Human Rights and International Law

Lahore, Pakistan 13/2/2015

Barry Collins, Senior Lecturer, University of East London

Session One: Human Rights in the International Legal Order: Origins and Context.

Origins of Human Rights

Natural law

The Concept of Individual Political Rights

International Humanitarian Law

The Nuremberg and Tokyo Trials

Creation of the United Nations and the UDHR

Status of Human Rights in International Law

United Nations Charter

International Law A system of law or a way to govern relations between states?

Different Types of Human Rights

Civil and Political

Economic Social and Cultural

Third Generation Rights

Rights to Self Determination

The International Bill of Rights

The International Bill of Human Rights consists of the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights and its two Optional Protocols. In 1966, the General Assembly adopted the two detailed Covenants, which complete the International Bill of Human Rights. In 1976, after the Covenants had been ratified by a sufficient number of individual nations, the Bill took on the force of international law.

The Universal Declaration of Human Rights (UDHR) is a declaration adopted by the United Nations General Assembly on 10 December 1948 at the Palais de Chaillot, Paris. The Declaration arose directly from the experience of the Second World War and represents the first global expression of rights to which all human beings are inherently entitled.

While not a treaty itself, the Declaration was explicitly adopted for the purpose of defining the meaning of the words "fundamental freedoms" and "human rights" appearing in the United Nations Charter, which is binding on all member states. For this reason, the Universal Declaration is a fundamental constitutive document of the United Nations. In addition, many international lawyers believe that the Declaration forms part of customary international law and is a powerful tool in applying diplomatic and moral pressure to governments that violate any of its articles. The 1968 United Nations International Conference on Human Rights advised that the Declaration "constitutes an obligation for the members of the international community" to all persons. The Declaration has served as the foundation for two binding UN human rights covenants: the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.

International Covenant on Civil and Political Rights (ICCPR)

The International Covenant on Civil and Political Rights (ICCPR) is a multilateral treaty adopted by the United Nations General Assembly on 16 December 1966, and in force from 23 March 1976. It commits its parties to respect the civil and political rights of individuals, including the right to life, freedom of religion, freedom of speech, freedom of assembly, electoral rights and rights to due process and a fair trial. As of 2015, the Covenant has 74 signatories and 168 parties.

The ICCPR is monitored by the United Nations Human Rights Committee (a separate body to the United Nations Human Rights Council), which reviews regular reports of States parties on how the rights are being implemented. States must report initially one year after acceding to the Covenant and then whenever the Committee requests (usually every four years). The Committee normally meets in Geneva and normally holds three sessions per year.

International Covenant on Economic, Social and Cultural Rights (ICESCR)

The International Covenant on Economic, Social and Cultural Rights (ICESCR) is a multilateral treaty adopted by the United Nations General Assembly on 16 December 1966, and in force from 3 January 1976. It commits its parties to work toward the granting of economic, social, and cultural rights (ESCR) to the Non-Self-Governing and Trust Territories and individuals, including labour rights and the right to health, the right to education, and the right to an adequate standard of living. As of 2015, the Covenant had 163 parties. A further six countries, including the United States, had signed but not yet ratified the Covenant.

The Covenant is monitored by the UN Committee on Economic, Social and Cultural Rights.

Questions for Discussion:

1. Are Human Rights Universal?

2. What is meant by the human in human rights?

3. Do you think that International Law can be an effective mechanism for protecting human rights?

4. Does it make sense to categorise human rights into three different generations? Are some human rights more fundamental than others?

5. Do you consider the right to Self Determination to be a human right?

Session Two: Human Rights at the United Nations International Conventions and Institutions.

Treaty Bodies

The human rights treaty bodies are committees of independent experts that monitor implementation of the core international human rights treaties. Each State party to a treaty has an obligation to take steps to ensure that everyone in the State can enjoy the rights set out in the treaty.

There are nine core international human rights treaties, the most recent one -- on enforced disappearance -- entered into force on 23 December 2010. Since the adoption of the Universal Declaration of Human Rights in 1948, all UN Member States have ratified at least one core international human rights treaty, and 80 percent have ratified four or more.

There are currently ten human rights treaty bodies, which are committees of independent experts. Experts are nominated and elected for fixed renewable terms of four years by State parties.

Nine of these treaty bodies monitor implementation of the core international human rights treaties while the tenth treaty body, the Subcommittee on Prevention of Torture, established under the Optional Protocol to the Convention against Torture, monitors places of detention in States parties to the Optional Protocol.

Human Rights Committee (CCPR) monitors implementation of the International Covenant on Civil and Political Rights (1966) and its optional protocols; This Coimmittee is made up of 18 experts that meets three times a year for four-week sessions (spring session at UN headquarters in New York, summer and fall sessions at the UN Office in Geneva) to consider the five-yearly reports submitted by 162 UN member states on their compliance with the International Covenant on Civil and Political Rights, ICCPR, and to examine individual petitions concerning 112 States parties to the Optional Protocol. The Committee is one of nine UN human rights treaty bodies, each responsible for overseeing the implementation of a particular treaty. All States parties are obliged to submit regular reports to the Committee on how the rights are being implemented. States must report initially one year after acceding to the Covenant and then whenever the Committee requests (usually every four years). The Committee examines each report and addresses its concerns and recommendations to the State party in the form of "concluding observations.

Committee on Economic, Social and Cultural Rights (CESCR) monitors implementation of the International Covenant on Economic, Social and Cultural Rights (1966). The Committee was established under ECOSOC Resolution 1985/17 of 28 May 1985 to carry out the monitoring functions assigned to the United Nations Economic and Social Council (ECOSOC) in Part IV of the Covenant.

Committee on the Elimination of Racial Discrimination (CERD) monitors implementation of the International Convention on the Elimination of All Forms of Racial Discrimination (1965);

Committee on the Elimination of Discrimination against Women (CEDAW) monitors implementation of the Convention on the Elimination of All Forms of Discrimination against Women (1979) and its optional protocol (1999). All States parties are obliged to submit regular reports to the Committee on how the rights are being implemented. States must report initially one year after acceding to the Convention and then every two years. The Committee examines each report and addresses its concerns and recommendations to the State party in the form of concluding observations.

Committee against Torture (CAT) monitors implementation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment (1984);

Committee on the Rights of the Child (CRC) monitors implementation of the Convention on the Rights of the Child (1989) and its optional protocols (2000). The Committee also monitors implementation of two Optional Protocols to the Convention, on involvement of children in armed conflict and on sale of children, child prostitution and child pornography. On 19 December 2011, the UN General Assembly approved a third Optional Protocol on a communications procedure, which will allow individual children to submit complaints regarding specific violations of their rights under the Convention and its first two optional protocols. The Protocol opened for signature in February 2012 and will enter into force upon ratification by 10 UN Member States.

Committee on Migrant Workers (CMW) monitors implementation of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990). The Committee It held its first session in March 2004.

Committee on the Rights of Persons with Disabilities (CRPD) monitors implementation of the International Convention on the Rights of Persons with Disabilities (2006). All States parties are obliged to submit regular reports to the Committee on how the rights are being implemented. States must report initially within two years of accepting the Convention and thereafter every four years. The Committee examines each report and shall make such suggestions and general recommendations on the report as it may consider appropriate and shall forward these to the State Party concerned.The Optional Protocol to the Convention gives the Committee competence to examine individual complaints with regard to alleged violations of the Convention by States parties to the Protocol.

Committee on Enforced Disappearances (CED) monitors implementation of the International Convention for the Protection of All Persons from Enforced Disappearance (2006); and the Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (SPT) established pursuant to the Optional Protocol of the Convention against Torture (OPCAT) (2002) visits places of detention in order to prevent torture and other cruel, inhuman or degrading treatment or punishment.The treaty bodies meet in Geneva, Switzerland. All the treaty bodies receive support from the Human Rights Treaties Division of OHCHR in Geneva.

Charter-Based Bodies

Charter bodies include the former Commission on Human Rights, the Human Rights Council , the Office of the High Commissioner for Human Rights and Special Procedures.

The Human Rights Council (UNHRC)The Human Rights Council, which replaced the Commission on Human Rights, held its first meeting on 19 June 2006. This intergovernmental body, which meets in Geneva 10 weeks a year, is composed of 47 elected United Nations Member States who serve for an initial period of 3 years, and cannot be elected for more than two consecutive terms. The Human Rights Council is a forum empowered to prevent abuses, inequity and discrimination, protect the most vulnerable, and expose perpetrators.

The Human Rights Council is a subsidiary body of the UN General Assembly. The council works closely with the Office of the High Commissioner for Human Rights (OHCHR) and engages the United Nations' special procedures.

The UNHRC has addressed conflicts including the Israeli-Palestinian conflict and also addresses rights-related situations in countries such as in Burma, Guinea, North Korea, Cte d'Ivoire, Kyrgyzstan, Syria, Libya, Iran, and Sri Lanka. The UNHRC also addresses important thematic human rights issues such as freedom of association and assembly, freedom of expression, freedom of belief and religion, women's rights, LGBT rights, and the rights of racial and ethnic minorities.

Secretaries General Kofi Annan and Ban Ki-moon, former president of the council Doru Costea, the European Union, Canada, and the United States have accused the council of focusing disproportionately on the IsraeliPalestinian conflict. The United States boycotted the Council during the George W. Bush administration, but reversed its position on it during the Obama administration. Beginning in 2009 however, with the United States taking a leading role in the organization, American commentators began to argue that the UNHRC was becoming increasingly relevant.

The UN General Assembly elects the members who occupy the UNHRC's 47 seats. The General Assembly takes into account the candidate States contribution to the promotion and protection of human rights, as well as their voluntary pledges and commitments in this regard. The term of each seat is three years, and no member may occupy a seat for more than two consecutive terms. The seats are distributed among the UN's regional groups as follows: 13 for Africa, 13 for Asia, six for Eastern Europe, eight for Latin America and the Caribbean (GRULAC), and seven for the Western European and Others Group (WEOG).

On 18 June 2007, one year after holding its first meeting, the UNHRC adopted resolution 5/1 entitled Institution-Building of the United Nations Human Rights Council, which provides elements to guide it in its future work.

Among the elements was the Universal Periodic Review. The Universal Periodic Review assesses the human rights situations in all 193 UN Member States. Another element is an Advisory Committee, which serves as the UNHRCs think tank, and provides it with expertise and advice on thematic human rights issues, that is, issues which pertain to all parts of the world. A further element is a Complaint procedure, which allows individuals and organizations to bring complaints about human rights violations to the attention of the Council.

On 11 July 2013, envoys from both Syria and Iran announced that they would attempt to run for a seat in 2014. This has sparked controversy among the international community.

On 18 June 2007, the Human Rights Council adopted resolution 5/1 entitled Institution-Building of the United Nations Human Rights Council by which a new complaint procedure was 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.The complaint procedure addresses communications submitted by individuals, groups, or non-governmental organizations that claim to be victims of human rights violations or that have direct, reliable knowledge of such violations.Like the former 1503 procedure, it is confidential, with a view to enhance cooperation with the State concerned. The new complaint procedure has been improved, where necessary, to ensure that the procedure be impartial, objective, efficient, victims-oriented and conducted in a timely manner.

Special RapporteursSpecial Rapporteurs are individuals working on behalf of the United Nations (UN) within the scope of "Special Procedures" mechanisms, who bear a specific mandate from the United Nations Human Rights Council, either a country mandate or a thematic mandate. "Rapporteur" is a French-derived word for an investigator who reports to a deliberative body.

Special Rapporteurs often conduct fact-finding missions to countries to investigate allegations of human rights violations. They can only visit countries that have agreed to invite them.Aside from fact-finding missions, Rapporteurs regularly assess and verify complaints from alleged victims of human rights violations. Once a complaint is verified as legitimate, an urgent letter or appeal is sent to the government that has allegedly committed the violation.

There are 37 Special Rapporteurs, Special Representatives and Independent Experts who serve under the following country and thematic mandates:

Thematic mandatesSpecial Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence (2012-)Independent Expert on the promotion of a democratic and equitable international order (2012-)Special Rapporteur on adequate housing as a component of the right to an adequate standard of living (2000-)Special Rapporteur on the sale of children, child prostitution and child pornography (1990-)Special Rapporteur on the right to education (1998-)Special Rapporteur on extrajudicial, summary or arbitrary executions (1982-) (Official site)Independent Expert on the question of human rights and extreme poverty (1998-)Special Rapporteur on the Right to Food (2000-)Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression (1993-)Special Rapporteur on freedom of religion or belief (1986-)Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health (2002-)Special Representative of the Secretary-General on the situation of human rights defenders (2000-)Special Rapporteur on the independence of judges and lawyers (1994-)Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people (2001-)Representative of the Secretary-General on the human rights of internally displaced persons (2004-)Special Rapporteur on the human rights of migrants (1999-)Independent Expert on minority issues (2005-)Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance (1993-)Independent Expert on human rights and international solidarity (2005-)Independent expert on the effects of economic reform policies and foreign debt on the full enjoyment of human rights, particularly economic, social and cultural rights (2000-)Special Rapporteur on the promotion and protection of human rights while countering terrorism (2005-)Special Rappouteur on human rights defenders (2008-)Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment (1995-)Special Rapporteur on the adverse effects of the illicit movement and dumping of toxic and dangerous products and wastes on the enjoyment of human rights (1995-)Special Rapporteur on trafficking in persons, especially in women and children (2004-)Special Representative of the SG on human rights and transnational corporations and other business enterprises (2005-)Special Rapporteur on violence against women, its causes and consequences (1994-)Special Rapporteur on the rights to freedom of peaceful assembly and of association (2011-)Country Mandates

Special Rapporteur on the situation of human rights in Eritrea (2012-)Special Rapporteur on the situation of human rights in Belarus (2004-2007, extended for 3 years 2013-)Independent Expert on the situation of human rights in Burundi (2004-)Special Representative of the Secretary-General for human rights in Cambodia (1993-)Personal Representative of the High Commissioner for Human Rights on the situation of human rights in Cuba (2002-2007)Special Rapporteur on the situation of human rights in the Democratic Peoples Republic of Korea (2004-)Independent Expert on the situation of human rights in the Democratic Republic of the Congo (2004-,discontinued)Independent Expert appointed by the Secretary-General on the situation of human rights in Haiti (1995-)Special Rapporteur on the situation of human rights in the Islamic Republic of Iran (1980-)Independent Expert on the situation of human rights in Liberia (2003-, discontinued)Special Rapporteur on the situation of human rights in Myanmar (1992-)Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967 (1993-)Independent Expert appointed by the Secretary-General on the situation of human rights in Somalia (1993-)Special Rapporteur on the situation on human rights in the Sudan (2005-)Independent Expert on the situation of human rights in Uzbekistan (2005-, discontinued

Special Procedures

Special Procedures are the mechanisms exercised by the Human Rights Council to address either specific country situations or thematic issues in all parts of the world. Special Procedures are either an individual a special rapporteuror independent expertor a working group. They are prominent, independent experts working on a voluntary basis, appointed by the Human Rights Council.

Special Procedures' mandates usually call on mandate-holders to examine, monitor, advise and publicly report on human rights situations in specific countries or territories, known as country mandates, or on human rights issues of particular concern worldwide, known as thematic mandates. All report to the Human Rights Council on their findings and recommendations, and many also report to the General Assembly. They are sometimes the only mechanism that will alert the international community to certain human rights issues, as they can address situations in all parts of the world without the requirement for countries to have had ratified a human rights instrument.

High Commissioner for Human Rights (OHCHR)

The Office of the United Nations High Commissioner for Human Rights (OHCHR) is a United Nations agency that works to promote and protect the human rights that are guaranteed under international law and stipulated in the Universal Declaration of Human Rights of 1948. The office was established by the UN General Assembly on 20 December 1993 in the wake of the 1993 World Conference on Human Rights.

The office is headed by the High Commissioner for Human Rights, who co-ordinates human rights activities throughout the UN System and supervises the Human Rights Council in Geneva, Switzerland. The current High Commissioner is Prince Zeid bin Ra'ad who assumed his functions as United Nations High Commissioner for Human Rights on 1 September 2014.

The Office of the United Nations High Commissioner for Human Rights:1 Promotes universal enjoyment of all human rights by giving practical effect to the will and resolve of the world community as expressed by the United Nations;2 Plays the leading role on human rights issues and emphasizes the importance of human rights at the international and national levels;3 Promotes international cooperation for human rights;4 Stimulates and coordinates action for human rights throughout the United Nations system;5 Promotes universal ratification and implementation of international standards;6 Assists in the development of new norms;7 Supports human rights organs and treaty monitoring bodies;8 Responds to serious violations of human rights;9 Undertakes preventive human rights action;10 Promotes the establishment of national human rights infrastructures;11 Undertakes human rights field activities and operations;Provides education, information advisory services and technical assistance in the field of human rights.

Universalism versus Cultural Relativism

Human rights discourse, particularly as far as the United Nations is concerned, is often accused of being insensitive to local cultural sensitivities. Critics describe is sometimes described as a kind of cultural imperialism representing Western values that are opposed to the cultural norms of many societies. Defenders of human rights argue that this is merely an excuse for the abuse of individual freedoms, particularly when marginalized or vulnerable groups are concerned.

Questions for Discussion

1. To what extent do you think that international human rights institutions are shaped by political considerations?

2. What value does the United Nations have as a means of protecting human rights?

3. How might a human rights activist use United Nations institutions to draw attention to the following issues:

(a) the lack of education for children in Bombay(b) Government surveillance of internet and telephone use in the United Kingdom(c) The lack of land rights for women in Kenya(d) Female genital mutilation in Somalia(e) the disappearance of student activists in Mexico(f) the persecution of homosexuals in Iran(g) the use of torture against prisoners at Guantanamo bay(h) the building of Israeli settlements in the West Bank(i) the death of civilians in the civil war in Sri Lanka(j) the rights of religious minorities in Saudi Arabia

4. Which of these scenarios raise problems of Universalism versus Cultural relativism? Does the use human rights provide a solution to these problems?

Session Three: Regional Human Rights Systems

European Convention on Human Rights

The European Convention on Human Rights (ECHR) is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe,[1] the convention entered into force on 3 September 1953. All Council of Europe member states are party to the Convention and new members are expected to ratify the convention at the earliest opportunity.

The Convention established the European Court of Human Rights (ECtHR). Any person who feels his or her rights have been violated under the Convention by a state party can take a case to the Court. Judgements finding violations are binding on the States concerned and they are obliged to execute them. The Committee of Ministers of the Council of Europe monitors the execution of judgements, particularly to ensure payment of the amounts awarded by the Court to the applicants in compensation for the damage they have sustained. The establishment of a Court to protect individuals from human rights violations is an innovative feature for an international convention on human rights, as it gives the individual an active role on the international arena (traditionally, only states are considered actors in international law). The European Convention is still the only international human rights agreement providing such a high degree of individual protection. State parties can also take cases against other state parties to the Court, although this power is rarely used.

European Court of Human Rights

The European Court of Human Rights is a supranational or international court established by the European Convention on Human Rights. It hears applications alleging that a contracting state has breached one or more of the human rights provisions concerning civil and political rights set out in the Convention and its protocols. An application can be lodged by an individual, a group of individuals or one or more of the other contracting states, and, besides judgments, the Court can also issue advisory opinions. The Convention was adopted within the context of the Council of Europe, and all of its 47 member states are contracting parties to the Convention. The Court is based in Strasbourg, France.

African Charter on Human and Peoples' Rights

The African Charter on Human and Peoples' Rights (also known as the Banjul Charter) is an international human rights instrument that is intended to promote and protect human rights and basic freedoms in the African continent. The African Charter on Human and People's Rights followed the footsteps of the European and Inter-American systems by creating a regional human rights system for Africa. The Charter shares many features with other regional instruments, but also has notable unique characteristics concerning the norms it recognizes and also its supervisory mechanism.

The Charter also recognises certain economic, social and cultural rights, and overall the Charter is considered to place considerable emphasis on these rights. The Charter recognises right to work (Article 15), the right to health (Article 16), and the right to education (Article 17). Through a decision by the African Commission on Human and Peoples' Rights, SERAC v Nigeria (2001), the Charter is also understood to include a right to housing and a right to food as implicit in the Charter, particularly in light of its provisions on the right to life (Art. 4), right to health (Art. 16) and to development (Art. 22).

In addition to recognising the individual rights mentioned above the Charter also recognises collective or group rights, or peoples' rights and third-generation human rights. As such the Charter recognises group rights to a degree not matched by the European or Inter-American regional human rights instruments. The Charter awards the family protection by the state (Article 18), while "peoples" have the right to equality (Article 19), the right to self-determination (Article 20), to freely dispose of their wealth and natural resources (Article 21), the right to development (Article 22), the right to peace and security (Article 23) and "a generally satisfactory environment" (Article 24).

African Commission on Human and Peoples' Rights

The African Commission on Human and Peoples' Rights (ACHPR) is a quasi-judicial body tasked with promoting and protecting human rights and collective (peoples') rights throughout the African continent as well as interpreting the African Charter on Human and Peoples' Rights and considering individual complaints of violations of the Charter.

The Commission came into existence with the coming into force, on 21 October 1986, of the African Charter (adopted by the OAU on 27 June 1981). Although its authority rests on its own treaty, the African Charter, the Commission reports to the Assembly of Heads of State and Government of the African Union (formerly the Organisation of African Unity). Its first members were elected by the OAU's 23rd Assembly of Heads of State and Government in June 1987 and the Commission was formally installed for the first time on 2 November of that year. For the first two years of its existence, the Commission was based at the OAU Secretariat in Addis Ababa, Ethiopia, but in November 1989 it relocated to Banjul, Gambia. (NB: The ACHPR should be distinguished from the African Union Commission, as the OAU Secretariat has been renamed since the creation of the African Union.)

The Commission meets twice a year: usually in March or April and in October or November. One of these meetings is usually in Banjul, where the Commission's secretariat is located; the other may be in any African state.

The ACHPR is made up of eleven members, elected by secret ballot at the OAU Assembly of Heads of State and Government (subsequently, by the AU's Assembly). These members, who serve six-year renewable terms, are "chosen from amongst African personalities of the highest reputation, known for their high morality, integrity, impartiality and competence in matters of human and peoples' rights" (Charter, Article 31) and, in selecting these personalities, particular consideration is given "to persons having legal experience".

The Commission has three broad areas of responsibility:(a) Promoting human and peoples' rights(b) Protecting human and peoples' rights(c) Interpreting the African Charter on Human and Peoples' RightsIn pursuit of these goals, the Commission is mandated to "collect documents, undertake studies and researches on African problems in the field of human and peoples, rights, organise seminars, symposia and conferences, disseminate information, encourage national and local institutions concerned with human and peoples' rights and, should the case arise, give its views or make recommendations to governments" (Charter, Art. 45).With the creation of the African Court on Human and Peoples' Rights (under a protocol to the Charter which was adopted in 1998 and entered into force in January 2004), the Commission will have the additional task of preparing cases for submission to the Court's jurisdiction. In a July 2004 decision, the AU Assembly resolved that the future Court on Human and Peoples' Rights would be integrated with the African Court of Justice. In 2011, the commission brought before the African Court on Human and Peoples' Rights a case against Libya.

African Court of Human and Peoples Rights

The African Court of Human and Peoples Rights (AfCHPR) was established by the Protocol to the African Charter on Human and Peoples Rights on the Establishment of an African Court on Human and Peoples Rights (the Court Protocol) which entered into force in 2004.

It is a regional court created to make judgments on African Union states' compliance with the African Charter on Human and Peoples' Rights. It came into being on January 25, 2004 with the ratification by fifteen member states of the Protocol to the African Charter on Human and Peoples Rights Establishing the AfCHPR. As of April 2014, just 27 of the African Union's 54 members have ratified and are parties to the Court. The AU discourages prosecution of human rights abuses in the International Criminal Court, hoping that they would be tried by the AfCHPR instead; but the AfCHPR has achieved very little.

Inter-American Court of Human Rights

The Inter-American Court of Human Rights is an autonomous judicial institution based in the city of San Jos, Costa Rica. Together with the Inter-American Commission on Human Rights, it makes up the human rights protection system of the Organization of American States (OAS), which serves to uphold and promote basic rights and freedoms in the Americas.

The Organization of American States established the Court in 1979 to enforce and interpret the provisions of the American Convention on Human Rights. Its two main functions are thus adjudicatory and advisory. Under the former, it hears and rules on the specific cases of human rights violations referred to it. Under the latter, it issues opinions on matters of legal interpretation brought to its attention by other OAS bodies or member states.

The Commission has several Special Mechanisms in the form of Special Rapporteurs, working groups or committees that investigate and report on specific human rights issues.There are 6 special rapporteurs who monitor, investigate and report on allegations of violations in member states of the African Union.(a) Special Rapporteur on Extra-judicial, Summary or Arbitrary Execution(b) Special Rapporteur on Freedom of Expression and Access to Information(c) Special Rapporteur on Human Rights Defenders(d) Special Rapporteur on Prisons and Conditions of Detention(e) Special Rapporteur on Refugees, Asylum Seekers, Migrants and Internally Displaced Persons(f) Special Rapporteur on Rights of Women

Adjudicatory function

The adjudicatory function requires the Court to rule on cases brought before it in which a state party to the Convention, and thus has accepted its jurisdiction, is accused of a human rights violation.

In addition to ratifying the Convention, a state party must voluntarily submit to the Court's jurisdiction for it to be competent to hear a case involving that state. Acceptance of contentious jurisdiction can be given on a blanket basis to date, Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Suriname, Uruguay, and Venezuela have done so or, alternatively, a state can agree to abide by the Court's jurisdiction in a specific, individual case.Trinidad and Tobago originally signed the Convention on 28 May 1991 but suspended its ratification on 26 May 1998 (effective 26 May 1999) over the death penalty issue. In 1999, under President Alberto Fujimori, Peru announced it was withdrawing its acceptance of the Court's jurisdiction. This decision was reversed by the transitional government of Valentn Paniagua in 2001.The United States signed but never ratified the Convention.

Under the Convention, cases can be referred to the Court by either the Inter-American Commission on Human Rights or a state party. In contrast to the European human rights system, individual citizens of the OAS member states are not allowed to take cases directly to the Court.The following conditions must be met:(a) Individuals who believe that their rights have been violated must first lodge a complaint with the Commission and have that body rule on the admissibility of the claim.(b) If the case is ruled admissible and the state deemed at fault, the Commission will generally serve the state with a list of recommendations to make amends for the violation.(c) Only if the state fails to abide by these recommendations, or if the Commission decides that the case is of particular importance or legal interest, will the case be referred to the Court.(d) The presentation of a case before the Court can therefore be considered a measure of last resort, taken only after the Commission has failed to resolve the matter in a non-contentious fashion.(e) Proceedings before the Court are divided into written and oral phases.

The reparations the Court orders can be both monetary and nonmonetary in nature. The most direct form of redress are cash compensation payments extended to the victims or their next-of-kin. However, the state can also be required to grant benefits in kind, to offer public recognition of its responsibility, to take steps to prevent similar violations occurring in the future, and other forms of nonmonetary compensation.

For example, in its November 2001 judgment in the Barrios Altos case dealing with the massacre in Lima, Peru, of 15 people at the hands of the state-sponsored Colina Group death squad in November 1991 the Court ordered payments of US$175,000 for the four survivors and for the next-of-kin of the murdered victims and a payment of $250,000 for the family of one of the victims. It also required Peru:to grant the victims' families free health care and various forms of educational support, including scholarships and supplies of school uniforms, equipment, and books;to repeal two controversial amnesty laws;to establish the crime of extrajudicial killing in its domestic law;to ratify the International Convention on the Nonapplicability of Statutory Limitations to War Crimes and Crimes against Humanity;to publish the Court's judgment in the national media;to publicly apologize for the incident and to undertake to prevent similar events from recurring in the future;and to erect a memorial monument to the victims of the massacre.While the Court's decisions admit no appeal, parties can lodge requests for interpretation with the Court secretary within 90 days of judgment being issued. When possible, requests for interpretation are heard by the same panel of judges that ruled on the merits.

Advisory function

The Court's advisory function enables it to respond to consultations submitted by OAS agencies and member states regarding the interpretation of the Convention or other instruments governing human rights in the Americas; it also empowers it to give advice on domestic laws and proposed legislation, and to clarify whether or not they are compatible with the Convention's provisions. This advisory jurisdiction is available to all OAS member states, not only those that have ratified the Convention and accepted the Court's adjudicatory function. The Court's replies to these consultations are published separately from its contentious judgments, as advisory opinions.

Criticism

The Court's behaviour has also been criticized. Among other issues, some authors have criticized the politization of the Court. Some of the latest criticisms come from Peru and Venezuela. Up to now Trinidad and Tobago is the only State who has withdrawn from the system. Peru tried to do so, but did not follow the appropriate procedure. The last of these criticisms is directed against the Court's decision in the case of the Mapiripn Massacre declaring that some people were murdered with the consent of the Colombian state, many of whom were subsequently found alive.

American Declaration of the Rights and Duties of Man

The American Declaration of the Rights and Duties of Man was the world's first international human rights instrument of a general nature, predating the Universal Declaration of Human Rights by less than a year.

The Declaration was adopted by the nations of the Americas at the Ninth International Conference of American States in Bogot, Colombia, in April 1948, the same meeting that adopted the Charter of the Organization of American States and thereby created the OAS.

Chapter One of the Declaration sets forth a catalogue of civil and political rights to be enjoyed by the citizens of the signatory nations, together with additional economic, social, and cultural rights due to them. As a corollary, its second chapter contains a list of corresponding duties. As explained in the preamble:"The fulfillment of duty by each individual is a prerequisite to the rights of all. Rights and duties are interrelated in every social and political activity of man. While rights exalt individual liberty, duties express the dignity of that liberty."Although strictly speaking a declaration is not a legally binding treaty, the jurisprudence of both the Inter-American Court of Human Rights and the Inter-American Commission on Human Rights holds it to be a source of binding international obligations for the OAS's member states. While largely superseded in the current practice of the inter-American human rights system by the more elaborate provisions of the American Convention on Human Rights (in force since 18 July 1978), the terms of the Declaration are still enforced with respect to those states that have not ratified the Convention, such as Cuba and the United States.

American Convention on Human Rights

The American Convention on Human Rights, also known as the Pact of San Jos, is an international human rights instrument. It was adopted by many countries in the Western Hemisphere San Jos, Costa Rica, on 22 November 1969. It came into force after the eleventh instrument of ratification (that of Grenada) was deposited on 18 July 1978.The bodies responsible for overseeing compliance with the Convention are the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights, both of which are organs of the Organization of American States (OAS).

Chapter I establishes the general obligation of the states parties to uphold the rights set forth in the Convention to all persons under their jurisdiction, and to adapt their domestic laws to bring them into line with the Convention. The 23 articles of Chapter II give a list of individual civil and political rights due to all persons, including the right to life "in general, from the moment of conception", to humane treatment, to a fair trial, to privacy, to freedom of conscience, freedom of assembly, freedom of movement, etc. The Article 15 prohibits "any propaganda for war and any advocacy of national, racial, or religious hatred that constitute incitement to lawless violence or to any other similar action against any person on any grounds including those of race, color, religion, language, or national origin" to be considered as offence punishable by law. This provision is established under influence of the Article 20 of the International Covenant of Civil and Political Rights. The single article in Chapter III deals with economic, social, and cultural rights. The somewhat cursory treatment given to this issue here was expanded some ten years later with the Protocol of San Salvador.

Questions for Discussion

1. How useful do you think regional human rights systems are as a means of making human rights enforceable?2. Would you like to see an Asian Convention on Human Rights? What do you think it should contain? In what way do you think it should differ from other human rights instruments?3. What do you think are the main obstacles to such a development?

Session Four: International Human Rights in the Twenty-First Century; Current Debates and New Directions.

The Growth of International Criminal Law.

The International Criminal Court

The International Criminal Court (ICC) is an intergovernmental organization and international tribunal that sits in The Hague in the Netherlands. The ICC has the jurisdiction to prosecute individuals for the international crimes of genocide, crimes against humanity, and war crimes. The ICC is intended to complement existing national judicial systems and it may therefore only exercise its jurisdiction when certain conditions are met, such as when national courts are unwilling or unable to prosecute criminals or when the United Nations Security Council or individual states refer investigations to the Court. The ICC began functioning on 1 July 2002, the date that the Rome Statute entered into force. The Rome Statute is a multilateral treaty which serves as the ICC's foundational and governing document. States which become party to the Rome Statute, for example by ratifying it, become member states of the ICC. Currently, there are 123 states which are party to the Rome Statute and therefore members of the ICC. Pakistan

The ICC has four principal organs: the Presidency, the Judicial Divisions, the Office of the Prosecutor, and the Registry. The President is the most senior judge chosen by his or her peers in the Judicial Division, which hears cases before the Court. The Office of the Prosecutor is headed by the Prosecutor who investigates crimes and initiates proceedings before the Judicial Division. The Registry is headed by the Registrar and is charged with managing all the administrative functions of the ICC, including the headquarters, detention union, and public defense office.

The Office of the Prosecutor has opened nine official investigations and is also conducting an additional nine preliminary examinations. Thus far, 36 individuals have been indicted in the ICC, including Ugandan rebel leader Joseph Kony, Sudanese president Omar al-Bashir, Kenyan president Uhuru Kenyatta, Libyan leader Muammar Gaddafi, and Ivorian president Laurent Gbagbo. Since all of the official investigations have been in Africa, the Office of the Prosecutor has been accused of selective enforcement and Western imperialism towards African countries.

As of February 2015, 123 states are parties to the Statute of the Court, including all the countries of South America, nearly all of Europe, most of Oceania and roughly half of Africa. A further 31 countries have signed but not ratified the Rome Statute. The law of treaties obliges these states to refrain from "acts which would defeat the object and purpose" of the treaty until they declare they do not intend to become a party to the treaty. Three signatory statesIsrael, Sudan and the United Stateshave informed the UN Secretary General that they no longer intend to become states parties and, as such, have no legal obligations arising from their former representatives' signature of the Statute. 41 United Nations member states have neither signed nor acceded to the Rome Statute; some of them, including China and India, are critical of the Court. Palestine, a UN observer state, acceded to the Statute on 2 January 2015, which will enter into force for them on 1 April 2015.[ Additionally, Ukraine, a non-ratifying signatory, has accepted the Court's jurisdiction for a limited period in 2013-2014.

Pakistan has supported the aims of the International Court and voted for the Rome Statute in 1998. However, Pakistan has not signed the agreement on the basis of several objections, including the fact that the Statute does not provide for reservations upon ratification or accession, the inclusion of provisional arrest, and the lack of immunity for heads of state. In addition, Pakistan (which is one of the world's largest supplier of peacekeepers) has, like the United States, expressed reservations about the potential use of politically motivated charges against peacekeepers.

To date, the Prosecutor has opened investigations into nine situations: the Democratic Republic of the Congo; Uganda; Central African Republic I and II; Darfur, Sudan; Kenya; Libya; Cte d'Ivoire; and Mali. The Office of the Prosecutor is also conducting preliminary examinations in nine matters in Afghanistan, Colombia, Georgia, Guinea, Honduras, Iraq, Nigeria, Palestine and Ukraine.

International Criminal Tribunal for Rwanda

The International Criminal Tribunal for Rwanda (ICTR) is an international court established in November 1994 by the United Nations Security Council in Resolution 955 in order to judge people responsible for the Rwandan Genocide and other serious violations of the international law in Rwanda, or by Rwandan citizens in nearby states, between 1 January and 31 December 1994. The tribunal has jurisdiction over genocide, crimes against humanity and war crimes. So far, the Tribunal has finished 50 trials and convicted 29 accused persons. Another 11 trials are in progress. The tribunal is located in Arusha, Tanzania.

International Criminal Tribunal for the former Yugoslavia

The International Criminal Tribunal for the former Yugoslavia or ICTY, is a body of the United Nations established to prosecute serious crimes committed during the wars in the former Yugoslavia, and to try their perpetrators. The tribunal is an ad hoc court which is located in The Hague, the Netherlands.

The Court was established by Resolution 827 of the United Nations Security Council, which was passed on 25 May 1993. It has jurisdiction over four clusters of crime committed on the territory of the former Yugoslavia since 1991: grave breaches of the Geneva Conventions, violations of the laws or customs of war, genocide, and crime against humanity. The maximum sentence it can impose is life imprisonment. Various countries have signed agreements with the UN to carry out custodial sentences.

Universal Jurisdiction

Universal jurisdiction allows states or international organizations to claim criminal jurisdiction over an accused person regardless of where the alleged crime was committed, and regardless of the accused's nationality, country of residence, or any other relation with the prosecuting entity. Crimes prosecuted under universal jurisdiction are considered crimes against all, too serious to tolerate jurisdictional arbitrage.

The concept of universal jurisdiction is therefore closely linked to the idea that some international norms are erga omnes, or owed to the entire world community, as well as the concept of jus cogens that certain international law obligations are binding on all states. [1]The concept received a great deal of prominence with Belgium's 1993 law of universal jurisdiction, which was amended in 2003 in order to reduce its scope following a case before the International Court of Justice regarding an arrest warrant issued under the law, entitled Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium).[2] The creation of the International Criminal Court (ICC) in 2002 reduced the perceived need to create universal jurisdiction laws, although the ICC is not entitled to judge crimes committed before 2002.

International jurisdiction differs from "territorial jurisdiction", where justice is exercised by a state in relation to crimes committed on its territory (territorial jurisdiction). States can also exercise jurisdiction on crimes committed by their nationals abroad (extraterritorial jurisdiction), even if the act the national committed was not illegal under the law of the territory in which an act has been committed. As an example, the American law the Protect America Act of 2007 asserts jurisdiction over terror-suspects on a worldwide basis.

According to Amnesty International, a proponent of universal jurisdiction, certain crimes pose so serious a threat to the international community as a whole, that states have a logical and moral duty to prosecute an individual responsible for it; no place should be a safe haven for those who have committed genocide,[3] crimes against humanity, extrajudicial executions, war crimes, torture and forced disappearances.[4]

Opponents, such as Henry Kissinger, argue that universal jurisdiction is a breach on each state's sovereignty: all states being equal in sovereignty, as affirmed by the United Nations Charter, "Widespread agreement that human rights violations and crimes against humanity must be prosecuted has hindered active consideration of the proper role of international courts. Universal jurisdiction risks creating universal tyranny that of judges."[5][6] According to Kissinger, as a practical matter, since any number of states could set up such universal jurisdiction tribunals, the process could quickly degenerate into politically driven show trials to attempt to place a quasi-judicial stamp on a state's enemies or opponents.

Case Study

You are tasked with developing an international human rights strategy to address the issue of civilian casualties caused by drone attacks in Pakistan. How might you proceed?

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