INTERNATIONAL HUMAN

RIGHTS

Ancel Riego de Dios y Bonifacio

THE CONCEPT OF HUMAN
RIGHTS
 • The crux of international human rights law: to
afford legal protection of every human being on
the planet earth.
 • “All individuals, solely by virtue of being human
beings, have rights which no society or State
should deny”.
 • Unfortunately, however, there are radically
different definitions, and interpretations of
human rights, and different approaches.
Categorization of human rights

Human rights are generally divided into three main

categories:
(1)civil and political rights;
(2) economic, social and cultural rights; and
(3) group or peoples’ rights.
They are often confusingly expressed in terms of
“generations” of human rights: the first, the
second, and the third generation respectively.
Civil and political rights
• Civil and political rights (freedom of
expression, freedom of peaceful assembly,
freedom from torture, freedom from arbitrary
arrest and detention, right to a fair trial, etc.)
derive from the natural rights philosophy of John
Locke, Rousseau and others.
• They protect against encroachments of
government.
• These rights have traditionally been given
priority by Western States.
Economic, social and cultural rights
•Economic, social and cultural rights (e.g.,
right to work, right to education, right to access
to health care) attained recognition in the
twentieth century with the advent of socialism.
• They argued that achievement of economic and
social rights was a pre-condition for other rights.
• That is, until the economic and social rights were
realized a State was not in a position to provide
civil and political rights.
Group or peoples’ rights
• Group or peoples’ rights emerged as recently
as the 1970s and are supported by developing
countries.
• The focus is on collective as opposed to
individual rights.
• The right to development and the right to self determination are two main
examples.
• In the early 1970s, thanks to their numerical
superiority, the developing countries managed to
elaborate their own philosophy of human rights.
Universalism and Cultural
relativism
The question of the ‘universal’ or ‘relative’
character of the human rights has been a source
of debate from the beginning of the human rights
movement.
• The proponents of the “universalism” claim that
international human rights like rights to equal
protection by law, physical security, freedom of
speech, freedom of religion and freedom of
association are and must be the same
everywhere.
Advocates of “cultural relativism” claim that most
(or some) rights depend on cultural context, the
term ‘culture’ being used in a broad way to
include political and religious ideologies and
institutional structures.
• Hence notions of right (and wrong) necessarily
differ throughout the world because the cultures
in which they take root differ.
 On their face, human rights instruments are on
the ’universal’ side of this debate. The landmark
instrument is the Universal Declaration of
Human Rights (UDHR).
• The two Covenants (ICCPR, ICESCR) also
speak in universal terms: ‘everyone’ has the
right to liberty, ‘all persons’ are entitled to equal
protection, etc.
• To the relativists, these instruments are the
indicators of the so-called ‘cultural imperialism’
of the West.
• During the Cold War, such debates were mainly
between the Communist and the Western.
• The West charged the Communist world with
violating many basic rights of a civil and political
character. The Communist world charged the
West with violations of the more important
economic and social rights.
• Today the universal-relative debate takes place
primarily in a North-South (or West-East)
framework between developed and developing
countries.
The evolution of international human
rights law

The concept of the international protection of

human rights is revolutionary in nature given the
fact that the traditional doctrine of international
law had no place for it at all.
The turning point for this change of the paradigm
is the Charter of the United Nations, which is
usually referred to as the starting point for any
study of the protection of human rights.
 Human rights clauses of the Charter

• Preamble: reaffirmed their “faith in fundamental

human rights, in the dignity and worth of human
person, in the equal rights of men and women”.
• Article 1: the achievement of international
cooperation “in promoting and encouraging
respect for human rights and for fundamental
freedoms for all without distinction as to race,
sex, language, or religion”.
• Also Arts. 55 and 56 (All members pledge
themselves to take joint and separate action).
• Some argue that the human rights clauses of the
Charter do not impose any legal obligation on
member States with regard to their own
nationals.
 Human rights clauses of the Charter

• The better view, however, is that the use of the

word “pledge’ in Article 56 implies a legal
obligation, although the obligation is weak in
view of the fact that there is no enumeration in
the Charter of the fundamental human rights
which are to be observed by States.
 The Universal Declaration of Human
Rights
The General Assembly adopted of the Universal
Declaration of Human Rights on 10 December 1948.
• Two main categories of human rights, namely: civil and
political rights [Articles 3 to 21] and economic, social and
cultural rights [Articles 22 to 27].
• Many laymen imagine that States are under a legal
obligation to respect the rights listed in the UDHR. It is
not so.
• As it is not a treaty, the Declaration as such is not legally
binding.
• It is simply a list of human rights which member states
‘pledge’ themselves to promote under Articles 55 and 56
of the Charter.
UDHR [Cont.]
• In spite of its limitations, the Declaration is of
great importance in stimulating and promoting
the international protection of human rights.
• It has impact in shaping subsequent treaties on
human rights, and upon the content of the
constitutions of new States.
• It is possible that at least some part of the
Declaration, like the prohibition of torture, may
subsequently have become binding as a new
rule of customary international law.
International human rights treaties and their
ratification status

Convention …………….. State parties

• ICCPR 164

• ICESCR 160
• CEDAW 185
• Convention on the Rights of the Child 193
• Convention on Racial Non-Discrimination 173
• Convention against Torture 146
• Genocide Convention 140
The International Covenant on Civil and
Political Rights 1966 (ICCPR)
As UDHR is not legally binding, States strived for
adopting binding international conventions on human
rights.
• The International Covenant on Civil and Political Right
(ICCPR) and the International Covenant on Economic,
Social and Cultural Rights (ICESCR) were finally
adopted by the GA on 16 December 1966. Both came
into force in 1976.
• As of now, there are 164 State parties to the ICCPR and
160 States parties to the ICESCR.
• Both Covenants contain a common article (Article 1)
reaffirming the “right of self-determination”.
Obligations of States parties

Art. 2(1): “to respect and to ensure to all

individuals…the rights recognized in the present
Covenant.”
• Art. 2(2): “to undertake the necessary steps to
adopt such legislation or other measures as may
be necessary to give effect to the rights
recognised in the Covenant.
• Art. 2(3): “to ensure that any person whose
rights are violated has an effective remedy,
notwithstanding that the violation has been
committed by persons acting in an official
capacity.”
Art. 4: emergency threatening the existence
of the
state
1 . In time of public emergency which threatens the life of
the nation and the existence of which is officially
proclaimed, the States Parties to the present Covenant
may take measures derogating from their obligations
under the present Covenant to the extent strictly required
by the exigencies of the situation, provided that such
measures are not inconsistent with their other obligations
under international law and do not involve discrimination
solely on the ground of race, colour, sex, language,
religion or social origin.
2. No derogation from articles 6, 7, 8 (paragraphs I and 2),
11, 15, 16 and 18 may be made under this provision.
Human Rights Committee (HRC)
Art. 28
• The Human Rights Committee has 18 members.
• It has three main monitoring mechanisms:
(1) Compulsory reporting procedure whereby all State
parties are obliged to present reports (initial and period)
indicating compliance with the ICCPR;
(2) Optional inter-State complaints procedure; and
(3) Individual complaints procedure.
Optional inter-State complaints procedure
[Art. 41]

A contracting party may, on condition of reciprocity,

accept the right of the other contracting parties to bring a
claim to the HRC alleging a violation of the Covenant by
it.
• Negotiations between the two parties must have been
completed without success.
• If satisfied that local remedies have been exhausted, the
Committee shall make available its good offices.
• The Committee must, within twelve months, submit a
report, which is not legally binding
Complaints by victims of human rights
violations
First Optional Protocol, 1966
The most significant monitoring mechanism is
the individual complaints procedure under the
First Optional Protocol to the ICCPR, 1966.
There were 107 Parties to it.
• The victims of human rights violations, if they
have exhausted all available domestic remedies,
may submit a written communication to the
Committee for consideration.
• There is also a Second Optional Protocol
which deals with ‘abolition of death penalty’.
International Covenant on Economic, Social
and Cultural Rights 1966 (ICESCR)
The ICESCR provides for the right of self-determination
for all peoples, the right to work, the right to form trade
unions and to strike, the right to social security, the right
to an adequate standard of living, the right to health, the
right to education and the enjoyment of certain cultural
rights.
• Art. 2 (1): “each State Party undertakes to take steps…
to the maximum of its available resources, with a view to
achieving progressively the full realization of the rights
recognized in the present Covenant by all appropriate
means, including particularly the adoption of legislative
measures.”
ICCPR and ICESCR: compare and
constrast
(1) Obligation of state parties:
(a) The obligation under ICESCR is very
general and limited to ‘taking steps’ with a view
to ‘achieving progressively the full realization
of the rights’ whereas ICCPR imposes a more
stringent obligation on States ‘to respect and to
ensure’.
(b) The obligation under ICESCR is also
limited To the maximum of its available
resources.
(2) Favourable condition for developing countries:
A significant feature of the ICESCR is that
developing countries, with due regard to human
rights and their national economy, may
determine to what extent they would guarantee
the economic rights recognized in the Covenant
to non-nationals. [Art. 2(3)]
(3) Individual complaints procedure: There is an
Optional Protocol to the ICCPR establishing
individual complaint procedure while there is no
such procedure in ICESCR.
The Convention on the Elimination of All
Forms of Discrimination Against Women 1979
(CEDAW)
Adopted by the GA on 18 December 1979 and entered
into force on 3 September 1981.
• 185 States Parties.
• Malaysia acceded to CEDAW on 5 July 1995.
• CEDAW Art. 2: To embody the principle of equality of
men and women in their national constitutions or other
appropriate legislation.
• Art. 8 (2) of the Federal Constitution was amended (in
2001) to guarantee gender equality.
• The Convention establishes a Committee on the
Elimination of Discrimination against Women (CEDAW),
which consists of 23 independent experts as members,
to monitor its implementation
Reservations to CEDAW
• Out of 185 States Parties , 57 have currently
reservations to it.
• Most reservation are made on: Arts. 2, 5, 7, and 16.
• Art. 28: A reservation incompatible with the object and
purpose of the Convention shall not be permitted.
FUNDAMENTAL HUMAN RIGHTS

• Some of the civil and political rights, as

enshrined in the ICCPR, need to be
discussed further because they are of
fundamental importance.
Art. 6: The Right to life
1. Every human being has the inherent right to
life. This right shall be protected by law. No one
shall be arbitrarily deprived of his life.
2. In countries which have not abolished the death
penalty, sentence of death may be imposed
only for the most serious crimes in accordance
with the law in force at the time of the
commission of the crime (and not contrary to
the provisions of the present Covenant and to
the Convention on the Prevention and
Punishment of the Crime of Genocide).
Second Optional Protocol to the ICCPR,
aiming
at the abolition of the death penalty, 1989
[70 States parties]
No one within the jurisdiction of states
parties to the Second Optional Protocol
may be executed and States are required
to take all necessary measures to abolish
the death penalty within their jurisdiction.
Art. 7: Torture
No one shall be subjected to torture or to cruel, inhuman
or degrading treatment or punishment.
• In Ambrosini v Uruguay, immediately after his detention,
the accused was subjected to various forms of torture
such as (i) being forced to remain standing for 14 hours at
a time, (ii) electric shocks, and (iii) physical blows to the
body. The Committee considered that these facts
disclosed violation of Art. (7).
• The Committee also found violation of Art. 10(1) because
he was detained under conditions seriously detrimental to
his health; Art. 9(3) because he was not brought to trial
within a reasonable time; art. 9(4) because he was denied
any effective remedy to challenge his arrest and
detention; and Art. 10(1) because he was held
incommunicado for months and was denied the right to be
visited by any family member.
 Art. 9: Deprivation of liberty;
Freedom from arbitrary arrest or detention

Everyone has the right to liberty and security of person.

No one shall be subjected to arbitrary arrest or
detention….
2. Anyone who is arrested shall be informed, at the time
of arrest, of the reasons for his arrest and shall be
promptly informed of any charges against him.
3. Anyone arrested or detained on a criminal charge shall
be brought promptly before a judge or other officer
authorized by law to exercise judicial power and shall
be entitled to trial within a reasonable time or to
release….
4. Anyone who is deprived of his liberty by arrest or
detention shall be entitled to take proceedings before a
court, in order that that court may decide without delay
on the lawfulness of his detention and order his release
if the detention is not lawful.
Freedom from arbitrary arrest or
detention [Cont.]
The question of arbitrariness - Art. 9(1):
inappropriateness, injustice and lack of due process of
law.
• Bringing a detainee ‘promptly’ before a competent court -
Art. 9(3):
In Kennedy v Trinidad and Tobago, the accused was not
brought before a judge until 6 days after arrest. The
Human Rights Committee (HRC) stated that delays
should not exceed a few days. In the current case, the
Committee considered that the accused was not brought
‘promptly’ before a judge, in violation of Art. 9(3).
Art. 9(4) - Habeas Corpus: This paragraph
guarantees the right of every person deprived of
liberty by arrest or detention to take proceedings
before a court, in order to determine, without
delay, the lawfulness of the detention and order
the person’s release if the detention is not lawful.
• This falls squarely within the traditional common
law writ of habeas corpus.
• Holding a person incommunicado has been
seen as an effective bar against the ability to
challenge the validity of one’s arrest, and thus in
breach of Art. 9(4).[Muteba v Zaire]
Art. 10: The rights of detainees

1. All persons deprived of their liberty shall be

treated with humanity and with respect for the
inherent dignity of the human person.
- Allowing visits, in particular by family
members, is a measure that is required for
reasons of humanity.
- A lack of sanitation, light, ventilation and
bedding can be treated as a violation of Art.
10(1).
Art. 14: The right to a fair trial
1. …everyone shall be entitled to a fair and public hearing
by a competent, independent and impartial tribunal
established by law.
2. Everyone charged with a criminal offence shall have the
right to be presumed innocent until proved guilty.
3. …everyone shall be entitled to the following minimum
guarantees…:
(a) To be informed promptly and in detail … of the nature
and cause of the charge against him;
(b) To have adequate time and facilities for the
preparation of his defence and to communicate with
counsel of his own choosing;
(c) To be tried without undue delay;
(d) To be tried in his presence, and to defend himself in
person or through legal assistance of his own choosing.
Art. 18: Freedom of thought, conscience and
religion
. Everyone shall have the right to freedom of thought,
conscience and religion. This right shall include freedom
to have or to adopt a religion or belief of his choice, and
freedom, either individually or in community with others
and in public or private, to manifest his religion or belief
in worship, observance, practice and teaching.
2. No one shall be subject to coercion which would impair
his freedom to have or to adopt a religion or belief of his
choice.
3. Freedom to manifest one's religion or beliefs may be
subject only to such limitations as are prescribed by law
and are necessary to protect public safety, order,
health, or morals or the fundamental rights and
freedoms of others.
Art. 26: Equality and Non-discrimination
Equality of treatment and the prohibition of discrimination
is a pervasive theme of the ICCPR to which reference
can be found in Arts. 2(1), 3, 4(1), 14(1), 20, 23, 24, 25
and 26.
• HCR has identified Art. 26 as a autonomous right, i.e., a
general right of non-discrimination which exists
independently of other rights.
• Art. 26: All persons are equal before the law and are
entitled without any discrimination to the equal protection
of the law. In this respect, the law shall prohibit any
discrimination and guarantee to all persons equal and
effective protection against discrimination on any ground
such as race, colour, sex, language, religion, political or
other opinion, national or social origin, property, birth or
other status.
Convention on the Elimination of All Forms of
Racial Discrimination, 1965
[173 State parties; almost universal]
Preamble:
• Convinced that any doctrine of superiority based on
racial differentiation is scientifically false, morally
condemnable, socially unjust and dangerous, and that
there is no justification for racial discrimination, in theory
or in practice, anywhere,
• Reaffirming that discrimination between human beings
on the grounds of race, colour or ethnic origin is an
obstacle to friendly and peaceful relations among nations
and is capable of disturbing peace and security among
peoples and the harmony of persons living side by side
even within one and the same State,
Art. 1: Meaning of racial discrimination
1. In this Convention, the term "racial discrimination" shall mean any
distinction, exclusion, restriction or preference based on race, colour,
descent, or national or ethnic origin which has the purpose or effect
of nullifying or impairing the recognition, enjoyment or exercise, on
an equal footing, of human rights and fundamental freedoms in the
political, economic, social, cultural or any other field of public life.
2. This Convention shall not apply to distinctions, exclusions,
restrictions … made by a State Party … between citizens and noncitizens.
4. Special measures taken for the sole purpose of securing adequate
advancement of certain racial or ethnic groups or individuals
requiring such protection as may be necessary in order to ensure
such groups or individuals equal enjoyment or exercise of human
rights and fundamental freedoms shall not be deemed racial
discrimination, provided, however, that such measures do not, as a
consequence, lead to the maintenance of separate rights for different
racial groups and that they shall not be continued after the objectives
for which they were taken have been achieved.
ENFORCEMENT AT THE
UNIVERSAL LEVEL
The best means of ensuring respect for a right is
to back it up with legal guarantees to be
administered by a court of law.
• In the case of human rights – no international
human rights court.
• There are only “monitoring mechanisms”, which
are much weaker than international adjudication.
• Two principal monitoring mechanisms:
(i) those set up by the UN, and
(ii) those established by international treaties.
 Monitoring mechanisms established by
the United Nations
• Art. 13 of the Charter: the General Assembly can initiate
studies and make recommendations on human rights
issues.
• Art. 62: The ECOSOC can make recommendations on
human rights, draft conventions, convene international
conferences, and hear reports from various bodies.
• Under Art. 68, a Commission on Human Rights was
established by the ECOSOC in 1946 (now replaced by
Human Rights Council).
• It had no authority to deal with complaints on violations of
human rights. However, subsequently, it had been
entrusted by means of resolutions of the ECOSOC and
the GA with some monitoring and enforcement functions.
Powers of Commission on Human Rights
(a) ECOSOC resolution 1235 “to examine information
relevant to gross violations of human rights” and “to
study situations which reveal a consistent pattern of
violations of human rights”. This is public procedure.
May adopt resolutions deploring or condemning a
particular State for its breaches of human rights.
(b) ECOSOC Resolution 1503 (confidential procedure): the
communications from individuals and groups alleging
human rights violations are not made public. The final
outcome of the procedure is made public only when the
Commission decides to submit a ‘situation’ to the
ECOSOC.
(c ) The procedure of appointing country or thematic special
rapporteurs: The Commission entrusts either groups of
expert, or individual experts, with human rights situation
in a certain country.
Its value was limited. Politics played a role in choice and
treatment of particular cases.
• The Commission’s powers were restricted to persuasion,
public criticism and, in the most serious cases, attempts
at isolation of the offending state.
• There were no legally binding sanctions available.
Human Rights Council
• On 15 March 2006, the GA adopted Resolution
A60/251 to establish the Human Rights Council
to replace the highly politicized Commission on
Human Rights (as a subsidiary organ of the GA).
• The Council consists of 47 Member States,
which are elected directly secret ballot by the
GA; the membership is based on equitable
geographical distribution.
•PHILIPPINES is one of the founding members.
Monitoring mechanisms established by
treaties
International human rights treaties have their
own monitoring mechanisms for compliance.
E.g., for the ICCPR, the monitoring body is the
Human Rights Committee (HRC); for CEDAW –
the CEDAW Committee.
• Three general monitoring procedures:
(1) Period reports
(2) Inter-State complaints
(3) Complaints (communications) by individuals.
Effectiveness of the human rights monitoring
mechanism at the universal level

• Human rights monitoring bodies are not courts of law

and as such their views or findings are not binding on
States parties.
• There are neither sanctions nor legally binding
enforcement methods entrusted to these bodies.
• This is because they operate in an area where States
are not prepared to submit to international adjudication.
• Further, the area of the international protection of human
rights covers matters that are politically, socioeconomically and culturally
sensitive.
ENFORCEMENT AT THE REGIONAL
LEVEL

It is difficult to reach agreement on human rights

at the universal level on account of conflicting
ideologies and interests.
• Agreement is easier to reach at the regional
level, where States are more likely to have
common values and interests.
• In Europe, the European Convention for the
Protection of Human Rights and Fundamental
Freedoms was adopted in 1950.
• The convention creates the European Court of
Human Rights (ECHR).
European Court of Human Rights (ECHR)

• Under the individual complaint procedure of the

Convention, a national of any State party may
bring an action against his own government for
breaches of human rights.
• It is very much successful and has established a
considerable amount of jurisprudence.
• Non-compliance with judgments of the Court is a
rarity but in such a case the Committee of
Ministers of the Council of Europe can enforce it.
Other Regional human rights courts
The ECHR is the most sophisticated and practically
advanced system of the protection of human rights.
• There are other regional human rights treaties, which are
much less effective than the European Convention.
• In America, the American Convention on Human Rights
was adopted by the OAS in 1969. The Convention
establishes an American Court of Human Rights
(ACHR).
• In Africa, the OAU adopted the African Charter of Human
and Peoples’ Rights in 1981. It establishes the African
Commission on Human and Peoples’ Rights.
• Compared to their counterparts at the universal level,
regional human rights monitoring mechanisms are more
advanced. They are normally judicial bodies that can
make binding decisions.