1.

PERSPECTIVES AND FOUNDATIONS

a. What are Human Rights?
i. This is unlike simple rights as a citizen or member of an
organization.there are certain rights, like these human rights which
transcend national boundaries and give rise to certain obligations.
ii. Thus there is an international component to this as well: universal
entitlement ---> does not depend on nationality, culture, traditions, or
religion.
iii. Rights that humans are entitled to solely by virtue of their humanity.
iv. Rights that are intimately connected to human beings
v. Rights are an entitlementnot a matter of kindness.
1. If A kills B, normally just a crime. But if A is the government or
the crime is committed because of discrimination, it begins to be
regarded in terms of human rights.
b. History and Antecedents
i. History:
1. 17-18th Century: negative rights characterized by freedom.
Autonomy over authority. Individualistic.
a. Shift from Natural law into Positive Law
th
2. 19 Century: welfare rights; society and the state that represent
society must provide certain things. Affirmative rights.
3. 20th Century: synthesis of both trends. Two branches of rights
civil/ethical rights + economic/social/cultural rights.
a. Absolution of the slave trade and International
Humanitarian Law.
b. Protection of minorities + League of Nations.
c. Following WWII Crimes Against Humanity + UN
Charter
i. Universal Declaration of Human Rights
1. General Assembly resolution, and not
binding. Aspirational statement.
2. International Covenant of Civil and Political
Rights (ICCPR)
3. International Covenant of Social and
Cultural Rights (ICESCR)
a. All 3 are referred to collectively as
the International Bill of Rights
4. Human Rights On The International Plane: Key Dates
a. Roosevelts Four Freedoms Speech 1941
b. Declaration of the UN 1942
c. UN Charter 1945
d. UDHR and Convention on Prevention and Punishment of
the Crime of Genocide 1948
e. Four Geneva Conventions 1949
f. ICCPR and ICESCR opened for signature 1966
g. ICCPR and ICESCR enter into force - 1976

ii. Antecedents:
1. Code of Hammurabi
2. Magna Carta
3. Habeas Corpus Act
4. Bill of Rights
5. French Declaration of the Right of Man and Citizen
6. US Constitution
7. Declaration of Independence
8. Nuremberg Charter
iii. Enlightenment thinkers had a lot to do with this too:
1. Hobbe
2. Locke
3. Montesqiue
4. Rosseau
5. Thomas Jefferson
2. Other Important Documents:
a. Genocide Convention of 1948
b. 4 Geneva Conventions relating to International Law
c. Covenants on Human Rights
d. CERD
e. CEDAW
f. Justifications and Critiques
i. Critiques:
1. Richard Roty no such thing as human rightsbeing Human does
not imply righs.
2. Peter Singer HR is like racism or sexism; this is specieism.
Calling them human rights is a moral flaw by excluding animals.
a. Realist
b. Utilitarian
c. Marxist
d. Particularist (cultural relativist)
e. Feminist
f. Post-Colonial Theoretical Perspectives
g. TWAIL Third World Approaches to International Law
(originated in Harvard but now all over the world)
h. Post-Modernism Critique how its not neutralits all
politics, and pretends to be universal and neutral. Basically
saying all law is politics.
ii. Justifications:
1. Religious v. Non-Religious
2. Prudential v. Objective
3. Sequentialist v. Non-Consequentialist
a. Instrumental v Inherent
b. Consequentialism egalitarianism
4. Equality
5. Dignity

6. Legal Positivists Lawyers --> focus on what law is rather than

what it ought to be.
7. Deontological Theory
8. Modernism objective, neutral, and universal
3. HUMAN RIGHTS AS LEGAL RIGHTS IN INTERNATIONAL LAW
a. Sources and Nature of Obligations
i. Sources
1. Principal Treaties:
a. UN Charter first guarantee of human rights and
fundamental freedoms within a global treaty, albeit in
general and indeterminate language.
b. UDHR non-binding
c. ICCPR
d. ICESCR
i. ^^ These three collectively referred to as
International Bill of Rights. Also most important.
After those came:
e. International Convention on the Elimination of All Forms
of Racial Discrimination (ICERD)
f. CEDAW
g. Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment (UNCAT)
h. International Convention on the Right of the Child (CRC) +
3 optional protocols
i. Children in Armed Conflict
ii. Sale of Children, Child Prostitution and Child
Pornography
iii. Communications Procedure
i. International Convention on the Protection of Rights of
Migrant Workers and Members of their families
j. Convention on Rights of Persons with Disabilities (CRPD)
k. International Convention for the Protection of All Persons
from Enforced Disappearance
2. Many other multilateral treaties that include HR obligations but
dont have such monitoring mechanisms.
a. Prevent Punishment of Crime of Genocide
b. Suppression and Punishment of Crime of Apartheid
c. International Labor Organization
d. UN Educational, Scientific and Cultural Organization
3. Regional institutions have developed their own HR systems
through adoption of treaties that are limited to states within their
region:
a. ECHR
b. ACHR
c. African Charter on Human and Peoples Rights

4. Widespread treaty adherence provides for a degree of uniformity

between states in their understanding of the requirements of
international human rights law (may undermine arguments of
cultural or other specificity)
a. Treaty ratification and accession allow for certainty in
identifying states parties and written texts set out
obligations accepted.
5. Additional Protocols like a new treaty
6. General Comments recommendations on the part of treaty
bodies.
7. Customary International Law
a. ICJ International Court of Justice
b. While treaties are only binding on states that have chosen
to become parties, custom is binding upon ALL states with
limited exceptions.
i. A treaty may codify customary international law or
come to be accepted as customary international law
though.
8. Jus Cogens norm is a peremptory norm of general international
lawaccepted and recognized by the international community of
states as a whole as a norm from which no derogation is permitted
and which can be modified only by a subsequent norm of general
international law having the same character.
a. Essentially means compelling law in Latin. This higher
law may not be violated by any country. For example,
genocide or slave trade may be considered to go against jus
cogens.
i. Typically includes genocide, slavery, murder,
disappearances, prolonged/arbitrary detention, and
systematic discrimination.
9. Interaction at the International and Regional Levels
a. ICJ is the only international Court with jurisdiction over all
questions of international law, which includes issues
relating to human rights.
10. Interaction Between National Courts
a. Most states have adopted IHR standards into their
constitutions and legislations, requiring national courts to
interpret and apply the relevant provisions.
b. Jurisprudence of regional and national courts is
authoritative only within their own legal system, but careful
judicial analysis can be influential in the decision-making
by courts in other regions and stats that are faced with
comparable problems and must apply similar language.
i. Judicial decisions can carry persuasive weight
across national/regional boundaries and it is
becoming commonplace for judges in one

jurisdiction to refer extensively to decision of courts

of foreign jurisdictions when interpreting human
rights guarantees.
11. Human Rights Litigation
a. Now a body of judges (relatively new) and experts in
global and regional institutions who regularly hear cases
involving claims of violations of HR. Complemented by
judges in national courts responsible for the judicial
enforcement of HR.
b. Networks such as International Bar Association.
12. Writings of Jurists these also weigh on opinions as experts and
teachings of the most highly qualified publicists/experts on various
HR issues can help decide a case.
13. Another way in which a non-binding resolution may be understood
as a source of HR law is where it provides an authoritative
interpretation of a treaty. (This approach taken by Inter-American
Court of Human Rights regarding the American Declaration of the
Rights and Duties of Man).
14. Soft Law includes things like HR Council guidelines, codes of
conduct, standards of behavior, etc
ii. Nature of Obligations
1. The special character of human rights obligations. Objective, and
designed to protect the third parties (usually people within the
state) from actions of others (higher other parties), rather than
creating subjective and reciprocal rights for these higher others.
a. Objective and subjective here means whether or not there is
a dependence on other states (respectively).
b. Becoming a party to a HR treaty is declaratory of states
obligations rather than constitutive of them.
2. Implementation of HR Obligations
a. International HR law has thus come up with a complex
concept of how obligations are to be discharged and a new
vocabulary of obligations has emerged. Typically, states
are supposed to respect and ensure rights to all
individuals. However, this is very broad and in practice,
the UN HR treaty bodies have adopted a 3-part typology of
how HR obligations should be secured. States must ___
HR:
i. Respect
1. Dont infringe
2. This duty requires the state to treat persons
equally, to respect their individual dignity
and worth, and hence not interfere with or
impair their declared rights, etc
a. Hands-off Duty ---> negative duty
ii. Protect

1. Protect people against violations by others

2. Responsibility to protect --> international
community has an affirmative obligation to
intervene if a particular government is
unable or unwilling to prevent terrible things
happening.
iii. Fulfill
1. Create institutions and structures, which are
conducive to the health of HR.
2. Refers to bringing about changes in public
consciousness, perception, or understanding
about a given problem or issuewith the
purpose of alleviating the problem.
a. *This plays a vital role in CEDAW*
3. Positive obligation unlike respect (which
is negative in that it is a duty to not actively
violate HR), where you must take
positive/affirmative steps that have as a
consequence the greater enjoyment of rights.
3. Margin of Appreciation
a. Developed by ECHR when considering whether a member
state of the ECHR has breached the convention.
i. MoA doctrine allows the court to take into account
the fact that the Convention will be interpreted
differently in different member states.
ii. Judges are obliged to take into account the cultural,
historic, and philosophical differences between
Strasbourg and the nation in question.
b. Involves an assessment of the degree of consensus (a
minimum common denominator) about a certain practice
across member states.
i. In the absence of such a consensus, and in the
presence of significant divisions, the EC will
hesitate to impose on a minority (let alone a
majority) of states, a particular understanding of
rights.
ii. Important to note that whether there is a MoA for a
particular issue is something that can evolve over
time.
c. According to ECHR MoA doctrine, there is room for
differences between European states.
d. On many rights, ECHR gives States a MoA in limiting
those rights (prescribed by law and are necessary in
democratic society for prevention of certain interests).
i. ECHR always has final say though ---> question is
how wide of a margin.

e.

f.

g.

h.

i.
j.

k.

1. The doctrine has never been theorized in a

sophisticated way ---> introduced usually
when youre in a tight spot.
2. Reflects the role we think ECHR should
play:
a. Constitutional Court: you can appeal
any major issue to the court
b. Something Softer: stricter on core
issues, but otherwise applies MoA
to the state.
Unclear how wide the margin is, but it is wider when it
comes to certain issues (like national security as seen in
Norris).
i. In determining the scope, courts something look at
both 1) nature of the aim of the restriction; and 2)
nature of the activities involved.
Disputes should be left to resolved as close as to where the
facts arose as possible. International bodies should step in
only as a last resort. If the domestic system has any way of
resolving it internally, HRC should not intervene.
Exhaustion of Local Remedies similarly, before you go to
international bodies, should seek to exhaust local remedies
(unless the local remedies are illusory as seen in
Singarasa).
One rationale for MoA is that states and domestic courts
are better suited to assess local peculiarities and that there
is simply too much uncertainty about how HR are to be
implemented in practice for international supervision to
exercise more than relatively minimal control.
i. Issues of legitimacy also arise, as international
bodies might provoke political backlash if they
delve too deeply in matters that are seen as
culturally specific.
MoA reasoning has featured prominently in cases involving
sexual minorities, and place of religion in society.
Consequence/Critique: MoA militates in favor of
conservative international assessment of rights.
i. ECHR has often been less of a pioneer than a safe
endorser of existing trends and development.
ii. Criticized as possibly leading to an excessively
relativistic application of human rights that may
even contain the seeds of the projects dissolution.
1. The HRC, in particular, has expressed
skepticism about the notion.
Justification: In addition to the fact that it allows those
better suited to deal with a problem (the more local, the

better suited in some cases), MoA reinforces the sense of

HR being rooted in a community of reference (which is
also a community of interpretation), dynamic in time, and a
product of a constant interaction between rights and ideas
about society and justice.
l. *The idea of the MoA is not universally accepted beyond
the European context.
4. Reservations defined in Article 2 VCLT as a unilateral
statement, however phrased or named, made by a State, when
signing, ratifying, accepting, approving, or acceding to a Treaty,
whereby it purports to exclude or to modify the legal effect of
certain provisions of the Treaty in their application to the State.
(**Look at Vienna Convention)
a. Aim of reservation is to limit a states obligations under a
particular treaty.
b. International law is not formalistic about what constitutes a
reservation: it doesnt matter whether a state presents it as a
general political statement or a declaration of
interpretation.
i. If the result is exclusion or modification of the legal
effect of certain provisions, it will be considered a
reservation.
c. A typical reservation is one whereby a state purports to
interpret an internationally protected right only in
accordance with its domestic, often constitutional or
religious law.
d. Essentially, its a way in which States may modify their
obligations under IHR treaties (by entering reservations)
e. States may want to enter reservations to HR treaties for a
number of reasons...
i. A state may generally be committed to HR but have
problems with one particular provision, and
therefore want to exclude or limit the application of
that provision in order to be able to become a party
to the treaty.
ii. May also want to inject a certain cultural
understanding of a particular obligation, or guard
against an expansive interpretation by IHR bodies
by preempting the meaning of a particular
provision.
iii. States may know in advance that part of their
domestic law is incompatible with a provision of a
treaty and seek some temporary accommodation.
1. May be encouraged by HR lawyers, if only
to encourage states to ratify treaties.

f. Critique: Problematic for IHR law and maybe even more

so for general international law. (HR supervisory bodies
have frequently deplored the abundance and scope of
reservations, and urged states to repeal themdifferent
from ordinary international treaties where few bodies are
authorized or would see fit to criticize a practice that is
largely seen as within a states prerogativein fact, IHR
law has evolved specific notions of what reservations are
permissible who may decide on their permissibility, and
what consequences flow from reservations).
i. Human rights are clearly more of a package than
most international normative instruments. Tension
between idea of HR and notion that a state may,
through reservations, pick and choose obligations to
which it wishes to be bound or interpret them as it
so wishes, at the risk of emptying some of their
context.
1. It is the very universality of HR and the
whole point of IHR treaties, which is
threatened if states dont agree to honor the
same rights.
2. Also a sense that some states may free
ride HR treaties, by obtaining the benefits
broadly associated with being a party to
them, whilst subscribing only to an
eviscerated set of obligations.
ii. Also create problems of legal certainty, making it
difficult for individuals to ascertain the exact scope
of the rights they have been guaranteed.
iii. **** CUT THIS PART DOWN TAKE FROM
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g. Permissibility: General regime under Article 19 VCLT is
that states may formulate
i. General Comment 24: very existence of this
comment indicates how seriously the UN treaty
monitoring bodies takes the issue (in regards to
reservations to ICCPR).
ii. HRC specifically excludes a number of reservations
which it considers would be incompatible per se
with object and purpose of HR treaties (such as
violating preemptory norms, customary
international law, or non-derogable norms).
1. States may not make reservations relating to
certain basic guarantees associated with
rights protected, such as right to effective
remedy (defined as supportive guarantees,

these provisions are seen to provide the

necessary framework for securing the rights
in the Covenant (ICCPR) and are thus
essential to its object or purpose.)
2. States cannot make reservations to
institutional arrangements designed to
supervise the implementation of treaties.
(Example: a state cannot become a party to
one of the universal HR treaties and make a
reservation to the effect that it does not
consider itself bound by the obligation to
submit periodic reports to its corresponding
supervisory body).
3. Cant have reservations that are too vague or
broad for it to be possible to determine their
exact meaning and scope.
iii. This leaves VERY FEW areas where reservations
might be valid.
h. Responsibility for Assessment: The particular interest that
the international community has in the integrity of HR
treaties necessitates that reservations fall under a strong
system of international supervision.
i. *Reservations do not have to be accepted by all states for a
HR treaty to enter into force.
j. *Under general international law, position is that the
reserving state becomes bound by treaty if at least one other
state accepts the reservationin context of treaties of a
humanitarian or HR character though, ICJ has held that
states can in fact become party to a treaty even if other state
parties object to its reservations.
5. Limitations and Derogations
a. Limitations ---> some treaty provisions explicitly provide
circumstances in which the enjoyment of a right may be
limited
i. Have to be justified by the fact that they are:
1. Prescribed by law
2. Pursue a legitimate aim
3. Necessary in democratic society
b. Derogations ---> states have possibility of derogating from
obligations in a time of emergency justifying exceptional
measures. (**Temporal and Spacial)
i. Permits states to suspend obligations under the
covenant in situation of emergency threatening the
very life of the state.
ii. Discussed in Article 4 ICCPR (refer to other outline
on the Treaties/Articles)

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ALSTONFALL06.DOC OUTLINE
6. Withdrawal Allowed under certain conditions and known as
denunciation
a. Some IHR instruments contain denunciation clauses.
b. Straightforward withdrawal is very rare though.
c. Withdrawal from a HR treaty is likely to be seen as an
admission that a state is up to no good.
i. Only 2 states have availed themselves successfully
of possibility of denouncement of a HR treaty;
Greece (denounced ECHR following a military
coup); and Trinidad and Tobago (denounced both
Optional Protocol to ICCPR and ACHR as a result
of wanting to proceed in execution of death penalty
without oversight of the Inter-American
Commission).
1. In both cases, the denunciation would not
have had retroactive effect and, therefore,
these states could not escape liability for
violations committed prior to withdrawal.
d. For HR treaties that dont explicitly allow for denunciation,
there is a view that denunciation is simply NOT an option.
e. In contrast to normal international law treaties, rights once
recognized (rather than granted) cannot subsequently be
withdrawn. Suggests a stickiness to IHR commitments,
which cannot be undone even when states desire to do so
formally.
4. SCOPE OF OBLIGATIONS AND THE HOHFELDIAN MODEL
a. Scope of Obligations
i. Who Has Human Rights? Generally those within a states JD are
generally recognized as a person with HR under IHR law.
1. Non-Nationals
a. Dont have to be a national of a state in order to be able to
claim HR against that state.
i. Rights of political participation though may
legitimately be restricted to citizens (like voting).
ii. Similarly, non-citizens dont have the same rights to
enter or remain in a state as nationals (though that
doesnt mean that states have absolute right under
IHR to expel them).
1. Due to special vulnerability to deportation,
non-nationals have unique procedural rights
with regard to deportation.
2. The Unborn
a. ACHR says life beginning at conception while ECHR have
found that a fetus is not a person protected by the right to

life, and in any case, its right would not automatically

override the rights and interests of its mother.
i. European HR bodies have found complaints
brought on behalf of a fetus to be inadmissible.
ii. Declined to decide whether the right to respect for
private and family life extends to unborn children.
3. Artificial Entities (Corporations & Associations)
a. Have standing to make claims on their own behalf before
European Court of HR.
b. UN HR treaties generally protect only individual rights.
Though some rights can clearly be enjoyed in conjunction
with other people such as the freedom of association or
minority rights only collective right recognized in global
treaty system is that of self-determination.
c. Corporations and other artificial entities dont have rights
under the UN treaties, though can organization can submit
a complaint under the Convention on Elimination of All
Forms of Racial Discrimination as the representative of a
group of individuals.
i. Inter-American system concerned with rights of
individuals, though complains may be submitted in
respect of those rights by others, such as
corporations or other artificial entities.
d. *Keep in mind that restrictions on rights of corporations
may inevitably impact severely on the rights of a person
such as a director or shareholder such that the person can
bring a claim of abuse of his or her own rights.
ii. For Which Entities is a State Responsible?
1. Private Actors State responsible for private actors if that actor is
acting in a governmental capacity, or under its direction and
control, or where it adopts a persons actions as its own.
a. Such situations might arise when private contractors carry
out governmental functions, for example.
b. Application of HR within private sphere is now well
recognized in IHR law.
i. *General Comment 31
2. International Organizations A state, which is a member of an
international organization, is not per se responsible for the actions
of that organization under IHR law.
3. Other States a state is responsible for its acts which expose a
person to a real risk of violation of their rights by another state
where that breach was reasonably foreseeable at the time of the
relevant act (e.g. deportation when reasonable to believe that
deportation would cause a risk of killing or torture to the person).
iii. Where Do Human Rights Apply?

1. ECHR No territorial limit expressed in Article 1 of ECHR +

extraterritorial application of ECHR in certain circumstances
confirmed in a number of cases.
2. ACHR Article 1(1) ACHR requires states to respect and ensure
the rights to all persons subject to their jurisdiction, so as with
ECHR, no territorial limit expressed.
3. African Charter on Human and Peoples Rights effective control
exercised in an extraterritorial context.
4. ICCPR UN treaties logically unaffected by any legal space
argument, given their global reach.
a. Article 2(1) requires to respect and ensure ICCPR rights to
all individuals within its territories and subject to its
jurisdiction (thus arguably limits responsibility to a states
territoriy).
5. ICESCR Extraterritorial scope of ICESCR is more open to debate
due to current lack of case law under the treaty.
a. Doesnt contain a provision relating to jurisdiction or
territorial scope.
b. Article 2(1) does mention that states must progressively
realize ICESCR rights through steps taken individually and
through international assistance and cooperation ---> seems
to imply that states should at least refrain from actions
which harm those rights abroad, as such measures are
decidedly non-cooperative.
b. A Hohfeldian Perspective
i. Famous for exposing ambiguity in concept of a right and resolving that
ambiguity with a typology of rights that distinguishes between claims,
liberties, authorities, and immunities.
ii. Hohfeld distinguished different types of rights.
1. Claim rights for example create corresponding obligations.
a. Thus my right to exclusive use of my land entails a
corresponding duty of noninterference..you have duty not
to enter upon my land.
2. But property right also entails liberty to use land in a wide variety
of ways (building a house, plant a garden, etc)
a. Correlated to that liberty is a correlative absence of
inconsistent claim rights.
i. You have no right to prevent me from building a
house or planting a garden.
3. Some legal rights involve powers over others (employer has right
to control and direct employee actions at work and parents have
authority over their children)
4. Immunities from authority - when children reach age of majority or
are legal emancipated, they acquire immunities that disable the
authority rights of their parents for example.
iii. Implicit in this discussion is Hohfelds second big idea - which is that each

kind of right (claim liberty authority and immunity) has a correlative legal
consequence for others.
1. Claim rights have correlative legal duties.
2. Liberty rights correlate with an absence of claims.
3. Authority rights correlate with liabilities.
4. Immunities correlate with absence of authority.
c. Four Types of Rights
i. Lists the schema rights and legal consequences. P is party with right, Q is
person or group on whom the right has a legal effect, X is the object of the
right.
1. Claim Rights
a. Rights Relation: P has claim against Q to X.
b. Correlative Relation: Q has a duty to P to X.
2. Liberty Rights
a. Rights Relation: P has a liberty against Q to X.
b. Correlative Relation: Q has no claim against P to not-X.
3. Authority Rights
a. Rights Relation: P has authority over Q to X.
b. Correlative Relation: Q has a liability to P to X.
4. Immunity Rights
a. Rights Relation: P has an immunity against Q to X.
b. Correlative Relation: Q has a disability (no authority)
against P to not-X.
d. Moral and Legal Rights
i. Hohfeld was interested in legal rights, but we can extend his scheme to
moral rights.
ii. If I have a moral claim right to performance of a promise, you have
corresponding moral duty to perform.
iii. Of course many legal rights are identical to (or substantially the same as)
similar moral rights.
1. Contract, for example, create both moral and legal obligation.
2. Some moral rights, however, may not be reflected in the law.
a. Example: I may have moral obligation not to discriminate
on the basis of race when letting someone in my home, but
at the same time have a legal liberty right to engage in such
discrimination.
5. PRINCIPAL SUBSTANTIVE RIGHTS
a. Categories of Rights and the Principle of Equality, and Non-Discrimination
i. Categories of Rights
1. Economic, Social, Cultural Rights/Civil, Political Rights
a. Economic/Social/Cultural include rights to adequate
standard of living, education, and work.
b. Civil/Political include freedoms of thought, expression,
association, and assembly, and the rights to liberty and a
fair trial.

c. Differences seen between ICCPR and ICESCR reflect the

differences in rights.
i. ICESCR Article 2 provides for the progressive
realization of these rights and acknowledges the
constraints due to limits of available resources
ii. ICCPR Article 2 prescribes the obligation to respect
and ensure these rights as an immediate obligation.
iii. Distinguish by contrasting concept of freedom
rights with that of welfare rights or by referring to
duties of the state NOT to intervene as opposed to
duties to take POSITIVE measures. (doesnt apply
across the board though, and no strict dividing line
between these two types of rights)
1. The economic/social/cultural rights are
sometimes seen as aspirations and are
considered much less part of the HR
package.
a. This is changing over time to
become more accepting and pursuant
regarding ensuring these
economic/social/political rights to
individuals in a IHR law context.
2. Rights of Individuals/Rights of Collectives
a. Focus normally is on individuals. Although they may work
together and become a group, it is the individual who is the
beneficiary of the rights.
3. One-Dimensional/Composite Rights
a. More complex in nature (like right to self-determination
and development, and right to peace) than other rights
like to a fair trial, or expression.
i. These arent rights inherent in the human person.
Their realization depends on
political/economic/social, and cultural policies
deployed by national and international organs and
institutions.
1. These rights dont lend themselves to
enforcement by legal authorities.
a. Gross violations of these rights
though may incur state responsibility
as well as civil responsibility of other
major actors, if they amount to
aggression, genocide, or crimes
against humanity, even criminal
responsibility of natural persons.

ii.
iii.

iv.

v.

i. May be tested in political or

judicial settings in case of
their breach or gross denial.
These rights are interrelated and intersected.
Indirect Protection of Economic, Social, and Cultural Rights Through
Civil and Political Rights
1. Invoked civil and political rights ----> protected ECSR
2. Right to life ---> rights to health/food/water/education
3. Freedom from torture/degrading trtment --> right to health/housing
4. Right to property ---> right to social sec/housing/land of indig.ppl
5. Protection of child ---> rights to health/food/education
6. Freedom of mvmnt/residence ---> rght to housing/land of indig.ppl
7. Freedom of assoc. ---> right to form/join trade unions + collec barg
8. Freedom from forced labor ---> right to work/fair conditions
Core Rights
1. Certain HR more important than others.
2. Reflected in ICCPR, ECHR, and ACHR, which suggests certain
set of core rights exist from which no derogation is permitted, not
even during times of emergency. (ICCPR ones listed below)
a. Right to life
b. Prohibition of torture or cruel, inhuman, or degrading
treatment or punishment
c. Prohibition of slavery
d. Prohibition of imprisonment because of inability to fulfill a
contractual obligation
e. Principle of legality in criminal law
f. Recognition of everyone as a person before the law
g. Freedom of though, conscience, and religion
3. With development of international criminal law, there is duty upon
states to carry out effective and prompt investigation and to
prosecute and punish perpetrators, as well as providing effective
remedies to victims, including reparation for harm suffered.
a. Case law makes it clear that when core rights are violated
or at stake, urgent preventive action by way of provisional
or interim measures is called for in order to avoid
irreparable harm to persons.
Equality and Non-Discrimination
1. Difference Between Formal and Substantive Equality
a. In many contexts, formal equality hasnt helped people in
disadvantaged situations.
b. Push towards an adoption of substantive equality which
takes into consideration plurality, difference, disadvantage,
and discrimination.
c. Genuine equality between women and men can only be
achieved if both formal and substantive equality are fully
realized.

d. The focus on equality as consistency (formal) has many

problems:
i. Since it is not concerned with outcome, it doesnt
matter whether two parties are treated equally well
or equally badly. (e.g. OK for a city closing all its
swimming pools rather than open its whites only
pools to black people).
ii. Inconsistent treatment can only be demonstrated if
the complainant can find a comparably situated
person who has been treated more favorably.
1. For a woman in a low paying position
though it may be hard to find a man doing
the same job.
iii. Treating people apparently consistently regardless
of their differing backgrounds may have a disparate
impact on particular groups.
e. Focus should be on equal outcomes or equal benefits.
f. 2 main variants of substantive equality: 1) equality of
opportunity; and 2) equality of results
i. According to 1 ---> true equality can only be
achieved if people are not only treated equally but
also given the same opportunities.
ii. According to 2 ---> equality of results goes further
than this and aims to achieve an equal distribution
of social goods such as education, employment,
healthcare, and political representation. Recognizes
that removing barriers does not guarantee that
disadvantaged groups will in fact be able to take
advantage of available opportunities.
g. These differing conceptions of equality find their reflection
in different forms of regulation.
i. Formal = conceptual basis of the requirement of
equality before the law and prohibition of direct
discrimination
ii. Substantive = prohibition of indirect discrimination.
2. Equality and Non-Discrimination in International Law
a. Foundational significance of equality is reflected in the fact
that it is proclaimed in the very first article of the UDHR --> all human beings are born free and equal in dignity and
rights.
b. Sources:
i. ICCPR
ii. ICESCR
iii. ICERD
iv. CEDAW
v. CRPD

vi. CRC
vii. ICRMW
c. The only international HR treaties without explicit nondiscrimination clauses are:
i. UNCAT
ii. CPED
3. Subordinate v Autonomous Norms
a. Subordinate norms are non-discrimination provisions only
in the enjoyment of rights and freedoms otherwise set forth
in the respective instrument.
b. Autonomous norms guarantee non-discrimination not only
in the context of other rights but in general.
4. Prohibited Grounds of Distinction
a. Obvious ones like gender, race, etcbut grounds such as
membership of a particular group, holding certain beliefs,
and national or social origin are outlawed by most human
rights treaties.
i. What is seen as unacceptable though can change
over time.
1. Discrimination may be
intersectionalbased on a combination of
characteristics that form an individuals
identity rather than a single ground.
b. Equality and non-discrimination norms vary widely in their
approach to defining the prohibited grounds of distinction.
i. A first type of norm provides for a general
guarantee of equality, without specifying any
particular prohibited grounds.
ii. A second category of norms uses a diametrically
opposed approach; these norms contain an
exhaustive list of prohibited grounds.
iii. A third category (middle ground) which contain a
list of prohibited grounds but one that is openended. (e.g. prohibited on any ground such as ____)
1. As a consequence, even distinctions made
on grounds that are not explicitly listed may
engage these provisions.
2. ECHR sometimes does not even find it
necessary to state the particular ground of
distinction involved when considering a case
under Article 14 ECHR.
5. Direct and Indirect Discrimination
a. Direct Discrimination means that a person is treated less
favorably than another in a comparable situation.
i. In other words, when a person on account of one or
more of the prohibited ground, is treated less

favorably than someone else in a comparable

circumstance.
ii. The complaint must show, first, that others have
been treated better because they do not share the
relevant characteristic or status, and second, that
these others are in a comparable, or analogous, or
relevantly similar, situation.
1. In practice, IHR bodies often ten to merge
the comparability test with the test for
whether there is an objective justification for
the difference in treatment.
a. Example of DD: members of a
certain ethnic group are denied
access to a public facility, such as a
swimming pool, which is open to
everyone else. (most of the time
though, it happens covertly in that
the discriminating party will not
admit that the difference in treatment
was based on a prohibited ground,
thus making it difficult for the
complainant to provide sufficient
evidencealso hard to identify a
person in a comparable situation
sometimes).
b. Indirect Discrimination means that an apparently neutral
provision or practice de facto disadvantages one
person/group compared to others.
i. Includes practices or policies that appear to be
neutral or fair but adversely affect a higher
proportion of people of one specific group. It can
occur even when there is no intention to
discriminate.
ii. In other words, occurs when a practice, rule, or
requirement that is outwardly neutral (not based
on one of the prohibited grounds of distinction) has
a disproportionate impact on particular groups
defined by reference to one of these grounds.
1. Thus, although there is no difference in
treatment, due to structural biases, treating
unequals equally lends to unequal results.
6. Discriminatory Intention
a. In some legal systems, such as USA, complainants need to
show a discrimination intention or purpose to establish
discrimination. There is no such requirement under IHR

law; the reason why someone has been treated less

favorably is irrelevant.
b. That both intended and unintended discrimination are
prohibited under IHR law is apparent from the explicit
definitions of discrimination contained in some of the HR
treaties.
i. Indirect discrimination is often equated with
unintended discrimination.
ii. Conversely, normally assumed that where there is
direct discrimination, there is a discriminatory
intention.
1. Although true that these concepts often
correlate, not always the case. (like when
you discriminate to protectwhile neutral
criteria may amount to intended indirect
discrimination).
7. Justified and Unjustified Distinctions (The Justification Test)
a. Once a discriminatory effect is proven, the burden switches
to the State to justify its policy by proving that it is
necessary to achieve a legitimate aim.
i. In cases of racial discrimination, justification must
be interpreted as strictly as possible.
b. Two part test, requiring that any difference in treatment
must:
i. Pursue a legitimate aim
ii. Be proportionate
c. The test is very similar to the test used in the context of
other rights to assess the permissibility of limitations.
d. Has been adopted by most other HR bodies (created by
European Court).
e. First part of the test is not very hard for states to meet --->
most distinctions can be argued to pursue some aim that
qualifies as legitimate (e.g. the protection of public order or
tailoring education system to childrens differing learning
capabilities).
f. Second part is more difficult to satisfy ---> wide range of
factors need to be considered including suitability of
distinction to achieve aim pursued, availability of
alternative means, question of whether disadvantage
suffered by the affected individuals or groups is excessive
in relation to the aim.
i. While this assessment inevitably turns on specific
facts of a case, IHR bodies have been consistent in
their characterization of certain reasons as not
sufficient to justify differential treatment including,
among others:

1. Mere administrative inconvenience

2. Existence of a longstanding tradition
3. Prevailing views in society
4. Stereotypes
5. Convictions of the local population
8. Standard of Review
a. The stringency with which HR courts or bodies review
existence of a justification varies according to a number of
factors.
i. Certain grounds of distinction generally regarded as
inherently suspect and therefore require particularly
strict scrutiny.
ii. Grounds attracting highest degree of attention and
most likely to be declared unjustified are: race,
ethnicity, sex, and religion (all suspect
classifications).
1. Any distinction based on one of the grounds
explicitly listed in Article 26 of the ICCPR
(above) places a heavy burden on State to
explain the reason for the differentiation, but
that does NOT seem to mean that
differential treatment on grounds other than
race, sex, and religion are subject to the
same intense scrutiny.
2. Any distinctions based on nationality,
illegitimacy, and more generally,
membership of any particularly vulnerable
group in society that has suffered
considerable discrimination in the past (like
those with HIV or disabilities) should be
treated as inherently suspect.
iii. These lists are not fixed and can change as
international law on these matters develops
(disability, sexual orientation and age seem to be
heading in the direction of being classified as
suspect).
iv. Apart from ground of distinction, intensity of
review may also depend on other factors (most
courts tend to apply a lenient standard as far as
matters of social or economic policy are concerned
whereas classifications affecting fundamental
individual interests entail particularly strict
scrutiny).
1. Furthermore, generally more difficult for
states to justify direct rather than indirect
discrimination.

a. *Declaration of Principles on
Equality (an important but nonbinding document signed by
numerous HR and equality experts)
states that direct discrimination may
be permitted only very
exceptionally.
9. Evidence and Proof
a. According to established HR jurisprudence, it is up to the
individual complaining of discrimination to establish a
difference in treatment or outcome, the ground of
distinction, and the existence of comparably situated
groups. Having done so, the burden of proof shifts to the
state to show that there is a justification for the distinction.
b. Complainants may find it very difficult to prove that a
neutral measure has a disproportionate impact on particular
groups ---> therefore, ECHR has held that less strict
evidentiary rules should apply in these cases: statistics
which appear on critical examination to be reliable and
significant may be sufficient prima facie evidence of
indirect discrimination.
10. Positive Action
a. As with any other HR, right to equality and nondiscrimination entails state obligations of different types.
i. Obligation to respect requires states to refrain from
any discriminatory action and to ensure that all their
laws and practices comply with the right to nondiscrimination (according to jurisprudence of the
UN treaty bodies, this means that states must
introduce comprehensive legislation prohibiting
discrimination in fields such as employment,
education, healthcare, housing, and the provision of
goods and services.
1. Conclusion supported by various provisions
in the respective HR treaties themselves.
b. An exclusively prohibitory approach is severely limited in
that it focuses on discrimination understood as individual,
isolated events that can be remedied through penalizing the
perpetrators and compensating the victims (even though
discrimination is often the consequence of deeply
embedded patterns of disadvantage and exclusion that can
only be addressed through changes to social and
institutional structures).
i. Accordingly, it is now well established in IHR law
that it is not sufficient for states to have antidiscrimination legislation in placeinstead they

also have an obligation to promote, guarantee, and

secure quality by taking proactive steps to eliminate
structural patterns of disadvantage and to further
social inclusion ---> this obligation is often referred
to as the duty to take positive action, covers a
huge variety of legislative, administrative, and
policy measures, ranging from restructuring of
institutions to the provision of reasonable
accommodation for individuals in particular
circumstances, from educational campaigns to the
use of public procurement to promote equality, and
from the mainstreaming of equality issues in
public policy to encouraging participating of
affected groups in relevant decision-making
processes.
c. Important aspect of positive action = affirmative action
programs (in international law called special measures of
protection) ---> aimed at specifically correcting position of
members of a target group in one or more aspects of their
social life, in order to obtain effective equality.
i. Usually includes preferential treatment of members
of a previously disadvantaged group over others in
the allocation of jobs, university places, and other
benefits (often referred to as positive or reverse
discrimination).
b. Civil and Political Rights: Principal Legal Instrument: ICCPR
c. Integrity of the Person
i. Respect for Human Dignity
1. Respect for human dignity is the one explicit underlying principle
of the International Bill of Human Rights. Invoked in UDHR,
ICESCR, and ICCPR.
2. The prohibition of torture and ill-treatment and the right to life
both have an immediate link to the principle of human dignity.
ii. The Right to Integrity of the Person
1. The prohibition of torture and ill-treatment and the right to life are
at the core of the motion of integrity of the person.
a. Article 5 ACHR, for example, guarantees the right to
human treatment, providing in its first paragraph every
person has the right to have his physical, mental, and moral
integrity respected.
b. The link between the right to humane treatment and
personal integrity is established.
i. Same is true for the link between the right to life
and integrity of the person.
1. Thus, Article 4 ACHPR says the right of
every human being to respect for his life

and the integrity of his person. (Here this

link is essential)
iii. Freedom from Torture and Ill-Treatment
1. UDHR Article 5 discusses this.
2. Verbally inspired by the prohibition of cruel and unusual
punishments in the English and American Bill of Rights
3. The reason for this being introduced was the Nazis use of torture.
a. Related concerns included the use of harmful and painful
medical experiments, such as those conducted by the Dr.
Mengele.
b. Expansive, non-technical language of the prohibition
displays the breadth of concern.
4. After being included in UDHR, found its way uncontroversially, in
almost identical language, to the ICCPR and the principal regional
treaties.
5. That the use of torture may not have been such an aberration
became clear in the 1970s when Amnesty International published a
report documenting the practice of torture in many countries from
all regions around the world and led a campaign on the issue.
a. UN responded first in standard setting, then in area of
developing an institutional response.
i. Also activity at the regional level to the same effect.
6. Institutional Output includes: UN Special Rapporteur on the
question of torture, the establishment of the Committee against
Torture under the UN Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (UNCAT), and a
Sub-Committee on the Prevention of Torture created by the
Optional Protocol to UNCAT (UNCAT-OP)
7. Sources
a. ECHR, ICCPR, ACHR, ACHPR, UNCAT, Key UN soft
law (page 176).
b. Also treaty provisions in field of international humanitarian
law that prohibit torture, cruel treatment, inhuman
treatment, and humiliating and degrading treatment.
i. As with HR treaties, terms are undefined.
c. International Criminal Law also covers, among other
aspects, crimes against humanity and war crimes.
i. Torture and other forms of ill-treatment may
amount to war crimes.
d. Case law of International Criminal Tribunal for the former
Yugoslavia and Rwanda, also provide helpful guidance in
determining the normative content of the right to be free
from torture and ill-treatment.
e. Rome Statute of the International Criminal Court (ICC
Statute) has both codified crimes against humanity and war

crimes and provided definitions for some components,

including torture.
8. Legal Status
a. This is a norm of contemporary international law.
i. Rule is stated in absolute terms.
ii. No exceptions to this prohibition and non-derogable
(not even the ticking time bomb situation) even in
time of war or public emergency.
iii. States do not claim a right to torture.
b. It is a rule of jus cogens and cannot be modified or limited
by treaty.
c. All that remains unsettled is whether the prohibition of
other forms of ill-treatment have the same status.
i. American Restatement doesnt distinguish and most
of the other sources cited focus on torture, without
necessarily excluding other forms of ill-treatment.
9. Components
a. Drafted broadly so as to avoid narrow or technical
interpretations.
b. Cases dealing with prisoners began breaking down the
prohibition into its components.
c. Definition of torture and cruel, inhuman, and degrading
treatment or punishment
i. 3 Core Elements:
1. Pain or suffering that must be severe; it may
be physical or mental
a. No requirement for aggravation of
pain or suffering.
i. *Court continues to
distinguish between inhuman
treatment and torture. Little
guidance as to criteria for
inhuman treatment.
2. It must be inflicted for a certain kind of
purpose, that is, the sort of public purpose
traditionally associated with torture; and
a. The purpose is the only
distinguishing element between
torture and inhuman (or cruel)
treatment.
b. *Article 7 ICC does not have the
purposive element and defines
torture as a crime against humanity
(probably explained because crimes
against humanity can be committed
by unofficial groups and thus the

attribution of motivation becomes

more difficult than in respect of
states or other official constituted
bodies).
i. Also limited to persons in
custody or under control of
accused thus implicitly
assigning some public
purposive context.
3. It must be inflicted by or under the aegis of
public officialdom.
a. Not found in ICC related definitions
(as crimes against humanity arent
necessarily committed by public
officials in the sense of state
officialsa party to an armed
conflict may well not be the state).
i. However, it must have
sufficient elements of
organization such as to
endow it the status of a party
to an armed conflict within
the meaning of international
humanitarian law.
ii. Similarly, a crime against
humanity must also be
committed in the context of
an attack against a civilian
population.
iii. *This institutional element
should be seen as substituting
for the public official
requirement, as is the case in
respect to war crimes.
d. Specific Practices
i. Like explicit and implicit threats of torture and
death in circumstances where threats were credible.
ii. Any treatment that would amount to torture but was
not inflicted for a public purpose.
1. Unnecessary use of handcuffs and restraints
may amount to prohibited ill-treatment, as
can unnecessary or oppressive strip
searching, and displaying an alleged terrorist
in prison garb

iii. Those in detention at high risk because of things

like possibly having pertinent information that they
want to use torture to get out of you.
iv. Also not having access to lawyer or being able to
see outsiders like family. (investigative and remand
and post-conviction (condition of detention and
nature of punishment) phases of detention all pose
risks). (page 181) ---> each phase raises issues.
1. UN standard Minimum Rules for the
Treatment of Prisoners.
a. Extensive treaty body authority
finding various forms of corporal
punishment to violate the
prohibition.
10. Types of Obligations
a. Primarily a negative obligation. State required to
REFRAIN from engaging in practices concerned, either
directly through its agents acts or indirectly by its agents
omissions when there is a duty to act. (latter dimension can
be understood as positive in that it arises to avoid the
circumvention of the rule by simply blaming acts on others,
in circumstances in which the acts may well have been
committed with a nod and a wink from state authorities.
(because such collusion is hard to prove, other positive
obligations have been developed).
b. Where State has grounds to believe torture has taken place,
must initiate an effective investigation into the situation
i. Istanbul Principles
ii. Also obligation to prosecute people (not just
prosecute when these facts of torture are brought
up).
iii. Cant grant amnesties to people responsible for
committing torture.
c. Regardless of jurisdiction where torture took place, stats
required to submit for prosecution anyone in their jd
against whom there is sufficient evidence of having
committed torture.
i. This applies unless person is extradited to another
state wishing to exercise jurisdiction.
d. Another positive obligation is to refrain from exposing
people to torture or ill-treatment by sending that person to a
country where he or she faces a real risk of treatment in
violation with the prohibition.
e. One factor that may be relevant in making any assessment
is the extent to which the state may be said to have an

interest in the perpetration or continuation of the harm

suffered by the victims.
i. The less the interest, the higher may be the
threshold to attribute responsibility to the state.
11. Relationship With Other Human Rights
a. Fair trial...cant get evidence by coercion from ill-treatment
or torture.
b. Liberty provides essential guarantee against prohibited
ill-treatment.
c. Arbitrary detention may amount to a violation of of illtreatment (if prolonged and under certain circumstances).
i. Can also bring up right to life in this case.
d. Death and right to life.
iv. The Right to Life
1. Dealt with very early and summarily in UDHR (Article 3).
a. It is the first substantive right, after the Article 2
affirmation of the principle of non-discrimination.
b. It was not further developed partly because a lack of
consensus as to what issues it covers (notably the death
penalty).
2. Considered the supreme human right and the fountain from
which all human rights spring.
3. Treating giving effect to this arent couched in the same absolute
language as those prohibiting torture.
4. Typically states no one shall be arbitrarily deprived of life.
a. Warfare is most obvious example and killings committed
lawfully under IH law will not in principle be considered as
violating the right to life.
b. Sometimes required to take life too, mainly to protect life
of others.
c. Death penalty creates problems for this.
5. Work to campaigns focus on specific situations, mainly death
penalty. Some soft law enacted mainly in law enforcement life
deprivation situations. UN Commission on HR in 1982 also
mandate of Special Rapporteur on extrajudicial, summary, and
arbitrary executions.
6. Sources:
a. Article 6 ICCPR
b. Article 4 ACHR and ACHPR
c. Article 2 ECHR
i. All ^^ make provision for death penalty. Although
many of them have contemplated getting rid of the
death penalty.
d. Soft Law Sources (including UN Basic Principles on Use
of Force and Firearms by Law Enforcement Officials, UN
Principles on the Effective Prevention and Investigation of

Extra-legal, Arbitrary, and Summary Executions, and UN

Social Councils Safeguards guaranteeing protection of the
rights of those facing the death penalty). (EOSOC
Safeguards)
7. Legal Status:
a. Customary International Law.
b. Non-derogable in treaties that contemplate derogation.
c. Prohibitions against murder are jus cogens rule.
d. **Prohibition of unnecessary and disproportionate killings
deserves to fall into the same category.
8. Scope: Beginning and End of Life
a. Question is ---> when does life begin?
i. Article 4 ACHR since conception.
b. Euthanasia, and assisted suicide an issue too.
i. Article 2 ECHR --> no right to die explicit.
1. Yet there is issue of dignity and possible
degrading treatment if one is denied the
option.
a. European Court refused to accept
that denial of this right infringes
upon Article 3.
9. Components
a. Protection against killings by security forces
i. Diff bodies use diff terms to describe unlawful
killings by agents of authority (extra-legal or
extrajudicial)whenever there is intentional resort
to outright killings of those considered undesirable,
considered murder by any definition and is at the
core of the prohibition of arbitrary deprivation of
life.
ii. It is generally accepted that LE measures must
conform to the principles of necessity and
proportionality.
1. Article 2 ECHR creates some problems with
this.
2. Lethal force may be used to protect life
(seen in UN Basic Principles on Use of
Force and Firearms Principle 9)
a. Practice of treaty bodies is consistent
with this ^^.
b. Protection against death penalty
i. Although prohibition of torture and ill treatment, no
consensus on Death Penalty.
1. This reflects that IL is not a system that
operates by majority rule. State practice is a
key element and as long as a substantial

minority of states maintain the death

penalty, especially states as influential as
China, India, and USA --- international law
will have to reflect that reality.
2. All the human rights treaty norms
guaranteeing the right to life, except Article
4 ACHPR, contemplate the possibility of the
death penalty.
a. Since any treaty provision has to be
interpreted in the context of the
treaty as a whole, means it is not
possible to interpret the provisions
on treatment of prisoners without
reference to those on the right to life.
b. The HRC has indeed made that point
that, but for the death penalty
provisions of Article 6 ICCPR, it
would find the death penalty to
violate Article 7.
3. The fact that so many want to abolish,
makes it hard for the other parties to suggest
its not a HR issue.
4. UN GA more recently adopted a view that
calls on states that retain the death penalty to
adopt moratoria on its use.
5. As for abolitionist protocols themselves, all
but one envisage commitments that permit
states to carve out an exception for wartime
situations (few have done so).
a. The exception is Protocol 13 of the
ECHR, adopted to fill gap of
Protocol 6.
b. Adherence to Protocol 6 is a
condition of membership of the
Council of Europe47 country area
of Europe is now essentially a deathpenalty-free-zone.
6. States who permit cant just do it whenever
they want and however they wantthere are
limitations.
ii. Substantive Limitations
1. Article 6(2) ICCPR and Article 4(2) ACHR,
requiring that imposition of the death
penalty be limited to the most serious
crimes.

a. First paragraph of ECOSOC

Safeguards endorses the notion of
the most serious crimes.
2. There is no definitions of what elements
would place a crime among the most
serious.
a. ECOSOC Safeguards are helpful
here. Must be only for serious crimes
with lethal or other extremely grave
consequences.
3. Further substantive limitations come from
Article 6(2) and 15 ICCPR, which state that
both the crime and prescribed punishment
must not be retroactive (must be provided by
law at the time of the commission of the acts
in question).
4. Also Article 4(2) ACHR DP may not be
extended to crimes to which it does not
presently apply. While Article 4(3) ACHR
prohibits reintroduction in states that have
abolished it.
a. Possible to interpret Article 6(2)
ICCPR in the same way.
b. Article 4(4) ACHR also prohibits use
of DP for political offenses or
related common crimes.
iii. Procedural Limitations
1. Main one is that DP may only be imposed
after a fair trial, including a right of appeal.
a. Article 6, 14, 15.
2. General assembly called on states to respect
as a minimum these articles.
3. HRC has made clear its view that this means
that not only is Article 6 non-derogable, but
also 14 when it comes to application of the
death penalty.
4. Right to appeal explicitly guaranteed in
Article 14(5) ICCPR, so this is a violation of
not only that provision, but also Article 6.
5. ECOSOC Safeguards contain the same
guarantee.
a. Article 6(4) ICCPR and Article 4(6)
ACHR require the possibility of
submitting a clemency petition.

6. Also, must be carried out with the minimum

possible suffering to the person so as not to
violate the prohibition of ill-treatment.
iv. Personal Limitations
1. Under various articles in various treaties,
may not be imposed upon persons under the
age of 18 (190).
a. Counts at the time of the offense.
b. May not be carried out on pregnant
women or recent mothers either
(according to ECOSOC Safeguards).
c. Also immunizes those who are
insane or mentally ill.
d. Also not anyone over 70 at the time
of the offense.
10. Types of Obligation
a. This is primarily a negative obligationto the extent that
there is no treaty obligation prohibiting the use of the DP,
states are simply obliged to refrain from having recourse to
it when not respecting the legal limitations that apply to it.
b. Other deprivations of life involving the intentional killing
of people by public authorities are to be avoided, if they do
not meet the criteria of necessity or proportionality already
considered here.
i. Three provisions guaranteeing right to life stipulate
that the right shall be protected by law, which has
connotation of positive obligation.no, just says
that they need to investigate apparent unlawful
killings.
c. Thus there have been numerous findings of state violations
of the right to life because of absence of an effective
investigation, even when killing could not be found on the
evidence to be firmly attributable to the state.
d. As with prohibition of ill-treatment, exposing someone to
the threat of a violation of the right to life is itself a
violation of the prohibition or ill-treatment, as well as
presumably of the right to life.
e. Also evident obligation to protect people from death from
third parties. (obligation of means not of result).
i. Question is always whether state did their due
diligence when apprised of circumstances that may
suggest that a persons life required protection.
f. Also, if it is difficult to justify the rules permitting
euthanasia and assisted suicide, it is because of the positive
obligation on states to protect life and the need to avoid

people being improperly influenced to seek or accept aid in

terminating their lives.
11. Relationship with Other Human Rights
a. Prohibition of torture and ill-treatment.
b. Avoid unnecessary suffering (even for DP)
c. Connection with right to fair trial.
d. Notion of security of person.
d. Though, Expression and Assembly
i. The Four Freedoms and Their Relationship
1. Thought
a. Includes freedom of conscience, religion, or belief.
2. Expression
a. Includes freedom of opinion and information.
i. Media freedom is also protected by IHR law as
essentially for the enjoyment of freedom of
expression.
3. Association
a. Concerns the right to establish autonomous organizations
through which individuals pursue common interests
together.
4. Assembly
a. Protects non-violent, organized, temporary gatherings in
public and private, both indoors and outdoors.
5. All of these are interrelated and fundamental freedoms of
individuals.
6. Essential for the exercise of all other rights.
7. None are absolute in the sense that their exercise may never be
restricted.
8. IL provides grounds on which each freedom may be required to be
balanced against the rights of others or broader community
interests.
9. Also offers principles to safeguard against abuse of restrictions by
the state.
10. Thus, freedom of expression is necessary if freedom of thought is
to be exercise.
a. In turn, freedom of expression has little meaning without
individual having freedom to think and have an opinion.
11. Right to practice or teach a religion includes the freedom to
publish religious literature or broadcast religious programs.
a. Thus in order for religion communities to exist, freedom of
association is essential as is their right to assemble for
religious purposes.
12. Freedom of expression essential when people come together to
pursue their interests through other associations, such as trade
unions, political parties, or community groups.
13. European Court of HR has defined one of the objections of the

freedom of association as the protection of opinions and the

freedom to express them.
14. Freedom of expression is essential to the freedom to assemble and
the right to demonstrate over grievances.
a. Thus while each freedom is distinct in theory, in practice
they are all interrelated and interdependent.
15. Denials of freedom often occur in context of discriminatory
policies directed at particular groups or minorities (e.g. religious or
ethnic minorities).
16. Each freedom as defined in International Law, is expressed as a
freedom of the individual but also a collective dimension.
17. Freedom of expression includes not only the right of a speaker to
communicate with others but the right of others to hear what the
speaker has to say.
18. Be definition, freedom of association or assembly concerns the
collective activities of individuals.
ii. Limitations
1. In summary, a society which enjoys the freedom under discussions
is not one in which there are NO restrictions on their exercise; it is
rather one in which the boundaries of freedom are openly debated
and democratically resolved under the rule of law.
a. Limitations are discussed further as regards to each
freedom by some general principles applicable to all can be
set out here:
i. Legality: any limitations on a freedom must be set
down or prescribed in law. A restriction cannot be
legitimate where it is the arbitrary whim of an
official. National law must set out the ground of
restriction in clear and precise terms.
ii. Legitimate Aim: the interference or restriction
must follow and legitimate purpose, that is, be
based on one of the exhaustive ground of limitation
listed in the international standards which define the
freedom.
iii. Proportionality: the restriction must be necessary
in the sense that there is a 'pressing social need for
it and that any measure taken is the minimum
required to achieve the purpose of the limitation in a
democratic society.
iv. Presumption of Freedom: freedom is the rule, its
limitation the exception. In the Sunday Times
Case which involved a claim of justified judicial
restriction on the publication of information by a
newspaper, the European Court of HR noted that
freedom of expression is not a right that is to be
balanced equally with the permissible restrictions. It

is rather a right that is subject to a limited number

of restrictions that must be narrowly construed and
convincingly justified, ultimately to a court. Thus
one should start with a strong presumption in favor
of the freedom in question. The onus is on the
authorities in the particular case to show that it is
legitimate to restrict it.
iii. Freedom of Thought, Conscience, and Religion
1. Found in all the treaty bodies.
2. The predominant focus is on freedom of religion, however, scope
of the right is wideralso protects freedom of thought (right of
individual to have independent thoughts, ideas, and beliefs).
3. Freedom of conscience also explicitly recognized and protected.
4. Duty on state to respect liberty of parents or guardians to child to
determine religious and moral education of their children in
conformity with their own convictions.
a. This childs right to freedom of thought, conscience, and
religion is provided for in the Convention on the Rights of
the Child (CRC).
5. Freedom of Religion or Belief
a. Freedom to choose religion/belief
b. Freedom to change/belief
c. Freedom to choose these things free of coercion.
i. Freedom to spread it and seek to persuade others to
convert is protected though.
d. No requirement by IL that there should be separation
between religion and state.
i. EC of HR said though that in order for democracy
to function probably, these need to be separate.
e. Limitations include:
i. Freedom of thought/conscience/religion/or belief
may never be compelled to be revealed (like the
requirement to swear a religious oath applies here)
ii. Manifestation of religious belief may be limited on
the grounds set out in ICCPR 18(3) public safety,
order, health, or morals or the fundamental rights
and freedoms of others.
1. Sometimes includes religious clothing and
symbols.
a. Not limited to Islamic dress although
this is most pertinent issue.
6. Freedom of Opinion and Expression
a. Sources
i. This freedom is contained in Article 19 UDHR,
Article 19 and 20 ICCPR.

1. Detailed and authoritative guidance on

states obligations under these provisions
can be found in the Human Rights
Committees General Comments 34.
2. Similar but not identical formulations of the
freedom can be found in regional HR
instruments.
3. Also important provisions in the UN
Convention on the Elimination of Racial
Discrimination (ICERD Article 4) which
concerns the prohibition of racist speech and
organizations.
4. CRC recognizes a childs right to freedom
of expression.
a. Since 1993 there exists position of
Special Rapporteur on the promotion
and protection of the right to
freedom of opinion and expression,
who is now appointed by the HR
Council.
b. Scope
i. Described as touchstone of all rights.
ii. Considered inseparable from freedom of thought,
association, and assembly, essential for enjoyment
of all rights, including economic/social/cultural
rights.
1. Vital freedom for development, the
functioning of democracy, and modern
economies.
iii. Article 19 UDHR provides foundation for fuller
definition of this freedom.
iv. Although this text was drafted over 60 years ago, it
powerfully expresses the idea of freedom of speech
in todays era of the internet and other digital
communications technologies.
v. Freedom of expression is an individual right.
1. Means freedom without interference or
penalty, to speak ones mind.
2. ^^It also has its collective components.
a. Humans communicate with others,
not with themselves.
i. Freedom includes right to
hear other views and to
exchange ideas and
information with others.

ii. Also includes right to inform

oneself and to be informed.
Hence the crucial importance
of all media as means of
communications.
3. Freedom of Opinion Article 19 ICCPR
guarantees freedom of opinion as well as
expression. Humans have differing and vast
amounts of opinions on all kinds of subjects.
Article 19(1) provides that everyone is
entitled to hold such views without
interference. No one can be forced to think a
particular way, nor should anyone suffer
prejudice, discrimination, or expression
because of their views or opinions. Freedom
to hold opinions may not be restricted. HR
Committee says it is a right to which the
Covenant admits no exception or
restrictions. In other words, people may
think what they like.
4. Freedom of Expression Article 19(2)
ICCPR sets out positive meaning of freedom
of expression under international law. Scope
is extensive. Right defined as including
freedom to seek, receive, and impart
information and ideas of all kinds. Freedom
to seek includes active and investigative
journalism in public interest. Freedom to
receive has been interpreted by the EC of
HR as including right of public to be
informed and duty of mass media to impart
information to public. Freedom to impart
extends to every kind of information and
idea expressed through any media of choice,
either orally, in writing or in print, or in
form of art. Freedom is applicable to all
information (those that are and arent
offensive). All forms of expression are
protected (includes spoken and written
language as well as art and images). Manner
in which they are transmitted is also
protected. In 2011 a Joint Declaration on
Freedom of Expression and Internet was
adopted by UN Special Rapporteur on
freedom of expression and Special
Rapporteurs on freedom of expression from

Organization of American States, the

Organization for Security and Cooperation
in Europe, and African Commission on
Human and Peoples Rights. Declaration
sets out that freedom of expression must
apply to the Internet same way it applies to
other media. NO human to access the
Internet (some argue though with its
increasing popularity States have positive
obligation to promote and facilitate right to
freedom of expression by way of access to
Internet). Freedom of expression doesnt
stop at borders of the state (this was
intended to outlaw forms of censorship such
as Cold War practice of radio jamming of
foreign broadcast signalsso completely
blocking access to Internet during times of
social unrest, constitutes interference with
the right).
5. Media Freedom No explicit recognition or
protection offered to the press and other
media in international HR standards,
although such is often to be found in
national laws and constitutions. At
international level, freedoms and
responsibilities of press have been
developed from guarantee of freedom of
expression of individual. Protection afforded
under HR standards to all media is justified
because of role in making peoples freedom
of expression meaningful and their
contribution to democratic life (all such
means of communication provide access to
news and opportunities to exchange
information and ideas). International and
national standards on freedom of expression
have largely been shaped by struggle for
journalistic and artistic independence against
government licensing and censorship of
media (this struggle continues in different
parts of the world). Media freedom is
inseparable in practice from enjoyment of
freedom of expression in society (media has
watchdog role on exercise of power in
society, and free media facilitates political
debate). States therefore must protect

journalists from threats, violence, or other

acts of harassment that stop them from
fulfilling this essential role. HR bodies
adopted expansive definition of term
journalists (including bloggers,
professional full-time reporters, etc).
Media is also source of power, including
economic power. International standards
speak of medias duties and responsibitilies
(regulation is necessary to ensure
democratic accountability and to guard
against excessive concentration of
ownershipregulatory regimes, whether
self regulated or established by legislation,
will differ according to different media.
Thus, public, private, or community
broadcasting systems and the print media
will often be subject to different regulatory
codes (but all such regulatory systems
should protect editorial freedom, promote
plurality of the media, and operate
independent of government).
6. Freedom of Information Laws Most
striking advance in norms on freedom over
recent years have been growth of laws
implementing right to access official
information held by governments.
Democracies have come to understand that
transparency affords governments and
public administration legitimacy in eyes of
public. In all regions of the world,
governments have established the right to
know through legislation. An access to
information law works on principle of
maximum disclosure, all official information
should be made public as a matter of
principle, unless there are legitimate reasons
justifying non-disclosure. In 2009, Council
of Europe adopted first international treaty
on access to official documents. *CASE
mentioned page 228.
c. Limitations if people may think what they like, they may
not always say or write what they like. As opposed to
freedom of opinion, freedom of expression is not an
absolute right. Under Article 19(3) ICCPR its exercise
carries with it special duties and responsibilities (such

language acknowledges power of media, but also

justification of restriction where it is necessary to respect
rights or reputation of others, and where it is necessary on
grounds of national security, public order, public health, or
morals). If restrictions are applied wrongly or excessively
invoked, they can chill freedom or even eliminate it (thus
ground such as national security, in the context of counterterrorism is often misapplied or abused to the detriment of
freedom of expression).
i. Privacy may clash with freedom of expression.
While public figures such as politicians and popular
celebrities do have right to private life, it is les
extensive given that they are willingly in the public
arena. Therefore, when considering whether correct
balance has been struck between freedom of
expression and privacy, regard should be had to the
following issues: 1) whether the expression
contributes to debate of general interest; 2) how
well-known person concerned is; 3) nature of the
activities that are subject of report and how they
link to role of person concerned; 4) prior conduct of
person concerned; 5) how information was obtained
and its veracity; 6) content, form, and consequences
of publication; 6) severity of sanctions imposed.
ii. Defamation Publishing false statement about
another which damages their reputation is a civil
and often criminal wrong. These laws though which
impose liability for it, can and often do undermine
freedom of media to fulfill their function of
informing public and to comment critically on
public affairs. Given importance of free media in
democracy, IHR standards have been directed at
ensuring that national laws on defamation are
applied as narrowly as possible as regards political
speech. Robust criticism of government or political
should be tolerated in interests of open debate on
political issues. Increasing trend towards abolition
of criminal penalties for defamatory statements
based on argument that civil remedies such as
payment of damages is a sufficient sanction and
threat of criminal prosecution has chilling effect on
freedom of expression (this approach garnered
support of Human Rights Committee).
d. Hate Speech this presents challenge to all states. Internet
added global dimension to availability of propaganda
advocating violence or hatred of others. Article 20 ICCPR

and Article 4 ICERD oblige states to criminalize speech

that amounts to war propaganda or that advocates racial
hatred. However, these limitations on expression must be
compliant with Article 19*3) and thus be provided by law
and be least restrictive means of achieving the relevant aim.
Use of speech to incite violence is a criminal offense in
virtually all states. But to strike acceptable balance between
right to freedom of expression and restraint on other forms
of objectionable speech is in practice often very difficult.
i. Islamophobia and anti-Semitism Incitement to
ethic, racial, or religious hostility, hatred, and
discrimination is not protected speech. This and
holocaust denial (anti-Semitism and Islamic attacks)
is a criminal offense in several European states.
Reporter said it, was charged, and HRC said this
was a justifiable interference with his freedom of
expression rights under Article 19 ICCPR because
holocaust denial was a primary vehicle of antiSemitism in his State.
ii. Blasphemy Criticism of religion is highly
contested freedom of expression issue at the
international level. GA and HR Council passed
resolutions (aided by Muslim majority states) to
restrict freedom of expression in order to suppress
defamation of religions. Others though, mostly
Western states, have rejected the need to protect
religious institutions or doctrines from robust
criticism, satire, or even ridicule. In 2011, HR
Council moved away from terminology of
defamation of religion returning to idea of
protecting believers from intolerance and violence
(this is a more convincing approach). HR law
protects those individuals who have religious belief
rather than religion itself. Therefore, blasphemy
laws are, according to HR Committee, incompatible
with right to freedom of expression. Nevertheless,
number of states still retain offences of blasphemy
in their criminal codes and the EC of HR has
accepted the legitimacy of protection for blasphemy
where believers may legitimately [have felt]
themselves to be the object of unwarranted and
offensive attacks and the punishment imposed was
an insignificant fine.
7. Freedom of Association
a. Sources
b. Scope

i. The Right to Associate

ii. The Right Not to Associate
iii. The Right to Strike
c. Limitations
i. Banning Political Parties
ii. Additional Limitations Applicable to Military and
Police
8. Freedom of Assembly
a. Sources
b. Scope
c. Limitations
i. Prior Notifications and Permits
ii. Repressive Restrictions
e. Detention and Trial
f. Economic Social and Cultural Rights: Principal Legal Instrument: ICESCR
g. Adequate Standard of Living
h. Education and Work
i. Cultural Rights
j. Select Delineated Categories of Rights Holders
k. Womens Right (CEDAW and other Instruments)
l. Sexual Orientation and Gender Identity
m. Group Rights
6. LINKAGES AND CHALLENGES
a. International Criminal Law
7. PROTECTION
a. UN and Treaty Bodies