Module_7 (Pubic International Law)

MODULE 7

INTERNATIONAL HUMAN RIGHTS LAW

INTRODUCTION

Human rights, often expressed as ‘fundamental freedoms’, ‘fundamental human rights’, or
‘fundamental rights’ and usually guaranteed by the constitutions of most States, are many and
vary widely in content.1 The most common rights include the right to life, freedom of movement,
freedom of expression, the right to form and belong to associations, and freedom of religion, etc.

Despite their widespread recognition, for various reasons States often violate the fundamental
human rights of people. Violations may be as a result of ‘necessity’, such as during national
emergencies that may necessitate restrictions on certain freedoms, such as the freedom of
movement or association. Sometimes, States may violate human rights on the basis of a mere
suspicion that a certain individual is engaged in activities that are inimical to public or State
interest. Whatever may account for such violation of human rights, it is important to ensure that
States do not disregard, violate, or threaten fundamental human rights for no just cause.2 The
complexity here arises because of the fact that there is an inherent, fundamental conflict here –
while states are the arch-custodians of human rights, tasked with safeguarding the sanctity of the
principles that the human rights represent, they are also the ones that derogate and violate the
fundamental rights of those present within their territory. It is then the task of those State
institutions that are enabled the respective Constitutions to ensure that human rights law is
enforced against any violator, even if it may be the State itself.3

When a State violates the rights of the people, redress is usually sought first before the courts of
that State. However, whether a person is able to challenge the violation of their human rights
effectively before the courts depends largely on the type of government in operation in the
country in question. In most democratic societies, there is usually an effective process for
seeking redress in the courts following human rights violations. However, in parts of the world in
which other less participatory types of government exist, such as military regimes, absolute

1 D Weissbrodt, J Fitzpatrick and F Newman, INTERNATIONAL HUMAN RIGHTS (3rd edn, LexisNexis, 2009)
2 M. Moskowtiz, THE POLICIES AND DYNAMICS OF HUMAN RIGHTS (Oxford University Press, 1968) at p. 101
3 Theodore Meron, HUMAN RIGHTS IN INTERNATIONAL LAW VOLUME I (Oxford University Press, 1986) at p. 69

monarchies, or other forms of authoritarian government, national courts are often unable to deal
freely with human rights violations. This is due to the fact that, under such political systems, the
judiciary is usually under immense pressure not to upset the executive arm of the government,
which is the arm that most frequently commits human rights violations, since it consists of,
among others, the police, the military, and other law enforcement agencies in regular direct
contact with the people.

HISTORICAL EMERGENCE OF HUMAN RIGHTS

The belief that everyone, by virtue of her or his humanity, is entitled to certain human rights is
fairly new. Its roots, however, lie in earlier tradition and documents of many cultures; it took the
catalyst of World War II to propel human rights onto the global stage and into the global
conscience. In the past, human rights were regarded as an exclusive matter for individual States,
irrespective of the type of government in existence in that State. The issue belonged to the
exclusive jurisdiction of States and this was especially so before the First World War. States
dealt with their citizens, and all who lived within their territories, as they pleased. Where States
violated the rights of foreigners, for example, the countries of nationality of such foreigners
would normally take up such cases. There were no specialized courts for that purpose, but rather
such cases were taken to international tribunals to which the two States would agree.

The outbreak of the First World War and the extensive atrocities committed by States against
peoples, especially minority groups, revealed that States could not be trusted always to protect
peoples’ human rights, let alone to ensure their vindication when they are violated. But nothing
much was done to resolve this situation during the interwar period.4 The human rights situation
of the world worsened during the Second World War, as more atrocities were committed against
people singled out on the basis of their race. As the world began to search for means of dealing
with peace-breaching States such as Germany, Italy, and Japan, it realized that it must also start
thinking about how to protect the human rights of people against violations by their own
governments.5 Here the pertinent point to be kept in mind is that most of the Jews who were

4 Payam Akhavan, Beyond Impunity: Can International Criminal Justice Prevent Future Atroctieis, (2001) 95(1)
AJIL 7
5 Mary Griffin, Ending the Impunity of Perpetrators of Human Rights Atrocities: A major challenge for
International law in the 21st Century, (2000) Intl Rev of Red Cross 838 <available at:
https://www.icrc.org/en/doc/resources/documents/article/other/57jqhj.htm>

persecuted and executed under the Nazi regime were actually German citizens. Early academic
efforts concentrated on making human rights part and parcel of State obligations.6 There was no

serious effort made to place human rights under international law as such, even if it was widely

recognized that international law could be used to impose obligations on States to protect the
rights of their citizens.7 Even Hersch Lauterpacht, one of the earliest scholars to propose that

human rights be included in the constitutions of every State and that international law be used to

sensitize States towards human rights protection, recognized the limits of international law on the

recognition and enforcement of human rights, as he stated in the seminal work An International
Bill of Rights of Man that “any attempt to translate the idea of an International Bill of the Rights

of Man into a working rule of law is fraught with difficulties which disturb orthodox thought to
the point of utter discouragement.”8

In the nineteenth century, the positivist doctrines of state sovereignty and domestic jurisdiction

reigned supreme. Virtually all matters that today would be classified as human rights issues were

at that stage universally regarded as within the internal sphere of national jurisdiction. The major

exceptions to this were related to piracy jure gentium (Piracy according to the law of Nations)
and slavery. In the latter case a number of treaties were entered into to bring about its abolition.9

Concern with regard to the treatment of sick and wounded soldiers and with prisoners of war
developed as from 1864 in terms of international instruments10, while states were required to
observe certain minimum standards in the treatment of aliens.11 In addition, certain agreements
of a general welfare nature were begin to be adopted..12 The nineteenth century also appeared to

accept a right of humanitarian intervention, although its range and extent were unclear. An

important change occurred with the establishment of the League of Nations in 1919. Article 22

of the League of Nations established the mandates system for peoples in ex-enemy colonies, and

it was obliged to guarantee freedom of conscience and religion, along with the setting up of a

Permanent Mandates Commission. Additionally, Article 23 provided for just treatment of native

6 Fred E Katz, A Sociological Perspective of the Holocaust (1982) 2(3) MOD. JUDAISM 273-296
7 Hurst Hannum, Reinvigorating Human Rights for the Twenty-First Century (2016) 16(3) HRLR 409
8 K Hausler, HUMAN RIGHTS, DEMOCRACY AND THE RULE OF LAW (FRAME, 2017) <available at: http://www.fp7-
frame.eu/wp-content/uploads/2016/11/Deliverable-3.4.pdf>
9 Malcolm Shaw, INTERNATIONAL LAW (6th edn, Cambridge University Press, 2008) 298
10 Ibid
11 Ibid
12 D Weissbrodt, J Fitzpatrick and F Newman, INTERNATIONAL HUMAN RIGHTS (3rd edn, Yale University Press,
2001) at p. 21

populations of such people and of minorities, providing for the equality in treatment and in
opportunity for collective activity.13 In 1945, with the establishment of the United Nations and
the framing of their charter, the world experienced the first instance of the international
organization outlining its intentions for the inter-linkage of international law and human rights,
entrenching the notion within the international law framework.14 It also led to the creation of the
Economic and Social Council15, which was empowered by Article 62(2) to issue
recommendations for the propagation of respect and observance of human rights and
fundamental freedoms.16

Nevertheless, it must be stressed that the UN Charter did not establish a system of human rights
protection, nor indeed did it say in 1945 that human rights belonged to the realm of international
law. All that the Charter did was emphasize the world’s faith in human rights, regardless of race
and creed, and canvass for the promotion and encouragement of ‘respect for human rights and
for fundamental freedoms for all without distinction as to race, sex, language, or religion.17

INTERNATIONAL LAW INSTITUTIONS & INSTRUMENTS ON HUMAN RIGHTS

During the twentieth century, as the movement for an international human rights framework after
the two World Wars gained momentum18, stakeholders began to realize that there was no such
thing as a recognized human right in international common law at that point of time19, and that
the idea of affording international protection of certain human rights and freedoms could only be
realized within the framework of treaty provisions establishing the rights to be placed under
international protection, defining their content, limitations and prohibition.20 However, with this
lacuna within the international law framework having been recognized, the UN made

13 Nele Matz, Civilization and the Mandates System under the League of Nations as Origin of Trusteeship, (2005) 9
MAX PLANCK YEARBOOK OF UNITED NATIONS LAW 47-95<available at:
https://www.mpil.de/files/pdf2/mpunyb_matz_9_47_95.pdf>
14 Theodor Meron, HUMAN RIGHTS IN INTERNATIONAL LAW (Oxford University Press, 1986)
15 Article 61, United Nations Charter
16 Article 62(2), the United Nations Charter
17 Article 1(3), United Nations Charter
18 Dunward Sandifer, The International Protection of Human Rights: The United Nations System, (1949) 43 AJIL 59
19 Moses Moskowitz, Is the UN’s Bill of Human Rights Dangerous? (1949) ABA J 358
20 Mirna Adjami and Julia Harrington, The Scope and Content of Article 15 of the Universal Declaration of Human
Rights, (2008) 27(3) Ref. S. Quarterly, 93-109

commendable efforts to promulgate such directions that could help steer the development of a
strong international human rights system, passing some key legislations that may be kept in
mind:

1. The 1948 Universal Declaration of Human Rights (UDHR);

The UDHR was adopted by the UN General Assembly on 10 December 1948 by Resolution
217A (III), with forty-eight States in favour and eight abstaining. The UDHR is a non-binding
instrument in international law and is not a treaty. It is a General Assembly recommendation to
member States, which possesses moral and political influence over the signatories rather than
any legally enforceable provisions. The UDHR falls into the class of legal instruments called
‘soft law’: they are ‘laws’ because they contain regulations and rules, but they are ‘soft’ because
they are not enforceable against signatories.21 However, it is generally believed that most ‘soft
law’ emerging from the General Assembly has a tendency to ripen into hardcore legal
obligations in the future22, given the huge number of States that usually accept them and the
pervasiveness of State practice in that respect.23

The UDHR is wide in scope, covering rights, freedoms, and duties, and the instrument
incorporates almost all of the areas understood as falling under the ambit of human rights at the
time. The principle of universality and indivisibility is an important element of the UDHR, and is
visible throughout the document.24 Despite the non-binding nature of the UDHR, it is often cited
as an authority, and the provisions included have been incorporated into other treaties and legally
binding instruments. Two of the most prominent resulting treaties are the ICCPR and the
ICESCR, adopted in 1966 by UN General Assembly Resolution 2200A (XXI).25

21 Lauterpacht, The Universal Declaration of Human Rights, (1948) 25 BYBIL 354
22 Ibid
23 Henry Steiner, Securing Human Rights: The First Half-Century of the Universal Declaration, and Beyond (1998)
(1998 Sept-Oct Issue), Harvard Magazine, 45
24 Leila Nasr, Are Human Rights Really ‘Universal, Inalienable, and Indivisible?, LSE Human Rights Blog
<available at: https://blogs.lse.ac.uk/humanrights/2016/09/14/are-human-rights-really-universal-inalienable-and-
indivisible/>
25 Manisuli Ssenyonjo, The Influence of the International Covenant on Economic, Social and Cultural Rights in
Africa, (2017) 64 Ned. I. L. Rev., 259 <available at: https://link.springer.com/article/10.1007/s40802-017-0091-4>

Content of the UDHR

The general explanation of human rights states that civil, political and social rights belong to
human beings in order to preserve one’s dignity. The thirty articles of the Universal Declaration
of Human Rights guarantees protection of the person, of procedural law (claim of effective legal
remedy), classical freedom rights such as freedom of expression, as well as economical, social
and cultural rights. These rights should apply to all people irrespectively of their race, gender and
nationality, as all people are born free and equal.

The general explanation of human rights is not a legally binding document, however it has a
political and moral importance and many of its guarantees have today become standard
expectations.

2. The 1966 International Covenant on Civil and Political Rights (ICCPR);

The ICCPR entered into force on 23 March 1976, following the thirty-fifth instrument of
ratification, as required by Article 49. It is a legally binding instrument creating obligations for
its signatories. It establishes a treaty body under Article 28—the Human Rights Committee
(discussed in section 19.3.4).26 The ICCPR provisions are similar to those of the UDHR, but the
former contains greater expansion and attempts at clarification.27 Furthermore, there have been
two Optional Protocols to the ICCPR. The First Optional Protocol (adopted in 1966 and entered
into force on 23 March 1976) covers procedural matters, while the Second Optional Protocol
(adopted in 1989) is aimed at abolishing the death penalty.28

The ICCPR generally covers individual rights as opposed to group rights.29 In other words, a
person cannot bring a claim of violation of a group right, such as that environmental pollution
affects all people in an area. Actions deriving from such claims are generally referred to as actio

26 The United Nations Human Rights Treaty System: An Introduction to the Core Human Rights Treaties and the
Treaty Bodies, Office of the UN High Commissioner for Human Rights <available at:
https://www.ohchr.org/Documents/Publications/FactSheet30en.pdf>
27 Ibid
28 Federica D’Alessandra, The Accountability Turn in Third Wave Human Rights Fact-Finding (2017) 33(84) UJIEL
59-76 <available at: https://www.utrechtjournal.org/articles/10.5334/ujiel.369/>
29 Russel L Barsh, The Evolving Conceptions of Group Rights in International Law (1987) 13 Transnational
Perspectives 1

popularis. The few exceptions to this are the right to self-determination contained in Article 1
and the Article 27 provision on survival of cultures.30

1. Unlike the UDHR, the ICCPR provides for a remedial structure under Article 2.

The provision calls for rights to be recognized, an effective remedy to be made

available, legislation adopted, or any other measures to ensure this, as well as
requiring the enforcement of remedies by the competent authorities.31 This is

possible only due to the binding nature of the The Human Rights Council (HRC)

as distinct from the UDHR.32 It also allocates specific exemptions under which the State can

derogate from their obligation under the treaty, outlining events of officially proclaimed public
emergency that threaten the life of the nation.33 There are additional derogations from Article 18

(the right to freedom of thought, conscience and religion) and Article 19 (the right to hold

opinions without interference) when such derogations are prescribed by law and are necessitated
for the protection of public order, safety, health or morals.34 Another two exceptions are carved

out through Articles 21 and 22 (relating to right to peaceful assembly and the right to freedom of

association respectively), wherein the derogations must be deemed to be necessary in a
democratic society.35

2. The Human Rights Council (HRC)

The Human Rights Committee, established by the ICCPR’s Article 28, shoulders the
responsibility of the monitoring of UN Member-States’ compliance with the ICCPR under

Article 40(1) by requiring a report every five years, outlining the measures that they have

30 Russel L Barsh, Indigenous Peoples: An Emerging Object of International Law (1986) 80 AJIL 369
31 Anja Seibert-Fohr, Domestic Implementaion of the International Covenant on Civil and Political Rights Pursuant
to its Article 2 Para 2, (2001) Max Planck Yearbook of United Nations Law Vol. 5, at 399-472 <available at:
https://www.mpil.de/files/pdf1/mpunyb_seibert_fohr_5.pdf>
32 What is the Right to an Effective Remedy, Icelandic Human Rights Centre <available at:
http://www.humanrights.is/en/human-rights-education-project/comparative-analysis-of-selected-case-law-achpr-
iachr-echr-hrc/the-rights-to-due-process/what-is-the-right-to-an-effective-remedy>
33 Article 4(1), United Nations Charter
34 Dalia Vitkauskaite-Meurice, The Scope and Limits of the Freedom of Religion in International Human Rights
Law, Project on the Limitations to the Freedom of Religion in Democratic Society <available at:
https://www.mruni.eu/upload/iblock/307/3_Vitkauskaite-1.pdf>
35 Devin Carpenter, So Made That I Cannot Believe; The ICCPR and the Protection of Non-Religious Expression in
Predominantly Religious Countries, (2017) 18 CJIL 216 <available at:
https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?referer=https://www.google.co.in/&httpsredir=1&article=
1723&context=cjil>

adopted to give effect to the rights recognized under the ICCPR and the fruitful usage of such
rights. These State Reports are sent to the UN Secretary General who in turn is mandated to
make them available to the HRC, resulting in a consultation between the Security General and
the HRC. Such reports can occasionally also be made available to other specialized international
institutions if there is any inter-linkage with their respective competencies. The HRC is also
tasked with issuing non-binding guidelines in connection with said reports.

The lack of specificity on the HR Committee powers in relation to reports has also been
criticized by international law scholars often, focusing on the indication in the language of
Article 40 of the ICCPR towards the fact that those who drafted this provision did not wish to
spell out very clearly what powers the Committee had in dealing with State reports.36

Under article 41 of the Covenant, states parties may recognize the competence of the Committee
to hear inter-state complaints. Both the complainant and the object state must have made such
declarations. The Committee will seek to resolve the issue and, if it is not successful, it may
under article 42 appoint, with the consent of the parties, an ad hoc Conciliation Commission.37

Under the First Optional Protocol to the ICCPR, adopted 16 December 1966 and entered into
force on 23 March 1976, the HR Committee can hear individual petitions once domestic
remedies have been exhausted38. The complaint may also not be currently under examination by
another international procedure.39

A weakness of the procedure is the lack of any legally binding decision taken by the HR
Committee. Furthermore, the Protocol permits denunciation under Article 12, as has been the
case in relation to Jamaica, and Trinidad and Tobago. However, where the HR Committee
considers a matter and comes up with its concluding observations, the findings must be viewed
as authoritative pronouncements on whether a particular state has complied with its obligations
under the Covenant. The HR Committee does not have the power to undertake independent fact-
finding missions and relies on State parties to respond in full. The HR Committee can, pursuant

36 Thomas Buergenthal, The UN Human Rights Committee (2001) 5 Max Planck Yearbook of United Nations Law
341
37 Scott Leckie, The Inter-State Complaint Procedure in International Human Rights Law: Hopeful Prospects or
Wishful Thinking, (1988) 10 Hum. Rts. Q., 249-303
38 Article 2, Optional Protocol I to the ICCPR
39 Article 5, Optional Protocol I to the ICCPR

to Article 40(4), give general comments ‘as it may consider appropriate’. To date, the Committee
has issued thirty-four general comments of a non-binding nature, covering numerous areas of
ICCPR rights, internal procedures, and interpretational guidance.40

Another power of the HR Committee is to impose interim measures under Rule 92 of the
Committee’s Rules of Procedure, where it considers that such measures are ‘desirable to avoid
irreparable damage to the victim of the alleged violation’. The HRC has used this power in
certain cases41, but it should be noted that such measures do ‘not imply a determination of the
merits of the communication, and the HRC suffers from using docile language even in the face
of severe violations and transgressions, which does not bode well for future promotion of human
rights.42

3. The 1966 International Covenant on Economic, Social and Cultural Rights
(ICESCR);

Adopted by UN General Assembly Resolution 2200A(XXI) on 16 December 1966 and entered
into force in 1976, the ICESCR is considered to be, in theory, as important as the ICCPR. Yet, in
practice, there are significant differences between the two instruments. The advent of the Cold
War, and the increase in the understanding of economic and social rights, led to extensive debate
in this area. For example, there has been controversy between communist and Western States,
and between developed and the developing countries, as to whether there should have been two
separate covenants. Underlining this controversy is often the difference in the perceptions among
developed and developing countries of the importance of the different rights embodied by the
two covenants. While most developed Western nations believe that the rights contained in the
two covenants are equally important, many developing States view economic and social rights as
a luxury that they cannot afford.

The Economic, Social and Cultural Rights (ESCR) Committee is a body established by the
ICESCR, through a 1985 resolution of the Economic and Social Council, as a result of the failure
of previous monitoring measures. The State parties are to submit reports to the ESCR

40 L Boisson de Chazournes and V Gowlland-Debbas (eds), THE INTERNATIONAL LEGAL SYSTEM IN QUEST OF
EQUITY AND UNIVERSALITY: LIBER AMICORUM GEORGES ABI-SAAB (Martinus Nijhoff, 201) at 763
41 Piandion v Philippines, CCPR/C/70/D/869/1999 (2000), UN HR Committee
42 Ibid

Committee, which in turn can submit a report, or part of a report, to the HRC for general
recommendations (Article 19 ICESCR).
A point of interest in the ICESCR is its ability to look beyond the State’s capability to provide
the conditions necessary for enjoyment of the rights contained therein. Pursuant to Article 2,
every State party is to: “take steps, individually and through international assistance and co-
operation, especially economic and technical, to the maximum of its available resources, with a
view to achieving progressively the full realization of the rights recognized by all appropriate
means, including particularly the adoption of legislative measures.”

Economic and social rights are commonly understood in terms of welfare rights. This leads to
conflicting views amongst States as to their obligations and the ability of individuals to enforce
these rights, as opposed to civil and political rights, which are arguably easier to ensure.43

The limits of judicial enforcement mechanisms to address ICESCR rights and the ability of
States to deliver these rights have to be taken into account. Where these are ignored, it will
impact negatively on the ability to ensure that any forms of ICESCR rights are upheld. The
wealth that a State possesses, in theory at least, will impact on its ability to deliver on its
obligations.44

4. The 1966 International Convention on the Elimination of Racial Discrimination
(ICERD);

The ICERD is a treaty, adopted in 1965 by the United Nations General Assembly. The ICERD
was adopted in response to growing racial discrimination in the 1960s. Parties to the ICERD
‘condemn racial discrimination’ and commit ‘to the elimination of racial discrimination in all its
forms.’ States promise to guarantee the right of everyone, without distinction as to race, colour,
or national or ethnic origin, to equality before the law.

43 Aryeh Neier, Social and Economic Rights: A Critique (2006) 13 HR Brief 2
44 Ellen Wiles, Aspirational Principles or Enforceable Rights? The Future for Socio-Economic Rights in National
Law, (2006) 22 AM. UNIV. INTL. L. REV. at 35-65

Under Part II of the Convention on the Elimination of All Forms of Racial Discrimination, 1966,
a Committee of eighteen experts was established consisting of persons serving in their personal
capacity and elected by the states parties to the Convention.45

States parties undertook to submit reports every two years regarding measures adopted to give
effect to the provisions of the Convention to the Committee, which itself would report annually
through the UN Secretary-General to the General Assembly. The Committee may make
suggestions and general recommendations based on the examination of the reports and
information received from the states parties, which are reported to the General Assembly
together with any comments from state parties. The Committee is also able to operate early
warning measures and urgent procedures. Early warning measures are directed at preventing
existing problems from escalating into conflicts, while urgent procedures are to respond to
problems requiring immediate attention to prevent or limit the scale or number of serious
violations of the Convention. Decisions, statements or resolutions may be adopted. Such action
has been taken in relation to more than twenty states parties. The Committee has, for example,
conducted two field visits in connection with the procedure and has drawn the attention of the
Secretary-General, the Security Council or other relevant bodies to issues in relation to six state
parties.46 The Committee has also established a procedure to deal with states whose reports are
most overdue. Under this procedure, the Committee proceeds to examine the situation in the state
party concerned on the basis of the last report submitted.47

Under article 11, one state party may bring a complaint against another state party and the
Committee will seek to resolve the complaint. Should the matter not be so settled, either party
may refer it back to the Committee and by article 12 an ad hoc Conciliation Commission may be
established, which will report back to the Committee with any recommendation thought proper
for the amicable solution of the dispute.48 In addition to hearing states’ reports and inter-state
complaints, the Committee may also hear individual petitions under the article 14 procedures.
This, however, is subject to the state complained of having made a declaration recognizing the
competence of the Committee to receive and consider such communications. If such a

45 Frank C Newman, International Control of Racial Discrimination. (1968) 56(6) CAL. LAW REV. 1559-1611
46 Malcolm Shaw, INTERNATIONAL LAW (6th edn, Cambridge University Press, 2008) 312
47 Olivier De Schutter, INTERNATIONAL HUMAN RIGHTS LAW (Cambridge University Press, 2010) at 615
48 K. J. Partsch, The Committee on the Elimination of Racial Discrimination, in P Alston, UNITED NATIONS AND
HUMAN RIGHTS at p. 339

declaration has not been notified by a state, therefore, the Committee has no authority to hear a
petition against the state.49 Under this procedure, consideration of communications is
confidential and a five-person working group making recommendations to the full Committee
may assist the Committee. The Committee began hearing individual communications in 1984
and a number of important cases have now been completed.50

5. The 1979 Convention on the Elimination of All Forms of Discrimination against
Women (CEDAW);

On 18 December 1979, the Convention on the Elimination of All Forms of Discrimination
against Women was adopted by the United Nations General Assembly. It entered into force as an
international treaty on 3 September 1981 after the twentieth country had ratified it. By the tenth
anniversary of the Convention in 1989, almost one hundred nations have agreed to be bound by
its provisions.

CEDAW focuses on tackling discrimination against women and improving their equality with
men, while being attentive to women’s particular experiences that needed to be addressed.51
CEDAW also holds the rather unique distinction of having the highest number of reservations
among all human rights conventions, which is not surprising considering the different attitudes
among the States and society towards women worldwide.52 In its preamble, the Convention
explicitly acknowledges that "extensive discrimination against women continues to exist", and
emphasizes that such discrimination "violates the principles of equality of rights and respect for
human dignity".

Article 17 of CEDAW establishes a monitoring committee, called the CEDAW Committee,
which is extremely active in all its undertakings and responsibilities. The concept of
‘discrimination against women’ is defined thoroughly in Article 1 of the Convention – “shall
mean any distinction, exclusion or restriction made on the basis of sex which has the effect or

49 Olivier De Schutter, INTERNATIONAL HUMAN RIGHTS LAW (Cambridge University Press, 2010) at 622
50 K Vasak and P Alston (eds), THE INTERNATIONAL DIMENSION OF HUMAN RIGHTS (1982) at p. 345
51 United Nations Development Fund For Women (UNIFEM), Advancing Gender Equality Using CEDAW and UN
Security Council Resolution 1325 – A Training Module for Gender Equality Advocates, <available at:
https://www.un.org/ruleoflaw/files/AdvancingGenderEqualityManual_eng.pdf>
52 Marijke De Pauw, Women’s Rights: From Bad to Worse? Assessing the Evolution of Incompatible Reservations to
the CEDAW Convention, (2013) 29 MERKOURIOS – UTRECHT J OF INTL. & EUR. LAW 51-65 <available at:
https://utrechtjournal.org/articles/10.5334/ujiel.bw/galley/49/download/>

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 field.”53 –

which through its language encompasses a wide range of discriminatory acts, including both

direct and indirect, deliberate and unintended discrimination within its ambit. This extensive
nature of the definition is probably one of the strongest contributions of CEDAW.54

CEDAW applies to more than only the public sphere of women’s lives. Article 2(e) calls for
discrimination by ‘any person, organization or enterprise’ to be eliminated, while Article 2(f)
calls for ‘all appropriate measures, including legislation, to modify or abolish existing laws,
regulations, customs and practices’ that discriminate.55 Articles 3, 5, and 6 are further examples
of the varied forms and areas of discrimination that CEDAW attempts to address.56 The

comprehensive nature of the CEDAW provisions has been acknowledged by the CEDAW

Committee, noting that discrimination under the Convention is not restricted to action by or on
behalf of Governments by virtue of Articles 2(e), 2(f) and 5.57 It also went on to state that ‘under

general international law and specific human rights covenants, States may also be responsible

for private acts if they fail to act with due diligence to prevent violations of rights or to
investigate and punish acts of violence, and for providing compensation.’58

CEDAW advocates non-identical treatment between the sexes when it is aimed at addressing

situations in which women are disadvantaged. Yet there is a clear distinction between temporary

and permanent measures that are used to achieve this aim. Article 4(1) covers temporary

provisions, provided that they do not continue unequal treatment or promote separate standards,

53 Article 1, The Convention on the Elimination of All Forms of Discrimination Against Women 1979
54 United Nations Children’s Fund (UNICEF) and United Nations Population Fund (UNFPA), CERC AND CEDAW:
MAKING THE CONNECTIONS BETWEEN WOMEN’S AND CHILDREN’S RIGHTS <available at:
https://www.unicef.org/gender/files/CRC_and_CEDAW_Facilitators_Guide-small.pdf>
55 Office of the UN High Commissioner for Human Rights, Individual Report on the United Nations Convention on
the Elimination of All Forms of Discrimination Against Women Report No. 4 <available at: https://www.business-
humanrights.org/sites/default/files/media/bhr/files/Ruggie-report-CEDAW-Sep-2007.pdf>
56 Loveday Hodson, Women’s Rights and the Periphery: CEDAW’s Optional Protocol, (2014) 25(2) EJIL 561-578
<available at: https://academic.oup.com/ejil/article/25/2/561/406212>
57 Committee on the Elimination of Discriminating Against Women, General Recommendation 19: Violence against
women (Eleventh Session, 1992), U.N. Doc. A/47/38 at 1 (1993), reprinted in COMPILATION OF GENERAL
COMMENTS AND GENERAL RECOMMENDATIONS ADOPTED BY HUMAN RIGHTS TREATY BODIES, U.N. Doc.
HRI/GEN/1/Rev. 9 [Vol. II] 243, at 331 (2008) <available at: http://hrlibrary.umn.edu/gencomm/generl19.htm>
58 Ibid

and should be discontinued once their aim has been achieved.59 CEDAW specifically addresses
this in terms of education under Article 10. Furthermore, CEDAW attempts to address the social,
religious, and cultural traditions that discriminate against women. Article 5(a) puts the obligation
on the State to attempt to eliminate prejudices and ‘practices which are based on the idea of
inferiority or the superiority of either of the sexes or on stereotyped roles’60. Article 15(3) further
bolsters the framework created to root out discrimination against women, obligating its State
parties to agree that all contracts and private instruments with legal effect that are directed at
restricting the legal capacity of women should be deemed null and void.

As with any Convention, despite the major advancement that CEDAW spurred with respect to
women’s rights, it does come with its own shortcomings in a few areas, indicating certain points
of weakness. For instance, CEDAW’s approach of comparing women with men neglects a whole
category of rights that women require that do not necessarily concern men, such as reproductive
rights.61 Another shortcoming is the absence of a reference to violence against women. It must be
noted, however, that the CEDAW Committee, in its General Recommendation 19, does include
violence against women and considers gender-based violence a form of discrimination, stating
that “the Convention in Article 1 defines discrimination against women. The definition of
discrimination includes gender-based violence, that is, violence that is directed against a woman
because she is a woman or that affects women disproportionately. It includes acts that inflict
physical, mental or sexual harm or suffering, threats of such acts, coercion and other
deprivations of liberty. Gender-based violence may breach specific provisions of the Convention,
regardless of whether those provisions expressly mention violence.”62 Secondly, CEDAW
approaches family life from the perspective of heterosexual marriage. This automatically
excludes non-married heterosexual women, as well as homosexual women. However, given the
very divergent views of States on homosexuality, this provision may have been a compromise in
order to ensure that States ratified CEDAW. The CEDAW Committee, however, addressed this

59 Olivier De Schutter, INTERNATIONAL HUMAN RIGHTS LAW (Cambridge University Press, 2010) at 599
60 Sally Engle Merry, Constructing a Global Law – Violence against Women and the Human Rights System, (2003)
28 (4) LAW & SOC. ENQUIRY 941-977; Simone Cusack and Rebecca J Cook, GENDER STEREOTYPING:
TRANSNATIONAL LEGAL PERSPECTIVES (University of Pennsylvania Press, 2010)
61 Manjula Narasimhan, Mona Loutfy, Rajat Khosla and Marlene Bras, Sexual and Reproductive Health and Human
Rights of Women living with HIV, (2015) 18 J. INT. AIDS SOC. 834
62 Committee on the Elimination of Discriminating Against Women, General Recommendation 19: Violence against
women (Eleventh Session, 1992), U.N. Doc. A/47/38 at 1 (1993) ¶¶1, 6

issue indirectly in one of its General Recommendations, with its referral to ‘spouse or partner’.63

Furthermore, CEDAW treats women as one homogenous group, failing to recognize that

different groups of women experience different forms of discrimination. Once again, it has been

the CEDAW Committee that has expanded the concept through its distinction between rural and
urban women, as well as interpreting ‘rural’ to include issues such as age, ethnicity, and caste,

persevering to highlight the special attention needed for vulnerable and disadvantaged groups of
women in terms of health.64

6. The 1984 Convention Against Torture and Other Cruel, Inhuman and Degrading

Treatment (CAT);

The Convention Against Torture, or CAT as it is commonly called, was adopted by the General
Assembly of the United Nations on 10 December 1984 (resolution 39/46). The Convention entered
into force on 26 June 1987 after it had been ratified by 20 States. Although it was not the first

international attempt at addressing the issue of torture, it is by far the most comprehensive. For
example, although the term is mentioned in the UDHR and the ICCPR, no definition of ‘torture’
is given in either instrument.65 As a general principle, the prohibition of torture is contained in a
wide variety of human rights66 and humanitarian law treaties67, and has become part of
customary international law. Indeed, it is now established as a norm of jus cogens.68

The Convention defines torture in the first Article, outlining it as “any act 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 pain or

63 Committee on the Elimination of Discriminating Against Women, General Recommendation 21 in COMPILATION
OF GENERAL COMMENTS AND GENERAL RECOMMENDATIONS ADOPTED BY HUMAN RIGHTS TREATY BODIES, U.N.
Doc. HRI/GEN/1/Rev. 9 [Vol. II] 243, at 337 (2008) ¶22
64 Committee on the Elimination of Discriminating Against Women, General Recommendation 24 in COMPILATION
OF GENERAL COMMENTS AND GENERAL RECOMMENDATIONS ADOPTED BY HUMAN RIGHTS TREATY BODIES, U.N.
Doc. HRI/GEN/1/Rev. 9 [Vol. II] 243, at 358 (2008) ¶6
65 M Nowak and E McArthur, THE UN CONVENTION AGAINST TORTURE: A COMMENTARY (Oxford University
Press, 2008); N Rodley, THE TREATMENT OF PRISONERS UNDER INTERNATIONAL LAW (Oxford University Press,
1999); Theodor Meron, HUMAN RIGHTS IN INTERNATIONAL LAW (Oxford University Press, 1986)
66 Article 5 of the Universal Declaration, Article 7 of the International Covenant on the Civil and Political Rights
67 Geneva Conventions of 1949 and the Additional Protocols; For more, see the module on International
Humanitarian Law for a more comprehensive understanding of the subject.
68 Furundzija case, International Criminal Court, 121 ILR at 213; Ex parte Pinochet (No. 3) [2000] 119 ILR, p 135

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.”69 It also established the Committee
Against Torture pursuant to Part II of the Convention. On a brief perusal of the definitional
clause, one notices that acts committed by an individual, unconnected to any public capacity,
would not fall under the scope of the Convention.70

The states parties to the Convention are under duties inter alia to take measures to prevent such
activities in territories under their jurisdiction71, not to return a person to a country where he may
be subjected to torture72, to make torture a criminal offence and establish jurisdiction over it73, to
prosecute or extradite persons charged with torture74 and to provide a remedy for persons
tortured75. The UN HR Committee has adjudicated on cases of possible torture occurring as a
result of extradition, and have consequently held that such extradition would violate CAT.76
Additionally, it has also ruled on cases of death penalty, holding that gas asphyxiation as a means
of execution is cruel and inhuman treatment as it fails to meet the test of ‘least possible physical
and mental suffering’.77

The Committee functions in a variety of roles, receiving state reports78 and having the power to
invite a state for its cooperation in the event that it uncovers reliable evidence to suggest the
systemic practice of torture in the territory of the said state. Pursuant to this, it has the power to
delegate such a task to one of its members, who then proceeds by examining the evidence and
conducting a confidential inquiry about the alleged perpetration through Article 20.79 It also
possesses inter-state complaint competence and the ability to hear individual communications as

69 Article 1, Convention Against Torture and Other Cruel, Degrading and Inhumane Treatment 1984
70 A Boulesbaa, THE UN CONVENTION ON TORTURE AND PROSPECTS FOR ENFORCEMENT (The Hague, 1999) at 755
71 Article 2, Convention Against Torture and Other Cruel, Degrading and Inhumane Treatment 1984
72 Article 3, Convention Against Torture and Other Cruel, Degrading and Inhumane Treatment 1984
73 Articles 4 and 5, Convention Against Torture and Other Cruel, Degrading and Inhumane Treatment 1984
74 Article 7, Convention Against Torture and Other Cruel, Degrading and Inhumane Treatment 1984
75 Article 14, Convention Against Torture and Other Cruel, Degrading and Inhumane Treatment 1984
76 Mutombo v Switzerland, Communication No. 13/1993, UN Doc. A/49/44/1994; Khan v Canada, Communication
No. 15/1994, UN Doc. A/50/44/1994
77 Charles Chitat Ng v Canada, UN Doc. CCPR/C/49/D/469/1991 (1994)
78 Article 19, Convention Against Torture and Other Cruel, Degrading and Inhumane Treatment 1984
79 David Weissbrodt, Joan Fitzpatrick and Frank Newman, INTERNATIONAL HUMAN RIGHTS: LAW, POLICY AND
PROCESS (LexisNexis, 2009) 39

per Articles 21 and 22 of the Convention.80 The Committee Against Torture’s general comments
are authoritative in their interpretation of CAT provisions.81

An Optional Protocol to the Convention to enable the Committee through a new Subcommittee
on Prevention to conduct regular visits to places of detention and make recommendations to
states parties was adopted by the General Assembly in December 2002 and came into force in
2006. Under the Protocol, states parties must establish a ‘national preventive mechanism’ for the
prevention of torture at the domestic level. Visits by the Subcommittee and the national
preventive mechanism to any place under the state party’s jurisdiction and control where persons
are, or may be, deprived of their liberty must be permitted by the state concerned.82

7. The 1989 Convention on the Rights of the Child (CRC).

The CRC covers civil and political, as well as economic, social, and cultural, rights—the first
binding international instrument to do so. The vulnerability of children is recognized worldwide
and the CRC attempts to address many of the issues that could negatively affect children. All
children under the age of 18 are covered by this Convention.83

The CRC focuses on the concept of the child’s best interests as a deciding factor (Article 3), yet
it has also recognized the child’s ability to participate, through the notion of ‘evolving capacities’
(Article 5). The CRC aims to protect children from such harms as discrimination (Article 2), to
ensure their right to a family life (Articles 9 and 10), and to prevent the trafficking of children
and their sexual exploitation (Articles 11 and 34, respectively). These protections have been
extended, with the Optional Protocol on the Involvement of Children in Armed Conflict, which
primarily addresses the issue of child soldiers and child participation in hostilities. The CRC
provides for the basic needs of children, noting that it is a State’s obligation to ensure the
‘survival and development of the child’ (Article 6).84 The provision of health care for children is
addressed by Article 24, which extends to pre-natal, as well as post-natal, care, highlighting the

80 David Weissbrodt, Joan Fitzpatrick and Frank Newman, INTERNATIONAL HUMAN RIGHTS: LAW, POLICY AND
PROCESS (LexisNexis, 2009) 36
81 Christopher K Hall, The Duty of States Parties to the Convention against Torture to Provide Procedures
Permitting Victims to Recover Reparations for Torture Committed Abroad, (2007) 18(5) EJIL 921-937 at 933
82 UN General Assembly Resolution No. 57/199; Malcolm Shaw, INTERNATIONAL LAW (6th edn, Cambridge
University Press, 2008) 330
83 Sharan E Brown, International Human Rights to Early Intervention for Infants and Young Children with
Disabilities: Tools for Global Advocacy, (2012) 25 INFANTS YOUNG CHILD 270-285
84 Malcolm Shaw, INTERNATIONAL LAW (6th edn, Cambridge University Press, 2008) 335

importance of child protection and the provision of needs from the earliest possible opportunity.
Special consideration is given to refugee children or those seeking refuge under Article 22 and
those who are mentally or physically disabled, as per Article 23.85

HUMAN RIGHTS AND CONTEMPORARY ISSUES

a. Terrorism

Terrorism, due to its nature, has proved difficult to define, because there is a lack of consensus.86
However, Article 2(1)(b) of the 1999 International Convention for the Suppression of the
Financing of Terrorism defines the term as: “Any other act intended to cause death or serious
bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a
situation of armed conflict, when the purpose of such act, by its nature or context is to intimidate
a population, or to compel a Government or an international organization to do or abstain from
doing any act.”

Following the 11 September 2001 attacks on the USA (the ‘9/11 attacks’), some States have
taken a tougher stance on terrorism, and this has meant that States and NGOs have increased
their focus on issues pertinent to terrorism. The effect of this is that even those who have no
proper understanding of the issues make and implement important decisions, which usually
inevitably affect many of the human rights espoused by domestic and international instruments.

b. Torture

Numerous international treaties address torture and its prohibition, including the UDHR, ICCPR,
and CAT (discussed earlier). There are, however, different interpretations of what acts constitute
‘torture’, as well as cruel, inhuman, or degrading treatment. Some of the regional as well as
domestic courts have addressed claims of torture.87

A pertinent case in this regard is Ireland v United Kingdom, wherein Ireland alleged that the
UK’s detention of Irish Republican Army (IRA) suspects, involving such treatments as wall

85 Rachel Hek, The Experiences and Needs of Refugee and Asylum Seeking Children in the UK: A Literature
Review, National Evaluation of the Children’s Fund <available at: https://dera.ioe.ac.uk/5398/1/RR635.pdf>
86 Nicholas Rostow, Before and After: The Changed UN Response to Terrorism Since September 11th (2002) 35
CORNELL INTL L. J. 475-501
87 CEJIL, TORTURE IN INTERNATIONAL LAW: A GUIDE TO JURISPRUDENCE <available at:
https://www.apt.ch/content/files_res/jurisprudenceguide.pdf>

standing, hooding, and deprivation of sleep and food, infringed Article 3 ECHR as well as
Article 5. Here, the European Court of Human Rights (ECHR) held that although the detention
without trial violated Article 5(1)–(4), it was exempted under the area of public emergency
(Article 15). The Court also held that the acts were not discriminatory under Article 14, but that
the five interrogation techniques amounted to inhuman or degrading treatment, thereby violating
Article 3.88 The above case also distinguishes between torture and the lesser- considered ‘cruel,
inhuman, and degrading treatment’. It is important to highlight that, regardless of whether this is
considered a ‘lesser’ crime, both acts are illegal. However it is pertinent to remember that, torture
is confined to acts of public officials. The ability of a State to condone or sanction the use of
techniques that could be construed as torture or other cruel, inhuman, or degrading treatment has
been targeted.89

It was also adjudicated that neither the government nor the heads of security services possess the
authority to establish directives and bestow authorization regarding the use of liberty infringing
physical means during the interrogation of suspects of hostile terrorist activities, beyond the
general directives which can be inferred from the very concept of an interrogation.90

It is sometimes advocated by States, as in the case of the USA, that during times of armed
conflict human rights laws do not apply—in particular those relating to torture and cruel,
inhumane, and degrading treatment. The idea that the CAT is not applicable in times of armed
conflict was addressed by the Committee against Torture in its Conclusion and
Recommendations of Committee against Torture Relating to Report Submitted by the United
States, wherein they held that human rights laws apply at all times, and are not disqualified
merely by the existence of the lex specialis that is International Humanitarian Law.91

c. Human Rights vis-à-vis Cultural Practices

Human rights are meant to be universal, but this has proved problematic to implement due to
various States and regions claiming that the protection of certain human rights are incompatible

88 Ireland v United Kingdom, Appl. 5310/71 (1978) 2 EHRR 25
89 Ibid
90 David Luban, Julie R. O’Sullivan and David P Stewart, INTERNATIONAL AND TRANSNATIONAL CRIMINAL LAW
(Wolters Kluwer, 2008)
91 Committee against Torture, Conclusion and Recommendations of Committee against Torture Relating to Report
Submitted by the United States (CAT/C/USA/CO/2 dated 25 July 2006)

with their cultures, traditions, or practices. Often, these terms are used indiscriminately and
without clear understanding or consensus as to their meaning.92 This is an inherent conflict, and
treating culture as monolithic fails to respect relevant intra-cultural differences just as the
assumption of the universality of human rights standards fails to respect cross-cultural
difference. Cultural differences that may be relevant to assessing human rights claims are neither
uniform nor static. Rather, they are constantly created, challenged, and renegotiated by
individuals living within inevitably overlapping cultural communities.93 In this regard, the
observations made by Dinah Shelton are of great relevance, and it must be understood that the
fact that a State adopts a particular religion does not mean that it contradicts the freedom of
religion or that it does not permit the practice of other religions.94

While the right to express and practice the religion of choice is espoused by the Convention and
other human rights instruments, it should be noted that there are also restrictions allowed on the
freedom to manifest one’s religion or belief. Indeed, it has come to be accepted that if limitations
are prescribed by law and are necessary to protect public safety, order, health or morals, or the
fundamental rights and freedoms of others. The freedom from coercion to have or to adopt a
religion or belief and the liberty of parents and guardians to ensure religious and moral education
cannot be restricted. In interpreting the scope of permissible limitation clauses. Such limitations
may be applied only for those purposes for which they were prescribed and must be directly
related and proportionate to the specific need on which they are predicated.95

The freedom to express and/or practice one’s religion has, at times, been seen as conflicting with
human rights. Judicial decisions about what is or is not reasonable, as far as religious practices
are concerned, vary and often depend on the individual attitudes of States towards the issue and
various domestic legislations on the subject matter. The ECHR has confronted the issue of dress
and symbolism, and their relation to human rights in Sahin v Turkey.96 Here, the Court had
opined that the interference pursued the legitimate aim of protecting the rights and freedoms of
others, and protecting public order in a secular State. They observed that Article 9 of the ECHR

92 Sally Engle Merry, HUMAN RIGHTS AND GENDER VIOLENCE: TRANSLATING INTERNATIONAL LAW INTO LOCAL
JUSTICE (University of Chicago Press, 2005) at p. 2
93 Tracy Higgins, Anti-Essentialism, Relativism and Human Rights (1996) 19 HARV. WOMEN’S LJ 86 at 89
94 Dinah Shelton and Alexandre Kiss, A Draft Model Law on Freedom of Religion in Johan an der Vyer and J. Witte
Jr (eds), RELIGIOUS HUMAN RIGHTS IN GLOBAL PERSPECTIVE (Martinus Nijhoff, 1996) at 572
95 UN HR Committee General Comment 20 (HRI/GEN/1/Rev.1, 1994) at ¶4
96 Sahin v. Turkey, Appl. 44774/98 (2005) 41 EHRR 8

was not an absolute guarantee of the right to behave in a manner governed by religious belief and
it did not allow those who professed such beliefs to disregard rules that were otherwise
justifiable.97

97 Ibid