A.

Nature and Definition of Human Rights

“Human” means “relating to human beings”, relating to members of the races of homo sapiens – men
women, children.

‘Right’ refers to that which is just or correct, truth, fairness, justice, just or legal claim.

Human rights are a special sort of inalienable moral entitlement. They attach to all persons equally, by
virtue of their humanity, irrespective of race, nationality, or membership of any particular social group.
Human rights belong to an individual because of being human. The term came into wide use after World
War II, replacing the earlier phrase "natural rights," which had been associated with the Greco-Roman
concept of natural law since the end of the Middle Ages. As understood today, human rights refer to a
wide variety of values and capabilities reflecting the diversity of human circumstances and history. They
are conceived of as universal Universality of human rights is controversial, applying to all human beings
everywhere, and as fundamental, referring to essential or basic human needs.

According to Black Law Dictionary, HRs are the freedoms, immunities, and benefits that according to
modern values all human beings should be able to claim as matter of right in the society in which they
live.

According to professor Osita Eze, “Human right represent demands or claims which individuals or
group make on society, some of which are protected by Law, while others remain aspirations to be
attained in future. Simply put, Human Rights are inherent in man; they arise from the very nature of man
as social animal. They are those rights which all human beings enjoy by virtue, of their humanity,
whether black, white, yellow, Malay, or red, the deprivation of which would constitute a grave affront to
one’s natural sense of justice.

‘Human Rights’ mean the freedoms, immunities, and benefits that according to modern values; all human
beings should be able to claim as a matter of right in the society in which they live.

Therefore, they are commonly understood as being those rights that are inherent in the mere fact of being
human. In other words, human rights are a special sort of inalienable moral entitlement.

The concept of human rights is based on the belief that every human being is entitled to enjoy her/his
rights without discrimination. Human rights differ from other rights in two respects. Firstly, they are
characterized by being:

1. Inherent in all human beings by virtue of their humanity alone (they do not have, e.g., to be purchased or
to be granted);
2. Inalienable (within qualified legal boundaries); and
3. Equally applicable to all.

Secondly, the main duties deriving from human rights fall on states and their authorities or agents, not on
individuals.

One important implication of these characteristics is that human rights; must themselves be protected by
law (‘the rule of law). Furthermore, any disputes about these rights should be submitted for adjudication
through a competent, impartial and independent tribunal, applying procedures which ensures full equality
and to all the parties and determining the question in accordance with clear, specific and pre-existing
laws, known to the public and openly declared.

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The idea of basic rights originated from the need to protect the individual against the (arbitrary) use of
state power. Attention was therefore initially focused on those rights that oblige governments to refrain
from certain actions. Human rights in this category are generally referred to as fundamental freedoms. As
human rights are viewed as a precondition for leading a dignified human existence, they serve as a guide
and touchstone for legislation.

The specific nature of human rights, as an essential precondition for human development, implies that
they can have a bearing on relations both between the individual and the state, and between individuals
themselves. The individual state relationship is known as the ‘vertical effect’ of human rights vertical
location has not elaborated to be clear to the students. While the primary purpose of human rights is to
establish rules for relations between the individual and the state, several of these rights can also have
implications for relations among individuals. This so-called horizontal effect implies among other things,
that a government not only has an obligation to refrain from violating human rights, but also has a duty to
protect the individual from infringements by other individuals. The right to life thus means that the
government must strive to protect people against homicide by their fellow human beings.

Ideology and Moral Rights

Adherents of the natural law principles have said that certain rights exist as a higher law than the legal
system or any positive law. Such rights are universal and absolute, irrespective of space and time. For
example, the social contract theory postulates the existence of inalienable right to life, liberty and
property, which serves as a powerful restraint on arbitrariness. The United States Declaration of
Independence (1776) was a restatement of the Natural Law postulate.

Marxists have little place for human rights within the framework of the legal order. Tunkin emphasized:
“conventions on human rights do not grant rights directly to individuals” the contents of human rights
obligations are defined solely by the state in the light of the socio- economic advancement of the state.

B- Historical Development

WWII developments

The origins of human rights may be found both in Greek philosophy and the various world religions. In
the Age of Enlightenment (18th century) the concept of human rights emerged as an explicit category.
Man/woman came to be seen as an autonomous individual, endowed by nature with certain inalienable
fundamental rights that could be invoked against a government and should be safeguarded by it. Human
rights were henceforth seen as elementary preconditions for an existence worthy of human dignity.
History itself is always full of event and struggle for rights by people all over the world. The fight for the
protection of Human rights continues, and the main organization in the forefront is the United Nations
Organisation and lately the African Union.

From Biblical history, we see that the ancient Israelites made efforts, at one time in Egypt, at another
time in Babylon, to free themselves from slavery and bondage. Essentially, the concept is an evolution of
revolt against authoritarianism, tyranny, slavery, discrimination, and all other ways by which rights,
which are innate to all human beings have been suppressed. Amongst the writers on Human Rights, the
settled fact is that the human being, without any regard to time and space, is entitled to the exercise of
some freedoms. Any authority does not grant these freedoms, but they are paradoxically claimed and
exercised by every human being as of right. These include freedoms of worship, speech, association, and
opinion and of the pursuit of happiness and worthwhile vocations and professions.

Before this period, several charters codifying rights and freedoms had been drawn up constituting
important steps towards the idea of human rights. The first -were the Magna Charta Libertatum of 1215,
the Golden Bull of Hungary (1222), the Danish Erik Klippings Håndfaestning of 1282, the Joyeuse
Entrée of 1356 in Brabant (Brussels), the Union of Utrecht of 1579 (The Netherlands) and the English
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Bill of Rights of 1689. These documents specified rights, which could be claimed in the light of particular
circumstances (e.g. threats to the freedom of religion), but they did not yet contain an all-embracing
philosophical concept of individual liberty. Freedoms were often seen as rights conferred upon
individuals or groups by virtue of their rank or status.

In the centuries after the Middle Ages, the concept of liberty became gradually separated from status and
came to be seen not as a privilege but as a right of all human beings. Spanish theologists and jurists
played a prominent role in this context. Among the former, the work of Francisco de Vitoria (1486 –
1546) and Bartolomé de las Casas (1474-1566) should be highlighted. These two men laid the
(doctrinal) foundation for the recognition of freedom and dignity of all humans by defending the personal
rights of the indigenous peoples inhabiting the territories colonised by the Spanish Crown.

The Enlightenment was decisive in the development of human rights concepts. The ideas of Hugo
Grotius (1583-1645), one of the fathers of modern international law, of Samuel von Pufendorf (1632-
1694), and of John Locke (1632-1704) attracted much interest in Europe in the 18th century. Locke, for
instance, developed a comprehensive concept of natural rights; his list of rights consisting of life, liberty
and property. Jean-Jacques Rousseau (1712-1778) elaborated the concept under which the sovereign
derived his powers and the citizens their rights from a social contract. The term human rights appeared
for the first time in the French Déclaration des Droits de l’Homme et Du Citoyen (1789).

The classic rights of the 18th and 19th centuries related to the freedom of the individual. Even at that
time, however, some people believed that citizens had a right to demand that the government endeavour
to improve their living conditions. Considering the principle of equality as contained in the French
Declaration of 1789, several constitutions drafted in Europe around 1800 not only contained classic
rights, but also included articles which assigned responsibilities to the government in the fields of
employment, welfare, public health, and education. Social rights of this kind were also expressly
included in the Mexican Constitution of 1917, the Constitution of the Soviet Union of 1918, and the
German Constitution of 1919.

In the 19th century, there were frequent inter-state disputes in connection with the protection of the rights
of minorities in Europe. These conflicts led to several humanitarian interventions and called for
international protection arrangements. One of the first such arrangements was the Treaty of Berlin of
1878.

The need for international standards on human rights was first felt at the end of the 19th century when the
industrial countries began to introduce labour legislation. This legislation, which raised the cost of
labour, had the effect of worsening their competitive position in relation to countries that had no labour
laws. Economic necessity forced the states to consult each other. It was because of this that the first
conventions were formulated in which states committed themselves vis-a-avis other states regarding their
own citizens. The Berlin Convention of 1906, which prohibited nightshift work by women can be seen as
the first multilateral convention meant to safeguard social rights. Many more labour conventions were
later drawn up by the International Labour Organisation (ILO), which as founded in 1919. Remarkable as
it may seem, therefore, while the classic human rights had been acknowledged long before social rights,
the latter were first embodied in international regulations.

You have defined human rights. You can then visualize human rights form the perspective of persons
claiming them and from the perspective of those whose duty it is to protect them. You have also seen the
approach of the exponents of the principles of natural law, positivism, Marxism as the developing sates.
Human rights exist social as social facts.

Post – WWII Developments

The atrocities of World War II put an end to the traditional view that states have full liberty to decide the
treatment of their own citizens. The signing of the Charter of the United Nations (UN) on 26 June 1945
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brought human rights within the sphere of international law. In particular, all UN members agreed to take
measures are there really such large number of articles in UN Charter which deals will human rights
protection? to protect human rights. The Charter contains a number of articles specifically referring to
human rights. Less than two years later, the UN Commission on Human Rights (UNCHR),which was
established early in 1946, submitted a draft Universal Declaration of Human Rights (UDHR). The UN
General Assembly (UNGA) adopted the Declaration in Paris on 10 December 1948. This day was later
designated Human Rights Day.

During the 1950s and 1960s, more and more countries joined the UN. Upon joining the UN, they
formally accepted the obligations contained in the UN Charter, and in doing so subscribed to the
principles and ideals laid down in the UDHR. This commitment was made explicit in the Proclamation of
Teheran (1968), which was adopted during the first World Conference on Human Rights, and repeated in
the Vienna Declaration and Programme of Action, which was adopted during the Second World
Conference on Human Rights (1993).

Since the 1950s, the UDHR has been backed up by many international conventions. The most significant
of these conventions are the International Covenant on Civil and Political Rights (ICCPR) and the
International Covenant on Economic, Social and Cultural Rights (ICESCR).

These two Covenants, together with the UDHR, form the International Bill of Human Rights. At the
same time, many supervisory mechanisms have been created, including those responsible for monitoring
compliance with the two Covenants. Human rights have also been receiving more and more attention at
the regional level.

For example, in the European, the Inter-American and the African context, standards and supervisory
mechanisms have been developed have already had a significant impact on human rights compliance in
the respective continents and promise to contribute to compliance in the future.

B- Philosophy of Human Rights; Justification

The “justification” of a right refers to how we argue for its existence, what philosophical assumptions
and theories we use to defend and define the right.

Politicians, states and people do not necessarily use any explicit philosophical theory to support their
views, or to explain why they believe in certain laws or basic rights, but they inevitably have some type
of theory.

Also, the nature of public policy is compromise and mishmash. Usually, no one philosophical theory
wins out. Instead, policies reflect compromises between different theories.

The philosophy of HRs attempts to examine the underlying basis of the concept of HRs and critically
looks at its content and justification. Several theoretical approaches have been advanced to explain how
and why the concept of HRs developed.

One of the oldest Western philosophies on human rights is that they are a product of a natural law,
stemming from different philosophical or religious grounds. Other theories hold that HRs codify moral
behaviour which is a human social product developed by a process of biological and social evolution.

Human rights are also described as a sociological pattern of rule setting. These approaches include the
notion that individuals in a society accept rules from legitimate authority in exchange for security and
economic advantage – social contract.

C – Classification of HRs

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First, second and third generation rights

Karel Vasak at the International Institute of Human Rights in Strasbourg first proposed the division of
human rights into three generations. His division follows the principles of liberté, Égalite and Fraternité
of the French Revolution.

First generation rights are related to liberty and refer fundamentally to civil and political rights. The
first he called liberte (Liberty) i.e Civil and Political Rights, the second he termed egalite (equality),
which relates to Economic, Social and Cultural Rights; and the third he termed fratenite (solidarity),
refereeing to those rights that are held by the collectives in other words, “ group or people’s right. These
classifications, sometimes discribed by a colour scheme of “blue” “red” and “green,” are based on three
different philosophies. Each generation has its destructive characteristic but it suffices to note that the
first generation rights are negative rights or immunity claims in citizen towards the state, in the sense that
they limit the power of a government and protect peoples rights against its power. They imply that no
government or society should act against individuals in certain ways that would deprive them of inherent
political or personal rights, such as the rights to life, liberty, and security of person, freedom of speech,
press, assembly and religion.

The second-generation rights are related to equality, including economic, social and cultural rights.
Third generation or ‘solidarity rights’ cover group and collective rights, which include, inter alia, the
right to development, the right to peace and the right to a clean environment. They are positive rights in
that they enhance the power of government to do something to the person to enable her or him in some
ways. They are generally interpreted as programmatic clauses, obligating governments and legislature to
pursue social policies, but do not create individual claims. They require the affirmative action of
government for the implementation.

The third generation right unlike the first two generations’ rights which focus largely on individuals,
the third generation rights include the rights of people and groups. It has received increasing rhetorical
affirmation at the international level though “only the people’s rights to self-determination and to
disposal of natural wealth, included in the international covenants have received authoritative acceptance
in international law. Other group rights include “the right to development, the right to peace, the right to
environment, the right tot ownership of the common heritage of mankind, and the right to
communication. The right which so far has been given an official human rights status - apart from the
right to self-determination, which is of longer standing - is the right to development (see the Declaration
on the Right to Development, adopted by the UNGA on 4 December 1986, and the 1993 Vienna
Declaration and Programme of Action (Paragraph I, 10). The Vienna Declaration confirms the right to
development as a collective as well as an individual right, individuals being regarded as the primary
subjects of development. Recently, the right to development has been given considerable attention in the
activities of the High Commissioner for Human Rights. The EU and its member states also explicitly
accept the right to development as part of the human rights concept.

While the classification of rights into ‘generations’ has the virtue of incorporating communal and
collective rights, thereby overcoming the individualist moral theory in which human rights are grounded,
it has been criticised for not being historically accurate and for establishing a sharp distinction between
all human rights. It would be more interesting if how the concept of generations of tights is at adds with
the Tehran Proclamation or the UDPA was described or explained.

The term ‘human rights’ is used to denote a broad spectrum of rights to a cultural identity. They involve
all elementary preconditions for a dignified human existence. These rights can be ordered and specified
in different ways. At the international level, a distinction has sometimes been mad between civil and
political rights on the one hand, and economic, social and cultural rights on the other. This section
clarifies this distinction. Since other classifications are also used, these will likewise be reviewed,
without claiming, however, that these categorisations reflect an international consensus. It is also clear
that the various categorisations overlap to a considerable extent.
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 Although human rights have been classified in a number of different manners it is important to note that
international human rights law stresses that all human rights are universal, indivisible and interrelated
(e.g. Vienna Declaration and Programme of Action (1993), para. 5). The indivisibility of human rights
implies that no right is more important than any other.

Classic and Social

One classification used is the division between classic and social rights. Classic rights are often seen to
require the non-intervention of the state (negative obligation) and social rights as requiring active
intervention on the part of the state. Classifying HRs in terms of negative and positive obligation may
have its own defects for a certain right may involve both negative and positive obligations for its
effective realization. In other words, classic rights entail an obligation for the state to refrain from certain
actions, while social rights oblige it to provide certain guarantees. Lawyers often describe classic rights
in terms of a duty to achieve a given result (obligation of result) and social rights in terms of a duty to
provide the means (obligation of conduct).

The evolution of international law however has led to this distinction between classic and social rights
have become increasingly awkward. Classic rights such as civil and political rights often require
considerable investment by the state. The state does not merely have the obligation to respect these
rights, but must also guarantee that people can effectively enjoy them. Hence, the right to a fair trial, for
instance, requires well-trained judges, prosecutors, lawyers and police officers, as well as administrative
support. Another example is the organisation of elections, which also entails high costs.

On the other hand, most social rights contain elements that require the state to abstain from interfering
with the individual’s exercise of the right. As several commentators note, the right to food includes the
right for everyone to procure their own food supply without interference; the right to housing implies the
right not to be a victim of forced eviction; the right to work encompasses the individual’s right to choose
his/her own work and also requires the state not to hinder a person from working and to abstain from
measures that would increase an employment; the right to education implies the freedom to establish and
direct educational establishments; and the right to the highest attainable standard of health implies the
obligation not to interfere with the provision of health care.

In sum, the differentiation of ‘classic’ rights from social rights does not reflect the nature of the
obligations under each set of rights.

i. Civil Rights

The term civil rights is often used with reference to the rights set out in the first eighteen articles of the
UDHR, almost all of which are also set out as binding treaty norms in the ICCPR. From this group, a
further set of ‘physical integrity rights’ has been identified which concern the right to life, liberty and
security of the person and which offer protection from physical violence against the person, torture and
inhuman treatment, arbitrary arrest, detention, exile, slavery and servitude, interference with one’s
privacy and right of ownership, restriction of one’s freedom of movement and the freedom of thought,
conscience and religion.

The difference between basic rights (see below) and the physical integrity rights lies in the fact that the
former include economic and social rights, but do not include rights such as protection of privacy and
ownership.

Although not strictly an integrity right, the right to equal treatment and protection in law certainly
qualifies as a civil right. Moreover, this right plays an essential role in the realisation of economic, social
and cultural rights.

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 Another group of civil rights is referred to under the collective term ‘due process rights’. These pertain
among other things to the rights to a public hearing by an independent and impartial tribunal, the
‘presumption of innocence’, the ne bis in idem principle and legal assistance (see, e.g., Articles 9, 10, 14
and 15 of the ICCPR).

ii. Political Rights

In general, political rights are those set out in Articles 19 to 21 of the UDHR and also codified in the
ICCPR. They include freedom of expression, freedom of association and assembly, the right to take part
in the government of one’s country, and the right to vote and stand for election at genuine periodic
elections held by secret ballot (see Articles 18, 19, 21, 22 and 25 of the ICCPR)

Cultural rights

The UDHR lists cultural rights in Articles 27 and 28. These include the right to participate freely in the
cultural life of the community, to share in scientific advancement, and the right to the protection of the
moral and material interests resulting from any scientific, literary or artistic production of which one is
the author (see also Article 15 of the ICESCR and Article 27 of the ICCPR).

The alleged dichotomy between civil and political rights, and economic, social and cultural rights

Traditionally, it has been argued that there are fundamental differences between economic, social and
cultural rights, and civil and political rights. These two categories of rights have been seen as two
different concepts and their differences have been characterised as a dichotomy. According to this view,
civil and political rights are considered to be expressed in a very precise language, imposing merely
negative obligations which do not require resources for their implementation, and which, therefore, can
be applied immediately. On the other hand, economic, social and cultural rights are considered to be
expressed in vague terms, imposing only positive obligations conditional on the existence of resources
and therefore involving a progressive realisation.

Because of these alleged differences, it has been argued that civil and political rights are justiciable
whereas economic, social and cultural rights are not. In other words this view holds that only violations
of civil and political rights can be adjudicated by judicial or similar bodies, while, economic, social and
cultural rights are ‘ by their nature’ non-justiciable.

Over the years, economic, social and cultural rights have been re-examined and their juridical validity
and applicability have been increasingly stressed. During the last decade, we have witnessed the
development of a large and growing body of case-law of domestic courts concerning economic, social
and cultural rights. This case-law, at the national and international level, suggests a potential role for
creative and sensitive decisions of judicial and quasi-judicial bodies with respect to these rights.

iii. Fundamental and Basic rights

Fundamental rights are taken to mean such rights as the right to life and the inviolability of the person.
Within the UN, extensive standards have been developed which, particularly since the 1960s, have been
laid down in numerous conventions, declarations and resolutions, and which bring already recognised
rights and matters of policy which affect human development into the sphere of human rights. Due to the
concern that a broad definition of human rights may lead to the notion of ‘violation of human rights’
losing some of its significance has generated a need to distinguish a separate group within the broad
category of human rights. Increasingly, the terms ‘elementary’ ‘essential’, ‘core’, and ‘fundamental’
human rights are being used.

Another approach is to distinguish a number of ‘basic rights’, which should be given absolute priority in
national and international policy. These include all the rights which concern people’s primary material
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 and non-material needs. If these are not provided, no human being can lead a dignified existence. Basic
rights include the right to life, the right to a minimum level of security, the inviolability of the person,
freedom from slavery and servitude, and freedom from torture, unlawful deprivation of liberty,
discrimination and other acts which impinge on human dignity. They also include freedom of thought,
conscience and religion, as well as the right to suitable nutrition, clothing, shelter and medical care, and
other essentials crucial to physical and mental health.

Mention should also be made of so-called ‘participation rights’. For instance, the right to participate in
public life through elections (which is also a political right; see above) or to take part in cultural life.
These participation rights are generally considered to belong to the category of fundamental rights, being
essential preconditions for the protection of all kinds of basic human rights.

iv. Other classification

Freedoms

Preconditions for a dignified human existence have often been described in terms of freedoms (e.g.,
freedom of movement, freedom from torture, and freedom from arbitrary arrest). United States President,
Franklin D. Roosevelt, summarised these preconditions in his famous ‘Four Freedoms Speech’ to the
United States Congress on 26 January 1941:

- Freedom of speech and expression;

- Freedom of belief (the right of every person to worship God in his own way);
- Freedom from want (economic understandings which will secure to every nation a healthy peace-time
life for its inhabitants); and
- Freedom from fear (world-wide reduction of armaments to such a point and in such a thorough fashion
that no nation would be able to commit an act of physical aggression against any neighbour). Roosevelt
implied that a dignified human existence requires not only protection from oppression and arbitrariness,
but also access to the primary necessities of life.

Civil liberties

The concept of ‘civil liberties’ is commonly known, particularly in the United States, where the
American Civil Liberties Union (a non-governmental organisation) has been active since the 1920s. Civil
liberties refer primarily to those human rights which are laid down in the United States Constitution:
freedom of religion, freedom of the press, freedom of expression, freedom of association and assembly,
protection against interference with one’s privacy, protection against torture, the right to a fair trial, All
the rights of workers. his classification does not correspond to the distinction between civil and political
rights.

Individual and collective rights

Although the fundamental purpose of human rights is the protection and development of the individual
(individual rights), some of these rights are exercised by people in groups (collective rights). Freedom of
association and assembly, freedom of religion and, more especially, the freedom to form or join a trade
union, fall into this category. The collective element is even more evident when human rights are linked
specifically to a membership of a certain group, such as the right of members of ethnic and cultural
minorities to preserve their own language and culture. One must make a distinction between two types of
rights, which are usually called collective rights: individual rights enjoyed in association with others, and
the rights of a collective.

The most notable example of a collective human right is the right to self determination, which is regarded
as being vested in peoples rather than in individuals (see Articles 1 of the ICCPR and ICESCR). The
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recognition of the right to self-determination as a human right is grounded in the fact that it is seen as a
necessary precondition for the development of the individual. It is generally accepted that collective
rights may not infringe an universally accepted individual rights, such as the right to life and freedom
from torture.

Human Rights Antecedents in South Sudan

South Sudan has fought many wars to gain her independence from the British to the Arabs. As a matter
of fact it was never given on a ‘Golden plat’. Equally so, human rights are well entrenched in our
Constitution (Transition Constitution of Republic of South Sudan, 2011 as amended).

The clamour for human rights in South Sudan dates back to the Colonial days before Sudan attained her
independence in 1956. Before the Turks invasion of the Sudan, it was structured into kingdoms and
Chieftainships, the system which later exploited by the Condominium Administration between British
and Egypt.

The fundamental rights provisions in the TCRSS, 2011 as amended are contained in Chapter two of the
constitution.

These are;

i. Deprivation of life Article 11

ii. Personal Liberty 12
iii. Freedom from Slavery, Servitude and Forced Labour 13
iv. Equality before the Law 14
v. Right to found a family 15
vi. Rights of Women 16
vii. Right of the child 17
viii. Freedom from torture 18
ix. Fair trial 19
x. Right to litigation, Restriction on Death penalty, privacy and religious rights, Fredom of
Expression and Media, Freedom of assembly & Association, Right to participation and
voting, Freedom of movement and residence, Right to Education, Right to Property, access
to information, housing, and Ethnic and Cultural communities

Sources of Human Rights Law

Since time immemorial, states and peoples have entered formal relationships with each other. Over the
ages, traditions have developed on how such relationships are conducted. These are the traditions that
make up modern ‘International law’. Like domestic law, international law covers a wide range of
subjects such as security, diplomatic relations, trade, culture and human rights, but it differs from
domestic legal systems in a number of important ways. In international law there is no single legislature,
nor is there a single enforcing institution. Consequently, international law can only be established with
the consent of states and is primarily dependent on self-enforcement by the same states. In cases of non-
compliance there is no supra-national institution; enforcement can only take place by means of individual
or collective actions of other states.

This consent, from which the rules of international law are derived, may be expressed in various ways.
The obvious mode is an explicit treaty, imposing obligations on the states parties. Such ‘treaty law’
constitutes a dominant part of modern international law. Besides treaties, other documents and
agreements serve as guidelines for the behaviour of states, although they may not be legally binding.
Consent may also be inferred from established and consistent practice of states in conducting their
relationships with each other. The sources of international law are many and states commit to them to
different degrees. The internationally accepted classification of sources of international law is formulated
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 in Article 38 of the Statute of the International Court of Justice. Forming one of the regimes of
international law, human rights law has the same source with the former.

- International conventions, whether general or particular;

- International custom, as evidence of general practice accepted as law;
- The general principles of law recognised by civilised nations;
- Subsidiary means for the determination of rules of law such as judicial
- decisions and teachings of the most highly qualified publicists.
- These sources will be analysed below.

International Conventions

International treaties are contracts signed between states. They are legally binding and impose mutual
obligations on the states that are party to any particular treaty (states parties). The main particularity of
human rights treaties is that they impose obligations on states about the manner in which they treat all
individuals within their jurisdiction.

Even though the sources of international law are not hierarchical, treaties have some degree of primacy.
Nowadays, more than forty major international conventions for the protection of human rights have been
adopted. International human rights treaties bear various titles, including ‘covenant’, Convention’ and
protocol; but what they have in common are the explicit indication of states parties to be bound by their
terms.

Human rights treaties have been adopted at the universal level (within the framework of the United
Nations and its specialised agencies, for instance, the ILO and UNESCO) as well as under the auspices of
regional organisations, such as the Council of Europe (CoE), the Organisation of American States (OAS)
and the African Union (AU) (formerly the Organisation of African Unity (OAU)). These organisations
have greatly contributed to the codification of a comprehensive and consistent body of human rights law.

UNIVERSAL CONVENTIONS FOR THE PROTECTION OF HUMAN RIGHTS

Human rights had already found expression in the Covenant of the League of Nations, which led, inter
alia, to the creation of the International Labour Organisation. At the San Francisco Conference in 1945,
held to draft the Charter of the United Nations, a proposal to adopt a ‘Declaration on Essential Rights of
Man’ was put forward but was not examined because it required more detailed consideration than was
possible at the time. Nonetheless, the UN Charter clearly speaks of ‘promoting and encouraging respect
for human rights and for fundamental freedoms for all without distinction as to race, sex, language or
religion’ (Article 1, para. 3). The idea of promulgating and ‘international bill of rights’ was developed
immediately afterwards and led to the adoption in 1948 of the Universal Declaration of Human Rights
(UDHR).

The UDHR, adopted by a resolution of the United Nations General Assembly (UNGA), although not a
treaty, is the earliest comprehensive human rights instrument adopted by the international community.
On the same may that it adopted the Universal Declaration, the UNGA requested the UN Commission on
Human Rights to prepare, as a matter of priority, a legally binding human rights convention. Wide
differences in economic and social philosophies hampered efforts to achieve agreement on a single
instrument, but in 1954 two draft conventions were completed and submitted to the UNGA for
consideration. Twelve years later, in 1966, the International Covenant on Economic, Social 21 and
Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR) were
adopted, as well as the First Optional Protocol to the ICCPR, which established an individual complaints
procedure. Both Covenants and the Optional Protocol entered into force in 1976. A Second Optional
Protocol to the ICCPR, on the abolition of the death penalty, was adopted in 1989 and entered into force
in 1991.
10
 The ‘International Bill of Human Rights’ consist of the Universal Declaration of Human Rights, the
ICESCR, and the ICCPR and its two Optional Protocols. The International Bill of Rights is the basis for
numerous conventions and national constitutions.

Besides the International Bill of Human Rights, a number of other instruments have been adopted under
the auspices of the UN and other international agencies. They may be divided into three groups:

A. Conventions elaborating on certain rights, inter alia:

- The Convention on the Prevention and Punishment of the Crime of Genocide (1948)
- ILO 98 concerning the Right to Organise and to Bargain Collectively (1949)
- The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(1984)

B. Conventions dealing with certain categories of persons who may need special protection, inter alia:

- The Convention relating to the Status of Refugees (1951), and the 1967 Protocol thereto
- The Convention on the Rights of the Child (1989)
- Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed
conflicts (2000)
- Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution
and child pornography (2000)
- ILO 169 concerning Indigenous and Tribal Peoples in Independent Countries (1989)
- The International Convention on the Protection of the Rights of All Migrant Workers and Members of
Their Families (2000)

C. Conventions seeking to eliminate discrimination

- ILO 111 concerning Discrimination in respect of Employment and Occupation (1958)

- UNESCO Convention against Discrimination in Education (1960)
- The International Convention on the Elimination of All Forms of Racial Discrimination (1965)
- International Convention on the Suppression and Punishment of the Crime of Apartheid (1973)
- The Convention on the Elimination of All Forms of Discrimination Against Women (1979) and its
Optional Protocol (2000)

REGIONAL CONVENTIONS FOR THE PROTECTION OF HUMAN RIGHTS

The UN Charter encourages the adoption of regional instruments for the establishment of human rights
obligations, many of which have been of crucial importance for the development of international human
rights law. The Council of Europe adopted in 1950 the European Convention for the Protection of
Human Rights and Fundamental Freedoms, supplemented by the European Social Charter in 1961, the
European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment
in 1987, and the Framework Convention on National Minorities in 1994.

The American Convention on Human Rights was adopted in 1969, under the auspices of the
Organisation of American States. This Convention has been complemented by two protocols, the 1988
Protocol of San Salvador on Economic, Social, and Cultural Rights and the 1990 Protocol to Abolish the
Death Penalty. Other Inter-American Conventions include the Convention to Prevent and Punish Torture
(1985), the Convention on the Forced Disappearances of Persons (1994), and the Convention on the
Prevention, Punishment and Eradication of Violence against Women (1995).

In 1981, the Organisation of African Unity, (Now AU) adopted the African Charter on Human and
11
Peoples’ rights. Two protocols to the chater have been adopted: the Additional Protocol on the
Establishment of the African Court on Human and Peoples’ Rights (1998) and the Protocol on the Rights
of Women in Africa (2003). Other African instruments include the Convention Governing the Specific
Aspects of Refugee Problems in Africa (1969), and the African Charter on the Rights and Welfare of the
Child (1990).

International custom

Customary international law plays a crucial role in international human rights law. The Statute of the
International Court of Justice refers to ‘general practice accepted as law’. In order to become
international customary law, the ‘general practice’ needs to represent a broad consensus in terms of
content and applicability, deriving from a sense that the practice is obligatory (opinio juris et
necessitatis). Customary law is binding on all states (except those that may have objected to it during its
formation), whether or not they have ratified any relevant treaty.

One of the important features of customary international law is that customary law may, under certain
circumstances, lead to universal jurisdiction or application, so that any national court may hear extra-
territorial claims brought under international law. In addition, there also exists a class of customary
international law, jus cogens, or peremptory norms of general international law, which are norms
accepted and recognised by the international community of states as a whole as norms from which no
derogation is permitted. Under the Vienna Convention on the Law of Treaties (VCLT) any treaty which
conflicts with a peremptory norm is void.

Many scholars argue that some standards laid down in the Universal Declaration of Human Rights
(which in formal terms is only a resolution of the UNGA and as such not legally binding) have become
part of customary international law as a result of subsequent practice; therefore they would be binding
upon all states. Within the realm of human rights law the distinction between concepts of customary law,
treaty law, and general principles of law are often unclear.

The Human Rights Committee in its General Comment 24 (1994) has summed up the rights which can be
assumed to belong to this part of international law which is binding on all states, irrespective of whether
they have ratified relevant conventions, and to which no reservations are allowed:

General principles of law

In the application of both national and international law, general or guiding principles are used. In
international law, they have been defined as ‘logical propositions resulting from judicial reasoning on the
basis of existing pieces of international law’. At the international level, general principles of law occupy
an important place in case-law regarding human rights. A clear example is the principle of
proportionality, which is important for human rights supervisory mechanisms in assessing whether
interference with a human right may be justified. Why are general principles used? No legislation is able
to provide answers to every question and to every possible situation that arises. Therefore, rules of law or
principles that enable decision-makers and members of the executive and judicial branches to decide on
the issues before them are needed.

General principles of law play two important roles: on the one hand, they provide guidelines for judges in
deciding in individual cases; on the other hand, they limit the discretionary power of judges and of
members of the executive in their decisions in individual cases.

Subsidiary means for the determination of rules of law

According to Article 38 of the Statute of the International Court of Justice, judicial decisions and the
teachings of the most qualified publicists are ‘subsidiary means for the determination of rules of law’.
Therefore, they are not, strictly speaking, formal sources, but they are regarded as evidence of the state of
12
the law. As for the judicial decisions, Article 38 of the Statute of the International Court is not confined
to international decisions (such as the judgements of the International Court of Justice, the Inter-
American Court, the European Court and the future African Court on Human Rights); decisions of
national tribunals relating to human rights are also subsidiary sources of law. The writings of scholars
contribute to the development and analysis of human rights law. Compared to the formal standard setting
of international organs the impact is indirect. Nevertheless, influential contributions have been made by
scholars and experts working in human rights fora, for instance, in the UN Sub-Commission on the
Promotion and Protection of Human Rights, as well as by highly regarded NGOs, such as Amnesty
International and the International Commission of Jurists.

TOPIC 2: HUMAN RIGHTS SYSTEMS

The Legal Framework

The UN Charter

Adopted on 26 June 1945, the United Nations Charter was designed to establish the foundations of a new
peaceful world order. Drawing lessons from the appalling atrocities of the Second World War, the charter
primary aim was thus to save succeeding generation from the scourge of war (preamble, paragraph 2) and
to ensure the maintenance of international peace and security. Within such broad and ambitious
objectives, a respect for human rights and fundamental freedoms found its significant though ambivalent
reflection. The Charter has demonstrated not only a move towards the lasting and stable
internationalization of human rights but it has also implied their contribution to ensuring the
establishment of the peaceful, post-war world order.

Under the Dumbarton Oaks proposals for the United Nations of 1944, the four powers intended to have
rather a general reference to human rights. Finally, during the San Francisco Conference, more extensive
references to human rights were included in the Charter, albeit this compromise was achieved at the
expense of less imperative formulations. Finally, the Charter refers to human rights in altogether seven
provisions of diversified content and character (Paragraph 3 of the preamble, Article 1(3), Articles 55
and 56, Article 76(C), Article 13(1)(b), Article 62(2) and (3), and Article 68).

As reflected in the preamble to the Charter, the United Nations were guided, among others, by the motive
to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal
rights of men and women and of nations large and small (preambular paragraph 3). Having declared their
lofty motives, the United Nations granted respect for human rights the status of one of the fundamental
purposes of the organization. The Charter sets out that the purpose of the United Nations will be, inter
alia, to achieve international cooperation also in promoting and encouraging respect for human rights and
for fundamental freedoms for all with out distinction as to race, sex, language, or religion (Article 1(3)).

More specific rules of conduct aimed at the accomplishment of these tasks are contained in three sets of
provisions of the Charter: on international economic and social cooperation (Articles 55 and 56), on the
international trusteeship system (Article 76(c) and on the functions and powers of the UN organs in this
sphere (Article 13(1)(b), Article 62(2) and (3), and Article 68).

Of particular consequence is the first set of human rights provisions which relates to international
economic and social cooperation laid down in Chapter IX of the Charter. Its Article 55 sets forth that
with a view to the creation of conditions of stability and well-being which are necessary for peaceful and
friendly relations among nations based on respect for the principle of equal rights and self-determination
of peoples, the United Nations shall promote, inter alia, universal respect for, and observance of human
rights and fundamental freedoms for all without distinction as to race, sex, language, or religion (Article
55(c)). As a direct extension these provisions, Article 56 provides that all Members pledge themselves to
take joint and separate action in cooperation with the Organization for the achievement of the proposes
set fourth in Article 55.
13
As far as the second set of provisions is concerned, it was provided that one of the basic objectives of the
international trusteeship system (Chapter of the Charter) will also be to encourage respect for human
rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion, and
to encourage recognition of the interdependence of the people of the world (Article 76 (c))

With in the third set of provisions, the Charter translated its objectives and role in the field of human
rights into the functions and powers of number of UN organs. Thus, the General Assembly was assigned
the tasks of initiating studies and making recommendations for the purpose, inter alia, of promoting
international cooperation in the economic, social, cultural, educational, and health fields, and assisting in
the realization of human rights and fundamental freedoms for all without distinction as to race, sex,
language, or religion (Article 13(b).

Another principal organ of the United Nations, the Economic and Social Council, was entrusted in
Article 62 with a function to make recommendations for the purposes of promoting respect for, and
observance of, human rights and fundamental freedoms for all (paragraph 2) and to prepare draft
conventions for submission to the General Assembly, with respect to matters falling within its
competence) paragraph 3). For organizational purposes, Article 68 provides that [T]he Economic and
Social Council shall set up commissions in economic and social fields and for the promotion of human
rights, and such other commissions as may be required for the performance of its functions.

It may be concluded that both the number and the scope of human rights provisions in the UN Charter is
prima facie quite impressive in itself. This becomes particularly evident when the UN Charters is
contrasted with its predecessor, the Covenant of the League of Nations, which was entirely silent on
human rights issues. However, as a reflection of the compromise reached at the San Francisco
Conference in 1945, the human rights clauses of the Charter show signs of ambivalence and vagueness.

In order to properly appreciate the legal character and significance of the UN Charter Human Rights
Provisions please read the following extract from.

Although both in the Preamble and in Article 1(3) the Charter sets out nothing but the pious intentions
and purposes of the United Nations in the field of human rights, it nevertheless translated these general
statements of a common intention into several specific obligations set forth in its operative part. Thus
there is nothing in these provisions, particularly in the Preamble, that would add to or subtract from the
operative provisions of the main text of the Charter.

It is significant, however, that the Charter conferred on human rights the rank of not an ad hoc, but of a
long-term and constant objective of the United Nations. Thus, the Charter assumes in essence a
permanent and dynamic attitude on the part of the United Nations, both the organization and its
members, towards respect for human rights. This conclusion may directly be inferred from the content
and nature of all seven human rights provisions. In particular, it is confirmed by the mandatory wording
of Article 13(1) (initiating studies and making recommendations by the General Assembly), Article 55 in
conjunction with Article 56 (action for international cooperation) and Article 68 (explicit mention of
setting up a commission) in the field of human rights.

One of the innovative approaches reflected in the human rights provisions of the Charter is their
formulation in an interdependent context as one prerequisite for ensuring international peace and
security, friendly relations among nations, welfare of peoples and other socioeconomic objectives.
Human rights were thus placed against a broader background of political, economic and social aspects.
This linkage is most clearly envisaged in Articles 55 and 56. Although the very relationship between
peace, development and human rights is not entirely a new concept, it lifts this interdependence to the
level of the organization’s primary purposes. In other words, obligations of international cooperation for
the achievement of these values and purposes created a normative framework and potentials for further
joint and separate actions by the United Nations and their Members. Human rights clauses in the Carter
exhibit also clear signs of weakness and vagueness both politically and legally.
14
Irrespective of its lofty statements, the Charter has not adequately addressed the problem of colonialism.
The whole arrangement concerning a trusteeship system and human rights (Article 76) was nothing but a
reflection of the then colonial powers double standards. The international community learned much
about the inhumanity of Nazism and Communism, but at the same time accepted colonialism as another
malaise and enemy of human rights based on a respect for inalienable and inherent human dignity.

In assessing the seven human rights provisions of the Charter one should also point to certain
weaknesses in their legal character. While the Charter refers throughout its text to the concept of human
rights and fundamental freedoms, their definition is missing, nor does the Charter make any mention of
the machinery to be used to secure their observance. This weakness appears, however, to be of
significance since the drafters of the Charter were well aware from their domestic constitutional and
political background what the terms human rights and fundamental freedoms had meant in at least their
commonsensical meanings. In addition, one may reasonably question the very indispensability of
elaborating such a definition. The real problem that remains is thus not the general and descriptive
definition of human rights and fundamental freedoms as such, but rather defining their extent, the
identification of their precise content and their defining their extent, the identification of their precise
content and their implementation mechanisms. These demands were largely remedied and satisfied with
the adoption of the Universal Declaration of Human Rights, the International Covenants and other
instruments, including the establishment of conventional and extra-conventional monitoring procedures.

Furthermore, while there should be no doubt that all these provisions of the Charter, whatever their
wording, are legally binding treaty provisions, their imperative and binding force is diverse in nature. In
the human rights clauses of the UN Charter there is a somewhat general, cautious and open-ended
manner in the way they were drafted. It is no coincidence that one encounters referenced in the Charter
to such terms as promoting, encouraging and assisting in the realization of, instead of tougher terms like
protecting, maintaining, safeguarding or guaranteeing human rights and fundamental freedoms.

Furthermore, a deliberate resort to these open-ended terms was coupled with attributing no power
functions to such organs as the General Assembly or the Economic and Social Council, which shall
initiate studies and may make recommendations (see Articles 13 and 62). During the San Francisco
Conference proposals that the Charter should assure not only promotion and observance, but also
protection of human rights, was defeated because some delegations believed that such language would
have inappropriately raised expectations in relation to the United Nations action on specific human
rights problems.

There is actually no doubt that the factor which mostly determined the open-ended formulation of human
rights clauses was the prohibition, contained in Article 2(7), of intervention by the United Nations in
matters which are essentially within the domestic jurisdiction of States. On the other hand, however,
already in 1945 this principle was construed in terms of a prohibition against exerting direct pressure
through force or the threat of force. Thus the very discussion, study, enquiry or making recommendations
on human rights problems does not constitute an intervention in the sense of Article 2(7). Although this
interpretation was challenged for decades by predominantly autocratic regimes, it finally gained ground
and is virtually universally recognized nowadays.( But its legal basis is still controversial).

All in all, these developments help to explain and clarify why among the seven principles enshrined in
Article 2 it is not possible to identify an explicit formulation of the principle of international respect for
human rights, while the principle of the prohibition of interference in the internal affairs of States
eventually prevailed. It is nevertheless possible to submit that a series of detailed provisions in the
Charter argues for the recognition of the international respect for human rights as a key principle of the
United Nations. The experience of the United Nations has shown that harmonization of Article 2(7) and
the human rights clauses of the Charter have proved to be feasible.

Notwithstanding the apparent weaknesses of human rights clauses in the UN Charter and their largely
‘lex imperfecta’ character, one should not overlook the fact that they remain binding international legal
15
obligations for all the member of the international community.

The UDHR

The adoption of declaration of the human rights was envisaged as the very first item on the United
Nations agenda within the programme of the International Bill of Human Rights. The task of preparing a
declaration was given to the Commission on Human Rights, which started its work in 1947 and
established for that purpose a drafting committee of eight members chaired, by Mrs. Eleanor Roosevelt.
In 1948 the Commission adopted the draft Declaration and submitted it through the Economic and Social
Council to the General Assembly. After lengthy discussions at the General Assembly and its Third
Committee, the Declaration was adopted on 10 December 1948 during the third session of the Assembly
at the Chaillot Palace in Paris. The Declaration was adopted by forty-eight votes in favor, none against
and eight abstentions (Byelorussia, Czechoslovakia, Poland, Saudi Arabia, South Africa, Ukraine, USSR
and Yugoslavia). Altogether the Declaration was drafted and eventually adopted within two years. This
unquestionable success might not have been achieved in subsequent years due to increasing Cold War
tensions between East and West which detrimentally affected the work of the United Nations in human
rights and other fields.

The Universal Declaration was adopted through Resolution 217(III) which contained five parts: Part A,
the text of the Declaration as such; Part B, Right of Petition; Part C, Fate of Minorities; Part D, Publicity
to be Given to the Universal Declaration of Human Rights; and Part E, preparation of a Draft Covenant
on Human Rights and Draft Measures of Implementation. Contained in part A of Resolution 217(III), the
Universal Declaration is made up of the Preamble and 30 articles which comprise its operative part.
Typically for international instruments, the Preamble spells out the philosophy, motives and purposes
which guided the drafters of the Universal Declaration.

The Preamble to the Declaration is significant for several reasons. Its fundamental message lies in the
statement that recognition of the inherent dignity and of the equal and inalienable rights of all members
of the human family is the foundation of freedom, justice and peace in the world (Paragraph 1). The
Preamble thus refers to the concepts of inherent human dignity and the inalienable nature of human rights
as the philosophical sources of the Declaration and inspirations for further development of human rights.
Although such a formulation is often characterized as reflection of Western liberalism, nonetheless these
concepts are discernible in all human cultures of the world. It is thus particularly significant that the
Preamble calls for inter-cultural consensus by indicating that a common understanding of these rights and
freedoms is of the greatest importance for the full realization of the pledge of Members of the United
Nations to achieve the promotion of universal respect for and observance of human rights and
fundamental freedoms (paragraphs 6 and 7).

The Preamble also reflects its pre-1945 roots by pointing out that disregard and contempt for human
rights have resulted in barbarous acts which have outraged the conscience of mankind. Against this
background the Universal Declaration announces the advent of a world in which human beings shall
enjoy freedom of speech belief and freedom from fear and want has been proclaimed as the highest
aspiration of the common people (paragraph 2). The latter provisions reflect explicitly the Four Freedoms
Message to the US Congress by Franklin D. Roosevelt in January 1941.

These significant statements are further accompanied by a unique formulation that it is essential, if man
is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that
human rights should be protected by the rule of law. It is not so much the functional link between rights
and the rule of law that is innovative here, but rather the confirmation by the Declaration of the
customary right of people to resist oppressive governance (paragraph 3).

Another important element of the Preamble is the recognition, in its final paragraph, of the rights and
freedoms contained in the Declaration as a common standard of achievement for all peoples and nations.
This common standard (in French, L’Oreal common) seems to presuppose both a common ideal and a
16
normative reference system for the new international order.

The operative part of the Declaration can be divided into three groups of provisions. The first group
(Article 1) contains an affirmation of the philosophical foundations of human rights by saying that [A] 11
human beings are born free and equal in dignity and rights. They are endowed with reason and
conscience and should act towards one another in a spirit of brotherhood. Although the significance of
this provision cannot be underestimated, it is not formulated in classic legal language. In spite of
proposals to have it transferred to the Preamble, it was retained as the opening of the operative part of the
Declaration.

The second group of provisions proclaims a number of general principles. One is the principle of equality
and non-discrimination (Article 2), the principle that plays a fundamental role in the whole of human
rights law. The second principle relates to the concept of the duties of States in the form of the right of
everyone to a social and international order in which the rights and freedoms set forth in the Declaration
can be fully realized (Article 28).

The third principle spells out a concept of the duties of everyone to the community (Article 29(1)) and
permissible limitations in the exercise of the human rights and freedoms (Article 29(2)). And the fourth
principle provides for the prohibition of activates by any State, group or person aimed at the destruction
of the rights and freedoms set fourth in the Declaration (Article 30).

As far as substantive rights are concerned, the Declaration contains in Articles 3 to 27 the fundamental
civil and political rights and freedoms, as well as economic, social and cultural rights. The catalogue of
rights and freedoms of the first generation includes virtually all the fundamental civil and political rights
and freedoms (Articles 3 to 21). Among these the following were included: the right to life, liberty and
security, freedom from slavery and servitude, freedom from torture and inhuman treatment or
punishment, the right to recognition as a person before the law; freedom from arbitrary arrest, detention
or exile, the right to equal protection of the law, the right to an effective remedy; the right to a fair trial,
the right to privacy, freedom of movement and residence, the right to nationality, freedom of thought,
conscience and religion, freedom of opinion and expression, freedom of assembly and association, the
right to property, the right to participate in the government of one’s country, and others.

Less extensive is the catalogue of economic, social and cultural rights (Articles 22 to 27). This contains
the right to social security, the right to work, the right to rest and leisure, the right to an adequate standard
of living, the right to education, and the right to participate in the cultural life.

This very modest list of socioeconomic rights was a consequence of strong controversies about their legal
character. Nonetheless, the very incorporation of economic, social and cultural rights to the Universal
Declaration has been a substantial innovation in modern international law of human rights.

All in all, the adoption and content of the Universal Declaration has been a great success. The
Celebration constitutes the first internationally adopted catalogue, and in this sense, definition of human
rights. From the perspective of the normative maturity of formulations of human rights, it may be
submitted that the Universal Declaration is one of the best legal instruments on human rights ever
adopted.

The reading of the following extract will be of a great help in understanding the legal and political
status and significance of the UDHR.

The Universal Declaration of Human Rights was deliberately adopted under guise of a resolution of the
UN General Assembly and not that of an international treaty subject to a formal ratification procedure in
Member States. There are, however, ongoing discussions among legal scholars as to whether the
Declaration has, over the years, become a legally binding instrument. Proponents of the binding character
of the Declaration argue for its status as a customary law. Opponents of such a view submit that the
17
establishment of a customary international legal rule requires the existence of general, uniform and
consistent practice by States followed by the mergence of an opino iuris that is of a conviction or belief
by States in the obligatory character of such a practice.

With these requires in mind it may be claimed that the practice of world-wide violations of human rights
before and after 1948 fails to satisfy the condition on general, uniform and consistent practice by States.
Some scholars submit that the binding customary nature of the Declaration stems from the absence of
opposition to its principles by States as reflected in their constitutions and official government
statements. There is some logic in this argument but for a formation of a custom the decisive factor is the
actual practice and not lofty statements by governments, often colored with hypocrisy. Thus what matters
is the deeds, and not the words of governments? It may cautiously be concluded that these endless
disputes are, to a large extent, futile scholarly exercises since the Declaration itself has proved its
fundamental importance without necessarily being recognized as a part of customary international law.

By the adoption of the Universal Declaration, Members of the United Nations have made a political
commitment to implement the rights contained therein. The legal and political significance of the
Universal Declaration may be illustrated by several development and tangible achievements. As a
universally accepted normative reference system, the Declaration permeated domestic legal systems of
numerous States by the incorporation of its provisions into national constitutions and other legislative
instruments. In several newly independent States (e.g. In Africa), the Universal Declaration was included
as a whole or in extensive parts in their constitutions. In the constituents of several new European
democracies (e.g. Spain and Romania), there are explicit references to the Declaration as a reference
system. It has similarly become a reference for domestic courts in developing their case law on human
rights issues. No less significant is the resort to the content of the Declaration by non-governmental
actors. The domestic impact of the Declaration has thus been much wider than might have been expected
of a non- binding instrument.

The Universal Declaration of Human Rights should, therefore, be seen above all as a document that has
exerted a profound and comprehensive impact internationally and domestically in furthering the
promotion and protection of human rights. Its inspirational role has not yet been exhausted.

The Covenants on Civil a political and Economic, social and Cultural Rights

After the adoption of the Universal Declaration, the Commission on Human Rights embased on the
second part of ‘the Bill of Human Rights’ namely the development of norm that were undisputedly
binding on those states that choose to adhere to them. The General Assembly at its first session in 1946
assigned the commission the task of preparing an ‘international bills of rights. Today, the International
Bill of Rights is regarded as consisting of the Universal Declaration of Human Rights, the International
Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political
Rights and its two optional protocols. The commission proposed in 1950 to keep all rights in one
convention. However, USA and some other western countries argued against this proposal and in 1951
they succeeded in persuading the General Assembly not to follow the recommendations of the
Commission on Human Rights but instead decided in favor of two separate conventions, on civil and
political rights and the other on economic, social and cultural rights. The arguments put forward by USA
and others were centred around asserted differences in regard to the possibility for the individual to
legally enforce his rights and the different kind of monitoring mechanisms the two sets of rights would
require.

The International Covenant on Economic, Social and Cultural Rights

The International Covenant on Economic, Social, and Cultural Rights consists of 31 articles, of which the
first 15 are of a normative character and the last 16 of a more procedural nature. In its normative articles
it sets out many of the fundamentals for the well being and prosperity of an individual. Each state party is
under an obligation to undertake steps ‘to the maximum of its available resources with a view to
18
achieving progressively the full realization of the rights recognized in the present covenant, by all
appropriate means, including particularly the adaption of legislative measures’ (Article 27 the Covenant).

A core provision is Article 11, which recognizes the rights of everyone to an adequate standard of living,
including adequate food, clothing and housing, and to the continuous improvement of living conditions
unfortunately, as the committee itself has noted, in many parts of the world there exists a disturbingly
large situation. Much debate had been held on the difficulties to enforce and measure to what extent a
state party is fulfilling its obligation under the Covenant. However, several fundamental principles apply,
e.g. the important principle of non-discrimination. Also, the exercise of particular economic, social or
cultural rights presupposed or is linked to the exercise and enjoyment of rights of a civil or political
nature. For example, the enjoyment of many cultural rights presupposes the rights to freedom of
association, of religion and expression.

The International Convention on the Elimination of All Forms of Racial Discrimination

In 1969, seven years before the afore discussed two covenants entered into force, the International
Convention on the Elimination of All Forms of Racial Discrimination (CERD) entered into force after
having been adopted in 1965 by the General Assembly. The Convention, which as of January 2001 has
156 states parties, was the first United Nations human rights instrument outside the provisions on Human
Rights in the Charter that established an international monitoring system, including a procedure for
individual complaints. At the time of the elaboration of its provisions the Commission on Human Rights
was occupied with drafting the two covenants. The convention was essentially the work of the General
Assembly itself, in consolation with various other bodies. The conclusion of the Convention was a
priority objective not the least of the new member states of the UN, which had just gained their
independence in the early 1960s.

The Convention on the Elimination of Discrimination against Women

Equal rights of women and men are a basic principle of law embodied in the charter of the United
Nations and in numerous human rights instruments in the preamble and in the provisions dealing with
non-discrimination, eg. Article 1, Para. 3 and Article 55of the Charter. This principle is proclaimed in the
Universal Declaration as well as in the two covenants (Articles 1 and 2 of the Universal Declaration and
in both covenants, but in different paragraphs). In addition, states parties specifically undertake to ensure
the equal right of men and women to the enjoyment of all rights set forth in each covenant (Article 3 of
both covenants).

The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment

Although the eradication of torture has long been a goal proclaimed by the international community,
torture is still practiced in many states. Several prominent human rights experts and nongovernmental
organizations actively campaign so that governments give priority to this problem. Today representatives
of basically all states agree publicly that torture is an example of human rights violation which can never
be accepted. Yet, the reports of Amnesty, Human Rights Watch and other human rights organizations
bear ample evidence that the factual situation in police stations, prisons and military establishments in
very different from the commitment undertaken by governments in this respect. Much too often, acts of
torture are committed with compete impunity for the torturers.

The Convention of the Right of the Child

The welfare and rights of children have been a subject which the United Nations has dealt with since its
creation. Already the League of Nations had promoted the idea of granting special protection to the rights
of the child through the adoption in 1924 of a Declaration on the Rights of the Child. One of the first
decisions of the General Assembly in 1946 was to create the United Nations Fund for Children
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 (UNICEF), an organization which during a first phase dealt primarily with assistance to children affected
by emergencies. In 1953 it was made a permanent body and its mandate expanded to cover development
issues and the welfare of children in a more general sense. Now a day, UNICEF regards the promotion
and protection of the rights set out in the 1989 Convention on the Rights of the Child as a general
framework and mandate for all its activities.

The Universal Declaration of Human Rights, adapted in 1948, recognized in article 25 that ‘childhood is
entitled to special care and assistance’ and that ‘all children, whether born in or out of wedlock, shall
enjoy the same social protection’ In 1959, the United Nations adopted a Declaration on the Rights of the
Child, where the rights from the old 1924 Declaration were reaffirmed and further elaborated. The need
to give the force of legally binding obligations to children’s rights also became more evident, and in
1979- the International Year of the Child- the Commission on Human Rights Started its work on the
drafting of a convention. The drafting process took ten years.

The Convention establishes a Committee on the Rights of the Child, originally composed of 10 members,
but which the states parties in 1995, decided should be enlarged to 18 members. As of January 2001 the
amendment had not entered into force and the number of expert members remains ten. The members of
the committee are nominated and elected by states, but serve in their personal capacity and those
covenants of other international instruments.

Reservations and Declarations

When becoming party to a treaty, a state may, by formulating reservations, declarations and interpretative
statements, seek to limit its domestic application beyond what is permissible under the limitations
referred to above. Although it is desirable that states become party to a convention unconditionally, this
is often not the case.

Reservation

In general terms, a reservation is a statement made by a state by which it purports to exclude or alter the
legal effect of certain provisions of a treaty in their application to that state. A reservation may enable a
state to participate in a multilateral treaty that it would otherwise be unable or unwilling to participate in.

The International Court of Justice stated in its Advisory Opinion on the Genocide Convention (1951):
‘Object and purpose of the Convention limit both the freedom of making reservations and that of
objecting to them.’ These words were later codified in Article 19 of Vienna Convention on the Law of
Treaties which sets out the general rule on reservations:

A state may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a
reservation unless:

- The reservation is prohibited by the treaty;

- The treaty provides that only specified reservations, which do not include the reservation in question,
may be made; or
- In cases not falling under subparagraphs (a) and (b), the reservation is incompatible with the object and
purpose of the treaty.

Unless expressly permitted by a treaty, the effectiveness of a reservation is dependent on its acceptance
by other states parties, and any other state party may object to it. As a rule, a reservation is considered
accepted by another state party if that state party has raised no objection within twelve months after it has
been notified of the reservation (Article 20 (5) VCLT). Regrettably, silence on the part of other states
parties seems to be the common response to reservations; and, unfortunately, this silence is rarely the
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 result of conscious deliberation.

Reservations often reflect an admission (opposition) that the country in question cannot, or will not, bring
its conduct up to international standards. General reservations may, moreover, encourage other states to
follow suit, and thereby reduce the ability of the state making the reservation to complain when other
states make similar reservations. Furthermore, extensive limitations may contravene established
principles of international law contrary, for instance, to Article 27 VCLT that states: ‘A party may not
invoke the provisions of its domestic law as justification for its failure to perform a treaty’.

Declarations

Some conventions allow or even require states parties to make declarations concerning the extent to
which they are bound by a certain provision. Such statements may relate to the competence of a
supervisory mechanism. For instance, Article 41 ICCPR stipulates that a state party may choose (not) to
recognise the competence of the Human Rights Committee to receive state complaints regarding its
human rights performance. This type of declaration, as provided by the instruments, does not pose major
problems. However, a state party may also make interpretative declarations, otherwise known as
understandings, whereby it does not intend to modify or limit the provisions of the treaty, but indicates
merely how it interprets a particular article. Such interpretative declarations may raise certain problems
in international law as to their differentiation with reservations.

The VCLT is silent on the question of interpretative declarations. However, the International Law
Commission has studied the matter at length and several international human rights bodies have dealt
with the issue.

Institutions and Procedures

The numerous human rights conventions under the framework of the United Nations and the regional
systems in Africa, the Americas and Europe have led to the creation of a wide range of mechanisms for
monitoring compliance with the standards agreed upon. Here we will examine the different procedures,
which have been instituted at the international and regional levels to monitor compliance with human
rights treaties.

There are two distinctive types of supervisory mechanism:

- Treaty-based mechanism: supervisory mechanisms enshrined in legally binding human rights instruments
or conventions. Within the UN framework these mechanisms are often called ‘treaty bodies’ e.g., the
Human Rights Committee and the Committee on the Rights of the Child. The African Commission and
future Court on Human and Peoples’ Rights, the European Court and commission of Human Rights and
the Inter-American Court and Commission of Human Rights are also treaty bodies.
- Non-treaty- based mechanisms: supervisory mechanisms not based on legally binding human rights
treaty obligations. Generally, this type of mechanism is based on the constitution or charter of an
intergovernmental human rights forum, or on decisions taken by the assembly or a representative body of
the forum in question. Under the UN framework, the non-treaty-based mechanisms are referred to as
‘charter based’ mechanisms, which include the 1503 procedure and the country mandates. The European
Commission against Racism and Intolerance under the Council of Europe is also an example of a
regional non-treaty based mechanism.

Treaty Based Mechanisms

The six most well-known human rights treaties are the two Covenants (ICESCR and ICCPR), CERD,
CEDAW, CAT and CRC. In addition, mention should be made of the CMW, which entered into force in
2003.

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Each of these conventions has a supervisory body. These bodies consist of a number of experts of a high
moral character and recognised competence in the field of human rights. They act in their personal
capacity, which means that although they are normally nationals of a state party to the treaty in question,
they are not acting under instructions from respective governments. The treaty-based procedures are the
mechanisms established within the context of a specific human rights treaty. The Convention on the
Elimination of All Forms of Racial Discrimination (1965) was the first human rights treaty of universal
application to provide for a mechanism of supervision. This mechanism subsequently served as a model
for other human rights treaties, notably the International Covenant on Civil and Political Rights. The
treaty bodies, with the exception of the Committee on Economic, Social and Cultural Rights, are not
organs of the UN, but derive their status from the convention concerned. To implement these
conventions, regular meetings of states parties are held to discuss issues regarding the conventions,
mainly in connection with the election of members to the treaty bodies.

All UN human rights conventions contain a reporting procedure: Article 16 of ICESCR, Article 40 of
ICCPR, Article 9 of CERD, Article 19 CAT, Article 44 of CRC, Article 18 of CEDAW and Article 73 of
CMW.

Inter-state-complaint procedure

Some human rights instruments allow states parties to initiate a procedure against another state party,
which is considered not to be fulfilling its obligations under the instrument. In most cases, such a
complaint may only be submitted if both the claimant and the defendant state have recognised the
competence of the supervisory body to receive this type of complaint.

The possibility to lodge complaints against another state party is contemplated in, inter alia, Article 41 of
ICCPR; Article 21 of CAT; Article 11 of CERD. In practice, inter-state complaint mechanisms are
seldom used. Inter-state relationships are delicate and inter-state mechanisms may not be ideal
procedures as states bringing complaints may elicit reprisals. In addition, many states have not
recognised the competence of the supervisory bodies to receive inter-state complaints.

Individual complaint procedure

It seems reasonable that individuals, on whose behalf human rights were stipulated in the first place,
should be enabled to initiate proceedings to protect their rights. Such a procedure, whereby an individual
holds a government directly accountable before an international supervisory body aims to afford far-
reaching protection to the individual. In order for an individual to bring a case/communication/petition
under a human rights convention, the following requirements have to be met: a) the alleged violating
state must have ratified the convention invoked by the individual; b) the rights allegedly violated must be
covered by the convention concerned; and c) proceedings before the relevant body may only be initiated
after all domestic remedies have been exhausted.

At the UN level, individual complaint mechanisms are found under five conventions: in the First
Optional Protocol to the ICCPR; Article 22 of CAT; Optional Protocol to the CEDAW; Article 14 of
CERD and Article 77 of CMW. Individual complaints under one of the above-mentioned treaties can be
brought only against a state that has recognised the competence of the committee established under the
relevant treaty or become party to the relevant optional protocols. In the case of the ICCPR and the
CEDAW, a state recognises the Committees’ competence by becoming a party to an optional protocol,
which has being added to the ICCPR and the CEDAW.

While there are some procedural variations between the different UN treaties, their design and operation
are very similar. In general terms, the system works as follows: Once a complaint (which should comply
with some basic requirements) is submitted, the case is registered and transmitted to the state party
concerned to give it an opportunity to comment. The state is requested to submit its observations within a
set time frame which varies between procedures.
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Inquiries and other procedures

The group of supervisory mechanisms now discussed includes all procedures that do not fall under those
mentioned above. Most involve inquiries, but others may entail initiatives aimed at preventing violations
or promoting compliance with specific human rights. The supervisory

bodies discussed above play a rather passive role as they generally cannot initiate proceedings, and are
largely dependent on information submitted by governments, or individual plaintiffs or petitioners.

Recently, however, several supervisory mechanisms have been established whereby an independent
person or group of persons may raise, on the person’s or group’s own initiative, issues of non-compliance
with human rights. Such a body may, for instance, act upon receipt of complaints or take an initiative
itself. It may also initiate a visit in loco to gather information, or do so as part of a regular visit-
programme. One example of a visit-programme - an enquiry – and in loco visits procedure - is that set
out in Articles 126 and 132 of the Third Geneva Convention (1949), and the provision in Article 143 of
the Fourth Geneva Convention providing for on-site visits to places of internment or detention. Mention
should also be made of the International Fact-Finding Commission established under Article 90 of
Protocol I to the Geneva Conventions.

Non-treaty Based (Charter Based) Mechanisms

International Court of Justice (ICJ)

The International Court of Justice is the principal judicial organ of the United Nations. Its statute is an
integral part of the charter of the United Nations and, consequently, all member states of the United
Nations are ipso facto parties to the statue of the court. Only states may be parties in cases before the
courts and the jurisdiction of the court will comprise all cases which the parties refer to it. In addition,
states parties to the statute may at any time declare that they recognize as compulsory ipso facto and
without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of
the court in all legal disputes concerning: (a) the interpretation of a treaty; (b)any fact which, if
established, would constitute a breach of an international obligation; and (d) the nature or extent of the
reparation to be made for the breach of an international obligation.

The General Assembly or the Security Council may request the court to give an advisory opinion on any
legal question – other organs of the United Nations and specialized agencies, which may at any time be
so authorized by the General Assembly, may also request advisory opinions of the court on legal

questions arising within the scope of their activities. A number of human rights instruments contain
provisions where by any dispute between the contracting states relating to the interpretation, application
or fulfillment of the instrument may be submitted to the Court at the request of any of the parties to the
dispute. However, neither the ICCPR nor the ICESCR specifically provides for adjudication by the court.

Security Council

Under the charter of the United Nations member states have conferred on the Security Council primary
responsibility for the maintenance of international peace and security and have agreed that in carrying out
its duties under this responsibility the Security Council acts on their behalf. The Security Council may
investigate any dispute, or any situation which might leads to international friction or give rise to a
dispute, in order to determine whether the continuance of the dispute or situation is likely to endanger the
maintenance of international peace and security. Any member of the United Nations may bring such
dispute to the attention of the Security Council. When the Security Council determines the existence of
any threat to the peace, breach of peace, or act of aggression, it may make recommendations, or decide
what measures shall be taken to maintain or restore international peace and security measures which the
security council may initially take include complete or partial interruption of economic relations and of
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rail, sea, air postal, telegraphic, radio, and other means of communication, and the severance of
diplomatic relations. If such measures would be, or prove to be, inadequate, it may take such action by
air, sea, or land forces as may be necessary to maintain or restore international peace and security.

United Nations General Assembly

One of the functions of the United Nations General Assembly is to initiate studies and make
recommendations for the purpose of assisting in the realization of human rights and fundamental
freedoms for all without distinction as to race, languages or religion Such matters are usually referred by
the General Assembly to its Third Committee which deals with social, humanitarian and cultural matters.

Economic and Social Council

The Economic and Social Council is authorized by the charter of the United Nations to make
recommendations for the purpose of promoting respect for, and observance of human rights and
fundamental freedoms for all.” In connections to this function, it is also authorized to prepare draft

conventions for submission to the General Assembly, to call international conferences, and to obtain
reports from member states on the steps taken to give effect to its recommendations and to those of the
General Assembly, and to communicate its observations on these reports to the General Assembly.
ECOSOC may also furnish information to the Security Council. Acting on the authority, of the charter,
one of the first decisions of ECOSOC was to establish the Commission on Human Rights and the
Commission on the Status of Women ECOSOC is a political body which originally comprised lightens
members but now consists of fifty four members of the United Nations elected by the General Assembly.
It normally holds an organizational session and two regular sessions each year. Human rights items are
usually referred to the first session of the social committee on which all fifty-four members are
represented.

UN Human Rights Council

The Commission on Human Rights is the principal functional organ of the United Nations concerned
with human rights. It consists of fifty-three members-all-states-who are elected from time to time by
ECOSOC. These fifty-three states are elected on a geographical basis and represent a cross-section of the
world in many respects. The Commission is essentially a political body, and its states members include
those whose human rights records range from the good to the dismissal. Yet, it is this body that drafted
the UDHR, the ICCPR and ICESR, and all the principal human rights instruments.

In addition to representatives of its states members, sessions of the Commission may be attended by
representative of any member state of the United Nations which is not represented on the Commission
but in invited to participate in its deliberations, and by observers from states members and non-members
of the United Nations not represented on the Commission, and from United Nations bodies, specialized
agencies, other inter-governmental organizations concerned with human rights, national liberation
movements, and non-governmental organizations in consultative status with ECOSOC.

REGIONAL HUMAN RIGHTS SYSTEMS

The European Human Rights System

In May 1948, 800 prominent members of the various sectors of the European Community drawn from
nineteen European states including politicians, lawyers and those active in wartime resistance
movements, met in The Hague, under the auspices of the International Committee of Movements for
European Unity, to demonstrate their support for the cause of Europeans Unity. The immediate
consequence of the Hague Congress was the creation, one year later of the Council of Europe
Comprising two principal organs, a Committee of Ministers (which meets at least twice a year at
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ministerial level and throughout the year at the level of their deputies, and provides an opportunity for a
continuing dialogue on the development of European co-operation) and a Parliamentary Assembly
(which is a consultative body with no legislative powers elected by the parliaments of member states or
according to a procedure determined by them).

The objectives of the Council, and therefore the obligations incumbent on its members, we described it as
the consolidation of pluralist democracy, respect for human rights, and the assertion of the rule of law.
The statute creating the Council of Europe was signed in London on 5 May 1949. A common history and
shared cultural traditions, coupled with what was perceived as a growing threat to their accustomed way
life from an alien transplanted ideology, enabled its member states, barely two years after the
proclamation of Human Rights and Fundamental Freedoms, (ECHR). Twelve states signed the EHCR in
Rome on 4 November 1950. It entered into force in September 1953, and has now been ratified by all
member states.

The roots of the ECHR lie in the movement for European reconstruction and the attempts to create a
lasting peace after the Second World War. The Council of which came into force in 1953. The
Convention contains a catalogue of rights, but has been criticised for excluding social and economic
rights. The Convention also created a Commission and a Court, and it is worth noting the radical nature
of these institutional innovations. It is also important to note that there have been institutional reforms -
most importantly, the abolition of the Commission and the rise in importance of the right of individual
petition.

The European Convention on Human Rights Article 1 states an ‘obligation to respect human rights’.
Like the equivalent in the American Convention, it states a founding principle that underlies the
operation of the Treaty. State parties undertake to ‘secure to everyone within, their jurisdiction’ the rights
that are defined by the Convention. Section 1 goes on to list the rights and freedoms that are protected.

The Inter-American Human Rights System

The Charter of the Organization of American States (OAS) was singed on 30 April 1948 at the Ninth
International Conference of American States convened in Bogota. The Charter enters into force on 13
December 1951. Its preamble stated that ‘the historic mission of American is to offer to man a land of
liberty, and a favourable environment for the development of his personality and the realization of his
just aspirations,’ and that ‘the true significance of American solidarity and good neighborliness can only
mean the consolidation on this continent, within the framework democratic institutions, of a system of
individual liberty and social justice based on respect for the essential rights of man.’ In its substantive
provisions, the charter reaffirmed and proclaimed as a principle of the OAS ‘the fundamental rights of
the individual without distinction as to race, nationality, creed or sex.’ At the same conference, the
American Declaration of the Rights and outside of man was adopted in the form of a resolution.

The old powers allowed the Commission to look at the human rights situation and to report on flagrant
and repeated violations. The Commission could request information from the government concerned with
a view to making recommendations, and with the consent of the relevant government, make a country
visit. It could only consider individual complaints as part of its examination of general abuses of human
rights. In 1965, these powers were extended, allowing the Commission to take into account individual
abuses, but only in limited cases. In these instances, the Commission could issue a report, but it could not
make decisions.

The states parties to the ACHR under take to respect and to ensure the free and full exercise of these
rights ‘to all person subject to their jurisdiction’ (Article 1 of the Convention). Two bodies monitor these
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obligations; each composed of seven experts the Inter-American Commission on Human Rights
established in 1959, and the Inter-American Court of Human Rights.

The African Human Rights System

The other regional human rights instrument is the African Charter on Human and Peoples’ Rights
(ACHPR). The initiative for an African Human Rights Charter was taken at a meeting of African jurists,
the African Conference on the Rule of Law, convened by the International Commission of Jurists (ICJ) in
Lagos in 1961. The idea was developed at a number of UN seminars and ICJ conferences held in the
following years. UN seminars were held in Cairo in 1969 and in Dar-es-Salam in 1973.

At the 1978 Dakar symposium organized by the ICJ and the Senegalese Association for Legal Studies
and Research, a follow-up group was formed to ‘sell’ the idea to African Heads of State. In the following
year, on the initiative of president Senghor of Senegal, the Assembly of Heads of State and Government
of the Organization of African Unity (OAU) meeting in Monrovia decided to convene a meeting of
‘highly qualified experts’ to prepare a preliminary draft of a convention that would provide for the
promotion and protection of human rights in Africa. A few months later, at a UN seminar in Monrovia
which was attended by the representatives of thirty African states, several specific proposals relating to
the establishment of a regional commission in Africa were adopted. The draft prepared by African
experts was considered at two sessions of the conference of OAU Ministers of Justice held in Gambia in
1980 and 1981. In June 1981, the ACHPR was unanimously adopted at the Nairobi Assembly of Heads
of states and Government of the OAU. It became operative in October 1986, and an African Commission
began functioning on 2 November 1987.

An eleven member Commission has the task of promoting the rights, ensuring their protection, and
interpreting the AFCHPR (Article 45 of the Charter). Its promotional activities include making
recommendations to governmental and formulating principles and rules aimed at solving legal problems
relating to the enjoyment of the recognized rights upon which governments may base their legislation.

In 1998, the thirty-fourth summit of Head of State and Government of the OAU adopted a protocol to the
ACHPR for the establishment of an African Court on Human and Peoples’ rights.

The Arab and Asian Human Rights Systems

The Arab and Asian states have not yet created regional human rights regimes, but some steps have been
taken in that direction. In 1968, the Council of the Arab League adopted a resolution relating to the
creation of a Permanent Arab Commission on Human Rights. On September 15, 1994, the League of
Arab States approved an Arab Charter on human Rights building on earlier texts adopted by regional
non-governmental organizations and inter-governmental organizations. The Charter has not yet entered
into force. It requires acceptance by seven states before it comes into force. As of January 1, 1998, only
Egypt had ratified the Charter. Iraq signed it on February 5, 1996.

In Asia, despite efforts by NGOs and the U.N., governments in the region have been unwilling in general
to ratify global human rights instruments, or create a regional human rights system. As of March 1998,
for instance, 27 states in the region, including virtually all Pacific Island States, had not signed or ratified
either the UN Covenants or the Torture Convention. The vastness of geographical scope of the region,
the vast differences in culture, language, political ideology and economic development among nations,
the recent economic crisis in Asia, coupled with a lack of a regional organization, constitute serious
hurdles to the creation of an Asian- Pacific regional system. However, with ongoing effort by the UN,
NGOs and political movements to enhance human rights respect and awareness in the region through the
dismantling of the concept of ‘Asian’s values’

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Systems of Protection for Vulnerable Groups

The aim of human rights instruments is the protection of those vulnerable to violations of their
fundamental human rights. There are particular groups who, for various reasons, are weak and vulnerable
and consequently require special protection for the equal and effective enjoyment of their human rights.
Often human rights instruments set out additional guarantees for persons belonging to these groups; i.e.,
the Committee on Economic, Social and Cultural Rights has repeatedly stressed that the ICESCR is a
vehicle for the protection of vulnerable groups within society, requiring states (parties) to extend special
protective measures to them and ensure some degree of priority consideration, even where in the face of
severe resource constraints.

This part focuses on groups that are especially vulnerable to abuse of human rights; groups that have
difficulties defending themselves and are therefore in need of special protection. Twelve groups are
discussed: 1) women and girls; 2) children; 3) refugees; 4) internally displaced persons; 5) stateless
persons; 6) national minorities; 7) indigenous peoples; 8) migrant workers; 9) disabled persons; 10)
elderly persons; 11) HIV positive persons and AIDS victims. Clearly this is not an exhaustive list of
persons in need of particular protection, as many other groups not discussed in this part suffer from
discrimination and oppression. In the case of women and children special issues of concern are further
examined.

Women’s rights

The inferior status of women is entrenched in history, culture and tradition. Through the ages, national
and religious institutions have been called upon to justify violations of women’s rights to equality and
enjoyment of fundamental human rights. Even now, women are subject to discrimination in all stages of
life; in income, education, health and participation in society and they are particularly vulnerable to
specific violations such as gender-based violence, trafficking and sex discrimination. Various
international bodies have been established with the aim of eradicating policies, actions and norms that
perpetuate discrimination against women and violate women’s human rights.

International Human Rights Standards

After the Second World War, a number of treaties on the protection of women were drafted and both the
UN Charter and the International Bill of Human Rights (see e.g. Article 3 of ICESCR and Article 3 of
ICCPR) proclaim equal rights for men and women and ban discrimination on the grounds of sex. In
addition to instruments relating to discrimination in general, a whole series of instruments have been
developed specifically for the protection of women, the elimination of discrimination against women and
the promotion of equal rights. These serve to create a broad, international framework for future
developments and the establishment of general norms for national policy.

One of the most important instruments for the protection of women is the Convention on the Elimination
of All Forms of Discrimination Against Women (CEDAW), which was adopted by the UNGA on 18
December 1979, following consultations over a five-year period by various working groups, the CSW
and the UNGA. It entered into force in 1981. The 30-article Convention sets out internationally accepted
principles and measures to achieve equal rights for women everywhere. As of July 2004, 177 states were
parties to CEDAW.

The CEDAW reflects the scope of exclusion and restriction suffered by women solely on the basis of
their sex. It sets out equal rights for women, regardless of their marital status, in all fields - political,
economic, social, cultural and civil and calls for national legislation banning discrimination. It allows for
temporary special measures (affirmative action) to accelerate the achievement of equality in practice
between men and women (Article 4), and actions to modify social and cultural patterns that perpetuate
discrimination (Article 5). Other measures aim at equal rights for women in political and public life
(Article 7); equal access to education and equal choice of curricula (Article 10); non-discrimination in
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employment and pay (Article 11); and guarantees of job security in the event of marriage and maternity
(Article 11). The Convention underlines equal responsibilities of men with women in the context of
family life (Article 16). It also stresses the social services needed - especially childcare facilities - for
combining family obligations with work responsibilities and participation in public life (Article 11).

Furthermore, articles of the Convention call for non-discriminatory health services for women, including
services related to family planning, and equal legal capacity to that of men. States Parties agree that all
contracts and other private instruments that restrict the legal capacity of women’shall be deemed null and
void’ (Article 15). Special attention is given to the problems of rural women (Article 14).

It should be noted that the effectiveness of the Convention in promoting the rights it contains is
significantly undermined by the numerous reservations made by States Parties. Most reservations aim to
preserve religious and national institutions that are contrary to the rights guaranteed and many are
obviously incompatible with the object and purpose of the Convention.

Other universal instruments relating to the rights of women include the UN Convention for the
Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others (1949), the UN
Convention on the Political Rights of Women (1952) and the UN Convention on the Nationality of
Married Women (1957). Furthermore, the Rome Statute of the International Criminal Court (1998)
Article 7 establishes that rape, sexual slavery, enforced prostitution,

forced pregnancy, enforced sterilisation and other forms of sexual violence are each to be considered a
crime against humanity.

Supervision

The CEDAW establishes the Committee on the Elimination of Discrimination Against Women to
oversee the implementation of the rights it guarantees (for further analysis of the Convention and
Committee see XX). The Committee acts as a monitoring system to oversee the implementation of the
Convention. This is done principally by examining reports submitted by states parties, but in 1999, an
optional protocol expanded the powers of the Committee to include competence to receive individual
complaints. This procedure allows individuals and groups of individuals, alleged victims of violations, to
file a complaint against states parties to the protocol. As has been examined, the Optional Protocol also
establishes a distinctive feature: an inquiry procedure that allows the Committee to initiate investigations
into suspected grave or systematic violations by a state party of the rights contained in the Convention. In
this regard the Committee can carry out visits to the country in question.

Although the CEDAW Committee has the competence to receive individual complaints, to date no
individual cases have been decided. Individual communications regarding sex-discrimination have,
however, been brought to the Human Rights Committee. In the Mauritanian Women Case (Aumeeruddy
Cziffra and 19 other Mauritanian Women v. Mauritius), the Committee found that an immigration law
giving certain status to wives and not husbands made an adverse distinction on the grounds of sex on the
right to be free from arbitrary and unlawful interference with the family and was in violation of the
ICCPR. Another case brought before the Human Rights Committee dealt with a law that stipulated that
married women could not claim continued unemployment benefits unless they proved they were either
‘breadwinners’ or that they were permanently separated from their husbands. This condition did not
apply to married men. The Committee found a violation of Article 26 ICCPR (non-discrimination) on the
grounds of sex (Broeks v. The Netherlands). Article 26 is ‘free-standing’, meaning that it can be applied
to discriminatory laws, whether or not the subject matter is covered by provisions of the ICCPR. ICCPR
(for further analysis see the right to equality and non-discrimination part 3.12).

The rights of the child

Every child has the right to grow to adulthood in health, peace and dignity. Young children are
28
 vulnerable and dependent on adults for their basic needs, such as food, health care and education.

Ensuring the rights of children to health, nutrition, education, and social, emotional and cognitive
development is imperative for every country and entails obligations for every government. Ensuring that
children enjoy fundamental rights and freedoms not only advances a more equitable society, but fosters a
healthier, more literate and, in due course, a more productive population. Clearly, children’s rights are
closely tied to women’s rights; even before being born a child’s rights survival and development is
dependent on the mother’s health and opportunities. Women are still primary care-givers for children, so
ensuring women’s rights is positively linked to children’s enjoyment of human rights.

Intenational Human Rights Standards

In 1924, the League of Nations adopted a Declaration on the Rights of the Child (Declaration of Geneva),
containing five basic principles reflecting the clear consensus that children were in need of special
protection. In 1959, the UNGA unanimously adopted another more elaborate Declaration on the Rights
of the Child, stating in the preamble that ‘the child’ by reason of his physical and mental immaturity,
needs special safeguards and care, including appropriate legal protection, before as well as after birth

Serious work on drafting a convention on the rights of the child began in the final years of the 1970s,
resulting in the UNGA adoption of the Convention on the Rights of the Child (CRC) on 20 November
1989. The Convention entered into force on 2 September 1990 and a few years later the majority of the
world’s states had ratified it. As of July 2004, 192 states had ratified the Convention, making the CRC
the most universally accepted human rights treaty ever drafted. The United States and Somalia are the
only UN members, which have not ratified the Convention.

The Convention is meant to be all encompassing and sets out civil, political, social, economic and
cultural rights for ‘every human being below the age of eighteen years, unless under the law

applicable to the child, majority is attained earlier’ (Article 1). Four general principles have guided the
authors of the Convention:

- The principle of non-discrimination (Article 2),

- The best interests of the child (Article 3),
- The right to life, survival and development (Article 6 ) and
- Respect for the views of the child (Article 12).

Underpinning the CRC are three core concepts; protection, provision and participation: a) protection,
against, e.g., violence, abuse, neglect, maltreatment or exploitation (Article 19); b) provision of, e.g.,
name and nationality (Article 7), social security, adequate standard of living and education (Articles 26 to
28); c) participation through the right of a child to express its views, to freedom of thought and to
freedom of association (Articles 12 to 15).

Supervision

The CRC establishes the Committee on the Rights of the Child to supervise the progress made by the
states parties in achieving the realisation of their obligations contained in the Convention. The
Committee is composed of ten multidisciplinary experts from fields such as international law, medicine,
education and sociology, whose main task is to review reports submitted by states on actions they have
taken to implement the Convention, as it has no competence to receive individual complaints. The
Committee may convene informal regional meetings with the collaboration of UNICEF, to get familiar
with the different issues facing children in different regions, as well as establishing dialogues with NGOs
and governments. Like other supervisory mechanisms, the Committee adopts General Comments for the
interpretation of the rights contained in the CRC. The Committee has recently (2003) adopted General
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 Comment 5 on general measures of implementation of the CRC, outlining the obligations of states in
regard to the Convention.

Protection of disabled persons,

Discrimination against persons with disabilities has a long history and persons with disabilities are
regularly excluded from participation in society and denied their human rights. Discrimination against
the disabled can take many forms, ranging from limited educational opportunities to more subtle forms,
such as segregation and isolation because of physical and social barriers. The effects of discrimination
are most clearly felt in the sphere of economic, social and cultural rights, in the fields of, for instance,
housing, employment, transport, cultural life and access to public services. The obstacles the disabled
face in enjoying their human rights are often the result of exclusion, restriction, or preference, and, for
instance, when the disabled do not have access to reasonable accommodation on the basis of their
limitations, their enjoyment or exercise of human rights may be severely restricted. In order for disabled
persons to freely enjoy their fundamental human rights, numerous cultural and social barriers have to be
overcome; changes in values and increased understanding at all levels of society has to be promoted, and
those social and cultural norms that perpetuate myths about Refugee

The problem of the world’s refugees and internally displaced persons is one of the most complex issues
facing the world community today. Much discussion is taking place, both at the United Nations and in
other fora, to improve protection for these particularly vulnerable groups.

Throughout history, people have fled their homes to escape persecution. In the aftermath of World War
II, the international community included the right to seek and enjoy asylum in the 1948 Universal
Declaration of Human Rights. In 1950, the Office of the United Nations High Commissioner for
Refugees (UNHCR) was created to protect and assist refugees, and, in 1951, the United Nations adopted
the Convention Relating to the Status of Refugees (1951 Convention), which is the cornerstone document
of refugee protection. In addition, the Protocol relating to the Status of Refugees (the 1967 Protocol)
helped to widen the definition of a refugee, as it lifted the time and geographic limits found in the 1951
Convention.

While the international community has generally responded swiftly and generously to refugee crises in
the past 50 years, some worrying trends are emerging. Countries that once generously opened their doors
to refugees have largely regressed in their commitment to protect refugees by adopting adversarial and
restrictive policies. Real and perceived abuses of asylum systems, as well as irregular movements, have
led to the refusal of entry to refugees and expulsion from asylum countries. Those who reach a potential
country of asylum are often turned away or sent back without having been able to apply for asylum.

The majority of today’s refugees are from Africa and Asia. Current refugee movements frequently take
the form of mass exoduses rather than individual flights. Eighty percent of today’s refugees are women
and children and the causes of flight now includse natural or ecological disasters and extreme poverty. As
a result, many of today’s refugees do not fit the definition contained in the 1951 Convention. In 2001,
there were an estimated 14.9 million refugees in the world people who had crossed an international
border to seek safety and at least 22 million internally displaced persons (IDPs) who had been uprooted
within their own countries.

According to the 1951 Convention relating to the Status of Refugees, a refugee is someone who:

- Has a well-founded fear of persecution because of his/her

• Race
• Religion
• Nationality
• Membership in a particular group, or
• Political opinion;
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- Is outside his/her country of origins; and
- Is unable or unwilling to avail him/herself of the protection of that country, or to return there, for fear of
persecution.

The African Union Convention Governing the Specific Aspects of Refugee Problems in Africa, a
regional treaty adopted in 1969, added to the definition found in the 1951 Convention to include a more
objectively based consideration, namely:

- Any person compelled to leave his/her country owing to external aggression, occupation, foreign
domination or event seriously disturbing public order in either part or whole of his/her country of origin
or nationality. (Article 1(2)).

In 1984, a colloquium of Latin American Government representatives and jurists adopted the Cartagena
Declaration. Like the AU Convention, the declaration adds a more objectively based consideration to the
1951 Convention refugee definition to include:

- Persons who flee their countries ‘because their lives, safety or freedom have been threatened by
generalised violence, foreign aggression, internal conflicts, massive violation of human rights or other
circumstances which have seriously disturbed public order

International Human Rights Standards

The 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to
the Status of Refugees, is the most important international instrument protecting the rights of refugees.
According to Article 1(a) of the Convention, a refugee is:

[A]ny person who owing to well-founded fear of being persecuted for reasons of race, religion,
nationality, membership of a particular social group or political opinion, is outside the country of his
nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that
country; or who, not having a nationality and being outside the country of his former habitual residence,
is unable or, owing to such fear, is unwilling to return to it.

The 1951 Convention specifies who is a refugee (see textbox), and what rights a refugee has, once she/he
has been recognised as such. In Article 33, the principle of non-refoulement is established. This principle
forbids states to expel or return a refugee, in any manner whatsoever, to the frontiers of territories where
his/her life or freedom would be threatened on account of race, religion, nationality, membership of a
particular social group or political opinion (the non-refoulement principle also encompasses non-rejection
at the border and can oblige a state to accept a person on its territory). It does not oblige a state to grant
the person asylum. The refugee may be expelled to another state where his life and freedom will not be in
danger, provided that state is prepared to admit him. Granting of asylum may, however, be the result of
non-refoulement, if no other state is prepared to admit the refugee.

The 1951 Convention also includes ‘exclusion clauses’, which stem from the understanding that the
commission of some types of crimes justifies the exclusion of the perpetrators from the benefits of
refugee status. Under Article 1(f), refugee status under the 1951 Convention does not apply to persons
with regard to whom there are ‘serious reasons’ for considering they have committed the following
crimes: a) Crimes against peace, war crimes and crimes against humanity; b) Serious non-political acts;
and c) Acts contrary to the purposes and principles of the United Nations. Thus, if one of the exclusion
clauses applies, the claimant cannot be a Convention refugee, whatever the other merits of his or her
claim.

Often the recognition as refugee on the basis of Article 1(A) of the 1951 Convention will coincide with
the granting of asylum, according to national law. In general, asylum will not be granted if the person
31
concerned can enjoy protection elsewhere, or if there are compelling reasons of public order not to admit
her/him. Although the definition of refugee in Article 1(A) of the 1951 Convention is formulated in a
general way and can therefore be applied broadly, it is limited by the fact that the well-founded fear of
persecution must be based on the five grounds mentioned in Article 1(A). However, there can be
situations in which it would be inhumane to return someone who does not fulfil the criteria for refugee
status under the Refugee Convention. This can be the result of general circumstances in the country of
origin such as, for example, war and hunger. It can also be related to individual circumstances such as the
risk of torture or cruel, inhuman or degrading treatment or punishment upon return. Granting of asylum
may therefore imply both admission as refugee on the basis of the 1951 Convention and permission to
stay on humanitarian grounds.

Culture, Globalization and Human Rights

Introduction

This chapter deals with the challenges of culture and globalization to the implementation of human rights
norms. Culture may form part of human rights as everyone has the right to culture. Nevertheless some
cultural practices pose greater danger to the implementation of universal human rights standards. Thus, it
is necessary to understand the relationship between culture and human rights which will be discussed
under the first section. Section two deals with the issue how globalization facilitates and hinders the
implementation of human rights standards.

Culture and Human Rights

The end of the cold war has created a series of tentative attempts to define "a new world order". So far,
the only certainty is that the international community has entered a period of tremendous global transition
that, at least for the time being, has created more social problems than solutions.

The end of super-power rivalry, and the growing North/South disparity in wealth and access to resources,
coincide with an alarming increase in violence, poverty and unemployment, homelessness, displaced
persons and the erosion of environmental stability. The world has also witnessed one of the most severe
global economic recessions since the Great Depression of the 1930s.

At the same time, previously isolated peoples are being brought together voluntarily and involuntarily by
the increasing integration of markets, the emergence of new regional political alliances, and remarkable
advances in telecommunications, biotechnology and transportation that have prompted unprecedented
demographic shifts.

The resulting confluence of peoples and cultures is an increasingly global, multicultural world brimming
with tension, confusion and conflict in the process of its adjustment to pluralism. There is an
understandable urge to return to old conventions, traditional cultures, fundamental values, and the
familiar, seemingly secure, sense of one's identity. Without a secure sense of identity amidst the turmoil
of transition, people may resort to isolationism, ethnocentrisms and intolerance.

This climate of change and acute vulnerability raises new challenges to our ongoing pursuit of universal
human rights. How can human rights be reconciled with the clash of cultures that has come to
characterize our time? Cultural background is one of the primary sources of identity. It is the source for a
great deal of self-definition, expression, and sense of group belonging. As cultures interact and intermix,
cultural identities change. This process can be enriching, but disorienting. The current insecurity of
cultural identity reflects fundamental changes in how we define and express who we are today.

Universal Human Rights and Cultural Relativism

This situation sharpens a long-standing dilemma: How can universal human rights exist in a culturally
32
diverse world? As the international community becomes increasingly integrated, how can cultural
diversity and integrity be respected? Is a global culture inevitable? If so, is the world ready for it? How
could a global culture emerge based on and guided by human dignity and tolerance? These are some of
the issues, concerns and questions underlying the debate over universal human rights and cultural
relativism.

Cultural relativism is the assertion that human values, far from being universal, vary a great deal
according to different cultural perspectives. Some would apply this relativism to the promotion,
protection, interpretation and application of human rights which could be interpreted differently within
different cultural, ethnic and religious traditions. In other words, according to this view, human rights are
culturally relative rather than universal.

Taken to its extreme, this relativism would pose a dangerous threat to the effectiveness of international
law and the international system of human rights that has been painstakingly constructed over the
decades. If cultural tradition alone governs State’s compliance with international standards, then
widespread disregard, abuse and violation of human rights would be given legitimacy.

Accordingly, the promotion and protection of human rights perceived as culturally relative would only be
subject to State discretion, rather than international legal imperative. By rejecting or disregarding their
legal obligation to promote and protect universal human rights, States advocating cultural relativism
could raise their own cultural norms and particularities above international law and standards.

Universal Human Rights and International Law

Largely through the ongoing work of the United Nations, the universality of human rights has been
clearly established and recognized in international law. Human rights are emphasized among the
purposes of the United Nations as proclaimed in its Charter, which states that human rights are "for all
without distinction". Human rights are the natural-born rights for every human being, universally. They
are not privileges.

The Charter further commits the United Nations and all Member States to action promoting "universal
respect for, and observance of, human rights and fundamental freedoms". As the cornerstone of the
International Bill of Rights, the Universal Declaration of Human Rights affirms consensus on a universal
standard of human rights. In the recent issue of A Global Agenda, Charles Norchi points out that the
Universal Declaration "represents a broader consensus on human dignity than does any single culture or
tradition".

Consequently, right from the beginning and particularly in the 1960s and 1970s, Africa and Third
World Countries in general “have argued that the philosophy and conceptions of human rights
existed in other culture as well and equally deserved attention and recognition. Naturally what is
embodied in the African and third world human rights conceptions include the notions of human
dignity and worth, which exists in all societies, but which historically colonialism, slavery and
imperialism had tended to ignore. This therefore, does not mean that the core elements of the
Universal Declaration of Human Rights of 1948 are alien to non-Western Cultures including
African cultures. Indeed, traditionally, African cultures “have given the greatest importance to
the preservation of life and the promotion of human welfare”. Hence the dead are given the most
decent and solemn burial. It also explains the significance of ancestral worship which still
prevails in most African countries.

The proclamation of 1948 by the United Nation gives the concept of human rights a Universal
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application. The declaration has found effective application in settling the problems of human
rights violations in places like Kosovo, Sudan, Chad etc. where International attention was drawn
due to internationalized national crises.

Universal human rights are further established by the two international covenants on human rights
(International Covenant on Economic, Social and Cultural Rights, and International Covenant on Civil
and Political Rights), and the other international standard-setting instruments which address numerous
concerns, including genocide, slavery, torture, racial discrimination, discrimination against women,
rights of the child, minorities and religious tolerance.

These achievements in human rights standard-setting span nearly five decades of work by the United
Nations General Assembly and other parts of the United Nations system. As an assembly of nearly every
State in the international community, the General Assembly is a uniquely representative body authorized
to address and advance the protection and promotion of human rights. As such, it serves as an excellent
indicator of international consensus on human rights.

This consensus is embodied in the language of the Universal Declaration itself. The universal nature of
human rights is literally written into the title of the Universal Declaration of Human Rights. Its Preamble
proclaims the Declaration as a "common standard of achievement for all peoples and all nations".

This statement is echoed most recently in the Vienna Declaration and Programme of Action, which
repeats the same language to reaffirm the status of the Universal Declaration as a "common standard" for
everyone. Adopted in June 1993 by the United Nations World Conference on Human Rights in Austria,
the Vienna Declaration continues to reinforce the universality of human rights, stating, "All human rights
are universal, indivisible and interdependent and interrelated". This means that political, civil, cultural,
economic and social human rights are to be seen in their entirety. One cannot pick and choose which
rights to promote and protect. They are all of equal value and apply to everyone.

As if to settle the matter once and for all, the Vienna Declaration states in its first paragraph that "the
universal nature" of all human rights and fundamental freedoms is "beyond question". The
unquestionable universality of human rights is presented in the context of the reaffirmation of the
obligation of States to promote and protect human rights.

The legal obligation is reaffirmed for all states to promote "universal respect for, and observance and
protection of, all human rights and fundamental freedoms for all". It is clearly stated that the obligation
of States is to promote universal respect for, and observance of, human rights. Not selective, not relative,
but universal respect, observance and protection.

Furthermore, the obligation is established for all States, in accordance with the Charter of the United
Nations and other instruments of human rights and international law. No State is exempt from this
obligation. All Member States of the United Nations have a legal obligation to promote and protect
human rights, regardless of particular cultural perspectives. Universal human rights protection and
promotion are asserted in the Vienna Declaration as the "first responsibility" of all Governments.

Everyone is entitled to human rights without discrimination of any kind. The non-discrimination
principle is a fundamental rule of international law. This means that human rights are for all human
beings, regardless of "race, colour, sex, language, religion, political or other opinion, national or social
origin, property, birth or other status". Non-discrimination protects individuals and groups against the
denial and violation of their human rights. To deny human rights on the grounds of cultural distinction is
discriminatory. Human rights are intended for everyone, in every culture.

Human rights are the birthright of every person. If a State dismisses universal human rights on the basis
of cultural relativism, then rights would be denied to the persons living under that State's authority. The
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denial or abuse of human rights is wrong, regardless of the violator's culture.

Human Rights, Cultural Integrity and Diversity

Universal human rights do not impose one cultural standard, rather one legal standard of minimum
protection necessary for human dignity. As a legal standard adopted through the United Nations,
universal human rights represent the hard-won consensus of the international community, not the cultural
imperialism of any particular region or set of traditions.

Like most areas of international law, universal human rights are a modern achievement, new to all
cultures. Human rights are neither representative of, nor oriented towards, one culture to the exclusion of
others. Universal human rights reflect the dynamic, coordinated efforts of the international community to
achieve and advance a common standard and international system of law to protect human dignity.

Inherent Flexibility

Out of this process, universal human rights emerge with sufficient flexibility to respect and protect
cultural diversity and integrity. The flexibility of human rights to be relevant to diverse cultures is
facilitated by the establishment of minimum standards and the incorporation of cultural rights.

The instruments establish minimum standards for economic, social, cultural, civil and political rights.
Within this framework, States have maximum room for cultural variation without diluting or
compromising the minimum standards of human rights established by law. This minimum standards are
in fact quite high , requiring from the State a very high level of performance in the field of human rights.

The Vienna Declaration provides explicit consideration for culture in human rights promotion and
protection, stating that "the significance of national and regional particularities and various historical,
cultural and religious backgrounds must be borne in mind". This is deliberately acknowledged in the
context of the duty of States to promote and protect human rights regardless of their cultural systems.
While its importance is recognized, cultural consideration in no way diminishes States' human rights
obligations.

Most directly, human rights facilitate respect for and protection of cultural diversity and integrity,
through the establishment of cultural rights embodied in instruments of human rights law. These include:
the International Bill of Rights; the Convention on the Rights of the Child; the International Convention
on the Elimination of All Forms of Racial Discrimination; the Declaration on Race and Racial Prejudice;
the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion
or Belief; the Declaration on the Principles of International Cultural Cooperation; the Declaration on the
Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities; the Declaration
on the Right to Development; the International Convention on the Protection of the Rights of All Migrant
Workers and Members of Their Families; and the ILO Convention No. 169 on the Rights of Indigenous
and Tribal Peoples.

Human rights which relate to cultural diversity and integrity encompass a wide range of protections,
including: the right to cultural participation; the right to enjoy the arts; conservation, development and
diffusion of culture; protection of cultural heritage; freedom for creative activity; protection of persons
belonging to ethnic, religious or linguistic minorities; freedom of assembly and association; the right to
education; freedom of thought, conscience or religion; freedom of opinion and expression; and the
principle of non-discrimination.

Cultural Rights

Every human being has the right to culture, including the right to enjoy and develop cultural life and
identity. Cultural rights, however, are not unlimited. The right to culture is limited at the point at which it
35
infringes another human right. No right can be used at the expense or destruction of another, in
accordance with international law.

This means that cultural rights cannot be invoked or interpreted in such a way as to justify any act
leading to the denial or violation of other human rights and fundamental freedoms. As such, claiming
cultural relativism as an excuse to violate or deny human rights is an abuse of the right to culture.

There are legitimate, substantive limitations on cultural practices, even on well-entrenched traditions. For
example, no culture today can legitimately claim a right to practise slavery. Despite its practice in many
cultures throughout history, slavery today cannot be considered legitimate, legal, or part of a cultural
legacy entitled to protection in any way. To the contrary, all forms of slavery, including contemporary
slavery-like practices, are a gross violation of human rights under international law.

Similarly, cultural rights do not justify torture, murder, genocide, discrimination on grounds of sex, race,
language or religion, or violation of any of the other universal human rights and fundamental freedoms
established in international law. Any attempts to justify such violations on the basis of culture have no
validity under international law.

A Cultural Context

The argument of cultural relativism frequently includes or leads to the assertion that traditional culture is
sufficient to protect human dignity, and therefore universal human rights are unnecessary. Furthermore,
the argument continues, universal human rights can be intrusive and disruptive to traditional protection of
human life, liberty and security.

When traditional culture does effectively provide such protection, then human rights by definition would
be compatible, posing no threat to the traditional culture. As such, the traditional culture can absorb and
apply human rights, and the governing State should be in a better position not only to ratify, but to
effectively and fully implement, the international standards.

Traditional culture is not a substitute for human rights; it is a cultural context in which human rights must
be established, integrated, promoted and protected. Human rights must be approached in a way that is
meaningful and relevant in diverse cultural contexts.

Rather than limit human rights to suit a given culture, why not draw on traditional cultural values to
reinforce the application and relevance of universal human rights? There is an increased need to
emphasize the common, core values shared by all cultures: the value of life, social order and protection
from arbitrary rule. These basic values are embodied in human rights.

Traditional cultures should be approached and recognized as partners to promote greater respect for and
observance of human rights. Drawing on compatible practices and common values from traditional
cultures would enhance and advance human rights promotion and protection. This approach is not only
encourages greater tolerance, mutual respect and understanding, but also fosters more effective
international cooperation for human rights.

Greater understanding of the ways in which traditional cultures protect the well-being of their people
would illuminate the common foundation of human dignity on which human rights promotion and
protection stand. This insight would enable human rights advocacy to assert the cultural relevance, as
well as the legal obligation, of universal human rights in diverse cultural contexts. Recognition and
appreciation of particular cultural contexts would serve to facilitate, rather than reduce, human rights
respect and observance.

Working in this way with particular cultures inherently recognizes cultural integrity and diversity,
without compromising or diluting the unquestionably universal standard of human rights. Such an
36
approach is essential to ensure that the future will be guided above all by human rights, non-
discrimination, tolerance and cultural pluralism.

Globalization and Human rights

The word ‘globalization’ is now used widely to sum up today’s world order. It means they increasingly
integrate the world into one capitalist political economy operating under a neo-liberal free market
ideology. Economic globalization as witnessed in the world today is not a new phenomenon. It has been
evolving for the past several years and gaining momentum day by day. The trend, at present, is a shift
from a world economy based on national market economies to a borderless global market economy
increasingly governed by one set of rules. In this context, globalization means global economic
liberalization, developing a global financial system and a transnational production system which is based
on a homogenized worldwide law of value. The demise of the Cold War helped the emergence of a new
aggressive competitive global economic order. This was possible mainly due to the integration of the
newly industrialized countries and much of the developing nations. Although globalization and market
liberalization have made some progress in terms of economic growth in certain countries, it has also had
many negative impacts in developing societies.

Richard Barnet of the Institute of Policy Studies describes globalization in terms of four increasing webs
of global commercial activity: global cultural bazaar, the global shopping mall; the global financial
network; the global workplace. The global cultural bazaar promotes the notion of uniform cultural values
and products across the world. This idea influenced billions of people, shaping their goals and
homogenizing their tastes and attitudes towards a desired fantasy lifestyle. The unprecedented increase in
global trade the buying and selling of goods and services among countries has created a planetary
supermarket. The cultural bazaar and shopping mall intersect through the vehicle of advertising. Media
has become a powerful player in the globalization process. In fact, globalization of economies has also
led to the globalization of media. Media is used to impose the culture and power of the wealthy nations
from the global North. The global financial market has created a new atmosphere to search for quick
profits. The foreign exchange market is mainly dealing with currency speculation, bet for or against
foreign currencies. The increasing mobility of jobs has created global workplaces and this has boosted
international labor migration. In other words, the globalization and market-oriented economic reforms
helped transnational companies shift their manufacturing units to developing countries. Because of this
more people are crossing borders in search of jobs and in most conditions people are forced to work in
inhuman conditions for lower wages. All these proved the fact that globalization is not a simple but a
very complex set of process that operates at multiple levels -- political, economic and cultural.
Nicaraguan scholar Xabier Gorostiaga argues that in this era of globalization humanity is perceived as
fundamentally one, with a common destiny that is the result of a technological revolution in information
and communication and the awareness of the unsustainability of the current way of life.

In an article titled “The Human Rights Debate in an Era of Globalization: Hegemony of Discourse”,
Nikhil Aziz describes two kinds of globalization based on Richard Falks theory on the making of Global
Citizenship. He argues that we can see globalization in different perspectives: Globalization from Above
(GA) and Globalization from Below (GB). At the political level, GA manifests itself in its action of the
Western countries, particularly the United States of America, and global financial institutions in
pressuring countries of the South to democratize. This translates as the adoption of a Western-style
liberal democratic system of governance. They closely tie economic Globalization from Above to the
political aspect in that (1) the source of pressure for change is the same, and (2) close links are alleged
between the ideologies of free markets and free societies. Economic Globalization from Above entails
countries of the South to accept - within the parameters of the dominant World capitalist system - the
imposition of structural adjustment programs neo-liberal economic policies, including the wholesale
liberalization of domestic economies, to allow unrestricted entry to transnational capital. On a cultural
level, GA arises from the control of the global information and communication networks by Western
media corporations; and the spread of modern technologies of a consumerist culture, and western cultural
expressions as the global culture.
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The transnational companies are the spearheads of globalization and have become the dominant
economic and political force in the world economy. Increasing competition and pressure on transnational
companies to increase profits leads to a relentless search for cheap labor markets. Many of the companies
from the developed and the Newly Industrialized Countries (NIC) have shifted their manufacturing and
service industries to developing countries. For example, several major airlines now have their global
accounting done in India. A large number of computer software companies from the United States are
developing software in Bangalore, India, at less than one-fifth of the price in other countries. The
German car manufacturing company BMW and Lorean car manufacturers like Daewoo and Hyundai
have already established their manufacturing units in Vietnam. The Export Processing Zones of many
developing countries are catering to the needs of the transnational companies by way of providing cheap
labor. The International Labor Resource and Information Group based at the University of Cape Town
has described these phenomena a race downhill in which countries underbid each other. Because they
cannot see an alternative, workers also end up underbidding one another. The main arguments are
competitiveness and the need to survive. But for workers it is a race to the bottom, and the bottom means
slave like conditions. When work moves to less developed countries, the shift does not automatically
bring Western levels of employment and prosperity to the host countries.. What it does bring are very
profitable high-tech islands and Export processing Zones where they protect transnational capital, with
the help of the state, from social responsibility.

There may be short-term advances in the living standards of a small group of workers. Nevertheless,
when some workers elsewhere lead the race to the bottom, those jobs may disappear. A report by
UNCTAD notes that transnational companies encroach on areas over which sovereign responsibilities
have traditionally been reserved for national governments. A situation has arisen where many
governments of developing countries no longer control the flow of financial capital; so they can no
longer control their own economies.

Globalization has substantially contributed to the intensification of debt, poverty and economic crisis in
the developing world. The Structural Adjustment Programs (SAP) designed and imposed by the global
creditor institutions is a typical instrument to create a favorable atmosphere for globalization, which
ultimately affects developing countries. In order to meet the mandates set by the SAP, a country spends
less by cutting back government expenditures, social services, and economic investments so that
resources can be placed elsewhere. More money is being spent on export orientation, which results in
local economies becoming dependent on the integration with the world economy. The international
lenders demand poor economies to divert substantial resources away from sectors serving domestic
needs: withdraw all subsidies for poor people, privatize the state sector, deregulate the market, and
decrease wages. In effect, this process opens up countries to globalization. Thus structural adjustment
programs and import-export-led strategies of industralization. were part of a political and economic
restructuring process, a prelude to globalization. The advocates of globalization give philosophical
justifications to accept export-led growth, lower wages and living standards for workers, shrinking
government budgets, and extremely high interest rates. They say “There Is No Alternative” - TINA, the
phrase coined by British Prime Minister Margaret Thatcher in 1980s. Powerful institutions like the
International Monetary Fund, the World Bank and the World Trade Organization raise the TINA,
argument to persuade the developing nations to qualify themselves to borrow money. The developing
countries are left into no option but to accept the liberalization and market-oriented reforms. Under this
liberalization policy production tends to be export-oriented. Meeting the basic needs of the people
becomes less important. State-run factories or enterprises are often privatized to suit the needs of foreign
investors. Free trade and liberalization lead to competition and local producers, like farmers, have to
suffer the consequences.

Globalization has created a situation where the role and importance of nation-state is becoming
irrelevant. Kenichi Ohmae, widely recognized as one of today’s top business gurus, asks, in a world
where economic borders are disappearing and money flows around the globe beyond the reach of
governments, ‘who, indeed needs the nation-state?” He argues that 4 Is-Investment (sic), Industry,
Information technology and Individual consumers - make the traditional middleman function of nation-
38
states, and of their governments, largely unnecessary. Because, the global markets for all the Is work just
fine on their own, nation-states no longer have to play a market-making role. In this situation
multinational corporations are becoming the actors even in international politics. A growing trend to
promote the idea of recapturing the capitalist frontier and its lost values is more visible through the
globalization and market liberalization in the developing countries. It is true that a few rich or middle
class people have emerged in societies where transition to market system has been introduced. China and
Vietnam are typical examples. In these countries a newly rich class has emerged as a result of
globalization and market reforms. Several other Asian countries are also witnessing the emergence of a
few - rich and middle class people at the expenses of many poor. These new-rich and middle class are
really the products of globalization and they provide the market for imported products and further
strengthening the economy of the developed countries. While analyzing the economic development,
social status and political consciousness of the new-rich in Asia, Richard Robinson and David S. G.
Goodman observe that it is as consumers that the new-rich of Asia have attracted an interest of almost
cargo-cult proportions in the West. They constitute the new markets for Western products: processed
foods, computer software educational service and films and television soaps. They are the new tourists,
bringing foreign exchange in hard times. What has helped such an enthusiastic embrace of the Asian
new-rich is that they are emerging at a time when prolonged recession and low growth rates have
depressed home markets in the West. The emergence of the new middle class and their wealth manifest
themselves in the society in several ways. This is more visible through a new emerging culture which
Robinson and Goodman describe as Mobile phones, McDonalds and middle-class revolution. It is
estimated that 55,000 people a day regularly pass through the McDonalds restaurant in central Beijing
(China’s first, opened in 1992) - to pay for a hamburger much more than the most Chinese will earn in a
fortnight. It was reported that in 1993 a mobile telephone number 58888 containing four lucky eights -
was auctioned for 1,30,000 RMB. An ordinary mobile phone itself costs about 25,000 RMB in China to
buy, install and register, and there are monthly service and user fees to pay. This McDonald and Mobile
phone culture has already spread among the new-rich in many developing countries because of the
globalization of markets. Even Cambodia and Bangladesh the world’s most poverty stricken countries,
are affected. A globalization of taste has occurred in every field of the developing world. Consumer
goods like Levis Jeans, Nike athletic shoes, and Hermes scarves are visible all over the world now. A
decade ago Kenichi Ohmae described this process, driven by global exposure to the same information,
the same cultural icons, and the same advertisements, as the “Californiazation” of taste. He now argues
that, today, however, the process of convergence goes faster and deeper. It reaches well beyond taste to
much more fundamental dimensions of world-view, mind-set. There are now, for example, tens of
millions of teenagers around the world who, having been raised in a multimedia-rich environment, have a
lot more in common with each other than they do with members of older generations in their own
cultures.

Well, one group is considering this an achievement of globalization. On the other hand, the reality is that,
“globalization requires the humiliation of hundreds of millions of people keeping them in constant
insecurity, pitting them against one another in a competitive struggle for survival”. The Human
Development Report of 1997 says; Globalization can also shift patterns of consumption. Luxury cars and
soft drinks can rapidly become a part of daily life, heightening relative deprivation. The pattern can
increase absolute poverty by undermining the production of goods on which poor people rely. A flood of
imported wheat can shift consumption away from sorghum or cassava, making them scarcer in loyal
markets.

Roberto Verzola, a social activist of the Philippines, comments that in the same way that colonization
was the trend one hundred years ago, globalization is, today. Today global corporations have replaced the
colonial powers. In developing countries, global corporations are allowed to feast on natural resources,
human resources, and national wealth. They displace farmers from their land, workers from their jobs,
and communities from their roots. They are responsible for the breaking up of communities and the
destruction of the environment to serve the human and raw material requirements of global production
for the global market. The consequence is the collapse of food security and the emergence of global
environmental crises, which in the end may turn out to be even worse than colonization. Even the peoples
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of developed countries suffer from the profit-hungry rules of global corporations today, which virtually
rule the world. Globalization and market-oriented economic reforms have been designed for the benefit
of these groups. In reality, globalization means the rule of global corporations. It means decision about
lives are being made in corporate boardrooms in the USA, Europe and Japan, instead of in local
community councils or at the national level. National governments are becoming the implementers of
orders received from the international actors. This has created a situation of powerlessness and suffering
for many in developing countries which results in violation of rights of millions of people.

Globalization, Development and Human Rights

The relation between globalization, development and human rights raises policy and legal questions. One
such question is whether globalization of market-oriented economic system is essential for development
and protection of human rights? While searching for an answer to this question we should analyze how
we perceive the concept of development and human rights, especially in the context of developing
countries. Human rights have become an integral part of the process of globalization in many ways. The
Western countries are increasingly using their view of human rights concept as a yardstick to judge
developing countries and to deal with economic and trade relations to extend development assistance. At
the same time globalization intensifies impoverishment by increasing the poverty, insecurity,
fragmentation of society and thus violates human rights and human dignity of millions of people.
Development or economic development is widely perceived as a historical process that takes place in
almost all societies characterized by economic growth and increased production and consumption of
goods and services. Development is also often used in a normative sense as a multi-valued social goal
covering such diverse spheres as better material well-being, living standards, education, health care,
wider opportunities for work and leisure, and in essence the whole gamut of desirable social and material
welfare. But, in today’s globalization, the concept of development itself is interpreted differently and the
concept of right to development is not taken seriously.

The Preamble of the Declaration of the Right to Development, adopted by the UN General Assembly in
1986, describes “development as a comprehensive economic, social, cultural and political process that
aims at the constant improvement of the well-being of the entire population and of all individuals on the
basis of their active, free and meaningful participation in development and in the fair distribution of
resulting benefits”. The 1990 UN Global Consultation on the Right to Development as a Human Right,
stated that the right to development is an inalienable human right with the human being as the central
subject to the right and that all the aspects of the right to development set forth in the Declaration of the
Right to Development are indivisible and interdependent, and these include civil, political, economic,
social, and cultural rights. It was further maintained that the right to development is the right of
individuals, groups and peoples to participate in, contribute to, and enjoy continuous economic, social,
cultural and political development, in which all human rights and fundamental freedoms can be fully
realized. A development strategy that disregards or interferes with human rights is the very negation of
development.

The aims and objectives of the so-called development models promoted by different governments or
international development agencies are not compatible with human rights standards. A new model of
development ideology is being promoted that is based on the market and its logic. Several decades of
discussion on alternative development model is withering away and a dominant model of market-oriented
development taking roots in that place. As a result of the globalization process, more negative effects are
visible now. Global integration of the structures, processes, and ideologies produce injustice, oppression,
exploitation and mal-development in society. The systematic integration of the forces that are dominant
in the globalization process intensifies human rights violations.

Impact of Globalization on Human Rights

Globalization has its winners and losers. With the expansion of trade, market, foreign investment,
developing countries have seen the gaps among themselves widen. The imperative to liberalize has
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demanded a shrinking of state involvement in national life, producing a wave of privatization, cutting
jobs, slashing health, education and food subsidies, etc. affecting the poor people in society. In many
cases, liberalization has been accompanied by greater inequality and people are left trapped in utter
poverty. Meanwhile, in many industrialized countries unemployment has soared to levels not seen for
many years and income disparity to levels not recorded since last century. The collapse of the economies
of the Asian Tigers are examples of this. The Human Development Report of 1997 revealed that poor
countries and poor people too often find their interests neglected as a result of globalization. Although
globalization of the economy has been characterized as a locomotive for productivity, opportunity,
technological progress, and uniting the world, it ultimately causes increased impoverishment, social
disparities and violations of human rights. That is what we see today.

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