HUMAN RIGHTS LAW

Enoch Mulembe*

*MIL (Lund); LL.B (Unza); Adv. Dip. in Human Rights (Turku/Abo), Constitutional Court
Judge; former Expert Member of the United Nations Committee on Enforced Disappearances;
former Lecturer, School of Law, University of Zambia; former Director, Human Rights
Commission; and, former Director and Chief Executive Officer, Zambia Institute of
Advanced Legal Education.

LECTURE NOTES

PART I

INTRODUCTION TO THE CONCEPT OF HUMAN RIGHTS

DEFINITION OF HUMAN RIGHTS

Human rights are rights that every human being has by virtue of his or
her human dignity. They belong to any individual as a consequence of
being human, independently of acts of law.

 John Locke (17th Century thinker and natural law theorist) argued:

- that certain rights self-evidently pertain to individuals as human

beings (because they existed in ‘the state of nature’ before
humankind entered civil society)

- that chief among them are the right to life, liberty (freedom from
arbitrary rule), and property

- that upon entering civil society (pursuant to a social contract),

humankind surrendered to the State only the right to enforce these
natural rights, not the rights themselves

- that the State’s failure to secure these reserved natural rights (the
State itself being under contract to safeguard the interests of its
members) gives rise to a right to responsible, popular revolution

 John Locke’s thinking had great influence on the Western liberal

thinking:

- American Declaration of Independence (4 July 1776): “We

hold these truths to be self-evident, that all men are created equal,
that they are endowed by their Creator with certain unalienable
rights, that among these are life, liberty and the pursuit of
happiness”.

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 - French Declaration of the Rights of Man and the Citizen (26
August 1789): “Men are born and remain free and equal in rights”;
“the aim of every political association is the preservation of the
natural and imprescriptible rights of man (liberty, property, safety
and resistance to oppression)

BASIC HUMAN RIGHTS PRINCIPLES (CHARACTERISTICS)

 Human rights are deemed to have certain characteristics that set them
apart from other references to “rights”.

1. Human rights are ‘inherent’

 Human rights and fundamental freedoms are regarded as ‘inherent’

because they are the birthright of all human beings. We are born
with them. Human rights flow from human nature.

UNIVERSAL DECLARATION OF HUMAN RIGHTS (1948)

“All human beings are born free and equal in dignity and rights.”

VIENNA DECLARATION AND PROGRAMME OF ACTION (1993)

“Human rights and fundamental freedoms are the birthright of all human
beings; their protection and promotion is the first responsibility of
governments.”

 Thus, if human rights are the birthright of all human beings

then it is correct to say that human rights exist even
independently of the law. The law does not create the rights and
freedoms that we have as human beings. Instead, the law recognises
the existence of human rights and facilitates their enforcement through
the creation of procedures and institutions. Human rights are not
given, bought, earned or inherited. They belong to people
simply because they are human. It means that a person does not
have to do anything to prove that he or she is entitled to human rights.
The only qualification needed is to be a human being.

2. Human rights are ‘inalienable’

 Human rights are ‘inalienable’ in so far as no person can be divested

of his or her human rights, save under clearly defined legal
circumstances. For instance, a person’s right to liberty may be
restricted if he or she is found guilty of a crime by a court of law. It is
also said that nobody can renounce these rights by himself.
People still have rights even when the laws of their countries
do not recognise them, or when they violate them. For instance,

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 when slavery is practised, slaves still have rights as human beings. A
slave does not cease to be human by the fact of enslavement. Even
though slave owners treat slaves like pieces of property, in truth they
are not property but full human beings. They are people who are held
against their will by people intent on exploiting their labour.

3. Human rights are ‘universal’

 The focus of human rights is on the life and dignity of human

beings. A person’s dignity is violated when they are subjected to
things like discrimination (on any of the prohibited grounds), inhumane
treatment or conditions (e.g., poor conditions in prisons), torture,
slavery or poverty (i.e., without a minimum of food, clothing and
housing). At the heart of the protection of human rights is the
notion that all human beings have a right to a dignified
existence. The right to a dignified existence is the basis of the
universality of human rights (see Art. 1 of the Universal Declaration of
Human Rights).

 Human rights are universal because they are based on every

human being’s dignity, irrespective of race, sex, religion, ethnicity,
political or other opinion, national or social origin. Human beings
everywhere are the same because human nature is the same
everywhere.

VIENNA DECLARATION AND PROGRAMME OF ACTION (1993)

Section I Paragraph 1
The World Conference on Human Rights reaffirms the solemn commitment of all
States to fulfil their obligations to promote universal respect for, and observance
and protection of, all human rights and fundamental freedoms for all in
accordance with the Charter of the United Nations, other instruments relating to
human rights, and international law. The universal nature of these rights
and freedoms is beyond question.

 It has been argued, however, that regional or national peculiarities

may be considered in the implementation of human rights standards.
It is true that the world has in its various regions different cultures,
traditions, religions and beliefs. People have got different ways of life
depending on where they come from.

 Human rights are not necessarily in conflict with the cultures or ways
of life of people. In fact the International Covenant on Economic,
Social and Cultural Rights protects cultural rights in Article 15. The
problem comes when people want to use the excuse of culture to deny
the enjoyment of individual rights and freedoms. For example,
although some people regard female genital mutilation (female
circumcision) as part of their tradition, the fact is that it has been

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 proven to be harmful and a form of torture on the young girls or
women who undergo this practice.

 The African Charter on Human and Peoples’ Rights, whose

adoption took into account the African peoples’ “virtues of their
historical tradition and the values of African civilisation which should
inspire and characterise their reflection on the concept of human and
peoples’ rights”, also recognises that “fundamental human rights
stem from the attributes of human beings, which justifies their
national and international protection...” It is only the positive
aspects of our traditions and culture that we must promote and not
practices that violate human life and dignity.

 So in as far as the purpose for the protection of human rights

remains upholding human dignity, then human rights are in
that regard universal because human dignity is a universal
value. All human beings everywhere have the right to a
dignified existence.

“The concept of ‘universality’ underlines that all human beings have an

equal claim to a dignified existence, and that one of a State’s primary
responsibilities is to make the protection of human rights a central
tenet of its political and social organisation. However, as a matter of
practical reality, the exact contours of a ‘dignified existence’ differs –
within one State and between States.” Frans Viljoen, International
Human Rights Law in Africa, (Second Edition, Oxford University
Press), at p. 8.

4. Human rights are indivisible, interdependent and

interrelated

 In addition to being universal, human rights are indivisible,

interdependent and interrelated. This means that the protection
of each human right and fundamental freedom depends on the
effective promotion and protection of other rights and freedoms.
For instance, the right to life depends on an individual’s effective
enjoyment of, among others, the right to food, right to health and right
to a clean and healthy environment.

VIENNA DECLARATION AND PROGRAMME OF ACTION (1993)

Section I Paragraph 5
All human rights are universal, indivisible and interdependent and interrelated.
The international community must treat human rights globally in a fair and equal
manner, on the same footing, and with the same emphasis. While the
significance of national and regional particularities and various historical, cultural
and religious backgrounds must be borne in mind, it is the duty of States

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 regardless of their political, economic and cultural systems, to promote and
protect all human rights and fundamental freedoms.

 Human beings have various needs that need attention and fulfilment.
These needs can be physical, psychological, moral, spiritual or social.
These needs must be met at the same time. It is essential and
indispensable, therefore, to ensure a minimum in one or more
of the rights to avoid or prevent degradation in another. There
are no human rights which are more important than others. All rights
and freedoms deserve equal attention.

CATEGORIES/CLASSIFICATIONS OF HUMAN RIGHTS

 Internationally recognised human rights are often divided into different

categories or classifications.

1. Civil and Political Rights (First Generation Rights)

 Civil and political rights emphasise the freedom of the individual and
normally require the State to abstain from interfering in their
enjoyment (duty of abstention). In that sense, civil and political
rights impose what is termed a “negative obligation”on the State.
Examples include the rights to life; liberty and security of person;
freedom from torture and slavery; political participation; freedom of
opinion, expression, thought, conscience and religion; freedom of
association and assembly.

 However, strict adherence to the notion of ‘abstention’ is in fact an

oversimplification, since the State has a duty to protect those
rights, which requires, on one hand, a functioning judicial machinery
and the establishment of laws aimed at protecting a certain right (e.g.
the right to life). But legislative measures are not enough. The State is
required to take actual steps of enforcement to prevent the
violations of those rights or, if a violation nevertheless occurred, to
punish its perpetrators. In short, although the government has a
duty of abstention concerning the first generation rights, it has
to take active steps to ensure that the obligations they create
are complied with by all authorities. This includes also the duty of
investigation if a fundamental human right has been violated.

2. Economic and Social Rights (Second Generation Rights)

 The second generation category consists of rights that are termed

economic, social and cultural rights. Their realisation should bring
about social justice and equity. They are said to mainly require
“positive action” on the part of the State, meaning that the State
should take deliberate or active steps to bring about conditions in
which every person enjoys adequately his or her economic, social and
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 cultural rights(duty of performance). This category includes the
right to education, work and work related rights, adequate standard of
living, food, health care and shelter.

3. Collective or Group Rights (Third Generation Rights)

 Collective or group rights are by their nature asserted not by

individuals as such, but by people as a group. Relatively recently
recognised, these include the right of self-determination, the right to a
clean and healthy environment, the right to peace and the right to
development. The concept of collective rights is generally attributed
to the contribution of the so-called Third World countries.

 Third generation rights are very complex and also very vague. This
makesenforcement, and even simple recognition, very difficult. States
(mainly Western States) most often prefer to sidestep these rights.

Human rights can also be further categorised as follows:

 Existential Rights: The focus of human rights is on the life and

dignity of human beings. A person’s dignity is violated when they
are subjected to torture, forced to live in slavery or poverty, i.e.,
without a minimum of food, clothing and housing. Other economic,
social and cultural rights, such as access to a minimum of education,
medical care and social security, are as fundamentally important to a
life in dignity as are respect for privacy and family life or personal
freedom. (Form nucleus around which other rights have been created)

 Freedom Rights (e.g., freedom of speech, conscience, religion,

movement, assembly and association)

 Equality Rights (equality before the law and equal protection of the
law; protection against discrimination on the grounds of sex, race,
colour, religion, ethnic or social origin, etc)

 Political Rights (right to vote; equal access to public service;

freedom to form a political party; right to petition, etc)

 Rights of Economic Life (right to own property; right to work and

free choice of employment; freedom to provide services)

 Collective Rights (the right of peoples to self-determination;

protection of minorities and indigenous peoples; right to development;
right to peace; right to a clean and healthy environment, etc)

 Procedural Rights (especially for administration of criminal justice)

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 Specific Rights for Vulnerable Groups (children; women; elderly;
sick; disabled; aliens; asylum seekers; refugees, etc)

All of the above rights constitute legal claims whereby human beings are
empowered to live in accordance with the principles of freedom, equality
and human dignity.

EXAMPLES OF HUMAN RIGHTS

In the area of civil and political rights

 Right to life;
 Freedom from torture, inhuman or degrading treatment or punishment;
 Right to liberty and security of person;
 Right of detained persons to be treated with humanity
 Freedom of movement
 Freedom from slavery or servitude;
 Right to recognition everywhere as a person before the law;
 Right to a fair trial;
 Right to an effective national remedy;
 Right to equal protection of the law;
 Freedom from arbitrary interference with privacy, family, home or
correspondence;
 Right to seek asylum;
 Right to nationality;
 Freedom of thought, conscience and religion;
 Freedom of opinion and expression
 Freedom of assembly
 Freedom of association
 Right to take part in the conduct of public affairs, vote, be elected and
have access to public office
 Right to marry and found a family
 Prohibition of retroactive criminal laws
 Prohibition of propaganda for war and of incitement to national, racial
or religious hatred

In the area of economic, social and cultural rights

 Right to work
 Right to just and favourable conditions of work
 Right to form and join trade unions
 Right to social security
 Protection of the family
 Right to an adequate standard of living, including adequate food,
clothing and housing
 Right to health
 Right to education

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 Right to participate in cultural life

In the area of collective rights

 Right of peoples to:

 self-determination
 development
 free use of their wealth and natural resources
 peace
 a healthy environment

BENEFICIARIES AND DUTY-HOLDERS OF HUMAN RIGHTS

 Traditionally, human rights focus on the rights of the individual

and the corresponding obligations of the State to protect
human rights.

 The State is primarily responsible for ensuring respect for and

observance of human rights. It is the State which is a party to
international human rights instruments and assumes direct obligations
in relation to human rights. By becoming parties to international
human rights treaties, States incur three broad obligations: the
duties to respect, to protect and to fulfil.

1. Obligation to respect

The State obligation to respect means that the State is obliged to

refrain from interfering. It entails the prohibition of certain acts by
Governments that may undermine the enjoyment of rights.

2. Obligation to protect

The obligation to protect requires States to protect individuals against

abuses by non-State actors.

3. Obligation to fulfil

Under the obligation to fulfil, States are required to take positive action
to ensure that human rights can be exercised and realised.

 It is, however, important to realise that the State is not the

only entity that is obliged to respect human rights. Today, even
individuals are held accountable for human rights violations. For
example, the United Nations created the International Criminal Court

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 specifically to deal with persons accused of serious crimes such as
genocide, war crimes and crimes against humanity. These crimes
always involve serious and mass violations of human rights.
PART II

THE INTERNATIONAL LEGAL FRAMEWORK OF HUMAN RIGHTS

 The protection of human rights at the international level

depends in large measure upon the existence of appropriate
rules and the existence of international institutions to
supervise or enforce those rules. The creation of such rules
and institutions is a matter of international law.

The Meaning and Nature of International Law

 International law may be defined as:

 The system of law and principles which has been

developed by states to regulate relations between
international legal persons.

 A body of rules, which regulate the behaviour of States

and other entities in their relations with each other, at
any given time.

 The primary legal persons under international law are, in fact, States.

 International organisations, such as the United Nations, are

brought into being by States, but have a lesser range of rights
and duties restricted by the purposes for which the
organisations was established. Individuals are lowest in the scale
of distribution of rights and duties under international law, but they
now enjoy a substantial range of human rights and are subject to a
number of duties such as the obligation not to commit war crimes, acts
of genocide or torture and not to commit acts of piracy.

Sources of International Law

 International human rights law is a specialised regime within general

public international law.

 International law, including law that relates to human rights, is made

either through custom (i.e., practice) or by explicit agreement
(treaties).

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 Article 38(1) of the Statute of the International Court of Justice
provides a list of the sources of international law. Article 38(1) reads:

The Court, whose function is to decide in accordance with international

law such disputes as are submitted to it, shall apply:

a. international conventions, whether general or particular,

establishing rules expressly recognised by the contesting States;

b. international customs, as evidence of a general practice accepted

as law;

c. the general principles of law recognised by civilised nations;

d. …judicial decisions and the teachings of the most highly qualified

publicists of the various nations, as subsidiary means for the
determination of rules of law.

Is there a hierarchy?

 Article 38(1) is not stated to represent a hierarchy but certain opinions

are that the draftsmen intended to give an order. However, Ian
Brownlie cautions:

“..., it is probably unwise to think in terms of hierarchy dictated by

the order (a) to (d) in all cases. Source (a) relates to obligations in
any case; and presumably a treaty contrary to a custom or to a
general principle part of the jus cogens would be void or voidable.
Again, the interpretation of a treaty may involve resort to general
principles of law or of international law. A treaty may be displaced
or amended by a subsequent custom, where such effects are
recognised by the subsequent conduct of the parties.” Ian Brownlie,
Principles of Public International Law, 6th edition, Oxford, p.5.

Treaties or Conventions

Article 38 (1)(a) ICJ Statute

The Court, whose function is to decide in accordance with international

law such disputes as are submitted to it, shall apply:

(a) international conventions, whether general or particular,

establishing rules expressly recognised by the contesting States;

 Treaties or conventions are agreements between States which create

legally-binding rules for the parties with reference to a particular
subject-matter. In the case of human rights, treaties are those binding
instruments adopted by States which enshrine the fundamental rights
and freedoms to which the State ascribes, and to which its nationals
are entitled. The Vienna Convention on the Law of Treaties
(VCLT) of 1969 is a key international agreement which governs the
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 creation, operation and legal effect of most treaties. It includes the
major rules and regulations concerning treaties.

What is a Treaty?

 In Article 2(1)(a) the VCLT defines a treaty as:

…an international agreement concluded between States in

written form and governed by international law, whether
embodied in a single instrument or in two or more related
instruments and whatever its particular designation.

 All States possess the capacity to conclude treaties (Art. 6 VCLT).

 The general rule is that only States can become parties to

treaties [note, however, that some treaties may allow other entities
to sign up, e.g., see Art. 43 of the Convention on the Rights of Persons
with Disabilities]

 Participation in treaties can range from two States (called a bilateral

treaty) to a multitude of States (called a multilateral treaty) and can
cover various subjects of international interest.

 Since 1945, treaties have been the main methods of creating

international human rights law.

 Treaties may be given a formal name or title but are frequently

referred to by the city in which the text was agreed by the drafting
States, e.g.,

 The Vienna Convention on the Law of Treaties

 The Banjul Charter (African Charter on Human and Peoples’
Rights)
 The San Salvador Protocol to the American Convention on
Human Rights
 The Geneva Conventions on the Laws of War
 The Rome Statute (the Statute of the International Criminal
Court)
 The Maputo Protocol on the Rights of Women

 When negotiations are completed, the text of a treaty is established as

authentic and definitive and is "signed" by the representatives of
States. A State has to consent to be bound by a treaty. An essential
feature of treaty law is that a treaty does not bind non-States
parties. Article 11 VCLT provides:

The consent of a State to bound by a treaty may be expressed by

signature, exchange of instruments constituting a treaty,

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 ratification, acceptance, approval or accession, or by any other
means if so agreed.

Entry of Treaty into Force

 Usually a clause near the end of the treaty will specify when the treaty
becomes legally binding on contracting parties, i.e., when it enters into
force. A treaty enters into force when a pre-determined number of
States have ratified or acceded to the treaty. (for signature and
ratification clause, see, e.g., Art. 27 CEDAW; Art. 27 ICESCR; Arts. 48
and 49 ICCPR)

 It is a fundamental principle in international treaty law that, once a

treaty has entered into force, it must be observed in good faith.
This is known as the doctrine of “Pacta sunt servanda”. (See Art.
26 VCLT). This means that a State must conform to all the
obligations set down in a treaty and it cannot generally avoid them
without a good excuse.

 Unless otherwise agreed or specified, treaties are binding throughout

the territory of the contracting State (Art. 29 VCLT). It should be
noted that a State could never use as an excuse the fact that its
domestic law prevents it from fulfilling its international
obligations under a treaty (Art. 27 of VCLT). If a State does
breach its treaty obligations, then it becomes liable to the other States
parties and appropriate international institutional and procedural
mechanisms may be invoked to hold the State accountable.

Termination

 There are specific rules in international law relating to termination of

treaties. Almost all treaties provide specifically for withdrawal or
termination. Even then, the obligations assumed under the treaty
often continue to exist for a specific period, often up to a year, after
denunciation.

RAWLE KENNEDY v TRINIDAD AND TOBAGO.

 The author of the communication, Rawle Kennedy, a citizen of

Trinidad and Tobago, was convicted of murder and sentenced
to death. His death sentence was subsequently commuted to
a sentence of seventy-five years’ imprisonment in the State
prison of Port-of-Spain. He claimed to be a victim of violations
by Trinidad and Tobago of articles 2, paragraph 3; 6,
paragraphs 1, 2 and 4; 7; 9, paragraphs 2 and 3; 10,
paragraph 1; 14, paragraphs 1, 3(c) and 5; and 26 of the
International Covenant on Civil and Political Rights.

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 “9.Under article 2, paragraph 3(a), of the Covenant, the State party is under an
obligation to provide Mr. Rawle Kennedy with an effective remedy, including
compensation and consideration of early release.The State party is under an obligation
to take measures to prevent similar violations in the future.

10.The Committee is aware that Trinidad and Tobago has denounced the Optional
Protocol. The present case however was submitted for consideration before Trinidad
and Tobago’s denunciation of the Optional Protocol became effective on 27 June 2000;
in accordance with article 12(2) of the Optional Protocol, it continues to be subject to the
application of the Optional Protocol. Pursuant to article 2 of the Covenant, the State
party has undertaken to ensure to all individuals within its territory and subject to its
jurisdiction the rights recognised in the Covenant and to provide an effective and
enforceable remedy in case a violation has been established. The Committee wishes to
receive from the State party, within 90 days, information about the measures taken to
give effect to the Committee’s Views.”

Limitations on State Compliance: Reservations, Declarations,

Derogations and Denunciations

Reservations

 When ratifying an instrument, a State may also elect to indicate

whether it wishes to avoid legal liability for certain clauses. This is
called a reservation. A reservation renders the reserved
provisions non-binding. A reservation can also act partially to
reduce the effect of a certain guarantee, rather than entirely
nullify its application. [Zambia did this, for example, under the
under article 13(2) of the International Covenant on Economic, Social
and Cultural Rights (ICESCR) and article 20 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment of
Punishment].

Definition of Reservation

 A reservation is defined by Article 2(1)(d) of the Vienna Convention on

the Law of Treaties as:

… a unilateral statement, however phrased or named, made by a State, when

signing, ratifying, accepting, approving or acceding to a treaty, whereby it
purports to exclude or to modify the legal effect of certain provisions of the
treaty in their application to that State.

 Thus, if there is a provision in a treaty which a State wishes to avoid, it

may enter a reservation to prevent that provision from applying to it.

Which Reservations are Allowed?

 States, however, do not have a free hand to enter any kind of

reservation. Article 19 VCLT provides:

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

(a) the reservation is prohibited by the treaty;

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

 Some treaties specifically provide for the possibility for a state to avoid
the application of some of its provisions. For example, Article 28 of
the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (CAT) 1984 provides that a State
may, at the time of signature, ratification or accession, declare that it
does not recognise the competence of the Committee against Torture
under Article 20 to investigate or inquire into allegations of systematic
practice of torture in the territory of a State Party. When Zambia
acceded to the CAT in 1998, she exercised her right to a reservation
under Article 28(1), which has since been lifted in terms of Article
28(2). A similar provision is given in Article 10(1) of the Optional
Protocol to the Convention on the Elimination of All Forms of
Discrimination against Women (CEDAW) 1979.

Effect of Reservations

 In regard to the effect of a reservation, Article 21 VCLT states:

1. A reservation established with regard to another party in accordance

with articles 19, 20 and 23:
(a) Modifies for the reserving State in its relations with that other
party the provisions of the treaty to which the reservation relates
to the extent of the reservation; and
(b) Modifies those provisions to the same extent for that other party in
its relations with the reserving State.
2. The reservation does not modify the provisions of the treaty for the
other parties to the treaty inter se.
3. When a State objecting to a reservation has not opposed the entry into
force of the treaty between itself and the reserving State, the
provisions to which the reservation relates do not apply as between the
two States to the extent of the reservation.

 A valid reservation removes the provision concerned from the legal

obligations of a State. A State is neither bound by the reserved
provision, nor, in the interest of reciprocity, can it hold another
State to account for infringing said provision.

Problems with Reservations?

 The use of reservations can undermine universality.

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  General Comment No. 24(52): Issues relating to reservations made upon
ratification or accession to the Covenant or the Optional Protocols thereto,
or in relation to declarations under article 41 of the Covenant.

4. The possibility of entering reservations may encourage States which consider that they have
difficulties in guaranteeing all the rights in the Covenant none the less to accept the generality
of obligations in that instrument. Reservations may serve a useful function to enable States to
adapt specific elements in their laws to the inherent rights of each person as articulated in the
Covenant. However, it is desirable in principle that States accept the full range of
obligations, because the human rights norms are the legal expression of the essential
rights that every person is entitled to as a human being.
…

7. In an instrument which articulates very many civil and political rights, each of the many
articles, and indeed their interplay, secures the objectives of the Covenant. The object and
purpose of the Covenant is to create legally binding standards for human rights by
defining certain civil and political rights and placing them in a framework of obligations
which are legally binding for those States which ratify; and to provide an efficacious
supervisory machinery for the obligations undertaken.

Prohibited Reservations?

 General Comment No. 24(52): Issues relating to reservations made upon

ratification or accession to the Covenant or the Optional Protocols thereto,
or in relation to declarations under article 41 of the Covenant.
8. Reservations that offend peremptory norms would not be compatible with the object
and purpose of the Covenant. Although treaties that are mere exchanges of obligations
between States allow them to reserve inter se application of rules of general international law,
it is otherwise in human rights treaties, which are for the benefit of persons within their
jurisdiction. Accordingly, provisions in the Covenant that represent customary international
law (and a fortiori when they have the character of peremptory norms) may not be the subject
of reservations. Accordingly, a State may not reserve the right to engage in slavery, to
torture, to subject persons to cruel, inhuman or degrading treatment or punishment, to
arbitrarily deprive persons of their lives, to arbitrarily arrest and detain persons, to
deny freedom of thought, conscience and religion, to presume a person guilty unless he
proves his innocence, to execute pregnant women or children, to permit the advocacy of
national, racial or religious hatred, to deny to persons of marriageable age the right to
marry, or to deny to minorities the right to enjoy their own culture, profess their own
religion, or use their own language. And while reservations to particular clauses of
article 14 may be acceptable, a general reservation to the right to a fair trial would not
be.

12. The intention of the Covenant is that the rights contained therein should be ensured to all
those under a State party's jurisdiction. To this end certain attendant requirements are likely to
be necessary. Domestic laws may need to be altered properly to reflect the requirements of the
Covenant; and mechanisms at the domestic level will be needed to allow the Covenant rights
to be enforceable at the local level. Reservations often reveal a tendency of States not to want
to change a particular law. And sometimes that tendency is elevated to a general policy. Of
particular concern are widely formulated reservations which essentially render ineffective all
Covenant rights which would require any change in national law to ensure compliance with
Covenant obligations. No real international rights or obligations have thus been accepted. And
when there is an absence of provisions to ensure that Covenant rights may be sued on in
domestic courts, and, further, a failure to allow individual complaints to be brought to the
Committee under the first Optional Protocol, all the essential elements of the Covenant

15
 guarantees have been removed.

…
19. Reservations must be specific and transparent, so that the Committee, those under the
jurisdiction of the reserving State and other States parties may be clear as to what obligations
of human rights compliance have or have not been undertaken. Reservations may thus not
be general, but must refer to a particular provision of the Covenant and indicate in
precise terms its scope in relation thereto. When considering the compatibility of possible
reservations with the object and purpose of the Covenant, States should also take into
consideration the overall effect of a group of reservations, as well as the effect of each
reservation on the integrity of the Covenant, which remains an essential consideration. States
should not enter so many reservations that they are in effect accepting a limited number of
human rights obligations, and not the Covenant as such. So that reservations do not lead to a
perpetual non-attainment of international human rights standards, reservations should not
systematically reduce the obligations undertaken only to those presently existing in less
demanding standards of domestic law. Nor should interpretative declarations or reservations
seek to remove an autonomous meaning to Covenant obligations, by pronouncing them to be
identical, or to be accepted only in so far as they are identical, with existing provisions of
domestic law. States should not seek through reservations or interpretative declarations to
determine that the meaning of a provision of the Covenant is the same as that given by an
organ of any other international treaty body.

Declarations

Is it a Declaration or a Reservation?

 The Human Rights Committee, the expert body which supervises

compliance under the International Covenant on Civil and Political
Rights (ICCPR), had occasion to address the question of reservations
General Comment No. 24 (1994).

 General Comment No. 24(52): Issues relating to reservations made upon

ratification or accession to the Covenant or the Optional Protocols thereto, or
in relation to declarations under article 41 of the Covenant.

3. It is not always easy to distinguish a reservation from a declaration as to a

State's understanding of the interpretation of a provision, or from a statement of
policy. Regard will be had to the intention of the State, rather than the form of the
instrument. If a statement, irrespective of its name or title, purports to exclude or
modify the legal effect of a treaty in its application to the State, it constitutes a
reservation. Conversely, if a so-called reservation merely offers a State's
understanding of a provision but does not exclude or modify that provision in its
application to that State, it is, in reality, not a reservation.

 TK v FRANCE (220/87)

At ratification of the ICCPR, France made the following

declaration:

16
 In the light of article 2 of the Constitution of the French Republic, the French
government declares that article 27 is not applicable so far as the Republic is
concerned.

The Committee’s majority stated as follows:

The Covenant itself does not provide any guidance in determining whether a
unilateral statement made by a State party upon accession to it should have
preclusionary effect regardless of whether it is termed a reservation or
declaration….it is not the formal designation but the effect the statement
purports to have that determines its nature. If the statement displays a clear
intent on the part of the State party to exclude or modify the legal effect of a
specific provision of a treaty, it must be regarded as a binding reservation,
even if the statement is phrased as a declaration….

 Declarations have no legal effect in international law.

Derogations

“Most constitutions contain emergency clauses that empower the Head of State or
Government to take exceptional measures, including restrictions on or suspension of
fundamental rights, with or without the consent of Parliament during time of war or other
catastrophic situations. This constitutional right of emergency of the State is comparable
to the individual’s right of self-defence under criminal law. In addition, it offers a State’s
democratically legitimate, supreme constitutional organs a basis for avoiding exceptional,
irreparable damages to the general public resulting from an international or civil war, the
attempt to topple the constitutional order or particularly grave natural or environmental
catastrophes.”

“Article 4” in Manfred Nowak, UN Covenant on Civil and Political Rights – CCPR

Commentary, 2nd revised edition, N.P. Engel, Publisher (2005), at page 84.

 In times of war, natural disasters or other public emergencies that

pose a serious threat to the life of a nation, a State may wish to
limit rights and freedoms. This is referred to as the right of derogation.
A State may take measures derogating from its human rights
obligations, provided the following conditions are met:

 A state of emergency has been declared;

 The specific measures derogating from an international treaty

must be officially notified to the competent international
organisations and other States parties;

 The rights subject to derogation must not be among those that

admit no derogation.

 Derogation measures must be consistent with the State’s other

obligations and must not discriminate.

17
  Derogation is permissible only to the extent strictly required by the
exigencies of the situation and must be lifted as soon as the
emergency situation is over;

 Derogations should specify their territorial and temporal reach

and can only be of an exceptional or temporary nature.

 General Comment No. 29, Human Rights Committee

1. Article 4 of the Covenant is of paramount importance for the system of protection

for human rights under the Covenant. On the one hand, it allows for a State party
unilaterally to derogate temporarily from a part of its obligations under the
Covenant. On the other hand, article 4 subjects both this very measure of derogation,
as well as its material consequences, to a specific regime of safeguards. The
restoration of a state of normalcy where full respect for the Covenant can again
be secured must be the predominant objective of a State party derogating from
the Covenant….
2. Measures derogating from the provisions of the Covenant must be of an
exceptional and temporary nature. Before a State moves to invoke article 4, two
fundamental conditions must be met: the situation must amount to a public emergency
which threatens the life of the nation, and the State party must have officially
proclaimed a state of emergency. The latter requirement is essential for the
maintenance of the principles of legality and rule of law at times when they are most
needed. When proclaiming a state of emergency with consequences that could entail
derogation from any provision of the Covenant, States must act within their
constitutional and other provisions of law that govern such proclamation and the
exercise of emergency powers;….
4. A fundamental requirement for any measures derogating from the Covenant, as set
forth in article 4, paragraph 1, is that such measures are limited to the extent
strictly required by the exigencies of the situation. This requirement relates to the
duration, geographical coverage and material scope of the state of emergency and any
measures of derogation resorted to because of the emergency. Derogation from some
Covenant obligations in emergency situations is clearly distinct from restrictions or
limitations allowed even in normal times under several provisions of the Covenant.
Nevertheless, the obligation to limit any derogations to those strictly required by the
exigencies of the situation reflects the principle of proportionality which is common
to derogation and limitation powers. Moreover, the mere fact that a permissible
derogation from a specific provision may, of itself, be justified by the exigencies of
the situation does not obviate the requirement that specific measures taken pursuant to
the derogation must also be shown to be required by the exigencies of the situation.
In practice, this will ensure that no provision of the Covenant, however validly
derogated from will be entirely inapplicable to the behaviour of a State party.

 Derogation is not an absolute right.

 General Comment No. 28

Distinction between Limitation and Derogation Clauses

18
 Limitation and derogation clauses have a similar function in the
sense that both provide legal avenues for States to break free
of obligations that would ordinarily constrain their actions.
They are also similar in that neither permits States to ignore their
human rights obligations altogether.

 However, one significant difference between the two is that

derogations were designed to be applicable only in the
exceptional case of a grave threat to the survival and security
of a nation. The implication is that derogations were intended to
be invoked as temporary measures. In contrast, limitation clauses
apply across the spectrum, from everyday public order maintenance
and policing strategies to national security and large-scale military
actions.

Non-Derogable Rights/Freedoms

 Some human rights are absolute and not amenable to limitations or

derogations, e.g., freedom from torture; freedom from slavery; or
the right not to be subjected to enforced or involuntary
disappearance.

 General Comment No. 24

10. The Committee has further examined whether categories of reservations may offend the
"object and purpose" test. In particular, it falls for consideration as to whether reservations to
the non-derogable provisions of the Covenant are compatible with its object and purpose.
While there is no hierarchy of importance of rights under the Covenant, the operation of
certain rights may not be suspended, even in times of national emergency. This underlines the
great importance of non-derogable rights. But not all rights of profound importance, such as
articles 9 and 27 of the Covenant, have in fact been made non-derogable. One reason for
certain rights being made non-derogable is because their suspension is irrelevant to the
legitimate control of the state of national emergency (for example, no imprisonment for
debt, in article 11). Another reason is that derogation may indeed be impossible (as, for
example, freedom of conscience). At the same time, some provisions are non-derogable
exactly because without them there would be no rule of law….

 Although certain rights and freedoms are traditionally

regarded as non-derogable, one must refer to the derogation
clause of the specific instrument to identify which provisions
are non-derogable.

 The qualification of a provision as a non-derogable one does

not mean that no limitation or restrictions would ever be
justified. The permissibility of restrictions is independent of
the issue of derogability. [See, for example, Article 18 ICPPR;
Articles 12 Zambian Bill of Rights]

19
 The Human Rights Committee has suggested that some
human rights guarantees remain non-derogable despite not
being expressly mentioned in the derogation clause.

 General Comment No. 29 [paragraphs 11 – 14]

Denunciations

 Denunciation of a treaty occurs when a State party withdraws its

membership from that treaty (e.g., North Korea, 1997 denunciation)

 The general position for denunciation is covered by the Vienna

Convention on the Law of Treaties (1969). Key provisions in the
VCLT are Articles 42, 43, 54, and 56.

 Some human rights instruments explicitly provide for denunciation

(Art. 21 ICERD; Art. 12 1OP ICCPR) Others do not (e.g., ICCPR;
2OP ICCPR) and so customary international law and the VCLT will
apply.

 General Comment No. 26 (1997): Issues Relating to the Continuity of

Obligations to the International Covenant on Civil and Political Rights,
A/53/40 vol.1 (1998) 102

 For a List of core/principal United Nations Human Rights

Instruments/Treaties, see www.ohchr.org

International Custom

Article 38(1)(b) ICJ Statute

The Court, whose function is to decide in accordance with international

law such disputes as are submitted to it, shall apply:
…;
(b) international customs, as evidence of a general practice accepted
as law;

 Customary international law arises when states consider that they are
required by law to act or refrain from acting in a particular way. This
generally requires the repetition of acts and statements which then
crystallise into binding rules.

 Def: Article 38 refers to ‘international custom, as evidence of a general

practice accepted as law’. The essential element is a recognition,
among States, of a certain practice as obligatory.

20
 Evidence: the material sources of custom are varied and include
policy statements, diplomatic correspondence, State legislation, the
practice of international organisations, resolutions of the UNGA relating
to legal questions, international and national judicial decisions, etc.

 Before a customary rule can arise, it is generally accepted certain

essential elements be satisfied.

 Elements of custom:

In the North Sea Continental Shelf cases (1969), the ICJ said:

“Although the passage of only a short period of time is not

necessarily, or of itself, a bar to the formation of a new rule of
customary international law on the basis of what was originally a
purely conventional rule, an indispensable requirement would
be that within the period in question, short though it might
be, State practice, including that of States whose interests
are specifically affected, should have been both extensive
and virtually uniform in the sense of the provisions invoked;
- and should moreover have occurred in such a way as to show a
general recognition that a rule of law or legal obligation is involved.”

(a) Duration: no particular duration is required as long as

consistency and generality of a practice are proved.

(b) Constancy and uniformity: complete uniformity is not

required but substantial uniformity is. Universality is not required.
The requirement is that State practice is general not universal.

Military and Paramilitary Activities in and against Nicaragua

(Nicaragua case) (1986):

“In order to deduce the existence of customary rules, the Court

deems it sufficient that the conduct of States should, in general, be
consistent with such rules, and that instances of State conduct
inconsistent with a given rule should generally have been treated as
breaches of that rule, not as indications of the recognition of a new
rule.”

(c)Opinio juris: this is a psychological element, a conviction on the

part of States that a certain action (or omission) is required of them
by law. The States concerned must feel that they are
conforming to what amounts to a legal obligation.

North Sea Continental Shelf cases (1969)

21
 “Not only must the acts concerned amount to a settled practice, but
they must also be such, or be carried out in such a way, as to be
evidence of a belief that this practice is rendered obligatory by the
existence of a rule of law requiring it. The need for such a belief,
i.e., the existence of a subjective element, is implicit in the very
notion of the opinion juris sive neccesitatis.”

UN General Assembly resolutions have been used by the Court to

prove the existence (or non-existence) of an opinio juris.

Legality of the Threat or Use of Nuclear Weapons (Nuclear

Weapons case) (advisory opinion) [1996]

“General Assembly resolutions, even is they are not binding, may

sometimes have normative value. They can, in certain
circumstances, provide evidence important for establishing the
existence of a rule or the emergence of an opinion juris.”

 An important aspect of customary international law is that

when a customary rule is proved, it is binding on states
whether they have specifically consented to it or not. The only
way in which a state may not be bound by a customary rule is if
it has expressly objected to the rule during the period of its
formation (persistent objector principle). Protest after the fact will
not suffice.

 In the field of human rights, a number of rules reflect current

customary law. These include the prohibition of genocide,
torture, slavery and the principle of non-discrimination. Unlike
treaty-based rules, customary rules are not written down and
have to be proved by the state or the person claiming their
existence.

Jus Cogens

 Some rules of international law (especially international customary law)

allow no derogations or reservations. These are referred to as jus
cogens or peremptory norms. Rules that have attained the status of
jus cogens are binding on all States. (e.g., self-determination;
prohibition of slavery, genocide, torture and racial discrimination).

 Article 53 VCLT states that “a treaty is void if, at the time of its
conclusion, it conflicts with a peremptory norm of general international
law.....a peremptory norm of general international law is a norm
accepted and recognised by the international community of States as a
whole as a norm from which no derogation is permitted and which can

22
 be modified only by a subsequent norm of general international law
having the same character.”

 Article 64 VCLT provides that “if a new peremptory norm of general

international law emerges, any existing treaty which is in conflict with
that norm becomes void and terminates.”

 Article 53 of the VCLT does not contain a list of jus cogens. However,
according to the UN International Law Commission, the most
frequently cited norms for jus cogens status include:

(a) The prohibition of aggressive use of force

(b) The right to self-defence
(c) The prohibition of genocide
(d) The prohibition of torture
(e) Crimes against humanity
(f) The prohibition of slavery and the slave trade
(g) The prohibition of piracy
(h) The prohibition of recial discrimination and apartheid
(i) The prohibition of hostilities directed at a civilian population

 In Dominques v United States, the Inter-American Commission on

Human Rights suggested that non-derogable treaty rights constitute an
important starting point for identifying jus cogens norms. (Note,
however, that lists of non-derogable rights are not identical)

 Special Note: Article 10(4) of the Constitution of Zambia, as amended

by Act No.2 of 2016, incorporates the application of customary
international law in compulsory acquisition of an investment.

General Principles of Law

Article 38(1)(c) ICJ Statute

The Court, whose function is to decide in accordance with international

law such disputes as are submitted to it, shall apply:
…:
(c) the general principles of law recognised by civilised nations;

 As a source, these are the principles/rules accepted in the domestic

law of all civilised States. The general principles of law seek to cover
any gaps that may exist in international law that are not, for instance,
properly covered by international custom. Suffice to state here,
however, that debate still rages as to what exactly these principles are.
Some regard general principles of law to be natural law concepts which
are deemed to underlie the system of international law and constitute
the method of testing the validity of “man-made” rules.

23
Subsidiary Means for Determining Rules of Law

Article 38(1)(d) ICJ Statute

The Court, whose function is to decide in accordance with international

law such disputes as are submitted to it, shall apply:

(d) …judicial decisions and the teachings of the most highly qualified
publicists of the various nations, as subsidiary means for the
determination of rules of law.

 Under Article 38 of the Statute of the International Court of Justice,

these subsidiary means include judicial decisionsand the teachings of
highly qualified publicists. Judicial decisions can be an extremely
important source of law. Judges interpret legal provisions and in the
process help in creating law. Some landmark cases that have come
before the International Court of Justice show that the judges
sometimes do more than just “determine” the law.

PART III

THE INTERNATIONAL PROMOTION AND PROTECTION OF HUMAN

RIGHTS

I. HISTORICAL ANTECEDENTS TO THE INTERNATIONAL

PROMOTION AND PROTECTION OF HUMAN RIGHTS

(a)Creation of the United Nations

 The basis of the international human rights promotion and protection

system is the Charter of the United Nations (“the Charter”).1 For
any discussion of contemporary international human rights law and the
mechanisms that are in place for its enforcement, an obvious starting
point is the formation of the United Nations Organisation (UN).

 The creation of the UN set the stage for the articulation of standards in
the maintenance of peace and security, international cooperation and
respect for human rights that would be binding on all nations.

 As witnessed by world history, the creation of the UN came in the wake

of, not one, but two major wars in the first half of the twentieth
century. It was the global community’s second attempt at establishing
an organisation with a global reach to help maintain international

1
http://www.un.org/en/charter-united-nations/index.html. The United Nations Charter was adopted on 21 June
1945 and came into force on 24 October 1945.

24
 peace and security, the first coming with the establishment of the
League of Nations in 1920.2 One author put it like this:3

“Twice in the first half of this century4mankind has been engulfed on

a universal scale in belligerent fratricide. Throughout the century
the world has wrestled with racial, religious and political hostilities.
Yet there is a significant difference between the first and second
halves of the century. The difference is that when mankind
emerged from the bloody conflict in which the free Nations of the
World vanquished Nazi aggression, racism and the evil forces of
hate, the Peoples of the World established universal norms of
conduct and institutionalised them in international and regional
organisations.”

 The period 1939 to 1945 was particularly characterised by massive

atrocities including genocide, torture and other war crimes and
crimes against humanity. The scale of carnage deeply seared
the collective conscience of the international community. An
acute need to maintain peace and justice for humankind
precipitated a search for ways of strengthening international
cooperation in, inter alia, the protection of the human being against
the arbitrary exercise of State power.5

 In fulfilment of this collective will, the UN was founded in 1945

when the Charter6 was signed on 26 June of that year in San
Francisco. The Charter is an international treaty and it entered
into force on 24 October 1945.7

 As with most African countries and other non-self-governing regions

at the time, Zambia (Northern Rhodesia in 1945) was not an
original signatory to the United Nations Charter. Instead, Zambia
became a member of the United Nations on 1 December 1964, after
the attainment of self-rule on 24 October 1964.8

 In accordance with international treaty law, therefore, Zambia is

expected to adhere to the provisions of the UN Charter, including
pledges on respect for human rights and fundamental freedoms. In
terms of Article 26 of the Vienna Convention on the Law of
Treaties of 1969, treaties are binding upon States parties “and
2
The League of Nations was founded on 10 January 1920 following the Paris Peace Conference that ended the
First World War.
3
Lloyd G. Barnett, O.J., International Human Rights Norms and their Domestic Application: Judicial Methods
and Mechanisms.
4
In reference to the 20th Century.
5
See HUMAN RIGHTS IN THE ADMINISTRATION OF JUSTICE: A Manual on Human Rights for Judges,
prosecutors and Lawyers, Professional Training Series No. 9 (2003), United Nations, p.3
6
https://treaties.un.org/doc/publication/ctc/uncharter.pdf
7
Article 110 of the Charter provides for ratification and signature.
8
http://www.un.org/en/members/

25
 must be performed by them in good faith.”9 Joining the UN meant
that the new nation of Zambia espoused the ideals, values and
aspirations of the world community as promulgated in the Charter.

(b)The UN Charter and Human Rights

 In terms of Article 1 of the Charter, the purposes of the United

Nations are:

(a) To maintain international peace and security by taking

effective collective measures for the prevention and removal of
threats to international peace and suppression of acts of
aggression. In this regard, the UN is required to pursue peaceful
means in the adjustment or settlement of international disputes.

(b) To develop friendly relations among nations based on respect

for the principle of equal rights and self-determination of peoples.

(c)To achieve international cooperation in solving international

problems of an economic, social, cultural or humanitarian
character, and in promoting and encouraging respect for
human rights and fundamental freedoms for all.

 With all Members pledging themselves to take joint and

separate action in co-operation with the UN for the
achievement of the purposes aforementioned,10 the
international agenda was set out for the articulation of
international standards for the promotion and protection of
human rights as well as procedural and institutional
mechanisms. Clearly, these were lofty albeit noble aspirations.

 In 2015, the UN marked seventy years of existence. Although it

would be fair to state that much progress has undoubtedly been
made in using international law and its various instruments as a
conduit for upholding the fundamental rights of every human being
and recognising the inherent dignity and equal and inalienable
rights of the human family, it is also true that the international
community has continued to grapple with conflict accompanied by
gross and massive violations of human rights. As one commentator
remarked, the UN has not always been able to halt the
descent into the abyss.11 The post-War years have been full of
strife and war on almost every continent.

9
https://treaties.un.org/doc/Publication/UNTS/Volume%201155/volume-1155-I-18232-English.pdf
10
Article 56, UN Charter.
11
Nick Bryant, “UN: Seventy years of changing the world,” in Times of Zambia, Thursday October 1, 2015, p.
8.

26
 o Africa has had its fair share, enduring a number of bloody
conflicts virtually throughout the last half of the twentieth
and into the twenty-first centuries. Weak or lack of
democratic structures exacerbated conditions on the
continent of Africa that led to social and political instability.

o In 1994, the world witnessed the slaughter of 800,000

people in the Rwandan genocide.

o In West Africa, Liberia and Sierra Leone endured civil war

that not only resulted in the slaughter of thousands but
also left many maimed and physically and emotionally
scarred for life.

o By the turn of the century, parts of the Democratic

Republic of Congo were still embroiled in conflict with many
killed, tortured, raped and displaced.

o In Europe, Srebrenica is a sore point for the UN. In July

1995, more than 8,000 people, mostly Muslim men and
boys, were butchered by Bosnian-Serb forces, with the UN
lamentably failing to stop the carnage.

o Now we have the Syrian crisis, a war that has resulted in a

massive and unprecedented refugee problem. The UN
seems not to have a durable solution any time soon, with
some of the Permanent Members of the Security Council,
holding veto powers, clearly on opposite sides of the
conflict. All these and other conflicts fly right in the face
of the aspirations of the international community’s
ambitions for international peace and security.

 Considering the circumstances which led to its formation following

wide spread and serious violations of human rights prior to and
during the Second World War, the protection of human rights
was seen as a central element of UN work.12

 From its inception, the purpose of the UN was unequivocal.

According to the Charter’s Preamble, the peoples of the United
Nations were determined to save succeeding generations from the
scourge of war, which had brought untold sorrow to humankind and,
thus, reaffirmed faith in fundamental rights, dignity and worth of
the human person. The global community pledged to establish
conditions under which justice and respect for the obligations
arising from treaties and other sources of international law can be

12
Article 1(3) UN Charter

27
 maintained, and to promote social progress and better standards of
life in larger freedom.

 Thus, the adoption of the Charter set the stage for the
articulation of an elaborate system of the promotion and
protection of international human rights standards. It is clear
to see that the UN put human rights right at the centre of its
activities, anchored in the realisation that international peace and
security could only be achievable and meaningful in an atmosphere
of respect for and observance of human rights.

 Under Chapter IX of the Charter “International Economic and Social

Cooperation”, the international community agrees in Article 55,
“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,…”, to promote:

(a) higher standards of living, full employment, and conditions of

economic and social progress and development;

(b) solutions of international economic, social, health, and related

problems; and international cultural and education cooperation;
and,

(c) universal respect for, and observance of, human rights and
fundamental freedoms for all without distinction as to race, sex,
language, or religion.

 In Article 56, UN Member States pledge “to take joint and separate
action in cooperation with the Organisation for the achievement” of
the objectives set out in Article 55. Thus, all countries, including
Zambia, have the solemn and legal duty to contribute towards the
effective promotion and protection of human rights and
fundamental freedoms. This duty transcends each country’s
borders. It is a duty owed to the whole of humanity.

 While the Charter establishes no direct mechanisms for protecting

human rights and, indeed, contains no clear statement of the
rights to be protected, there are a number of provisions which
make reference to such rights, and these have become important
elements in the development of human rights promotion and
protection systems at universal, regional and national levels.

o References to human rights in the UN Charter begin with the

preamble, where the peoples of the United Nations express their
determination, inter alia, “to reaffirm faith in fundamental human

28
 rights, in the dignity and worth of the human person, in the
equal rights of men and women and of nations large and
small….”.

o Article 1(3) of the UN Charter makes reference to human rights

as being one of the purposes of the UN.

o In Article 56, UN Member States pledge themselves to take joint

and separate action in co-operation with the Organisation for the
achievement of the purposes for which it was established.

(d) Principal Organs of the United Nations

 Other provisions in the Charter provide useful pointers to the

international community’s vision for human rights. Article 7(1)
establishes the principal organs of the UN: a General Assembly, a
Security Council, an Economic and Social Council, a Trusteeship
Council, an International Court of Justice, and a Secretariat.

General Assembly

 The General Assembly (GA) is the plenary organ of the UN, currently
with 193 members. Membership is open to all peace-loving States
which accept the obligations contained in the Charter (Art.4).

 In Article 13(1)(b), the General Assembly, is given the mandate,

among other things, to “initiate studies and make recommendations
for the purpose of…promoting international cooperation in the
economic, social, cultural, educational, and health fields, and assisting
in the realisation of human rights and fundamental freedoms for all
without distinction as to race, sex, language or religion.”

 The GA also plays an important role in preparing, drafting and adopting

international treaties.

 Member States have one vote each

 Powers of GA are deliberative or recommendatory in nature (Art.10-

14). The GA can discuss any question or matter within the scope of
the Charter, except if the same is being discussed by the Security
Council, and make appropriate recommendations

 In its deliberations, the GA makes two kinds of decisions: on

“important question” (Art.18(2)), requiring two thirds majority, and
“other matters”, requiring simple majority. Issues on “important
questions” include:

29
  Election, suspension or expulsion of members
 Election of non-permanent members of the Security Council
 Recommendations of the maintenance of international peace

 GA resolutions are recommendatory and do not establish binding legal

obligations (but they may present evidence of State practice which is
an essential ingredient in the development of binding customary law).

Security Council

 The Security Council (SC) is the executive body of the UN with primary
responsibility to maintain international peace and security.

 It has 15 members, including 5 permanent members (China, France,

Russian Federation, United Kingdom and United States). Other 10 are
elected for 2 year terms by GA.

 Any country or the Secretary General may bring to the SC’s attention a
dispute or threat to peace and security.

 9 affirmative votes are required to pass a resolution. A negative vote

by a permanent member on a resolution that relates to a non-
procedural matter would veto the resolution.

 Chapter VII resolutions are binding on all Member States (threats to

the peace, breaches of the peace and acts of aggression). Under
Chapter VII, the SC may order economic sanctions and military action.

 SC can broadly deal with issues of human rights. For example, the SC
created ad hoc tribunals for the Former Yugoslavia (ICTY) and Rwanda
(ICTR) to deal with gross violations of human rights.

Economic And Social Council

 The Economic and Social Council (ECOSOC) has 54 Member States

elected by the GA for 3 year terms and its mandate covers wide-
ranging issues.

 The Economic and Social Council (ECOSOC) is given mandate in the

area of human rights through Articles 62 and 68 of the Charter.

 In Article 62(2), the ECOSOC may make recommendations for the

purpose of promoting respect for, and observance of, human rights
and fundamental freedoms for all. ECOSOC has been central to the UN
human rights work since 1945.

30
 In Article 68, the ECOSOC can set up functional commissions in
economic and social fields and for the promotion of human rights, e.g.,
the Commission on Human Rights and the Commission on the Status
of Women, both created in 1946.

 ECOSOC powers are limited to recommendations which are not binding

upon States.

Trusteeship Council

 In Chapter XII of the Charter which outlines the International

Trusteeship System, Article 76 states that the basic objectives of the
trusteeship system shall be, among others, “…to encourage respect for
human rights and for fundamental freedoms for all without distinction
as to race, sex, language, or religion,...”.

 The main aim of the Trusteeship Council (TC) was to supervise the
social advancement of the people of trust territories with the aim
ultimately of preparing them for self-government and independence
(Art.76(c)).

 Currently operations of the TC are suspended as there are no more

trust territories.

International Court of Justice

 The International Court of Justice (ICJ) is the principal judicial organ of

the UN (Art.92). The ICJ was preceded by the Permanent Court of
International Justice (PCIJ).

 The Statute of the ICJ forms an integral part of the UN Charter and all
UN members are automatically parties to the Statute.

 The ICJ has 15 judges elected by the GA and SC.

 The ICJ has contentious and advisory jurisdiction.

 Only States can be parties to the court’s contentious jurisdiction and

judgments are final and binding only to the parties to the case.

 The advisory jurisdiction is not open to States. Requests for opinions

are made by organs of the UN and the Specialised Agencies.

 Since 1945, the ICJ has contributed jurisprudence relevant to the

development of human rights law.

31
 Secretariat

 The Secretariat is headed by the Secretary General (SG). It provides

staff for the day-to-day functioning of the UN.

 The SG carries out functions assigned to him by the GA, SC, ECOSOC
or TC (Art.98).

 In practice, the SG is appointed for a 5 year term renewable once.

 The SG acts as a referee/mediator in disputes between Member States

 SG may bring to the attention of the SC any matter which in his

opinion may threaten the maintenance of international peace and
security.

(e) What did UN Charter achieve for Human Rights?

 All the Charter’s references to human rights are scattered, terse, even
cryptic. Alston and Goodman sum up the effect of these Charter
provisions thus:

“Several striking characteristics of these provisions emerge. Many

have a promotional or programmatic character, for they refer
principally to the purposes or goals of the UN or to the
competencies of different UN organs: ‘encouraging respect for
human rights’, ‘assisting in the realisation of human rights’,
‘promote…universal respect for, and observance of, human rights’.
Not even a provision such as Article 56, which refers to action of the
member states rather than of the UN, contains the language of
obligation….only one substantive human right, the right to equal
protection, receives specific mention in the Charter….”13

 That notwithstanding, the Charter provisions have provided a

sound basis for the development of the human rights practice
of the UN and its various organs for seven decades. It is on these
foundations that the UN has built a fabric of norms and standards and
developed institutions dedicated to the promotion, protection and
observance of human rights.14

 Beginning with the adoption of the Charter, the question of

human rights was elevated from a matter of domestic privilege
to one of international concern. Before 1945, human rights were
largely regarded as matters concerning only the State and its citizens.

13
Alston and Goodman, International Human Rights: Text And Materials (Oxford (2013), p.141
14
Ibid., p.143

32
 Having consented to the human rights provisions in the Charter, a
legally binding multilateral treaty, Member States could no longer
plead that human rights were a matter solely within their domestic
jurisdiction or sovereignty.15

 Thus, although the UN Charter did not define or outline what these
rights and freedoms were, save for a few general principles such as
non-discrimination, equality of men and women and the right to self-
determination, it still achieved the following:

1. The UN Charter internationalised human rights. By adhering to

the Charter, which is a multilateral treaty, the Member States
recognised that human rights referred to in it are a subject of
international concern and, to that extent, no longer within their
exclusive domestic jurisdiction.

2. The obligation of the Member States of the UN to cooperate with the

organisation in the promotion of human rights and fundamental
freedoms has provided the UN with the requisite legal authority to
undertake a massive effort to define and codify these rights. That
effort is reflected in the adoption of the International Bill of Human
Rights and the numerous other human rights instruments and also
the creation of institutions and procedures designed to ensure
compliance by States.

II. THE INTERNATIONAL NORMATIVE AND INSTITUTIONAL

STRUCTURE FOR HUMAN RIGHTS

(a) The International Bill of Human Rights

 As noted above, the Charter never outlined a catalogue of the rights

and freedoms it was referring to. Charles Malik, writing in 1948
following the adoption of a draft “International Declaration of Human
Rights” stated:16

AFTER TWO YEARS of work a complete draft International

Declaration of Human Rights has been drawn up by the eighteen-
member Commission on Human Rights, which concluded its third
session on June 18….The Charter refers to “human rights and
fundamental freedoms” in at least seven places (the preamble and
articles 1, 13, 55, 62, 68 and 76). One of the aims of the United
Nations is “to achieve international cooperation… in promoting and

15
See for example, Frans Viljoen in International Human Rights Law in Africa, (2nd ed.,)
16
Drawn from an article originally published in the July 1948 issue of the United Nations Bulletin. At the time
of its drafting, Malik was the President of the Economic and Social Council, Rapporteur of the Commission on
Human Rights and Minister of Lebanon in the United States.

33
 encouraging respect for human rights and fundamental freedoms.”
But despite this Charter insistence on human rights, nowhere does
the Charter define precisely what these rights are. The present
Declaration is in effect a filling out of this gap in the Charter; it is
the definitive explication of the pregnant phrase of the preamble,
“the dignity and worth of the human person.”

 It is worth noting that proposals to incorporate a bill of rights in the

Charter met with potent opposition. The scope of this paper does not
allow for a discussion of the reasons behind the objections. Suffice to
state that one of the earliest major undertakings of the UN was,
therefore, to embark on the development of an international bill of
human rights which would stipulate in detail what the Charter referred
to as the rights of every human being and which the Member States
needed to observe and respect.

 Article 68 of the UN Charter provides that the ECOSOC can, as

required, set up commissions in the economic and social fields and for
the promotion of human rights. In 1946 the ECOSOC created the
Commission on Human Rights (CHR)17 to lead the UN effort for the
development of an international human rights system through the
development of an international bill of human rights. Records reveal
that the road leading to the development of an international bill of
human rights was to involve three aspects:18

(i) the adoption of a non-binding declaration which would declare

the rights and freedoms of every human being;
(ii) the articulation of a convention elaborating on the principles in
the declaration and giving them the force of law and impose legal
obligations on States; and,
(iii) the creation of mechanisms for the implementation of the
fundamental rights and freedoms to ensure compliance by States
parties.

 Malik puts it thus:19

17
The UN Commission on Human Rights ceased to exist in 2006 and was replaced with the Human Rights
Council. Despite its reputation as being overly politicized, the Commission was the leading human rights body
with the UN for 60 years. Notwithstanding its inherent politicization, it is fair to say the Commission made a
significant contribution to the development of norms and institutions that have influenced the global human
rights agenda.
18
At its 29th Meeting on 8 December 1947, the Commission set up three separate working groups to spearhead
work on a Declaration, a Convention or Conventions, and the implementation aspects. See UN Doc
E/CN.4/SR.29 and Report of the Commission of Human Rights, 2nd Session, Geneva, 2 December to 17
December 1947 (E/600).
19
Supra note 18

34
 FIRST, we must elaborate a general Declaration of human rights
defining in succinct terms the fundamental rights and freedoms of
man which, according to article 55 of the Charter, the United
Nations must promote. This responsible setting forth of the
fundamental rights will exert a potent doctrinal and moral and
educational influence on the minds and ways of men. It will serve,
in the words of the present Declaration, "as a common standard of
achievement for all peoples."

SECOND, there was the insistent need of something more legally

binding than a mere Declaration. Such a document can only be a
convention, an international treaty, setting forth in precise legal
terms the maximum area of agreement to which governments are
willing to be legally bound in this domain. What the convention
loses by reason of its more restricted subject-matter, it makes up
for by the fact that those who sign it are willing to covenant
themselves into the strict observance of its terms. Hence we have
called it "the Covenant on Human Rights."

FINALLY, it was obvious we needed adequate machinery for making

sure that human rights are observed and for dealing with cases of
their infraction. We called this machinery "Measures of
Implementation." The Covenant itself is in a sense a measure of
implementation; for with it we move from the level of mere
Assembly resolution to that of an international treaty whose
observance or infraction is already regulated by well-established
international law. But human rights are more subtle and internal
than any formal-external international relations which have hitherto
been brought under the dominion of so-called "international law";
the Charter in any event imposes upon the United Nations the
obligation of promoting "universal respect for, and observance of,
human rights" so that from both points of view it is necessary to
pass beyond the limited degree of implementation vouchsafed by
the Covenant.

Thus Declaration, Covenant, Implementation: these are three basic

themes around which our concern in the Commission has turned
and which constitute together "the International Bill of Human
Rights."

 Here, it is suggested that the International Bill of Human Rights (IBHR)

currently constitutes the following instruments:20

20
At the time of writing in 2015. In some texts, the International Bill of Human Rights only refers to the
Universal Declaration of Human Rights and the two Covenants. Fact Sheet No.2 (Rev. 1) “The International
Bill of Human Rights” refers to five instruments. It is the opinion of this author that the Optional Protocol to the
Covenant on Economic, Social and Cultural Rights, adopted in 2008, should now be considered an integral part

35
  Universal Declaration of Human Rights (UDHR) 1948,
 International Covenant on Economic, Social and Cultural Rights
(ICESCR) 1966,
 International Covenant on Civil and Political Rights (ICCPR) 1966,
 (First) Optional Protocols to the ICCPR 1966
 Second Optional Protocol to the ICCPR 1989,
 Optional Protocol to the ICESCR 2008

 Together, these instruments are regarded as the bedrock of the

international human rights system as articulated under the auspices of
the United Nations. With its elements taken together, the IBHR is
a comprehensive catalogue of individual human rights and
fundamental freedoms. Suffice to say though that each of the
documents, beginning with the UDHR, is significant in its own right.
Each is an individual international human rights instrument with its
own moral, political and legal characteristics, albeit a part of the larger
corpus of the international human rights normative arrangements.

(b) Universal Declaration of Human Rights (1948)

The building of an international normative and institutional structure for

the promotion and protection of human rights commenced with the
adoption of the Universal Declaration of Human Rights (UDHR or
“the Declaration) on 10 December in 1948 by the General Assembly.21
The adoption of the UDHR was inspired by the recognition that the
inherent dignity and the equal and inalienable rights of all members of the
human family is the foundation of freedom, justice and peace in the
world22 and that “the peoples of the United Nations have in the Charter
reaffirmed their faith in fundamental human rights, in the dignity and
worth of the human person and in the equal rights of men and women
and have determined to promote social progress and better standards of
life in larger freedom.”23 The UDHR was proclaimed as a common
standard of achievement for all peoples and all nations24 and provided
further inspiration in the development of the international or universal
human rights system.25

of the International Bill of Human Rights, as it supports the ICESCR which is an integral part of the
International Bill of Human Rights like the two optional protocols to the ICCPR do.
21
At the time, UN membership stood at only 56 States. Today there are over 190 Member States.
22
UDHR Preamble paragraph 1
23
Ibid, paragraph 5
24
Ibid, paragraph 8
25
See for example the views of the 1993 Second World Conference on Human Rights: “Emphasising that the
Universal Declaration of Human Rights, which constitutes a common standard of achievement for all peoples
and all nations, is the source of inspiration and has been the basis for the United Nations in making advances in
standard setting as contained in the existing international human rights instruments, in particular the
International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and
Cultural Rights,….” Vienna Declaration and Programme of Action,(Preamble).

36
The Commission on Human Rights drafted the UDHR over a period of two
years under the leadership of Eleanor Roosevelt.26 Following many
debates over the proposed text of the Declaration, the UN General
Assembly unanimously adopted the UDHR in resolution 217 A (III) at its
third session in Paris on 10 December 1948. This was momentous in the
history of the world, “a remarkable achievement in many respects…the
first time an international organisation had agreed on a joint statement of
human rights….”.27 It marked the first time that the rights and freedoms
of individuals were set forth in such detail and also represented the first
international recognition that human rights and fundamental freedoms
accrued to every person, everywhere. In this regard, the adoption of the
UDHR was an unprecedented event in the history of humankind.

In the preamble28 the UDHR begins by recognising that the inherent

dignity and the equal and inalienable rights of all members of the human
family is the foundation of freedom, justice and peace in the world.29 It
recalls that “the peoples of the United Nations have in the Charter
reaffirmed their faith in fundamental human rights, in the dignity and
worth of the human person and in the equal rights of men and women
and have determined to promote social progress and better standards of
life in larger freedom”.30 Notably, the preamble puts the principles
proclaimed by the UDHR into a universal context by stating that “a
common understanding of these rights and freedoms is of the greatest
importance for the full realisation of this pledge”.31 The UDHR is then
proclaimed “as a common standard of achievement for all peoples and all
nations, to the end that every individual and every organ of
society, …shall strive by teaching and education to promote respect for
these rights and freedoms…”.32 Alfredsson and Eide sum up the “common
standard of achievement” tag nicely:33

26
There were other influential personalities in the drafting process. For an overview of some of the key
individual players, see Samnoy A., “The Origins of the Universal Declaration of Human Rights” in Alfredsson
and Eide (eds), The Universal Declaration Of Human Rights: A Common Standard Of Achievement (Kluwer
Law International, 1999), pp.6-9.
27
Ibid., p. 3
28
Note the words of Martti Koskenniemi on the purpose of a preamble: “A preamble is a celebration. It
celebrates the text of the Declaration from outside the text, from beyond the substance of the rights and
principles and provisions that form the grandeur of the Declaration. Like a manservant, the preamble clothes the
body/text of the one it serves with another body/text, different in nature and genre, more festive and dignified, a
statement of the seriousness and position of the one who wears it, a signifier of origin, present status and lofty
purpose. The preamble is the adornment through which the text looks not just like an ordinary piece of writing
but an achievement of moral worth and political value. Like an anniversary speech, the preamble also situates
the text by providing a short biography of the one who is being celebrated, evoking the humble but honourable
origins, the lofty ideals present even in infancy, the struggles, hardships and disappointments on the way to
present status.” Alfredsson and Eide (eds.), Ibid., p.27
29
Paragraph 1
30
Paragraph 5
31
Paragraph 7, emphasis added.
32
Paragraph 8
33
Supra, note 28, p. xxv-xxvi.

37
 “Prominent participants from all over the world contributed to the
drafting of the UDHR. It is often argued that the UDHR is
predominantly Western in its approach, but the roots of the UDHR
spread in many directions. Admittedly, the geographical balance
among the delegates was different from today’s composition of the
world community, and indigenous peoples and minorities were not
represented during the drafting and adoption stages, but the
drafters’ foresight in meeting popular and universal desires and
demands has clearly withstood the test of time.”

In a total of 30 articles, the UDHR outlines the rights and freedoms of

every human being. The first two articles are significant as they lay down
the universal foundation of human rights. Article 1 reads:

All 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.

Civil and political (“first generation”) rights in the UDHR are set out in
Articles 3 to 21. These include the right to life, liberty and security of
person; prohibition of slavery, of torture and cruel, inhuman or degrading
treatment; right not to be subjected to arbitrary arrest, detention or exile;
right to a fair trial in both civil and criminal matters, the presumption of
innocence and the prohibition against the application of ex post facto laws
and penalties. Others are the right to privacy and the right to own
property; freedom of speech, religion, assembly and movement, including
the right to leave any country and to return to one’s country. The UDHR
also proclaims the right to seek and to enjoy in other countries asylum
from persecution; right to a nationality and the right to take part in the
government of one’s country, directly or indirectly through freely chosen
representatives. The UDHR states that the will of the people shall be the
basis of the authority of government and this requires periodic and
genuine elections by universal suffrage.

Economic, social and cultural (“second generation”) rights are set out in
Articles 22 to 27, including the right to social security; the right to work,
to free choice of employment, to just and favourable conditions of work
and to protection against unemployment; the right to equal pay for equal
work and to just and favourable remuneration. There is also the right to
form and to join trade unions; the right to rest and leisure, including
reasonable limitation of working hours and periodic holidays with pay; the
right to a standard of living adequate for the health and well-being of
oneself and one’s family, including food, clothing, housing and medical
care and necessary social services. The Declaration also proclaims the
right to security in the event of unemployment, sickness, disability,
widowhood, old age or other lack of livelihood in circumstances beyond
one’s control.

38
Motherhood and childhood, it is proclaimed, are entitled to special care
and assistance. All children, whether born in or out of wedlock, shall
enjoy the same social protection. In Article 26, everyone has the right
to education and it shall be free and compulsory, at least in the
elementary and fundamental stages. Technical and professional
education shall be made generally available and higher education shall
be equally accessible to all on the basis of merit. Article 27 protects
everyone’s right to freely participate in the cultural life of the community,
to enjoy the arts and to share in scientific advancement and its benefits.
Furthermore, everyone has the right to the protection of the moral and
material interests resulting from any scientific, literary or artistic
production of which he is the author. Article 28 calls for a conducive
social and international order in which all human beings can enjoy their
rights and freedoms. This provision underscores the need for the
international community to bring about an international order in which
all human beings in all the corners of the Earth have access to the rights
and freedoms proclaimed in the UDHR. Human beings are the same
everywhere and should have access to the same rights and freedoms.
Article 29 reminds human beings that human rights have corresponding
duties and responsibilities to fellow human beings and to the community
in which they live. The harmonious relationship between the person and
his or her community ensures the full development of that person’s
potential.34

The rights and freedoms proclaimed in the UDHR must be exercised and
enjoyed by every person taking into account the rights of others or an
overriding societal interest. For instance, the right to freedom of
expression and opinion does not mean the right to insult other people or
to disparage their character without justification. Freedom of assembly
relates to peaceful assembly and not to assemble for an unlawful purpose,
such as rioting or other disorderly behaviour or motive inimical to the
public interest.

Article 30 protects the UDHR from any unfavourable or abusive

interpretation that would render the proper enjoyment of the rights and
freedoms it declares ineffective or contrary to the purposes and principles
of the UN.35 Sometimes, the activities that States, groups of people or
individuals engage in could make the practical enjoyment of human rights

34
Article 29: (1) Everyone has duties to the community in which alone the free and full development of his
personality is possible. (2) In the exercise of his rights and freedoms, everyone shall be subject only to such
limitations as are determined by law solely for the purpose of securing due recognition and respect for the
rights and freedoms of others and of meeting the just requirements of morality, public order and the general
welfare in a democratic society. (3) These rights and freedoms may in no case be exercised contrary to the
purposes and principles of the United Nations.

35
Article 30: Nothing in this Declaration may be interpreted as implying for any State, group or person any
right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms
set forth herein.

39
impossible. Such activities are prohibited since they would make the
whole essence of protecting human rights useless.

Strictly speaking, the UDHR is not a treaty. It was adopted as a

resolution of the UN General Assembly. In this regard, it is not a treaty
subject to formal ratification or accession processes. It was meant to be
a statement of intention, a revelation of ideals which humanity should
aspire to achieve. However, despite its origins, debate has raged on over
the years as to the international legal significance and influence of the
UDHR. Some have argued that the UDHR has ‘transformed’ into a legally
binding international document. Proponents of the assumed binding
character of the UDHR have argued that consistent reliance on the UDHR
when applying the human rights provisions of the UN Charter compels the
conclusion that it has come to be accepted as an authoritative
interpretation of these provisions. It will be recalled that the UN Charter
did not expressly indicate the rights and freedoms it was referring to. It
has been argued that the UDHR should now be considered as an
authoritative interpretation of the UN Charter with respect to its reference
to human rights. It spells out in considerable detail the meaning of the
phrase ‘human rights and fundamental freedoms,’ which Member States
agreed to in the Charter to promote and observe.

It is further postulated that repeated reliance on, and resort to, the UDHR
(or parts of it) by governments and inter-governmental organisations has
turned the UDHR into a statement of customary law.36 In fact some of its
contents outline principles that are already well entrenched in
international customary law. These include the prohibitions of slavery,
torture or other cruel, inhuman or degrading treatment or punishment
and non-discrimination. Another point is that the UDHR forms the
basis for developing international procedures and mechanisms for
the implementation of human rights. It has become the main basis
and reference source for establishing the communications and
investigative procedures of the Human Rights Council, such as the special
procedures and the complaint procedure.37

Perhaps a critical point in the life of the UDHR that contributed to raising
its profile beyond common expectations is that for almost three decades
before the two principal human rights treaties – the ICCPR and the
ICESCR – went through the drafting and adoption process, it was the
most broad-based human rights instrument available on the international
plane38and was frequently invoked. Alston and Goodman aptly state that
despite lacking the formal authority of a treaty that binds States parties,

36
See Alston and Goodman, International Human Rights: Text And Materials (Oxford 2013), p.144
37
See Human Rights Council Resolution 5/1 of 18 June 2007.
38
Recall that in that period (1948 – 1976) some key key, albeit specialized treaties were promulgated, including
the Genocide Convention (1948) and the CERD (1965).

40
“it remains in some sense the constitution of the entire regime, as well as
the single most cited human rights instrument.”39

The UDHR was adopted on 10 December, 1948.

Preamble

 The Preamble begins by recognising that the inherent dignity and 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 recalls that “the peoples of the United Nations have in
the Charter reaffirmed their faith in fundamental human rights, in the
dignity and worth of the human person and in the equal rights of men
and women and have determined to promote social progress and
better standards of life in larger freedom” (paragraph 5).

 The UDHR is proclaimed as a common standard of achievement for

all peoples and all nations, to the end that every individual and
every organ of society shall strive by teaching and education to
promote respect for these rights and freedoms…” (paragraph 8).

Substantive content

 The UDHR contains a total of 30 provisions.

 The UDHR begins by declaring in Article 1 that“All 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”.

 Article 2 prohibits discriminationand declares that “everyone is

entitled to all the rights and freedoms set forth in this Declaration...”

Civil and Political Rights (Articles 3 –21)

The articles of the Declaration dealing with civil and political rights cover
such principles as:

 The right to life, liberty and security of person

 The prohibition of slavery, of torture and cruel, inhuman or

degrading treatment

 The right not to be subjected to arbitrary arrest, detention or exile

39
Supra note 40, p. 142.

41
  The right to a fair trial in both civil and criminal matters, the
presumption of innocence and the prohibition against the
application of ex post facto laws and penalties

 The right to privacy and the right to own property

 Freedom of speech, religion, assembly

 Freedom of movement, including the right to leave any country,

including his/her own, and to return to his country

 The right to seek and to enjoy in other countries asylum from

persecution

 The right to a nationality

 The right to take part in the government of his/her country, directly

or indirectly (through freely chosen representatives). The will of the
people shall be the basis of the authority of government and this
requires periodic and genuine elections by universal suffrage.

Economic, Social and Cultural Rights (Articles 22 –27)

The economic and social rights are covered by a number of articles which
deal with:

 The right to social security, to work and to the protection against

unemployment, to equal pay for equal work and to just and
favourable remuneration ensuring for himself/herself and his/her
family an existence worthy of human dignity

 The right to rest and leisure, including reasonable limitation of

working hours and periodic holidays with pay

 The right to a standard of living adequate for the health and well-
being of himself/herself and of his/her family

 The right to security in the event of unemployment, sickness,

disability, widowhood, old age or other lack of livelihood in
circumstances beyond his/her control

 The right to education

 The right to freely participate in the cultural life of the community,

to enjoy the arts and to share in scientific advancement and its
benefits.

42
 Article 28: Right of everyone to a social and international order
in which the rights and freedoms set forth in the declaration
can be fully realised

 Article 29: Duties of everyone to the community. Thisis a

general-limitation article where the enjoyment of rights and freedoms
is balanced with duties towards others.

 Article 30: Prohibition of activities by any State, group or

person aimed at the destruction of the rights and freedoms set
forth in the declaration. It requires that nothing should flow from
the Declaration that can contradict or nullify its effect. Thus no person
aiming at the destruction of the fundamental rights can take cover
under any of the freedoms granted by the Declaration and no State
abrogating in practice any of these rights and freedoms can take
umbrage under the general limitation provisions.

Legal Status of the Universal Declaration of Human Rights

 The UDHR is annexed to a declaration of the UNGA. A declaration of

the UNGA is not, by definition, legally binding, though it has strong
moral force. In this regard, the UDHR is, technically, not legally
binding. It is not a treaty. It is a mere statement of aspirations or
ideals. However, despite its beginnings, debate continues over the
‘enforceability’ of the UDHR and its legal status in contemporary
international law. Some reasons have been advanced in favour of the
argument that, in practice, the UDHR has, over time, attained a status
that is legally binding. These include:

(a) The consistent reliance on the UDHR

when applying the human rights provisions of the UN Charter
compels the conclusion that it has come to be accepted as an
authoritative interpretation of the meaning of human rights
in the UN Charter.

(b) Some of the principles protected by the UDHR are regarded as

statements of customary law and therefore, legally binding on all
States, e.g., prohibition of genocide, slavery, murder or causing the
disappearance of individuals, torture or other cruel, inhuman or
degrading treatment or punishment, prolonged arbitrary detention
and systematic racial discrimination. Both the ICJ and a multitude
of national courts have employed the UDHR either as an
interpretative tool or as customary law.

43
 (c)It forms the basis for developing international procedures and
mechanisms for the implementation of human rights within the
United Nations.

“The Declaration …is now considered to be an authoritative interpretation of

the UN Charter, spelling out in considerable detail the meaning of the phrase
‘human rights and fundamental freedoms,’ which member states agreed in
the charter to promote and observe. The Universal Declaration has joined the
Charter… as part of the constitutional structure of the world community. The
Declaration, as an authoritative listing of human rights, has become a basic
component of international customary law, binding all states, not only
members of the United Nations.”
Sohn, “The New International Law: Protection of the Rights of
Individuals Rather than States,” 32 Am. U.L Rev. 1, at 16-17
(1982).

Importance of the Universal Declaration of Human Rights

 For States that have not signed and/ratified the International

Covenants, the UDHR may be the only applicable international
human rights instrument.

 The UDHR has been used as the basis for the constitutive
documents of many new, emerging and newly decolonized States.

 The UDHR is widely perceived to be the definitive statement on

human rights in contemporary society.For example, in the United
Nations Millennium Declaration (UNGA resolution 55/2 of 8
September 2000), UN Member States resolved “to respect fully
and uphold the Universal Declaration of Human Rights.”

 Most international human rights instruments subsequently adopted

by the UN have a basis in the UDHR and give further definition and
cognizance to the rights in the UDHR (provides a framework of
human rights which many documents expand into legally binding
texts).

Vienna Declaration and Programme of Action

“Emphasising that the Universal Declaration of Human Rights, which constitutes a

common standard of achievement for all peoples and all nations, is the source of
inspiration and has been the basis for the United Nations in making advances in
standard setting as contained in the existing international human rights
instruments, in particular the International Covenant on Civil and Political Rights
and the International Covenant on Economic, Social and Cultural Rights,…”

THE INTERNATIONAL COVENANTS (1966)

44
 It was hoped that the adoption of the UDHR would be swiftly followed
by the adoption of a Covenant elaborating on and give binding force to
the rights and freedoms proclaimed in the UDHR. Part E of GA
Resolution 217(III) of 10 December 1948 envisaged an International
Bill of Human Rights that included:

 A Declaration;
 A Covenant on Human Rights; and
 Measures of Implementation.

 After protracted debate, the General Assembly agreed to the drafting

of two distinct instruments rather than one single legally binding
covenant. Thus, the provisions of the UDHR became to
international instruments: the International Covenant on Civil and
Political Rights (ICCPR) and the International Covenant on Economic,
Social and Cultural Rights (ICESCR).

 Those in favour of a single covenant maintained that human

rights could not be clearly divided into different categories, nor could
they be so classified as to represent a hierarchy of values. All rights
should be promoted and protected at the same time. Without
economic, social and cultural rights, civil and political rights might be
purely nominal in character; without civil and political rights, economic,
social and cultural rights could not be long ensured.

 Those in favour of drafting two separate covenants argued that:

 civil and political rights were enforceable, or justiciable, or of

an absolute character, while economic, social and cultural rights
were not or might not be

 civil and political rights were immediately applicable, while

economic, social and cultural rights were to be progressively
implemented

 civil and political rights were generally against the State (i.e.,
against unlawful and unjust action of the State) while economic,
social and cultural rights were rights which the State would have
to take positive action to promote.

(c) The Two International Covenants and their Protocols

Two covenants resulted from the ‘the treaty elaboration’ stage of the
IBHR,40 the International Covenant on Economic, Social and Cultural

40
After protracted debate, the General Assembly agreed to the drafting of two distinct instruments rather than
one single legally binding covenant. Thus, the provisions of the UDHR became to international instruments: the
International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic,

45
Rights (ICESCR) and the International Covenant on Civil and Political
Rights (ICCPR. The ICCPR elaborated on the provisions dealing with civil
and political rights, while the ICESCR expanded on economic, social and
cultural rights.41 In their preambles both instruments recall the terms of
the UDHR and declare the rights set forth in the Covenants as being
founded in the inherent dignity of the human person. They also underline
the indivisibility and interdependence of all human rights by stating that
‘the ideal of free human beings enjoying freedom from fear and want can
only be achieved if conditions are created whereby everyone may enjoy
his civil and political rights, as well as his economic, social and cultural
rights’. The two Covenants are regarded as the most comprehensive
international treaties on civil, political, economic, social and cultural rights.
Zambia acceded to both instruments on 10 April, 1984.

 When the decision was finally made to adopt two covenants, it was
resolved that as many provisions as possible in the two Covenants
should be similar. In this regard, the Preamble to each Covenant is
substantially the same, as are Articles 1, 3 (mutatis mutandis), 5, and
Articles 24-31 ICESCR and Articles 46-53 ICCPR. In addition, several
of the same rights are to be found in both Covenants: the right to self-
determination (common Article 1), the right to join and form trade
unions (Articles 8 of the ICESCR, Article 22 of the ICCPR), and the
right to the protection of the family (Article 10 of the ICESCR, Article
23 of the ICCPR).

 As of January 2019, there were 169 parties to the ICESCR and 172
parties to the ICCPR. Zambia acceded to both instruments on 10 April
1984.

INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS

(ICCPR) 1966

 The ICCPR expanded on the UDHR provisions in articles 3 to 21. It is

regarded as the most comprehensive international treaty on civil and
political rights (“first generation” rights).

Social and Cultural Rights (ICESCR). Those in favour of a single covenant maintained that human rights could
not be clearly divided into different categories, nor could they be so classified as to represent a hierarchy of
values. All rights should be promoted and protected at the same time. Without economic, social and cultural
rights, civil and political rights might be purely nominal in character; without civil and political rights, economic,
social and cultural rights could not be long ensured. Those in favour of drafting two separate covenants argued
that civil and political rights were enforceable, or justiciable, or of an absolute character, while economic, social
and cultural rights were not or might not be; that civil and political rights were immediately applicable, while
economic, social and cultural rights were to be progressively implemented; and, that civil and political rights
were generally against the State (i.e., against unlawful and unjust action of the State) while economic, social
and cultural rights were rights which the State would have to take positive action to promote.
41
The number of rights included is greater than in the UDHR. The ones not contained in the UDHR are in
articles 10, 11, 20, 24 and 27. On the other hand, the right to property, which was included in the UDHR (art.
17), is not included in the ICCPR.

46
 The Preamble:

 Recalls the terms of the UDHR and declares the rights set
forth in the Covenant as being founded in the inherent
dignity of the human person.

 Underlines the indivisibility and interdependence of all

human rights by stating that ‘the ideal of free human beings
enjoying freedom from fear and want can only be achieved if
conditions are created whereby everyone may enjoy his civil and
political rights, as well as his economic, social and cultural rights’.

Rights and Freedoms

 The ICCPR protects the following rights and freedoms:

 Right to life
 Freedom from torture and inhuman treatment
 Freedom from slavery and forced labour
 Right to liberty and security
 Right of detained persons to be treated with humanity
 Freedom from imprisonment for debt
 Freedom of movement and of choice of residence
 Freedom of aliens from arbitrary expulsion
 Right to a fair trial
 Protection against retroactivity of the criminal law
 Right to recognition as a person before the law
 Right to privacy
 Freedom of thought, conscience and religion
 Freedom of opinion and of expression
 Prohibition of propaganda for war and of incitement to national,
racial or religious hatred
 Right of assembly
 Freedom of association
 Right to marry and found a family
 Rights of the child
 Political rights
 Equality before the law
 Rights of minorities

 Note: the number of rights included is greater than in the UDHR. The
ones not contained in the UDHR are in articles 10, 11, 20, 24 and 27.
On the other hand, the right to property, which was included in the
UDHR (art. 17), is not included in the ICCPR.

47
State Obligations

 Part II of the Covenant (Articles 2-5) governs the State obligations

regarding the implementation of the rights guaranteed therein. In
particular, Article 2(1) provides that:

Each State Party to the present Covenant undertakes to respect and

to ensure to all individuals within its territory and subject to its
jurisdiction the rights recognised in the present Covenant, without
distinction of any kind, such as race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth, or
other status.

 Thus, the obligation to respect immediately from the date of entry into
force of the Covenant for the State party, and ensure all rights, differs
in significant ways from the corresponding obligation in the ICESCR,
where States parties are merely required to take steps to the
maximum of available resources with a view to achieving progressively
the full realisation of the rights in the ICESCR.

 The obligation in Article 2(1) of the ICCPR is to respect and to

ensure. The obligation to respect indicates the negative character
of civil and political rights. States parties are required to refrain from
restricting the exercise of rights and freedoms where such is not
allowed. A duty of forebearance is thus imposed on States parties
and its extent depends on the formulation of the particular right.

 The obligation to ensure brings out the positive character of civil and
political rights. It means States parties must take positive steps to give
effect to the rights and freedoms in the Covenant. It is a duty of
performance and requires States parties to adopt necessary
legislative and other measures and to provide an effective remedy to
victims of human rights violations. Another important aspect of the
duty to perform is “to safeguard certain rights institutionally by way of
procedural guarantees or the establishment of relevant legal
institutions.

 Article 4 is another important provision in Part II of the Covenant.

Article 4 allows States parries to take measures derogating form their
obligations under the Covenant in times of public emergency which
threatens the life of the nation. The public emergency must be
officially proclaimed and the measures taken should be to the extent
strictly required by the exigencies of the situation and must not be
inconsistent with other obligations under international law.

 Article 4(2), however, stipulates that derogations are not allowed with
respect to Articles 6 (right to life), 7 (prohibition of torture, cruel,

48
 inhuman or degrading treatment or punishment), 8(1) and (2)
(prohibition of slavery, slave trade and servitude), 11 (prohibition of
imprisonment on ground of inability to fulfil a contractual obligation),
15 (retrospective application of the criminal law), 16 (recognition as a
person before the law) and 18 (freedom of thought, conscience and
religion).

OPTIONAL PROTOCOLS

 The ICCPR has two Optional Protocols. The (First) Optional Protocol
(OP1) was adopted at the same time as the two Covenants in 1966
and it also came into force in 1976. It provides for an individual
complaints mechanism for rights guaranteed in the ICCPR.

 As of January 2019 there were 116 State parties to OP1.

 The Second Optional Protocol (OP2) was adopted by the UN General

Assembly in 1989 and it entered into force in 1990.

 This Protocol aims at the abolition of the death penalty in countries

that ratify. According to the Preamble, the States parties note that
Article 6 of the ICCPR (which protects the right to life) refers to the
abolition of the death penalty in terms that strongly suggest that
abolition is desirable and that all measures of abolition of the death
penalty should be considered as progress in the enjoyment of the right
to life.

 According to Article 1 of the Second Protocol, no one within the

jurisdiction of a State party shall be executed and each State party
must take all necessary measures to abolish the death penalty within
its jurisdiction.

 No reservations are allowed under the Protocol “except for a

reservation made at the time of ratification or accession that provides
for the application of the death penalty in time of war pursuant to a
conviction for a most serious crime of a military nature committed
during wartime.”

 As of January 2019 there were 86 States parties to the Second

Optional Protocol. Zambia has not yet become a party.

INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND

CULTURAL RIGHTS (ICESCR) 1966

 The ICESCR is regarded as the foundational instrument on economic,

social and cultural rights.

49
 The Preamble is worded in similar terms to that of the ICESCR.

Rights and Freedoms

 The ICESCR recognises the rights to:

 Self-determination (art.1)
 Equality for men and women (art.3)
 Work and favourable conditions of work, including fair wages, equal
pay for equal work and holidays with pay (arts. 6 and 7)
 Form and join trade unions, including the right to strike (art.8)
 Social security (art.9)
 Protection of the family, including special assistance for mothers
and children (art.10)
 An adequate standard of living, including adequate food, clothing
and housing and continuous improvement of living conditions
(art.11)
 The highest attainable standard of physical and mental health and
health care (art.12)
 Education (art.13)
 Free and compulsory primary education and secondary and higher
education generally accessible to all (art.14).
 Participation in cultural life; benefits from scientific progress; and,
benefit from the protection of scientific, literary or artistic
production of which one is the author (art.15)

State Obligations

 Article 2 outlines the basic obligations of the States parties in the

implementation of the rights found in the Covenant. Article 2 states:

1. Each State Party to the present Covenant undertakes to take

steps, individually and through international assistance and
cooperation, especially economic and technical, to the
maximum of its available resources, with a view to achieving
progressively the full realisation of the rights recognised in the
present Covenant by all appropriate means, including
particularly the adoption of legislative measures.

2. The States parties to the present Covenant undertake to

guarantee that the rights enunciated in the present Covenant
will be exercised without discrimination of any kind as to race,
colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status.

3. Developing countries, with due regard to human rights and

their national economy, may determine to what extent they

50
 would guarantee the economic rights recognised in the
present Covenant to non-nationals.

 Key principles of article 2:

 Undertakes to take steps...by all appropriate means, including

particularly the adoption of legislative measures
 With a view to achieving progressively the full realisation of
the rights
 To the maximum of its available resources
 Without discrimination
 Through international assistance and cooperation
 The obligation to respect
 The obligation to protect
 The obligation to fulfil

 See General Comment No. 3: The nature of States parties’

obligations (art.2(1) of the Covenant)[1990]
 See Limburg Principles and Maastricht Guidelines

OPTIONAL PROTOCOL TO THE INTERNATIONAL COVENANT ON

ECONOMIC, SOCIAL AND CULTURAL RIGHTS

 In 1993, the World Conference on Human Rights recommended the

elaboration and adoption of an optional protocol to the ICESCR that
would grant individuals and groups the right to submit communications
(complaints) concerning non-compliance with the ICESCR. On 10
December, 2008, the UNGA adopted the Optional Protocol to the
International Covenant on Economic, Social and Cultural Rights.
The protocol provides for individual complaints, inter-State complaints
and inquiries.

 As of January 2019, there were 24 States parties to the protocol.

Zambia is not yet a party.

PART IV

OTHER CORE INTERNATIONAL HUMAN RIGHTS INSTRUMENTS

 Apart from the International Bill of Human Rights as discussed above,

the UN has adopted a number of specialised human rights treaties.
They are specialised in the sense that they focus on a particular human
rights issue (racial discrimination; torture) or the protection of specific
groups of people (children, women, persons with disabilities).

 As with the two Covenants, the road leading to the articulation of the
specialised human rights instruments often started with the adoption
51
 of a non-binding declaration, providing a common definition (or
general intention of what the States want to address).

INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL

FORMS OF RACIAL DISCRIMINATION (ICERD) 1965

 The principle of non-discrimination is a fundamental principle of

the protection of human rights. As the Universal Declaration of
Human Rights proclaimed in Article 1, all human beings are born equal
in dignity and rights. The Declaration further declares in Article 2 that
everyone is entitled to all the rights and freedoms set forth in the
Declaration, without distinction of any kind, such as race, colour, sex,
language, religion, political or other opinion, national or social origin,
property, birth or other status. Most human rights are denied because
of the practice of discrimination, including on the grounds of race or
colour or ethnicity.

 The problem of racial discrimination has been one of the most critical
issues in human history. People the world over have suffered
discrimination and denied access to a lot of things because of their race
or colour of their skin. Gross human rights violations have been
committed over the centuries on the basis of the supposed superiority
of one race over another. The most prominent examples of denial of
human rights because of one’s race include slavery and the slave trade,
apartheid and colonialism. In Africa for example, millions were
uprooted from their homelands and taken to other countries to work as
slaves. Almost the entire continent of Africa was under foreign
domination for many years until the latter half of the 20thcentury.
Racial segregation or discrimination was made an integral part of the
administration of the colonies. Some groups of people (white) were
regarded as racially superior to other groups (mainly the black
Africans). There was no equal access to the enjoyment of fundamental
rights and freedoms.

 Because of this background, it is notable that one of the first acts of the
United Nations in the field of human rights was to tackle the problem of
racial discrimination and prejudice. The priority placed on fighting
racial discrimination and related practices became particularly evident
when most of the countries in Africa and Asia which had been under
colonial domination gained their political independence.

 On 20 November 1963, the UN General Assembly adopted the

Declaration on the Elimination of All Forms of Racial
Discrimination.

o Among other things, the Declaration proclaimed that

“discrimination between human beings on the ground of race,

52
 colour or ethnic origin is an offence to human dignity and shall be
condemned as a denial of the principles of the Charter of the
United Nations, as a violation of the human rights and
fundamental freedoms proclaimed in the Universal Declaration of
Human Rights, as an obstacle to friendly and peaceful relations
among nations and as a fact capable of disturbing peace and
security among peoples” (Article 1).

o The Declaration also prohibited States, institutions, groups or

individuals from making any discrimination whatsoever in matters
of human rights and fundamental freedoms in the treatment of
persons, groups of persons or institutions on the grounds of race,
colour or ethnic origin. It further called on particular efforts to be
made to prevent discrimination based on race, colour or ethnic
origin, especially in the fields of civil rights, access to citizenship,
education, religion, employment, occupation and housing.

o The Declaration stated that everyone shall have equal access to

any place or facility intended for use by the general public and
called for an end to governmental and other public policies of
racial segregation and apartheid.

 Two years after the adoption of the Declaration, the International

Convention on the Elimination of All Forms of Racial
Discrimination (ICERD) was adopted on 21 December 1965 by the
UN General Assembly. The Convention entered into force on 4 January
1969. As of January 2019, the ICERD had 179 States parties. Zambia
became a party to the Convention in 1972.

 According to the preamble, the States Parties to the ICERD recognise,

among others, the following principles:

 the dignity and equality inherent in all human beings;

 that all human beings are born free and equal in dignity
and rights and that everyone is entitled to all rights and
freedoms without distinction of any kind, in particular as to
race, colour or national origin;
 that all human beings are equal before the law and are
entitled to equal protection of the law against any
discrimination and against any incitement to discrimination;
 that any doctrine of superiority based on racial
differentiation is scientifically false, morally condemnable,
socially unjust and dangerous, and that there is no
justification for racial discrimination, in theory or in
practice, anywhere;

53
  that discrimination between human beings on the grounds
of race, colour or ethnic origin is an obstacle to friendly
and peaceful relations among nations and is capable of
disturbing peace and security among peoples and the
harmony of persons living side by side even within one and
the same State;
 that the existence of racial barriers is repugnant to the
ideals of any human society;
1. What is Racial Discrimination?

 Article 1(1) of the Convention defines ‘racial discrimination’ as “any

distinction, exclusion, restriction or preference based on race,
colour, descent, or national or ethnic origin which has the
purpose or effect of nullifying or impairing the recognition,
enjoyment or exercise, on an equal footing, of human rights and
fundamental freedoms in the political, economic, social, cultural
or any other field of public life”.

 It is clear to see that Article 1(1) of the ICERD is all encompassing. It

covers all aspects of human life, i.e. civil, political, economic, social,
cultural and others. Racial discrimination under the Convention
should be regarded much wider than just conflict between
people of different colour but also that involving people of the
same colour but belonging to different ethnic groups.

 In Article 1(2), the Convention allows for certain distinctions to be

made between citizens and non-citizens and Article 1(4) goes further to
indicate that a State can take special measures for the sole purpose of
securing adequate advancement of certain racial or ethnic groups or
individuals requiring such protection so that there is equal enjoyment of
the rights and freedoms guaranteed in the Convention. This is often
referred to as affirmative action or positive discrimination. In
doing so, a State must be careful not to bring about the maintenance of
separate rights for different racial groups. Once the objective for which
the special measures were taken is achieved, they should be
discontinued.

2. State Obligations

 In Article 2, the States Parties undertake to condemn racial

discrimination and to pursue a policy of eliminating it in all its
forms. In this regard, the States Parties must not act or practice racial
discrimination towards any person or group and should ensure that all
public institutions and authorities act in conformity with the
requirements of the Convention. Laws and policies that promote racial
discrimination must be amended, rescinded or nullified. The States
Parties must also encourage multi-racial integration and elimination of

54
 barriers between races. Article 3 requires the States Parties to
condemn racial segregation and apartheid.

 In Article 4, States Parties undertake to condemn propaganda

and organisations based on ideas or theories of racial
superiority or promotion of racial hatred and discrimination. In
this regard, the States Parties:

a) Shall declare an offence punishable by law all

dissemination of ideas based on racial superiority or
hatred, incitement to racial discrimination, as well as all
acts of violence or incitement to such acts against any
race or group of persons of another colour or ethnic
origin, and also the provision of any assistance to racist
activities;
b) Shall declare illegal and prohibit organizations, and also
organized and all other propaganda activities, which
promote and incite racial discrimination, and shall
recognize participation in such organizations or activities
as an offence punishable by law; and
c) Shall not permit public authorities or public institutions,
national or local, to promote or incite racial
discrimination.
3. Rights and Freedoms Guaranteed

 Under Article 5, States Parties undertake to guarantee to all persons

all civil, political, economic, social and cultural rights without distinction
as to race, colour, national or ethnic origin. The State must guarantee
the right to equal treatment before the tribunals and all other
organs administering justice and the right to security of person and
protection by the State against violence or bodily harm, whether
inflicted by government officials or by any individual group or institution.
The Convention requires equal access to political rights, in
particular the right to participate in elections (to vote and to stand for
election) on the basis of universal and equal suffrage, to take part in
the government as well as in the conduct of public affairs at any level
and to have equal access to public service. Other civil rights
protected by the Convention include:

 The right to freedom of movement and residence

within the border of the State;
 The right to leave any country, including one's own,
and to return to one's country;
 The right to nationality;
 The right to marriage and choice of spouse;

55
  The right to own property alone as well as in
association with others;
 The right to inherit;
 The right to freedom of thought, conscience and
religion;
 The right to freedom of opinion and expression;
 The right to freedom of peaceful assembly and
association;
 The ICERD also requires that there is no racial
discrimination in the context of economic, social
and cultural rights. In particular, there should be
no discrimination in the guarantee of the following
rights:

 The rights to work, to free choice of employment,

to just and favourable conditions of work, to
protection against unemployment, to equal pay for
equal work, to just and favourable remuneration;
 The right to form and join trade unions;
 The right to housing;
 The right to public health, medical care, social
security and social services;
 The right to education and training;
 The right to equal participation in cultural activities;
 The right of access to any place or service intended for
use by the general public, such as transport, hotels,
restaurants, cafes, theatres and parks.

 Article 6 of the Convention imposes an obligation on the States

Parties to assure to everyone within the jurisdiction effective
protection and remedies through the competent national
institutions. Victims of racial discrimination also have the right to seek
just and adequate reparation or satisfaction for any damage suffered as
a result of discrimination.

 In Article 7, States Parties must adopt immediate and effective

measures in the fields of teaching, education, culture and
information, with a view to combating prejudices which lead to
racial discrimination. This provision underscores the importance of
creating awareness of human rights to ensure effective promotion and
protection.

4. Monitoring Mechanisms

56
The Convention establishes the Committee on the Elimination of
Racial Discrimination in Article 8. The Committee is made up of 18
experts nominated and elected by States Parties but working in their
independent capacities. The Committee monitors implementation of the
Convention provisions through the State reporting procedure (Article 9),
the inter-State complaints procedure (Articles 11-13) and the individual
complaints procedure (Article 14).

CONVENTION ON THE ELIMINATION OF ALL FORMS OF

DISCRIMINATION AGAINST WOMEN (CEDAW) 1979

 Equality of rights for women is a basic principle of the United Nations

and of the principles of human rights in general. One of the central
goals of the United Nations as indicated in the Charter is the
reaffirmation of "faith in fundamental human rights, in the dignity and
worth of the human person, in the equal rights of men and women".
In Article 1, one of the purposes of the United Nations is to achieve
international cooperation in promoting and encouraging respect for
human rights and for fundamental freedoms for all without distinction
as to, among others, sex. All members of the United Nations,
including Zambia, are legally bound to strive towards the full realization
of all human rights and fundamental freedoms for both women and
men on equal footing.

 Despite the fact that women and girls are human beings and, therefore,
entitled to all the rights and freedoms due to an individual, they still
suffer some of the worst discrimination the world over. In most
cultures, traditions and religions, female persons have generally been
regarded as inferior to males. This has resulted in practices and
traditions that have generally disadvantaged women and girls.

 Apart from the Charter of the United Nations, sex discrimination is
prohibited in the Universal Declaration of Human Rights, the
International Covenant on Civil and Political Rights and also the
International Covenant on Economic, Social and Cultural Rights. Article
3 of both covenants expressly requires the guarantee of rights and
freedoms on an equal basis for women and men.

 However, it has been long recognized that that women require
special measures of protection. This is because historically they
have been made specially vulnerable due to a number of factors.

 From the beginning, the UN has placed women’s rights high on its
agenda. In 1946, the UN created a special subsidiary body just to take
care of the rights of women and girls- the Commission on the Status
of Women (CSW).

57
 The mandate of the CSW included the preparation of recommendations
relating to urgent problems requiring immediate attention in the field of
women's rights with the object of implementing the principle that
men and women should have equal rights, and the development of
proposals to give effect to such recommendations. The CSW proceeded
to elaborate a number of treaties relevant to the rights of women,
including the Convention on the Political Rights of Women, adopted by
the General Assembly on 20 December 1952, the Convention on the
Nationality of Married Women, adopted by the Assembly on 29 January
1957 and the Convention on Consent to Marriage, Minimum Age for
Marriage and Registration of Marriages adopted on 7 November 1962.
These treaties dwelt on areas in which the rights of women were
considered to be particularly vulnerable. Other than these it was
believed that women's rights were best protected and promoted by the
general human rights treaties, i.e., the two covenants, the ICCPR and
the ICESCR.

 In due course, however, it was determined that the general human

rights instruments were not adequate to protect and promote the rights
and freedoms of women. In 1963, the UN General Assembly requested
the CSW to draft a declaration focusing on the elimination of
discrimination against women. The General Assembly had noted that
while there had been measurable progress in achieving equal rights in
various fields, there still remained considerable discrimination against
women.

 On 7 November, 1967, the UN General Assembly proclaimed the

Declaration on the Elimination of All Forms of Discrimination
against Women. The Declaration was the first major step towards the
elaboration of a comprehensive regime for the protection of the rights
of women.

o In the preamble the UN General Assembly, among other things,

considered that “discrimination against women is incompatible
with human dignity and with the welfare of the family and of
society, prevents their participation, on equal terms with men, in
the political, social, economic, and cultural life of their countries
and is an obstacle to the full development of the potentialities of
women in the service of their countries and of humanity…,”
(paragraph 4).

o The Declaration declared discrimination against women as

fundamentally unjust and an offence against humanity.

o called upon appropriate measures to abolish existing laws,

customs and practices that are discriminatory against women and

58
 to establish adequate legal protection for equal rights of men and
women

o to educate public opinion and to direct national aspirations

towards the eradication of prejudice and the abolition of
customary and all other practices which are based on the idea of
the inferiority of women.

o called for appropriate measures to combat all forms of traffic in

women and exploitation of women and the equal rights of men
and women in education at all levels as well as in the field of
economic and social life.

 While the Declaration was an important step in securing the legal

foundation of women’s equality, it was not a legally binding
international agreement and its impact was limited. It soon
became necessary to adopt a legally binding convention that defined
women’s rights.
 The UN General Assembly, on recommendation of the CSW, declared
1975 International Women’s Year intended to remind the international
community that discrimination against women was still a persistent
problem in much of the world due to deeply rooted cultural beliefs. The
UN declared 1976-1985 the United Nations Decade for Women. The
Decade helped push for women’s issues on the international scene,
including the recognition that development was not possible without
women.

 The Convention on the Elimination of All Forms of Discrimination

against Women (CEDAW) was adopted in 1979 by the UN General
Assembly. The Convention entered into force in September 1981. As of
January 2019 there were 189 States Parties to the CEDAW. Zambia
ratified the CEDAW in 1985.

 In the preamble, the States Parties, among other things, reaffirm

faith in the dignity and worth of the human person and in the
equal rights of men and women. It is noted that States have the
obligation to ensure the equal right of men and women to enjoy all
economic, social, cultural, civil and political rights. The States Parties
also note the important role both parents play in the family and
upbringing of children, and that the role of women in procreation
should not be a basis for discrimination but that it requires a sharing of
responsibility between men and women and society as a whole. The
States Parties are also aware that a change in the traditional role of
men as well as the role of women in society and in the family is needed
to achieve full equality between men and women.

1. What is Discrimination against Women?

59
 Article 1 of the CEDAW defines discrimination against women as “any
distinction, exclusion or restriction made on the basis of sex
which has the effect or purpose of impairing or nullifying the
recognition, enjoyment or exercise by women, irrespective of
their marital status on a basis of equality of men and women, of
human rights and fundamental freedoms in the political,
economic, social, cultural, civil or any other”.

 The main obligation, therefore, of the States Parties under the

CEDAW is to eliminate discrimination against women in all its
forms.

2. State Obligations

 Article 2 stipulates a number of undertakings on the part of the States

Parties. It requires States Parties to embark on a policy of
eliminating discrimination against women by:

 Embodying the principle of the equality of men and women in their

national constitutions and other laws and to ensure its practical
realisation;
 Adopting laws and relevant sanctions prohibiting all discrimination
against women;
 Establishing legal protection of the rights of women on an equal
basis with men and to ensure their effective protection through
competent national institutions;
 Refraining from engaging in any act or practice that perpetuates
discrimination against women and to take appropriate measures to
eliminate discrimination against women by any person or
organisation;
 Modifying or abolishing existing laws, regulations, customs and
practices which constitute discriminations against women and to
repeal all national penal provisions that constitute discrimination
against women.

 Under Article 3, States Parties shall take all appropriate measures in

the political, social, economic, and cultural fields to ensure the full
development and advancement of women, for the purpose of
guaranteeing them the exercise and enjoyment of human rights and
fundamental freedoms on a basis of equality with men.
 In Article 4, States Parties are allowed to introduce temporary
special measures to accelerate equality between men and
women. This is also called affirmative action and it is meant to
address factors that may inhibit women’s equal enjoyment of human
rights and fundamental freedoms.

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 Article 5(a) calls upon States Parties to take measures to modify
cultural and customary practices that promote inferiority or
superiority of either men or women or on stereotyped roles for
men and women. Article 5(b) requires joint and equal responsibility
of both men and women in the upbringing of children. It is expected
that the interest of the children shall be the primary consideration in all
cases.

 Part II (Articles 7-9) of the CEDAW deals with the elimination of

discrimination against women in the exercise of political rights.
In this regard, women shall have equal rights:

 to vote and be eligible for election;

 to participate in the formulation and implementation of government
policies;
 to participate in NGOs concerned with the public and political life of
their country;
 equal opportunity to represent government at international level;
 to acquire, change or retain nationality, including equal rights with
men with respect to the nationality of their children

 Part III (Articles 10-14) of the CEDAW calls for the elimination of
discrimination of women in the enjoyment of economic, social
and cultural rights. These include:

 equal access in educational, career and vocational opportunities

 equality in employment, including, among others, free choice of
employment, equal remuneration, social security, to protection of
health and to safety in working conditions
 equality in health care and equal access to health care services,
including family planning
 equality in other areas of economic and social life

 Rural women are given special emphasis in Article 14. Here, States
Parties must take into account the particular problems faced by
rural women and the significant role they play in the economic
survival of their families. States Parties must put in place measures
to eliminate discrimination against women in the rural areas and to
ensure their participation in rural development at all levels; to have
access to health care facilities, and to benefit directly from social
security programmes. Other measures include access to training and
education opportunities, including functional literacy, and to benefit
from community and extension services in order to increase their
technical proficiency. Article 14 also guarantees to women, among
others, the right to participate in all community activities and to have
access to agricultural credit and loans, marketing facilities, appropriate
technology and to enjoy adequate living conditions, particularly in

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 relation to housing, sanitation, electricity and water supply, as well as
transport and communications.

 Part IV (Articles 15 and 16) guarantees equal rights for women

before the law and a legal capacity identical to that of men and
the same opportunities to exercise that capacity. In particular,
women should have equal rights in concluding contracts and to
administer property. Women also must be treated equally in all stages
of procedure in courts and tribunals. Article 16 gives women equal
rights in marriage and family relations, including the right to freely
choose a spouse and to enter into marriage freely and with full consent;
and equal rights and responsibilities during marriage and at its
dissolution. Parents must also have equal rights and responsibilities
with regard to guardianship, trusteeship and adoption and the same
rights for both spouses in respect of the ownership, acquisition,
management, administration, enjoyment and disposition of property.

3. Monitoring Mechanisms

 For the purpose of considering the progress made in the

implementation of the CEDAW by States Parties, the Committee on
the Elimination of Discrimination against Women is established in
Article 17. It is composed of independent experts competent in
women’s rights’ issues. Under Article 18, a State Party is required to
report to the Committee on the legislative, judicial, administrative and
other measures which it has put in place to give effect to the rights
recognised in the Convention. The first (initial) report is due one year
after the entry into force of the Convention for the State party
concerned, and thereafter every four years.

 In 1999, the UN General Assembly adopted the Optional Protocol to

the Convention on the Elimination of Discrimination against
Women (CEDAW-OP). A State that ratifies or accedes to the
CEDAW-OP recognises the competence of the Committee to receive
and consider complaints from individuals and groups alleging
violations of the Convention. The CEDAW-OP also introduced an
inquiry procedure through which the Committee can examine
situations revealing violations of the CEDAW. As of January 2019, the
CEDAW-OP had 109 States parties.

CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN

OR DEGRADING TREATMENT OR PUNISHMENT (CAT) 1984

 One of the cruellest things that human beings do to others is subjecting

them to acts of torture. Throughout the centuries torture has been

62
 used to punish people due to various reasons. At one time in history
torture was considered a legitimate form of punishment. Torture is an
extremely cruel practice which can result in permanent psychological or
physical damage to a person. Torture and other related forms of
inhuman treatment or punishment are now absolutely illegal in
international law. Article 7 of the ICCPR contains a ban on torture
without exception. Even the current Constitution of Zambia prohibits
torture in Article 15 without room for exceptional situations. However,
despite such abhorrence against the practice of torture, many people,
especially individuals deprived of their liberty and confined to police or
prison cells, suffer torture and other cruel or inhuman punishment.

 The seriousness of the phenomenon of torture led the United Nations to

elaborate more protective standards against the vice beyond the
prohibitions contained in the UDHR and the ICCPR. In 1975, the UN
General Assembly adopted the Declaration on the Protection of All
Persons from Being Subjected to Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment.

o The Declaration proclaimed that any act of torture or other cruel,

inhuman or degrading treatment or punishment is an offence to
human dignity and a violation of the human rights and
fundamental freedoms proclaimed in the UDHR.

o The Declaration called on States to take effective measures to

prevent torture and related practices, including ensuring that law
enforcement personnel are trained on its prohibition. Other
important provisions included the call to ensure acts of torture
were offences in the criminal law and to provide for the
punishment of offenders.

o The Declaration also provided for a person’s right to complain to

the appropriate authorities and institutions should they be
subjected to torture or other cruel, inhuman or degrading
treatment or punishment, and to afford victims adequate redress
and compensation.

 Nine years later, the General Assembly adopted the Convention

against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (CAT) on 10 December 1984. The
Convention entered into force in 1987. As of January 2019, the CAT
had a total of 165 States Parties. Zambia became a party to the CAT in
November 1998.

1. What is Torture?

 In Article 1 of the Convention, torture is defined as:

63
 …any act by which severe pain or suffering, whether physical
or mental, is intentionally inflicted on a person for such
purposes as obtaining from him or a third person information
or a confession, punishing him for an act he or a third person
has committed or is suspected of having committed, or
intimidating or coercing him or a third person, or for any
reason based on discrimination of any kind, when such pain
or suffering is inflicted by or at the instigation of or with the
consent or acquiescence of a public official or other person
acting in an official capacity.

 This definition brings out certain essential elements which must be

present in order for a set of facts to reveal torture according to the
Convention. The important points to note in the definition are the
following:

1. There must be severe pain or suffering.

2. Such pain or suffering must be intentionally inflicted or caused.

3. The pain or suffering must be inflicted for a purpose, such as to

get information or a confession or simply to punish the victim.

4. The act must be officially sanctioned, i.e., the persons inflicting

the pain or suffering must be doing so using their public official
capacities or authority or with the knowledge of people holding
public office and have the ability to stop it. The Convention does
not deal with cases of ill-treatment which occur in an exclusively
non-governmental setting.

Unless the circumstances reveal all the above factors, then, technically or
for purposes of the Convention, the act committed is not torture, but may
amount to other cruel, inhumane or degrading treatment.

2. State Obligations

 The Convention elaborated upon the principles proclaimed in the

Declaration against Torture. It translated those principles into legally
binding obligations for States Parties.
a) Obligation to introduce strong laws and procedures
Under Article 2 of the CAT, State Parties are required to introduce
effective or strong laws and other measures to prevent torture and
other related inhuman treatment. The requirement to prevent or
prohibit torture is absolute. No exceptional circumstances are
allowed to justify torture and this is so whether it is a war, internal
political instability or any other public emergency. Superior orders

64
are also not an excuse for torturing a person. This means that a
torturer must be personally accountable for committing torture and not
blame his superiors for having ordered him or her to torture someone.

b) Obligation not to expel if person will be tortured

When there are indications that a person will be tortured when he is

deported or expelled to his country, the State Party has an obligation
not to expel, return or extradite that person. One of the things the
authorities must take into account is the human rights situation in the
country where they intend to deport the person. Normally, a consistent
pattern of gross, flagrant or mass violations of human rights increases
the likelihood that the deportee will suffer human rights violations,
including torture.

c) Obligation to establish jurisdiction over torture

The State party must also ensure that torture is made a criminal
offence under its laws and provide appropriate penalties that take into
account the gravity of torture. Under Article 5, torture is made an
international offence and countries are expected to punish torturers
that are found on their territory. In particular, each State party must
establish jurisdiction over torture and related offences in the following
cases:

(a) when the offences are committed within its jurisdiction or

territory;
(b) when the alleged offender is a citizen or national of the State
party;
(c) when the victim is a national of the State party.

Even where the State concerned has no connection according to the

above situations, but the offender is present on its territory, it must
establish its jurisdiction to prosecute and punish an offender who is
found on its territory if it considers it appropriate not to extradite him.
This means that the State in which the offender has taken refuge must
hold him in custody and prosecute him according to its ordinary law
taking into account the seriousness of the offence. The CAT provides
for all these measures to ensure that there is no hiding place for
torturers.

d) Obligation to educate and inform

States parties are also required to ensure that education and

information regarding the prohibition of torture are fully included in the
training of law enforcement personnel, medical personnel, public
officials and others who may be involved in the custody, interrogation

65
 or treatment of any person subjected to any form of arrest, detention
or imprisonment. Most people suffer torture when they are being held
in detention by the law enforcement agents. People are tortured in
order to extract confessions or simply to be punished.

e) Obligation to review interrogation rules and to investigate

torture cases

States parties to the CAT have an obligation to regularly review

interrogation rules, instructions, methods and practices and also
arrangements for the custody and treatment of persons in custody.
Torture allegations must also be investigated competently, promptly
and impartially. People must have the right to complain and for their
complaints to be attended to promptly and impartially by the
competent authorities. Victims of torture must have an
enforceable right to fair and adequate compensation, including
where possible, full rehabilitation. Under Article 15, States parties
must ensure that statements obtained through torture are not admitted
as evidence in any proceedings, except against a person accused of
torture.

3. Monitoring Mechanism

 The Committee against Torture, established under Article 17 of the

CAT, is the body of independent experts charged with the responsibility
of supervising States parties’ adherence to their obligations under the
Convention. The Convention provides for four procedures:

1. Mandatory reporting procedure (Article 19);

2. Optional inquiry procedure (Article 20);
3. Optional inter-State complaints procedure (Article 21); and,
4. Optional individual complaints procedure (Article 22).

 In December 2002, the UN General Assembly adopted the Optional

Protocol to the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (CAT-OP). The
protocol provides for a system of preventive visits to curb torture
and related forms of inhuman treatment. It entered into force on
22 December 2000 and by January 2019 there were 88 States parties.
Zambia is not yet a State Party to the protocol.

CONVENTION ON THE RIGHTS OF THE CHILD (CRC) 1989

 One of the most important areas in the promotion and protection of

human rights is the field of children’s rights. Children, as human

66
 beings, are entitled to the full range of human rights guaranteed in all
the international treaties. Human rights are children’s rights too.
Children are individuals and have equal status with adults as members
of the human family. They are not possessions of parents or people-in-
the-making.

 Almost from the time the United Nations came into being, the
international community has been concerned about the vulnerability of
children and the need to afford them better human rights protection.
The Universal Declaration of Human Rights provides in Article 25(2)
that motherhood and childhood are entitled to special care and
assistance. Both the ICCPR (Article 24) and the ICESCR (Article 10)
provide that children are entitled to special measures of protection.
Children are vulnerable because they grow towards independence only
with the help of adults. Children’s dependence and their developmental
state make them particularly vulnerable as they are more sensitive
than adults to the conditions under which they live: poverty, poor
housing, environmental pollution, crime and other vices. In terms of
decision making, children generally have no vote and no active part in
the political process. They depend on adults to make crucial decisions
on their behalf. The special vulnerability of children means that they
deserve special protection. Some adults exploit children in various
ways because they are too young to protect themselves, both
physically and mentally.

 On 20 November 1959, the UN General Assembly adopted the

Declaration on the Rights of the Child. Although it had no legal
force, the Declaration affirmed ten important principles of children’s
rights. Some of the principles declared included the principle of non-
discrimination; the child’s right to enjoy special protection to enable his
or her physical, mental, moral, spiritual and social development; the
child’s right to social security and to receive education. Education shall
enable the child to develop his or her abilities, individual judgement
and a sense of moral and social responsibility in order for the child to
become a useful member of society. The Declaration states that the
best interests of the child shall be the guiding principle of those
responsible for children’s education.

 Thirty years after the adoption of the Declaration on the Rights of the
Child, the Convention on the Rights of the Child (CRC) was
adopted on 20 November 1989. Today, the CRC has a near universal
record of ratification with 196 States parties by January 2019. Zambia
ratified the CRC in 1992.

1. Who is a child?

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 For purposes of the Convention, a child means every human being
below the age of 18 years unless, under the law applicable to
the child, majority is attained earlier. The seems to have provided
some flexibility, considering that the age of 18 years was not
necessarily consonant with the age of majority in various countries, and
that the application of the rights recognised in the CRC to a person who
is no longer a minor could be incompatible with his or her legal status.
It was therefore decided to qualify the upper age limit of 18 years by
the earlier attainment of majority under the law applicable to the child.

Other definitions

 Similar provisions in other instruments also provide for the upper limit
of 18 years. Article 2 of the African Charter on the Rights and Welfare
of the Child, adopted at Addis Ababa on 11 July 1990, says for the
purposes of the Charter, a child means every human being below the
age of 18 years. Article 1(1) of the European Convention on the
Exercise of Children’s Rights, adopted at Strasbourg on 25 January
1996, provides that the Convention shall apply to children who have
not reached the age of 18 years. These two instruments do not seem
to have adopted the flexibility of the CRC in defining the term “child”.

 The ICCPR and the ICESCR do not have a definition for “child” in the
provisions that they specifically dedicate to children. However, in its
General Comment on Article 24 of the ICCPR, the Human Rights
Committee, noting that the Covenant does not indicate the age
at which a child attains majority, stated to the effect that the
age of majority is to be determined by each State Party in the
light of the relevant social and cultural conditions. States Parties
should indicate in their reports the age at which the child attains his
majority in civil matters and assumes criminal responsibility; at what
age a child is legally entitled to work and the age at which he is treated
as an adult under labour law; and, the age at which a child is
considered an adult for purposes of Article 10, paragraphs 2 and 3. The
Committee, however, restricted the discretion of the States
Parties in this regard by further stating that the age should not
be set unreasonably low and that in any case a State party could
not absolve itself from its obligations under the Covenant
regarding persons under the age of 18, notwithstanding that
they had reached the age of majority under domestic law.

 See paragraph 4 in General Comment No. 17 below.

Thirty- fifth session (1989)

General comment No. 17: Article 24 (Rights of the child)

1. Article 24 of the International Covenant on Civil and Political Rights recognizes the
right of every child, without any discrimination, to receive from his family, society and the

68
State the protection required by his status as a minor. Consequently, the implementation of
this provision entails the adoption of special measures to protect children, in addition to the
measures that States are required to take under article 2 to ensure that everyone enjoys the
rights provided for in the Covenant. The reports submitted by States parties often seem to
underestimate this obligation and supply inadequate information on the way in which
children are afforded enjoyment of their right to a special protection.
2. In this connection, the Committee points out that the rights provided for in article 24
are not the only ones that the Covenant recognizes for children and that, as individuals,
children benefit from all of the civil rights enunciated in the Covenant. In enunciating a right,
some provisions of the Covenant expressly indicate to States measures to be adopted with a
view to affording minors greater protection than adults. Thus, as far as the right to life is
concerned, the death penalty cannot be imposed for crimes committed by persons under 18
years of age. Similarly, if lawfully deprived of their liberty, accused juvenile persons shall be
separated from adults and are entitled to be brought as speedily as possible for adjudication;
in turn, convicted juvenile offenders shall be subject to a penitentiary system that involves
segregation from adults and is appropriate to their age and legal status, the aim being to foster
reformation and social rehabilitation. In other instances, children are protected by the
possibility of the restriction - provided that such restriction is warranted - of a right
recognized by the Covenant, such as the right to publicize a judgement in a suit at law or a
criminal case, from which an exception may be made when the interest of the minor so
requires.
3. In most cases, however, the measures to be adopted are not specified in the Covenant
and it is for each State to determine them in the light of the protection needs of children in its
territory and within its jurisdiction. The Committee notes in this regard that such measures,
although intended primarily to ensure that children fully enjoy the other rights enunciated in
the Covenant, may also be economic, social and cultural. For example, every possible
economic and social measure should be taken to reduce infant mortality and to eradicate
malnutrition among children and to prevent them from being subjected to acts of violence and
cruel and inhuman treatment or from being exploited by means of forced labour or
prostitution, or by their use in the illicit trafficking of narcotic drugs, or by any other means.
In the cultural field, every possible measure should be taken to foster the development of
their personality and to provide them with a level of education that will enable them to enjoy
the rights recognized in the Covenant, particularly the right to freedom of opinion and
expression. Moreover, the Committee wishes to draw the attention of States parties to the
need to include in their reports information on measures adopted to ensure that children do
not take a direct part in armed conflicts.
4. The right to special measures of protection belongs to every child because of his
status as a minor. Nevertheless, the Covenant does not indicate the age at which he attains his
majority. This is to be determined by each State party in the light of the relevant social and
cultural conditions. In this respect, States should indicate in their reports the age at which the
child attains his majority in civil matters and assumes criminal responsibility. States should
also indicate the age at which a child is legally entitled to work and the age at which he is
treated as an adult under labour law. States should further indicate the age at which a child is
considered adult for the purposes of article 10, paragraphs 2 and 3. However, the Committee
notes that the age for the above purposes should not be set unreasonably low and that in any
case a State party cannot absolve itself from its obligations under the Covenant regarding
persons under the age of 18, notwithstanding that they have reached the age of majority under
domestic law.
5. The Covenant requires that children should be protected against discrimination on any
grounds such as race, colour, sex, language, religion, national or social origin, property or

69
birth. In this connection, the Committee notes that, whereas non- discrimination in the
enjoyment of the rights provided for in the Covenant also stems, in the case of children, from
article 2 and their equality before the law from article 26, the non- discrimination clause
contained in article 24 relates specifically to the measures of protection referred to in that
provision. Reports by States parties should indicate how legislation and practice ensure that
measures of protection are aimed at removing all discrimination in every field, including
inheritance, particularly as between children who are nationals and children who are aliens or
as between legitimate children and children born out of wedlock.
6. Responsibility for guaranteeing children the necessary protection lies with the family,
society and the State. Although the Covenant does not indicate how such responsibility is to
be apportioned, it is primarily incumbent on the family, which is interpreted broadly to
include all persons composing it in the society of the State party concerned, and particularly
on the parents, to create conditions to promote the harmonious development of the child’s
personality and his enjoyment of the rights recognized in the Covenant. However, since it is
quite common for the father and mother to be gainfully employed outside the home, reports
by States parties should indicate how society, social institutions and the State are discharging
their responsibility to assist the family in ensuring the protection of the child. Moreover, in
cases where the parents and the family seriously fail in their duties, ill- treat or neglect the
child, the State should intervene to restrict parental authority and the child may be separated
from his family when circumstances so require. If the marriage is dissolved, steps should be
taken, keeping in view the paramount interest of the children, to give them necessary
protection and, so far as is possible, to guarantee personal relations with both parents. The
Committee considers it useful that reports by States parties should provide information on the
special measures of protection adopted to protect children who are abandoned or deprived of
their family environment in order to enable them to develop in conditions that most closely
resemble those characterizing the family environment.
7. Under article 24, paragraph 2, every child has the right to be registered immediately
after birth and to have a name. In the Committee’s opinion, this provision should be
interpreted as being closely linked to the provision concerning the right to special measures
of protection and it is designed to promote recognition of the child’s legal personality.
Providing for the right to have a name is of special importance in the case of children born
out of wedlock. The main purpose of the obligation to register children after birth is to reduce
the danger of abduction, sale of or traffic in children, or of other types of treatment that are
incompatible with the enjoyment of the rights provided for in the Covenant. Reports by States
parties should indicate in detail the measures that ensure the immediate registration of
children born in their territory.
8. Special attention should also be paid, in the context of the protection to be granted to
children, to the right of every child to acquire a nationality, as provided for in article 24,
paragraph 3. While the purpose of this provision is to prevent a child from being afforded less
protection by society and the State because he is stateless, it does not necessarily make it an
obligation for States to give their nationality to every child born in their territory. However,
States are required to adopt every appropriate measure, both internally and in cooperation
with other States, to ensure that every child has a nationality when he is born. In this
connection, no discrimination with regard to the acquisition of nationality should be
admissible under internal law as between legitimate children and children born out of
wedlock or of stateless parents or based on the nationality status of one or both of the parents.
The measures adopted to ensure that children have a nationality should always be referred to
in reports by States parties.

2. Rights and Freedoms Protected

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 The CRC is a very extensive document. It integrates economic, social,
cultural, civil and political rights all in one document, thus highlighting
the indivisible and inter-dependent nature of human rights. These
include:

 Prohibition against discrimination;

 The rights and duties of parents and guardians to provide
appropriate direction and guidance in the exercise by the child of
the rights recognised in the Convention;
 The child’s right to life;
 The right to be registered immediately after birth, to a name and
nationality;
 The right of the child to preserve his/her identity, including
nationality, name and family relations;
 The right of the child not to be separated from its parents against
his/her will, except when competent authorities subject to judicial
review determine that such separation is necessary for the best
interests of the child;
 The prohibition of illicit transfer and non return of children abroad;
 The duty of States to assure the child who is capable of forming his
or her own views the right to express those views freely in all
matters affecting the child, the views of the child being given due
weight in accordance with the age and maturity of the child;
 Freedom of expression, thought, religion and conscience;
 Freedom of assembly and association;
 The right to privacy;
 Freedom from physical or mental violence, injury or abuse, neglect
or negligent treatment, maltreatment or exploitation, including
sexual abuse, while in the care of parents, legal guardians or any
other person who has the care of the child;
 The right of children with disabilities to be accorded special care and
attention and to enjoy a full and decent life, in conditions which
ensure dignity, promote self-reliance and facilitate the child’s active
participation in the community;
 The right to enjoy the highest attainable standard of health;
 The right to education;
 The right to a fair trial and to the presumption of innocence.

71
3. The Convention’s General Principles

 According to the General Guidelines Regarding the Form and Contents

of Periodic Reports to be submitted by States Parties under Article 44
paragraph 1(b) of the Convention, the CRC revolves around four
general principles:

1. Non-discrimination
2. Best interests of the child
3. Right to life, survival and development
4. Respect for the views of the child

The Second World Conference on Human Rights held in Vienna in 1993

also reaffirmed the CRC general principles when it proclaimed that in all
actions concerning children, non-discrimination and the best interests of
the child should be primary considerations and the views of the child
given due weight.

a) Non-discrimination

In terms of Article 2 of the CRC, all children should enjoy their rights
without discrimination based on any ground. The principle of non-
discrimination is a basic norm of human rights and virtually every human
rights instrument expressly prohibits discrimination based on any ground.

b) The Best Interests Principle

Central to the implementation of the CRC is ‘the best interests of the

child’ principle. Article 3(1) provides that “in all actions concerning
children, whether undertaken by public or private social welfare
institutions, courts of law, administrative authorities or legislative bodies,
the best interests of the child shall be a primary consideration”.

Within the CRC the ‘best interests of the child’ principle appears in
relation to separation of the child from the family setting (Article 9); with
reference to parental responsibility for the upbringing and development of
the child (Article 18); in relation to adoption (Article 21); and, in the
context of the justice system (Articles 37 and 40).

The ‘best interests of the child’ principle is also found in other human
rights documents. Compare the following provisions:

 Article 5(b) of the Convention on the Elimination of All Forms of

Discrimination against Women (CEDAW) reads:

States Parties shall take all appropriate measures:

72
 ….
To ensure that family education includes a proper
understanding of maternity as a social function and the
recognition of the common responsibility of men and
women in the upbringing and development of their children,
it being understood that the best interest of the child is the
primordial consideration in all cases.

 Article 16(1)(d) of CEDAW provides:

States Parties shall take all appropriate measures to eliminate

discrimination against women in all matters relating to
marriage and family relations and in particular shall ensure,
on a basis of equality of men and women:
…
the same rights and responsibilities as parents, irrespective of
their marital status, in matters relating to their children; in all
cases the interests of the children shall be paramount.

 The Declaration on Social and Legal Principles Relating to the

Protection and Welfare of Children, with Special Reference to Foster
Placement and Adoption Nationally and Internationally of 3
December 1986, provides in Article 5 that:

In all matters relating to the placement of a child outside the

care of the child’s own parents, the best interests of the child,
particularly his or her need for affection and right to security
and continuing care, should be the paramount consideration.

 The African Charter on the Rights and Welfare of the Child, adopted
by the Organisation of African Unity at its Twenty-Sixth Session of
the Assembly of Heads of State and Government held in Addis
Ababa on 11 July 1990, also has a specific provision on the ‘best
interests of the child’. Article IV(1) reads:

In all actions concerning the child undertaken by any person

or authority the best interests of the child shall be the primary
consideration.

c) The Right to Life, Survival and Development

As already noted above, children are very vulnerable and are affected the
worst by a lot of things. In this regard, the implementation of the CRC
must put at the forefront the survival and proper development of the child.
Article 6 of the CRC requires States Parties to recognise that every child
has the inherent right to life and that they shall ensure to the maximum
extent possible the survival and development of the child.

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 d) Respect for the views of the Child

Article 12 of the CRC provides for the child’s freedom of opinion and
expression. It says that States Parties shall assure to the child who is
capable of forming his or her own views the right to express those views
freely in all matters affecting the child, the views of the child being given
due weight in accordance with the age and maturity of the child. The
child shall in particular be provided the opportunity to be heard in any
judicial and administrative proceedings affecting the child, either directly,
or through a representative or an appropriate body, in a manner
consistent with the procedural rules of national law.

4. Monitoring Mechanisms

Part II of the CRC provides for the establishment of a ten member

Committee on the Rights of the Child. The main task of the
Committee is to examine reports from States Parties to the CRC on the
measures they have adopted which give effect to the rights recognised in
the Convention.

5. Optional Protocols to the Convention on the Rights of the Child

 In May 2000, the UN General Assembly adopted two Optional Protocols

to the CRC, the Optional Protocol to the Convention on the Rights
of the Child on the Sale of Children, Child Prostitution and Child
Pornography (CRC-OP-SC) and the Optional Protocol to the
Convention on the Rights of the Child on the Involvement of
Children in Armed Conflicts (CRC-OP-AC).

 The CRC-OP-SC, which came into force on 18 January, 2002, was the
result of grave concern by the international community “at the
significant and increasing international traffic in children for the
purpose of the sale of children, child prostitution and child
pornography” and deep concern “at the widespread and continuing
practice of sex tourism, to which children are especially vulnerable…”
Article 1 of the Protocol obligates States Parties to prohibit the sale of
children, child prostitution and child pornography.

 Article 2 defines the three concepts as:

a) Sale of children means any act or transaction whereby a child is

transferred by any person or group of persons to another for
remuneration or any other consideration;

b) Child prostitution means the use of a child in sexual activities for

remuneration or any other form of consideration;

74
 c) Child pornography means any representation, by whatever means,
of a child engaged in real or simulated explicit sexual activities or
any representation of the sexual parts of a child for primarily sexual
purposes.

 The basis of the CRC-OP-AC is a reaffirmation that the rights of children

require special protection and the international community being
“disturbed by the harmful and widespread impact of armed conflict on
children and the long-term consequences it has for durable peace,
security and development”. According to Article 1, States parties must
take all feasible measures to ensure that members of their armed
forces who have not attained the age of 18 years do not take a direct
part in the hostilities. Under Article 2, States parties shall ensure that
persons who have not attained the age of 18 are not compulsorily
recruited into their armed forces.

 By January 2019, the CRC-OP-SC had 175 States parties and the CRC-
OP-AC had 168 States parties. Zambia is yet to become a party to
both protocols.

 On 19 December, 2011, the UNGA adopted the Optional Protocol to

the Convention on the Rights of the Child on a communications
procedure (CRC-OP-CP). Under Article 1, States that ratify/accede
to the CRC-OP-CP recognise the competence of the committee to
receive communications concerning violations of the CRC or its optional
protocols. The protocol provides for an individual communications
procedure, inter-State communications procedure (separate declaration
to be made) and an inquiry procedure. As at January, 2019 the CRC-
OP-CP had 42 States parties. Zambia has not yet become a party to
this protocol.

INTERNATIONAL CONVENTION ON THE PROTECTION OF THE

RIGHTS OF ALL MIGRANT WORKERS AND MEMBERS OF THEIR
FAMILIES (CMW) 1990

 The International Convention on the Protection of the Rights of

All Migrant Workers and Members of Their Families (CMW) was
adopted in 1990 and entered into force on 1 July 2003. By January
2019 there were 54 States parties. Zambia is not yet a party.

 In its preamble, the CMW takes into account and recalls principles and
standards set forth in basic instruments of the UN concerning human
rights, and also principles and standards set forth in the relevant
instruments elaborated within the framework of the International
Labour Organisation (ILO). The Convention considered the vulnerability
of migrant workers and their families owing, among other things, to

75
 their absence from their State of origin and to the difficulties they may
encounter arising from their presence in the State of employment.

 The CMW is an extensive document. However, much of it is a re-

statement of the classic civil, political, economic, social and cultural
rights placed in the context of migrant workers. The CMW establishes
the Committee on Migrant Workers in Article 72. The Committee
supervises State implementation of the Convention through the State
reporting procedure (Article 73), individual communications (Article 77,
optional) and inter-state communications (Article 76, optional).

CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES

(CRPD) 2006

 On 13 December, 2006, the UN General Assembly adopted the

Convention on the Rights of Persons with Disabilities (CRPD) and the
Optional Protocol to the Convention on the Rights of Persons with
Disabilities. The Convention entered into force in 2008. As of January
2019 there were 177 States parties. Zambia became a party to the
Convention on 1 February, 2010.

 The purpose of the Convention is to promote, protect and ensure the

full and equal enjoyment of all human rights and fundamental freedoms
by all persons with disabilities and to promote respect for their inherent
dignity.

 The Convention is very extensive and places all the relevant human
rights in the context of the special circumstances of persons with
disabilities. The general principles of the Convention shall be:

 Non-discrimination
 Full and effective participation and inclusion in society
 Respect for difference and acceptance of persons with disabilities as
part of human diversity and humanity
 Equality of opportunity
 Accessibility
 Equality between men and women
 Respect for the evolving capacities of children with disabilities and
respect for the right of children with disabilities to preserve their
identities.

 The Convention creates the Committee on the Rights of Persons

with Disabilities to supervise its implementation by the States Parties.
The Committee has the competence to consider reports by States
Parties on the measures they have taken to give effect to its provisions.
When a State also becomes a party to the Optional Protocol, the
Committee will have the mandate to consider individual complaints and,

76
 where it receives reliable information of grave or systematic violations
by the State Party of the Convention, conduct an inquiry as long as the
State did not opt-out of the procedure at the time of ratification or
accession. As of January 2019, there were 93 States parties to the
CRPD-OP.

INTERNATIONAL CONVENTION FOR THE PROTECTION OF ALL

PERSONS FROM ENFORCED DISAPPEARANCE (CED) 2006

 The International Convention for the Protection of All Persons

from Enforced Disappearance, adopted by the UN General Assembly
on 20 December 2006, affirms the right of any victim to know the truth
about the circumstances of an enforced disappearance. The
Convention came into force in December 2010 and as of January 2019
there were 59 States parties. Zambia ratified the Convention on 4 April
2011.

 The Convention defines “enforced disappearance” as “the arrest,

detention, abduction or any other form of deprivation of liberty
by agents of the State or by persons or groups of persons acting
with the authorization, support or acquiescence of the State,
followed by a refusal to acknowledge the deprivation of liberty
or by concealment of the fate or whereabouts of the
disappeared person, which places such a person outside the
protection of the law” (Article 2).

 The Convention goes on to state that the widespread or systematic

practice of enforced disappearance constitutes a crime against
humanity and that a State should take necessary measures to make
enforced disappearance an offence under its criminal law.

 The prohibition of enforced disappearance is absolute and no

exceptional circumstances, whether a state of war or threat of war,
internal political instability or any public emergency, may be invoked as
a justification for enforced disappearance. It also prohibits holding a
person in secret detention.

 The Convention creates the Committee on Enforced

Disappearances, to monitor the implementation of the treaty through
the State reports, individual communications or complaints, inter-State
complaints and also visitations and inquiries based on receipt by the
Committee of reliable and well-founded information of the practice of
enforced disappearances.

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 PART V

THE UNITED NATIONS HUMAN RIGHTS INSTITUTIONAL AND

ENFORCEMENT MECHANISMS

Enforcement of human rights standards under the auspices of the United

Nations is achieved in two ways. These are:

1. Charter-based procedures

2. Treaty-based procedures

(a) CHARTER BASED PROCEDURES

(i) HUMAN RIGHTS COUNCIL

In March 2006 the United Nations established the Human Rights Council
through General Assembly Resolution 60/251, to replace the former
Commission on Human Rights. The Council is the principal
intergovernmental body responsible for human rights. Its mandate
is, inter alia, to promote universal respect for the protection of all human
rights and fundamental freedoms for all, without distinction of any kind
and in a fair and equal manner. It also addresses situations of violations
of human rights, including gross and systematic violations and to make
recommendations. The Council is also expected to promote the effective
coordination and mainstreaming of human rights in the United Nations
system. Specifically, the Council:

(a) Promote human rights education and learning as well as advisory

services, technical assistance and capacity-building, to be
provided in consultation with and consent of UN Member States;

(b) Serves as a forum for dialogue on thematic issues on all human

rights;

(c) Makes recommendations to the General Assembly for the further

development of international law in the field of human rights;

(d) Promotes the full implementation of human rights obligations

undertaken by States and follow-up to the goals and
commitments related to the promotion and protection of human
rights emanating from United Nations conferences and summits;
and

78
 (e) Undertakes a universal periodic review, based on objective and
reliable information, of the fulfilment by each State of its human
rights obligations and commitments in a manner which ensures
universality of coverage and equal treatment with respect to all
States.

The Council is a subsidiary organ of the General Assembly. It has

47 Member States elected for three-year terms by the majority of the
General Assembly in a secret ballot. The membership of the Council
takes into account geographical distribution, with a third of the members
elected each year.42 Member States are ineligible for re-election after two
consecutive terms.43 This is to prevent de facto permanent membership.
States presenting their candidacy may make voluntary pledges and
commitments,44 which the General Assembly takes into account when
voting. It should also be noted that the General Assembly, by a two-
thirds majority of the members present and voting, may suspend the
Council membership of a State that commits gross an systematic
violations of human rights.

The Council holds at least three ordinary sessions per year. It may
convene special sessions at the request of a member of the Council with
the support of a third of its members.

(ii) UNIVERSAL PERIODIC REVIEW (UPR)

The universal periodic review (UPR) involves a review of the human rights
records of all UN Member States. It was established by General Assembly
resolution 60/251 of 15 March 2006 and elaborated in Human Rights
Council resolution 5/1 of 18 June 2007. The UPR allows the Council to
review, on a periodic basis, the fulfilment by each of the UN Member
States of their human rights obligations and commitments. The UPR is a
cooperative mechanism and is based on an interactive dialogue between
each State under review and the member and observer States of the
Council. It is intended to complement, not duplicate, the work of
the human rights treaty bodies.

The UPR’s objectives are:

 Improvement of the human rights situation on the ground

 Fulfilment of the State’s human rights obligations and commitments,
and an assessment of the positive developments and challenges it
faces
42
http://www.un.org/en/ga/70/meetings/elections/hrc.shtml. Membership is distributed as follows: Africa – 13;
Asia-Pacific – 13; Eastern European – 6; Latin American and Caribbean – 8; Western European and Others – 7.
At the time of writing, the next lections were due on 28 October 2015.
43
Ibid
44
See Note verbal dated 5 May, 2008.

79
  Enhancement of the State’s capacity and the provision of technical
assistance
 Sharing of best practice among States and other stakeholders
 Support for cooperation in the promotion and protection of human
rights
 Encouragement of full cooperation and engagement with the Council
and other human rights bodies and the OHCHR.

The UPR operates on a four-year cycle. The basis of the review is:

 The Charter of the United Nations;

 The Universal Declaration of Human Rights;
 The human rights instruments the State is a party to;
 The State’s voluntary pledges and commitments, including those
undertaken when presenting its candidature for election to the
Council; and,
 Applicable international humanitarian law.

Three basic documents are prepared for the review:

1. Information prepared by the State under review (national

report). The report must not exceed 20 pages and States are
encouraged to prepare the report through a broad national
consultation process with all relevant stakeholders, including civil
society.
2. Compilation of UN information prepared by OHCHR. No more
than 10 pages, the compilation is derived from information
contained in the reports of treaty bodies, special procedures and
other relevant official UN documents.
3. Summary of stakeholders’ submissions prepared by OHCHR.
No more than 10 pages, this summary is from information supplied
by NHRIs, NGOs and other civil society actors.

The three documents provide distinct and complementary perspectives on

the human rights situation in the State under review. They should be
available at least six weeks before each review.

The actual review of States takes place in the Working Group on the
UPR, chaired by the President of the Council and composed of the 47
current member States. The Working Group meets in three two-week
sessions, reviewing at least 16 States per session. The review takes
the form of a three-hour interactive dialogue between the State
under review and the member and observer States of the Council.

After the review, an Outcome Document (report) on the review is

prepared with the full involvement of the reviewed State. Outcome
documents include a summary of the proceedings of the review,

80
conclusions and/or recommendations, and any voluntary commitments
and pledges made by the State under review.

Each reviewed State is given the opportunity to indicate whether

or not it supports the conclusions/recommendations contained in
the outcome documents during the meeting of the Working Group,
between Working Group sessions and next Council session or
during the meeting of the Council to adopt the Working Group’s
outcome document.

(iii) SPECIAL PROCEDURES

The special procedures are independent human rights experts with

mandates to report and advise on human rights issues. Although the
mandates given to special procedure mechanisms vary, they usually are
to examine, monitor, advise and publicly report on human rights
situations in specific countries or territories, known as country
mandates, or on major phenomena of human rights violations worldwide,
known as thematic mandates. As of January 2019 there were 44
thematic and 12 country mandates.

Various activities can be undertaken by special procedures, including

responding to individual complaints, conducting studies, providing advice
on technical cooperation, and engaging in general promotional activities.
They report annually to the Human Rights Council. Special procedures
are either an individual (called Special Rapporteur, Special
Representative of the Secretary-General, Representative of the Secretary-
General or Independent Expert) or a working group usually composed
of five members.

Mandate holders also carry out country visits at the request of the
relevant special procedure or at the invitation of the country concerned.
A State may also have a "standing invitation". A standing invitation is an
open invitation extended by a Government to all thematic special
procedures. By extending a standing invitation, a State announces that it
will always accept requests to visit from all Special Procedures. Zambia
has had a standing invitation for Special Procedures since 16 July
2008.45 As of January 2019, 119 States had extended a standing
invitation to thematic special procedures.

In 2009, the Independent Expert on human rights and extreme poverty

conducted a visit to Zambia from 20 to 28 August. The Special

45
As of October 2015 there were 112 countries with Standing Invitations.

81
Rapporteur on violence against women visited from 6 to 11 December
2010. 46

Special procedures mandate-holders:

 Receive and analyse information on human rights situations

provided by various sources on an ongoing basis;
 Network and share information with partners, both governmental
and non-governmental, within and outside the UN;
 Seek (often urgently) clarification from governments on alleged
violations and, where required, request governments to implement
protection measures to guarantee and restore the enjoyment of
human rights;
 Raise awareness about specific human rights situations and
phenomena and threats to and violations of human rights;
 When circumstances so warrant, communicate their concerns
through the media and other public statements;
 Undertake country visits to assess human rights situations
pertaining to their respective mandates and make recommendations
to governments with a view to improving those situations;
 Report and make recommendations to the Council;
 Contribute thematic studies to the development of authoritative
norms and standards for the subject area of the mandate, and may
provide legal expertise on specific issues.

How to access and work with special procedures

The following paragraph sums up the interaction of civil society and

Special Procedures:

“Civil society in general, and international, regional and national

NGOs in particular, provide invaluable support to the Special
Procedures system. They provide information and analysis, help to
disseminate the findings of the Special Procedures, and assist in
follow-up activities, and thus help also formulate and implement
relevant national policies and programmes for human rights
education to improve situations of the issues under the Special
Procedures. Meetings with their representatives are appropriate in
all aspects of the work of the Special Procedures including in their
activities in Geneva and New York, on filed missions, and more
generally. It is thus appropriate for mandate-holders to give careful
and timely consideration to invitations from NGOs and academic

46
Since the Standing Invitation was issued, requests have been received from the Special Rapporteur on the
independence of judges and lawyers (2012); Special Rapporteur on freedom of peaceful assembly and of
association (2013); Special Rapporteur on the human right to safe drinking water and sanitation (2015); Special
Rapporteur on the right to health (2015); Special Rapporteur on disabilities (2015). Earlier requests came from
the Special Representative of the Secretary General on the situation of human rights defenders (2003) and
Special Rapporteur on toxic waste (2007).

82
 institutions to participate in activities such as conferences, debates,
seminars and regional consultations. The OHCHR should generally
be kept informed of the relevant activities of mandate-holders as
they relate to civil society.”47

Thus, civil society contribute to special procedures by:

 Submitting individual allegations of human rights violations

 Providing support for country visits and information and analysis on
human rights violations
 Performing a preventive role by providing information on the
introduction of new legislation which may lead to human rights
violations
 Working on follow-up to special procedures’ recommendations.

(iv) COMPLAINT PROCEDURE

Based on the previous “1503 procedure” the Council’s confidential

complaint procedure allows individuals and organisations to bring
complaints about gross and reliably attested violations of human rights to
the attention of the Council. The Complaint Procedure is established in
compliance with the mandate entrusted to the Human Rights Council by
General Assembly resolution 60/251 of 15 March 2006, in which the
Council was requested to review and, where necessary, improve and
rationalize, within one year after the holding of its first session, all
mandates, mechanisms, functions and responsibilities of the former
Commission on Human Rights, including the 1503 procedure, in order to
maintain a system of special procedures, expert advice and a complaint
procedure. Accordingly, ECOSOC resolution 1503 (XLVIII) of 27 May
1970 as revised by resolution 2000/3 of 19 June 2000, served as a
working basis for the establishment of a new Complaint Procedure and
was improved where necessary to ensure that the complaint procedure be
impartial, objective, efficient, victims-oriented and conducted in a
timely manner.

Pursuant to Council resolution 5/1, the Complaint Procedure is established

to address consistent patterns of gross and reliably attested
violations of all human rights and all fundamental freedoms
occurring in any part of the world and under any circumstances. It
retains its confidential nature, with a view to enhancing cooperation
with the State concerned. The procedure, inter alia, is to be victims-
oriented and conducted in a timely manner.

47
Manual of Operations of the Special Procedures of the Human Rights Council, para. 133.

83
What are the criteria for a communication to be accepted for examination?

A communication related to a violation of human rights and fundamental

freedoms is admissible, unless:

 It is manifestly ill-founded and anonymous; or

 It has manifestly political motivations and its object is not
consistent with the UN Charter, the Universal Declaration of Human
Rights and other applicable instruments in the field of human rights
law; or
 It does not contain a factual description of the alleged violations,
including the rights which are alleged to be violated; or
 Its language is abusive. However, such communication may be
considered if it meets the other criteria for admissibility after
deletion of the abusive language; or
 It is not submitted by a person or a group of persons claiming to be
the victim of violations of human rights and fundamental freedoms
or by any person or group of persons, including NGOs acting in
good faith in accordance with the principles of human rights, not
resorting to politically motivated stands contrary to the provisions of
the UN Charter and claiming to have direct and reliable knowledge
of those violations. Nonetheless, reliably attested communications
shall not be inadmissible solely because the knowledge of the
individual author is second hand, provided they are accompanied by
clear evidence; or
 It is exclusively based on reports disseminated by mass media; or
 It refers to a case that appears to reveal a consistent pattern of
gross and reliably attested violations of human rights already being
dealt with by a special procedure, a treaty body or other United
Nations or similar regional complaints procedure in the field of
human rights; or

The domestic remedies have not been exhausted, unless it appears that
such remedies would be ineffective or unreasonably prolonged.

(b) TREATY BASED PROCEDURES

Treaty based procedures are mechanisms that have been developed

under the United Nations human rights treaty system. These
mechanisms/procedures are utilized by treaty bodies to monitor the
States Parties implementation of the treaties they have ratified/acceded
to.

WHAT ARE THE TREATY BODIES?

84
The human rights treaty bodies are committees of independent experts
that monitor implementation of the core international human rights treaties. They are
created in accordance with the provisions of the treaty that they monitor.

 There are ten human rights treaty bodies:

 The Human Rights Committee (HRC)monitors implementation of the
International Covenant on Civil and Political Rights and its
optional protocols;
 The Committee on Economic, Social and Cultural Rights (CESCR) monitors
implementation of the International Covenant on Economic,
Social and Cultural Rights;
 The Committee on the Elimination of Racial Discrimination (CERD) monitors
implementation of the International Convention on the
Elimination of All Forms of Racial Discrimination;
 The Committee on the Elimination of Discrimination against Women (CEDAW)
monitors implementation of the Convention on the Elimination of
All Forms of Discrimination against Women;
 The Committee against Torture (CAT) monitors implementation of the
Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment;
 The Committee on the Rights of the Child (CRC) monitors implementation of
the Convention on the Rights of the Child and its optional
protocols; and
 The Committee on Migrant Workers (CMW) monitors implementation of
the International Convention on the Protection of the Rights of All
Migrant Workers and Members of Their Families;
 The Committee on the Rights of Persons with Disabilities
(CRPD) monitors implementation of the International Convention
on the Rights of Persons with Disabilities;
 The Committee on Enforced Disappearance (CED) monitors
implementation of the International Convention for the Protection
of All Persons from Enforced Disappearance;
 The Subcommittee on the Prevention of Torture (SPT)
monitors implementation of the Optinal Protocol to the
Convention against Torture.

 Each treaty body receives secretariat support from the Treaties and
Commission Branch of OHCHR in Geneva except CEDAW, which is
supported by the Division for the Advancement of Women (DAW). CEDAW meets
at United Nations headquarters in New York; the other treaty bodies
generally meet at the United Nations Office in Geneva, although the
Human Rights Committee usually holds its March session in New York.

WHAT DO THE TREATY BODIES DO?

 The treaty bodies perform a number of functions in accordance with the

provisions of the treaties that created them. These include:

85
 Consideration of State parties' reports (always mandatory)
 Consideration of individual complaints or communications
(optional where provided)
 Consideration of inter-State complaints/communications
(optional where provided)
 Inquiries (optional where provided)
 Resolution of inter-State disputes concerning interpretation or
application of a convention (optional where provided)
 General comments

CONSIDERATION OF STATE PARTIES’ REPORTS

 When a country ratifies one of the treaties, it assumes a legal

obligation to implement the rights recognized in that treaty. But
signing up is only the first step, because recognition of rights on paper
is not sufficient to guarantee that they will be enjoyed in practice. So
the country incurs an additional obligation to submit regular reports to
the monitoring committee set up under that treaty on how the rights
are being implemented. This system of human rights monitoring is
common to most of the UN human rights treaties.
 To meet their reporting obligation, States must submit an initial
report usually one year after joining (two years in the case of the CRC)
and then periodically in accordance with the provisions of the treaty
(usually every four or five years).
 In addition to the government report, the treaty bodies may receive
information on a country’s human rights situation from other sources,
including non-governmental organizations, UN agencies, other
intergovernmental organizations, academic institutions and the press.
In the light of all the information available, the Committee examines
the report together with government representatives.

 States Parties are required to submit periodic reports on the legislative,

judicial and other measures they have taken to give effect to the rights
recognised or guaranteed in the particular treaty.

 The process is supposed to be conducted in the form of a

constructive dialogue. The UN MANUAL ON HUMAN RIGHTS
REPORTING states:

Reporting is not something that is imposed upon an unwilling State,

nor is it something designed as an adversarial process. Rather it is
premised on the assumptions first that every State is an actual or
potential violator of human rights (no matter how good its
intentions might be) and second that a degree of routine
international accountability is in the best interests of the State itself,
of its citizens, and of the international community.

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 MANUAL ON HUMAN RIGHTS REPORTING (1997), p.20

Objectives of State Reporting

 The process of State reporting is aimed at achieving a number of

objectives. The UN Manual on Human Rights Reporting states that the
process should “be considered to be an integral part of a continuing
process designed to promote and enhance respect for human rights
rather than as an isolated event absorbing precious bureaucratic
resources solely to satisfy the requirements of an international treaty”.
For the State, reporting is an opportunity:

 to reaffirm a government’s commitment to respect the human

rights of its own citizens and to reassert that commitment in the
domestic political forum;

 for domestic stock-taking and for the adoption of measures to

remedy any shortcomings which have been identified; and,

 to proclaim to the international community that the government is

serious about its international commitments.

 States are encouraged to consider reporting as an investment rather

than an unproductive expenditure and to integrate it into domestic
policy-making arrangements.

The Functions Served by State Reporting

 The functions of State reporting were detailed in General Comment 1

(1989) of the Committee on Economic, Social and Cultural Rights
which monitors the ICESCR. The Committee cited the following seven
functions of State reporting:

The Initial Review Function

 To ensure that a comprehensive review is undertaken with respect to

national legislation, administrative rules and procedures, and practices
in an effort to ensure the fullest possible conformity with the
instrument;

 “Either before, or immediately after, a State becomes a party to an

international treaty it is expected to review its domestic law and
practice to ensure that it is in compliance with the obligations
contained in the treaty. Even where this has been done prior to
ratification, the obligation to submit an initial report to the relevant
treaty body provides the State Party with the occasion to undertake a
comprehensive review of national legislation, administrative rules and

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 procedures, and practices in order to ensure the fullest possible
conformity with the provisions of the treaty”.

The Monitoring Function

 To ensure that the State party monitors the actual situation with
respect to each of the rights on a regular basis and is thus aware of
the extent to which the various rights are, or are not, being enjoyed by
all individuals within its territory or under its jurisdiction;

 It is not enough to just state the legislative provisions relating to the

issues raised in the treaty obligations. Reports must strike a balance
between the situation in theory and that in practice. A detailed and
soundly based review of current developments is required. Accordingly,
a pre-condition for effective reporting is the existence of an adequate
system for monitoring the situation with respect to each of the rights
on a regular basis. Monitoring is a first step towards identifying and
subsequently remedying any human rights problems that might exist.

The Policy Formulation Function

 To provide the basis for the elaboration of clearly stated and carefully
targeted policies, including the establishment of priorities which reflect
the provisions of the treaty and to enable the Government to
demonstrate that such principled policy-making has in fact been
undertaken;

 Some human rights problems require the formulation of a long-term

set of policies designed to ensure full and lasting compliance with
treaty obligations. The reporting process can thus act as a catalyst to
the formulation of carefully tailored policies designed to respond to the
problems that have been identified

The Public Scrutiny Function

 To facilitate public scrutiny of government policies with respect to

human rights and to encourage the involvement of the various sectors
of society in the formulation, implementation and review of the
relevant policies;

 It is important to remember that human rights treaties seek to

promote and enhance not only a government’s international
accountability but also its accountability to its own citizens. The
preparation of a report, therefore, provides an important occasion for
consultation of the appropriate social, economic, cultural and other
sectors of society. In this regard, the participation of such groups as
non-governmental organisations, community-based organisations and

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 civil society in general provides an opportunity for the public to
scrutinise the performance of their government.
The Evaluation Function

 To provide a basis on which the State party itself, as well as the treaty
body, can effectively evaluate the extent to which progress has been
made towards the realisation of obligations contained in the treaty;

 The obligation to prepare successive periodic reports at intervals

provides an ideal opportunity for evaluating progress achieved over
time. Thus, States can use the process assess progress between
successive reports.

The Function of Acknowledging Problems

 To enable the State party itself to develop a better understanding of

the problems and shortcomings encountered in efforts to realise
progressively the full range of human rights;

 A look at the various provisions in the treaties on State reporting

reveals the fact States are also expected to outline in detail any
“factors and difficulties” encountered in the realisation of the rights
guaranteed under the treaties. A government must, therefore, take its
reporting obligations seriously and report in good faith, without hiding
any important details.

The Information Exchange Function

 To enable the Committee, and the States parties as a whole, to

facilitate the exchange of information among States and to develop a
better understanding of the common problems faced by States and
fuller appreciation of the type of measures which might be taken to
promote effective realisation of each of the rights contained in the
treaty.

 The reports the committees receive from the State parties serve to
give them a better feel for the types of issues that governments
typically encounter and to distil the wisdom of that collective
experience into advice, which is made available to all interested parties.
Information exchange provides the essential foundation on the basis of
which General Comments are made and elaborated on by the treaty
bodies.

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INTER-STATE COMPLAINTS PROCEDURE

 Several of the treaties contain provisions to allow for State parties to

complain to the relevant treaty body about alleged violations of the
treaty by another State party. It is provided for under:

 Articles 11to 13 of ICERD

 Articles 41 to 43 of ICCPR
 Article 21 of CAT
 Article 74 of CMW

 Both the complaining State and the State complained against

must be parties to the treaty concerned and both should have
declared acceptance of the competence of the Committee in
charge of the implementation of the treaty to receive and
consider such complaints. (principle of reciprocity)

 The procedure is provided for in various formulations. Generally, the

procedure is as follows:

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  The complaining State brings the matter to the attention of the
receiving State (or in the case of the ICERD, to the attention of the
Committee);

 The receiving State is given some time (usually 6 months) within

which to respond and clarify the matter, including the remedies, if
any, taken (in the case of Art. 11 of ICERD, the Committee
communicates to the receiving State requesting it to clarify the
matter);

 If the matter is not adjusted to the satisfaction of both parties,

either State has the right to bring the matter to the Committee;

 The Committee will not deal with the matter unless all available
domestic remedies have been exhausted, unless such remedies will
be unreasonably prolonged;

 The Committee may call upon the parties to supply any other
relevant information;

 The Chairperson of the Committee then appoints an ad hoc

Conciliation Commission. The parties have a say in the composition
of the Commission;

 After full consideration of the matter, the Commission prepares a

report on the findings on all questions of fact and recommendations
and transmits the same to the Committee, which in turn, transmits
it to the parties;

 Each party is expected to communicate back to the Committee

whether or not it accepts the recommendations.

 It is noteworthy the inter-State complaints procedure has

never been used.

CONSIDERATION OF INDIVIDUAL COMPLAINTS OR

COMMUNICATIONS

 Treaty bodies can, under certain conditions, receive petitions from

individuals who claim that their rights under the treaties have been
violated.
 Generally, the complainant must fulfil the following admissibility
conditions:

 the individual must first exhaust local or domestic remedies

available in the State concerned unless:

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 (i) there is no legal process in that country to protect the rights
alleged to have been violated;

(ii) access to remedies through the local courts has been denied
or prevented;

(iii) there has been an unreasonable delay locally in hearing the

complaint;

(iv) a consistent pattern of gross violations of human rights makes

any prospect of remedies meaningless;

(v) the remedies are unlikely to bring effective relief to the victim.

 The communication must not be anonymous or abusive;

 The communication must allege violations of rights stipulated in the

treaty which the committee oversees (must not be incompatible with
the treaty);

 The communication must come from an individual who lives under

the jurisdiction of State which is party to the particular treaty;

 The communication must not be under current or past investigation

in another international procedure;

 The allegations set out in the communication must be substantiated.

The complaint must not be manifestly ill-founded;

 the same matter must note already have been examined by the
Committee or has been or is being examined under another procedure
of international investigation or settlement;

 the facts that are the subject of the communication occurred prior to
the entry into force of the treaty for the State party concerned unless
those facts continued after that date.

INQUIRY PROCEDURE

 The Committee against Torture and the Committee on the Elimination

of Discrimination against Women may, on their own initiative, initiate
inquiries if they have received reliable information containing well-
founded indications of serious or systematic violations of the
conventions in a State party.

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 Inquiries may only be undertaken with respect to States parties who
have recognised the competence of the relevant committee in this
regard. States parties to CAT may opt out, at the time of ratification
or accession, by making a declaration under article 28; States parties
to the CEDAW Optional Protocol may similarly exclude the competence
of the committee by making a declaration under article 10.

 Article 20 of the CAT and articles 8 to 10 of the CEDAW-OP set out the
following basic procedure:

 The procedure may be initiated if the committee receives

reliable information indicating that the rights contained in the
convention are being systematically violated by the State
party. In the case of CAT, the information should contain
well-founded indications that torture is being systematically
practised in the territory of the State party; for CEDAW, the
information should indicate grave or systematic violations of
the rights set forth in the convention by a State party.

 The first step requires the committee to invite the State party
to co-operate in the examination of the information by
submitting observations.

 The committee may, on the basis of the State party’s

observations and other relevant information available to it,
decide to designate one or more of its members to make a
confidential inquiry and report to the committee urgently.
The CEDAW procedure specifically authorises a visit to the
territory of the State concerned, where warranted and with
the State’s consent.

 The findings of the member(s) are then examined by the

committee and transmitted to the State party together with
any appropriate comments or suggestions/recommendations.

 The CEDAW procedure sets a six-month deadline for the State

party to respond with its own observations on the committee’s
findings. Comments and recommendations and, where invited
by the committee, to inform it of the measures taken in
response to the inquiry.

 The committee may decide, in consultation with the State

party, to include a summary account of the results of the
proceedings in its annual report.

 The procedure is confidential and the cooperation of the State

party must be sought throughout.

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