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I. INTRODUCTION A. WHAT IS HUMAN RIGHTS Human rights are the basic universal freedoms and entitlements that apply to everyone. They are shared standards of dignity, justice and safety that all people should expect from states. Some human rights are absolute and can never be interfered with (e.g. freedom from torture). Other rights can be qualified in certain circumstances, though any qualification should be set out in law and be proportionate and justifiable (e.g. the right to family and private life). Human rights are rights inherent to all human beings, whatever our nationality, place of residence, sex, national or ethnic origin, colour, religion, language, or any other status. We are all equally entitled to our human rights without discrimination. These rights are all interrelated, interdependent and indivisible. Universal human rights are often expressed and guaranteed by law, in the forms of treaties, customary international law , general principles and other sources of international law. International human rights law lays down obligations of Governments to act in certain ways or to refrain from certain acts, in order to promote and protect human rights and fundamental freedoms of individuals or groups. What are humans? Characteristics of human rights are; is is Inherent, imposed against the state, inalienable, What is the diff between natural rights and human rights? They are just the same because natural rights is just a nomenclature of human rights. Human rights was formulated after world war 2 to satisfy differences under natural rights. To whom are these rights imposed? Against the government or imposed against the state. What are the essential elements of a valid waiver of right? (a) existence of a right; (b) the knowledge of the existence thereof; and, (c) an intention to relinquish such right. Can you think of another right? Civil rights What is the difference between human rights and civil rights? Human rights are generally thought of as the most fundamental rights. They include the right to life, education, protection from torture, free expression, and fair trial and are imposed against the state. While Civil rights, on the other hand, are those rights that one enjoys by virtue of citizenship in a particular nation or state or given by the state.

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What are the sources of international law which are also sources of human rights law? Primary sources: Treaties, customs, generally accepted principles of international law; Secondary sources: Judicial decisions and the writings of “the most highly qualified publicists”. These are found in the ICJ statute. When can you say that a practice is customary? Customary international law results from general and consistent practice of states followed by them from sense of legal obligation. Two elements: A. Objective Element (general practice) B. Subjective Element (opinio juris sive necessitates) What is opinio juris? Opinio juris may be deduced from the attitude of the Parties concerned and that of states to certain General Assembly Resolutions. Atty: Treaties are mostly codified customary international law

B. HUMAN RIGHTS AS ENTITLEMENTS You could think of rights as establishing a claim to something. There are negative rights (i.e. freedom from...) and positive rights (i.e. right to...). An entitlement would be what you would require to have that right fulfilled. For example, you have a right to free primary education (Article 13, International Convention on Economic, Social, and Cultural Rights). As a right, you therefore have a claim to free primary education. To meet that right, you would be entitled to a school system that includes teachers, buildings, learning materials, etc. and does not charge you directly for the service. You don't have a right to teachers, per se, but your right to free primary education means that you are entitled to the goods and services necessary to achieve that right. Rights can be claims to something, or claims to be free from something, whether they are "natural" or "positive" rights/claims, or created through a legislative framework. Entitlements are those things that must be provided to/witheld from a person in order to have those rights met.

C. WHAT ARE THE TWO TYPES OF ENTITLEMENTS 1. Positive Claim (positive duty) 2. Negative Claim (negative duty)

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Positive rights: rights to receive something. Entitlements. It includes: other civil and political rights such as police protection of person and property and the right to counsel, as well as economic, social and cultural rights such as food, housing, public education, employment, national security, military, health care, social security, internet access, and a minimum standard of living. In the "three generations" account of human rights, negative rights are often associated with the first generation of rights, while positive rights are associated with the second and third generations. Negative rights: rights not to have something done to you or not to be prevented from doing something. It includes: civil and political rights such as freedom of speech, life, private property, freedom from violent crime, freedom of religion, habeas corpus, a fair trial, and freedom from slavery. Example: involving two parties in a court of law: Adrian has a negative right to x against Clay if and only if Clay is prohibited from acting upon Adrian in some way regarding x. In contrast, Adrian has a positive right to x against Clay if and only if Clay is obliged to act upon Adrian in some way regarding x. A case in point, if Adrian has a negative right to life against Clay, then Clay is required to refrain from killing Adrian; while if Adrian has a positive right to life against Clay, then Clay is required to act as necessary to preserve the life of Adrian. What is the the importance in classifying positive and negative claim? Is it still relevant? In order for the government to know its action whether there is something to be done (positive claim) or not (negative claim). Is the right to internet access positive or negative claim? it is a Positive claim. States have a responsibility to ensure that Internet access is broadly available, and that states may not unreasonably restrict an individual's access to the Internet.

D. MONITORING HUMAN RIGHTS 1. TREATY BASED MECHANISM As to the quasi-judicial and strictly judicial procedures, these are only set in motion by a complaint (communication, petition) filed by an individual or, under some treaties, a group of individuals, or even States parties. Their specific aim is to remedy possible human rights violations in the particular case brought before the tribunals or committees with the ultimate aim, where need be, of inducing States to modify their law so as to bring it into conformity with their international legal obligations. Numerous changes in domestic law have Page 2| UNIVERSITY OF SAN JOSE RECOLETOS

now taken place in many countries as a result of international legal procedures, be they universal or regional. However, it is essential to stress that international procedures can never be considered to be a substitute for efficient legal procedures at the domestic level. Human rights are made a true reality at the domestic level by the domestic authorities, and, as emphasized in Chapter 1, the international complaints procedures are subsidiary to the available domestic systems for safeguarding the individual: they provide a remedy of last resort, when the internal mechanisms for ensuring an efficient protection of human rights standards have failed. What is monitoring? Observe and check the progress or quality of. Human rights monitoring is a unique activity that is separate from monitoring and evaluation, as well as from research. Human rights monitoring seeks to gather information about the human rights situation in a country or region over time through readily available methods, with the goal of engaging in advocacy to address human rights violations. It also involves a process of documenting human rights violations and practices so that the information can be categorized, verified, and used effectively. Human rights monitoring is sometimes called fact-finding. Fact-finding consists of Investigating a specific incident or allegation of human rights violations, collecting or finding a set of facts that proves or disproves that the incident occurred and how it occurred, and verifying allegations or rumors. Human rights monitoring should be based on principles of: Accuracy, confidentiality, Impartiality and Gender-sensitivity There are ten human rights treaty bodies that monitor implementation of the core international human rights treaties:  Human Rights Committee (CCPR)  Committee on Economic, Social and Cultural Rights (CESCR)  Committee on the Elimination of Racial Discrimination (CERD)  Committee on the Elimination of Discrimination against Women (CEDAW)  Committee against Torture (CAT)  Subcommittee on Prevention of Torture (SPT)  Committee on the Rights of the Child (CRC)  Committee on Migrant Workers (CMW)  Committee on the Rights of Persons with Disabilities (CRPD)  Committee on Enforced Disappearances (CED) The treaty bodies are created in accordance with the provisions of the treaty that they monitor. OHCHR supports the work of treaty bodies and assists them in

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harmonizing their working methods and reporting requirements through their secretariats. Discussion: What do you mean by treaty based? When the procedures and mechanisms are found in a treaty. Do all treaties provide for monitoring mechanism? No. Bec. Not all treaties have a committee for monitoring mechanism. So it will all depend whether the treaty has specifically provided for a committee for that. Hence, if not provided in the treaty, then the charter based mechanism shall be applied. *Memorize article 1 of the UN Charter* - this is like the Preamble. It’s not a source of right but a source of light. It only guides and there’s no binding effect. 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: 1. to maintain international peace and security; 2. to develop friendly relations among nations; 3. to co-operate in solving international problems and in 4. promoting respect for human rights; and to be a centre for harmonising the actions of nations. What are the 7 rights under the UN Charter? (The UN Charter refers to human rights in the Preamble and Articles 1, 8, 13, 55, 56, 62, 68 and 76). 1. 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’. 2. 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. 3. 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. 4. 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’. 5. Article 62 contains similar provisions in describing the responsibilities, functions and powers of the Economic and Social Council (ECOSOC). 6. Article 68 authorizes the ECOSOC to set up commissions ‘in economic and social fields and for the promotion of human rights’. 7. Article 76 contains human rights provisions in the description of the international trusteeship system.

A. STATE REPORTING According to article 40 of the Covenant, the States parties “undertake to submit reports on the measures they have adopted which give effect to the rights” recognized therein and “on the progress made in the enjoyment of those rights”, -first within one year of the entry into force of the Covenant for the States parties concerned, - and thereafter, whenever the Committee so requests, that is to say, every five years. The reports “shall indicate the factors and difficulties, if any, affecting the implementation of the ... Covenant”. In July 1999 the Committee adopted consolidated guidelines for the submission of the reports of the States parties - to developed careful guidelines aimed both at facilitating the task of the States parties and rendering the reports more efficient. The reporting procedures have the function of making regular and systematic inventories of progress made in the implementation of the treaty obligations, with the aim of creating a dialogue between the relevant international monitoring organ and the State party concerned for the purpose of assisting the latter in introducing the adjustments to domestic law and practice required by its international treaty obligations. These reports are examined and discussed in public and in the presence of representatives of the State party B. INDIVIDUAL COMMUNICATION (ART.1, OPTIONAL PROTOCOL) Under article 1 of the Optional Protocol to the International Covenant on Civil and Political Rights, a State Party thereto “recognizes the competence of the Committee to receive and consider communications from individuals subject to its jurisdiction who claim to be victims of a violation by that State Party of any of the rights set forth in the Covenant”. However, according to article 2 of the Optional Protocol, individuals claiming violations of their rights must first exhaust all remedies available to them at the domestic level; Further, the Committee shall consider inadmissible any communication which is anonymous, or which it considers to amount to an abuse of the right of submission of communications or to be incompatible with the provisions of the Covenant (Art. 3). If the communication raises a serious issue under the Covenant, the Committee; Article 4 1. Subject to the provisions of article 3, the Committee shall bring any communications submitted to it under the

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present Protocol to the attention of the State Party to the present Protocol alleged to be violating any provision of the Covenant. 2. Within six months, the receiving State shall submit to the Committee written explanations or statements clarifying the matter and the remedy, if any, that may have been taken by that State. Article 5 1. The Committee shall consider communications received under the present Protocol in the light of all written information made available to it by the individual and by the State Party concerned. 2. 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; (b) The individual has exhausted all available domestic remedies. This shall not be the rule where the application of the remedies is unreasonably prolonged. 3. The Committee shall hold closed meetings when examining communications under the present Protocol. 4. The Committee shall forward its views to the State Party concerned and to the individual.

C. THE IMPLEMENTATION OF FINDINGS OF UN HUMAN RIGHTS TREATY BODIES The reporting procedure can be seen as a ‘continuous cycle in which the consideration of a report in a public hearing before the Committee forms a high point, followed by the Committee’s concluding observations. Concluding observations are ‘a vehicle through which the preparation of reports is transformed into policy-making and implementation, and governments should take them seriously. As a first step, governments should publicize the concluding observations and disseminate them; ‘internally’ (that is, distribute copies of them within administration and to the legislature and judiciary, as well as arrange seminars and workshops) and to the general public (for instance, through NGOs and the electronic and print media). There will be no implementation of concluding observations unless government policy-makers and civil servants have knowledge of them. Moreover, knowledge of these observations will enable the media and civil society to better monitor their governments’ response to the Committees’ recommendations and to pressure their governments towards better compliance with the treaties. Page 4| UNIVERSITY OF SAN JOSE RECOLETOS

In fact, the treaty bodies usually recommend in their concluding observations that governments should disseminate widely both concluding observations and the report itself. Participation of civil society in the implementation and follow-up of concluding observations is crucial. There is a need for an NGO community that is knowledgeable of treaty processes, aware of the concluding observations, and ready to sensitise the public as to their contents and pressure the government towards compliance.Same considerations apply to the national media as well. Moreover, apart from pressuring the government towards compliance and monitoring its progress in this respect, NGOs should, where appropriate, collaborate with the government in the implementation of concluding observations—one important function of the reporting process being to generate dialogue between the government and civil society. Yet another way of improving government implementation of concluding observations is to focus on the composition of government delegations that participate in the consideration of country reports. In short, a high-level delegation consisting of representatives of relevant authorities (‘multidisciplinarity’) will provide the best possible starting point for the implementation process, in particular when combined with a Canadian style ‘post mortem’ session soon after the consideration of a report and both quick and wide dissemination of concluding observations. D. INTERSTATE COMPLAINT As noted in section 2.1, States parties to the Covenant may at any time declare under article 41 that they recognize “the competence of the Committee to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under the present Covenant”; In other words, the possibility of bringing inter-State communications is only valid as between States parties having made this kind of declaration. During the initial stage of the proceedings, 1. the communication is only brought to the attention of one State party by another, and 2. it is only if the matter is not settled to the satisfaction of both States parties within a period of six months that either State party has the right to bring the matter before the Committee itself (art. 41(1)(a) and (b)). The Committee has to follow a procedure prescribed in article 41(1)(c)-(h), but, since it was never used during the first 25 years of the Committee’s existence, it will not be dealt with further here;

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E. INDIVIDUAL COMPLAINT Who can bring a complaint? Anyone claiming that his or her rights under the relevant treaty have been violated can lodge a complaint with a committee against a State that satisfies these two conditions; A. being a party to the treaty B. having accepted the committee’s competence to examine individual complaints It is not necessary to have a lawyer prepare the case, though legal advice may improve the quality of the submissions. Individuals must be aware, however, that the United Nations does not provide legal aid under these procedures. Complaints can be brought on behalf of the alleged victim, with his or her written consent. In certain cases, such consent is not required; Example if the alleged victim is in prison without access to the outside world or is a victim of an enforced disappearance. In these cases, the complainant should state clearly why such consent cannot be provided. What information should be included in a complaint? While a complaint to a committee, also called a communication or a petition, need not be presented in a particular format, the use of the model complaint forms and guidelines is recommended. The complaint should be in writing, legible, preferably typed, and signed. Only communications presented in one of the official United Nations languages (Arabic, Chinese, English, French, Russian and Spanish) can be accepted. The complainant should also detail the steps he or she has already taken to exhaust the remedies available in the State party against which the complaint is directed, that is, steps taken before the State party’s local courts and authorities. The procedure Based on the above-mentioned requirements, the committee in question will decide whether the case should be registered. The two major stages in the examination of a complaint are known as; A. the admissibility stage and the B. merits stage Admissibility refers to the formal requirements that the complaint must satisfy before the relevant committee can consider its substance.

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Merits refers to the substance of the complaint, on the basis of which the committee decides whether or not the alleged victim’s rights under the treaty have been violated. Most committees request a State party to provide its observations within six months from the date on which the complaint was communicated to it. The State party can challenge the admissibility of the complaint by providing arguments within the first two months of that period. The complainant is always given an opportunity to comment on the State party’s observations, within a set time frame. When comments have been received from both parties, the case is ready for a decision by the relevant committee. If the State party fails to respond, despite receiving several reminders from the Secretariat, the committee will take a decision on the case based on the information submitted by the complainant.

F. INQUIRY PROCEDURES Inquiry Procedures is when two treaty bodies may also initiate inquiries on their own initiative if they have received reliable information about serious or systematic violations of their conventions in a State party The two treaty bodies that may initiate inquiries on their own initiative are; A. Committee against Torture and the B. Committee on the Elimination of Discrimination against Women Under article 20 of the Convention against Torture, it can initiate an inquiry if it receives “reliable information which appears to it to contain well-founded indications that torture is being systematically practised in the territory of a State Party”, while under article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women the Committee on the Elimination of Discrimination against Women may do the same if it receives “reliable information indicating grave or systematic violations by a State Party of rights set forth in the Convention” Which States may be subject to inquiries? Inquiries may only be conducted with respect to States parties that have recognized the competence of the relevant Committee in this regard. States parties may opt out from the inquiry procedure, at the time of signature or ratification or accession (article 28 CAT; article 10 of the Optional Protocol to CEDAW; article 8 of the Optional Protocol to

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CRPD; article 13(7) of the Optional Protocol (on a communications procedure) to CRC) or anytime (article 11(8) of the Optional Protocol to ICESCR) by making a declaration that they do not recognize the competence of the Committee in question to conduct inquiries. In this regard CED is an exception as the competence to conduct inquiries is not subject to the acceptance by States parties (article 33 ICPPED). 2. CHARTER BASED MECHANISM The United Nations Charter-Based monitoring of human rights Charter bodies include; A. the former Commission on Human Rights, B. the Human Rights Council , and C. Special Procedures. G. ESTABLISHMENT OF HUMAN RIGHTS COUNCIL The Human Rights Council is an inter-governmental body within the United Nations system made up of 47 States which are elected by the UN General Assembly. The Human Rights Council replaced the former United Nations Commission on Human Rights. It is responsible for the promotion and protection of all human rights around the globe. 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. Review of the Council

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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. 10th Anniversary of the Council In June 2016, the Council marked its tenth anniversary through several events. Commission on Human Rights (replaced by the Human Rights Council) The United Nations Commission on Human Rights was established in 1946 to weave the international legal fabric that protects our fundamental rights and freedoms. Composed of 53 States members, its brief expanded over time to allow it to respond to the whole range of human rights problems and it set standards to govern the conduct of States. It also acted as a forum where countries large and small, non-governmental groups and human rights defenders from around the world voiced their concerns. During its regular annual session in Geneva, for which over 3,000 delegates from member and observer States and from non-governmental organizations participated, the Commission adopted about a hundred resolutions, decisions and Chairperson's statements on matters of relevance to individuals in all regions and circumstances. It was assisted in this work by the Sub-Commission on the Promotion and Protection of Human Rights, a number of working groups and a network of individual experts, representatives and rapporteurs mandated to report to it on specific issues. TN: Reason for replacing the commission is to create new structures, improvements and mechanisms for the implementation of human rights. And to move forward and restore the credibility and effectiveness of the human rights mechanisms and refocusing on the protection of individual rights. H. COMPLAINTS MECHANISM Based on the previous “1503 procedure” the Council's confidential complaint procedure will allow individuals and organizations to continue to bring complaints about gross and reliably attested violations of human rights to the attention of the Council. - The complaint procedure will be more victims-oriented and will conduct its work in a more timely manner; - The procedure will ensure that the complainant and the State concerned are informed of the proceedings at key stages of the review; - Two working groups, on A. Communications and on B. Situations will be established to examine communications received and bring to the

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attention of the Council consistent patterns of gross and reliably attested violations of human rights and fundamental freedoms; - Both working groups will meet at least twice a year for five working days each period; - The procedure provides more options on the measures that may be taken by the Council at the conclusion of the process. I. UNIVERSAL PERIODIC REVIEW Through this new mechanism, the Council will review on a periodic basis the fulfillment of the human rights obligations of all countries. It will ensure that all States, including members of the Council, are treated equally and are subject to a review of their human rights record. - All UN Member States will be reviewed within a period of four years in the first cycle - with 48 States to be reviewed every year; - All the members of the Council will be reviewed during their term of membership; - The first States to be reviewed will be chosen by regional groups through the drawing of lots to ensure full respect for equitable geographic distribution. Alphabetical order will then be applied beginning with these countries, with the exception of those who volunteer to be reviewed; - The review will be carried out by a working group composed of members of the Council that will meet three times per year for two weeks and will be facilitated by groups of three States members of the Council which will act as Rapporteurs (or “troikas”) appointed by the Council; - Recommendations from the special procedures and human rights treaty bodies, as well as information from other sources, such as non-governmental organizations and national human rights institutions, will be considered as elements for the review in addition to the report of the State concerned; - The final outcome of the UPR will consist of recommendations to be implemented primarily by the State concerned and, as appropriate, by other relevant stakeholders. - The first session of the working group on the UPR is scheduled for the beginning of 2008. J. SPECIAL PROCEDURES The special procedures are considered the most effective, flexible and responsive mechanisms within the UN human rights system. The Council’s review of these procedures aims to strengthen the system and to ensure greater synergy with other human rights mechanisms within the UN system. Page 7| UNIVERSITY OF SAN JOSE RECOLETOS

Special procedures undertake A. country visits; B. act on individual cases and concerns of a broader, structural nature by sending communications to States and other actors bringing alleged violations or abuses to their attention; C. conduct thematic studies and convene expert consultations; D. contribute to the development of international human rights standards; E. engage in advocacy; F. raise public awareness; and G. provide advice for technical cooperation. These independent experts report at least once a year to the Council on their findings and recommendations, as well as to the UN General Assembly. At times they are the only mechanism alerting the international community to certain human rights issues. Special Procedures are either; A. An individual -a special rapporteur or independent expert or B. working group. They are prominent, independent experts working on a voluntary basis, appointed by the Human Rights Council. Special Procedures' mandates usually call on mandate-holders A. country mandates- to examine, monitor, advise and publicly report on human rights situations in specific countries or territories, or B. thematic mandate- on human rights issues of particular concern worldwide. E. UNITED NATIONS SYSTEM

1. ORGANIZATIONAL STRUCTURE OF THE UNITED NATIONS General Assembly The General Assembly is the main deliberative assembly of the UN. Composed of all UN member states, the assembly meets in regular yearly sessions, but emergency sessions can also be called. The assembly is led by a president, elected from among the member states on a rotating regional basis, and 21 vice-presidents. The first session convened 10 January 1946 in the Methodist Central Hall in London and included representatives of 51 nations. When the General Assembly votes on important questions, a two-thirds majority of those present and voting is required. Examples of important questions include recommendations on peace and security; election of members to organs; admission, suspension,

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and expulsion of members; and budgetary matters. All other questions are decided by a majority vote. Each member country has one vote. Apart from approval of budgetary matters, resolutions are not binding on the members. The Assembly may make recommendations on any matters within the scope of the UN, except matters of peace and security that are under consideration by the Security Council The United Nations General Assembly (UNGA/GA) is one of the six principal organs of the United Nations and the only one in which all member nations have equal representation. Its powers are; A. to oversee the budget of the United Nations, B. appoint the non-permanent members to the Security Council, C. receive reports from other parts of the United Nations and D. make recommendations in the form of General Assembly Resolutions. It has also established a wide number of subsidiary organs. UN Security Council The United Nations Security Council (UNSC) is one of the principal organs of the United Nations and is charged with the maintenance of international peace and security. Its powers, outlined in the United Nations Charter, include; A. the establishment of peacekeeping operations, B. the establishment of international sanctions, C. authorization of military action. Its powers are exercised through United Nations Security Council resolutions. The Security Council held its first session on 17 January 1946 at Church House, Westminster, London. Since its first meeting, the Council, which exists in continuous session, has travelled widely, holding meetings in many cities, such as Paris and Addis Ababa, as well as at its current permanent home at the United Nations Headquarters in New York City. Composed of; 1. 15 members of the Security Council, consisting of five veto-wielding permanent members (China, France, Russia, the United Kingdom, and the United States) and 2. 10 elected non-permanent members with two-year terms. This basic structure is set out in Chapter V of the UN Charter. Security Council members must always be present at UN headquarters in New York so that the Security Council can meet at any time. Discussion: Is the security council still relevant? Page 8| UNIVERSITY OF SAN JOSE RECOLETOS

---International Courts The International Court of Justice is the primary judicial organ of the United Nations. It is based in the Peace Palace in The Hague, Netherlands. The Court began work in 1946 as the successor to the Permanent Court of International Justice. The ICJ is composed of 15 judges who serve 9-year terms and are appointed by the General Assembly; every sitting judge must be from a different nation. Its main functions are A. to settle legal disputes submitted to it by states (such as war crimes, illegal state interference, ethnic cleansing, and other issues) and B. to provide advisory opinions on legal questions submitted to it by duly authorized international organs, agencies, and the UN General Assembly. ECOSOC The United Nations Economic and Social Council (ECOSOC) constitutes one of the six principal organs of the United Nations. It is responsible for co-ordinating the economic, social and related work of UN specialized agencies, their functional commissions and five regional commissions. ECOSOC has 54 members which are elected by the General Assembly for a three-year term.; it holds a four-week session each year in July, held in either New York or Geneva. Since 1998, it has also held a meeting each April with finance ministers heading key committees of the World Bank and the International Monetary Fund (IMF). The ECOSOC serves as the central forum for discussing international economic and social issues, and for formulating policy recommendations addressed to member states and the United Nations System. ECOSOC's subsidiary bodies include the A. United Nations Permanent Forum on Indigenous Issues -which advises UN agencies on issues relating to indigenous peoples; B. the United Nations Forum on Forests- which co-ordinates and promotes sustainable forest management; C. the United Nations Statistical Commissionwhich co-ordinates information-gathering efforts between agencies; and the D. Commission on Sustainable Development,which co-ordinates efforts between UN agencies and NGOs working towards sustainable development. ECOSOC may also grant consultative status to non-governmental organizations;] by 2004, more than 2,200 organizations had received this status Human Rights Council On 18 June 2007, one year after its first meeting, and in compliance with General Assembly resolution 60/251, the Human Rights Council agreed on a package

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of elements that established the procedures, mechanisms and structures that will form the basis for its future work. The Council will meet as a quasi-standing body. Its agenda and programme of work provides the opportunity to discuss all thematic human rights issues and situations that require the Council’s attention throughout the year. Its rules of procedure and methods of work shall ensure transparency, predictability, impartiality and will enable genuine dialogue and be results-oriented. II. REGIONAL SYSTEM OF HUMAN RIGHTS Regional human rights systems, consisting of regional instruments and mechanisms, play an increasingly important role in the promotion and protection of human rights. Each of the regional human rights systems was established under the auspices (support/control) of an intergovernmental organization composed of Member States; these are: the African Union, Organization of American States, Council of Europe, League of Arab States, and Association of Southeast Asian Nations. Under the regional systems, only States may be held accountable for human rights violations. These systems do not prosecute individuals or decide individuals’ responsibility for human rights violations. By creating and joining regional human rights treaties, States have agreed to respect, protect, and guarantee the enjoyment of specific freedoms for all people within their territories. States may be held accountable for violations of these freedoms that are caused by the State’s laws or policies or by the actions of State agents, as well as for violations that the State or its agents allowed to occur or failed to prevent. In the Americas, Africa and Europe, the key feature of each system is a complaints mechanism through which individuals can seek justice and reparation for human rights violations committed by a State party. The regional human rights commissions and courts determine whether the State is responsible for the alleged violation and, if so, what the government should do to repair the damage. These bodies can also ask States to take action, or refrain from taking action, to avoid irreparable harm to the complainant; these orders or requests are often referred to as “interim measures” or “provisional measures.” However, human rights systems are not meant to take the place of national courts. Rather, individuals alleging human rights violations before a regional human rights body must generally first try to resolve the problem using any appropriate remedies that are available at the local or national level. States will only be considered internationally responsible for human rights violations

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that the government failed to remedy, in a suitable and timely manner, when it had the opportunity to do so. In addition to deciding individual complaints, the regional human rights systems engage in a range of human rights monitoring and promotion activities. The Inter-American Commission and African Commission in particular, prepare reports on human rights practices of concern, carry out country visits, and monitor emerging human rights themes and the rights of vulnerable groups by appointing experts (usually called “rapporteurs” or “special rapporteurs”) to focus on those topics. The regional human rights courts typically only receive complaints and do not engage in other monitoring or promotion activities. These courts also contribute to the understanding of regional human rights treaties through “advisory opinions” on the meaning of treaty provisions. The nature and duties of each regional human rights system, as well as the standards they interpret and apply, are established in regional treaties and in each body’s statute or rules of procedure. 

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Regional human rights instruments (e.g. treaties, conventions, declarations) help to localise international human rights norms and standards, reflecting the particular human rights concerns of the region. Regional human rights mechanisms (e.g. commissions, special rapporteurs, courts) then help to implement these instruments on the ground. Currently, the three most well-established regional human rights systems exist in Europe, the Americas and Africa. A. The Council of Europe and Human Rights

The regional arrangements for protecting human rights in Europe are extensive, involving the;  Council of Europe,  the European Union and  the Organization for Security and Cooperation in Europe. Each of these intergovernmental organizations has its own regional human rights mechanisms and instruments. Some of the most longstanding and developed of these exist in the Council of Europe, with; INSTRUMENTS including  the European Convention on Human Rights (ECHR), the European Social Charter and  the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment

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The following Conventions and Treaties are the most important human rights instruments within the Council of Europe’s remit: 

 

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

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European Convention on Human Rights (ECHR) The Convention for the Protection of Human Rights and Fundamental Freedoms Additional Protocols to the ECHR European Social Charter and revised European Social Charter Prevention of Torture- European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment Minority Protection -Framework Convention for the Protection of National Minorities/European Charter for Regional or Minority Languages Children's Rights-European Convention on the Exercise of Children's Rights Sexual Exploitation of Children - Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse Human Rights and Biomedicine - Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine Conventions in the Realm of Migration - European Convention on the Legal Status of Migrant Workers/Convention on the Participation of Foreigners in Public Life at Local Level/European Convention on Nationality Trafficking in Human Beings-Council of Europe Convention on Action against Trafficking in Human Beings Violence against women-Convention on preventing and combating violence against women and domestic violence

MECHANISMS such as  the European Court of Human Rights,  the European Committee of Social Rights and the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. The European system also has a;  Commission against Racism and Intolerance, and  Commissioner for Human Rights. The European Committee of Social Rights monitors compliance with the European Social Charter among the 43 Council of Europe Member States that are party to the original 1961 Social Charter or the 1996 revised Charter. The European Court of Human Rights which is located in Strasbourg, has jurisdiction over Council of Europe member States that have opted to accept the Court’s optional jurisdiction. It has jurisdiction to decide complaints (“applications”) against all 47 Council of Europe Member States. Individuals, groups of individuals, non-governmental organizations and States Page 10| UNIVERSITY OF SAN JOSE RECOLETOS

may submit applications concerning alleged violations of the European Convention on Human Rights. It may issue emergency protective orders (“interim measures”) when the applicant faces a real risk of serious, irreparable harm.

B. The Organization of American States and Human Rights (OAS) INSTRUMENTS As with the United Nations (UN) human rights system, the inter-American system features;  The 1948 American Declaration on the Rights and Duties of Man - a declaration of principles, adopted seven months before the Universal Declaration, 

The American Convention on Human Rights - a legally-binding treaty, which entered into force in 1978,

MECHANISMS 

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The Inter-American Commission on Human Rights and The Inter-American Court of Human Rights respectively

- Charter-based and treaty-based implementation mechanisms The Charter-based system applies to all member states of the OAS, while the Convention system is legally binding only on the States parties to it. The two systems overlap and interact in a variety of ways. The Inter-American Commission (based in Washington DC) - established under the OAS Charter (Chapter XV) to promote and protect human rights in the American hemisphere. -It is composed of seven independent members (Commissioners) who serve in a personal capacity. The Inter-American Commission on Human Rights may decide complaints (“petitions”) against all 35 Member States of the Organization of American States (OAS). Petitions must allege a violation of the 1. American Declaration of the Rights and Duties of Man or of the 2. American Convention on Human Rights, provided the State concerned is one of the 23 States that are parties to the Convention. The Commission accepts petitions from individuals, groups of individuals, non-governmental organizations recognized by any OAS Member State, and States.

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The Commission also issues emergency protection requests (“precautionary measures”), undertakes country visits, publishes reports on human rights conditions, holds public hearings on cases and thematic questions, and monitors priority topics through its rapporteurships. This includes:   

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Rapporteurship on the Rights of Women, Rapporteurship on the Rights of the Child, Rapporteurship on the Rights of Indigenous Peoples, Rapporteurship on the Rights of Persons Deprived of Liberty, Rapporteurship on Migrant Workers and their Families, Rapporteurship on the Rights of Afro-Descendants and against Racial Discrimination, Rapporteurship on Human Rights Defenders, and Special Rapporteur for Freedom of Expression.

This last position is the only Special Rapporteurship at the IACHR, meaning that the mandate-holder is dedicated full-time to the job (all other mandates are held by Commissioners). A Unit on the Rights of Lesbian, Gay, Trans, Bisexual, and Intersex Persons was created in 2011. The Inter-American Court of Human Rights (based in San Jose, Costa Rica) has two main responsibilities; 1.) To hear cases submitted to it by the Commission or a State Party to the Convention and judge whether or not a violation has been committed. The sentence is binding and cannot be appealed, but the system does not provide for means of enforcement. 2.) The Court gives advisory opinions interpreting the American Convention or other international agreements relevant to the protection of human rights in the Americas. The Inter-American Court of Human Rights may only examine contentious cases against States that have both: ratified the American Convention and recognized the Inter-American Court’s jurisdiction (currently 20 States). Cases must first be decided by the Commission before they can be referred to the Court, either by the State party involved or by the Commission. The Court also has jurisdiction to issue advisory opinions and to order emergency interim measures (“provisional measures”). What does OAS do? The OAS uses a four-pronged approach to effectively implement its essential purposes. The Organization’s four main pillars––democracy, human rights, security, and development––support each other and are Page 11| UNIVERSITY OF SAN JOSE RECOLETOS

intertwined through political dialogue, inclusiveness, cooperation, and legal and follow-up instruments that provide the OAS with the tools to maximize its work in the Hemisphere. The OAS structure The Organization of American States accomplishes its purposes by means of the following:  The General Assembly;  the Meeting of Consultation of Ministers of Foreign Affairs;  the Councils (the Permanent Council and the Inter-American Council for Integral Development);  the Inter-American Juridical Committee;  the Inter-American Commission on Human Rights;  the General Secretariat;  the specialized conferences;  the specialized organizations; and  other entities established by the General Assembly. The General Assembly is the supreme organ of the Organization of American States and comprises the delegations of all the member states. All member states are represented at the General Assembly and have the right to one vote. The Permanent Council attends to the matters entrusted to it by the General Assembly or the Meeting of Consultation of Ministers of Foreign Affairs; monitors the maintenance of friendly relations among the member states and the observance of the standards governing General Secretariat operations; and acts provisionally as Organ of Consultation under the Rio Treaty.

C. The African Union and Human Rights THE AFRICAN UNION The African Union (AU) is an intergovernmental organization with 53 member states that was established on 9 July 2002 and succeeded the Organization of African Unity (OAU). The Assembly of the African Union is the semi-annual meeting of the heads of state and government of its member states. The AU's secretariat is called the African Union Commission (it will be renamed as African Union Authority). It is based in Addis Ababa, Ethiopia, and acts as the executive and administrative branch of the AU. It must be distinguished from the African Commission on Human and Peoples' Rights. The main objectives of the AU are to; A. accelerate the political and socio-economic integration of the continent; B. to promote and defend African common positions; to achieve peace and security in Africa; and

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C. to promote democratic institutions, good governance and human rights. The main regional human rights instrument in Africa is; The 1981 African Charter on Human and Peoples’ Rights, The main mechanisms are; The African Commission on Human and Peoples’ Rights and the recently-established African Court on Human and Peoples’ Rights. INSTRUMENT The African Charter -entered into force in 1986 -incorporates universal human rights standards and principles, but also reflects the virtues and values of African traditions. - is characterised by the concept of a reciprocal relationship between the individual and the community, linking individual and collective rights. - established an African Commission for Human Rights, located in Banjul, Gambia. - It is a quasi-judicial body made up of eleven independent experts - and tasked with promoting and protecting human rights and collective (peoples’) rights throughout the African continent (by receiving periodic reports from States Parties on the implementation of the Charter’s provisions) as well as interpreting the African Charter and considering individual complaints of violations of the Charter. MECHANINSM The African Commission - has also established several Special Mechanisms including six Special Rapporteurs who monitor, investigate and report on allegations of violations in member states of the African Union, and eleven working groups, committees or study groups that monitor and investigate human rights issues under the purview of the Commission. - They may decide complaints (“communications”) against 54 Member States of the African Union, all parties to the African Charter on Human and Peoples’ Rights. Morocco, rejoined the African Union in 2017, becoming its 55th Member State, but had not yet ratified the African Charter as of June 2017. [IJRC] Individuals, organizations and States may submit communications concerning alleged violations of the African Charter. -may request “provisional measures” to prevent irreparable harm to victims. The Special Rapporteur mandates cover:  Extra-judicial, Summary or Arbitrary Execution;  Freedom of Expression and  Access to Information;  Human Rights Defenders;  Prisons and Conditions of Detention;  Refugees, Asylum Seekers, Migrants and Internally Displaced Persons; and Page 12| UNIVERSITY OF SAN JOSE RECOLETOS

Rights of Women

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The Working Groups cover specific issues related to  The work of the African Commission;  Indigenous Populations/Communities in Africa;  Economic, Social and Cultural Rights;  Rights of Older Persons and People with Disabilities;  Death Penalty;  Extractive Industries, Environment and Human Rights Violations;  Fair Trial; and  Communications And finally, there is a Committee for the Prevention of Torture in Africa; a Committee on the Protection of the Rights of People Living with HIV; and a Study Group on Freedom of Association. The African Court on Human and Peoples’ Rights was established in 2004 following the entry into force of a Protocol to the African Charter on the Establishment of an African Court on Human and Peoples’ Rights. The Court has jurisdiction over all cases and disputes submitted to it concerning the interpretation and application of the African Charter, the Protocol, and any other relevant human rights instrument ratified by the States concerned. Has jurisdiction to give advisory opinions, and to decide complaints against the States that have accepted its jurisdiction. The Court accepts complaints from: the African Commission, a State party to a complaint before the Commission, States parties to the Court whose citizen alleges a human rights violation, and African intergovernmental organizations. When accepting the Court’s jurisdiction, a State may also authorize the Court to receive complaints against it from individuals and certain non-governmental organizations. As of July 2017, eight States have authorized such complaints. In April 2017, Tunisia made the necessary declaration for the Court to receive complaints from individuals and non-governmental organizations. IV. LIMITATIONS AND RESERVATIONS TO HUMAN RIGHTS In accordance with international human rights law there are essentially three ways in which the State may limit or restrict the scope of its obligations: I. II. III.

Express limitations to rights Derogations from rights Reservations to treaties

These fields illustrate the ways the State may strike a balance between the rights and interests of different individuals, the legitimate State interests and concerns and the individuals’ rights. The interests of the society as a whole overrides those of individuals.

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State Responsibility and Jurisdiction The obligation to protect, promote and ensure the enjoyment of human rights is the prime responsibility of States, thereby conferring on States responsibility for the human rights of individuals. Many human rights are owed by States to all people within their territories, while certain human rights are owed by a State to particular groups of people: Example: the right to vote in elections is only owed to citizens of a State. State responsibilities include the obligation to take pro-active measures to ensure that human rights are protected by providing effective remedies for persons whose rights are violated, as well as measures against violating the rights of persons within its territory. Under international law, the enjoyment of certain rights can be restricted in specific circumstances. Example: if an individual is found guilty of a crime after a fair trial, the State may lawfully restrict a person’s freedom of movement by imprisonment. Restrictions on civil and political rights may only be imposed if the limitation is determined by law but only for the purposes of securing due recognition of the rights of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society. Economic, social and cultural rights may be limited by law, but only insofar as the limitation is compatible with the nature of the rights and solely to promote the general welfare in a democratic society. In a legitimate and declared state of emergency, States can take measures which limit or suspend (or “derogate” from) the enjoyment of certain rights. Such derogations are permitted only to the extent necessary for the situation and may never involve discrimination based on race, colour, sex, language, religion or social origin. Any derogation must be reported to the Secretary General of the United Nations. However, in accordance with article 4, paragraph 3 of the International Covenant on Civil and Political Rights (ICCPR), certain human rights – non-derogable rights – may never be suspended or restricted even in situations of war and armed conflict. These include the right to life, freedom from torture, freedom from enslavement or servitude and freedom of thought, conscience and religion. In addition, in times of armed conflict where humanitarian law applies, human rights law continues to afford protection.

National Territory and Effective Control

In terms of PIL, the rule is clear. A state is responsible every time a wrongful conduct is attributable to it, with no regard to whether wrongfulness is taking place within or outside its national territory. The only task effective control may be called to carry out in the case of directly attributable extraterritorial wrongfulness is to serve as a criterion for attribution, in conformity with the ILC norms on state responsibility and the (still lacking unity and coherence) relevant international case law. If a state causes a wrongful result it should be responsible for that with no regard whether wrongfulness is territorial or not. Second, regarding indirectly attributable extraterritorial wrongfulness owing to the fact that the state failed to fulfill its positive human right obligations, effective control plays a role in assessing the owed standards of due diligence. Among several other factors, effectiveness is an element taken into consideration for assessing the standards of diligent comportment a state can and, therefore, is legally obliged to demonstrate. The subjective due diligence standard permits a flexible and individualized assessment for each case. The more direct, solid and, thus, effective the control a state has over a situation, the higher are the standards of diligence this state may, and therefore is expected to demonstrate. In short, because due diligence amounts to obligations of means, and its standards are proportionate to the effective control a state exercises over a wrongful situation, the very element of effective control is one of the criteria that apply for the test of state fault. Extra-territorial obligations under international human rights law Do States have ‘diagonal obligations’ to the people in other States under international human rights law?1 Article 1(3) of the UN Charter specifies that one of the purposes of the UN is: To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion… Article 56 of the UN Charter obliges States to take ‘joint and separate action’ (emphasis added) to achieve the purposes set out in Article 55. Article 55 requires the promotion of: (a) higher standards of living; full employment, and conditions to enable social progress and development; (b) solutions of international, economic, social, health, and related problems, and international cultural and educational cooperation; and (c) universal respect for, and observance of, human rights and fundamental freedoms for all

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without distinction as to race, sex, language, or religion. Furthermore, Articles 22 and 28 of the UDHR imply the existence of extraterritorial obligations. Article 22 focuses on the economic sphere: Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality. Article 28 states:Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized. Furthermore, Articles 16 to 18 of the Articles on State Responsibility of the International Law Commission prescribe that State responsibility can rest with a State in regard to the internationally wrongful actions of another State. Articles 16 to 18 clearly envisage instances of extraterritorial State responsibility. Such responsibility arises if the former State aids and abets the latter in the commission of a wrongful act (Article 16), if the former State directs or controls the commission of the wrongful act by the latter State (Article 17), or if the former State coerces the latter State to commit a wrongful act (Article 18).

International Law Commission (“ILC”), in response to a request by the United Nations General Assembly, has begun drafting articles to codify the rules on the responsibility of international organizations. One of the most difficult issues under consideration by the ILC in this context is whether Member States bear secondary or concurrent liability to third parties for the acts of an international organization. In Secondary liability, a third party with a legal claim against an international organization would first be required to pursue its remedy against the organization. Only if the organization defaulted in fulfillment of its obligation could the third party enforce its rights against any or all of the Member States. While Concurrent liability would permit an aggrieved third party to pursue a remedy, at its election, against either the organization or the Member States.19 The two forms of responsibility, while conceptually distinct, share the common characteristic of imposing strict liability on Member States for the wrongful conduct of an international organization. One such ground may be that secondary or concurrent liability would involve the imposition of liability on Member States for acts that they have not committed. As discussed all of the alternative bases for establishing the liability of a Member State for the act of an international organization depend upon involvement by the Member State in the commission of the wrongful act. Secondary or concurrent liability would be a significant departure from this pattern.

An example of such coercion could be the pressure placed by States on LDCs not to take advantage of TRIPS flexibilities in relation to pharmaceutical products, causing the latter to breach their obligations regarding the right to health under Article 12 of the ICESCR.

The typology of States’ obligation and obligation to respect

These provisions of the UN Charter, the UDHR, and the Articles of State Responsibility, which are often accepted as part of customary international law, lay a strong foundation from which one might identify relevant extraterritorial duties under customary international law. Furthermore, States must take regard of the extraterritorial impacts of their activities under general international law.

A. Typology of states’ obligations

B. Rights of an absolute character

C. Regime of Rights which may be restricted

The Responsibility of states for the acts of the international organizations Over the past sixty years, there has been an exponential growth in the number, scope, and influence of international organizations. This growth has greatly expanded the capacity of international organizations to commit acts that detrimentally affect the interests of States or individuals. As a result, it has become necessary to decide who is responsible, and liable to provide compensation, when an organization breaches international law. Reflecting this concern, the Page 14| UNIVERSITY OF SAN JOSE RECOLETOS

The application of human rights in private relationships and the obligation to protect

D. The imputability to the State of the conduct of non-state actors and the obligation to protect

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E. Measuring the scope of the obligation to protect

II. The Progressive realization of human rights and the obligation to fulfill

III. Derogations in time of public emergency

IV. Mechanism of Protection

A. Judicial Remedies

B. Non-judicial Mechanisms Notes: - the determinative for the existence of “jurisdiction” is effective control. QUIZ : 1. Distinguish Reservation, Limitation and Derogation. Give examples A reservation has been defined in article 2(d) of the Vienna Convention on the Law of Treaties to mean a’ unilateral statement, however phrased or named, by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State’. Limitation a limiting rule or circumstance; a restriction. Other states subscribed to limitations of their conduct, and numerous other treaties and bodies were created to regulate the conduct of states towards one another in terms of these treaties, Derogation occurs where a state party is allowed to derogate temporarily from a part of its obligations under the Covenant. Derogations from obligations under the ICCPR are governed by article 4. The said article is to the effect that a state party may take measures derogating from their obligations under the Covenant in time of public emergency which threatens the life of the nation provided that such measures are not inconsistent with their obligations under international law and do not involve discrimination on the ground of race, colour, sex, language, religion or social origin.

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2. When is derogation of human rights permitted? A derogation measures are only allowed in exceptional circumstances such as war and state of emergency and should be of temporary nature. Only in a situation when the “life of the nation” is at stake, States may unilaterally derogate from some of its obligations. 3. How is the implementation of international human rights standards monitored by the UN? If there are complaints of human rights violations how does the UN deal with it? Through Treaty based mechanism and charter based mechanism. Article 4 1. Subject to the provisions of article 3, the Committee shall bring any communications submitted to it under the present Protocol to the attention of the State Party to the present Protocol alleged to be violating any provision of the Covenant. 2. Within six months, the receiving State shall submit to the Committee written explanations or statements clarifying the matter and the remedy, if any, that may have been taken by that State. Article 5 1. The Committee shall consider communications received under the present Protocol in the light of all written information made available to it by the individual and by the State Party concerned. 2. 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; (b) The individual has exhausted all available domestic remedies. This shall not be the rule where the application of the remedies is unreasonably prolonged. 3. The Committee shall hold closed meetings when examining communications under the present Protocol. 4. The Committee shall forward its views to the State Party concerned and to the individual.

4. What are the criteria for a permissible limitation of international human rights? Rights of an absolute character are the exception. In general, limitations may be imposed on human rights, provided three conditions are satisfied. First, any interference with a right should be prescribed by law (condition of legality). Second, it must be justified by the pursuance of a legitimate aim (condition of legitimacy). Third, the interference must be limited to what is necessary for the fulfilment of that aim, which means that

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it must be appropriate to pursuing the objective, and that it may not go beyond what is required in order to effectively achieve that aim – or, at a minimum, that all the interests involved should be carefully balanced against one another (condition of proportionality). 5. In the region of Kalahandi, in the Indian State of Orissa, there have been recurring starvation deaths every other year among the families of the landless laborers. A human rights group, Kalahandi Human Rights Advocates (KHRA), says that these starvation deaths have something to do with human rights, particularly to the right to food. They say that these deaths have resulted from a lack of access to food therefore are linked to non-realization of the right to food. KHRA blamed the government of Kalhandi. What do you think of the claim of KHRA? Can the state be blamed for this unfortunate deaths? what is of utmost importance is to see that food is provided to the aged, infirm, disabled, destitute women, destitute men who are in danger of starvation, pregnant and lactating women and destitute children, especially in cases where they or members of their family do not have sufficient funds to provide food for them. In case of famine, there may be shortage of food, but here the situation is that amongst plenty there is scarcity. Plenty of food is available, but distribution of the same amongst the very poor and the destitute is scarce and non-existent leading to malnutrition, starvation and other related problems.

A list of rights where limitations are permissible: ECHR

ICCPR

Art. 8

Art. 17, 23

Art. 9

Art.18

Art. 4.2 ICCPR

Freedom of religion and belief

Art. 10

Art. 19, 20

ICERD Art. 4, 4.a)

Freedom of expression

Art. 11

Art. 21, 22

Art. 8.1.a,c, 8.2 ICESCR, Art. 4.b ICERD

Freedom of assembly and association

Art. 2 Protocol 4

Art. 12

Freedom of movement/ residence

Art. 1.2 Protocol 7

Art. 13

Expulsion of aliens

Art. 16 Lecture: Reservations, Limitations and Derogations Limitations to, derogations from and reservations to rights: Derogations are only permitted in exceptional circumstances, when the “life of the nation is at stake”, while limitations to rights may be made to serve certain legitimate aims. Reservations may be made at the time of ratification/accession to the treaty Limitations: “core of the right” may not be affected Derogations: only in exceptional circumstances, and only as far as the situation requires Reservations: the “object and purpose” of the treaty may not be destroyed I. Limitations     

Balance of legitimate interests No time limitations Strict interpretation Must be necessary in a democratic society – “margin of appreciation” Proportionality

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Other provisions of relevance

Rights and freedoms

Private and family life

Cf. Art. 25 ICCPR

Political activity of aliens Right to property

Art. ICESCR

Economic, social and cultural rights

Art. 1 Protocol 1

NB. The grounds for legitimate restrictions may vary between the different treaties. Art. 4 ICESCR provides: “.., the State may subject such rights only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society.” 1. Strict interpretation “It follows from the nature of paragraph 2 of article 10 as an exception clause that this provision must, according to a universally accepted rule, be strictly interpreted. This is especially true in the context of the Convention the object and purpose of which is to safeguard fundamental human rights. Strict interpretation means that no other criteria than those mentioned in the exception clause

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itself may be at the basis of any restrictions, and these criteria, in turn, must be understood in such a way that the language is not extended beyond its ordinary meaning “In the case of exception clauses such as … the principle of strict interpretation meets certain difficulties because of the broad meaning of the clause itself. It nevertheless imposes a number of clearly defined obligations on the authorities of the High Contracting Parties …” 1. Proportionality of interference in relation to a legitimate aim 2. Only a minimum interference to secure the aim 2. Permissible limitations Criteria: a. Lawful: “in accordance with the law” or “prescribed by law” b. Legitimate: aims listed in the provisions c. Necessary in a democratic society 2.a. Lawful: “in accordance with the law” or “prescribed by law” What s considered to be “law” should not be given a restrictive interpretation. It includes, “common law” and administrative regulations and international treaties. “clear, accessible, precise and foreseeable” without being “excessive rigidity”

The ECHR relies on the State’s “margin of appreciation” to a larger or lesser extent depending on the nature of the rights or on the balancing of the competing claims. For the different interpretations of the extent of the “margin of appreciation” in the case law, II. Derogations: A derogation measures are only allowed in exceptional circumstances and should be of temporary nature. Only in a situation when the “life of the nation” is at stake, States may unilaterally derogate from some of its obligations.      

Exceptional circumstances Non-derogable rights Strictly required – proportionality Temporary Procedure – international and domestic Applicable law during emergencies: Humanitarian law and international criminal law and parts of international human rights law

1. WHEN? War and state of emergency

2.b. Legitimate – aims listed in the provisions

Threat to the existence of the State Lawless case (ECHR): “an exceptional situation or crisis of emergency which affects the whole population and constitutes a threat to organised life in the community of which the State is composed”

Some difference in aims in different provisions. BUT generally broadly worded

In Greece v. the UK the Commission and the Court developed the criteria for scrutiny:

Examples of aims in the case law of ECHR: “national security” “public safety” “public order” “prevention of crimes” “morals” “health” “the reputation of others” “the protection of the rights of others” “the economic welfare of the country” “the prevention of disclosure of information received in confidence” “the guaranteeing of the impartiality of the judiciary” “the prevention of disorder and crime”

1. It must be actual or imminent. 2. Its effects must involve the whole nation. 3. The continuance of organised life in the community must be threatened

4. The crisis or danger must be exceptional, in that the normal measures or restrictions, permitted by the Convention for the maintenance of pubic safety, health and order, are plainly inadequate.

2. HOW? 2.a. Non-derogable rights 

Derogations may neither be contrary to other obligations under international law nor to the rights which are listed as “non-derogable” under Art 15 of the ECHR or Article 4 of the ICCPR.



A number of rights are non-derogable according to Art. 4 ICCPR and Art. 15 ECHR

2.c. ”necessary in a democratic society” “not synonymous with “indispensable” … neither has it the flexibility of such expressions as “admissible”, “ordinary”, “useful”, “reasonable”, or “desirable”. The ECHR has interpreted this requirement as a “pressing social need”, and proportionality is required in relation to the stated aim

i. ii.

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Art. 15 ECHR: Art.2 (life), Art. 3 (torture), Art. 4.1 (slavery), art.7 (no punishment without law) No exceptions to Art. 3 and Art.4.1.

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iii. iv.

Qualified in relation to life,”lawful acts of war”, see also Protocol 6, Arts. 2 and 3 NB. The content of Art. 6 ICCPR and Art. 2 ECHR should be compared

Non-derogable rights in Art. 4 ICCPR also include: i. Art 11 (prison upon non-fulfilment of contractual obligation) and ii. Art 18 (thought, concience and religion) 2.b. Non-discrimination is included in Art. 4.1 “on the grounds of race, colour, sex, language, religion and social origin”. However, art 14 ECHR is an integral part of all rights (Ireland v. the UK, s. 86-88, para.228-232 ) 2.c Derogations may not contradict other human rights obligations, whether contained in national or international law, Take note of the obligations under ICESCR, international humanitarian law and international criminal law . States which are bound by both the ECHR and the ICCPR 2.d.

Necessary in a democratic society

In relation to the “margin of appreciation” Art. 15 ECHR: Measures should be “strictly required” in relation to the situation, 2.e. Proportionality “the rule of law”,

III. Reservations 1. The ECHR  Addresses reservations in Art. 57 ECHR:

a. b. c. d.

Only if law in force is not in conformity with the ECHR Only if not of a general character Only if a short description of the law is provided Only if it is made at time of signature or depositing the ratification 

The ECHR is competent to consider whether a reservation is permitted or not according to the ECHR

A reservation may not be ”general” see “By “reservation of a general character” ... is meant in particular a reservation couched in terms that are too vague or broad for it to be possible to determine their exact meaning and scope. ... Article 64§1 requires precision and clarity.” A short description of the law is required it contributes to “legal certainty” [T]he “brief statement of the law concerned” both constitutes an evidential factor and contributes to legal certainty. The purpose of Article 64 § 2 is to provide a guarantee ... that a reservation does not go beyond the provisions expressly excluded by the State concerned 2. The ICCPR

3. FOR HOW LONG?



Does not contain any specific rule.

3.a Temporary



Art. 19 Vienna Convention on the Law of Treaties provides the general rules applicable to reservation

The validity of the derogation cannot be called into question for the sole reason that the Government had decided to examine whether in the future a way could be found of ensuring greater conformity with the Convention obligations. Indeed, such a process of continued reflection is not only in keeping with Article 15 para. 3 which requires permanent review of the need for emergency measures but is also implicit in the very notion of proportionality. 4. LAWFUL or NOT? 4.a Requirements in Article 4 of ICCPR and Article 15 of the ECHR And in the domestic legal order 4.b A balance between State discretion and the supervisory organs’ competence The requirements for a permissible derogation under ECHR and the ICCPR are tested by the Court or the Committee despite the recognized margin of appreciation of states to determine their situation and which necessary measures to adopt. “Margin of appreciation” Page 18| UNIVERSITY OF SAN JOSE RECOLETOS