedies before
sending the complaint to the Committee.
The Committee may request the State party concerned or the complainant to submit additional
information, clarifications or observations relevant to the admissibility of the case
If the Committee decides that a communication is admissible, after informing the complainant
and transmitting its decision to the State party concerned, it will consider the merits of the case.
Within six months, the State party concerned should submit to the Committee explanations or
statements clarifying the case and indicating any measures that may have been taken to remedy
the situation. The complainant may also submit observations or additional information to the
Committee. When registering a communication, or when considering either the admissibility or
the merits of a case, and prior to any decision being taken, the Committee may, pursuant to rule
108 of its rules of procedure, request the State party concerned to take measures to avoid
potential irreparable damage to the alleged victim. This provision offers persons who claim a
violation of the Convention protection against any State party action or inaction that would be
incompatible with that State’s obligations under the Convention. At the same time, it does not
prejudge the Committee’s final decision. In the light of all the information made available to it
by the complainant and the State party concerned, the Committee considers the communication
and adopts its Views thereon. Any member of the Committee may express an individual opinion.
The Views are transmitted to the complainant and the State party, which if a violation of the
Convention has been found, is invited by the Committee to inform it of any action it may take in
conformity with the Views. Such follow-up information is usually requested within three months
of the transmittal of the Views.
The Committee includes in its annual report a summary of the communications examined, of the
explanations and statements of the State parties concerned, and of its own Views.
Case against Azerbaijan
It was submitted by AA. The alleged victim was AA. The subject matter was ill treatment on
death row. The victim was charged with murder, illegal storage of fire arms, among others.
In prison the death sentence was scrapped and he was put on life imprisonment. He shared a
room with 5 prisoners, with no light and 1 bed to be shared in turns.
Some prisoners escaped and the judge said that the 2 prisoners were allowed to be beaten even to
death. The whole prison was to shower within 15 minutes.
T h e c o m p l a i n a n t c l a i m s t h a t t h e c o n d i t i o n s o f detention, and the manner

the authorities treated him while he was on death row (1994–1998), amounted to a violation of
articles 1 (1) and 2 of the Convention. HELD; the case was held as inadmissible as the “same
matter” had been the object of the complainant’s application before the European Court and it
was examined and declared inadmissible.
Look at the Content of any General comment of a committee.
The UN Convention on the Rights of Persons with Disabilities
The Convention on the Rights of Persons with Disabilities and its Optional Protocol
(A/RES/61/106) was adopted on 13 December 2006 at the United Nations Headquarters in New
York, and was opened for signature on 30 March 2007. There were 82 signatories to the
Convention, 44 signatories to the Optional Protocol, and 1 ratification of the Convention. This is
the highest number of signatories in history to a UN Convention on its opening day. It is the first
comprehensive human rights treaty of the 21st century and is the first human rights convention to
be open for signature by regional integration organizations. The Convention entered into force on
3 May 2008. The Convention follows decades of work by the United Nations to change attitudes
and approaches to persons with disabilities. It takes to a new height the movement from viewing
persons with disabilities as “objects” of charity(charity model), medical treatment (medical
model)and social protection towards viewing persons with disabilities as “subjects” with rights,
who are capable of claiming those rights and making decisions for their lives based on their free
and informed consent as well as being active members of society.
Article 1 defines the purpose of the Convention: to promote, protect and ensure the full and
equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities,
and to promote respect for their inherent dignity
Definition of disability
Article 2 (Definitions) does not include a definition of disability. The Convention adopts a social
model of disability, but does not offer a specific definition. The Convention's preamble (e)
explains that the Convention recognizes: "...that disability is an evolving concept and that
disability results from the interaction between persons with impairments and attitudinal and
environmental barriers that hinders their full and effective participation in society on an equal
basis with others,"
Article one (Purpose) further offers that: "Persons with disabilities include those who have long-
term physical, mental, intellectual or sensory impairments which in interaction with various
barriers may hinder their full and effective participation in society on an equal basis with others."
However, the use of the term "include" should not be interpreted as excluding those who have
short term or fluctuating conditions.
The convention details general principles in Article 3. There are 8 general principles.
1. Respect for inherent dignity, individual autonomy including the freedom to make one's
own choices, and independence of persons
2. Non-discrimination
3. Full and effective participation and inclusion in society
4. Respect for difference and acceptance of persons with disabilities as part of human
diversity and humanity
5. Equality of opportunity
6. Accessibility
7. Equality between men and women
8. Respect for the evolving capacities of children with disabilities and respect for the right
of children with disabilities to preserve their identities
REGIONAL/CONTINENTAL LEVEL.
AFRICA;
Comparing the charter of the OAU with the Constitutive Act of OAU.
AFRICAN COMMISSION ON HUMAN AND PEOPLES’ RIGHTS
The African Commission on Human and Peoples’ Rights is a quasi-judicial body, established by
the African Charter on Human and Peoples’ Rights. The Commission is based in Banjul, The
Gambia.
1. COMPOSITION
The Commission is composed of eleven members (Article 31 ACHPR):
• ‘Chosen from amongst African personalities of the highest reputation, known for their high
morality, integrity, impartiality and competence in matters of human and peoples’ rights;
particular consideration being given to persons having legal experience.’
• ‘The members of the Commission shall serve in their personal capacity.’
2. WHO MAY FILE A COMPLAINT?
Article 55 ACHPR does not place any restrictions on who can submit cases to the Commission.
This provision simply notes: ‘Before each session, the Secretary of the Commission shall make a
list of the communications other than those of States Parties to the present Charter’. The
Commission has interpreted this provision as giving locus standi to the victims themselves and to
the victims’ families as well as NGOs and others acting on their behalf. Universal and Regional
Human Rights Protection: Cases and Commentaries
3. ADMISSIBILITY
Exhaustion of domestic remedies: Article 56(5) ACHPR. The Commission can only deal with
communications if they ‘are sent after exhausting local remedies, if any, unless it is obvious that
this procedure is unduly prolonged’.
Time period: Article 56(6) ACHPR. The Communications must be ‘submitted within a
reasonable period from the time local remedies are exhausted or from the date the Commission is
seized of the matter’.
Duplication of procedures at the international level: Article 56(7) ACHPR. The Commission
does ‘not deal with cases which have been settled by these states involved in accordance with the
principles of the Charter of the United Nations, or the Charter of the Organization of African
Unity or the provisions of the present Charter’.
4. INADMISSIBILITY
Article 56 ACHPR. ‘Communications relating to human and peoples’ rights referred to in Article
55 received by the Commission shall be considered if they: (1) Indicate their authors even if the
latter request anonymity, (2) Are compatible with the Charter of the Organization of African
Unity or with the present Charter, (3) Are not written in disparaging or insulting language
directed against the state concerned and its institutions or to the Organization of African Unity
[…].’
5. INTERIM MEASURES
The Commission has developed a mechanism for adoption of provisional measures in its Rules
of Procedure (Rule 111). ‘1. Before making its final views known to the Assembly on the
communication, the Commission may inform the State Party concerned of its views on the
appropriateness of taking provisional measures to avoid irreparable damage being caused to the
victim of the alleged violation. […]. 2. The Commission may […] indicate to the parties any
interim measure, the adoption of which seems desirable in the interest of the parties or the proper
conduct of the proceedings before it.’
6. FRIENDLY SETTLEMENT
Article 52 ACHPR. ‘After having obtained […] all the information it deems necessary, and after
having tried all appropriate means to reach an amicable settlement based on the respect of
Human Rights and Peoples’ Rights, the Commission shall prepare […] a report stating the facts
and its findings.’ Rule 98 Rules of Procedure. ‘[T]he Commission shall place its good offices at
the disposal of the interested States Parties to the Charter so as to reach an amicable solution on
the issue based on the respect of human rights and fundamental liberties, as recognized by the
Charter.’
7. PROCEDURE
Written procedure, official and working languages are set out in Rule 34 Rules of Procedure of
the Commission. ‘The working languages of the Commission and of all its institutions shall be
those of the Organisation of African Unity.’ ‘The working languages of the Union and all its
institutions shall be, if possible, African languages, Arabic, English, French and Portuguese.’
(Article 25 Constitutive Act of the AU) communication process art 47, 48 55 56 58,
admissibility 56
Contributions
It makes recommendations on reports
It has adjudicated a number of communications
It has established a documentation centre to ensure dissemination Organized seminars
Cooperates with other institutions, Appointed special rapporteurs, It granted NGO’s observer
status, It receives state reports
Challenges.
Their performance is reliant on the efficiency of the secretariat. There is shortage of staff and
financial constraints. Finances have been only increased by the NGO support. People do not see
the commission as something that will give them solutions. Since its recommendations are not
binding, the civil society does not know enough about it. Inaccessibility to key documents in
time, making decision making harder eg Algeria highlighted a bias in English speakers as they
were not provided Arabic speakers. The decisions take long. Gambia is not easily accessible by
flight. First go to Brussels to come back to Africa
AFRICAN COURT ON HUMAN AND PEOPLES’ RIGHTS
The original African Charter did not provide for the institution of a Court of Human Rights. In
June 1998, the OAU adopted the Protocol to the African Charter on Human and Peoples’ Rights
on the Establishment of an African Court of Human and Peoples’ Rights, which came into force
25 January 2004. Although as of July 2004 the African Court is not yet in existence it is hoped
that it will be established in the very near future. The African Court is a judicial body,
established by the Protocol on the African Court on Human and Peoples’ Rights.
1. COMPOSITION
The African Court is non-permanent body with a full-time president, composed of eleven judges:
• ‘Nationals of Member States of the OAU, elected in an individual capacity from among jurists
of high moral character and of recognized practical, judicial Universal and Regional Human
Rights Protection: Cases and Commentaries or academic competence and experience in the field
of human and peoples’ rights.’ (Article 11 Protocol).
• Article 22 Protocol excludes participation in a case of a judge who is a national of a state that is
a party to the case.
• Ad hoc judges: The Protocol does not contemplate the appointment of ad hoc judges.
• Representation of the main regions of Africa and their principal legal traditions (Article 14(2)
Protocol).
• Adequate gender representation is contemplated in Articles 12(2) and 14(3) Protocol.
Article 5(1) Protocol: ‘The following are entitled to submit cases to the Court:
a) The Commission; b) The State Party which has lodged a complaint to the Commission; c) The
State Party against which the complaint has been lodged at the Commission; d) The State party
whose citizen is a victim of human rights violation; e) African Intergovernmental Organizations.’
The striking omission is the lack of locus standi for victims of human rights violations.
Nonetheless, Articles 5(3) and 34(6) allow states parties, through a separate declaration, to
recognize the standing of individuals and non-governmental organizations before the Court.
3. ADMISSIBILITY
Article 6 Protocol sets out: ‘1. The Court, when deciding on the admissibility of a case instituted
under article 5 (3) of this Protocol, may request the opinion of the Commission which shall give
it as soon as possible. 2. The Court shall rule on the admissibility of cases taking into account the
provisions of article 56 of the Charter.’ In other words, according to this provision, the
admissibility requirements are the same for the Court as those of the Commission (Article 56
Charter, see below). The novelty is the possibility for the Court to ‘request the opinion of the
Commission’ on admissibility (Article 6(1) Protocol).
4. INQUIRY PROCEDURES
Article 26(1) Protocol allows the Court to conduct inquiries.
5. FRIENDLY SETTLEMENTS
Article 9 Protocol: ‘The Court may try to reach an amicable settlement in a case pending before
it in accordance with the provisions of the Charter.’
Chapter 2. Important features of the International Supervisory Mechanisms
6. JUDGEMENTS
Article 27(1) Protocol: ‘If the Court finds that there has been violation of a human or peoples’
right, it shall make appropriate orders to remedy the violation, including the payment of fair
compensation or reparation.’
• Binding force: Article 30 Protocol. ‘The States Parties to the present Protocol undertake to
comply with the judgment in any case to which they are parties within the time stipulated by the
Court and to guarantee its execution.’
• Execution of judgments: Articles 29 and 31 Protocol establish a role for the Assembly and
Council of Ministers of the AU to guarantee compliance with the judgments: The Court shall
submit an annual report to the Assembly and specify, in particular, the cases where a state has
not complied with the court’s judgment (Article 31 Protocol). ‘The Council of Ministers shall
also be notified of’ the judgment and shall monitor its execution on behalf of the Assembly.’
(Article 29(2) Protocol).
7. ADVISORY OPINIONS
Article 4(1) Protocol: ‘At the request of a Member State of the OAU, the OAU, any of its organs,
or any African organization recognize by the OAU, the Court may provide an opinion on any
legal matter relating to the Charter or any other relevant human rights instruments, provided that
the subject matter of the opinion is not related to a matter being examined by the Commission.’
The mandate of the Court in this regard is considerably broader than that of the Commission.
8. PROVISIONAL MEASURES
Article 27(2) Protocol: ‘In cases of extreme gravity and urgency, and when necessary to avoid
irreparable harm to persons, the Court shall adopt such provisional measures as it deems
necessary.’
9. PROCEDURE
Hearings are public, but may be conducted in camera as may be provided in the Rules of
Procedure. Free legal representation is set out in Article 10(2) Protocol: ‘Free legal
representation may be provided where the interests of justice so require
What is exhaustion of local remedies?
What is the ACHPR jurisprudence on exhaustion of local remedies; Jawara case. What are the
exceptions to the exhaustion of local remedies (if there is evidence that the local remedy is
unavailable, eg if the judicial systems are broken down because of war, if there is evidence that
the local remedies are unduly prolonged, where the local remedies are meaningless
Cases to read;
Nubian social community in Kenya v Kenya.;
Social and economic rights action centre v Nigeria
Purohti v the Gambia; on mental disability and health care
Centre for minority rights (CEMERIDE) and ENDORIA v Kenya; on culture, religion and
access to land Centre on housing rights and evictions v Sudan; housing rights in Darfur
Sarowiwa case’ pollution Wilfred Onyango and 9ors v Tanzania, Amil Adam Jiman v Sudan
Centre for minority rights (CEMERIDE) and ENDORIA v Kenya;
Impact of this case;
It defined indigenous people; they are entitled to collective rights as in ACHPR, It expounded the
idea of the right to development to include;…… And its violation was crucial to the realization
of the rights in general It is an elaborate decision; one of the most important of the court.
Social and economic rights action centre v Nigeria; it expounds on the rights in the ACHPR eg
food, water and housing. That is as much the charter does not say much about these, they can be
read into the charter because they pertain to human dignity.
The commission deals with the obligations of the state to promote respect and fulfill.
Relationship between the court and the commission
Rule 29 of court’s interim rules of procedure 2010
- Compliments the protective mandate of the commission

- Court may transfer a matter to the commission
- Court’s judgment have to be transferred to the commission
- Commission may submit a communication to the court for human rights violation; the
commission becomes the complainant.
- The court cannot consider something that’s being considered by the commission and vice
versa
- The commission may also transfer a decision to be issued by the court to give it a biding
force eg it did in a case against Kenya where it was going to evict people from a forest
reserve
Christopher Mtikila v Tanzania; analysis of its contribution to human rights in Africa
Review the Malabo Protocol; advise on the provisions and politics that gave birth to it Review
the protocol merging of the ACHPR and ACJ; advise on impacts Review Uganda’s UPR report
and pick out 3 recurrent recommendations; those that appeared both in the 2011 and 2015
reports; what are the factors that could have affected the implementation of these
recommendation. A review of the wayara document
INTER-AMERICAN HUMAN RIGHTS SYSTEM
The Inter-American System for the protection of human rights is one of the world’s three
regional human rights systems, and is responsible for monitoring and ensuring implementation of
human rights guarantees in the 35 independent countries of the Americas that are members of the
Organization of American States (OAS). The Inter-American System is composed of two
entities: a Commission and a Court. Both bodies can decide individual complaints concerning
alleged human rights violations and may issue emergency protective measures when an
individual or the subject of a complaint is in immediate risk of irreparable harm. The
Commission also engages in a range of human rights monitoring and promotion activities, while
the Court may issue advisory opinions on issues pertaining to the interpretation of the Inter-
American instruments at the request of an OAS organ or Member State. This is the organization
of the American states. Its special in the sense that the African system drew its inspiration from
it.
Mechanisms.
Inter American commission on human rights
The Inter-American Commission on Human Rights (IACHR) addresses human rights

conditions and violations in the 35 Member States of the OAS. It began operating in 1960,
observing human rights conditions via on-site visits, and in 1965 was authorized to begin
processing specific complaints of human rights violations. The Commission also holds thematic
hearings on specific topical areas of concern, publishes studies and reports, requests the adoption
of precautionary measures to protect individuals at risk, and has established several thematic
rapporteurships to more closely monitor certain human rights themes or the rights of specific
communities in the hemisphere. Individuals, groups of individuals, and non-governmental
organizations recognized in any OAS Member State may submit complaints (“petitions“)
concerning alleged violations of the American Declaration of the Rights and Duties of Man,
American Convention on Human Rights, and other regional human rights treaties (listed below).
The Commission receives approximately 1,500 petitions every year. Article 1 of the statute of
the commission; The Inter-American Commission on Human Rights is an organ of the
Organization of the American States, created to promote the observance and defense of human
rights and to serve as consultative organ of the Organization in this matter.
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS
The Inter-American Commission is a quasi-judicial, quasi-political body established by the OAS

Charter and the American Convention on Human Rights. It is based in Washington DC, USA.
1. COMPOSITION
The Commission is composed of seven members (Article 34 ACHR).
• Commission members must be ‘persons of high moral character and recognized competence in
the field of human rights’ (Article 34 ACHR).
• They are elected in their personal capacity (Article 36 ACHR).
• No two nationals of the same state may be members of the Commission (Article 37(2) ACHR).
Article 44 ACHR: ‘Any person or group of persons, or any non-governmental entity legally
recognized in one or more member states of the Organization, may lodge petitions with the
Commission containing denunciations or complaints of violation of this Convention by a State
Party.’
Universal and Regional Human Rights Protection: Cases and Commentaries
3. ADMISSIBILITY
Exhaustion of domestic remedies: Article 46 ACHR and Article 31 Rules of Procedure of the
Inter-American Commission. Admission by the Commission of a petition or communication
requires that ‘the remedies under domestic law have been pursued and exhausted in accordance
with generally recognized principles of international law’. According to Article 46(2), this rule is
not applicable ‘when: (a) the domestic legislation of the state concerned does not afford due
process of law for the protection of the right or rights that have allegedly been violated; (b) the
party alleging violation of his rights has been denied access to the remedies under domestic law
or has been prevented from exhausting them; or (c) there has been unwarranted delay in
rendering a final judgment under the aforementioned remedies.’
Time period: Article 46 ACHR. The petition or communication must be lodged ‘within a period
of six months from the date on which the party alleging violation of his rights was notified of the
final judgment’.
Duplication of procedures at the international level: Article 46 ACHR.
Admission by the Commission of a petition or communication requires ‘that the subject of the
petition or communication is not pending in another international proceeding for settlement’.
According to Article 47, the Commission shall consider any petition or communication
inadmissible if ‘the petition or communication is substantially the same as one previously studied
by the Commission or by another international organisation’.
4. INADMISSIBILITY
Article 47 ACHR. The Commission shall consider any petition or communication inadmissible
if: ‘(a) any of the requirements indicated in Article 46 has not been met [see above]; (b) the
petition or communication does not state facts that tend to establish a violation of the rights
guaranteed by this Convention; (c) the statements of the petitioner or of the state indicate that the
petition or communication is manifestly groundless or obviously out of order; […]’.
Article 48(1)(f) ACHR: ‘The Commission shall place itself at the disposal of the parties
concerned with a view to reaching a friendly settlement of the matter on the basis of respect for
the human rights recognized in this Convention.’
6. INTERIM MEASURES
Article 25(1) Rules of Procedure: ‘In serious and urgent cases, and whenever necessary
according to the information available, the Commission may, its own initiative or at the request
of a party, adopt precautionary measures to prevent irreparable harm to persons.’
Chapter 2. Important features of the International Supervisory Mechanisms
Article 41 [main function: human rights promotion]
The main function of the Commission shall be to promote respect for and defense of human
rights. In the exercise of its mandate, it shall have the following functions and powers: a) to
develop an awareness of human rights among the peoples of America;
b) to make recommendations to the governments of the member states, when it considers such
action advisable, for the adoption of progressive measures in favor of human rights within the
framework of their domestic law and constitutional provisions as well as appropriate measures to
further the observance of those rights;
c) to prepare such studies or reports as it considers advisable in the performance of its duties;
d) to request the governments of the member states to supply it with information on the measures
adopted by them in matters of human rights;
e) to respond, through the General Secretariat of the Organization of American States, to

inquiries made by the member states on matters related to human rights and, within the limits of
its possibilities, to provide those states with the advisory services they request;
f) to take action on petitions and other communications pursuant to its authority under the
provisions of Articles 44 through 51 of this Convention; and
g) to submit an annual report to the General Assembly of the Organization of American States
Art 47; communication and petitions
Art 46 admissibility criteria
Inter-American court of human rights;
The Inter-American Court of Human Rights is the judicial organ of the Inter-American
human rights system. Its mandate is more limited than that of the Commission because the Court
may only decide cases brought against the OAS Member States that have specifically accepted
the Court’s contentious jurisdiction and those cases must first be processed by the Commission.
Additionally, only States parties and the Commission may refer contentious cases to the
Court.Currently, 23 OAS Member States have ratified the American Convention on Human
Rights, 20 of whom have opted to accept the Court’s contentious jurisdiction in accordance with
Article 62 of the American Convention. The 20 States over which the Court may exercise its
contentious jurisdiction are: Argentina, Barbados, Bolivia, Brazil, Chile, Colombia, Costa Rica,
Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Honduras, Mexico, Nicaragua,
Panama, Paraguay, Peru, Suriname, and Uruguay. The Court began operating in 1979, and soon
issued several advisory opinions, but did not begin exercising its contentious jurisdiction until
1986, when the Commission submitted the first contentious case: Velasquez Rodriguez v.
Honduras, regarding which the Court issued a judgment on the merits in 1988.
INTER-AMERICAN COURT OF HUMAN RIGHTS
The Inter-American Court of Human Rights is a part-time, non-permanent judicial body

established by the American Convention on Human Rights. It is based in San Jose, Costa Rica.
1. COMPOSITION
The Court is composed of seven judges: article 52
• National judges: Article 55 permits judges who are nationals of states parties to sit on cases
involving their own countries
• Ad hoc judges: Article 55(3) ACHR and Article 18 Rules of Procedure
• Gender representation: no specific provisions
Article 61(1) ACHR. Only a state party and the Inter-American Commission have the right to
submit a case to the Court. Individuals may, however, submit cases to the Inter-American
Commission. In cases before the Court, alleged victims are allowed to participate in the
proceedings submitting their pleadings, motions and evidence, autonomously, throughout the
proceedings. They may also request the adoption of provisional measures (Articles 23 and 25
Rules of Procedure).
3. ADMISSIBILITY
Exhaustion of domestic remedies: Articles 46 and 47 ACHR. Admission by the Commission

requires ‘that the remedies under domestic law have been pursued and exhausted in accordance
with generally recognized principles of international law’. This rule shall not be applicable when
‘(a) the domestic legislation of the state concerned does not afford due process of law for the
protection of the right or rights that have allegedly been violated; (b) the party alleging violation
of his rights has been denied access to remedies under domestic law or has been prevented from
exhausting them; or (c) there has been unwarranted delay in rendering a final judgment under the
aforementioned remedies’.
Universal and Regional Human Rights Protection: Cases and Commentaries
Time period: Article 46 ACHR. Admission by the Commission requires ‘that the petition or
communication is lodged within a period of six months from the date on which the party alleging
violation of his rights was notified of the final judgment’.
Duplication of procedures at the international level: Article 46 ACHR.
Admission by the Commission requires ‘that the subject of the petition or communication is not
pending in another international proceeding for settlement’.
4. INTERIM MEASURES
Article 63(2) ACHR: ‘In cases of extreme gravity and urgency, and when necessary to avoid
irreparable damage to persons, the Court shall adopt such provisional measures as it deems
pertinent in matters it has under consideration. With respect to a case not yet submitted to the
Court, it may act at the request of the Commission.’
5. JUDGMENTS
Article 63(1) ACHR: ‘If the Court finds that there has been a violation of a right or freedom
protected by this Convention, the Court shall rule that the injured party be ensured the enjoyment
of his right or freedom that was violated. It shall also rule, if appropriate, that the consequences
of the measure or situation that constituted the breach of such right or freedom be remedied and
that fair compensation be paid to the injured party.’
• Binding force: Article 68 ACHR. ‘1. The States Parties to the Convention undertake to comply
with the judgment of the Court in any case to which they are parties.
2. That part of a judgment that stipulates compensatory damages may be executed in the country
concerned in accordance with domestic procedure governing the execution of judgments against
the state’
• Execution of judgments: The Convention does not establish any institutional role for the
political organs of the Organization of American States to supervise enforcement of the Court’s
rulings. There is no counterpart, for example, to the Committee of Ministers of the Council of
Europe. In the American Convention, only one article refers to the enforcement of judgments.
According to Article 65, the Court is obliged to submit an Annual Report to each regular session
of the General Assembly of the OAS for its consideration. In this report, the Court ‘shall specify,
in particular, the cases in which a state has not complied with its judgments, making any
pertinent recommendations.’
6. AMICUS CURIAE BRIEFS
The Court receives amicus curiae briefs regularly although there is no specific provision
regulating their submission.
7. INQUIRY PROCEDURES
Article 45(4) Rules of Procedure. The Court may at any stage of the proceedings commission
one or more of its members to hold hearings, including preliminary hearings, either at the seat of
the Court or elsewhere, for the purpose of gathering evidence.’
Article 54 Rules of Procedure: ‘When the parties to a case before the Court inform it of the
existence of a friendly settlement, compromise, or any other occurrence likely to lead to a
settlement of the dispute, the Court may strike the case from its list.’
9. ADVISORY OPINIONS
Article 64 ACHR:
‘1. The member states of the Organization may consult the Court regarding the interpretation of
this Convention or of other treaties concerning the protection of human rights in the American
states. Within their spheres of competence, the organs listed in Chapter X of the Charter of the
Organization of American States, as amended by the Protocol of Buenos Aires, may in like
manner consult the Court.
2. The Court, at the request of a member state of the Organization, may provide that state with
opinions regarding the compatibility of any of its domestic laws with the aforesaid international
instruments.’
10. PROCEDURE
Written and oral proceedings. Official and working languages are set out in Article 20 Rules of
Procedure:“1. The official languages of the Court shall be those of Universal and Regional
Human Rights Protection: Cases and Commentaries the OAS, which are Spanish, English,
Portuguese and French. 2. The working languages shall be those agreed upon by the Court each
year. However, in a specific case, the language of one of the parties may be adopted as a working
language, provided it is one of the official languages.’ It should be stressed that only states
parties and the Inter-American Commission may submit cases to the Court.
Comparing the Inter-American court and the ACHPR;
Inter American has no provision for individuals and NGOs, whereas in Africa a state may make
declaration on ratifying a protocol that they allow NGOs and Individuals
African system relies in some of the decision from the Inter-American court eg the case of
CEMERIDE
They have a reasonably higher compliance rate than in Africa
Inter-American Institute of Human Rights

The Court and Commission’s human rights promotion work is complemented by the Inter-American
Institute of Human Rights, an autonomous research and educational institution based in San José,
Costa Rica. The Institute (best known by its Spanish acronym “IIDH”) provides free online courses on
various human rights topics, publishes numerous books, operates a Digital Library (navigation in
Spanish), moderates a discussion listserve, and organizes seminars and workshops for civil society
throughout the Americas. In addition to its online resources, the Institute is open to visitors seeking
research assistance, use of the physical library, or to purchase publications.
Human Rights Committee
The Human Rights Committee is a quasi-judicial body, established by the International

Covenant on Civil and Political Rights and its First Optional Protocol. It convenes in New York
and Geneva.
1. COMPOSITION
The Human Rights Committee is composed of eighteen experts:
• No more than one national of the same state (Article 31(1) ICCPR).
• Equitable geographical distribution and representation of the different forms of civilization and
of the principal legal systems (Article 31(2) ICCPR).
• National experts: A Committee member shall not take part in the examination of a
communication by the Committee if the state party in respect of which he or she was elected to
the Committee is a party to the case (Rule 84, Rules of Procedure).
Article 1 First Optional Protocol to the ICCPR (OP). Complaints may be filed by individuals
subject to the jurisdiction of a state party to the OP ‘who claim to be victims of a violation by
that state party of any of the rights set forth in the Covenant. No communications shall be
received by the Committee if it concerns a state party to the Covenant which is not a party to the
present Protocol’. Exceptionally, a communication submitted on behalf of an alleged victim may
be accepted when it appears that the individual in question is unable to submit the
communication personally (Rule 90, Rules of Procedure). Legal persons, including NGOs,
cannot act as victims but can represent one or more individuals who claim violations of their
rights.
3. ADMISSIBILITY
Exhaustion of domestic remedies: Article 5 OP. The Committee shall not consider any
communication unless ‘[t]he individual has exhausted all available domestic remedies. This shall
not be the rule where the application of the remedies is unreasonably prolonged.’
Time period: No time limit.
Duplication of procedures at the international level: Article 5(2) OP. ‘The Committee shall
not consider any communication from an individual unless it has ascertained that: (a) The same
matter is not being examined under another procedure of international investigation or
settlement.’ This shall not be the rule where the application of the other procedure is
unreasonably prolonged.
4. INADMISSIBILITY
Article 3 OP. ‘The Committee shall consider inadmissible any communication under the present
Protocol which is anonymous, or which it considers to be an abuse of the right of submission of
such communications or to be incompatible with the provisions of the Covenant.’
5. AMICUS CURIAE BRIEFS
The Committee does not consider briefs provided by third parties.
6. INTERIM MEASURES
Rule 86 Rules of Procedure. The Committee may adopt interim measures when ‘desirable to
avoid irreparable damage to the victim of the alleged violation’.
7. PROCEDURE
Written procedure, official and working languages are set out in Rule 28 Rules of Procedure.
‘Arabic, Chinese, English, French, Russian and Spanish shall be the official languages, and
Arabic, English, French, Russian and Spanish the working languages of the Committee.
THE EUROPEAN SYSTEM
THE COUNCIL OF EUROPE
The European system for the protection of human rights was established by the Council of
Europe (CoE), which is a regional intergovernmental organization. The CoE was founded in
London on 5 May 1949 by 10 countries - Belgium, Denmark, France, Ireland, Italy,
Luxembourg, the Netherlands, Norway, Sweden and the United Kingdom. Greece, Turkey, West
Germany and Iceland joined in 1950. It has its seat in Strasbourg, France.
The CoE was established to defend human rights, parliamentary democracy and the rule of law;
develop continent-wide agreements to standardize member countries’ social and legal practices
and to promote awareness of a European identity based on shared values. According to Article 3
of the Statute of the CoE, any European state wishing to become a member of the organization,
must ‘accept the principles of the rule of law and of the enjoyment by all persons within its
jurisdiction of human rights and fundamental freedoms, and collaborate sincerely and effectively
in the realization of the aim of the Council […].’
The CoE is distinct from the European Union, which is composed of 25 countries.
The founding members of the CoE were convinced that new divisions and conflicts in Europe
could only be avoided by guaranteeing respect for the dignity of all human beings, and by
sustained efforts towards mutual understanding and reconciliation of the European peoples.
Therefore, in 1949, the Parliamentary Assembly gave its political blessing to the European
Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), which was
signed on 4 November 1950 and entered into force on 3 September 1953. As of July 2004, the
Convention had been ratified by all 45 states.
The acceptance of the ECHR and its mechanisms is a central part of the acquis of the Council. In
the European context, notably in the European Union and in the Council of Europe, the term
acquis implies that any country that accedes to such international organization must accept the
body of law that has been accepted or acquired by that organization. This applies to those
conventions to which all member states are parties and all the case-law.
Article 1 of the ECHR stipulates that all states parties must ‘secure to everyone within their
jurisdiction the rights and freedoms defined in Section I of this Convention’. The ECHR applies
to all persons under the jurisdiction of the contracting states; thus the Convention protects not
only the nationals and citizens of the state, but all persons under its jurisdiction affected by a
measure taken by its authorities.
Articles 2 to 14 of Section I of the Convention set out the following rights and freedoms: right to
life (Article 2); prohibition of torture (Article 3); prohibition of slavery and forced labor
(Article4); right to liberty and security (Article 5); right to a fair trial (Article 6); no punishment
without law (Article
7); right to respect for private and family life (Article 8); freedom of thought, conscience and
religion (Article 9); freedom of expression (Article 10); freedom of assembly and association
(Article 11); right to marry (Article 12); right to an effective remedy (Article 13); prohibition of
discrimination (Article 14).
Articles 15 to 18 deal, respectively, with derogation in time of emergency, restrictions on

political activity of aliens, prohibition of abuse of rights and limitations on use of restrictions on
rights. Section II of the ECHR (Articles 19 to 51) regulates the supervision by the European
Court. Reflecting the Council’s human rights foundations, other significant treaties are the
European Social Charter, the European Convention for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment and the Framework Convention for the Protection of
National Minorities.
Some of the fourteen Protocols, added to date to the ECHR added specific rights to the
Convention, others amended the supervisory mechanisms. They are summarized below.
The First Protocol (1952) deals with protection of property (Article 1); right to education
(Article 2); and right to free elections (Article 3) (ETS No. 9) The Second Protocol (1963): gives
the Committee of Ministers of the CoE the right to ask the European Court of Human Rights for
advisory opinions concerning the interpretation of the ECHR and its Protocols (ETS No.044).
The Third Protocol (1963): amends a few articles of the Convention (incorporated in the ECHR
itself) (ETS No.045). The Fourth Protocol (1963) deals with: prohibition of imprisonment for
debt (Article 1); freedom of movement (Article 2); prohibition of expulsion of nationals (Article
3); and prohibition of collective expulsion of aliens (Article 4) (ETS No.046).
The Fifth Protocol (1966): stipulates procedural amendments to a few articles of the Convention
(incorporated in the ECHR itself) (ETS No.055). The Sixth Protocol (1983): abolishes the death
penalty in peacetime (ETS No.114).
The Seventh Protocol (1984): deals with Procedural safeguards relating to expulsion of aliens
(Article 1); right of appeal in criminal matters (Article 2); compensation for wrongful conviction
(Article 3); right not to be tried or punished twice (Article 4); and equality between spouses
(Article 5) (ETS No. 117).
Human Rights Reference Handbook
The Eighth Protocol (1985): was designed to improve and speed up the petition procedure
(incorporated in the ECHR itself) (ETS No. 118). The Ninth Protocol (1992): deals with the
petition procedure; it extends to individuals the right to refer a case to the European Court
(repealed after the coming into force of the Eleventh Protocol) (ETS No. 140).
The Tenth Protocol (1992): amended the decision making process of the Committee of Ministers
(the Protocol is obsolete as a result of the Eleventh Protocol) (ETS No. 146).
The Eleventh Protocol (1994): changes the supervisory mechanism of the ECHR (ETS No. 155)
(see the following section). The Twelfth Protocol (2000) : introduces a general prohibition of
discrimination. The Convention contains an article prohibiting discrimination but only with
regard to rights and freedoms set forth in the Convention (ETS No.177).
The Thirteenth Protocol (2002): abolishes the death penalty under all circumstances (ETS No.
187).
The Fourteenth Protocol (2004) amends the control system of the Convention (ETS No.194)
European Court of Human Rights
The European Court is a judicial body, established by the European Convention on Human
Rights and Fundamental Freedoms(Article 19). The Court is based in Strasbourg, France and is a
full time permanent body.
The permanent European Court of Human Rights was established by Protocol No. 11 to the
European Convention. The aim of this Protocol was to simplify the structure, shorten the length
of proceedings and strengthen the judicial character of the system by making it fully compulsory.
Protocol No. 11, which came into force on 1 November 1998, replaced the existing, part-time
Court and Commission by a single, full-time Court. For a transitional period of one year (until 31
October 1999), the Commission continued to deal with the cases that it had previously declared
admissible. Moreover, the Committee of Ministers’ adjudicative role was abolished.
Composition
The Court is composed of forty-seven judges, one judge for each state party to the ECHR. Article
20 ECHR establishes that ‘The Court shall consist of a number of judges equal to that of the
High Contracting Parties.’
• ‘The judges shall be of high moral character and must either possess the qualifications required
for appointment to high judicial office or be juris consults of recognized competence’ (Article
21(1) ECHR).
• The judges shall sit on the Court in their individual capacity (Article 21(2) ECHR).
• Ad hoc judges: Rule 29(1) Rules of Court. ‘1.(a) If the judge elected in respect of a Contracting
Party concerned is unable to sit in the Chamber, withdraws, or is exempted, the President of the
Chamber shall invite that Party to indicate whether it wishes to appoint to sit as judge either
another elected judge or an ad hoc judge and, if so, to state at the same time the name of the
person appointed.’
Who may file a complaint?
Article 34 ECHR: ‘The Court may receive applications from any person, nongovernmental
organization or group of individuals claiming to be the victim of a violation by one of the High
Contracting Parties of the rights set forth in the Convention or the protocols thereto. The High
Contracting Parties undertake not to hinder in any way the effective exercise of this right.’
It can also receive interstate complaints. Article 33 Any High Contracting Party may refer to the
Court any alleged breach of the provisions of the Convention and the protocols thereto by
another High Contracting Party. Eg Ireland v Ukconcerning the threshold at which 'cruel and
unusual treatment' becomes 'torture' for the purposes of Article 3 of the European Convention on
Human Rights (ECHR),
Admissibility;
Exhaustion of domestic remedies: Article 35 ECHR. ‘The Court may only deal with the matter
after all domestic remedies have been exhausted, according to the generally recognised rules of
international law. Art 13 puts an obligation on national authorities to provide an effective
remedy.
Time period: Article 35 ECHR. The Court may only deal with the matter if it is submitted to the
Court within a period of six months after exhaustion of domestic remedies.
Duplication of procedures: Article 35 ECHR. The Court shall not deal with any application that
‘is substantially the same as a matter that has already been examined by the Court or has already
been submitted to another procedure of international investigation or settlement and contains no
relevant new information.’
Inadmissibility
Article 35 ECHR. The Court shall declare inadmissible any application submitted under Article
34 that is ‘anonymous’ or ‘which it considers incompatible with the provisions of the Convention
or the protocols thereto, manifestly ill-founded, or an abuse of the right of application.’
Amicus curiae briefs
Article 36 ECHR: ‘1. In all cases before a Chamber or the Grand Chamber, a High Contracting
Party one of whose nationals is an applicant shall have the right to submit written comments and
to take part in hearings.
2. The President of the Court may, in the interest of the proper administration of justice, invite
any High Contracting Party which is not a party to the proceedings or any person concerned who
is not the applicant to submit written comments or take part in hearings.’
Friendly settlement
Article 38(1)(b) ECHR. If the Court declares an application admissible, it shall ‘place itself at the
disposal of the parties concerned with a view to securing a friendly settlement of the matter on
the basis of respect for human rights as defined in the Convention and the protocols thereto.’
Judgements
Article 41 ECHR: ‘If the Court finds that there has been a violation of the Convention or the
protocols thereto, and if the internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured
party.’
• Binding force: Article 46(1) ECHR: ‘The High Contracting Parties undertake to abide by the
final judgment of the Court in any case to which they are parties.’
• Execution of judgments: Article 46(2) ECHR: ‘The final judgment of the Court shall be
transmitted to the Committee of Ministers, which shall supervise its execution.’ Additionally,
according to Articles 3 and 8 of the Statute of the Council of Europe, the Committee of Ministers
has the power of expulsion of recalcitrant states.
Advisory opinions
Article 47 ECHR: ‘1. The Court may, at the request of the Committee of Ministers, give advisory
opinions on legal questions concerning the interpretation of the Convention and the protocols
thereto.
2. Such opinions shall not deal with any question relating to the content or scope of the rights or
freedoms defined in Section I of the Convention and the protocols thereto, or with any other
question which the Court or the Committee of Ministers might have to consider in consequence
of any such proceedings as could be instituted in accordance with the Convention. 3. Decisions
of the Committee of Ministers to request an advisory opinion of the Court shall require a
majority vote of the representatives entitled to sit on the Committee.’
Interim measures
Rule 39 Rules of Court: ‘1. The Chamber or, where appropriate, its President may, at the request
of a party or of any other person concerned, or of its own motion, indicate to the parties any
interim measure which it considers should be adopted in the interests of the parties or of the
proper conduct of the proceedings before it.
2. Notice of these measures shall be given to the Committee of Ministers.
3. The Chamber may request information from the parties on any matter connected with the
implementation of any interim measure it has indicated.’
Procedure
Hearings, which are held in a minority of cases, are public. The official and working languages
are set out in Rule 34 Rules of Court: ‘1. The official languages of the Court shall be English and
French. 2. Before the decision on the admissibility of an application is taken, all communications
with and pleadings by applicants under Article 34 of the Convention or their representatives, if
not in one of the Court’s official languages, shall be in one of the official languages of the
Contracting Parties. 3. (a) All communications with and pleadings by such applicants or their
representatives in respect of a hearing, or after a case has been declared admissible, shall be in
one of the Court’s official languages, unless the President of the Chamber authorizes the
continued use of the official language of a Contracting Party. […]. 6. Any witness, expert or
other person appearing before the Court may use his or her own language if he or she does not
have sufficient knowledge of either of the two official languages. In that event the Registrar shall
make the necessary arrangements for interpreting or translation.
The Court forms committees of three judges to declare whether cases are admissible or not, or
remove them from the list if the decision can be taken without further examination (Articles
27(1) and 28). When deciding on the admissibility or merits of a case, the Court sits in Chambers
of seven judges (Articles 27(1) and 29). In cases related to ‘serious questions affecting the
interpretation or application of the Convention and the Protocols thereto’ or to ‘a serious issue of
general importance’ the Court can form a Grand Chamber of seventeen judges.
Some of the decisions of the court.
Norris v. Ireland was a case decided by the European Court of Human Rights (ECHR) in 1988,
in which David Norris successfully charged that Ireland's criminalisation of certain homosexual
acts between consenting adult men was in breach of Article 8 of the European Convention on
Human Rights (right to respect for private and family life). The Court passed judgment in 1988,
deciding in Norris's favour and the laws impugned by the judgment were eventually repealed by
the Criminal Law (Sexual Offences) Act, 1993.
Campbell v The United Kingdom: ECHR 25 Mar 1992
The applicant complained about the compatibility with the European Convention of the Prisons
rule 74(4) which provided that ‘every letter to or from a prisoner shall be read by the Governor . .
and it shall be within the discretion of the Governor to stop any letter if he considers that the
contents are objectionable.’
Held: The interference with the applicant’s correspondence violated article 8.. In principle, such
letters are privileged under Article 8. This means that the prison authorities may open a letter
from a lawyer to a prisoner when they have reasonable cause to believe that it contains an illicit
enclosure which the normal means of detection have failed to disclose. The letter should,
however, only be opened and should not be read. Suitable guarantees preventing the reading of
the letter should be provided
BURDOV v. RUSSIA
On 1 October 1986 the applicant was called up by the military authorities to take part in
emergency operations at the site of the Chernobyl nuclear plant disaster. The applicant was
engaged in the operations until 11 January 1987 and, as a result, suffered from extensive
exposure to radioactive emissions. In 1991, following an expert opinion which established the
link between the applicant's poor health and his involvement in the Chernobyl events, the
applicant was awarded compensation but this was not honoured despite obtaining a court
judgement to the effect.
Held;
It is not open to a State authority to cite lack of funds as an excuse for not honouring a judgment
debt. In the instant case, the applicant should not have been prevented from benefiting from the
success of the litigation, which concerned compensation for damage to his health caused by
obligatory participation in an emergency operation, on the ground of alleged financial difficulties
experienced by the State. By failing for years to take the necessary measures to comply with the
final judicial decisions in the present case, the Russian authorities deprived the provisions of
Article 6 § 1 of all useful effect.
That the impossibility for the applicant to obtain the execution of these judgments, constituted an
interference with his right to peaceful enjoyment of his possessions, as per Article 1 of Protocol
No. 1. Court found Russian authorities in violation of the Convention and ordered Russia to pay
the applicant in damages.
Campbell and Cosans v. UK, judgment of 25 Feb 1982, Series A no 48, 4 EHRR 293, 40
Facts: Jeffrey Cosans, aged 15, was suspended from his school when he refused to accept
corporal punishment. Two Scottish mothers, Mrs Grace Campbell and Mrs Jane Cosans alleged
that corporal punishment used in their sons schools was contrary to article 3
Holding: the European Court found that the UK was in breach of the European Convention by
not respecting parents objections to school corporal punishment and that there had been a
violation of article 2 of Protocol No.1 when the boys were suspended from school.
Article 2 of Protocol 1 to the Convention states: "No person shall be denied the right to
education. In the exercise of any functions which it assumes in relation to education and to
teaching, the State shall respect the rights of parents to ensure such education and teaching in
conformity with their own religious and philosophical convictions". The Court found that Jeffrey
Cosans had been denied his right to education when he was suspended from his school.
Johnston and Others v Ireland: ECHR 18 Dec 1986

The applicants were an unmarried couple who could not marry, and so legitimate their daughter,
the third applicant, because the Irish Constitution did not permit divorce. Held: there was a
violation of (Article 8 of the ECHR) regarding the legal situation of the child born of an
adulterous relationship. The absence of an appropriate legal regime reflecting the third
applicant’s natural family ties amounts to a failure to respect her family life. Court asked Ireland
to choose the means to be utilized in its domestic law for performance of its obligations under
the convention.
The court has 10 principles which have been developed.
i. Proportionality.
When a state interferes with an individual right, the principle of proportionality requires the
consideration of a fair balance between the general interests of the community and the
requirements for the protection of the individual’s fundamental rights. In James v. The United
Kingdom, the European Court held that ‘there must also be a reasonable relationship of
proportionality between the means employed and the aim sought to be realised’; this notion of a
fair balance is not respected if the person concerned has had to bear an individual and excessive
or disproportionate burden as a result of the state’s interference. The ‘test of proportionality’ has
been applied in numerous cases before the European Court and it can be argued that the principle
has acquired the status of a general principle under the European Convention. The Court’s
examination is generally of a marginal nature, reviewing only whether a measure is
disproportionate or not. Where the Court considers the individual’s burden excessive or
disproportionate, it finds that the state has violated the Convention. The Court applies the
proportionality test first and foremost when interpreting the restriction clauses under Articles 8 to
11, Article 14 and Article 1 of Protocol I. The test is not uniformly applied; the Court is stricter,
for instance, in the interpretation of Articles 8 to 11 than in the interpretation of Article 1 of
Protocol I (property).
Proportionality is also a central principle in the case-law of the Court of Justice of the European
Union
The restriction must be necessary in a democratic society. The restriction must have a legitimate
aim and clearly connected to that aim.
In “Gusinsky v. Russia” ECtHR found as unreasonable the restriction of the right to liberty and
security (art. 5) for the purpose of acquisition by the Government of applicant’s private
company. As ECtHR stated “it is not the purpose of such public-law matters as criminal
proceedings and detention on remand to be used as part of commercial bargaining strategies …
applicant’s prosecution was used to intimidate him.
In the case of “Burdov v. Russia” ECtHR held that delays in the execution of the judgments
constituted an interference with property rights of applicant (art. 1 of Protocol № 1). This
conclusion caused by the assessment of ECtHR that “Government have not advanced any
justification for this interference and the Court considers that a lack of funds cannot justify such
an omission” In this case lack of budget resources, according to the ECtHR, is not the legitimate
purpose which could prove such a restriction of right.
MS v Sweden: ECHR 27 Aug 1997
The applicant having sustained an injury objected to disclosure of medical records to the Social
Insurance Office to allow assessment of her compensation claim.
Held: The object of the disclosure was proper – to enable the office to determine whether the
conditions for granting compensation had been met. The court noted that the information was
‘communicated by one public institution to another in the context of an assessment of whether
she satisfied the legal conditions for obtaining a benefit which she herself had requested. ‘The
Court considers that there were relevant and sufficient reasons for the communication of the
applicant’s medical records by the clinic to the office and that the measure was not
disproportionate to the legitimate aim pursued. Accordingly, it concludes that there has been no
violation of the applicant’s right to respect for her private life, as guaranteed by Article 8 of the
convention’ though ‘respecting the confidentiality of health data is a vital principle in the legal
systems of all contracting parties to the Convention.
In Freedom and Democratic Party v Turkey there was dissolution of OZDEP political party
on grounds that it undermined Turkey’s territotial integrity and violated the constitution. It was
held that ÖZDEP’s dissolution amounted to an interference with the freedom of association of its
members. Only convincing and compelling reasons can justify restrictions on such parties’
freedom of association. Court concluded that ÖZDEP’s dissolution was disproportionate to the
aim pursued and consequently unnecessary in a democratic society. It follows that there has been
a violation of Article 11 of the Convention.
ii. The principle of the obligation.
The court has decided that all the articles of the ECHR place the obligations on member states.
This means that states are obliged to make sure that the rights are protected in a pro-active way
rather than just avoiding violations.
Osman v UK Mr. Ali Osman was shot dead by his son’s former teacher Paul Paget-Lewis, in an
incident in which his son, Ahmet Osman, was also wounded. The applicant alleged that despite
several warnings given to the police about the real risk posed by Paget-Lewis, the police failed to
take appropriate and adequate preventive measures to secure effective protection for the lives of
the victims.
Held
The Court held that the state’s obligation regarding the right to life extends beyond its primary
duty to put in place effective criminal-law provisions to deter the commission of offences against
the person, backed up by law-enforcement machinery for the prevention, suppression and
sanctioning of breaches of such provisions. Having regard to the nature of the right protected by
Article 2 – a right fundamental in the scheme of the Convention - it may also imply, in certain
well-defined circumstances, a positive obligation on the authorities to take preventive
operational measures to protect an individual whose life is at risk from the criminal acts of
another individual.
In Öneryildiz v. Turkey, the applicant, Masallah Öneryildiz, and twelve members of his family
were living in the shanty town of Hekimbasi Ümraniye (Istanbul). The shanty town of
Hekimbasi comprised a collection of slums haphazardly built on land surrounding a rubbish tip
which had been used jointly by four district councils since the 1970s and was under the authority
and responsibility of the main City Council of Istanbul. An expert report drawn up on 7 May
1991 at the request of the Üsküdar District Court, to which the case had been referred by the
Ümraniye District Council, drew the authorities’ attention to, among other things, the fact that no
measure had been taken with regard to the tip in question to prevent a possible explosion of the
methane gas being given off by the decomposing refuse. The report gave rise to a series of
disputes between the mayors concerned. Before the proceedings instituted by either of them had
been concluded, a methane-gas explosion occurred on 28 April 1993 on the waste-collection site
and the refuse erupting from the pile of waste buried eleven houses situated below it, including
the one belonging to the applicant, who lost nine members of his family.
Held;
although the essential object of many provisions of the Convention is to protect the individual
against arbitrary interference by public authorities, there may in addition be positive obligations
inherent in an effective respect of the rights concerned. It has found that such obligations may
arise under Article 2. the state responsibilities include a number of positive obligations,
including measures to provide adequate protection. The government has an obligation to protect
its citizens against health hazards.
iii. The principle of subsidiarity.
The subsidiarity principle, a keystone in the interpretation of the European Convention, was
formulated by the European Court of Human Rights more than 25 years ago in Handyside v. The
United Kingdom. The principle reflects the division of responsibility for human rights protection
between the national and international levels. The Court points out that there are areas where
national authorities must be given genuine discretionary powers – powers which, up to a certain
point, the Court is obliged to respect. In light of the complexity and sensitivity of the issues
involved in policies balancing the interests of the general population the Court can only take on a
strictly supervisory role. As the Court has reaffirmed, it is the state which is primarily
responsible for guaranteeing enjoyment of the rights and freedoms enshrined in the Convention.
The Strasbourg supervisory system will never provide an adequate substitute for effective human
rights protection at the national level; it is to be complementary to such protection. The Court is
not a European court of appeal. It intervenes where national protection breaks down but it cannot
replace it. The Convention is concerned with individuals, but it can only rule on the complaints
of those few individuals who bring their cases to Strasbourg; therefore, national human rights
protection is of prime importance.
Article 1 imposes an obligation on states to provide rights for people within their jurisdiction and
Art 13, an obligation on the state to provide domestic remedies which are effective to people
whose rights under the ECHR have been violated notwithstanding that the violation has been
committed by a person acting in public capacity. The ECtHR is not a court of first instance. The
court comes as a subsidiary after going to domestic authorities.
In Handyside v UK the Court pointed out that the machinery of protection established by the
Convention is subsidiary to the national systems safeguarding human rights […] The Convention
leaves to each Contracting State, in the first place, the task of securing the rights and liberties it
enshrines. The institutions created by it make their own contribution to this task but they become
involved only through contentious proceedings and once all domestic remedies have been
exhausted.
iv. The margin of appreciation.
Closely related to the principle of subsidiarity is the doctrine of the margin of appreciation,
which entails that a state’s legislative or judicial authority is allowed a certain margin in the
interpretation of human rights law in the discharge of its responsibilities. In a democratic society,
state authorities are generally considered to be in a better position than the international judge
when appreciating complex factors and balancing conflicting considerations of public and
private interests. Again, as in the case of proportionality, the application of the margin of
appreciation by the Court varies.
The scope of the margin of appreciation will differ according to the circumstances, the subject-
matter and background. This may appear complex, but a clear logic can be discerned when one
studies the European case-law. In cases regarding issues such as freedom of expression where a
common European view on acceptable restrictions can be identified, a narrower margin of
appreciation is applicable. In the case of the protection of morals, a concept that may differ more
from one country to another, the Court allows a much wider margin of appreciation. Similarly,
there will be a difference in the margin of appreciation between the strict interpretations of the
freedom of religion on the one hand and of the right to property on the other. Property rights may
be subject to a wide margin, in view of substantial differences in interpretation between
countries, given political priorities and, for instance, tax policies. One sees the interplay between
various factors determining the margin of appreciation. In itself this creates a degree of variety.
At the same time, the margin of appreciation assists in defining the respective roles of the
national courts and authorities on the one hand and the supervisory mechanism on the other..
In Ahmed and ors v UK, the court said it cannot decide and say that in every country, this is
what a politically sensitive office that should be part of a political party.
The margin of appreciation applies only to non-absolute rights. It goes hand in hand with rights.
In Handy side v. The United Kingdom, the applicant, a publishing firm, published the ‘Little
Red Book’ which was intended for, and made available to, school children of the age of twelve
and upwards. The book contained chapters on sex, including sub-sections on issues like
masturbation, contraceptives, menstruation, pornography, homosexuality and abortion and
addresses for help and advice on sexual matters. The applicant was found guilty on two counts of
having in his possession obscene books for publication for gain. He was fined and ordered to pay
costs. The court also made a forfeiture order for the destruction of the books by the police.
Held; it is not possible to find in the domestic law of the various Contracting States a uniform
European conception of morals.
The view taken by their respective laws of the requirements of morals varies from time to time
and from place to place, especially in our era which is characterized by a rapid and far-reaching
evolution of opinions on the subject. By reason of their direct and continuous contact with the
vital forces of their countries, State authorities are in principle in a better position than the
international judge to give an opinion on the exact content of these requirements as well as on
the “necessity” of a “restriction” or “penalty” intended to meet them.Article 10 para. 2 leaves to
the Contracting States a margin of appreciation. This margin is given both to the domestic
legislator (“prescribed by law”) and to the bodies, judicial amongst others, that are called upon to
interpret and apply the laws in force.
Murphy v. Ireland, Ireland stopped a religious advertisement in order to ensure respect for the
religious beliefs of others. When deciding on the case, the European Court of Human Rights took
into consideration the margin of appreciation accorded to states in questions relating to morals
and ‘reputations of others’ and which medium was going to be used for advertisement.
There are circumstances of wide discretion and those of limited discretion.
States have wide discretion in cases of;
a. Public emergencies.
Article 15 ECHR provides that in time of war or other public emergency threatening the life of
the nation any High Contracting Party may take measures derogating from its obligations under
this Convention to the extent strictly required by the exigencies of the situation, provided that
such measures are not inconsistent with its other obligations under international law.
Brannigan and McBride v The United Kingdom: ECHR 26 May 1993
The applicants, who had been detained without trial, challenged the derogation for the
Convention by the respondent in respect of terrorist associated activity in Northern Ireland and
on the mainland.
Held: The derogation in respect of the suspension of rights of detained terrorist suspects was
justified by and within the margin of appreciation allowed for, the government’s assessment of
the need to defend society: ‘in exercising its supervision the Court must give appropriate weight
to such relevant factors as the nature of the rights affected by the derogation, the circumstances
leading to, and the duration of, the emergency situation.’
b. National security concerns.
Klass and others v Federal Republic of Germany, European Court of Human Right
Legislation in Germany permitted the State authorities to open and inspect mail and listen to
telephone conversations in order to protect against, inter alia, 'imminent dangers' threatening the
'free democratic constitutional order' and 'the existence or the security' of the State. The
applicants, five German lawyers, claimed that the legislation infringed Articles 6 (right to a fair
hearing, 8 (right to respect for correspondence) and 13 (effective remedy before a national
authority in respect of breaches of the Convention) of the European Convention on Human
Rights in that it contained no absolute requirement to notify the persons after surveillance of
their mail etc had ceased.
Held; As democratic societies found themselves threatened by highly sophisticated forms of

espionage and by terrorism, the Court had to accept that legislation granting powers of secret
surveillance over the mail etc of subversive elements within their jurisdiction was under
exceptional conditions necessary in a democratic society in the interests of national security
and/or for the prevention of disorder or crime.. Some compromise between the requirements for
defending democratic society and individual rights was inherent in the Convention. Accordingly,
a balance had to be sought between the right guaranteed under paragraph 1 and the necessity
under paragraph 2 to impose secret surveillance for the protection of the whole society As the
measures taken in Germany were necessary in a democratic society in the interests of national
security and for the prevention of disorder or crime, there had been no breach of Article 8.
c. Cases involving protection of morals. Handy side v UK

d. On matters where there is no consensus within the member states of the Council
of Europe.
In Pretty v. The United Kingdom, the applicant, Ms. Diane Pretty, was paralyzed and suffered
from a motor neuron disease, a progressive degenerative and incurable illness, which had
reduced her to a state of complete dependency upon others. She was facing the prospect of a
distressing death by suffocation when her breathing muscles started to fail. Although it was not a
crime to commit suicide under English law, the applicant was prevented by her disease from
taking such a step without assistance. She wanted to protect her right to a dignified death and
requested the Director of Public Prosecutions to grant immunity from prosecution to her husband
if he assisted her in committing suicide. This request was denied at the domestic level. She
alleged that this refusal infringed her rights under the ECHR. She focused her complaint
principally on Article 3 of the Convention. She submitted that the suffering which she faced
qualified as degrading treatment under Article 3 of the Convention. She also alleged violation of
Article 2. She alleged that permitting her to be assisted in committing suicide would not be in
conflict with Article 2 of the Convention.
Held;
The European Court of Human Rights found in favour of the state that the right to life as
enshrined in the ECHR does not include the right to die. Therefore, according to the Court,
Article 2 ECHR does not include the individual right to choose whether or not to go on living.
In determining whether an interference is “necessary in a democratic society”, the Court will

take into account that a margin of appreciation is left to the national authorities, whose decision
remains subject to review by the Court for conformity with the requirements of the Convention.
The margin of appreciation to be accorded to the competent national authorities will vary in
accordance with the nature of the issues and the importance of the interests at stake.
Evans v United Kingdom
In October 2001 Evans from Trowbridge was diagnosed with ovarian cancer, and was offered a
cycle of IVF treatment before her cancer treatment because her fertility would be affected. On 12
November 2001 eleven of Evans' eggs were produced and fertilised using Johnston's sperm,
resulting in six embryos which were frozen and placed in storage. On 26 November 2001 Ms
Evans underwent an operation to remove her ovaries. She was told she would need to wait for
two years before the implantation of the embryos in her uterus. In May 2002, the couple split up.
In the summer of 2002, Johnston, who lives in Cheltenham, wrote to the Bath, Somerset clinic
storing the embryos and asked that they be destroyed. On 30 July 2002 the clinic informed Evans
of Johnston's request under current United Kingdom IVF law, regulated by the Human
Fertilisation and Embryology Authority, which states that both parties must give their consent for
IVF to continue – otherwise, the embryos must be destroyed.
She challenged this, that women should be allowed to have their kids either way.
Held;
On 7 March 2006 a panel of seven judges of the ECHR delivered a majority 5-2 ruling against
Ms Evans, which read: "The Court, like the national courts, had great sympathy for the plight of
the applicant who, if implantation did not take place, would be deprived of the ability to give
birth to her own child. However, the panel majority found that, even in such exceptional
circumstances as Ms Evans', the right to a family life – enshrined in article eight of the European
Convention of Human Rights – could not override Johnston's withdrawal of consent. The panel
also ruled, this time unanimously, that the issue of when the right to life begins "comes within the
margin of appreciation which the Court generally considers that States should enjoy in this
sphere", and thus rejected the claim that embryo's right to life was being threatened.
A number of factors must be taken into account when determining the breadth of the
margin of appreciation to be enjoyed by the State in any case under Article 8. Where a
particularly important facet of an individual’s existence or identity is at stake, the margin
allowed to the State will be restricted. Where, however, there is no consensus within the
member States of the Council of Europe, either as to the relative importance of the
interest at stake or as to the best means of protecting it, particularly where the case raises
sensitive moral or ethical issues, the margin will be wider (There will also usually be a
wide margin if the State is required to strike a balance between competing private and
public interests or Convention rights.
In conclusion, therefore, since the use of IVF treatment gives rise to sensitive moral and
ethical issues against a background of fast-moving medical and scientific developments,
and since the questions raised by the case touch on areas where there is no clear common
ground amongst the member States, the Court considers that the margin of appreciation to
be afforded to the respondent State must be a wide one
Circumstances of limited discretion;
e. Where justification for any restriction is in the protection of judicial authority.

f. In cases involving an intimate aspect of private life under article 8.
In Dudgeon v. Ireland
(Application No.7525/76, Judgment of 22 October 1981) the European Court found criminal
laws prohibiting consensual homosexual acts between adults violated the right to respect for
private life and went on in Norris v. Ireland to state that ‘Although members of the public who
regard homosexuality as immoral may be shocked, offended or disturbed by the commission by
others of private homosexual acts, this cannot on its own warrant the application of penal
sanctions when it is consenting adults alone who are involved’.
g. Where racial or ethnic discrimination is implicated. Here the Margin of

appreciation cannot be used to justify these.
SOURCES OF INTERNATIONAL HUMAN RIGHTS LAW
Since time immemorial, states and peoples have entered into formal relationships with each
other. Over the ages, traditions have developed on how such relationships are conducted. These
are the traditions that make up modern ‘international law’. Like domestic law, international law
covers a wide range of subjects such as security, diplomatic relations, trade, culture and human
rights, but it differs from domestic legal systems in a number of important ways. In international
law there is no single legislature, nor is there a single enforcing institution. Consequently,
international law can only be established with the consent of states and is primarily dependent on
self-enforcement by those same states. In cases of non-compliance there is no supra-national
institution; enforcement can only take place by means of individual or collective actions of other
states. This consent, from which the rules of international law are derived, may be expressed in
various ways. The obvious mode is an explicit treaty, imposing obligations on the states parties.
Such ‘treaty law’ constitutes a dominant part of modern international law. Besides treaties, other
documents and agreements serve as guidelines for the behavior of states, although they may not
be legally binding. Consent may also be inferred from established and consistent practice of
states in conducting their relationships with each other. The sources of international law are
many and states commit to them to different degrees. The internationally accepted classification
of sources of international law is formulated in Article 38 of the Statute of the International
Court of Justice. These are:
a) International conventions, whether general or particular;
b) International custom, as evidence of general practice accepted as law;
c) The general principles of law recognized by civilized nations;
d) Subsidiary means for the determination of rules of law such as judicial decisions and
teachings of the most highly qualified publicists.
These sources will be analyzed below.
A. International conventions
International treaties are contracts signed between states. They are legally binding and impose
mutual obligations on the states that are party to any particular treaty (states parties). The main
particularity of human rights treaties is that they impose obligations on states about the manner
in which they treat all individuals within their jurisdiction. Even though the sources of
international law are not hierarchical, treaties have some degree of primacy. Nowadays, more
than forty major international conventions for the protection of human rights have been adopted.
International human rights treaties bear various titles, including ‘covenant’, ‘convention’ and
‘protocol’; but what they share are the explicit indication of states parties to be bound by their
terms.
Human rights treaties have been adopted at the universal level (within the framework of the
United Nations and its specialized agencies, for instance, the ILO and UNESCO) as well as
under the auspices of regional organizations, such as the Council of Europe (CoE), the
Organization of American States (OAS) and the African Union (AU) (formerly the Organization
of African Unity (OAU)). These organizations have greatly contributed to the codification of a
comprehensive and consistent body of human rights law.
1. UNIVERSAL CONVENTIONS FOR THE PROTECTION OF HUMAN RIGHTS
Human rights had already found expression in the Covenant of the League of Nations, which led,
inter alia, to the creation of the International Labor Organization. At the San Francisco
Conference in 1945, held to draft the Charter of the United Nations, a proposal to adopt a
‘Declaration on the Essential Rights of Man’ was put forward but was not examined because it
required more detailed consideration than was possible at the time. Nonetheless, the UN Charter
clearly speaks of ‘promoting and encouraging respect for human rights and for fundamental
freedoms for all without distinction as to race, sex, language or religion’ (Article 1, para. 3). The
idea of promulgating an ‘international bill of rights’ was developed immediately afterwards and
led to the adoption in 1948 of the Universal Declaration of Human Rights (UDHR).
The UDHR, adopted by a resolution of the United Nations General Assembly (UNGA), although
not a treaty is the earliest comprehensive human rights instrument adopted by the international
community. On the same day that it adopted the Universal Declaration, the UNGA requested the
UN Commission on Human Rights to prepare, as a matter of priority, a legally binding human
rights convention. Wide differences in economic and social philosophies hampered efforts to
achieve agreement on a single instrument, but in 1954 two draft conventions were completed and
submitted to the UNGA for consideration. Twelve years later, in 1966, the International
Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on
Civil and Political Rights (ICCPR) were adopted, as well as the First Optional Protocol to the
ICCPR, which established an individual complaints procedure. Both Covenants and the Optional
Protocol entered into force in 1976. A Second Optional Protocol to the ICCPR, on the abolition
of the death penalty, was adopted in 1989 and entered into force in 1991.
The ‘International Bill of Human Rights’ consists of the Universal Declaration of Human Rights,
the ICESCR, and the ICCPR and its two Optional Protocols. The International Bill of Rights is
the basis for numerous conventions and national constitutions.
The ICESCR and the ICCPR are key international human rights instruments. They have a
common Preamble and Article 1, in which the right to self determination is defined. The ICCPR
primarily contains civil and political rights. The supervisory body is the Human Rights
Committee. The Committee provides supervision in the form of review of reports of states
parties to the Covenant, as well as decisions on inter-state complaints. Individuals alleging
violations of their rights under the Covenant can also bring claims against states to the
Committee provided the state concerned is party to the First Optional Protocol. By July 2004, a
total of 152 states were parties to the Covenant, 104 to the First Optional Protocol and 53 to the
Second Optional Protocol (see II.§1.C). The ICESCR consists of a catalogue of economic, social
and cultural rights in the same vein as the ‘social’ part of the UDHR. Supervision is provided for
in the form of reporting by states parties to the Covenant and review of state reports has been
entrusted by the UN Economic and Social Council (ECOSOC) to the Committee on Economic,
Social and Cultural Rights. In July 2004, a total of 149 states were parties to the Covenant (see
II.§1.C). Besides the International Bill of Human Rights, a number of other instruments have
been adopted under the auspices of the UN and other international agencies.
They may be divided into three groups:
a) Conventions elaborating on certain rights, inter alia:
• The Convention on the Prevention and Punishment of the Crime of Genocide (1948)
• ILO 98 concerning the Right to Organise and to Bargain Collectively (1949)
• The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (1984)
b) Conventions dealing with certain categories of persons which may need special protection,
inter alia:
• The Convention relating to the Status of Refugees (1951), and the 1967 Protocol thereto
• The Convention on the Rights of the Child (1989)
Human Rights Reference Handbook
• Optional Protocol to the Convention on the Rights of the Child on the involvement of children
in armed conflicts (2000)
• Optional Protocol to the Convention on the Rights of the Child on the sale of children, child
prostitution and child pornography (2000)
• ILO 169 concerning Indigenous and Tribal Peoples in Independent Countries (1989)
• The International Convention on the Protection of the Rights of All Migrant Workers and
Members of Their Families (2000)
c) Conventions seeking to eliminate discrimination
• ILO 111 concerning Discrimination in respect of Employment and Occupation (1958)
• UNESCO Convention against Discrimination in Education (1960)
• The International Convention on the Elimination of All Forms of Racial Discrimination (1965)
• International Convention on the Suppression and Punishment of the Crime of Apartheid (1973)
• The Convention on the Elimination of All Forms of Discrimination against Women (1979) and
its Optional Protocol (2000)
2. REGIONAL CONVENTIONS FOR THE PROTECTION OF HUMAN RIGHTS
The UN Charter encourages the adoption of regional instruments for the establishment of human
rights obligations, many of which have been of crucial importance for the development of
international human rights law. The Council of Europe adopted the European Convention for the
Protection of Human Rights and Fundamental Freedoms in 1950 (see II.§2.C), supplemented by
the European Social Charter in 1961(see II.§2.C), the European Convention for the Prevention of
Torture and Inhuman or Degrading Treatment or Punishment in 1987 (see II.§1.C), and the
Framework Convention on National Minorities in 1994 (see II.§2.C).
The American Convention on Human Rights was adopted in 1969, under the auspices of the
Organization of American States (see II.§1.C). This Convention has been complemented by two
protocols, the 1988 Protocol of San Salvador on economic, social, and cultural rights and the
1990 Protocol to abolish the death penalty. Other Inter-American Conventions include the
Convention to Prevent and Punish Torture (1985), the Convention on the Forced Disappearances
of Persons (1994), and the Convention on the Prevention, Punishment and Eradication of
Violence against Women (1995) (see II.§3.B). In 1981, the Organization of African Unity, now
the African Union, adopted the African Charter on Human and Peoples’ Rights (see II.§4.B).
Two protocols to the Charter have been adopted: the Additional Protocol on the Establishment of
the African Court on Human and Peoples’ Rights (1998), and the Protocol on the Rights of
Women in Africa (2003) (see II.§4.B). Other African instruments include the Convention
Governing the Specific Aspects of Refugee Problems in Africa (1969) (see II.§4.B), and the
African Charter on the Rights and Welfare of the Child (1990) (see II.§4.B).
B. International custom
Customary international law plays a crucial role in international human rights law. The Statute of
the International Court of Justice refers to ‘general practice accepted as law’. In order to become
international customary law, the ‘general practice’ needs to represent a broad consensus in terms
of content and applicability, deriving from a sense that the practice is obligatory (opinio juris et
necessitatis). Customary law is binding on all states (except those that may have objected to it
during its formation), whether or not they have ratified any relevant treaty. One of the important
features of customary international law is that customary law may, under certain circumstances,
lead to universal jurisdiction or application, so that any national court may hear extra-territorial
claims brought under international law. In addition, there also exists a class of customary
international law, jus cogens, or peremptory norms of general international law, which are norms
accepted and recognized by the international community of states as a whole as norms from
which no derogation is permitted. Under the Vienna Convention on the Law of Treaties (VCLT)
any treaty which conflicts with a peremptory norm is void.
Many scholars argue that some standards laid down in the Universal Declaration of Human
Rights (which in formal terms is only a resolution of the UNGA and as such not legally binding)
have become part of customary international law as a result of subsequent practice; therefore
they would be binding upon all states. Within the realm of human rights law the distinction
between concepts of customary law, treaty law, and general principles of law are often unclear.
The Human Rights Committee in its General Comment 24 (1994) has summed up the rights
which can be assumed to belong to this part of international law which is binding on all states,
irrespective of whether they have ratified relevant conventions, and to which no reservations are
allowed:
A State may not reserve the right to engage in slavery, to torture, to subject persons to cruel,
inhuman or degrading treatment or punishment, to arbitrarily deprive persons of their lives, to
arbitrarily arrest and detain persons, to deny freedom of thought, conscience and religion, to
presume a person guilty unless he proves his innocence, to execute pregnant women and
children, to permit the advocacy of national, racial or religious hatred, to deny to persons of
marriageable age the right to marry, or to deny to minorities the right to enjoy their own culture,
profess their own religion, or use their own language. And [...] the right to a fair trial [...].
Although this list is subject to debate and could possibly be extended with other rights not in the
field of civil and political rights (for instance, genocide and large parts of the Four Geneva
Conventions on International Humanitarian Law), the Committee underlines that there is a set of
human rights which de jure are beyond the (politically oriented) debate on the universality of
human rights.
C. General principles of law
In the application of both national and international law, general or guiding principles are used.
In international law they have been defined as ‘logical propositions resulting from judicial
reasoning on the basis of existing pieces of international law’.
At the international level, general principles of law occupy an important place in case-law
regarding human rights. A clear example is the principle of proportionality, which is important
for human rights supervisory mechanisms in assessing whether interference with a human right
may be justified. Why are general principles used? No legislation is able to provide answers to
every question and to every possible situation that arises. Therefore, rules of law or principles
that enable decision-makers and members of the executive and judicial branches to decide on the
issues before them are needed. General principles of law play two important roles: on the one
hand, they provide guidelines for judges, in particular, in deciding in individual cases; on the
other hand, they limit the discretionary power of judges and of members of the executive in their
decisions in individual cases.
D. Subsidiary means for the determination of rules of law
According to Article 38 of the Statute of the International Court of Justice, judicial decisions and
the teachings of the most qualified publicists are ‘subsidiary means for the determination of rules
of law’. Therefore, they are not, strictly speaking, formal sources, but they are regarded as
evidence of the state of the law. As for the judicial decisions, Article 38 of the Statute of the
International Court is not confined to international decisions (such as the judgments of the
International Court of Justice, the Inter-American Court, the European Court and the future
African Court on human rights); decisions of national tribunals relating to human rights are also
subsidiary sources of law. The writings of scholars contribute to the development and analysis of
human rights law. Compared to the formal standard setting of international organs the impact is
indirect. Nevertheless, influential contributions have been made by scholars and experts working
in human rights fora, for instance, in the UN Sub- Commission on the Promotion and Protection
of Human Rights, as well as by highly regarded NGOs, such as Amnesty International and the
International Commission of Jurists.
In the Paquete Habana case it was held by the US Supreme Court that "In the absence of higher
and more authoritative sanctions, the ordinances of foreign states, the opinions of eminent
statesmen, and the writings of distinguished jurists are regarded as of great consideration on
questions not settled by conventional law. In cases where the principal jurists agree, the
presumption will be very great in favor of the solidity of their maxims, and no civilized nation
that does not arrogantly set all ordinary law and justice at defiance will venture to disregard the
uniform sense of the established writers on international law.
Jus cogens and obligations erga omnes
Article 53 of the Convention on the Law of Treaties, 1969, provides that a treaty will be void 'if,
at the time of its conclusion, it conflicts with a peremptory norm of general international law'.
This rule (jus cogens) will also apply in the context of customary rules so that no derogation
would be permitted to such norms by way of local or special custom.
Such a peremptory norm is defined by the Convention as one 'accepted and recognized by the
international community of states as a whole as a norm from which no derogation is permitted
and which can be modified only by a subsequent norm of general international law having the
same character'.The concept of jus cogens is based upon an acceptance of fundamental and
superior values within the system and in some respects is akin to the notion of public order or
public policy in domestic legal order. It also reflects the influence of Natural Law thinking.
Various examples of the content of jus cogens have been provided, particularly during the
discussions on the topic in the International Law Commission, such as an unlawful use of force,
genocide, slave trading and piracy. Prohibition against torture is also now a norm of jus cogens.
South West Africa cases on equality and apartheid. ; after this case, freedom against slavery is a
norm of international law.
E. Other contributions to standard setting
Some instruments or decisions of political organs of international organizations and human rights
supervisory bodies, although they are not binding on states parties per se, nonetheless carry
considerable legal weight. Numerous international organs make decisions that concern human
rights and thereby strengthen the body of international human rights standards. Such non-binding
human rights instruments are called ‘soft law’, and may shape the practice of states, as well as
establish and reflect agreement of states and experts on the interpretation of certain standards.
Every year, the UNGA and the UN Commission on Human Rights adopt more than 100
resolutions and decisions dealing with human rights. Organizations such as the ILO and the
various political organs of the Council of Europe also adopt such resolutions. Some of these
resolutions, sometimes called declarations, adopt specific standards on specific human rights that
complement existing treaty standards. Prominent examples include the Declaration on the
Human Rights of Individuals Who Are Not Nationals of the Country in Which They Live,
adopted by the UNGA in 1985 (Resolution 40/144, 13 December 1985) and the Guiding
Principles on Internal Displacement, adopted by the UN Commission on Human Rights in 1999

(Doc E/CN.4/1998/53/Add.2). Numerous declarations adopted by the UNGA have later given
rise to negotiations leading to treaty standards. Not all resolutions and decisions aim at standard
setting, many deal with concrete situations where diverging political interests come more into
play, e.g ., nominations of members of UN Commissions are taken in the form of decisions.
1. DECISIONS OF POLITICAL ORGANS
Decisions of political organs involving political obligations play a special role and can have an
impact on human rights standard setting, i.e. certain documents of the Organization on Security
and Co-operation in Europe (OSCE) (Conference on Security and Co-operation in Europe until
1995). Since 1975, the OSCE has devoted much attention to the so-called Human Dimension of
European cooperation. OSCE documents are often drafted in a relatively short period of time and
do not pretend to be legally binding. Thus, they offer the advantage of flexibility and relevance
to current events exercising influence upon states. For instance, the Document of the
Copenhagen Meeting of the Conference of the Human Dimension of the CSCE of 1990 made
optimal use of the changes that had taken place in Europe after the fall of the Berlin Wall in
1989. This document included paragraphs on national minorities, which have been used as
standards to protect minorities and as guidelines for later bilateral treaties. Although this kind of
document reflects the dynamism of international human rights law, some experts worry that the
political nature of these documents may lead to confusion, as newer texts might contradict
existing instruments or broaden the scope of attention for human rights excessively by including
too many related issues.
2. DECISIONS OF SUPERVISORY ORGANS
Numerous human rights supervisory mechanisms have been established to monitor the
compliance by states with international human rights standards. Within the UN context, these
supervisory bodies are often called ‘treaty bodies’. They interpret international treaties, make
recommendations and, in some cases, make decisions on cases brought before them. These
decisions, opinions and recommendations may not be legally binding per se, but their impact on
international human rights law (standards) is significant. In this context, treaty bodies often
prepare so-called General Comments or Recommendations, elaborating on the various articles
and provisions of their respective human rights instruments. The purpose of these general
comments or recommendations is to assist the states parties in fulfilling their obligations. The
Human Rights Committee and the Committee on Economic, Social and Cultural Rights are
highly regarded for their practice in this respect. These general comments/recommendations
reflect the developments within each Committee as to the interpretation of specific provisions
and they aim to provide authoritative guidance to states parties. As such, they have a significant
influence on the behavior of states parties.
GENERAL COMMENTS AND GENERAL RECOMMENDATIONS
UN treaty monitoring bodies have begun the practice of preparing General Comments or
Recommendations on the provisions of their respective Covenants. As indicated by the
Committee on Economic, Social and Cultural Rights ‘the Committee endeavors, through its
general comments, to make the experience gained so far through the examination of States’
reports available for the benefit of all States Parties in order to assist and promote their further
implementation of the Covenant; to draw the attention of the States Parties to insufficiencies
disclosed by a large number of reports; to suggest improvements in the reporting procedures; and
to stimulate the activities of the States Parties, international organizations and the specialized
agencies concerned in achieving progressively and effectively the full realization of the rights
recognized in the Covenant. ‘The General Comments or Recommendations are useful tools to
clarify the normative content of the Covenants because they are general in nature and provide an
abstract picture of the scope of the obligations. General Comments/ Recommendations enable
the Committees to announce their interpretations of the different provisions of the Covenants,
and the interpretations of the normative scope of the Covenants set out in the General
Comments/ Recommendations have achieved a significant degree of acceptance by states parties.
As of April 20041, the Committee on Economic, Social and Cultural Rights had adopted 15
General Comments; the Human Rights Committee had adopted 31 General Comments; the
Committee on the Elimination of Racial Discrimination had adopted 29 General
Recommendations; the Committee on the Elimination of Discrimination against Women had
adopted 24 General Recommendations; the Committee against Torture had adopted one General
Comment; and the Committee on the Rights of the Child had adopted 4 General Comments
Concluding remarks
Most states are bound by numerous international instruments guaranteeing a broad range of
human rights. What happens when a state is bound by two international instruments setting out
diverging levels of protection of a particular human right? The general rule is that when a state is
bound by numerous instruments, it is to implement the most far-reaching obligation or highest
standard. Most human rights conventions contain special provisions to this effect. For instance,
Article 5(2) ICCPR and Article 5(2) ICESCR state that ‘There shall be no restriction upon or
derogation from any of the fundamental human rights recognized or existing in any state party to
the present Covenant pursuant to law, conventions, regulations or custom on the pretext that the
present Covenant does not recognize such rights or that it recognizes them to a lesser extent.’ In
the same vein, Article 55 ECHR sets out that ‘Nothing in this Convention shall be construed as
limiting or derogating from any of the human rights and fundamental freedoms which may be
ensured under the laws of any High Contracting Party or under any other agreement to which it
is a Party.’
Similarly, Article 41 CRC provides that nothing in the Convention shall affect any provisions
which are more conducive to the realization of the rights of the child - either in the law of a state
party or in international law in force in that state. Within the realm of standard setting, the
number of ratifications and accessions to conventions merits special attention. Widely ratified
human rights conventions have greater value and impact, and reinforce the universal character of
human rights law, as well as the equality of all human beings under that law. Wide accession or
ratification (with the least possible number of reservations) contributes greatly to ensuring equal
application of human rights standards. Many scholars contend that much of the standard-setting
work has been completed. In addition, it has been argued that in recent decades there has been an
excessive proliferation of standards, and what is needed is a means for better implementation of
the existing norms. However, although the basic human rights have been roughly defined, it may,
for instance, emanate from consistent decisions of supervisory mechanisms that further
elaboration is needed. Better legal protection may be necessary for, inter alia, human rights
defenders and (persons belonging to) indigenous peoples. The UN Commission on Human
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Rights (UNCHR) has adopted the ‘Declaration on the right and responsibility of individuals,
groups and organs of society to promote and protect universally recognized human rights and
fundamental freedoms’ (Resolution 1998/7)), but it is not a legally binding document. Since
1995 a special working group of the Commission has been discussing the rights of indigenous
peoples, inter alia, their right to self-determination and the right to use their natural resources but
there is still no agreement on a legally binding text. Other examples of needs for future standard
setting relate to the drafting of an optional protocol to the ICESCR establishing a complaints
procedure for individuals whose economic, social or cultural rights have been violated and an
International Convention on the Protection and Promotion of the Rights and Dignity of Persons
with Disabilities, that is currently being considered by the United Nations (UNGA Resolution
56/ 168, 19 December 2002).
SPECIFIC RIGHTS
THE RIGHT TO LIFE.
The right to life is considered a fundamental human right, because without it, enjoyment of all of
the other rights and freedoms established in international human rights conventions would be
rendered nugatory; there can be no rights if there is no life. Given the fundamental importance of
the right to life to the protection of human rights, under most human rights instruments the right
to life is a supreme right from which no derogation is permitted, even in time of a public
emergency threatening the life of the nation (see Article 4(2) ICCPR, Article 15(2) ECHR and
Article 27(2) ACHR).
Article 6 ICCPR[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. This penalty can only
be carried out pursuant to a final judgment rendered by a competent court.
3. When deprivation of life constitutes the crime of genocide, it is understood that nothing in this
article shall authorize any State Party to the present Covenant to derogate in any way from any
obligation assumed under the provisions of the Convention on the Prevention and Punishment of
the Crime of Genocide.
4. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence.
Amnesty, pardon or commutation of the sentence of death may be granted in all cases.
5. Sentence of death shall not be imposed for crimes committed by persons below eighteen years
of age and shall not be carried out on pregnant women.
6. Nothing in this article shall be invoked to delay or to prevent the abolition of capital
punishment by any State Party to the present Covenant.
The ICCPR is an international document. Regionally we have the ACHPR, ECHR American
Convention on Human Rights. They all repeat Article 6 of ICCPR. Article 3 Universal
Declaration provides that ‘everyone has the right to life, liberty and security of person.’ In all
human rights conventions, the right to life is dealt with separately from the right to liberty and
security. The right to life is further developed in several human rights instruments, such as
Article 6 ICCPR,
Article 6 CRC, Article 9 CMW, Article 2 ECHR, Article 4 ACHR and Article 4 ACHPR.
Every treaty has a treaty body to explain the meaning of the treaty and enforce it. The ICCPR has
the UN Human Rights Committee that issues guidelines to the obligations of the states called
General Comments.
In regard to Article 6 (the right to life), there is general comment no 6 which explains state party
obligations under the article. These obligations include;
v. Obligation not to go to war.
The Committee considers that States have the supreme duty to prevent wars, acts of genocide
and other acts of mass violence causing arbitrary loss of life. Every effort must be made to
prevent war and strengthen national peace and tranquility. Under the UN Charter war is
prohibited unless in exercise of the inherent right to self defense. The Committee notes, in
particular, a connection between article 6 and article 20, which states that the law shall prohibit
any propaganda for war (para. 1) or incitement to violence (para. 2) as therein described.
In Isayeva v Russia;
The applicant alleged that she was a victim of indiscriminate bombing by the Russian military of
her native village of Katyr-Yurt on 4 February 2000 as the government pursued rebels. As a
result of the bombing, the applicant’s son and three nieces were killed. She alleged a violation of
Articles 2 [right to life] and 13 [effective remedy before a national authority] of the Convention.
The European Court of Human Rights accepted ‘that the situation that existed in Chechnya at the
relevant time called for exceptional measures by the State in order to regain control over the
Republic and to suppress the illegal armed insurgency’. However, as no martial law and no state
of emergency had been declared in Chechnya, and no derogation had been made under Article 15
of the Convention, the Court judged the operation in question against a normal legal background.
It noted that ‘Even when faced with a situation where, as the Government submit, the population
of the village had been held hostage by a large group of well-equipped and well-trained fighters,
the primary aim of the operation should be to protect lives from unlawful violence’ and ‘a
balance must be achieved between the aim pursued and the means employed to achieve it’.
“To sum up, accepting that the operation in Katyr-Yurt on 4-7 February 2000 was pursuing a
legitimate aim, the Court does not accept that it was planned and executed with the requisite care
for the lives of the civilian population.”
vi. State parties should take measures to prevent arbitrary deprivation of life by
criminals and their armed forces.
Article 6(1) ICCPR states that no one shall be ‘arbitrarily’ deprived of his life. Article 4 declares
that no derogation from Article 6 is allowed, not even in an emergency situation. Article 2
European Convention prohibits the ‘intentional deprivation’ of life and states that everyone shall
have the right to life protected by law, and limits the situation in which deprivation of life is
acceptable. Article 15 ECHR provides that this right is non-derogable in a war or state of
emergency, except in respect of deaths resulting from lawful acts of war. Article 4(1) ACHR
provides that every person has the right to have his life respected. Article 27 provides that Article
4 is non-derogable in times of war, public danger or other emergency. Article 4 ACHPR states
that human beings are inviolable. Everyone is entitled to respect for his/her life and the integrity
of his/her person, and no one may be arbitrarily deprived of this right.
In its General Comment No. 6 the Committee considers that States parties should take measures
not only to prevent and punish deprivation of life by criminal acts, but also to prevent arbitrary
killing by their own security forces. The deprivation of life by the authorities of the State is a
matter of the utmost gravity. Therefore, the law must strictly control and limit the circumstances
in which a person may be deprived of his life by such authorities.
Article 2 of the European Convention states it clearly that No one shall be deprived of his life
intentionally save;
- in the execution of a sentence of a court following his conviction of a crime for which
this penalty is provided by law.
- Deprivation of life shall not be regarded as inflicted in contravention of this article when
it results from the use of force which is no more than absolutely necessary:-
- in defense of any person from unlawful violence;
- in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
- in action lawfully taken for the purpose of quelling a riot or insurrection
The UN Basic Principles on the Use of Force and Fire Arms by Law Enforcement Officials spell
out the circumstances under which the police and army can use fire arms; namely’
- Principle 9 says use of arms should be limited to that which is strictly necessary in self
defense, or defense of others against threat of death or serious injury.
- Necessary to prevent perpetration of a particular serious crime relating to threat to life.
(isayava v Russia)
- Necessary to arrest a person preventing escape or preventing such a danger or to prevent
his or her escape only when less violent measures are insufficient.
.Suarez de Guerrero v. Colombia
The following case against Colombia was submitted by Pedro Pablo Camargo on behalf of the
husband of Maria Fanny Suarez de Guerrero. On 13 April 1978, a Colombian Military Court
ordered a raid on a house in the belief that a victim of a kidnap by a guerrilla organization was
being held there. In spite of the fact that the kidnapped person was not found, the police patrol
decided to hide in the house to await the arrival of the ‘suspected kidnappers’. Seven persons
who subsequently entered the house were shot by the police and died. None of the victims had
fired a shot and some were killed at point-blank range, some of them shot in the back or in the
head. It was also established that the victims were not all killed at the same time, but at intervals,
as they arrived at the house, and that most of them had been shot while trying to save themselves
from the unexpected attack. In the case of Mrs. Maria Fanny Suarez de Guerrero, the forensic
report showed that she had been shot several times after she had already died from a heart attack.
The Human Rights Committee held
The requirements that the right shall be protected by law and that no one shall be arbitrarily
deprived of his life mean that the law must strictly control and limit the circumstances in which a
person may be deprived of his life by the authorities of a State.
In the present case it is evident from the fact that seven persons lost their lives as a result of the
deliberate action of the police that the deprivation of life was intentional. Moreover, the police
action was apparently taken without warning to the victims and without giving them any
opportunity to surrender to the police patrol or to offer any explanation of their presence or
intentions. There is no evidence that the action of the police was necessary in their own defense
or that of others, or that it was necessary to effect the arrest or prevent the escape of the persons
concerned. Moreover, the victims were no more than suspects of the kidnapping which had
occurred some days earlier and their killing by the police deprived them of all the protections of
due process of law laid down by the Covenant. In the case of Mrs. Maria Fanny Suarez de
Guerrero, the forensic report showed that she had been shot several times after she had already
died from a heart attack. There can be no reasonable doubt that her death was caused by the
police patrol.
For these reasons it is the Committee’s view that the action of the police resulting in the death of
Mrs. Maria Fanny Suarez de Guerrero was disproportionate to the requirements of law
enforcement in the circumstances of the case and that she was arbitrarily deprived of her life
contrary to article 6 (1) of the International Covenant on Civil and Political Rights. Inasmuch as
the police action was made justifiable as a matter of Colombian law by Legislative Decree
No. 0070 of 20 January 1978, the right to life was not adequately protected by the law of
Colombia as required by article 6 (1).
The Committee was of the view that the State party should take the necessary measures to
compensate the husband of Mrs. Maria Fanny Suarez de Guerrero for the death of his wife and to
ensure that the right to life is duly protected by amending the law.
Other obligations that states have in regard to their security forces are spelt out in;
McCan and ors v United Kingdom.
In the following case, the United Kingdom, Spanish and Gibraltar authorities were aware that a
unit of the Irish Republican Army (IRA) were planning a terrorist attack on Gibraltar. Soldiers
from the Special Air Service (SAS) arrived to Gibraltar. Allegedly thinking that the suspects
were trying to detonate a car bomb with a remote control device, the security forces shot dead all
the IRA members. Inspections afterwards revealed that the suspected car bomb did not contain
any explosive devices and that the three IRA members were unarmed when killed.
The applicants alleged that the killing of Mr McCann, Ms Farrell and Mr Savage by members of
the security forces constituted a violation of Article 2.
Held
In this case many of the assumptions held by the security forces which led to the death of the
victims proved to be wrong. According to the European Court, the obligation to respect the right
to life requires the authorities to exercise the greatest care in planning an anti-terrorist attack.
In this case, the exception of Article 2(2) ECHR was not applicable. The killings of the three IRA
members constituted a use of force which was not ‘absolutely necessary’ for the defense of
persons from unlawful violence. In the light of all operational measures taken by different states
in order to counter possible terrorist threats, the decision of the European Court indicates that
there are certain minimum requirements with which states must comply when planning and
conducting security operations which involve the use of force or firearms. It is clear from this
decision that authorities must carry out and control such operations in a manner which
minimizes, to the greatest extent possible, any risk to life. States are, inter alia, required to take
into account different contingencies in planning, to adopt provisions for a margin of error, to
consider sufficient alternative possibilities and to establish procedures to review the lawfulness
of the use of force in specific cases
There are requirements to investigate after shooting, regardless of whether any one complains.
The authorities must act on their own motion once they learn that there was use of force. These
include;
- Investigation must be independent from those implicated in the events.
- It must be effective in the sense that its capable to lead to a determination whether the
force was justified
- It must be prompt and expeditious
- There must be public scrutiny of the investigations or its results
- The victim’s next of kin must be involved.
State parties should take measures to prevent arbitrary deprivation of life by criminals
The state’s obligations in this respect extend beyond the duty to establish effective criminal law
provisions to deter the commission of offences and may imply the duty to take preventive
operational measures to protect an individual whose life is at risk. If a state does not protect the
right to life by, for example, failing to penalize dangerous behavior or, if in well-defined
circumstances, it fails to provide security to protect an individual at risk, this gives rise to state
responsibility even though the harm may have been committed by private individuals
Godínez Cruz v. Honduras the Inter-American Court of Human Rights stated ;
An illegal act which violates human rights and which is initially not directly imputable to a State
(for example, because it is the act of a private person or because the person responsible has not
been identified) can lead to international responsibility of the State, not because of the act itself,
but because of the lack of due diligence to prevent the violation or to respond to it as required by
the Convention.
Osman v. The United Kingdom
The following case deals with the responsibility of states to take appropriate measures to protect
the right to life of individuals. Mr. Ali Osman was shot dead by his son’s former teacher Paul
Paget-Lewis, in an incident in which his son, Ahmet Osman, was also wounded. The applicant
alleged that despite several warnings given to the police about the real risk posed by Paget-
Lewis, the police failed to take appropriate and adequate preventive measures to secure effective
protection for the lives of the victims.
The European Court of Human Rights
The Court held that the state’s obligation regarding the right to life extends beyond its primary
duty to put in place effective criminal-law provisions to deter the commission of offences against
the person, backed up by law-enforcement machinery for the prevention, suppression and
sanctioning of breaches of such provisions. Having regard to the nature of the right protected by
Article 2 – a right fundamental in the scheme of the Convention - it may also imply, in certain
well-defined circumstances, a positive obligation on the authorities to take preventive
operational measures to protect an individual whose life is at risk from the criminal acts of
another individual. Nonetheless, according to the Court, such an obligation must be interpreted
in a way which does not impose an impossible or disproportionate burden on the authorities,
bearing in mind the difficulties involved in policing, the unpredictability of human conduct and
the operational choices which must be made in terms of priorities and resources. Accordingly,
not every claimed risk to life can entail a claim on authorities to take operational measures to
prevent that risk from materializing. The test that the European Court has established is that the
‘authorities knew or ought to have known at the time of the existence of a real risk to the life of
an identified individual from the criminal acts of a third party and that they failed to take
measures within the scope of their powers which, judged reasonably, might have been expected
to avoid that risk’
In other words, failure of the state to take positive measures to prevent and suppress offences
against the person at risk in the above mentioned circumstances would entail a violation of the
right to life. As to the circumstances of the case, however, the Court concluded that the
applicants ‘failed to point to any decisive stage in the sequence of the events leading up to the
tragic shooting when it could be said that the police knew or ought to have known that the lives
of the Osman family were at real and immediate risk from Paget-Lewis.
vii. States should also take specific and effective measures to prevent the
disappearance of individuals.
The Human Rights Committee also elaborates on the obligation of states parties with regard to
disappearances in its General Comment 6 on the right to life. It requires states to take specific
and effective measures to prevent the disappearances of individuals. They should establish
effective facilities and procedures to thoroughly investigate cases of missing and disappeared
persons in circumstances that may involve the violation of the right to life.
Velásquez Rodriguez v. Honduras
In the following case Manfredo Velásquez, a university student, was forcibly detained without a
warrant for his arrest and subsequently ‘disappeared’. The police and security forces denied that
he had been detained. During the proceedings it was proven that from 1981 to 1984 there were
many kidnappings and disappearances in Honduras, and that those disappearances followed a
similar pattern and were attributable to the Armed Forces of Honduras. The Inter- American
Commission requested that the Court determine whether Honduras had violated Articles 4 (right
to life), 5 (right to humane treatment) and 7 (right to personal liberty) of the Convention.
The Inter-American Court of Human Rights found that Honduras had violated its obligation
to ensure the right to life.
This Judgment contains several important issues to be highlighted.
First, in regard to the burden of proof and issues of the evidence, although the direct
involvement of the military forces in the kidnapping of Mr. Manfredo Velásquez was not proven,
in light of the context in which the disappearance of Manfredo Velásquez occurred and the lack
of knowledge of his whereabouts after seven years, the Court considered that there was a
reasonable presumption the he had been ‘disappeared at the hands of or with the acquiescence
of’ Honduran officials and that the Government had failed to guarantee the human rights
affected by that practice.
Second, the Court found that the disappearance violated the right to humane treatment, the right
to personal liberty and security and the right to life.
Thirdly, the Court found, that Article 1(1) of the Convention imposed upon states a legal duty to
take reasonable steps to prevent human rights violations and to use the means at their disposal
to carry out a serious investigation of violations committed within their jurisdiction, to identify
those responsible, impose the appropriate punishment and ensure the victim adequate
compensation (see paras. 174-177) (see below:‘The duty to take‘reasonable’ measures to protect
an individual whose life is at risk from the criminal acts of other individuals’).
The Court was convinced that the disappearance of Manfredo Velásquez was carried out by
agents who acted under cover of public authority.
Nonetheless, as the Court noted even had the fact not been proven, it is a failure on the part of
Honduras to fulfil the duties it assumed Article 1(1) of the Convention, which obligated it to
guarantee Manfredo Velasquez the free and full exercise of his human rights.
Radilla-Pacheco v. Mexico
The facts of the present case refer to the alleged forced disappearance of Mr. Rosendo Radilla
Pacheco, which supposedly occurred since August 25, 1974, in the hands of members of the
Army in the State of Guerrero, Mexico. According to the Inter-American Commission, the
alleged violations derived from this fact “continue to exist up to this date, since the State of
Mexico has not established the whereabouts of the [alleged] victim, nor have his remains been
found.” According to that argued by the Commission, “more than 33 years after the occurrence
of the facts, there is complete impunity since the State has not criminally punished those
responsible, nor has it guaranteed the next of kin an adequate reparation.”
That Mr. Rosendo Radilla-
Pacheco was arrested by Army soldiers, at a military checkpoint located at the entrance of the
Colony of Cuauhtémoc, in Atoyac de Álvarez, Guerrero, on August 25, 1974, and subsequently
transferred to the Military Barracks of Atoyac de Álvarez. He was kept there in a clandestine
manner for several weeks, where he was seen the last time, with his eyes blindfolded and signs
of physical beatings. More than 35 years after his arrest, the next of kin of Mr. Radilla-Pacheco
still do not know his whereabouts, despite the steps taken. The authorities continue to deny the
whereabouts of the victim, since up to this date they have not offered a clear response regarding
his fate.
Based on the aforementioned, the Commission requested that the Court declare the international
responsibility of the State for the alleged violation of the rights enshrined in Articles 3 (Right to
Juridical Personality), 4 (R ight to Life), 5 (Right to Humane Treatment), 7 (Right to Personal
Liberty), 8 (Right to a Fair Trial), and 25 (Judicial Protection) of the American Convention, in
relation to Article 1(1) of the same treaty in detriment of Rosendo Radilla-Pacheco the Court
concluded that the State is responsible for the violation of the rights to personal liberty, to
humane treatment, to the acknowledgment of juridical personality and to life of Mr. Rosendo
Radilla-Pacheco, by virtue of the forced disappearance of which he is a victim, carried out by
state soldiers. In that sense, the State has the duty to guarantee the rights through the prevention
and diligent investigation of the forced disappearance. This forces the State to start serious and
effective investigations tending to determine his fate or where abouts, identify those responsible
and, if it were the case, impose the corresponding punishments. The disregard for the fate of Mr.
Radilla-Pacheco, his whereabouts or that of his remains is still present up to this date, without
there being an effective investigation tending to find out where he is, which makes the non-
compliance of this duty evident.
With regard to disappearances, the African Commission found in a case against Chad that the
state had violated Article 4 ACHPR because it had not attempted to prevent the disappearance or
investigate afterwards. It was thus established that the state’s failure to ‘protect’ individuals
under its jurisdiction constituted a violation of Article 4 (see Commission Nationale des Droits
de l’Homme et des Libertes v. Chad, Communication 74/92).
viii. Death penalty.
The death penalty has been the subject of controversy since the end of the 19th century. The first
countries to abolish the death penalty were Venezuela (1863), Portugal (1867) and Costa Rica
(1877). Gradually, all European countries followed and in the last few years, the death penalty
has not been carried out in any of the countries that are members of the Council of Europe.
The UDHR does not contain any provision on capital punishment. Article 3 UDHR states:
‘Everyone has the right to life, liberty and security of person.’ This provision, however, cannot
be interpreted as constituting a ban on the death penalty. The same applies to the provisions of
the ICCPR. The ICCPR stipulates, however, that the sentence of death may be imposed only for
the most serious crimes and it may not be imposed on pregnant women or juvenile offenders
(article 6(5)) In 1989, the UN General Assembly adopted the Second Optional Protocol to the
ICCPR, aiming at the abolition of the death penalty. Under the terms of the Protocol no one may
be executed within the jurisdiction of a state party to the Protocol (article 1). Moreover, parties
bind themselves to take measures to abolish the statutory provisions, which allow the imposition
of the death penalty. No reservation is admissible to the Protocol, except for the application of
the death penalty in time of war.
The ECHR also contains provisions on the death penalty. A Sixth Protocol on the abolition of the
death penalty has been added to the Convention. Article 1 of the Protocol states that the death
penalty shall be abolished, but provision is made for the application of a statutory death penalty
as a sanction for certain acts in time of war or in case of a threat of war.
According to Article 4(3) ACHR capital punishment cannot be re-established in states that have
abolished it. In addition, the Second Protocol to the ACHR adopted in 1990 provides for the
abolition of the death penalty. As in the case of the ECHR, Article 27 ACHR prohibits taking
derogating measures from the right to life in case of emergency.
The ACHPR does not contain any provision concerning the death penalty. The African
Commission has adopted a resolution entitled ‘Urging States to Envisage a Moratorium on the
Death Penalty’, in which it ‘urges all state parties to the African Charter on Human and Peoples’
Rights that still maintain the death penalty to comply fully with their obligations under the treaty
and to ensure that persons accused of crimes for which the death penalty is a competent sentence
are afforded all the guarantees in the African Charter’. In the same resolution, the African
Commission called upon states that still apply the death penalty to impose it only for the most
serious crimes and to consider its possible abolishment.
It should also be noted that in several conventions on extradition, a state can refuse to extradite a
person who risks the death penalty in the state requesting the extradition (see, e.g., Article 11 of
the European Convention on Extradition). This is also the current position of the Human Rights
Committee (see Judge v. Canada)
Kindler v Canada (Minister of Justice) the Supreme Court of Canada held that the government
policy that allowed for extradition of convicted criminals to a country where they may face the
death penalty was valid under the Canadian Charter of Rights and Freedoms. The Court repeated
this finding in Reference re Ng Extradition in 1991. However, Kindler was essentially overruled
in 2001 with United States v. Burns.
United States v Burns [2001] 1 S.C.R. 283, 2001 SCC 7, the Supreme Court of Canada found
that extradition of individuals to places where they may face the death penalty is a breach of
fundamental justice under section 7 of the Canadian Charter of Rights and Freedoms. That the
government must seek assurances, in all but exceptional cases, that the death penalty will not be
applied prior to extraditing an individual to a state where he/she faces capital punishment
Roger Judge v. Canada
On 15 April 1987, the author was convicted on two counts of first-degree murder and possession
of an instrument of crime, by the Court of Common Pleas of Philadelphia, Pennsylvania. On 12
June 1987, he was sentenced to death, by electric chair. He escaped from prison on 14 June 1987
and fled to Canada. He later challenged an order for his deportation as violating the Canadian
Charter.
The Human Rights Committee, held that for countries that have abolished the death penalty,
there is an obligation not to expose a person to the real risk of its application. Thus, they may not
remove, either by deportation or extradition, individuals from their jurisdiction if it may be
reasonably anticipated that they will be sentenced to death, without ensuring that the death
sentence would not be carried out.
The Committee considered that Canada, as a State party which has abolished the death penalty,
irrespective of whether it has not yet ratified the Second Optional Protocol to the Covenant
Aiming at the Abolition of the Death Penalty, violated the author's right to life under article 6,
paragraph 1, by deporting him to the United States, where he is under sentence of death, without
ensuring that the death penalty would not be carried out. The Committee recognizes that Canada
did not itself impose the death penalty on the author. But by deporting him to a country where he
was under sentence of death, Canada established the crucial link in the causal chain that would
make possible the execution of the author. Therefore, although under general international law,
the abolition of the death penalty is not expressly required, there is a movement towards
abolition as noted above.
The goal of abolition is to be found in several international instruments drafted for this specific
purpose, such as the Second Optional Protocol to the ICCPR aiming at the Abolition of the
Death Penalty; Second Protocol to the American Convention on Human rights to Abolish the
Death Penalty; and Protocols No. 6 and 13 ECHR
It is also relevant to note that according to the statutes of the international criminal tribunals, the
International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Tribunal for
Rwanda (ICTR), and the International Criminal Court (ICC), the death penalty cannot be
imposed. The intention of the international community to abolish capital punishment is also
made clear by Article 6(6) of the ICCPR that points out that nothing therein shall be invoked to
delay or to prevent the abolition of capital punishment by any state party to the Covenant.
The Human Rights Committee has interpreted Article 6 (paras 2 and 6) ICCPR as suggesting that
abolition of the death penalty is desirable, and that measures to that end should be considered as
progress in the enjoyment of the right to life within the meaning of Article 40.
In its General Comment no 6 the Committee, requires that even though States parties are not
obliged to abolish the death penalty totally they are obliged to limit its use and, in particular, to
abolish it for other than the “most serious crimes”. Accordingly, they ought to consider
reviewing their criminal laws in this light and, in any event, are obliged to restrict the application
of the death penalty to the “most serious crimes. The expression “most serious crimes” must be
read restrictively to mean that the death penalty should be a quite exceptional measure.
The committee further requires certain rights to be enshrined in a law prescribing the death
penalty. The procedural guarantees therein prescribed must be observed, including the right to a
fair hearing by an independent tribunal, the presumption of innocence, the minimum guarantees
for the defence, and the right to review by a higher tribunal. These rights are applicable in
addition to the particular right to seek pardon or commutation of the sentence.
In Lubuto v. Zambia, the applicant was sentenced to death for aggravated robbery. The Supreme
Court of Zambia dismissed his appeal. The applicant brought the case to the Human Rights
Committee. He argued that the trial against him was unfair and that the death sentence
subsequently imposed on him was disproportionate, since no one was killed or wounded during
the robbery.
The Committee held that Mr. Lubuto was entitled, under article 2, paragraph 3(a), of the
Covenant to an appropriate and effective remedy, entailing a commutation of sentence. The State
party is under an obligation to take appropriate measures to ensure that similar violations do not
occur in the future.
McLawrence v. Jamaica
Mr. McLawrence was sentenced to death by Jamaica’s courts. He challenged the trial as being
unfair and undue delay. its views the Human Rights Committee defined some of the
requirements for the imposition of the death Penalty . The Human Rights Committee stressed that
states parties have an imperative duty to rigorously observe all the guarantees for a fair trial set
out in Article 14 of the Covenant in cases where the death sentence comes into play. Therefore,
individuals must have a fair hearing by an independent tribunal, the procedure must comply with
the presumption of innocence and the right to review the case by a higher tribunal must be
guaranteed. Furthermore, minimum guarantees for the defense, including adequate time to
prepare the defence and access to legal aid, must be assured. As to the latter, it is worth noting
that the Committee has stated that ‘it is axiomatic that legal assistance be available in capital
cases’. According to the Committee this is so ‘even if the unavailability of private counsel is to
some degree attributable to the author himself, and even if the provision of legal assistance
would entail an adjournment of proceedings
African Commission Forum of Conscience v. Sierra Leone
The following case refers to the execution of twenty-four soldiers on 19 October 1998 in
Freetown, Sierra Leone. The soldiers had been tried and sentenced to death by a court martial for
their alleged roles in the coup that overthrew the elected government of President Tijan Kabah.
The case was submitted by an NGO which alleged that the court martial which tried and
convicted the victims did not allow for appeal of the death sentence to a higher tribunal. It was
argued that the public execution of the twenty-four soldiers after they had been denied the right
of appeal to a higher tribunal amounted inter alia to an arbitrary deprivation of the right to life
contrary to Article 4 of the African Charter.
The African Commission on Human and Peoples’ Rights held that the denial of the victim’s
right of appeal to competent national organs in a serious offence as this is falls short of the
requirement of the respect for fair trial standards expected of such courts. The execution of the
24 soldiers without the right of appeal is therefore a violation of Article 7(1)(a) of the Charter.
This is more serious given the fact that the said violation is irreversible. The right to life is the
fulcrum of all other rights. It is the fountain through which other rights flow, and any violation of
this right without due process amounts to arbitrary deprivation of life. Having found above that
the trial of the 24 soldiers constituted a breach of due process of law as guaranteed under Article
7(1)(a) of the Charter, the Commission consequently finds their execution an arbitrary
deprivation of their rights to life provided for in Article 4 of the Charter. Although this process
cannot bring the victims back to life, it does not exonerate the government of Sierra Leone from
its obligations under the Charter refer to the Ugandan cases of Susan Kigula and ors v AG, and
Uganda Law Society v AG.
The Human Rights Committee has followed to a large extent the principle developed by the
ECHR in the Soering case. In its General Comment 20 the Committee noted that the death
penalty ‘must be carried out in such a way as to cause the least possible physical and mental
suffering’. As to the methods of execution, in Ng v. Canada the Committee found that by
extraditing Ng to California, Canada had violated Article 7 (prohibition of torture and ill-
treatment) because ‘execution by gas asphyxiation may cause prolonged suffering and agony and
does not result in death as swiftly as possible, as asphyxiation by cyanide gas may take over ten
minutes.
As to the death penalty, the African Commission found in a case against Nigeria that even
though Article 4 does not favor any side in the death penalty debate, the trial itself in the case
violated Article 7 ACHPR, making the subsequent imposition of the death penalty arbitrary and
in violation of Article 4 ACHPR (see e.g., International Pen, Constitutional Rights Project,
Interights on behalf of Ken Saro-Wiwa Jr. and Civil Liberties Organisation v. Nigeria,
Communications 137/94, 154/96 and 161/97
ix. Death penalty and juvenile and pregnant women
The death penalty is also restricted in that certain categories of individuals may not be executed
under any circumstances. According to Article 6(5) ICCPR the death sentence should not be
carried out on those below eighteen years of age or on pregnant women. Article 37 CRC also
stresses the rule that capital punishment shall not be imposed for offences committed by persons
below eighteen years of age. This requirement has also been established by Article 4(5) ACHR
and by the two Additional Protocols to the Geneva Conventions that rule out the death penalty
for offenders who were under eighteen years of age when the crime was committed. This has
now attained the status of jus cogens.
Michael Domingues v. United States;
Michael Domingues had been convicted and sentenced to death in Nevada, United States for two
murders committed when he was 16 years old. Domingues brought the case in front of the Inter-
American Commission of Human Rights which delivered a non-legally binding report. The
United States argued that there was no jus cogens norm that "establishes eighteen years as the
minimum age at which an offender can receive a sentence of death". The Commission concluded
that there was a "jus cogens norm not to impose capital punishment on individuals who
committed their crimes when they had not yet reached 18 years of age."
The Additional Protocols to the Geneva Conventions expand on the prohibition of Article 6(5)
ICCPR, forbidding executions of any ‘mother having dependent infants’ (Article 76 Additional
Protocol I) and ‘mothers of young children’ (Article 6 Additional Protocol II).
The unborn child
The protection of the right to life raises the question of whether the unborn child is protected.
Article 1 ICCPR, for example, declares that ‘every human being’ has the inherent right to life,
while in respect to other rights the expressions used are ‘everyone’ and ‘every person’. This use
of different terminology raises the question whether ‘every human being’ has a broader meaning
than ‘everyone’ and could therefore be interpreted to include the unborn child. The Human
Rights Committee has not commented on this issue directly. However, in both its case law and
its concluding observations, it has found that, for example, the criminalization of abortion can
have implications regarding the right to life. The Committee in this instance was of the view that
suicides, which young females commit as a result of failure to perform an abortion due to its
criminalization by the state, may count as violation of the right to life. The Committee called on
the state to take ‘all necessary legislative and other measures to assist women and particularly
adolescent girls, faced with the problem of unwanted pregnancies to obtain access to adequate
health and educational facilities.’ (Concluding Observations on Ecuador (1998)). The implication
of such views is that countries are obliged to carefully analyze the consequences of criminalizing
abortions. Failure to prevent unnecessary deaths due to anti-abortion laws would raise issues
pertaining to the obligation to ensure that everyone enjoys the right to life.
Euthanasia
The protection of the right to life raises the question whether it includes the right to die. A
closely related issue concerns the question of euthanasia and assisted suicide. Euthanasia is the
performance of an act by a third party that intentionally causes a person’s death for humanitarian
reasons. An example would be giving a patient, upon his/her request, a lethal injection that
would end his/her life. On the other hand, assisted suicide is where the last action that causes
death is performed by the person who dies, but with the assistance of another person. An
example of this would be a person swallowing an overdose of drugs provided by a doctor.
Nicklinson and Lamb v The United Kingdom: ECHR 23 Jun 2015
The first applicant is the wife of Tony Nicklinson, now deceased, who suffered locked-in
syndrome following a stroke. The second applicant was paralysed following a car accident. His
condition is irreversible. Both men wish/ed to end their lives but are/were unable to commit
suicide without assistance. They unsuccessfully challenged the statutory ban on assisted suicide
and the law on murder, which did not recognize voluntary euthanasia as a defense, before the
domestic courts. The Supreme Court found, in particular, that such a sensitive issue was for
Parliament to resolve.In December 2014 Tony Nicklinson's wife, Jane, applied to bring a case
before the European Court of Human Rights. On 23 June 2015 the court decided that the
question of assisted suicide falls within a state's margin of appreciation. It concluded that:
“ If the domestic courts were to be required to give a judgment on the merits of such a
complaint this could have the effect of forcing upon them an institutional role not
envisaged by the domestic constitutional order. Further, it would be odd to deny
domestic courts charged with examining the compatibility of primary legislation with
the Convention the possibility of concluding, like this Court, that Parliament is best
placed to take a decision on the issue in question in light of the sensitive issues, notably
ethical, philosophical and social, which arise. ”
As such Nicklinson's application was "manifestly ill-founded" and therefore declared

inadmissible
TORTURE
The right to freedom from torture or cruel, inhuman or degrading treatment or

punishment
The absolute prohibition of torture is set out in a number of international human rights treaties
but defining what treatment constitutes torture is complex. The basic formula, ‘torture or cruel,
inhuman or degrading treatment or punishment’ was coined by Article 5 UDHR. All subsequent
human rights treaties contain a similar prohibition.
A definition of torture is found in Article 1 CAT:
For the purposes of this Convention, the term ‘torture’ means any act by which severe
pain or suffering, whether physical or mental, is intentionally inflicted on a person
for such purposes a 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 intimidation 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
Article 1(1) of the UN Convention against Torture defines torture quite broadly but sets out
certain elements that combined amount to torture under the Convention: 1) severe pain or
suffering has to have been inflicted, 2) for a specific purpose, such as to obtain information, as
punishment or to intimidate, or for any reason based on discrimination, 3) by or at the instigation
of or with the consent or acquiescence of state authorities.
One definition often used by international human rights organs and courts is ‘an aggravated and
deliberate form of cruel, inhuman or degrading treatment or punishment’, with the purpose to
obtain information or confessions (see, e.g., Denmark, Norway, Sweden and The Netherlands v.
Greece). Thus, for torture to occur, certain criteria must be met, such as: a) the method used must
be degrading treatment; b) it must be inhuman treatment; c) it must be an aggravated form of
inhuman treatment, inflicted for specific purposes; and d) it must reach a certain level of
severity.
Article 5 UDHR states that no one shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment. The CAT is considered today the most authoritative international legal
standard on the subject of torture. Articles 1 to 16, which are the substantive articles, relate not
only to torture but also refer to other forms of cruel, inhuman or degrading treatment or
punishment. State obligations under this convention include, inter alia, the following provisions:
a) no statement made under pressure of torture may be invoked as evidence in any proceedings
(Article 15); and b) every state party is obliged to institute legal proceedings against anyone who
is alleged to have committed acts of torture, not only against persons who have committed such
acts on its territory, but also against foreigners who have committed such acts elsewhere
(Articles 6 and 7).
Article 4 requires Each State Party to ensure that all acts of torture are offences under its criminal
law. Article 5 puts an obligation on states parties to be able to extradite or try any alleged
offender for all acts of torture. Essentially it requires that states put in place laws that put in
universal jurisdiction to try individuals for such offences.
Guengueng and Others v Senegal (2006)
After being ousted by the current President of Chad, Idriss Déby, in December 1990, Hissène
Habré took refuge in Senegal, where he has since resided. In January 2000, the complainants
lodged a complaint against him with an examining magistrate in Dakar. On 3 February 2000, the
examining magistrate charged Hissène Habré with being an accomplice to acts of torture, placed
him under house arrest and opened an inquiry against a person or persons unknown for crimes
against humanity. On 18 February 2000, Hissène Habré applied to the Indictment Division of the
Dakar Court of Appeal for the charge against him to be dismissed. On 4 July 2000, the
Indictment Division dismissed the charge against Hissène Habré and the related proceedings on
the grounds of lack of jurisdiction, affirming that 'Senegalese courts cannot take cognizance of
acts of torture committed by a foreigner outside Senegalese territory, regardless of the nationality
of the victims: the wording of article 669 of the Code of Criminal Procedure excludes any such
jurisdiction’. On 7 July 2000, the complainants filed an appeal with Senegal's Court of Cassation
against the ruling of the Indictment Division, calling for the proceedings against Hissène Habré
to be reopened. They maintained that the ruling of the Indictment Division was contrary to the
Convention against Torture and that a domestic law could not be invoked to justify failure to
apply the Convention. On 20 March 2001, the Senegalese Court of Cassation confirmed the
ruling of the Indictment Division, stating, inter alia, that 'no procedural text confers on
Senegalese courts a universal jurisdiction to prosecute and judge, if they are found on the
territory of the Republic, presumed perpetrators of or accomplices in acts [of torture] … when
these acts have been committed outside Senegal by foreigners; the presence in Senegal of
Hissène Habré cannot in itself justify the proceedings brought against him.
On 19 September 2005, after four years of investigation, a Belgian judge issued an international
arrest warrant against Hissène Habré, charging him with genocide, crimes against humanity, war
crimes, torture and other serious violations of international humanitarian law. On the same date,
Belgium made an extradition request to Senegal, citing, inter alia, the Convention against
Torture.
In response to the extradition request, the Senegalese authorities arrested Hissène Habré on 15
November 2005 but did not try him nor extradite him as requested by Belgium.
The complainants, who were victims of torture in Chad, filed a complaint before the Committee
against torture alleging a violation by Senegal of article 5(2) and article 7 of the Convention and
sought in this regard various forms of compensation.
HELD
The Committee recalls that, in accordance with article 5(2) of the Convention, 'each state
party shall […] take such measures as may be necessary to establish its jurisdiction over
such offences in cases where the alleged offender is present in any territory under its
jurisdiction and it does not extradite him […]'. It notes that, in its observations on the
merits, the state party has not contested the fact that it had not taken 'such measures as
may be necessary' in keeping with article 5(2) of the Convention, and observes that the
Court of Cassation itself considered that the state party had not taken such measures. It
also considers that the reasonable time frame within which the state party should have
complied with this obligation has been considerably exceeded.
The Committee is consequently of the opinion that the state party has not fulfilled its
obligations under article 5(2) of the Convention.
The Committee recalls that, under article 7 of the Convention, 'the state party in the
territory under whose jurisdiction a person alleged to have committed any offence
referred to in article 4 is found shall in the cases contemplated in article 5, if it does not
extradite him, submit the case to its competent authorities for the purpose of prosecution'.
It notes that the obligation to prosecute the alleged perpetrator of acts of torture does not
depend on the prior existence of a request for his extradition. The alternative available to
the state party under article 7 of the Convention exists only when a request for extradition
has been made and puts the state party in the position of having to choose between (a)
proceeding with extradition or (b) submitting the case to its own judicial authorities for
the institution of criminal proceedings, the objective of the provision being to prevent any
act of torture from going unpunished. The Committee considers that the state party
cannot invoke the complexity of its judicial proceedings or other reasons stemming from
domestic law to justify its failure to comply with these obligations under the Convention.
It is of the opinion that the state party was obliged to prosecute Hissène Habré for alleged
acts of torture unless it could show that there was not sufficient evidence to prosecute, at
least at the time when the complainants submitted their complaint in January 2000. Yet
by its decision of 20 March 2001, which is not subject to appeal, the Court of Cassation
put an end to any possibility of prosecuting Hissène Habré in Senegal. Consequently and
notwithstanding the time that has elapsed since the initial submission of the
communication, the Committee is of the opinion that the state party has not fulfilled its
obligations under article 7 of the Convention. Moreover, the Committee finds that, since
19 September 2005, the state party has been in another situation covered under article 7,
because on that date Belgium made a formal extradition request. At that time, the state
party had the choice of proceeding with extradition if it decided not to submit the case to
its own judicial authorities for the purpose of prosecuting Hissène Habré. The Committee
considers that, by refusing to comply with the extradition request, the state party has
again failed to perform its obligations under article 7 of the Convention. The Committee
against Torture, acting under article 22(7) of the Convention, concludes that the state
party has violated article 5(2) and article 7 of the Convention.
The prohibition against torture contained in the CAT by nature of its widespread acceptance by
the international community, is recognised as a peremptory norm of international law from
which States cannot derogate (jus cogens).
Human rights courts have held that Article 15, as part of the strictures of the CAT and a corpus
of general and treaty rules proscribing torture, is itself a peremptory norm of international law.
This was further confirmed by the Extraordinary Chambers in the Courts of Cambodia that the
exclusionary rule is a non-derogable obligation
It must therefore be emphasized that; Firstly, with regard to each component, the prohibition is
absolute and non-derogable even in a situation of public emergency. Secondly, any recourse to
torture or cruel, inhuman or degrading treatment or punishment is prohibited, even if it is
demonstrated that law and order cannot be maintained without such recourse (see, e.g., Tyrer v.
The United Kingdom). Finally, the victim’s conduct is irrelevant, and there is no justification for
using torture or cruel, inhuman or degrading treatment or punishment because of a suspicion,
however well-founded, that a person may be involved in criminal activities (see, e.g., Aydin v.
Turkey).
Article 7 ICCPR provides protection against torture, or cruel, inhuman or degrading treatment or
punishment.
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or

punishment. In particular, no one shall be subjected without his free consent to medical or
scientific experimentation.
In its General Comment 20, the Human Rights Committee notes that it is the duty of states
parties to afford everyone protection through legislative and other measures against the acts
prohibited by Article 7, ‘whether inflicted by people acting in their official capacity, outside their
official capacity or in a private capacity’. This prohibition extends to corporal punishment,
including excessive chastisement ordered as punishment for a crime or as an educative or
disciplinary measure. States parties must not expose individuals to the danger of torture or cruel,
inhuman or degrading treatment or punishment upon return to another country by way of their
extradition, expulsion or refoulement.
The CRC provides protection in all areas of importance in order for a child to have a meaningful
and dignified existence. Article 37(a) provides protection against torture, or other cruel, inhuman
or degrading treatment or punishment, and emphasizes that capital punishment and life
imprisonment without possibility of release may not be imposed on persons below eighteen years
of age. Article 10 CMW prohibits torture or cruel, inhuman or degrading treatment or
punishment. At the regional level, Article 3 ECHR and Article 5(2) ACHR contain a prohibition
against torture and other forms of ill-treatment though the wording is quite different. Both
conventions set out that no one shall be subjected to torture or to inhuman or degrading treatment
or punishment, a general negative obligation, but the ACHR then adds that ‘Everyone has the
right to have his physical, mental and moral integrity respected’, stressing that the obligation of
the state is not only to refrain from torture and ill-treatment, but also to respect the dignity of the
person. It is worth noting that at the Inter-American level a specific convention on torture was
adopted in 1985. The Inter-American Convention to Prevent and Punish Torture expands upon
the provisions of Article 5 ACHR, which prohibits torture and cruel, inhuman or degrading
punishment or treatment and can be invoked before the Inter-American Court to interpret the
provisions of Article 5 ACHR. It is worth noting that the Convention contains a definition of
torture (Article 2) that is broader than the one contained in Article 1 CAT, potentially
encompassing more acts of coercion than may be covered by the CAT definition.
Article 5 ACHPR essentially protects dignity. A non-exhaustive list of practices that could lead
to the violation of dignity is provided and torture and cruel, inhuman and degrading punishment
are explicitly listed as examples.
It must be emphasized that;
Firstly, with regard to each component, the prohibition is absolute and non-derogable even in a
situation of public emergency.
Secondly, any recourse to torture or cruel, inhuman or degrading treatment or punishment is

prohibited, even if it is demonstrated that law and order cannot be maintained without such
recourse (see, e.g., Tyrer v. The United Kingdom).
Finally, the victim’s conduct is irrelevant, and there is no justification for using torture or cruel,
inhuman or degrading treatment or punishment because of a suspicion, however well-founded,
that a person may be involved in criminal activities (see, e.g., Aydin v. Turkey).
The Human Rights Committee has reiterated that the prohibition against torture or cruel,
inhuman or degrading treatment is an absolute right that may not be derogated from (Article 4),
even in times of emergency:
The Committee is deeply concerned that under the guidelines for the conduct of
interrogation of suspected terrorists authority may be given to the security service to
use “moderate physical pressure” to obtain information considered crucial to the
“protection of life”. The Committee notes that the part of the report of the Landau
Commission that lists and describes authorized methods of applying pressure remains
classified. The Committee notes also the admission by the State party delegation that
the methods of handcuffing, hooding, shaking and sleep deprivation have been and
continue to be used as interrogation techniques, either alone or in combination. The
Committee is of the view that the guidelines can give rise to abuse and that the use of
these methods constitutes a violation of article 7 of the Covenant in any circumstances.
The Committee stresses that article 7 of the Covenant is a non-derogable prohibition
of torture and all forms of cruel, inhuman or degrading treatment or punishment. The
Committee urges the State party to cease using the methods referred to above. If
legislation is to be enacted for the purpose of authorizing interrogation techniques,
such a law should explicitly prohibit all forms of treatment prohibited by article 7.
(Concluding Observations on Israel (1998)
In addition to the main international human rights conventions, other instruments have been
adopted which are relevant to the protection against torture, such as the four Geneva
Conventions (1949) which contain a common Article 3, under which torture and humiliating and
degrading treatment is prohibited in international as well as internal armed conflicts; the
Standard Minimum Rules for the Treatment of Prisoners (1955); and the Principles of Medical
Ethics Relevant to the Role of Health Personnel (1982), which protect prisoners and detainees
against torture and other cruel, inhuman or degrading treatment or punishment. In addition,
Article 5 of the Statute of the International Criminal Tribunal for the Former Yugoslavia (1993),
which also applies for the International Criminal Tribunal for Rwanda (1993), sets out how acts
of torture can be prosecuted as crimes against humanity. Article 7 of the Rome Statute for the
International Criminal Court (1998) also establishes that torture can constitute a crime against
humanity.
Non-refoulement
A special aspect of the right to freedom from torture is the concept of non refoulement (i.e. ‘non-
return’), an established principle of customary international law that prohibits states to expel,
deport or extradite persons to countries where they face torture or ill-treatment. Non-refoulement
is a fundamental rule of international refugee law and several human rights instruments forbid
the return of a person who has reason to fear for his/her life or physical integrity in his/her
country of origin. Article 3 CAT stipulates that states may not expel, return (refouler) or
extradite persons to countries where they are in danger of being subject to torture and stipulates
that states have a duty to take into account all relevant considerations when determining whether
there are grounds to believe that the person is in danger. Article 33 of the Convention relating to
the Status of Refugees also contains the principle of non-refoulement. Although not explicitly
set out in Article 7 ICCPR, the Human Rights Committee has deduced from that article that
states are obliged not to expose persons to ‘the danger of torture or cruel, inhuman or degrading
treatment or punishment upon return to another country by way of their extradition, expulsion or
refoulement’ (General Comment 20, para. 6).
In the case of Ng v. Canada the state was found to have violated the Covenant by extraditing a
person to a country where he would face a cruel and inhuman form of execution. The Committee
has established that the prohibition refoulement is unconditional
A number of regional instruments also forbid states to expel persons in danger of being subjected
to torture. Article 22(8) ACHR states that ‘in no case may an alien be deported or returned to a
country, regardless of whether or not it is his country of origin, if in that country his right to life
or personal freedom is in danger of being violated because of his race, nationality, religion,
social status, or political opinions.
In Ireland v. The United Kingdom (Application No. 5310/71, Judgment of 18 January 1978)
the European Court gave an early definition of torture and ill treatment: Torture: deliberate
inhuman treatment causing very serious and cruel suffering. Inhuman treatment and punishment:
the infliction of intense physical and mental suffering.
Degrading treatment: ill-treatment designed to arouse in victims feelings of fear, anguish and
inferiority capable of humiliating and debasing them and possibly breaking their physical or
moral resistance.
The Court has repeatedly specified that the prohibition applies even in the most difficult of
circumstances, such as those involving aggression by terrorist groups or large-scale organized
crime. (See i.e., Labita v. Italy, Application No. 26772/95, Judgement of 6 April 2000, Selmouni
v. France, Application No. 25803/94, Judgment of 28 July 1999 and Chahal v. The United
Kingdom, Application No. 22414/93, Judgement of 15 November 1996).
The first case where the Court found that the treatment of the victim could only be classified as
torture was Aksoy v. Turkey (Application No. 21987/ 93, Judgement of 18 December 1996):
The applicant was subjected to “Palestinian hanging”, in other words, that he was stripped naked,
with his arms tied together behind his back, and suspended by his arms […]. In the view of the
Court this treatment could only have been deliberately inflicted; indeed, a certain amount of
preparation and exertion would have been required to carry it out. It would appear to have been
administered with the aim of obtaining admissions or information from the applicant. In addition
to the severe pain which it must have caused at the time, the medical evidence shows that it led
to a paralysis of both arms which lasted for some time […]. The Court considers that this
treatment was of such a serious and cruel nature that it can only be described as torture
In more recent cases the Court has broadened the scope of what can be considered torture. The
following case is important as it developed a wider definition of torture than the Court had
applied before
Selmouni v. France
The applicant complained that he had been subjected to various forms of ill-treatment. These had
included being repeatedly punched, kicked, and hit with objects; being forced to kneel down
in front of a young woman to whom an officer had said “Look, you’re going to hear somebody
sing”; having a police officer show him his penis, saying “Here, suck this”, before urinating over
him; being threatened with a blowlamp and then with a syringe; etc. The applicant also
complained that he had been raped with a small black truncheon after being told “You Arabs
enjoy being screwed”. He stressed that his allegations had neither varied nor been inconsistent
during the entire proceedings and submitted that the expert medical reports and the evidence
heard from the doctors who had examined him established a causal link with the events which
had occurred while he had been in police custody and gave credibility to his allegations.
The Court reiterates that Article 3 enshrines one of the most fundamental values of democratic
societies. Even in the most difficult circumstances, such as the fight against terrorism and
organized crime, the Convention prohibits in absolute terms torture and inhuman or degrading
treatment or punishment.
The court thus held that: Under these circumstances, the physical and mental violence,
considered as a whole, committed against the applicant’s person caused “severe” pain and
suffering and was particularly serious and cruel. Such conduct must be regarded as acts of torture
for the purposes of Article 3 of the Convention
In this case the Court expanded the definition of torture and reiterated its findings in the Ribitsch
v. Austria and the Tekin v. Turkey judgments; that subjecting detainees to physical force which
has not been made strictly necessary by his or her own conduct diminishes human dignity and is
a violation of Article 3. Furthermore, the Court found that the treatment Mr. Selmouni was
subjected to was cruel and inhuman and then moved on to establish whether the ‘severity’ of the
treatment amounted to torture. The Court found that the ‘severity’ condition set forth in Article 3
is relative and depends on many, cumulative factors, such as ‘the duration of treatment, its
physical or mental effects and, in some cases, the sex, age and state of health of the victim, etc’.
The Court found that the treatment of Mr. Selmouni amounted to torture.
The European Court has found in a famous case that subjecting persons to the death row
phenomenon amounts to inhuman and degrading treatment
Soering v. The United Kingdom
In this case the European Court found that extraditing the applicant to the United States, where
he faced the death penalty and a long period on death row would subject him to the ‘death row
phenomenon’ in violation of Article 3
In the Court’s view, having regard to the very long period of time spent on death row in such
extreme conditions, with the ever present and mounting anguish of awaiting execution of the
death penalty, and to the personal circumstances of the applicant, especially his age and mental
state at the time of the offence, the applicant’s extradition to the United States would expose him
to a real risk of treatment going beyond the threshold set by Article 3 (art. 3).
The court further emphasized that 88. Article 3 (art. 3) makes no provision for exceptions and
no derogation from it is permissible under Article 15 (art. 15) in time of war or other national
emergency
Chahal v. The United Kingdom
Here the Court stressed that where there are substantial grounds to believe that a person will be
subjected to torture or ill-treatment contrary to Article 3 if removed to another state, the state
must ensure that the individual is not subjected to such treatment and this applies regardless of
how undesirable or dangerous the person is in the eyes of that state. The Court emphasized that
there is no room for balancing the risk of ill-treatment against the reason for expulsion and
found that deporting Mr. Chahal to India would violate Article 3
The prohibition provided by Article 3 (art.3) against ill-treatment is equally absolute in

expulsion cases. Thus, whenever substantial grounds have been shown for believing that
an individual would face a real risk of being subjected to treatment contrary to Article 3
(art. 3) if removed to another State, the responsibility of the Contracting State to
safeguard him or her against such treatment is engaged in the event of expulsion […]. In
these circumstances, the activities of the individual in question, however undesirable or
dangerous, cannot be a material consideration
RIGHT TO A FAIR HEARING
The right to a fair trial does not focus on a single issue, but rather consists of a complex set of
rules and practices. The right to a fair trial is interpreted here as the rules administered through
courts of justice in accordance with established and sanctioned legal principles and procedures,
and with safeguards for the protection of individual rights. The rules applicable to the
administration of justice are wide and refer to, inter alia, a fair and public hearing, the
presumption of innocence and the independence and impartiality of the tribunal.
The UDHR states in Article 10 that ‘everyone is entitled in full equality to a fair and public
hearing by an independent and impartial tribunal, in the determination of his rights and
obligations and of any criminal charge against him’. The right to be presumed innocent is dealt
with in Article 11 UDHR.
The right to a fair trial (including the right to be presumed innocent) has been translated into
obligations in:
• The ICCPR: Article 14 (fair trial) and Article 15 (no retroactive penal laws).
• The ECHR: Article 6 (fair trial), Article 7 (no punishment without law), and Protocol No. 7
(rights of accused persons).
• ACHR: Article 8 (fair trial) and Article 9 (freedom from ex-post facto laws). According to
Article 27 ACHR, judicial guarantees have been given non derogable status, which means that
certain aspects of the right to a fair trial are non-derogable.
• ACHPR: Article 7 (fair trial). Article 26 imposes a duty on states parties to guarantee the
independence of the Courts and allow the establishment and improvement of appropriate national
institutions entrusted with the promotion and protection of the rights and freedoms guaranteed by
the African Charter.
One may further note various articles in the Rome Statute on the International Criminal Court
(ICC), which define in detail principles of criminal justice (Articles 22-33) and principles of fair
trial (Articles 62-67). The Rome Statute, which was adopted in 1998, provides the highest
standard of rules on due process and reflects the case-law and doctrine developed since the
adoption in the 1950s and 1960s of the major conventions.
Article 14 ICCPR provides that In the determination of any criminal charge against him, or of his
rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a
competent, independent and impartial tribunal established by law.
h. Competent, independent and impartial tribunal’
The right to a fair trial is guaranteed if individuals can have recourse to ‘a competent,
independent and impartial tribunal’, as recognized by international conventions, such as the
ICCPR and the American Convention.
Independence
The most important component is the independence of the judiciary, referring to, inter alia,
independence from the executive and the legislature. If such independence does not exist, the
recourse to a court is of little use. The UN Basic Principles on the Independence of the Judiciary
set out certain requirements that have to be met for a court to be considered ‘independent’: a)
conditions of service and tenure; b) manner of appointment and discharge; and c) degree of
stability and logistical protection against outside pressure and harassment.
Impartiality
The judge must not have any personal interest in the case. The appearance of impartiality is of
great importance; there must be impartiality in the objective sense (which examines whether the
judge offered procedural guarantees sufficient to exclude any legitimate doubt of partiality), as
well as the subjective sense (there should not be any appearance of impartiality).
The European Court of Human Rights has defined a tribunal as anybody who exercises judicial
functions and is established by law to determine matters within its competence on the basis of the
rule of law and the proceedings are conducted in a prescribed manner. Thus Article 14 applies to
any organ which exercises judicial functions, for example courts.
Usually a question on independence, impartiality and competence comes in a question relating to

special courts.
The Law Office of Ghazi Suleiman v. Sudan
It was alleged that the military court which tried the victims was neither competent, independent
nor impartial insofar as its members were carefully selected by the Head of State. Some members
of the court are active military officers
African Commission on Human and Peoples’ Rights held that the composition of the military
court alone is evidence of impartiality. Civilians appearing before and being tried by a military
court presided over by active military officers who are still under military regulations violates the
fundamental principles of fair trial.
It recalled the general stand of the African Commission on the question of civilians being tried
by military courts. In its Resolution on the right to a fair trial and legal aid in Africa, during the
adoption of the Dakar Declaration and Recommendations, the African Commission noted that In
many African countries, military courts or specialized criminal courts exist side by side with
ordinary courts to hear and determine offences of a purely military nature committed by military
staff. In carrying out this responsibility, military courts should respect the norms of a fair trial.
They should in no case try civilians. Likewise, military courts should not deal with offences
which are under the purview of ordinary courts.
The African Commission found the Republic of Sudan in violation of the provisions of Articles
5, 6 and 7 (1) of the African Charter;
Public hearing
A public hearing implies that oral hearings on the merits of the case are held in public, whereby
members of the public, including press, can attend. Courts must make information about the time
and venue of the oral hearings available to the public and provide adequate facilities (within
reasonable limits) for the attendance of interested members of the public. Judgments are to be
made public, with a few exceptions. The public’s access to hearings may be restricted in certain
narrowly defined circumstances. The ICCPR in Article 14(1) and the European Convention set
out the limited number of grounds on which the press and the public may be excluded from all or
parts of hearings. They include a) public morals; b) public order; b) juveniles; d) protection of
the private life of the parties; and e) where publicity is found to prejudice the interests of justice.
Under Article 8(5) American Convention, the right to a public trial in criminal proceedings may
be suspended only ‘in so far as necessary to protect the interests of justice’.
The ICCPR further requires that any judgment rendered in a criminal case or in a suit at law shall
be made public except where the interest of juvenile persons otherwise requires or the
proceedings concern matrimonial disputes of the guardianship of children.
G. A. van Meurs v. The Netherlands, Communication No. 215/1986, U.N. Doc.
CCPR/C/39/D/215/1986 (1990).
The author claims that the State party violated his rights under article 14, paragraph 1, of the
International Covenant on Civil and Political Rights by failing to provide a fair and public
hearing in his case. he author complains that the hearing before the sub-district court at
Beetsterzwaag was not public, because: According to the established practice of the courts of the
Netherlands, hearings pursuant to article 1639w of the Civil Code of the Netherlands were held
in camera. The possibility of requesting that the hearing be held in public was not indicated
either to the author or to his counsel by the authorities. The author claims that no outsiders were
admitted to the courtroom, and that the fact that his wife attended the meeting cannot be
construed as evidence of the public nature of the hearing, given that his wife was directly
involved. Furthermore, it is submitted that the size of the courtroom did not allow interested
members of the public to attend.
HELD; With respect to the author's claim related to the publicity of the sub-district court
hearing, the Committee considers that if labor disputes are argued in oral hearing before a court,
they fall within the requirement, in article 14, paragraph 1, that suits at law be held in public.
That is a duty upon the State that is not dependent on any request, by the interested party, that the
hearing be held in public. Both domestic legislation and judicial practice must provide for the
possibility of the public attending, if members of the public so wish. In the instant case, the
Committee notes that while the old. Article 1639w of the Civil Code of the Netherlands was
silent on the question of the public or non-public nature of the proceedings; it appears that in
practice the public did not attend. It is far from clear in this case whether the hearing was or was
not held in camera. The author's communication does not state that he or his counsel formally
requested that the proceedings be held in public, or that the sub-district court made any
determination that they be held in camera. On the basis of the information before it, the
Committee is unable to find that the proceedings in the author's case were incompatible with the
requirement of a "public hearing" within the meaning of article 14, paragraph 1. There was no
violation of the Convention.
The Committee observes that courts must make information on time and venue of the oral
hearings available to the public and provide for adequate facilities for the attendance of
interested members of the public, within reasonable limits, taking into account, e.g., the potential
public interest in the case, the duration of the oral hearing and the time the formal request for
publicity has been made. Failure of the court to make large courtrooms available does not
constitute a violation of the right to a public hearing, if in fact no interested member of the
public is barred from attending an oral hearing.
General Comment No 13 explains Article 14(1);
The publicity of hearings is an important safeguard in the interest of the individual and of
society at large. At the same time article 14, paragraph 1, acknowledges that courts have
the power to exclude all or part of the public for reasons spelt out in that paragraph. It
should be noted that, apart from such exceptional circumstances, the Committee
considers that a hearing must be open to the public in general, including members of the
press, and must not, for instance, be limited only to a particular category of persons. It
should be noted that, even in cases in which the public is excluded from the trial, the
judgment must, with certain strictly defined exceptions, be made public
Presumption of innocence
Article 14(2) ICCPR requires that Every one charged with a criminal offence shall have the right
to be presumed innocent until proved guilty according to law.
The right to the presumption of innocence requires that judges and juries refrain from prejudging
any case. It also applies to all other public officials. This means that public authorities,
particularly prosecutors and police, should not make statements about the guilt or innocence of
an accused before the outcome of the trial (see Human Rights Committee, General Comment 13,
para.7). It also means that the authorities have a duty to prevent the news media or other
powerful social groups from influencing the outcome of a case by pronouncing on its merits. In
accordance with the presumption of innocence, the rules of evidence and conduct of a trial must
ensure that the prosecution bears the burden of proof throughout a trial.
Sekanina v Austria: ECHR 25 Aug 1993
Ratio: The applicant was detained on remand for about a year on suspicion of murdering his
wife. He was acquitted by a jury. He applied for compensation for costs incurred in his defense
and pecuniary damage sustained during his detention under the relevant Austrian legislation. On
the ground that suspicion remained concerning the applicant’s involvement in his wife’s death
the Austrian authorities rejected the claim.
Held: The court found a violation of article 6(2): ‘The voicing of suspicions regarding an
accused’s innocence is conceivable as long as the conclusion of criminal proceedings has not
resulted in a decision on the merits of the accusation. However, it is no longer admissible to rely
on such suspicions once an acquittal has become final’ and ‘No authority may treat a person as
guilty of a criminal offence unless he has been convicted by the competent court and in the case
of an acquittal the authorities may not continue to rely on the charges which have been raised
before that court but which have been proved to be unfounded. This rule also applies to courts
which have to deal with non-criminal consequences of behavior which has been subject to
criminal proceedings. They must be bound by the criminal court’s finding according to which
there is no criminal responsibility for the acts in question although this naturally does not prevent
them to establish, eg a civil responsibility arising out of the same facts
The minimum trial guarantees.
Article 14(3) provides for basic standards that must be in place before a trial can be called fair.
In the determination of any criminal charge against him, everyone
shall be entitled to the following minimum guarantees, in full equality:
a) To be informed promptly and in detail in a language which he understands of the nature and
cause of the charge against him; Kelly v Jamaica (below)
b) To have adequate time and facilities for the preparation of his defense and to communicate
with counsel of his own choosing; (Kelly v Jamaica below)
c) To be tried without undue delay; The Human Rights Committee stated in General Comment
13 on 13 April 1984:
Subparagraph 3 (c) provides that the accused shall be tried without undue delay.
This guarantee relates not only to the time by which a trial should commence, but also the
time by which it should end and judgment be rendered; all stages must take place
“without undue delay”. To make this right effective, a procedure must be available in
order to ensure that the trial will proceed “without undue delay”, both in first instance and
on appeal.
The length of time will vary; in some cases courts have said 1 year is unreasonable, in others it is
reasonable.
In Buabaker v Ghana, the accused was detained for 7 years without trial. This was held to
constitute a violation of the right to be tried in a reasonable time.
In Gomez v Panam; tha accused had been held for 3 and a half years after which he was tried
and convicted of murder. It was held that in cases involving serious charges eg homicide or
murder, where the accused is denied bail by the court, he must ne tried in as expeditious manner
as possible.
In Annette Pagnoulle v Cameroon, the African Commission has found that a delay of 2 years
without a hearing or projected trial date was a violation of Article 7(1)(d) of the African Charter.
d) To be tried in his presence, and to defend himself in person or through legal assistance of his
own choosing; to be informed, if he does not have legal assistance, of this right: and to have legal
assistance assigned to him, in any case where the interests of justice so require, and without
payment by him in any such case if he does not have sufficient means to pay for it:
The right to be present may be waived if the accused is granted bail or if the accused has been
notified but refuses to come.
Daniel Monguya Mbenge v. Zaire Communication No. 16/1977, U.N. Doc. CCPR/C/OP/2 at
76 (1990).
Daniel Monguya Mbenge, a Zairian citizen and former Governor of the province of Shaba, who
had left Zaire in 1974 and is at present living in Brussels, was twice sentenced to capital
punishment by Zairian tribunals. The first death sentence was pronounced against him by
judgment of 17 August -1977, in particular for his alleged involvement in the invasion of the
province of Shaba by the so-called Katanga gendarmes in March 1977. The second judgment is
dated 16 March 1978. It pronounces the death sentence for "treason" and "conspiracy" without
providing facts to establish these charges. Daniel Monguya Mbenge learned about the trials
through the press. He had not been duly summoned at his residence in Belgium to appear before
the tribunals. An amnesty decree of 28 June 1978 (Act 78-023 of 29 December 1978) covering
offences "against the external or internal security of the State or any other offence against the
laws and regulations of the Republic of Zaire", committed by Zairians having sought refuge
abroad, was restricted to persons returning to Zaire before 30 June 1979.
According to article 14 (3) of the Covenant, everyone is entitled to be tried in his presence and to
defend himself in person or through legal assistance. .This provision and other requirements of
due process enshrined in article 14 cannot be construed as invariably rendering proceedings in
absentia inadmissible irrespective of the reasons for the accused person's absence. Indeed,
proceedings in absentia are in some circumstances (for instance, when the accused person,
although informed of the proceedings sufficiently in advance, declines to exercise his right to be
present) permissible in the interest of the proper administration of justice. Nevertheless, the
effective exercise of the rights under article 14 presupposes that the necessary steps should be
taken to inform the accused beforehand about the proceedings against him (art. 14 (3) (a)).
Judgment in absentia requires that, notwithstanding the absence of the accused, all due
notification has been made to inform him of the date and place of his trial and to request his
attendance. Otherwise, the accused, in particular, is not given adequate time and facilities for the
preparation of his defense (art. 14 (3) (b)), cannot defend himself through legal assistance of his
own choosing. (art. 14 (3) (d)) nor does he have the opportunity to examine, or have examined,
the witnesses against him and to obtain the attendance and examination of witnesses on his
behalf (art. 14 (3) (e)). The State party has not challenged the author's contention that he learned
of the trials only through press reports after they had taken place. It is true that both judgments
state explicitly that summonses to appear had been issued by the clerk of the court. However, no
indication is given of any steps actually taken by the State party in order to transmit the
summonses to the author, whose address in Belgium is correctly reproduced in the judgment of
17 August 1977 and which was therefore known to the judicial authorities. The fact that,
according to the judgment in the second trial of March 1978, the summons had been issued only
three days before the beginning of the hearings before the court, confirms the Committee in its
conclusion that the State party failed to make sufficient efforts with a view to informing the
author about the impending court proceedings, thus enabling him to prepare his defense. In the
view of the Committee, therefore, the State party has not respected D. Monguya Mbenge's rights
under article 14 (3) (a), (b), (d) and (e) of the Covenant.
e) To examine, or have examined, the witnesses against him and to obtain the attendance and
examination of witnesses on his behalf under the same conditions as witnesses against him:
f) To have the free assistance of an interpreter if he cannot understand or speak the language
used in court;
Kamasinski v Austria
The applicant filed this suit alleging violations of Articles 6, 13, and 14 during his criminal
proceeding that resulted because he could not speak German. The applicant alleged that many
aspects the criminal proceedings failed to cater to his inability to speak German. Specifically, he
complained about the inadequate legal and interpretative assistance that he received during all
stages of the criminal proceeding; namely: his first trial as well as the subsequent appeals.
Held;
The Court infers from the evidence that, as a result of the oral explanations given to him in
English, Mr Kamasinski had been sufficiently informed of "the nature and cause of the
accusation against him", for the purposes of paragraph 3 (a) of Article 6 (art. 6-3-a). In the
Court’s view, in the particular circumstances the absence of a written translation of the
indictment neither prevented him from defending himself nor denied him a fair trial. This is
because he was represented by a lawyer who is also a registered interpreter for the English
language. And Nevertheless, "a State cannot be held responsible for every shortcoming on the
part of a lawyer appointed for legal aid purposes"
g) Not to be compelled to testify against himself or to confess guilt.
The Human Rights Committee has issued two General Comments that are very important with
regard to the right to a fair trial, General Comments 13 and 29. In General Comment 29, the
Committee stated that, inter alia, some elements of the right to a fair trial that are considered
fundamental principles, such as the presumption of innocence, should not be deviated from in
emergency situations (General Comment 29, para. 11 and 16) and that ‘it is inherent in the
protection of rights explicitly recognized as non-derogable’ in the Convention, that they ‘must be
secured by procedural guarantees, including often, judicial guarantees.’ Therefore, provisions
relating to procedural safeguards ‘must never be subject to measures that would circumvent the
protection of derogable rights.’
Most of the above minimum guarantees for a fair trial were considered in the case of;
Paul Kelly v. Jamaica Communication No. 253/1987, U.N. Doc. CCPR/C/41/D/253/1987 at

60 (1991
Before the Human Rights Committee. In this case, the author was arrested and taken into custody
on 20 August 1981. He was detained until 15 September 1981 without formal charges being
brought against him. Following a statement to the police given on 15 September 1981, he was
charged with having murdered Owen Jamieson on 2 July 1981. He was tried with a co-
defendant, Trevor Collins, in the Westmoreland Circuit Court between 9 and 15 February 1983.
He and Mr. Collins were found guilty of murder and sentenced to death and his appeal was
dismissed without a reasoned judgment.
According to the author, the State party violated article 14, paragraph 3 (a), because he was not
informed promptly and in detail of the nature of the charges against him. Upon his arrest, he was
held for several days at the central lock-up at Kingston, pending "collection" by the
Westmoreland police, and merely told that he was wanted in connection with a murder
investigation. Further details were not forthcoming even after his transfer to Westmoreland. It
was only on 15 September 1981 that he was informed that he was charged with the murder of
Owen Jamieson. The author submits that article 14, paragraph 3 (b), was violated in his case,
since he was denied adequate time and facilities for the preparation of his defense, had no or
little opportunity to communicate with counsel representing him at trial and on appeal, both
before and during trial and appeal, and because he was unable to defend himself through legal
assistance of his own choosing. In this context, he notes that he experienced considerable
difficulty in obtaining legal representation. Counsel assigned to him during the trial did not meet
with him until the opening day of the trial: moreover, this meeting lasted a mere 15 minutes,
during which it was virtually impossible for counsel to prepare the author's defense in any
meaningful way. During the trial, he could not consult with the lawyers for more than a total of
seven minutes, which means that preparation of the defense prior to and during the trial was
restricted to 22 minutes. He points out that the lack of time for the preparation of the trial was
extremely prejudicial to him, in that his lawyer could not prepare proper submissions on his
behalf in relation to the admissibility of his "confession statement", or prepare properly for the
cross-examination of witnesses. As to the hearing of the appeal, the author contends that he
never met with, or even instructed, his counsel, and that he was not present during the hearing of
the appeal.
The author also alleges that article 14, paragraph 3 (d),was violated. In this connection, he notes
that, as he is poor, he had to rely on legal aid lawyers for the judicial proceedings against him.
While he concedes that this situation does not in itself reveal a breach of article 14, paragraph 3
(d), he submits that the inadequacy of the Jamaican legal aid system, which resulted in
substantial delays in securing suitable legal representation, does amount to a breach of this
provision. He further notes that as he did not have an opportunity to discuss his case with the
lawyers assigned to his appeal, he could not possibly know that this lawyer intended to withdraw
the appeal and thus could not object to his intentions. He adds that had he been apprised of the
situation, he would have sought other counsel. The author contends that he has been the victim
of a violation of article 14, paragraph 3 (c), in that he was not tried without undue delay. Thus,
almost 18 months elapsed between his arrest and the start of the trial. During the whole period,
he was in police custody. As a result, he was prevented from carrying out his own investigations,
which might have assisted him in preparing his defense, given that court-appointed legal
assistance was not immediately forthcoming.
HELD;
Article 14, paragraph 3 (a), requires that any individual under criminal charges shall be informed
promptly and in detail of the nature and the charges against him. The requirement of prompt
information, however, only applies once the individual has been formally charged with a
criminal offence. It does not apply to, those remanded in custody pending the result of police
investigations: the latter situation is covered by article 9, paragraph 2, of the Covenant. In the
present case, the State party has not denied that the author was not apprised in any detail of the
reasons for his arrest for several weeks following his apprehension and that he was not informed
about the facts of the crime in connection with which he was detained or about the identity of the
victim. The Committee concludes that the requirements of article 9, paragraph 2, were not met.
Right of an accused person to have adequate time and facilities for the preparation of his
defense is an important element of the guarantee of a fair trial and an important aspect of
the principle of equality of arms. In cases in which capital sentence may be pronounced
on the accused, it is axiomatic that sufficient time must be granted to the accused and his
counsel to prepare the defense for the trial. The determination of what constitutes
"adequate time" requires an assessment of the individual circumstances of each case. The
author also contends that he was unable to obtain the attendance of witnesses. It is to be
noted, however, that the material before the Committee does not disclose whether either
counsel or author complained to the trial judge that the time or facilities were inadequate.
Furthermore, there is no indication that counsel decided not to call witnesses in the
exercise of his professional judgment, or that, if a request to call witnesses was made, the
trial judge disallowed it. The Committee therefore finds no violation of article 14,
paragraph 3 (b)and (e).
As to the issue of the author's representation, in particular before the Court of Appeal, the
Committee recalls that it is axiomatic that legal assistance should be made available to a
convicted prisoner under sentence of death. This applies to all the stages of the judicial
proceedings. In the author's case, it is clear that legal assistance was assigned to him for
the appeal. What is at issue is whether his counsel had a right to abandon the appeal
without prior consultation with the author. The author's application for leave to appeal to
the Court of Appeal, dated 23 February 1983, indicates that he did not wish to be present
during the hearing of the appeal, but that he wished legal aid to be assigned for this
purpose. Subsequently, and without previously consulting with the author, counsel
opined that there was no merit in the appeal, thus effectively leaving the author without
legal representation. The Committee is of the opinion that while article 14, paragraph 3
(d), does not entitle the accused to choose counsel provided to him free of charge,
measures must be taken to ensure that counsel, once assigned, provides effective
representation in the interests of justice. This includes consulting with, and informing, the
accused if he intends to withdraw an appeal or to argue before the appeals court that the
appeal has no merit.
With respect to the claim of "undue delay" in the proceedings against the author, two
issues arise. The author contends that his right, under article 14, paragraph 3 (c), to be
tried without "undue delay" was violated because almost 18 months elapsed between his
arrest and the opening of the trial. While the Committee reaffirms, as it did in its general
comment on article 14, that all stages of the judicial proceedings should take place
without undue delay, it cannot conclude that a lapse of a year and a half between the
arrest and the start of the trial constituted "undue delay", as there is no suggestion that
pre-trial investigations could have been concluded earlier, or that the author complained
in this respect to the authorities.
However, because of the absence of a written judgment of the Court of Appeal, the
author has, for almost five years since the dismissal of his appeal in April 1986, been
unable effectively to petition the Judicial Committee of the Privy Council, as shown in
paragraph 5.3 above. This, in the Committee's opinion, entails a violation of article 14,
paragraph 3 (c), and article 14, paragraph 5. The Committee reaffirms that in all cases,
and in particular in capital cases, the accused is entitled to trial and appeal proceedings
without undue delay, whatever the outcome of these judicial proceedings may turn out to
be. It is the view of the Committee that, in capital punishment cases, States parties have
an imperative duty to observe rigorously all the guarantees for a fair trial set out in article
14 of the Covenant. The Committee is of the view that Mr. Paul Kelly, victim of a
violation of article 14, paragraph 3 (c)and (d)and 5 of the Covenant, is entitled to a
remedy entailing his release.
Adolfo Drescher Caldas v. Uruguay Communication No. 43/1979, U.N. Doc. Supp. No. 40
(A/38/40) at 192 (1983)..
Adolfo Drescher Caldas, a former trade-union official, was arrested in Montevideo, Uruguay, on
28 September 1978, by officials who did not identify themselves or produce any judicial warrant
and who apparently belonged to the Navy. He was informed that he was arrested under the
prompt security measures, but not, it appears, more specifically of the reasons for his arrest.
During the first six weeks of his detention he was kept incommunicado and his relatives did not
know his whereabouts. Recourse to habeas corpus was not available to him. On 7 November
1978, he was charged before the Military Examining Judge with violations of article 60 (V) of
the Military Criminal Code and article 340 (theft), 237 (forgery or alteration of an official
document by a private individual) and 54 (accumulation of offences) of the Ordinary Criminal
Code. He had a defending counsel appointed by the court, Colonel Alfredo Ramirez, and in July
1979 his case was before the Military Court of the fourth sitting. In December 1978, he was
brought to Libertad prison, the Military Detention Establishment No. 1, where he continues to be
detained.
HELD;
With regard to the author's contention that her husband was not duly informed of the reasons for
his arrest, the Committee is of the opinion that article 9 (2) of the Covenant requires that anyone
who is arrested shall be informed sufficiently of the reasons for his arrest to enable him to take
immediate steps to secure his release if he believes that the reasons given are invalid or
unfounded. It is the view of the Committee that it was not sufficient simply to inform Adolfo
Drescher Caldas that he was being arrested under the prompt security measures without any
indication of the substance of the complaint against him. The Committee observes that the
holding of a detain coo incommunicado for six weeks after his arrest is not only incompatible
with the standard of humane treatment required by article 10 (1) of the Covenant, but it also
deprives him, at a critical stage, of the possibility of communicating with counsel of his own
choosing as required by article 14 (3) (b) and, therefore, of one of the most important facilities
for the preparation of his defense. that the facts as found by the Committee disclose violations of
the International Covenant on Civil and Political Rights, particularly; of article 9 (2), because, at
the time of his arrest, Adolfo Drescher Caldas was not sufficiently informed of the reasons for
his arrest; of article 9 (4), because recourse to habeas corpus was not available to him; of
article 10 (1), because he was kept incommunicado for six weeks after his arrest; of article 14 (3)
(b), because he was unable, particularly while kept incommunicado, to communicate with
counsel of his own choosing; of article 14 (3) (c), because he was not tried without undue delay.
Other standards of a fair trial under article 14.
In the case of juvenile persons, the procedure shall be such as will take account of their age and
the desirability of promoting their rehabilitation.
Everyone convicted of a crime shall have the right to his conviction and sentence being
reviewed by a higher tribunal according to law.
When a person has by a final decision been convicted of a criminal offence and when
subsequently his conviction has been reversed or he has been pardoned on the ground that a new
or newly discovered fact shows conclusively that there has been a miscarriage of justice, the
person who has suffered punishment as a result of such conviction shall be compensated
according to law, unless it is proved that the non-disclosure of the unknown fact in time is
wholly or partly attributable to him.
No one shall be liable to be tried or punished again for an offence for which he has already been
finally convicted or acquitted in accordance with the law and penal procedure of each country.
This is similarly under Article 8(4) of the American Convention, &the Protocol under the
European Convention; Article 4;
These articles put in place different prohibitions regarding double jeopardy. The ICCPR says
“Acquitted or convicted”, Article 4 of the 7th Protocol under the European Convention says
“finally Acquitted or convicted”, while Article 8(4) of the American Convention says; “an
accused person acquitted”, meaning that if an accused has been convicted, he can be convicted
again for other offences.
In Loayza Tamayo v. Peru the Court found that the Peruvian State violated Article 8(4) of the
American Convention with Ms. María Elena Loayza-Tamayo’s trial in the civil jurisdiction for
the same facts of which she had been acquitted in the military jurisdiction.
Article 15 [prohibition of retroactive penal laws]
1. No one shall be held guilty of any criminal offence on account of any act or omission which
did not constitute a criminal offence, under national or international law, at the time when it was
committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time
when the criminal offence was committed. If, subsequent to the commission of the offence,
provision is made by law for the imposition of the lighter penalty, the offender shall benefit
thereby.
2. Nothing in this article shall prejudice the trial and punishment of any person for any act or
omission which, at the time when it was committed, was criminal according to the general
principles of law recognized by the community of nations.
Civil Liberties Organisation (in respect of the Nigerian Bar Association) / Nigeria
Case brought against a decree under the Nigerian Bar Association which made it an offence and
prohibited seeking assistance of court concerning the exercise of its body. The decree was
retrospective. It was held by the African commission that the decree was in violation of Articles
7 and 10 of the Charter for being retrospective. The decree came into force a year before it was
issued.
The right to a fair trial in emergencies.
Article 4 of the ICCPR provides that
In time of public emergency which threatens the life of the nation and the existence of
which is officially proclaimed, the States Parties to the present Covenant may take
measures derogating from their obligations under the present Covenant to the extent
strictly required by the exigencies of the situation, provided that such measures are not
inconsistent with their other obligations under international law and do not involve
discrimination solely on the ground of race, colour, sex, language, religion or social
origin.
The right to a fair trial is not listed under non-derogabe rights under Article 4(2). However, the
possibility of derogation under the ICCPR can’t be invoked for violating the fundamentals of a
fair trial; the presumption of innocence and prevention of retrospective action have attained the
status of jus cogens, hence non-derogable.
The right to a fair hearing is crucial because of its relation to otter rights; it’s the only guarantee
for the enjoyment of other rights.
RIGHT TO FREEDOM OF EXPRESSION
The freedom of expression is a right without which other rights are difficult to acquire and
defend. The right to freedom of expression is rooted in the 17th century struggle of European
legislators for freedom of speech. Since then, the world has seen a continuing struggle for the
freedom of expression, including the freedom of speech and freedom of the press, often going
hand in hand with the endeavor to limit the power of governments. The freedom of expression
can be considered an essential aspect of the individual’s defense against government, just as the
suppression of the freedom of expression is essential to tyranny. As freedom of expression is a
foundation for religious and political activities, it is often exercised in concert with the right to
freedom of thought and assembly.
Under present international conventions, state obligations in relation to freedom of expression
are absolute and immediate. At the same time, as with other forms of liberty, completely
unrestricted freedom of expression may lead to the infringement on the rights of others. The
freedom of expression has been hedged in by a number of limitations and restrictions, often more
extensively than other rights. Historically, most limitations have dealt with the expression of
sentiments contrary to prevailing institutions or religious, political or other beliefs. In addition, in
times of war, governments often restrict the freedom of expression in the interest of national
security. As a cornerstone of democracy, the complexity and importance of freedom of
expression has lead to extensive case-law before national courts and international supervisory
mechanisms.
1. STANDARDS
Article 19 of both the UDHR and the ICCPR establish the freedom of opinion and expression.
Article 19 UDHR stipulates: ‘everyone has the right to freedom of opinion and expression; this
right includes freedom to hold opinions without interference and to seek, receive and impart
information and ideas through any media and regardless of frontiers.’
Article 19 ICCPR; right to hold opinion.
19(1) everyone shall have the right to hold opinions without interference.
General Comment no 34 interprets this right in the following words.
This is a right to which the Covenant permits no exception or restriction.
Freedom of opinion extends to the right to change an opinion whenever and for
whatever reason a person so freely chooses. No person may be subject to the
impairment of any rights under the Covenant on the basis of his or her actual, perceived
or supposed opinions.
All forms of opinion are protected, including opinions of a political, scientific,

historic, moral or religious nature. It is incompatible with paragraph 1 to criminalize the
holding of an opinion. The harassment, intimidation or stigmatization of a person,
including arrest detention, trial or imprisonment for reasons of the opinions they
may hold, constitutes a violation of article 19, paragraph 1
Right to freedom of expression. Article 19(2) ICCPR
Everyone shall have the right to freedom of expression; this right shall include freedom to
seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally,
in writing or in print, in the form of art, or through any other media of his choice
General Comment No 34 obligates states parties to guarantee the right to freedom of expression,
including the right to seek, receive and impart information and ideas of all kinds regardless of
frontiers.
It goes ahead to define what the right entails.
This right includes the expression and receipt of communications of every form of idea
and opinion capable of transmission to others, subject to the provisions in article 19,
paragraph 3, and article 20.12 It includes political discourse,13 commentary on one’s
own14 and on public affairs,15 canvassing,16 discussion of human rights,17
journalism,18 cultural and artistic expression,19 teaching,20 and religious discourse.21 It
may also include commercial advertising. The scope of paragraph 2 embraces even
expression that may be regarded as deeply offensive, 22 although such expression may be
restricted in accordance with the provisions of article 19, paragraph 3 and article 20.
Paragraph 2 protects all forms of expression and the means of their dissemination.
Such forms include spoken, written and sign language and such non-verbal expression as
images and objects of art.23 Means of expression include books, newspapers,24
pamphlets,25 posters, banners,26 dress and legal submissions. 27 They include all forms
of audio-visual as well as electronic and internet-based modes of expression.
The CRC and CMW set out freedom of expression in Article 13. In addition, CRC stipulates that
states have to assure that a child who is capable of forming his or her own views can express
those views freely and that these views be taken into account in accordance with the age and
maturity of the child (Article 12). The regional conventions also contain provisions regarding the
freedom of expression: Article 10 ECHR, Article 13 ACHR, and Article 9 ACHPR.
The Inter-American Court of Human Rights elaborates on the meaning of the freedom of
expression in its Advisory Opinion No. 5 Compulsory Membership in an Association
Prescribed by Law for the Practice of Journalism. In this Advisory Opinion, the Inter-
American Court emphasized the importance of the right to freedom of expression and stressed
that it includes the right of the public to receive information as well as the right of individuals to
disseminate it. Thus, the right to freedom of expression includes both an individual and a social
dimension and both dimensions must be guaranteed simultaneously.
That, when an individual’s freedom of expression is unlawfully restricted, it is not only the right
of that individual that is being violated, but also the right of all others to “ receive “ information
and ideas.
That Freedom of expression is a cornerstone upon which the very existence of a democratic
society rests. It is indispensable for the formation of public opinion. It is also a condition sine
qua non for the development of political parties, trade unions, scientific and cultural societies
and, in general, those who wish to influence the public. It represents, in short, the means that
enable the community, when exercising its options, to be sufficiently informed. Consequently, it
can be said that a society that is not well informed is not a society that is truly free.
The European Court of Human Rights has elaborated upon the scope of the freedom of
expression in many cases; in the case, Müller et al. v. Switzerland, the European Court confirms
that the right to freedom of expression also includes freedom of artistic expression.
Restrictions.
Article 19(3) ICCPR provides that the exercise of the rights provided for in paragraph 2 of this
article carries with it special duties and responsibilities. It may therefore be subject to certain
restrictions, but these shall only be such as are provided by law and are necessary:
a) For respect of the rights or reputations of others;
b) For the protection of national security or of public order (ordre public), or of public health or
morals
Other
Conventions add to these limitations: ‘for the moral protection of childhood and adolescence’
(Article 13(4) ACHR) and for the restriction of any propaganda for war and any advocacy of
national, racial, or religious hatred that constitute incitements to lawless violence or to any other
similar illegal action against any person or group of persons on any grounds including those of
race, color, religion, language, or national origin (Article 13(5) ACHR); for the prevention of
disclosure of information received in confidence; and for maintaining authority and impartiality
of the judiciary (Article 10 ECHR). In addition, Article 10 ECHR explicitly gives the state broad
discretion in licensing of the media. It states;
The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject
to such formalities, conditions, restrictions or penalties as are prescribed by law and are
necessary in a democratic society, in the interests of national security, territorial integrity or
public safety, for the prevention of disorder or crime, for the protection of health or morals, for
the protection of the reputation or rights of others, for preventing the disclosure of information
received in confidence, or for maintaining the authority and impartiality of the judiciary
The Human Rights Committee has dealt with many cases dealing with the right to freedom of
expression. It has, for instance, found that imprisoning a trade leader for supporting a strike and
condemning a government threat to send in troops violated his right to freedom of expression
(Sohn v. Republic of Korea), but convicting a person under a law that criminalized contesting the
existence of the Holocaust served a legitimate aim (Faurisson v. France). And that the right to
receive information was violated when a journalist was denied full access for no disclosed reason
to parliamentary press facilities in his country (Gauthier v. Canada).
Under the auspices of the European system, the European Court in (Handyside v. The United
Kingdom).has stated that freedom of expression:
Constitutes one of the essential foundations of such a (democratic) society, one of the
basic working conditions for its progress and for the development of every man.
[...] It is applicable not only to ‘information’ or ‘ideas’ that are favorably received or
regarded as inoffensive or as a matter of indifference, but also to those that offend, shock
or disturb the State or any sector of the population. Such are the demands of that
pluralism, tolerance and broadmindedness without which there is no ‘democratic society’
Public order and national security
In the following case, Kim v. Republic of Korea, the author was a founding member and chair of
a political organization. At its inaugural meeting, documents critical of the government and
appealing for national re-unification were distributed and read out. At the end of the meeting the
author was arrested. He was tried and sentenced to two years’ imprisonment under a national
security law which stated, ‘any person who assists an anti-state organization by praising or
encouraging the activities of the organization, shall be punished’ and ‘any person who produces
or distributed documents, drawings or any other materials to the benefit of an anti-state
organization shall be punished.
HELD’
Any restriction on the right to freedom of expression must cumulatively meet the following
conditions: it must be provided by law, it must address one of the aims set out in paragraph 3 (a)
and (b) of Article 19 and it must be necessary to achieve a legitimate purpose. Significantly, the
restriction was provided by Korean law. The question for the Committee was whether the
restriction was necessary for the protection of national security. The Committee found that the
state party had failed to explain how the dissemination of the views of the author created a risk
to national security or what the nature or extent of such a risk could be. There was no indication
that the courts had considered whether the views of the author had had any additional effect
which might threaten public security.
The Committee considers therefore that the restriction of the author’s right to freedom of
expression was not compatible with the requirements of article 19, paragraph 3, of the Covenant.
While not providing for derogation clauses, the African Charter contains a number of articles
with provisions that limit the reach of these rights, and which have been referred to as ‘claw back
clauses’. Article 9(2) ACHPR provides an example of a so-called ‘claw back clause’: ‘every
individual shall have the right to express and disseminate his opinions within the law’. The term
‘within the law’ was by many experts interpreted to mean that no domestic legal provision
limiting the right in question could be challenged under the African Charter. The Commission
has rectified this interpretation in its decisions, finding that the term ‘within the law’ is to be
understood to refer to international law, not domestic law. Thus, limitations under domestic law
must comply with international standards. This was confirmed by the African Commission in the
following case,
Media Rights Agenda et al. v. Nigeria. The military government passed a number of decrees
after the annulment of the 1993 Presidential elections. These proscribed particular publications
and retrospectively required the registration of all newspapers, including the payment of large
registration fees, before publication. Since the requirement was retrospective, all owners,
publishers and printers of newspapers immediately became liable to arrest. Other decrees ousted
the jurisdiction of the courts to challenge these decrees or anything done pursuant to them.
HELD;
According to Article 9.2 of the Charter dissemination of opinions may be restricted by law. This
does not mean that national law can set aside the right to express and disseminate one’s opinions;
this would make the protection of the right to express one’s opinions ineffective. To allow
national law to have precedence over the international law of the Charter would defeat the
purpose of the rights and freedoms enshrined in the Charter. International human rights standards
must always prevail over contradictory national law. Any limitation on the rights of the Charter
must be in conformity with the provisions of the Charter.
In the present case, the government has provided no evidence that seizure of the magazine was
for any other reason than simple criticism of the government. The article in question might have
caused some debate and criticism of the government, but there seems to have been no
information threatening to, for example, national security or public order in it. All of the
legislation criticized in the article was already known to members of the public information, as
laws must be, in order to be effective. Hence there was a violation of Article 9 of the charter.
Public morals
In Handy side v. The United Kingdom, the applicant, a publishing firm, published the‘Little Red
Book’ which was intended for, and made available to, school children of the age of twelve and
upwards. The book contained chapters on sex, including sub-sections on issues like
masturbation, contraceptives, menstruation, pornography, homosexuality and abortion and
addresses for help and advice on sexual matters.
The book had first been published in Denmark and subsequently, after translation and with
certain adaptations, in Belgium, Finland, the Federal Republic of Germany, Greece, Iceland,
Italy, the Netherlands, Norway, Sweden and Switzerland, as well as several non-European
countries. It was also circulated freely in Austria and Luxembourg. Following a number of
complaints, the applicant’s premises were searched and copies of the books were seized. The
applicant was found guilty on two counts of having in his possession obscene books for
publication for gain. He was fined and ordered to pay costs. The court also made a forfeiture
order for the destruction of the books by the police. The conviction was upheld on appeal, and
the books seized were then destroyed. A revised edition of the book was later published after
alterations were made to the text and certain offending lines were re-written or eliminated.
HELD’
It is not possible to find in the domestic law of the various Contracting States a uniform
European conception of morals. The view taken by their respective laws of the requirements of
morals varies from time to time and from place to place, especially in our era which is
characterized by a rapid and far-reaching evolution of opinions on the subject.
Freedom of expression constitutes one of the essential foundations of such a society, one of the
basic conditions for its progress and for the development of every man. Subject to paragraph 2 of
Article 10, it is applicable not only to “information” or “ideas” that are favorably received or
regarded as inoffensive or as a matter of indifference, but also to those that offend shock or
disturb the State or any sector of the population. Such are the demands of that pluralism,
tolerance and broadmindedness without which there is no “democratic society”.
This means, amongst other things, that every “formality”, “condition”, “restriction” or “penalty”
imposed in this sphere must be proportionate to the legitimate aim pursued.
From another standpoint, whoever exercises his freedom of expression undertakes “duties and
responsibilities” the scope of which depends on his situation and the technical means he uses.
The Court cannot overlook such a person’s “duties” and “responsibilities” when it enquires, as in
this case, whether “restrictions” or “penalties” were conducive to the “protection of morals”
which made them “necessary” in a “democratic society”
In these circumstances, despite the variety and the constant evolution in the United Kingdom of
views on ethics and education, the competent English judges were entitled, in the exercise of
their discretion, to think at the relevant time that the Schoolbook would have pernicious effects
on the morals of many of the children and adolescents who would read it. Hence the Court thus
reaches the conclusion that no breach of the requirements of Article 10 (art. 10) has been
established in the circumstances of the present case.
In Müller et al. v. Switzerland,
The applicants had put on an exhibition of contemporary art including three sexually explicit
paintings depicting fellatio, sodomy and sex with animals. The exhibition, which has been
widely advertised, was open to all and free of charge. A catalogue was printed for the preview,
containing photographic reproductions of the art work. On the official opening day, the principal
public prosecutor lodged proceedings demanding that the paintings be destroyed on the grounds
that they were obscene. Following criminal proceedings, the paintings were confiscated,
although not destroyed, and the applicants were fined. The paintings were later returned. The
European Court found in favor of Switzerland that the restriction on the freedom of expression of
the artist was justified under Article 10 in order to protect public morals.
Reputation or rights of others
The right to freedom of expression under most human rights treaties recognizes that the right to
freedom of expression of one person can clash with another’s person’s equally important rights.
The freedom of expression can therefore be limited in cases of defamation or with regard to the
abuse of power of the media.
In Faurisson v. France, the applicant was convicted for the offence of holocaust denial for
arguing that there had been no gas extermination chambers in Nazi death camps. He was
convicted under a law which criminalized contesting the existence of the category of crimes
against humanity (generally regarded as making up the ‘holocaust’) defined in the London
Charter of 1945. The Human Rights Committee found in favor of France that the restrictions
imposed on the applicant’s freedom of expression were necessary in order to protect the rights of
others.
It further held that;
Any restriction on the right to freedom of expression must cumulatively meet the following
conditions: it must be provided by law, it must address one of the aims set out in paragraph 3 (a)
and (b) of article 19, and must be necessary to achieve a legitimate purpose.
Since the statements made by the author, read in their full context, were of a nature as to raise or
strengthen anti-semitic feelings, the restriction served the respect of the Jewish community to
live free from fear of an atmosphere of anti-semitism.
The restriction was also necessary to serve the struggle against racism since holocaust denial
was one of the principle contemporary vehicles for anti-Semitism. The Committee therefore
concludes that the restriction of the author’s freedom of expression was permissible and
necessary under article 19, paragraph 3 (a), of the Covenant.
Murphy v. Ireland, Ireland stopped a religious advertisement in order to ensure respect for the
religious beliefs of others. When deciding on the case, the European Court of Human Rights took
into consideration the margin of appreciation accorded to states in questions relating to morals
and ‘reputations of others’ and which medium was going to be used for advertisement. It thus
concluded that the State had demonstrated that there were “relevant and sufficient” reasons
justifying the interference with the applicant’s freedom of expression within the meaning of
Article 10 of the Convention.
In consequence, it concluded that there had been no violation of the Convention.
Print regulations
States regulate the print media and printed works in a variety of ways, including some widely
understood to be illegitimate, such as prior censorship and licensing of newspapers, and others
which are generally accepted, such as through a technical registration system.
In the following case, Laptsevich v. Belarus, Mr Laptsevitch was handing out 200 leaflets he had
printed devoted to the anniversary of the proclamation of the independence of the People’s
Republic of Belarus. While distributing the leaflets in the Mogilev city centre, he was
approached by officers of the local Internal Affairs Department who confiscated the remaining
37 leaflets. He was then charged with the offence of disseminating a publication that was not
registered and therefore did not bear required publication data such as an index number. He was
fined 390,000 roubles by the Administrative Commission; appeals to the Regional Court and
Supreme Court were dismissed..
The Human Rights Committee held;
In the absence of any explanation justifying the registration requirements and the measures
taken, it is the view of the Committee that these cannot be deemed necessary for the protection of
public order ( ordre public) or for respect of the rights or reputations of others. The Committee
therefore finds that article 19, paragraph 2, has been violated in the present case.
In some instances, both the press and the state will argue for the interests of society in order to
justify their actions. Such was the issue which faced the Court in the case of the Sunday Times v.
The United Kingdom (Application No. 6538/ 74, Judgment of 26 April 1979). In this case, the
applicants had prepared a news article for publication outlining the scientific research and testing
procedures followed by a pharmaceutical company prior to its marketing of the sedative
thalidomide. The government put an injunction on subsequent publication. The Court addressed
the Government’s argument that it had properly balanced two public interests, in freedom of
expression and in the fair administration of justice. The Court stated that:
There is general recognition of the fact that the courts cannot operate in a vacuum.
Whilst they are the forum for the settlement of disputes, this does not mean that there can
be no prior discussion of disputes elsewhere, be it in specialized journals, in the general
press or amongst the public at large. Furthermore, whilst the mass media must not
overstep the bounds imposed in the interests of the proper administration of justice, it is
incumbent on them to impart information and ideas concerning matters that come before
the courts just as in other areas of public interest. Not only do the media have the task of
imparting such information and ideas: the public also has a right to receive them.
The European Court also held that the public in general had a right to receive information about
the matter, even if the facts and issues formed the background to pending litigation. The Court
noted that, by bringing to light certain facts, the article might have served as a brake on
speculative and unenlightened discussion. The said injunctions and interference were not
necessary and was a violation of the right of freedom of expression.
The African Commission has interpreted the right of the press very broadly and has often found a
violation of the right to freedom of expression when states parties have restricted the freedom of
expression of journalists. In the following case, Constitutional Rights Project, Civil Liberties
Organisation and Media Rights Agenda v. Nigeria, the applicants claimed that Nigeria
confiscated and closed down newspapers without any justification. Moreover, the applicants
argued that the national decrees adopted by the Government in 1994 restricted and restrained the
right of Nigerians to receive information and to express and disseminate their opinion.
Held
The proscription of specific newspapers by name and the sealing of their premises, without a
hearing at which they could defend themselves, or any accusation of wrongdoing, legal or
otherwise, amount to harassment of the press. Such actions not only have the effect of hindering
the directly affected persons in disseminating their opinions, but also poses an immediate risk
that journalists and Newspapers not yet affected by any of the Decree will subject themselves to
self-censorship in order to be allowed to carry on their work.
The government has provided no concrete evidence that the proscription was for any of the
above reasons given in Article 27(2). It has failed to prove that proscription of the newspapers
was for any reason but simple criticism of the government. If the newspapers had been guilty of
libel, for example, they could have individually been sued and called upon to defend themselves.
There was no substantive evidence presented that the newspapers were threatening national
security or public order. For the government to proscribe a particular publication, by name, is
thus disproportionate and not necessary. Laws made to apply specifically to one individual or
legal personality raise the serious danger of discrimination and lack of equal treatment before the
law, guaranteed by Article 3. The proscription of these publications cannot therefore be said to
be “within the law” and constitutes a violation of Article 9(2).
Godwin v United Kingdom.
A journalist was forced to reveal the sources of his information and an injunction was put. It was
held that if journalists are forced to reveal the sources of their information, their jobs as
watchdogs of society would be compromised. This wasn’t necessary; however, the injunction
was necessary.
RIGHT OFACCESS TO INFORMATION
General Comment No 34; states that
Article 19, paragraph 2 embraces a right of access to information held by public bodies. Such
information includes records held by a public body, so, what personal data is stored in automatic
data files, and for what purposes. Every individual should also be able to ascertain which public
authorities or private individuals or bodies control or may control his or her files.
General comment further provides for states obligations; To give effect to the right of access to
information, States parties should proactively put in the public domain Government information
of public interest. States parties should make every effort to ensure easy, prompt, effective and
practical access to such information. States parties should also enact the necessary procedures,
whereby one may gain access to information, such as by means of freedom of information
legislation.
In Law Office of Ghazi Suleiman v. Sudan (Communication No. 228/99, Sixteenth Activity
Report 2002-2003, Annex VII), the African Commission on Human and Peoples’ Rights based
its decision on a judgment by the Inter- American Court of Human Rights to elaborate on the
right to freedom of information:
The Inter American Court states that -: “when an individual’s freedom of expression is
unlawfully restricted, it is not only the right of that individual that is being violated, but
also the right of all others to “receive” information and ideas”. It is particularly grave
when information that others are being denied concerns the human rights protected in the
African Charter as did each instance in which Mr. Ghazi Suleiman was arrested.
In this case Mr. Ghazi Suleiman was invited by a group of human rights defenders to deliver a
public lecture in Sinnar, Blue Nile State. He alleges that he was prohibited from travelling to
Sinnar by security officials who threatened that if he made the trip he would be arrested.
In Open Door and Dublin Well Woman et al. v. Ireland, the European Court dealt with a
complaint concerning restrictions imposed on the two applicant companies as a result of a court
injunction prohibiting them from providing information to pregnant women on the location or
identity of, or method of communication with, abortion clinics in the United Kingdom.
Following proceedings brought against the applicant companies by the Attorney General at the
request of the Society for the Protection of Unborn Children, the Supreme Court found that such
non-directive counseling assisted in the destruction of the unborn, contrary to the constitutional
right to life of the unborn expressly guaranteed by the Constitution of Ireland. The Court
therefore issued an injunction restraining the applicant companies and their servants or agents
from assisting pregnant women within the jurisdiction to travel abroad to obtain abortions by
referral to a clinic. The injunction kept the applicants from making travel arrangements for
pregnant women, or informing them of the identity and location of, and the method of
communication with, a specified clinic or clinics or other locations where abortion procedures
were available.
Held;
When deciding on this case, the European Court took into consideration that the absolute nature
of the injunction imposed a ‘perpetual’ restraint on the provision of information to pregnant
women concerning abortion facilities abroad, regardless of age or state of health or their
reasons for seeking counseling on the termination of pregnancy, and stated that on this ground
alone the restriction appeared over-broad and disproportionate.
The Court concludes that the restraint imposed on the applicants from receiving or imparting
information was disproportionate to the aims pursued. Accordingly there has been a breach of
Article 10.
In the following case, Gauthier v. Canada, the applicant, a newspaper publisher, applied for
membership of the Canadian Parliamentary Press Gallery, an independent, voluntary association
which administers an accreditation system for access to parliamentary press facilities. A full pass
gives the holder access to facilities such as the press gallery where note-taking is permitted (as
opposed to the public gallery where it is not), receipt of a mail shot detailing news and events
inside Parliament, and permission to ask questions at press conferences. The applicant had
repeatedly been denied full access for no disclosed reason and had instead been granted only a
temporary pass, which entitled him to very limited use of these facilities.
Held
In the circumstances, the Committee is of the opinion that the accreditation system has not been
shown to be a necessary and proportionate restriction of rights within the meaning of article 19,
paragraph 3, of the Covenant, in order to ensure the effective operation of Parliament and the
safety of its members. The denial of access to the author to the press facilities of Parliament for
not being a member of the Canadian Press Gallery Association constitutes therefore a violation
of article 19 (2) of the Covenant.
PROTECTION OF SPECIAL INTEREST GROUPS.
REFUGEES
The problem of the world’s refugees and internally displaced persons is one of the most complex
issues facing the world community today. Much discussion is taking place, both at the United
Nations and in other fora, to improve protection for these particularly vulnerable groups.
Throughout history, people have fled their homes to escape persecution. In the aftermath of the
Second World War, the international community included the right to seek and enjoy asylum in
the 1948 Universal Declaration of Human Rights (Article 14). In 1950, the Office of the United
Nations High Commissioner for Refugees (UNHCR) was created to protect and assist refugees,
and, in 1951, the United Nations adopted the Convention Relating to the Status of Refugees
(1951 Convention), which is the cornerstone document of refugee protection. In addition, the
Protocol relating to the Status of Refugees (the 1967 Protocol) helped widen the definition of a
refugee, as it lifted the time and geographic limits found in the 1951 Convention.
WHO IS A REFUGEE?
The 1951 Refugee Convention, as amended by the 1967 Protocol, is the most important
international instrument protecting the rights of refugees. According to Article 1(a) of the
Convention, a refugee is:
Any person who 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, is unable or, owing to such fear, is
unwilling to return to it
The 1951 Convention specifies who is a refugee and what rights a refugee has. A refugee is; a
refugee is someone who:- Has a well-founded fear of persecution because of his/her
• Race
• Religion
• Nationality
• Membership in a particular group, or
• Political opinion;
- Is outside his/her country of origins; and
- Is unable or unwilling to avail him/herself of the protection of that country, or to return there,
for fear of persecution.
Refugee status is not permanent, when the persecution ends, a refugee is supposed to go back to
their country or be naturalized in the country they are in or go to another country.
Under Article 32. The Contracting States shall not expel a refugee lawfully in their territory
saves on grounds of national security or public order
In Article 33, the principle of non-refoulement is established. This principle forbids states to
expel or return a refugee, in any manner whatsoever, to the frontiers of territories where his/her
life or freedom would be threatened on account of race, religion, nationality, membership of a
particular social group or political opinion. The non-refoulement principle also encompasses
non-rejection at the border and can oblige a state to accept a person on its territory). It does not
oblige a state to grant the person asylum. The refugee may be expelled to another state where his
life and freedom will not be in danger, provided that state is prepared to admit him. Granting of
asylum may, however, be the result of non-refoulement, if no other state is prepared to admit the
refugee.
The 1951 Convention also includes ‘exclusion clauses’, which stem from the understanding that
the commission of some types of crimes justifies the exclusion of the perpetrators from the
benefits of refugee status. Under Article 1(f), refugee status under the 1951 Convention does not
apply to persons with regard to whom there are ‘serious reasons’ for considering they have
committed the following crimes: a) Crimes against peace, war crimes and crimes against
humanity; b) Serious non-political acts; and c) Acts contrary to the purposes and principles of the
United Nations. Thus, if one of the exclusion clauses applies, the claimant cannot be a
Convention refugee, whatever the other merits of his or her claim.
Article 33(2) provides for removal of refugee status for a refugee whom there are reasonable
grounds for regarding as a danger to the security of the country in which he is, or who, having
been convicted by a final judgment of a particularly serious crime, constitutes a danger to the
community of that country.
Often the recognition as refugee on the basis of Article 1(A) of the 1951 Convention will
coincide with the granting of asylum, according to national law. In general, asylum will not be
granted if the person concerned can enjoy protection elsewhere, or if there are compelling
reasons of public order not to admit her/him. Although the definition of refugee in Article 1(A)
of the 1951 Convention is formulated in a general way and can therefore be applied broadly, it is
limited by the fact that the well-founded fear of persecution must be based on the five grounds
mentioned in Article 1(A). However, there can be situations in which it would be inhumane to
return someone who does not fulfill the criteria for refugee status under the Refugee Convention.
This can be the result of general circumstances in the country of origin such as, for example, war
and hunger. It can also be related to individual circumstances such as the risk of torture or cruel,
inhuman or degrading treatment or punishment upon return. Granting of asylum may therefore
imply both admission as refugee on the basis of the 1951 Convention and permission to stay on
humanitarian grounds.
In addition to the 1951 Convention and the 1967 Protocol, two regional instruments have been
adopted expanding the definition found in the 1951 Convention, the OAU Convention
Governing the Specific Aspects of Refugee Problems in Africa (1969) and the Cartagena
Declaration on Refugees (1984).
The African Union Convention Governing the Specific Aspects of Refugee Problems in Africa, a
regional treaty adopted in 1969, added to the definition found in the 1951 Convention to include
a more objectively based consideration, namely:
Any person compelled to leave his/her country owing to external aggression, occupation,
foreign domination or event seriously disturbing public order in either part or whole of
his/her country of origin or nationality. (Article1(2)).
In 1984, a colloquium of Latin American Government representatives and jurists adopted the
Cartagena Declaration on Refugees. Like the AU Convention, the declaration adds a more
objectively based consideration to the 1951 Convention refugee definition to include:
Persons who flee their countries ‘because their lives, safety or freedom have been
threatened by generalized violence, foreign aggression, internal conflicts, massive
violation of human rights or other circumstances which have seriously disturbed public
order’. (Conclusion 3).
In addition to international and regional refugee conventions, international human rights law and
international humanitarian law play a significant role in guaranteeing international protection of
refugees. Article 7 ICCPR has been interpreted to prohibit return to situations where the person
might suffer torture or other cruel, inhuman and degrading treatment or punishment. Moreover,
nearly all of ICCPR’s provisions apply to non-citizens. Article 2 requires each state to ensure the
rights of every person within its territory; this includes refugees. Article 12(1and2) ICCPR
provides that Everyone lawfully within the territory of a State shall, within that territory, have
the right to liberty of movement and freedom to choose his residence. Everyone shall be free to
leave any country, including his own.
Article 12(4) ICCPR No one shall be arbitrarily deprived of the right to enter his own country.
Article 14 UDHR provides for the right to seek asylum. It says everyone has the right to seek and
enjoy other country’s asylum.
Article 3 CAT provides for protection from refoulement in situations where there is a substantial
risk of torture. The non-refoulement provision under CAT is absolute. Unlike the non-
refoulement provision of the 1951 Convention it is not linked to cases where a person fears harm
on account of race, religion, nationality, membership of a particular social group, or political
opinion and it does not provide for exceptions based on national security. This means that the
prohibition of return applies to all persons regardless of their past criminal conduct.
In Soering, the Court of the ECHR considered that the appellant's deportation to the US would
expose him to ill treatment beyond the threshold set by Article 3 of the ECHR , In Chahal, the
grand Chamber confirmed: Whenever substantial grounds have been shown for believing that an
individual would face a real risk of being subjected to treatment contrary to Article 3 if removed
to another State, the responsibility of the Contracting State to safeguard him or her against such
treatment is engaged in the event of expulsion.
In Othman v United Kingdom
The applicant, O, was born in Jordan and claimed that it would be a breach of his rights under
the ECHR if the UK deported him to Jordan. O resisted deportation under Articles 2, 3, 5 and 6
of the ECHR. O had been successful in gaining UK asylum, a year after arriving in the UK in
1993. The charges against O was received in absentia in Jordan and related to conspiracy to
cause explosions. O stated that the evidence connected with these convictions was extracted from
his co-defendants through torture; there was compelling evidence in support of this claim. It was
the UK Government's understanding that the ECHR excluded deporting terrorist suspects to
Jordan and a memorandum of understanding was negotiated with Jordan. Jordan assured the UK
that the treatment of deportees would be consistent with the Convention. The UK ordered the
deportation of O. The Appellant made an application to Special Immigration Appeals
Commission (SIAC) and the Court of Appeal who allowed O's appeal on the grounds of Article
6. However in a further appeal to the House of Lords, O's complaints were rejected and O made a
further appeal to the Strasbourg Court who concluded that there was no; Violation of Article 3 of
the ECHR. But it would violate Article 6 of the ECHR due to the real risk of the submission of
evidence, at the Applicant's re-trial, deduced by the torture of witnesses. The Court stressed how
strict the flagrant denial of justice test is and the burden is on the appellant to prove that by
deporting them from one state to another, it would result in a real risk of a denial of justice. The
Court went on to find that O had fulfilled his burden and deportation would result in a breach of
Article 6.
Extensive negotiations occurred between the UK and Jordanian government was Jordan declared
that any retrial that took place would be fair. These promises were deemed as insufficient by the
Special Immigration Appeals Commission and the Court of Appeal with the latter stating,
'Torture is universally abhorred is an evil. A state cannot compel a person to another state where
there is a real risk that he will be tried on the basis of evidence which there is a real possibility
may have been obtained by torture'. A treaty between the UK and Jordan was formed and
approved by legislature and the appellant agreed to be deported and later all charges against him
were dropped.
The significance of this case law is that it shows that even when an individual is considered a
risk to national security, the UK Government prefers to prosecute them as opposed to deportation
when there is a grave risk of ill treatment or torture.
Following Othman, in the case of El Haski v Belgium App No. 649/08, 25 September 2012 it
was determined by the ECtHR that deportation to Morocco would be a breach of Article 6. It was
suspected that the evidence used against the applicant had been attained by methods contrary to
Article 3. CRC applies to all children without discrimination, including child refugees and
asylum seekers. CRC specifically stipulates that every child seeking refugee status has a right to
protection and humanitarian assistance in the enjoyment of the rights set forth in the Convention,
as well as other conventions to which the state is party. Regional human rights conventions also
establish important safeguards for refugees. For example, Article 3 European Convention has
been interpreted by the European Court as prohibiting return of persons where there is a risk of
torture while Article 22(7) American Convention recognises ‘the right to seek and be granted
asylum’ and Article 22(8) prohibits refoulement and it is formulated in absolute terms. In
humanitarian law, Article 44 of the Fourth Geneva Convention Relative to the Protection of
Civilian Persons in Time of War deals specifically with refugees and displaced persons.
Moreover, the 1977 Additional Protocol provides that refugees and stateless persons are to be
protected under the provisions of Parts I and III of the Fourth Geneva Convention.
Supervision
UNHCR was created to provide international protection to refugees and to find durable solutions
to refugee problems. These functions include securing legal and practical protection to refugees
with and through governments, overseeing the mobilization and co-ordination of resources for
the well-being and survival of refugees and encouraging conditions in conflict zones that will
allow refugees to return voluntarily to their countries of origin. Both the 1951 Convention
(Article 35) and its 1967 Protocol (Article II) bestow upon UNHCR responsibility for
supervising implementation by states. The Convention and Protocol specifically establish the
obligation of states to provide UNHCR with information on the condition of refugees,
implementation of the Convention and Protocol and relevant national law. They do not, however,
provide for individual complaints or a state reporting procedure. In addition to providing
protection to refugees, UNHCR’s mandate has been expanded to include persons in refugee-like
situations, internally displaced persons, stateless persons, and returnees (refugees who have
returned to their own countries).
Given the general nature of UNHCR’s supervisory role, international human rights supervisory
mechanisms have also played a key role in protecting the rights of refugees and asylum seekers.
Both the Committee against Torture and the Human Rights Committee constitute crucial
safeguards for refugees and asylum seekers in danger of being returned to face torture or cruel,
inhuman or degrading treatment or punishment. Under its individual complaint procedure, the
Committee against Torture has developed a broad jurisprudence concerning the principle of non-
refoulement under Article 3 CAT and has provided important protection to refugees and asylum
seekers who risked being deported to countries where they would be exposed to torture.
The Committee on Economic, Social and Cultural Rights and the CEDAW, CRC and CERD
Committees have all played an important role in refugee protection by raising issues relating to
refugees when examining state reports. The European Court has found obligations of parties to
the European Convention relating to refugees and other non-nationals in a series of judgments on
private and family life, the right to an effective remedy and, perhaps most importantly, the
prohibition of return when there is a risk of torture. Similarly, at the Inter-American level, the
Court, and in particular, the Commission have played an important role in the protection of the
human rights of refugees and other non-nationals through examination of individual cases,
provisional and precautionary measures, and examination of refugee problems in the annual and
country reports of the Commission.
A particular social group.
Membership of a particular social group” is one of the five grounds enumerated in Article
1A(2) of the 1951 Convention relating to the Status of Refugees (“1951 Convention”). It is
with the least clarity and it is not defined by the 1951 Convention itself. The UNHCR issued
guidelines defining the phrase “particular social group.
A particular social group is a group of persons who share a common characteristic other
than their risk of being persecuted, or who are perceived as a group by society. The
characteristic will often be one which is innate, unchangeable, or which is otherwise
fundamental to identity, conscience or the exercise of one’s human rights
Fornah v. Secretary of State for the Home Department
Fornah was a woman from Sierra Leone. She claimed that she was entitled to recognition as a
refugee because she would be subjected to FGM if returned to Sierra Leone. Before coming to
the United Kingdom, the applicant had had to move from her home to shelter from the civil war
at her father’s village in Sierra Leone. At the age of 15 she overheard discussions of plans to
initiate her into womanhood by her undergoing FGM. She ran away and was captured by rebels
and made pregnant through repeated rape by the rebel leader. She escaped to the United
Kingdom with the help of her uncle. The Secretary of State for the Home Department accepted
the applicant was telling the truth and that she would be subjected to inhuman and degrading
treatment if she was returned to Sierra Leone, granting protection under Art 3 of the European
Convention on Human Rights. The applicant appealed on the basis that she should be recognised
as a refugee.
Held: Her appeal was allowed on the basis that women in Sierra Leone and, alternatively,
uninitiated women who had not been subjected to FGM in Sierra Leone, were particular social
groups.
Secretary of State for the Home Department v. K
The applicant was a woman from Iran whose husband disappeared. He had been arrested and
held without charge or trial by the authorities in Iran, but the reason for his detention was
unknown. A few weeks after his detention, the Revolutionary Guard searched her home. A
number of weeks later, she was raped at home by members of the Revolutionary Guard. A few
months later the Revolutionary Guard approached her 7 year old son’s new school to intimidate
her. She fled, fearing further persecution, and claimed asylum in the United Kingdom.
Held: The applicant was recognized as a refugee on the basis of her well-founded fear of
persecution as a member of her husband’s family
THE RIGHT TO SELF DETERMINATION.
This principle, which traces its origin to the concepts of nationality and democracy as evolved
primarily in Europe, first appeared in major form after the First World War. Despite President
Wilson’s efforts, it was not included in the League of Nations Covenant and it was clearly not
regarded as a legal principle. However, its influence can be detected in the various provisions for
minority protection and in the establishment of the mandates system based as it was upon the
sacred trust concept. In the ten years before the Second World War, there was relatively little
practice regarding self-determination in international law.
The Second World War stimulated further consideration of the idea and the principle was
included in the UN Charter. Article 1(2) noted as one of the organization’s purposes the
development of friendly relations among nations based upon respect for the principle of equal
rights and self-determination, and article 55 reiterated the phraseology. The UN adopted
Resolution 1514 (XV), the Declaration on the Granting of Independence to Colonial Countries
and Peoples, adopted in 1960 by eighty-nine votes to none, with nine abstentions, which stressed
that:
All peoples have the right to self-determination; by virtue of that right they freely
determine their political status and freely pursue their economic, social and cultural
development
The Resolution also stated that immediate steps are to be taken in trust and non-self governing
territories which had not yet attained independence to transfer all powers to the peoples of these
territories without any condition in accordance with their full expressed will and desire in order
to enable them enjoy complete independence and freedom.
Inadequacy of political, social, economic or educational preparedness was not to serve as a

protest for delaying independence, while attempts aimed at the partial or total disruption of the
national unity and territorial integrity of a country were deemed incompatible with the UN
Charter. The Colonial Declaration set the terms for the self-determination debate in its emphasis
upon the colonial context and its opposition to secession, and has been regarded by some as
constituting a binding interpretation of the Charter.277 The Declaration was reinforced by the
establishment of a Special Committee on Decolonization, which now deals with all dependent
territories and has proved extremely active, and by the fact that virtually all UN resolutions
dealing with self-determination expressly refer to it. Indeed, the International Court in the
Western Sahara case, ICJ Reports, 1975 has specifically referred to the Colonial Declaration as
an ‘important stage’ in the development of international law regarding non-self-governing
territories and as the ‘basis for the process of decolonization’.
All the colonial countries were supposed to file reports to the UN on the steps they were taking
to prepare for independence. Resolution 1541 was made to condemn Portuguese for refusing to
report on their countries. The resolution defined what constitutes a full measure of self-
government to colonies. Full measure of self-government must result in a decision where the
people concerned vote in free and fair elections. You could vote either to become; a) a sovereign
state; b) merge with an existing state or; c) merge into any other political status freely determined
by the people to constitute a mode of self determination by those people.
In 1966, the General Assembly adopted the International Covenants (ICCPR and ICESCR) on
Human Rights. Both these Covenants have an identical first article, declaring inter alia that all
peoples have the right to self-determination. By virtue of that right they freely determine their
political status’, while states parties to the instruments ‘shall promote the realization of the right
of self-determination and shall respect that right in conformity with the provisions of the Charter
of the United Nations’. The Covenants came into force in 1976 and thus constitute binding
provisions as between the parties, but in addition they also may be regarded as authoritative
interpretations of several human rights provisions in the Charter, including self-determination.
The 1970 Declaration on Principles of International Law Concerning Friendly Relations can be
regarded as constituting an authoritative interpretation of the seven Charter provisions it
expounds. The Declaration states inter alia that ‘by virtue of the principle of equal rights and
self-determination of peoples enshrined in the Charter of the United Nations, all people have the
right freely to determine . . . their political status’ while all states are under the duty to respect
this right in accordance with the Charter. The Declaration was specifically intended to act as an
elucidation of certain important Charter provisions and was indeed adopted without opposition
by the General Assembly. Regionally; article 20 of the African Charter 1981, states that all
peoples shall have an unquestionable and inalienable right to self-determination. They shall
freely determine their political status and pursue their economic and social development
according to the policy they have freely chosen.
Article 20(2) further states that colonized or oppressed peoples shall have the right to free
themselves from the bonds of domination by resorting to any means recognized by the
international community. Clause 3 notes that all peoples shall have the right to the assistance of
the States parties of the present Charter in their liberation struggle against foreign domination be
it political, economic or cultural. Judicial discussion of the principle of self-determination has
been relatively rare and centers on the Namibia and Western Sahara advisory opinions by the
International Court. In the former case, the Court emphasized that ‘the subsequent development
of international law in regard to non-self-governing territories as enshrined in the Charter of the
United Nations made the principle of self-determination applicable to all of them’. The Western
Sahara case reaffirmed this point. This case arose out of the decolonization of that territory,
controlled by Spain as the colonial power but subject to irredentist claims by Morocco and
Mauritania. The Court was asked for an opinion with regard to the legal ties between the territory
at that time and Morocco and the Mauritanian entity. The Court stressed that the request for an
opinion arose out of the consideration by the General Assembly of the decolonization of Western
Sahara and that the right of the people of the territory to self-determination constituted a basic
assumption of the questions put to the Court After analyzing the Charter provisions and
Assembly resolutions noted above, the Court concluded that the ties which had existed between
the claimants and the territory during the relevant period of the 1880s were not such as to affect
the application of resolution 1514 (XV), the Colonial Declaration, in the decolonization of the
territory and in particular the right to self-determination. It stressed that self-determination is a
fundamental principle in human rights. It’s a right held by the people rather than the government.
It is an individual and collective right to freely determine political status and to freely pursue
economic, social and cultural development.
The Court moved one step further in the East Timor (Portugal v. Australia) case when it
declared that ‘Portugal’s assertion that the right of peoples to self-determination, as it evolved
from the Charter and from United Nations practice, has an erga omnes character, is
irreproachable.’ The Court emphasized that the right of peoples to self-determination was ‘one of
the essential principles of contemporary international law’.
However, in that case, the Court, while noting that for both Portugal and Australia, East Timor
(under Indonesian military occupation since the invasion of 1975) constituted a non-self
governing territory and pointing out that the people of East Timor had the right to self-
determination, held that the absence of Indonesia from the litigation meant that the Court was
unable to exercise its jurisdiction. These propositions were all reaffirmed by the International
Court in the Construction of a Wall advisory opinion.
The issue of self-determination came before the Supreme Court of Canada in Reference Re
Secession of Quebec in 1998 in the form of three questions posed. The second question asked
whether there existed in international law a right to self-determination which would give Quebec
the right unilaterally to secede. The Court declared that the principle of self-determination ‘has
acquired a status beyond “convention” and is considered a general principle of international law’.
The Canadian Supreme Court noted in the Quebec case that ‘international law expects that the
right to self-determination will be exercised by peoples within the framework of existing
sovereign states and consistently with the maintenance of the territorial integrity of those states.
The principle utti possidentis
It is an international principle which talks about boundaries. Once a country voted to be a

sovereign state, it is entitled to its own boundaries as they existed at independence. The OAU
pledged itself to respect boundaries as they were at independence.
In the process of decolonization, there were several options
- Perfect decolonization; eg in Uganda, the colonial powers gave back power and left,
hence ICCPR requires us to pursue civil and political rights.
- Imperfect decolonization; this arose in te circumstances where colonial powers forcefully
combined formerly 2 different states into a unitary state; people who are hostile to each
other and completely different languages and cultures. Eg Sudan, Sri-Lanka(moslems and
non-moslems.) and these are often in conflict. Sri-Lanka agreed to live together as a trial
constitution and after they were going to decide if they wanted to continue together or
not. In 1951, the Snahala changed their constitution and excluded the Tamils from
government. Since then, they have been fighting for independence. For them, there is still
a measure of the right to self-determination as they will be living in the legacy of
colonization.
- Post UN-Charter annexations. After the UN, colonies aren’t allowed. All such situations
after the 1945 are illegal; we refer to them as annexations. Eg Tibet was occupied by
China in 1949 and this is recognized by the international community as illegal. In fact the
General Assembly has passed many resolutions condemning this.
International law respects the principle of sovereignty and territorial integrity.
In its advisory opinion on Kosovo, the ICJ stated that the unilateral declaration of independence
did not violate international law principles.

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INTERNATIONAL AND REGIONAL HUMAN RIGHTS

The concept of human rights

a. Natural school of thought;

Classification of human rights.

1. Classic and Social Rights

2. Civil, Political, Economic, Social and Cultural Rights

Economic and social rights

• Freedom of speech and expression;

Individual and collective rights

First, second and third generation rights

THE UNITED NATIONS

CONCEPTUALISATION OF HUMAN RIGHTS UNDER THE UN

THE UNITED NATIONS CHARTER

55, 56, 62, 68 and 76:

Article 2(4)..peace is directly related to human rights.

THE GENERAL ASSEMBLY (UNGA)

2. THE ECONOMIC AND SOCIAL COUNCIL (ECOSOC)

THE SECURITY COUNCIL

International Court of Justice (ICJ)

How the UN functions in terms of mechanisms and functions

UN Commission on Human Rights.

a) An international statute on human rights;

b) International declarations or conventions on civil liberties, the status of women, freedom of

c) The protection of minorities;

d) The prevention of discrimination on the grounds of race, sex, language or religion;

UN Human Rights Council

Review of the Council

Challenges and way forward.

i. Tendency of states to promote traditional values. Some members want cultural

Universal Periodic Review Working Group

Second cycle: HRC Resolution 16/21 brought the following changes:

Objectives and principles

HRC resolution 5/1 provides that the UPR should:

 Promote the universality, interdependence, indivisibility and interrelatedness of all

The objectives of the UN-UPR are:

 The improvement of the human rights situation on the ground

 To address human rights violations all over the world.

Has Uganda been reviewed?

The outcome of this review.

The Uganda Human Rights Watch Report.

Abuse of due process;

Detention without trial for offences for more time.

Czechoslovakia and Spain; to abolish Morocco, Ghana, Australia; operationalizing of the

Removing the Public Order and Management Bill

The forces established human rights posts.

j) Rationalization, adaptation, strengthening and streamlining of the United Nations machinery in

Specialized UN agencies and how they have promoted human rights.

To cater for rising emergencies the UN came up with specialized agencies.

UNICEF; United Nations Children’s Fund

INTERNATIONAL LABOUR ORGANISATION ILO

WORLD FOOD PROGRAMME. WFP

It has no enabling law to discharge its mandate in the Ugandan context.

WHO. WORLD HEALTH ORGANISATION.

Treaty based mechanisms.

• Inter-state complaint procedure

• Individual complaint procedure

• Inquiries and other procedures

THE REPORTING PROCEDURES UNDER THE ICESCR

The pre-sessional working group and the ‘list of issues’