HUMAN RIGHTS LAW

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 The Nature & Sources of Human
Rights
• What are Human Rights?
Human rights are the rights a person has
simply because he or she is a human
being. (Jack Donnely., ‘The concept of
Human Rights’ (1985)).
They are the basic entitlements or
minimum standards to be met for
individuals to live with dignity.
2
 Cont..
Human rights are rights of individuals in
society. Every human being has legitimate,
valid, justified claims upon his or her society…
to various ‘goods’ and ‘benefits’…These rights
are defined and listed in international
instruments and are deemed essential for
individual well being, dignity, and fulfillment,
and that they reflect a common sense of
justice, fairness, and decency. (Louis Henkin.,
‘The Age of Rights’.
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 Nature of Human Rights
Human rights are formally expressed and legally
guaranteed by international human rights
law. The law obligates states to ensure and
implement human rights and/or restrains states
from violating human rights. Their proponents
argue that human rights law does not establish
human rights, as human rights are inherent
entitlements that adhere to individuals even if
official laws or actors do not recognize or protect
them.
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 Cont…
Every individual (human being) is entitled to some basic
rights, without which we cannot live as human beings. All
these rights, which are essential for the maintenance of
human dignity, may be called as human rights. These
are the rights, which no one can be deprived without a
grave affront to justice. Therefore, human rights in an
older idiom used to be called as natural rights, now they
are called basic rights or fundamental rights. Not all the
rights held by human beings are ‘human rights’; for
example, contractual rights are held by humans but are
not ‘human rights’. Human rights are those held simply
by virtue of being a person. To have a human right one
need not be or do anything special, other than be born a
human being.

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Origin, Source and Development
of Human Rights
• Students to read various sources to know the
origin, source and development of HR
• The importance of human rights was realized
and visualized only after the establishment of
United Nations Organizations (UN) in 1945.
Since the emergence of UN on 24-10-1945 there
has been a tremendous growth and
development in the field of protection of human
rights. The Charter of the United Nations
(hereinafter “UN Charter” or the “Charter”) itself
contains several provisions relating to human
rights.

6
 Cont..
• Preamble to the UN Charter clearly states that
“… to reaffirm faith in fundamental human rights,
in the dignity and worth of human person, in the
equal rights of men and women and of nations
large and small”. The preamble continues to
state that “to establish conditions under which
justice and respect for the obligations arising
from treaties and other sources of international
law can be maintained, and to promote social
progress and better standards of life in larger
freedom”.
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 Cont..
• Generally, the Charter aims to maintain
international peace and security, by eradicating
wars, human suffering and to establish
international co-operation in solving international
problems of economic, social, cultural, or
humanitarian character, and promote and
encourage respect for human rights and
fundamental freedoms for all ( See, Article 1).
• Other relevant articles in the UN Charter are
13(1)(b), 55, 56, 62(2), 68.
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 The UN and the Universal
Declaration of HR
Although there was mentioning of human rights in the
Charter, the Charter did not include a bill of rights.
Instead, there were proposals for developing one
through the work of a special commission that would
give separate attention to the issue. That commission
was contemplated by the Charter under Article 68, which
provides that one of the UN organs, the Economic and
Social Council (ECOSOC), “shall set up commissions in
economic and social fields and for the promotion of
human rights”. In 1946, ECOSOC established the
Commission on Human Rights (UN Commission on
Human Rights), which has evolved over the decades to
become the world’s single most important human rights
organ.

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 Cont..
• The Commission first met in 1947. Its members (who
were representative members of the Commission)
including such distinguished founders of the human
rights movement Rene Cassin of France, Charles Malik
of the Lebanon, and Eleanor Roosevelt of the United
States.
• Some representatives urged that the draft bill of rights
under preparation should take the form of a declaration
—that is, a recommendation by the General Assembly to
Member States (see Article 13 of the Charter) that would
exert a moral and political influence on states rather than
constitute a legally binding instrument.

10
 Cont..
• Other representatives urged the Commission to prepare
a draft convention containing a bill of rights that would,
after adoption by the UN General Assembly (UN-GA), be
submitted to states for their ratification. The first path
was followed. In 1948, the UN Commission adopted a
draft Declaration, and by its strenuous efforts, in the
same year, the General Assembly adopted the Universal
Declaration of Human Rights 1948 (UDHR), with 48
states voting in favour and eight abstaining—Saudi
Arabia, South Africa, and the Soviet Union together with
four East European states and a Soviet republic

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 UDHR
• The UDHR seemed to cover most of
human rights fields, including economic
and social rights (see Articles 22-26) as
well as civil and political rights.
• The UDHR was meant to precede more
detailed and comprehensive provisions in
a single convention that would be
approved by the General Assembly and
submitted to states for ratification.

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 Cont..
• On 10 December 1948, the UN General
Assembly unanimously adopted the Declaration
as an enduring international commitment to
human rights. Recoiling from the massacres of
the Holocaust and desiring peace in the
aftermath of World War II, the UDHR
represented an unprecedented step as states
acknowledged the treatment of individuals was
not solely subject to state governance.

13
 Cont…
The years of drafting the UDHR was characterized by the struggles
of Cold War. The human rights movement was buffeted by
ideological conflict and the formal differences of approach in a
polarized world. One consequence was the decision in 1952 to
build on the UDHR by dividing its provisions between two treaties,
one on civil and political rights and the other on economic, social
and cultural rights. Thus the two principal treaties, namely, the
International Covenant on Civil and Political Rights (ICCPR) and the
International Covenant on Economic, Social and Cultural Rights
(ICESCR) made their ways to the Commission and finally to the
General Assembly, where they were approved in 1966. But still,
another decade passed before the two Covenants achieved the
number of ratifications necessary to enter into force in 1976.

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 International Bill of HR
• The International Bill of Human Rights is said to
be “a summary statement of the minimum social
and political guarantees internationally
recognized as necessary for a life of dignity in
the contemporary world.” (Donnelly 1998). It
consists of UDHR, the ICESCR, and the ICCPR
and its two Optional Protocols. The ICCPR has
two Optional Protocols. The First Optional
Protocol creates an individual complaints
mechanism. The Second Optional Protocol
abolishes the death penalty.
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 Cont..
• The Universal Declaration of Human Rights
(UDHR) is the primary UN document articulating
human rights standards and norms. At
inception, the declaration was intended to be a
nonbinding statement of objectives to be
followed by all states. However, now, many if
not all of its provisions are accepted as
declaratory of customary international law, i.e.
law that is binding on all states as it is derived
from the consistent conduct of states acting out
of the belief that the law requires them to act
that way (state practice and opinion juris).

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 Cont.
• The Declaration represents the global
consensus or “common standard” of
entitlements for all persons. It comprises a
broad range of rights that are drafted with
sufficient breadth to cover people of all cultures
and religions. It does not distinguish between or
elevate civil-political versus socio-economic
rights. Instead, the Declaration affirms the
equality and inalienability of all its codified rights
and freedoms.
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 Cont..
• ICCPR and ICESCR translate into legally
binding instruments the rights articulated
in the UDHR.
• The ICCPR and ICESCR were both
adopted in 1966 and entered into force in
1976. Approximately one-quarter of UN
Members are not party to the covenants
and accordingly are not bound by their
provisions.

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 Historical Sequence and
Typology of HR Instruments
The history of human rights instrument globally
can be put under a four-tiered normative
edifice as follows:
1. The UN Charter, although it relatively has little
to say about human rights, the UN Charter has
been accorded great significance. Through
interpretation and extrapolation, as well as
frequent invocation, the Charter has
constituted as a basic document through which
the human rights movement has been
anchored.
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 Cont..
2. The Universal Declaration of Human Rights
which is viewed by some as a further
elaboration of the brief references to human
rights in the Charter. It has remained the single
most important cited human rights instrument.
3. The two principal covenants, which among the
universal treaties have broad coverage of
human rights topics. They contain more
detailed provisions of human rights

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 Cont..
4 A host of multilateral human rights treaties
(usually termed ‘conventions’, as well as
resolutions or declarations with a more limited or
focused subject than the comprehensive
International Bill of Rights.
This fourth tier consists of a network of treaties,
most but not all of which became effective after
the two Covenants. These include, the
Convention on the Prevention and Punishment
of the Crime of Genocide, effective 1951, the
International Convention on the Elimination of all
Forms of Discrimination against Women, 1979,

21
 Cont.
the Convention against Torture and other Cruel,
Inhuman or Degrading Treatment or Punishment, 1984,
the Convention on the Rights of the Child, 1989, and
Convention on the Rights of Persons with Disabilities,
2006, and many other relevant and important treaties
have been concluded under the auspices of the ILO,
UNESCO, and other UN specialized agencies, as well as
various regional organizations e.g. The European
Convention on Human Rights, 1950, American
Convention on Human Rights, 1969 and the African
Charter on Human and People’s Rights 1981.

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TYPES OF HUMAN RIGHTS
Human Rights are indivisible and
interdependent, and therefore precisely there
cannot be different kinds of human rights. All
Human Rights are equal in importance and
are inherent in all human beings. The UDHR
did not categorize the different kinds of
human rights. It simply enumerated them in
different articles. However, the subsequent
developments made in the human rights field
under the UN system make it clear that
human rights are of basically of two kinds
namely:

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 Types of HR
1. Civil (individual rights)
life, liberty, and security of the person; privacy
and freedom of movement; ownership of
property; freedom of thought, conscience, and
religious belief and practice; prohibition of
slavery, torture, and cruel or degrading
punishment are examples of civil rights.
Civil rights or liberties are referred to as those
rights, which are related to the protection of the
right to life and personal liberty. They are
essential for person so that he may live a
dignified life.
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 Cont..
2. Political Rights
freedom of expression, assembly, and
association; the right to take part in
government; and periodic and meaningful
elections with universal and equal suffrage are
examples of political rights
Political rights may be referred to those rights,
which allow a person to participate in the
Government of a State.

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 Cont..
3. Rights related to Rule of Law
equal recognition before the law and equal
protection of the law; effective legal remedy for
violation of rights; impartial hearing and trial;
presumption of innocence; and prohibition of
arbitrary arrest are rights related to R.L. In
effect they are civil rights. The nature of civil
and political rights may be different but they
are interrelated and inter-woven.

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 Cont…
4. Economic and Social Rights
an adequate standard of living; free choice of
employment; protection against
unemployment; "just and favorable
remuneration"; the right to form and join trade
unions; "reasonable limitation of working
hours"; free elementary education; social
security; and the "highest attainable standard
of physical and mental health“ are all economic
and social rights
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 Cont…
Economic, Social and Cultural rights are related
to the guarantee of minimum necessities of life
to human beings. In the absence of those rights
the existence of human being is likely to be
endangered. Right to adequate food, clothing,
housing and adequate standard of living and
freedom from hunger, right to work, right to
social security, right to physical and mental
health and right to education are included in this
category of rights.
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 Cont…
• Economic, social and cultural rights are
based fundamentally on the concept of
social equality. Realization of these rights,
which is generally called the rights of
second generation, has been somewhat
slow in coming. They are regarded only as
general principles and not legally binding
specific rules. However, recently they have
begun to come of age and implemented.
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 Cont…
5. Collective Rights
In addition to the above rights there is another
kind of rights which may be enjoyed by
individual collectively such as right to self-
determination or the physical protection of the
group such as through prohibition of genocide.
Such rights are referred to as collective rights
which are sometimes called the third
generation of human rights. So, self-
determination and protection of minority
cultures are examples of rights in this
category.

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 3 Generations/Phases of HR
1. Enlightenment (17th-18th Century)
The first tier or "generation" consists of civil and political rights and
derives primarily from the seventeenth and eighteenth-century
political theories noted earlier which are associated with the English,
American, and French revolutions. Think "life, liberty, and the pursuit
of happiness." This approach favors limiting government by placing
restrictions on state action. The rights set forth in Articles 2-21 of the
Universal Declaration of Human Rights include: freedom from
discrimination; freedom from slavery; freedom from torture and from
cruel, inhuman, or degrading treatment; freedom from arbitrary
arrest and detention; the right to a fair and public trial; freedom of
thought, conscience, and religion; freedom of opinion and
expression; and the right to participate in government through free
elections fall under this phase.

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 Cont…
2. Socialist tradition (19th century)
The second generation of rights broadens the primarily
political focus of earlier views to include economic,
social, and cultural rights. This view originates primarily
in the socialist traditions of Marx and Lenin. According to
this view, rights are conceived more in positive rather
than negative terms, and thus encourage the
intervention of the state. Illustrative of these rights are
Articles 22-27 of the Universal Declaration of Human
Rights. They include the right to social security; the right
to work; the right to a standard of living adequate for the
health and well-being of self and family; and the right to
education.
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 Cont.
3 The third generation of "solidarity rights" (20th century)
These views are a product of the rise and decline of the nation-state
in the last half of the twentieth century. These rights have been
championed by the Third World and remain somewhat controversial
and debated. The specific rights include the right to political,
economic, social, and cultural self-determination; the right to
economic and social development; and the right to participate in and
benefit from "the common heritage of mankind.“
Environmental, cultural and developmental rights. These include the
rights to live in an environment that is clean and protected from
destruction, and rights to cultural, political and economic
development.

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 Characteristics of HR
• Human rights do not have to be bought, earned
or inherited; they belong to people simply
because they are human. Human rights are
inherent to each individual.
• Human rights are the same for all human beings
regardless of race, sex, religion, political or other
opinion, national or social origin. We are all born
free, and equal in dignity and rights— human
rights are universal.

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 Cont.
• Human rights cannot be taken away; no one has
the right to deprive another person of them for
any reason. People still have human rights even
when the laws of their countries do not
recognise them, or when they violate them - for
example, when slavery is practiced, slaves still
have rights even though these rights are being
violated. Human rights are inalienable.
• To live in dignity, all human beings are entitled
to freedom, security and decent standards of
living concurrently. Human rights are indivisible.
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 HR Principles
• Human rights are universal and inalienable; indivisible;
interdependent and interrelated.
• They are universal because everyone is born with and possesses
the same rights, regardless of where they live, their gender or race,
or their religious, cultural or ethnic background.
• Inalienable because people’s rights can never be taken away.
• Indivisible and interdependent because all rights – political, civil,
social, cultural and economic – are equal in importance and none
can be fully enjoyed without the others. They apply to all equally,
and all have the right to participate in decisions that affect their lives.
They are upheld by the rule of law and strengthened through
legitimate claims for duty-bearers to be accountable to international
standards.

36
 Cont.
• Universality and Inalienability: Human
rights are universal and inalienable. All
people everywhere in the world are
entitled to them. The universality of human
rights is encompassed in the words of
Article 1 of the Universal Declaration of
Human Rights: “All human beings are born
free and equal in dignity and rights.”

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 Cont.
• Indivisibility: Human rights are indivisible.
Whether they relate to civil, cultural, economic,
political or social issues, human rights are
inherent to the dignity of every human person.
Consequently, all human rights have equal
status, and cannot be positioned in a
hierarchical order. Denial of one right invariably
impedes enjoyment of other rights. Thus, the
right of everyone to an adequate standard of
living cannot be compromised at the expense of
other rights, such as the right to health or the
right to education.

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 Cont.
• Interdependence and Interrelatedness:
Human rights are interdependent and
interrelated. Each one contributes to the
realization of a person’s human dignity through
the satisfaction of his or her developmental,
physical, psychological and spiritual needs. The
fulfilment of one right often depends, wholly or in
part, upon the fulfilment of others. For instance,
fulfilment of the right to health may depend, in
certain circumstances, on fulfilment of the right
to development, to education or to information.
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 Cont..
• Equality and Non-discrimination: All
individuals are equal as human beings and by
virtue of the inherent dignity of each human
person. No one, therefore, should suffer
discrimination on the basis of race, colour,
ethnicity, gender, age, language, sexual
orientation, religion, political or other opinion,
national, social or geographical origin, disability,
property, birth or other status as established by
human rights standards.
40
 Cont…
• Participation and Inclusion: All people
have the right to participate in and access
information relating to the decision-making
processes that affect their lives and well-
being. Rights-based approaches require a
high degree of participation by
communities, civil society, minorities,
women, young people, indigenous peoples
and other identified groups.
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 Cont…
• Accountability and Rule of Law: States and other
duty-bearers are answerable for the observance of
human rights. In this regard, they have to comply with
the legal norms and standards enshrined in international
human rights instruments. Where they fail to do so,
aggrieved rights-holders are entitled to institute
proceedings for appropriate redress before a competent
court or other adjudicator in accordance with the rules
and procedures provided by law. Individuals, the media,
civil society and the international community play
important roles in holding governments accountable for
their obligation to uphold human rights.

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 WHO IS BOUND BY IHR LAW
• Unlike individual sovereign states, the community of
nations has no international legislature empowered to
enact laws that are directly binding on all countries. As
we have already noted, resolutions or declarations
adopted by the UN General Assembly are not binding.
Of course the declaration will have solemn effects as the
formal act of a deliberative body of global importance. Its
subject matter, like that of UDHR, may be of greatest
significance. But when approved or adopted it is
hortatory and aspirational, recommendatory rather than,
in a formal sense, binding.

43
 Cont…
However, decisions of the UN Security Council
adopted under Chapter VII Mandate are legally
binding on all UN Members, and a number of
such decisions in the past decades have been
directly relevant to human rights concerns.
Nevertheless, states establish legally binding
obligations among themselves in other ways,
principally by expressly consenting to an
obligation by ratifying a treaty or other
international agreement, or
44
 Cont..
or through wide acceptance of a rule as binding
customary international law. Thus, the covenants and
conventions bind the states parties in accordance with its
terms, subject to such formal matters as reservations
under the doctrine of pacta sunt servanda. So,
international law, including human rights law, is
applicable to states rather than to individuals.
Consequently, these international rules generally can
become a source of domestic legal obligations for a
state’s officials and of domestic rights for that nation’s
citizens only through their incorporation in some manner
into the state’s own internal law.

45
 Cont..
• In practice, therefore, the most important
sources of international human rights law
is international treaties, which directly
create international obligations for the
parties. But treaties are binding only when
they are in force and only with respect to
the nations that have expressly agreed to
become parties to them.

46
 Cont..
Thus, in determining whether a treaty is legally relevant to the
human situation in a particular country, it is important to ascertain
the following issues:
• Whether the treaty contains express language requiring the
parties to respect the particular human rights at issue;
• Whether the treaty is in force, since multilateral treaties typically
do not take effect until a certain number of nations have
deposited their ratifications (formal instruments indicating their
intent to be bound);
• Whether the nation involved has in fact ratified the treaty, since
signature alone may not legally bind a nation to the obligations of
a multilateral treaty; and
• Whether the nation in question has filed any reservation that
expressly modifies its treaty obligations.

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 State Obligation
Human rights instruments have been
jointly drafted by the world community, and
the associated obligations have been
voluntarily undertaken by each State Party
as a result of signing particular treaties.
States are thus bound by their own
consent to a set of obligations concerning
their treatment of individuals, without
discrimination, within their jurisdiction.
48
 Cont..
The precise obligations of states vary from
treaty to treaty but in general, States
Parties can be regarded as obliged to
‘respect’, ‘protect’ and ‘fulfil’ the rights
contained within the treaty. The latter
includes the obligations to facilitate,
promote and provide those rights.

49
 Cont…
• Respect
States are obliged to ensure that human
rights are fully respected in the context of
state policies, laws and actions. This
obligation requires states to ensure that
none of its ministries or public servants
violate or impede enjoyment of human
rights by their policies or actions.

50
 Cont…
• Protect
States are obliged to ensure that enjoyment, by
everyone without discrimination, of all their human rights
is protected from abuse by third parties – ie from the
actions of individuals and groups at all levels of society,
including corporations, institutions and public and private
bodies. This protection should be through the
introduction of laws to protect human rights, and the
provision of affordable and accessible redress
procedures in the event of abuse of the rights.

51
 Cont…
• Fulfil
States are obliged to take the necessary steps
to ensure the realisation of human rights in
practice through the adoption of legislative and
other measures, such as the provision of
education and other public services and policies
designed to ensure access for everyone to basic
needs. The obligation to fulfil includes the
obligations to facilitate, promote and provide. In
the context of economic, social and cultural
rights, states are obliged to take all measures to
achieve the progressive realisation of the rights.

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 Cont…
In practice, human rights laws require states to:
• Incorporate into national law the rights enshrined in international human
rights instruments
• Undertake a review of national law, policies and actions to ensure that they
adequately protect and respect the equal rights of everyone and protect
against discrimination in enjoyment of rights
• Analyse the realisation of the rights within all sectors of the community (best
achieved in partnership with representatives of civil society including people
living in poverty and social disadvantage) in order to identify any groups not
adequately enjoying their rights
• Develop policies and programmes in line with international human rights law
and the introduction of all appropriate measures to ensure realisation of the
human rights by all people without discrimination; this may include providing
support for those unable to meet their own needs
• Promote the observance of human rights through education and training in
human rights and responsibilities.

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 Debate on Universality of HR
• Until to date almost half a century since UDHR was adopted, there
is still a debate whether or not human rights are universal. Critics
are still asking whether anything in our multicultural, diverse world
can be truly universal. Some do ask, isn’t human rights an
essentially Western concept and thus does not take into account
different cultural, economic and political conditions of other parts of
the world, particularly the South? Another question posed is Can
the values of the consumer society, e.g. civil and political rights, be
applied to societies that have nothing to consume? Isn’t talking
about universal rights rather like saying that the rich in the North and
the poor in the South have the same right to fly first-class and to
sleep under bridges? The fact is that there are serious objections to
the concept of universality of human rights.
• Students are advised to read various literature concerning this
debate and form their own views.

54
 Core IHR instruments
The seven core human rights treaties
• The International Covenant on Civil and Political Rights, adopted in
1966 and entered into force 23 March 1976
• The International Covenant on Economic, Social and Cultural Rights,
adopted in 1966, entered into force 3 January 1976
• The International Convention on the Elimination of All Forms of Racial
Discrimination, adopted in 1965, entered into force 4 January 4 1969
• The Convention on the Elimination of All Forms of Discrimination
Against Women, adopted in 1979, entered into force 3 September 1981
• The Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, adopted in 1984, entered into force
26 June 1987
• The Convention on the Rights of the Child, adopted in 1989, entered into
force 2 September 1990
• The Convention on the Rights of Persons with Disabilities, adopted by
UN General Assembly on 13 December 2006;opened for signature on 30
March 2007. Following ratification by the 20th party, it came into force on 3
May 2008.

55
 Monitoring the core IHR
Instruments
• Each of the seven core human rights treaties
has its own monitoring body (known collectively
as the treaty bodies), established to oversee
compliance by States Parties with their
obligations under that treaty. These bodies
comprise committees of independent experts
elected by UN Member States. They are created
in accordance with the provisions of the treaty
that they monitor. There are eight human rights
treaty bodies including
The Committee on Migrant Workers (CMW)

56
 Cont..
The Human Rights Committee (CCPR) monitors implementation of the
International Covenant on Civil and Political Rights (1966) and its optional
protocols;
The Committee on Economic, Social and Cultural Rights (CESCR) monitors
implementation of the International Covenant on Economic, Social and
Cultural Rights (1966);
The Committee on the Elimination of Racial Discrimination (CERD) monitors
implementation of the International Convention on the Elimination of All
Forms of Racial Discrimination (1965);
The
Committee on the Elimination of Discrimination Against Women (CEDAW)
monitors implementation of the Convention on the Elimination of All Forms
of Discrimination against Women (1979) and its optional protocol (1999);

57
 Cont..
The Committee Against Torture (CAT) monitors implementation of
the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment (1984);
The Committee on the Rights of the Child (CRC) monitors
implementation of the Convention on the Rights of the Child (1989)
and its optional protocols (2000); and
The Committee on Migrant Workers (CMW) monitors
implementation of the International Convention on the Protection of
the Rights of All Migrant Workers and Members of Their Families
(1990) which was signed on 18 Dec 1990 and entered into force 1
July 2003.
The Committee on the Right of Persons with Disabilities (CRPD)
monitors implementation of the International Convention on the
Rights of Persons with Disabilities (2006).

58
 Cont…
• Each treaty body receives secretariat support
from the Human Rights Treaties Branch of
OHCHR in Geneva. CEDAW, which was
suppported until 31 December 2007 by the
Division for the Advancement of Women (DAW),
meets once a year in New York at United
Nations Headquarters. Similarly, the
Human Rights Committee usually holds its
session in March/April in New York. The other
treaty bodies meet in Geneva, either at Palais
Wilson or Palais des Nations.
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 Main Functions of the Committees
The treaty bodies perform a number of functions
in accordance with the provisions of the treaties
that created them. These include:
• Consideration of State parties' reports
• Consideration of individual complaints or commu
nications

• They also publish general comments on the

treaties and organize discussions on related
themes.
60
 How this is done?
• Consideration of State parties' reports
When a country ratifies one of these treaties, it assumes
a legal obligation to implement the rights recognized in
that treaty. But signing up is only the first step, because
recognition of rights on paper is not sufficient to
guarantee that they will be enjoyed in practice. So the
country incurs an additional obligation to submit regular
reports to the monitoring committee set up under that
treaty on how the rights are being implemented. This
system of human rights monitoring is common to most of
the UN human rights treaties.

61
 Cont…
To meet their reporting obligation, States must report/
submit an initial report usually one year after joining (two
years in the case of the CRC) and then periodically in
accordance with the provisions of the treaty (usually
every four or five years). In addition to the government
report, the treaty bodies may receive information on a
country’s human rights situation from other sources,
including non-governmental organizations, UN agencies,
other intergovernmental organizations, academic
institutions and the press. In the light of all the
information available, the Committee examines the
report together with government representatives. Based
on this dialogue, the Committee publishes its concerns
and recommendations, referred to as “concluding
observations”.
62
 Cont…
• Consideration of individual complaints or
communications
In addition to the reporting procedure, some of the treaty
bodies may perform additional monitoring functions
through three other mechanisms: the inquiry procedure,
the examination of inter-state complaints and the
examination of individual complaints.
Four of the Committees (CCPR, CERD, CAT and
CEDAW) can, under certain conditions, receive petitions
from individuals who claim that their rights under the
treaties have been violated.

63
 Cont…
Complaining about human rights violations
The ability of individuals to complain about the violation
of their rights in an international arena brings real
meaning to the rights contained in the human rights
treaties.
There are three main procedures for bringing complaints
of violations of the provisions of the human rights treaties
before the human rights treaty bodies:
• individual communications;
• state-to-state complaints; and
• inquiries.
Note: not all committees have the right to consider such
complaints. See next slides.

64
 Cont…
• General Comments
The Committees also publish their interpretation
of the content of human rights provisions, known
as general comments on thematic issues or
methods of work.

65
 Individual Communications
Five of the human rights treaty bodies (CCPR, CERD,
CAT, CEDAW and CRPD) may, under particular
circumstances, consider individual complaints or
communications from individuals:
• The Human Rights Committee may consider individual
communications relating to States parties to the
First Optional Protocol to the International Covenant on
Civil and Political Rights
;
• The CEDAW may consider individual communications
relating to States parties to the
Optional Protocol to the Convention on the Elimination of
Discrimination Against Women
;
66
 Cont…
• The CAT may consider individual communications
relating to States parties who have made the necessary
declaration under
article 22 of the Convention Against Torture;
• The CERD may consider individual communications
relating to States parties who have made the necessary
declaration under
article 14 of the Convention on the Elimination of Racial
Discrimination
; and
• The CRPD may consider individual communications
relating to States parties to the
Optional Protocol to the Convention on the Rights of Per
sons with Disabilities
. 67
 Cont…
• The Convention on Migrant Workers also
contains provision for allowing individual
communications to be considered by the
CMW; these provisions will become
operative when 10 states parties have
made the necessary declaration under
article 77.

68
 Who can Complain?
• Any individual who claims that her or his rights have
under the covenant or convention have been violated by
a State party to that treaty may bring a communication
before the relevant committee, provided that the State
has recognized the competence of the committee to
receive such complaints. Complaints may also be
brought by third parties on behalf of individuals provided
they have given their written consent or where they are
incapable of giving such consent.
• For further information please visit:
[Link]
htm

69
 Inter-State Complaints
Several of the human rights treaties
contain provisions to allow for State
parties to complain to the relevant treaty
body about alleged violations of the treaty
by another State party.
Note: these procedures have never been
used.

70
 Cont…
• CAT and CMW: Article 21 CAT and article
74 CMW set out a procedure for the
relevant Committee itself to consider
complaints from one State party which
considers that another State party is not
giving effect to the provisions of the
Convention. This procedure applies only to
States parties who have made a
declaration accepting the competence of
the Committee in this regard.
71
 Cont…
• CERD and CCPR: Articles 11-13 ICERD and
articles 41-43 ICCPR set out a more elaborate
procedure for the resolution of disputes between
States parties over a State's fullfillment of its
obligations under the relevant
Convention/Covenant through the establishment
of an ad hoc Conciliation Commission. The
procedure normally applies to all States parties
to ICERD, but applies only to States parties to
the ICCPR which have made a declaration
accepting the competence of the Committee in
this regard.

72
 Resolution of inter-State disputes
concerning interpretation
• Resolution of inter-State disputes concerning
interpretation or application of a convention is as follows:
CEDAW, CAT and CMW: Article 29 CEDAW, article 30
CAT and article 92 CMW provide for disputes between
States parties concerning interpretation or application of
the Convention to be resolved in the first instance by
negotiation or, failing that, by arbitration. One of the
States involved may refer the dispute to the
International Court of Justice if the parties fail to agree
arbitration terms within six months. States parties may
exclude themselves from this procedure by making a
declaration at the time of ratification or accession, in
which case, in accordance with the principle of
reciprocity, they are barred from bringing cases against
other States parties.
73
 Inquiries
The Committee Against Torture and the
Committee on the Elimination of Discrimin
ation Against Women
may, on their own initiative, initiate
inquiries if they have received reliable
information containing well-founded
indications of serious or systematic
violations of the conventions in a State
party.
74
 Cont…
• Inquiries may only be undertaken with
respect to States parties who have
recognized the competence of the relevant
Committee in this regard. States parties to
CAT may opt out, at the time of ratification
or accession, by making a declaration
under article 28; States parties to the
CEDAW Optional Protocol may similarly
exclude the competence of the Committee
by making a declaration under article 10.
75
 Inquiry procedure

• Article 20 of the
Convention Against Torture and articles 8
to 10 of the Optional Protocol to CEDAW
set out the following basic procedure for
the relevant Committee to undertake
urgent inquiries:

76
 Cont…
1. The procedure may be initiated if the Committee
receives reliable information indicating that the
rights contained in the Convention are being
systematically violated by the State party. In the
case of CAT, the information should contain
well-founded indications that torture is being
systematically practised in the territory of the
State party; in the case of CEDAW, the
information should indicate grave or systematic
violations of the rights set forth in the
Convention by a State party.
77
 Cont…
2. The first step requires the Committee to
invite the State party to co-operate in the
examination of the information by
submitting observations.

78
 Cont…
3. The Committee may, on the basis of the
State party's observations and other
relevant information available to it, decide
to designate one or more of its members
to make a confidential inquiry and report to
the Committee urgently. The CEDAW
procedure specifically authorizes a visit to
the territory of the State concerned, where
warranted and with the State's consent.
79
 Cont..
4. The findings of the member(s) are then
examined by the Committee and transmitted to
the State party together with any appropriate
comments or suggestions/recommendations.
5. The CEDAW procedure sets a six-month
deadline for the State party to respond with its
own observations on the Committee's findings,
comments and recommendations and, where
invited by the Committee, to inform it of the
measures taken in response to the inquiry.
80
 Cont..
6. The Committee may decide, in
consultation with the State party, to
include a summary account of the results
of the proceedings in its annual report.
• In both cases, the procedure is
confidential and the cooperation of the
State party must be sought throughout.

81
 Non-treaty body monitoring
There are also procedures for complaints
which fall outside of the treaty body
system - through the special procedures
and the
Human Rights Council Complaint Procedu
re
and through the
Commission on the Status of Women.

82
 Special Procedures
• "Special procedures" is the general name given
to the mechanisms established by the
Commission on Human Rights and assumed by
the Human Rights Council to address either
specific country situations or thematic issues in
all parts of the world. Currently, there are 31
thematic and 8 country mandates. The Office of
the High Commissioner for Human Rights
provides these mechanisms with personnel,
policy, research and logistical support for the
discharge of their mandates.
83
 Cont…
• Special procedures' mandates usually call on
mandate holders to examine, monitor, advise
and publicly report on human rights situations in
specific countries or territories, known as
country mandates, or on major phenomena of
human rights violations worldwide, known as
thematic mandates. Various activities are
undertaken by special procedures, including
responding to individual complaints, conducting
studies, providing advice on technical
cooperation at the country level, and engaging in
general promotional activities.

84
 Cont…
• Special procedures are either an individual (called
"Special Rapporteur", "Special Representative of the
Secretary-General" or "Independent Expert") or a
working group usually composed of five members (one
from each region) . The mandates of the special
procedures are established and defined by the resolution
creating them. Mandate-holders of the special
procedures serve in their personal capacity, and do not
receive salaries or any other financial compensation for
their work. The independent status of the mandate-
holders is crucial in order to be able to fulfill their
functions in all impartiality.

85
 Cont…
• Most Special Procedures receive
information on specific allegations of
human rights violations and send urgent
appeals or letters of allegation to
governments asking for clarification. In
2008, a total of 911 communications were
sent to Governments in 118 countries.
66% of these were joint communications
of two or more mandate holders.
86
 Cont..
• Mandate holders also carry out country visits to
investigate the situation of human rights at the national
level. They typically send a letter to the Government
requesting to visit the country, and, if the Government
agrees, an invitation to visit is extended. Some countries
have issued "standing invitations", which means that
they are, in principle, prepared to receive a visit from any
special procedures mandate holder. As of 30 June 2010,
72 States had extended standing invitations to the
special procedures. After their visits, special procedures'
mandate-holders issue a mission report containing their
findings and recommendations.

87
 Human Rights Council Complaint
Procedure
On 15 March 2006, the General Assembly adopted
resolution A/RES/60/251 to establish the Human Rights
Council and abolish Human Rights Commission which
was established in 1946.
On 18 June 2007, the Human Rights Council adopted
the President text entitled "UN Human Rights Council:
Institution Building" (resolution 5/1) by which a new
Complaint Procedure is being established to address
consistent patterns of gross and reliably attested
violations of all human rights and all fundamental
freedoms occurring in any part of the world and under
any circumstances.

88
 Cont…
• The new Complaint Procedure is established in
compliance with the mandate entrusted to the Human
Rights Council by General Assembly resolution 60/251
of 15 March 2006, in which the Council was requested to
review and, where necessary, improve and rationalize,
within one year after the holding of its first session, all
mandates, mechanisms, functions and responsibilities of
the former Commission on Human Rights, including the
1503 procedure, in order to maintain a system of special
procedures, expert advice and a complaint procedure.

89
 Cont…
• Accordingly, ECOSOC resolution 1503
(XLVIII) of 27 May 1970 as revised by
resolution 2000/3 of 19 June 2000, served
as a working basis for the establishment of
a new Complaint Procedure and was
improved where necessary to ensure that
the complaint procedure be impartial,
objective, efficient, victims-oriented and
conducted in a timely manner.
90
 Review of the 1503 procedure

• In compliance with the mandate entrusted to it

by the General Assembly, the Council decided
on 30 June 2006 to establish the Working Group
on the implementation of operative paragraph 6
of General Assembly resolution 60/251 (decision
1/104), to formulate concrete recommendations
on the issue of reviewing and when necessary,
improving and rationalizing all mandates,
mechanisms, functions and responsibilities of
the former Commission on Human Rights,
including the 1503 procedure.
91
 Cont..
How does the complaint procedure work?
Pursuant to Council resolution 5/1, the
Complaint Procedure is being established to
address consistent patterns of gross and reliably
attested violations of all human rights and all
fundamental freedoms occurring in any part of
the world and under any circumstances.
It retains its confidential nature, with a view to
enhancing cooperation with the State
concerned. The procedure, inter alia, is to be
victims-oriented and conducted in a timely
manner.
92
 Cont…
• Two distinct working groups - the Working
Group on Communications and the
Working Group on Situations (Confidential
1503 procedure) - are established with the
mandate to examine the communications
and to bring to the attention of the Council
consistent patterns of gross and reliably
attested violations of human rights and
fundamental freedoms.
93
 Cont…
• Manifestly ill-founded and anonymous
communications are screened out by the
Chairperson of the Working Group on
Communications, together with the
Secretariat, based on the admissibility
criteria. Communications not rejected in
the initial screening are transmitted to the
State concerned to obtain its views on the
allegations of violations.
94
 Cont…
• The Working Group on Communications (WGC) is
designated by the Human Rights Council Advisory
Committee from among its members for a period of three
years (mandate renewable once). It consists of five
independent and highly qualified experts and is
geographically representative of the five regional groups.
The Working Group meets twice a year for a period of
five working days to assess the admissibility and the
merits of a communication, including whether the
communication alone or in combination with other
communications, appears to reveal a consistent pattern
of gross and reliably attested violations of human rights
and fundamental freedoms. All admissible
communications and recommendations thereon are
transmitted to the Working Group on Situations.
95
 Cont…
• The Working Group on Situations (WGS) comprises five members
appointed by the regional groups from among the States member of
the Council for the period of one year (mandate renewable once). It
meets twice a year for a period of five working days in order to
examine the communications transferred to it by the Working Group
on Communications, including the replies of States thereon, as well
as the situations which the Council is already seized of under the
complaint procedure. The Working Group on Situations, on the
basis of the information and recommendations provided by the
Working Group on Communications, presents the Council with a
report on consistent patterns of gross and reliably attested violations
of human rights and fundamental freedoms and makes
recommendations to the Council on the course of action to take.
• Subsequently, it is the turn of the Council to take a decision
concerning each situation thus brought to its attention.

96
 The criteria for a communication to be
accepted for examination?

A communication related to a violation of human rights

and fundamental freedoms is admissible, unless:
• It has manifestly political motivations and its object is
not consistent with the UN Charter, the Universal
Declaration of Human Rights and other applicable
instruments in the field of human rights law; or
• It does not contain a factual description of the alleged
violations, including the rights which are alleged to be
violated; or
• Its language is abusive. However, such communication
may be considered if it meets the other criteria for
admissibility after deletion of the abusive language; or

97
 Cont…
• It is not submitted by a person or a group of persons
claiming to be the victim of violations of human rights
and fundamental freedoms or by any person or group of
persons, including NGOs acting in good faith in
accordance with the principles of human rights, not
resorting to politically motivated stands contrary to the
provisions of the UN Charter and claiming to have direct
and reliable knowledge of those violations. Nonetheless,
reliably attested communications shall not be
inadmissible solely because the knowledge of the
individual author is second hand, provided they are
accompanied by clear evidence; or
• It is exclusively based on reports disseminated by mass
media; or

98
 Cont..
• It refers to a case that appears to reveal a consistent
pattern of gross and reliably attested violations of human
rights already being dealt with by a special procedure, a
treaty body or other United Nations or similar regional
complaints procedure in the field of human rights; or
• The domestic remedies have not been exhausted,
unless it appears that such remedies would be
ineffective or unreasonably prolonged.
• The National Human Rights Institutions (NHRIs), when
they are established and work under the guidelines of
the Principles Relating to Status of National Institutions
(the Paris Principles) including in regard to quasi-judicial
competence, can serve as effective means in addressing
individual human rights violations.

99
 Commission on the Status of Women
• The Commission on the Status of Women
(“CSW” or “the Commission”) is a functional
commission of the United Nations Economic and
Social Council (ECOSOC), dedicated exclusively
to gender equality and advancement of women.
It is the principal global policy-making body.
Every year, representatives of Member States
gather at United Nations Headquarters in New
York to evaluate progress on gender equality,
identify challenges, set global standards and
formulate concrete policies to promote gender
equality and advancement of women worldwide.

100
 Cont…
• The Commission was established by
ECOSOC resolution 11(II) of 21 June
1946 with the aim to prepare
recommendations and reports to the
Council on promoting women's rights in
political, economic, civil, social and
educational fields. The Commission also
makes recommendations to the Council on
urgent problems requiring immediate
attention in the field of women's rights.
101
 Cont…
• The Commission's mandate was expanded in 1987 by ECOSOC
resolution 1987/22 to include the functions of promoting the
objectives of equality, development and peace, monitoring the
implementation of measures for the advancement of women, and
reviewing and appraising progress made at the national,
subregional, regional and global levels. Following the 1995 Fourth
World Conference on Women, the General Assembly mandated the
Commission to integrate into its programme a follow-up process to
the Conference, regularly reviewing the critical areas of concern in
the Beijing Platform for Action and to develop its catalytic role in
mainstreaming a gender perspective in United Nations activities.
The Economic and Social Council (ECOSOC) again modified the
Commission's terms of reference in 1996, in its resolution 1996/6, to
include, inter alia, identifying emerging issues, trends and new
approaches to issues affecting equality between women and men.

102
 Cont…
• Forty-five Member States of the United Nations
serve as members of the Commission at any
one time. The Commission consists of one
representative from each of the 45 Member
States elected by the Council on the basis of
equitable geographical distribution: thirteen
members from Africa; eleven from Asia; nine
from Latin America and Caribbean; eight from
Western Europe and other States and four from
Eastern Europe. Members are elected for a
period of four years.
103
 Universal Periodic Review (UPR)
• The Universal Periodic Review (UPR) is a unique
process which involves a review of the human rights
records of all 192 UN Member States once every four
years. 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. The UPR also includes a sharing of best
human rights practices around the globe. Currently, no
other mechanism of this kind exists.

104
 Cont..
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 is designed to prompt, support,
and expand the promotion and protection of human rights on the
ground. To achieve this, the UPR involves assessing States’ human
rights records and addressing human rights violations wherever
they occur. The UPR also aims to provide technical assistance to
States and enhance their capacity to deal effectively with human
rights challenges and to share best practices in the field of human
rights among States and other stakeholders.
Ban Ki-moon, UN Secretary-General said that -The Universal
Periodic Review "has great potential to promote and protect human
rights in the darkest corners of the world.”

105
 Cont…
• 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 2011, will have reviewed
the human rights records of every country. The UPR is
one of the key elements of the new Council which
reminds States of their responsibility to fully respect and
implement all human rights and fundamental
freedoms. The ultimate aim of this new mechanism is to
improve the human rights situation in all countries and
address human rights violations wherever they occur.

106
 Cont…
Who conducts the review?
• The reviews are conducted by the UPR Working
Group which consists of the 47 members of the
Council; however any UN Member State can
take part in the discussion/dialogue with the
reviewed States. Each State review is assisted
by groups of three States, known as “troikas”,
who serve as rapporteurs. The selection of the
troikas for each State review is done through a
drawing of lots prior for each Working Group
session.
107
 UPR Sessions
• According to the Human Rights Council’s “institution-
building package”, the Universal Periodic Review
Working Group will hold three two-week sessions per
year. During each session 16 countries will be reviewed,
therefore 48 countries per year and 192 countries by
2011, or the entire UN membership over the course of
the first UPR cycle (2008-2011). On 21 September 2007,
the Human Rights Council adopted a calendar detailing
the order in which the 192 UN Member States will be
considered during the first four-year cycle. Each review
is facilitated by groups of three States, or “troikas”, who
act as rapporteurs.

108
 UPR documentation
In accordance with the Human Rights Council’s “institution-building
package”, the documents on which the reviews are based are:
• Information prepared by the State concerned, which can take the
form of a national report, and any other information considered
relevant by the State concerned, which could be presented either
orally or in writing.
• Information contained in the reports of treaty bodies, special
procedures, including observations and comments by the State
concerned, and other relevant official United Nations documents,
compiled in a report prepared by the OHCHR.
• Information provided by “other relevant stakeholders” to the
universal periodic review, which will be summarized by the OHCHR
in a document. Stakeholders include, inter alia, NGOs, NHRIs,
Human rights defenders, Academic institutions and Research
institutes, Regional organizations, as well as civil society
representatives.

109
 Summary

• What are the reviews based on?

• The documents on which the reviews are based
are: 1) information provided by the State under
review, which can take the form of a “national
report”; 2) information contained in the reports of
independent human rights experts and groups,
known as the Special Procedures, human rights
treaty bodies, and other UN entities; 3)
information from other stakeholders including
non-governmental organizations and national
human rights institutions.
110
How are the reviews conducted?

• Reviews take place through an interactive discussion

between the State under review and other UN Member
States. This takes place during a meeting of the UPR
Working Group. During this discussion any UN Member
State can pose questions, comments and/or make
recommendations to the States under review. The
troikas may group issues or questions to be shared with
the State under review to ensure that the interactive
dialogue takes place in a smooth and orderly
manner. The duration of the review will be three hours
for each country in the Working Group.

111
 NGO’s involvement
• NGOs can submit information which can be
added to the “other stakeholders” report which is
considered during the review. Information they
provide can be referred to by any of the States
taking part in the interactive discussion during
the review at the Working Group meeting. NGOs
can attend the UPR Working Group sessions
and can make statements at the regular session
of the Human Rights Council when the outcome
of the State reviews are considered. OHCHR
has released "Technical guidelines for the
submission of stakeholders”.

112
 What human rights obligations
are addressed?
• The UPR will assess the extent to which States
respect their human rights obligations set out in:
(1) the UN Charter; (2) the Universal Declaration
of Human Rights; (3) human rights instruments
to which the State is party (human rights treaties
ratified by the State concerned); (4) voluntary
pledges and commitments made by the State
(e.g. national human rights policies and/or
programmes implemented); and, (5) applicable
international humanitarian law.
113