Topic One

1. Human Rights Concepts and Discourse

MEDIA STORIES: WHAT HUMAN RIGHTS ISSUE ARE RAISED?
The human rights look at the problems as. Example:
1. Sri Lanka: A child is summarily executed by Callum Macrae, the
Independent, 11 Mar.2012
In Sri Lanka the children were executed in cold blood as the Prabhakaran, , the
son of the LTTE leader. The last years, a special panel of experts appointed by
the UN Secretary-General, Ban Ki Moon, suggested that as many as 40.000
civilians died in the last few weeks of the war. . The vast majority as a result of
government shelling, much of which was targeted on so called "no fire zones"
set up by the government itself. However, as international concern grew over
the emerging evidence of appalling crime against civilians. There are proofs of
the massacres but the governments have always denied (You need to know:
The Civil War in the Sri Lanka was from the 1983 to 2009: Governments against
LTTE)

2. NAACP to Call on UN to investigate Voter Disfranchisement in US by ED

Pilkington.

The leaders of the National Association for the Advancement of Colored People,
the NAACP, will travel to Geneva next week to tell the UN human rights council
that a co-ordinated legislative attempt is being made by states across America
to disfranchise millions of black and Latino voters in November's presidential
election. The delegation, headed by the NAACP's president, Benjamin Jealous,
will address the council on Wednesday and call on the UN body to launch a
formal investigation into the spread of restrictive electoral laws, particularly in
southern states. The NAACP intends to invite a UN team to travel across
America to see for itself the impact of the new laws, which it argues are
consciously designed to suppress minority voting. A recent report by the
Brennan Center for Justice estimated that since last year more than 5 million
eligible voters had had their right to vote stripped from them.

3. Woman Must Be Given Equal Rights in Decision-Making, Pillay Says by

Jennifer M. Freedman, Bloomberg, 7 Mar. 2012

4. UN Fears Pubblic Health Disaster from Unhealthy Food India Blooms

news Service, 7 Mar. 2012

5. Woman on the Back Foot in the Arab Spirng by Ines Bel Aiba, Agence
France Presse, 5 Mar. 2012
Example of Tunisia, Egypt, Kuwait and Lybia

6. Guatemala Judge Judhge Denies ex-Dicator s Amnesty Claim by Romina

Ruiz-Goiriena, the Associted Press, 1 Mar. 2012
A former U.S.-backed dictator who presided over some of the bloodiest years of
Guatemala's civil war has no amnesty from charges he ordered the murder,
torture and displacement of thousands of Mayan Indians, a judge ruled
Thursday. Guatemala's leaders have been criticized for years for their inability
or unwillingness to prosecute government forces and allied paramilitaries
accused of marching into Mayan villages and slaughtering women, children and
unarmed men in a "scorched earth" campaign aimed at eliminating the support
for a left-wing guerrilla movement. In particular, Rios Montt is accused of
authorizing 1,400 human rights violations, the displacement of 29,000
indigenous Guatemalans and 1,771 killings, many under a program intended to
completely eliminate an indigenous Mayan ethnic group known as the Ixil. (You
need to know: The Civil War in Guatemal was from 1960 to 1996)
7. Nato Must Investigate Civilian Deaths in Lybya, says Amnesty The
Guardian, 19 Mar. 2012

8. Wialliam Easterly, Poverty is Not a Human CRights Violation aid watch,

blog, 5 June 2009

9. Wronged Woman of Liberia Reluctant to Revist Human Rights Abuses by

Tamasin Ford, The Guardian, 28 Feb. 2012

10.UN Chief Urges Africa T Respect Gay Rights By Peter Heinlein, Voice of
America, 29 Jan. 2012

11.David Cameron Calls for Reform of European Court of Human Rights by

Nicholas Watt, The Guardian, 24 Jan. 2012

12.China Moves to Stop Transplants of Organs after Executions by Keith

Bradsher, New York Times, 23 Mar. 2012

13.Hungary Pressed to Ease Judiciary and News Media Laws by Palko Karasz
& Melissa Eddy, New York Times, 21 Mar. 2012

14.Mali Junta Announces Constitution as Pressure Mounts by Thomas

Morfin, Agence France Presse, 28 Mar. 2012

15.Supreme Court Ruling Allows Strip Searches for Any Arrest by Adam
Liptak, New York Times, 2 Apr. 2012

2. The Humans Rights Regime: Background and Birth

Comment on the international dimension of human
rights regime
Since the Second World War it would be inadequate or even misleading to
develop a framework for the study of human rights in many countries without
including as a major ingredient the international legal and political aspects of
the field: laws, process and institutions. In today's world, human rights is
characteristically imagined as a movement involving international law and
institutions, as well as a movement involving the spread of liberal constitutions
among states. Internal developments in many states have been much
influenced by international law and institutions, as well as by pressures from
other states trying international law.
What means or methods have the International rules and standards of the
human rights regime developed? By the what process are international legal
rules made, elaborated, applied and changed?
several of the opinions and scholarly writings in the chapter draw on article 38
of the Statute of the International Court of Justice (ICJ), the judicial organ of the
United Nations that was created by the UN charter of 1945. That article has long
served as a traditional point of departure for examining questions about the
"sources" of international law. It repeats the similar provisions of the 1921
Statute of its predecessor court, the Permanent Court of International Justice
that was linked to the League of Nations and effectively died during the Second
Word War. It reads:
1. The Court, whose functions is to decide in accordance with
international law such disputes as are submitted to it, shall
apply:
a. International conventions, whether general or
particular, establishing rules expressly recognized by
the contesting states;
b. International custom, as evidence of a general
accepted as law;
c. The general principles of law recognized by civilized
nations;
d. Subject to the provisions of Article 59, judicial
decisions and the teachings of the most highly
publicists of the various nations, as subsidiary means
for the determinations of rules of law.
2. This provision shall not prejudice the power of the Court to
decide a case ex aequo et bono, if the parties agree thereto
Although Article 38 formally instructs this particular Court about the method of
applying international law to resolve disputes, its influence has extended to other
international tribunals, to national courts, are indeed generally to argument based on
international law that is made in settings other than courts.

A. The law of armed conflict and customary international

law
The following decision in The Paquete Habana deals with an earlier period in the
development of the law of armed conflict, here naval warfare, and with a theme that
became central the later treaty development of this field: the protection of non
combatant civilians an their property against the ravages of war. This case involves jus
in bello (the law in war, law of armed conflict, regulating the conduct of war) and the
jus ad bellum (conditions in which going to war is legal, so laws of war, rules of
international law regulating the use of force)

The Paquete Habana, Supreme Court of the United States,

175 U.S: 677 (1900): CASE SYLLABUS
In April 1898 two fishing vessels, the Paquete Habana and the Lola, separately left
Cuban ports in Havana in order to fish. The two vessels, under the Spanish flag, were
eventually captured by US Naval vessels as part of Admiral William T. Sampson's
blockade of Cuba, who was ordered to execute the blockade in pursuance of the laws
of the United States, and the law of nations applicable to such cases. The vessels were
placed within Cuba's territorial waters at the onset of the Spanish-American War and
then taken to Key West, where both vessels were eventually auctioned by the district
court. Both vessels were valued under the price of 1290$ (the Paquete Habana for the
sum of $490 and the Lola for the sum of $800 ) and were thus not originally thought to
be exempt from seizure. The vassel had no arms or ammunition on board, and made
no attempt to run the blockade after she knew of of its existence, nor any resistance
at the time of the capture. Admiral Sampson justified the seizures by stating that most
fishing vessels, flying under the Spanish banner were manned by excellent seamen,
"liable for further service" as naval reserves, an asset that could eventually be used
against US interests in the Spanish-American War.
The owners of the vessels however made an appeal to the circuit courts, citing a long
held tradition by nations of exempting fishing vessels from prize capture in times of
war. This "tradition", a primary example of customary international law, dates back
from an order by Henry IV in 1403, and has more or less been observed by a large
majority of States ever since. At the time of capture both vessels had no evidence of
aiding the enemy, and were unaware of the US naval blockade. No arms were found on
board, and no attempts were made to either run the blockade or resist capture.

The court's decision and merits: The United States Supreme Court cited lengthy legal
precedents established to support the existence of a customary international law that
exempted fishing vessels from prize capture, dating all the way back to ancient times:
1. Occurring repeatedly between Great Britain and France. In 1403, King Henry IV of
England issued orders to his admirals and other officers, entitled "concerning Safety
for Fishermen". By an order of October 26 , 1403, reciting that it was made pursuant to
a treaty between himself and the King of France. For the greater safety of the
fishermen of either country. in effect the French King has consented that English
fishermen should be treated likewise.
2. The same custom would seem to have prevailed in France until towards the end of
the seventeenth century. For example , in 1675, Louis XIV and the States General of
Holland, by mutual agreement granted to Dutch adn French fishermen the liberty,

unidisturbed by their vessels of war, of fishing along the cists of France, Holland and
England.
3. Another example there were in the United States from time of the War of
Indipendence.
4. In the war with Mexico, in 1846, United Stated recognized the exemption of coast
fishing boats from capture.
5. France in the Crimean war in 1854, and in her wars with Italy in 1859 and with
Germany in 1870, by general orders, forbade her cruisers to trouble the coast
fisheries, or to seize any vessel or boat engaged therein, unless naval or military
operations should make it necessary
Situations similar to this continued to crop up throughout history prior to the Paquete
case. Using this as a basis for customary law, the court then eventually found the
capture of both vessels as "unlawful and without probable cause", reversed the District
Court's decision, and ordered the proceeds of the auction as well as any profits made
from her cargo to be restored to the claimant, "with damages and costs".

Comment on the law of armed conflict

Multilateral declaration and treaties started to achieve prominence in the second half
of the nineteenth century. The treaties now included the Hague Conventions
concluded around the turn of the century, the four Geneva Conventions of 1949, and
several discrete treaties since the Second World War on matters like bans on particular
weapons and protection of cultural property. It is important to know that the basic
Geneva Conventions and the two Protocols cover a vast range of problems stemming
from land, air and naval warfare, including the protection of wounded combatants,
prisoners war, civilian population and civilian objects, and medical and religious
personnel and buildings. As suggested by this list, the provisions of the four
Conventions and the two Protocols constitute the principal contemporary regulation of
jus in bello, that is, how war ought to be waged.
The entire corpus of custom and treaties has as its broad purpose, in the words of the
landmark St. Petersburg Declaration of 1868, "alleviating as much as possible the
calamities of war".
the efforts to protect civilian population and their property took on renewed vigor after
the Second World War through the Geneva Conventions of 1949 and Protocols of 1977.
Consider Article 48 od Protocol I to the Geneva Conventions. Article 48 enjoins the
parties to a conflict to distinguish between the civilian population and combatants and
between civilian objects and military objectives. Military attacks are to be directed
only against military objectives (military objectives article 52): Article 54 is entitled,
"Protection of Objects Indispensable to the Survival of the Civilian Population"

Comment on the role of custom

The Supreme Court decision The Paquete Habana raises basic questions about custom,
which has been law referred to as the oldest and original source of international law.
Customary law remains indispensable to an adequate understanding of human rights.
Clause (b) of Article 38 (1) of the Statute of the ICJ states that the Court shall apply
international custom, as evidence of a general practice accepted as law.
RELASHIOSHIP BETWEEN TREATIES AND CUSTOM.

Thus far we have considered custom independently of treaties. But these two sources
or law-making process of international law are complexly interrelated. In such
contexts, the question whether the treaty is intended to be declaratory of pre-existing
customary law or to change that law may become relevant. Moreover, treaties may
give birth to rules of customary law

Akehursts modern introduction to international law Peter

Malanczuk (7th edn. 1997), at 39

WHERE TO LOOK FOR EVIDENCE OF CUSTOMARY LAW

The main evidence of customary law is to be found in the actual practice of states, and
rough idea of a states practice can be gathered from published material (newspaper
report, government spokesmen to Parliament, international conference, international
organizations, etc.)
THE PROBLEM OF REPETITION
it has sometimes been suggested that a single precedent is not enough to establish a
customary rule, and that there must be a degree of repetition over a period of time. In
sum, major inconsistences in the practice prevent the creation of a customary rule
we can also note that there is a PSYCHOLOGICAL ELEMENT IN THE FORMATION OF
CUSTOMARY LAW (OPINIO JURIS)
Also it is very difficult the calculations of the UNIVERSALITY AND THE CONSENSUAL
THEORY OF INTERNATIONAL LAW... in a few word, in which way calculated the
universality and the consensual in the international law?
JUS COGENS: peremptory Principle/ Norms of Customary International Law recognized
bi states to be of such a fundamental nature that no derogation is permitted.

Martti Koskenniemi, the pull of the mainstream 88 Minch.L.

Rev. 1946 (1990)
..

Comment on the changing character of customary

international law and of soft law
Since the Second World War, the international legal arena has experienced an
extraordinary growth of multilateral instruments, many of them creating IGOs. So
many fields of international law (human rights, peacekeeping, the use of force,
monetary and trade agreements, environmental treaties, etc.) contributed to this
significant trend from bilateral to multilateral agreements and institutions as the
preferred means by which to address some of the problems of the day. Inevitably
these treaties and organizations so changed the international law context and the
relationship between states and international law as well as between each other as to
influence some basic concepts and doctrine, including doctrinal understanding of the
sources of international law. As we will see in the following chapters, the Universal
Declaration of Human Rights (UDHR) and the major human rights treaties suggest the

importance of this phenomenon for the evolution of the human rights regime. IGOs
become to one or another degree independent actors working toward treaties goals.
These and other phenomena, ranging from the development of national and
international human rights nongovernmental organizations (NGOs) to globalization
embracing multiple cultures, have influenced the very paths of making international
law.

Anthea Roberts, traditional and modern approaches to

customary international law: a reconciliation 95 Am.J.Int l. L. 757
(2001)
Custom has become an increasingly significant source of law in important areas such
as human rights obligations. Codification conventions, academic commentary, and the
case law of the International Court of Justice have also contributed to a contemporary
resurrection of custom. These developments have resulted in two apparently opposing
approaches, which I term traditional and custom and modern custom. Traditional
custom is closely associated with descriptive accuracy because norms are constructed
primarily from practice, working from practice to theory.
A modern custom is formed primarily of treaties and declarations, rather than states
practice. It is potentially more democratic because it involves all states. Most states
can participate in the negotiation and ratification of treaties and declarations of
international fora, such as the United Nations General Assembly. The greatest criticism
of modern custom is that it is descriptively inaccurate because it reflects ideal, rather
than actual, standards of conduct. Some theorist characterize modern customs as soft
laws or sublegal obligations that do not amount to law.

Dinah Shelton, introduction: law, non law and the problem

of soft law in Dinah Shelton (ed.), Commitment and Compliance: the Role of NonBiding Norms in the International Legal System (2000), at 1
Throughout the project, participants debated whether binding instruments (law) and
non-binding ones (soft law or non law) are strictly alternative. The problem is that the
global arena now contains more than four times the number of states that existed at
the beginning of the last century. In addition, other communities have emerged to play
important international roles: intergovernmental organizations, non-governmental
organizations, professional associations, transnational corporations and mixed entities
comprised members of different communities. the line between law and not law may
appear blurred. Treaty mechanisms are including more soft obligations, such as
undertakings to endeavour to strive to cooperate. It is rare to find soft law standing in
isolation; instead it is used most frequently either as a precursor to hard law or as a
supplement to a hard law instrument. Soft law instruments often serve to allow treaty
parties to authoritatively resolve ambiguities in the text or fill in gaps. soft law may be
increasingly utilized because it responds to the needs of the new international system.
International law-making itself has changed over time. Where it was once almost
entirely customary in origin, treaty-making, first bilateral, then multilateral, has come
to be seen as the predominant from of law-making in the modern world. The
expansion of sources of international law also come about through the rise and
influence of non-state actors in global affairs. The regime relies more on areas of soft
law for the derivation of its norms.

B. State responsibility, general principles and natural law

Comment on the law and state responsibility

The Chattin case described below was decided under a 1923 General Claims
Convention between United Stateds and Mexico. The treaty provided that designated
claims against Mexico of US citizens for losses or damages suffered by person or by
their properties that had been presented to the US Government for interposition with
Mexico and that had remained unsettled shall be submitted to a commission
consisting of three members for decision in accordance with the principles of
international law, justice and equality. Each state was to appoint one member, and the
presiding third commissioner was to be selected by mutual agreement.
Before the Second World War, there was little attempt at formal codification or creative
development of this body of law though treaties.
COMMENT ON THE CHATTIN CASE
Chattin, a US citizen, was a conductor on a railroad in Mexico from 1908 to 1910, when
was arrested for embezzlement fares. In February 1911 he was convicted and
sentences to two years imprisionment. His appeal was rejectd in July 1911. In the
meantime, the inhabitants of Mazatlan, during a political uprising, threw open the
doors of the jail and Chattin escaped to the US. In asserting Chattins claims, the
United States argued that he arrested was illegal, that Chattin was mistreated while in
prison, that this trial was unreasonably delayed, and that here were irregularities in
the trial. It claimed that Chattin suffered injuries worth $50.000 in compensation. Of
the three members of the Claims Commission, one came from the United States
another from Mexico. Each wrote an opinion. Excerpts from the opinion of the third
Commisioner follow.
The opinion examined a range of complains about the conduct of the trial. In
particular:
I.

The commissioner had not been duly informed of the charges;

II.

the commissioner dismissed Cattin's charge that witness were not sworn as
irrelevant;

III.

the commissioner found the charge that the hearings in open court lasted
only five minutes was proven by record

Taking all the factors into account, the opinion allowed damages in the sum of
5000.
Today a dispute like that in Chattin is resolve in the International Covenant on Civil and
Political Rights (167 states), in particular in the Article 14.

Oscar schachter, International law in theory and practice

(1991), at 50
We can distinguish five categories of general that have been invoked and applied in
international law discourse and cases. Each has a different basis for its authority ad
validity as law. They are:
1. The principles of municipal law
recognized by civilized

2.

General principles of law derived from

the specific nature of the international
community

3.

Principles intrinsic to the idea of law and

basic to all legal system

4.

Principles valid through all kids of

society in relationship of hierarchy and
co-ordination

5.

Principles of justice founded on the very

nature of man as a rational and social
being

A.
Interwar minorities regime and the role of
the treaties
Treaties and other special regimes to protect minorities have a long history in
international law dating from the emergence in the seventeenth century of the
modern form of the political state, sovereign within its territorial boundaries. In
the eighteenth and nineteenth centuries, the precarious situation of Christian
minorities within the Ottoman Empire and of religious minorities in newly
independent East European or Balkan states led to outbreaks of violence and to
sporadic treaty regulation. The First World War ushered in a era of heightened
attention to problems of racial, religious or linguistic minorities (problem:
collapse of the great Austro-Hungarian and ottoman multinational empires).
Wilson stresses the idea of the self- determination of people or nationalities and
the ideals of the freeing of minorities. President Wilson had proposed that the
Covenant of the League of Nations include norms governing the protection of
minorities that would have embraced all members of the League. Yugoslavia
was born as a multi-ethnic state that after 70 years has had such tragic
consequences. There were ambiguous and disputed concepts: national or
nationally.
A Greek-speaking Christian minority would be present in the reconfigured
Muslim Albania.

Minority schools in Albania advisory Opinion, Permanent Court if

International Justice, 1935, Ser. A/B, No.64
(1935) P.C.I.J. (Permanent Court of International Justice), Ser. A/B, No. 64. On
2October 1921, Albania, pursuant to a resolution of the Assembly of the League of
Nations, signed a declaration relating to the position of minorities in Albania. This
declaration included provisions granting Albanian nationals belonging to racial,
religious, or linguistic minorities the same treatment and security in law and in fact
as other Albanian nationals and, in particular, an equal right to maintain or
establish religious and social institutions and schools. In 1933, Albania amended its
constitution so as to close all private schools. Albania maintained that, as the
abolition of private schools was a general measure applying to the majority as well
as the minority, it was in conformity with the declaration. In response to a request
from the Council of the League of Nations in January 1935 concerning the
conformity of this Albanian measure with the letter and spirit of the declaration, on

6April 1935, the P.C.I.J. in an advisory opinion expressed the view (8 to 3) that the
Albanian argument was not well founded: to satisfy the requirement of equality in
fact as well as in law, minorities must be on a footing of perfect equality with other
nationals and they must have available to them suitable means, which included
their separate institutions, for the preservation of the traditions and characteristics
of their minority group; Albanian nationals belonging to the minority groups in
question thus had the right under the declaration to maintain, manage, and
establish their own charitable, religious, social, and educational institutions, and
therein freely to use their own language and exercise their religion.
COMMENT ON FURTHER ASPECTS OF THE MINORITY TREATIES
The minority Schools in Albania opinion address many current issues that remain
vexing. It is important the discussions about the nature of equality and assurances
thereof, in particular about equality in law and in fact.
The precise issue of the Minosity Schools in Albania case is now addressed in the
1960 UNESCO Convention against Discrimination in Education. Artcile 5(1)(c)
recognizes in the right of members of nationals minorities to carry on their own
educational activities, including the maintance of school and, depending on the
educational policy of each State, the use or the teaching of their own language.
COMMENT ON TREATRIES
With this example, it is possible see in which way the multilateral treaties have
been the principal means for development of the human right.
Consider the different purpose that treaties serve. Some concerning vital national
security interests have a basic political character: alliances, peace settlements,
control of nuclear weapons, etc. But treaties often have a direct and specific impact
upon private parties.
I.

Duties imposed by treaty law

The pacta sunt servanda is at the core of treaty law. As stated in Artcile 26 of the
Vienna Convention on the Law of Treaties: Every treaty in force is binding upon the
parties to it and must be performed by them in good faith. The treaty represents
one of the most effective means for bringing some order to relationship among
states or their nationals, and for the systematic development of new principles
responsive to the changing needs of the international community. Treaties then are
the basic instruments underlying much contemporary international regulation. The
contemporary authoritative text grows out of a United Nations Conference on the
Law of treaties that adopted in 1969 the Convention on the Law of Treaties. That
convention became effective in 1980 and has been ratified by 111.
II.

Treaty formation

A treaty is formed by the express consent of its parties. Thereafter a treaty will
generally be proclaimed or promulgated by the executive in each country.
III.

Consent

it is important for create a treaty

IV.

Reservations

Problems of create that have no precise parallel in national contract law arise in
connection with reservations to treaties, i.e., unilateral statements made by a state
accepting a treaty whereby it purports to exclude, or vary the legal effect of certain
provisions of the treaty in their application to a state (Art. 2(1)(d) of the Vienna
Convention).

V.

Violations of and Changes in Treaties

Violation of a treaty may lead to a diplomatic protest and claim before an

international tribunal
VI.

Treaty interpretations

Different approaches are advisable for treaties that lay down rules for a long or
indefinite period, in contrast with those settling past or temporally limited disputes.
The long-term treaty must rest upon a certain flexibility and room for development
if its is to survive changes in circumstances and relations between the parties. The
Vienna Convention in the article 31 provides that treaty shall be interpreted in good
faith in accordance wit the ordinary meaning to be given to the terms of the treaty
in their context. Article 32 goes on to add that recourses may be had to
supplementary means if interpretations produces e meaning that is ambiguous or
obscure or an outcome manifestly absurd or unreasonable.
Part of the difficulty is that treaties may be drafted in several languages

A. Judgment at Nuremberg
COMMENT ON THE NUREMBERG TRIAL
The trial at Nuremberg in 1945-46 of major war criminals among the Axis powers,
dominantly Nazi party leaders and military officials, gave the nascent human rights
movement a powerful impulse.
Before the Nuremberg were punished the piracy and the slave trading => important
There are taken from Nuremberg, the International Criminal Tribunals for the former
Yugoslavia and for Rwanda in the 1990s and the initial of the International Criminal
Court in 2002 => important
Nuremberg was concrete and applied prosecutions, convictions, punishment. The
prosecution and the Judgment of the Military Tribunal in this initial, weighty trial for
massive crimes committed during the war years were based on concepts and norms,
some of which has deep roots in international law and some of which represented
significant development of the law (important for the later formulation of fundamental
human rights norms). The individuals were punished for the three types of crimes
under international law

A) CRIMES AGAINST PEACE: namely, planning, preparation, initiation or waging of a

war of aggression, or a war in violation of international treaties, agreements or
assurances, or participation in a common plan or conspiracy for the accomplishment
of any of the foregoing;
B) WAR CRIMES: namely, violations of the laws or customs of war. Such violations shall
include, but not be limited to, murder, ill-treatment or deportation to slave labor or for
any other purpose of civilian population of or in occupied territory, murder or illtreatment of prisoners of war or persons on the seas, killing of hostages, plunder of
public or private property, wanton destruction of cities, towns or villages, or
devastation not justified by military necessity;
C) CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement,
deportation, and other inhumane acts committed against any civilian population,
before or during the war; or persecutions on political, racial or religious grounds in

execution of or in connection with any crime within the jurisdiction of the Tribunal,
whether or not in violation of the domestic law of the country where perpetrated.
There are two important point in the Charter:
I.

The charter included the war-related crimes against peace (article 6 of the
Charter), so called jus ad bellum, in contrast with the category of war crimes
or jus in bello. So the concept of the just and unjust wars.

II.

The article 6 (c) represented an important innovation. As crime against

humanity was include the programme of Nazi Government to exterminate
the Jews. Only crimes during the WWII and not before September 1, 1939.

The concepts of crimes against humanity, even in this early formulation, developed
the earlier international law.

JUDGMENT OF NUREMBERG TRIBUNAL

International Military Tribunal, Nuremberg (1946)
Previous: The Hague Convention of 1907 prohibited resort to certain methods of
waging war. These included the inhumane treatment of prisoners, the employment
of poisoned weapons, the improper use of flags of truce, and similar matters. Since
1907 the have certainly been crimes, punishable as offenses against the law of
war.
In the Tribunal of Nuremberg the comes against international law are committed by
men, not by abstract entities, and only by punishing individuals who commit such
crimes can the provisions of international law be enforced. The author of these acts
cannot shelter themselves behind their official position. But the official position of
Defendants (article 7), whether as heads of States, or responsible officials in
Government departments, shall not be considers as freeing them from
responsibility, or mitigating punishment.
It was also submitted on behalf of most of these defendants that in doing what they
did they were acting under the orders of Hitler, and therefore cannot be held
responsible for the for the acts committed by them in carrying out these orders
(Article 8).
The Nuremberg faced in particularity:
i. War Crimes and Crimes against Humanity.
War Crimes were committed on vast scale, never before seen in the history. The Nazi
leaders conduct the aggressive war in the most barbaric way. Prisoners of war illtreated and tortured and murdered. Populations deported to Germany for the purpose
of slave labour upon defense works, armament production. City and towns and villages
were wantonly destroyed without military justification or necessity. Etc
ii. Murder and Ill-Treatment of Civilian Population
Article 6(b) of the Charter provides that ill-treatment of civilian population of or in
occupied territory killings of hostage wanton destruction of cities, towns, etc.
iii. Slave Labor Policy
Deportation to slave labor or for other purpose, etc
iv. Persecution of the Jews

It is record of consistent and systematic inhumanity on the greatest scale. In 1938, the
Nazi policy want to the exclusion of Jews from German life. In 1941, plans were made
for the final solution of the Jewish question in Europe. Adolf Eichmann program by
Hitler the killing of 6 million Jews, of 4 million were killed in the extermination
institutions.
v. The Law Relating to War Crimes and Crimes against Humanity
The article 6 (b) of the Charter recognized as War Crimes under international law. They
were covered by Article 46, 50, 52 and 56 of the Hague Convention of 1907, and
Article 2, 3, 4, 46 and 51 of the Geneva Convention of 1929.
Article 1: The Contracting Parties confirm that genocide, whether committed in time of
peace or in time of war, is a crime under international law which they undertake to
prevent and to punish
Compare with the Nuremberg Judgment the following provisions of the Conventions on
the Prevention and Punishment of the Crime of Genocide bearing on personal
responsibility. Article 2 defines genocide:
I.

Killing members of the group

II.

Causing serious bodily or mental harm to members of the group

I.

Deliberately inflicting on the group conditions of life calculated to bring

about its physical destruction in whole in part.

II.

Imposing measures intended to prevent births within the group

III.

Forcibly transferring children of the group to another group

VIEWS OF COMMENTATORS:
Professor Hans Kelsen: Law applied by the judgement of Nuremberg is an ex post
facto law, so it is wrong. A retroactive law proving individual punishment for acts
which were illegal though not criminal at the time they were committed. The
retroactive of the law applied to them can hardly be considered as incompatible
with justice.

Louis Henkin, International Law: politics, value and

functions 216 Collected courses of the Hague Academy of International Law
(Vol.IV, 1989) 13, at 2008
ANTECEDENTS OF THE OINTERNATIONAL LAW OF HUMAN RIGHTS
In nineteenth century, European and America states abolished slavery and slave
trade. Later States began to pursue agreements to make war less inhumane, to
outlaw some cruel weapons to safeguard prisoners of war, the wounded, civilian
populations. Humanitarian limitations on the conduct of war. Following the First
Wirld War concern for individual human beings was reflected in several League of
Nations programme. By the League of nations State Parties assumed obligations to
respect rights of identified ethnic, national or religious minorities among their
inhabitants. Also we have a individual welfare as the International Labour Office
(now the International Labour Organisation: ILO) that was established and it
launched a variety of programmes including a series of conventions setting

minimum standards for working conditions and related matters. We have also a
humanitarian development (labour, minorities, health, etc.) and also recognized a
political freedom (to speech, association and assembly) with the universal suffrage.

A. Birth of the Regime: the UN Charter and the UDHR

The Nuremberg trial and several provisions of the United Nations Charter of 1945 held
centre stage in the incipient human rights regime until 1948, when the UN General
Assembly approved the Universal Declaration of Human Rights. For 28 years, the
UDHR occupied centre stage. The two fundamental human rights treaties, the
International Covenant on Civil and Political Rights and the International Covenant on
Economic, Social and Cultural Rights, both became effective in 1976. Together were
opened the doors to the regional human rights systems: European Convention for the
Protection of Human Rights and Fundamental Freedoms, the American Convention on
Human Rights and the African Charter on Human and Peoples Rights
COMMENT ON THE CHARTER, UDHR AND ORIGINS OF THE HUMAN RIGHTS REGIME
The UN charter itself first gave forma and authoritative expression to the human rights
regime than began at the end of the Second World War.
I.

Charter Provision (same said above)

II.

Universal declaration

That commission was contemplated by Charter Article 68, which provides that one
of the UN organs. The Economic and Social Council (ECOSOC). In 1946 the ECOSOC
established the Commission on Human Rights, which evolved over the decades to
become the worlds single most important human rights organ. The UN commission
first met in its present from early in 1947. One important moment was the decision
in 1952 to build on the UDHR by dividing its provision between two treaties, one
civil and political rights, the other economic, social and cultural rights. During 28
years between 1948 and 1976, a number of specialized human rights treaties such
as the Genocide entered into force
III.

Together with the UN commission, other UN organs have played major roles
in developing universal human rights

IV.

Historical sequence and typology of instrument: The Un Charter; the UDHR;

the two principal covenants; a host of multilateral human rights treaties

Mary Ann Gledon, a world made New (2001), at 221

Accusations of cultural relativism and cultural imperialism need to be taken seriously.
Is the declaration a Western document in some meaningful sense, despite its
aspiration to be universal? Is universal sality a cover for cultural imperialism? Let us
examine the charges on their merits.

Topic 2

Civil and Political Rights

A. The international Covenant on civil and political rights:

introduction
COMMENT ON RELATIONSHIP BETWEEN THE UNIVERSAL DECLARATION AND THE
ICCPR
The comparison below between the UDHR and the ICCPR assume that familiarity.
One basic similarity informs all of the following discussion; each instrument aspires
to universality. both are terse about their derivations of foundations in moral and
political thought. Many rights in the Covenant closely resemble the provisions of
the Universal Declaration, although they are stated in considerably detail. In
addition, Individual rights characterize these instruments. In both instruments, the
idea of rights dominates with respect to individuals. The article 5 of the UDHR base
cruel, inhuman or degrading punishment but that instrument does not refer to
capital punishment as such Two types of provisions in the ICCPR limit states
obligations thereunder:
a. Under closely states conditions and limits, article 4 dealing with a public
emergency permits a derogation, in the sense of a temporary adjustment to or
suspension of the operation of some of the rights declared by the Covenant.
b. Several articles include limitation clauses.
The ICCPR Article 1 on the self-determiantion of peoples and Article 27 on the
enjoyment by minorities of their cultures.
The ICCPR and the other human rights treaties grew within the UN

Antonio Cassese, a plea for a global community

grounded in the core of Human rights in Realizing Utopia: the
Future of International Law (2012), 137, at 139
Cassese explore this issue of equality of hierarchy, and implicitly the notion of the
interdependence and indivisibility of all rights.
We should first of all draw a distinction between (i) a core of fundamental values
which must be common to all nations, states, and individuals and may not,
therefore, be derogated from and (ii) others values, the applications of which may
need to take into account national conditions.
In 1960 for the first time in world history, the notion was accepted that there
should be a hierarchy in the body of rules of the international community and that
some principles or norms should be at summit of the legal system. So the Jus
cogens(diritto international nn violabile) are genocide, slavery, racial
discrimination, and forcible denial of self-determination, torture, slave trade, right
to life, right to acces to justice, etc.. Others values, consecrated instead i
international rules deprived of the nature of jus cogens.
COMMENT ON TYPES OF STATES DUTIES IMPOSED BY HUMAN RIGHTS TREATIES
To understand the significance and implications of the rights states in the ICCPR,
CEDAW an other human rights treaties, it is helpful to examine the related
duties/obligations of states, even though human rights conventions rarely talk of
duties.

some of these duties can fairly be called correlative (corresponding) to the rights and
others duties may be necessary implications from the nature of a given right even of
they are not spelled put in tray text. Different rights may point to different types of
states duties. All depends on the nature of the right, on the problems that it was
meant to overcome or to prevent.
I.

At the start of the human rights regime, much weight was given to a
distinction between so called negative (as tortured) and positive rights
(stamps food).

II.

The rights are not static. They involved. They broaden or contract over time.
One way for understanding an expansion of content of a given right is to
examine the duties related to that right, and to inquire whether and how
they have expanded.

The following scheme of five types of states duties derives form but modifies
earlier writings.
1

Respect Right of Others

This duty requires the state to treat persons equally, to respect their individual
dignity and worth, and hence not to interfere with or impart their declared rights,
whether they be physical security rights to due process, equal protection, speech
or political participation. This duty of respect has often been described as negative
in the sense of being a "hands-off" duty. For many but not all rights in the treaties,
the duty of respect reaches beyond states to obligate individuals and non-state
entities.
2

Create Institutional Machinery Essential to Realization of Rights

Some rights may be impaired or effectively annulled not only by governments

direct interference with them, but also its failure to put in place the institutional
machinery essential for the realization or practice of the right.
3

Protect Rights/ Prevent Violations

Several human rights treaties make implicit the state s duty to protect against and
to prevent violations of rights, for example, Article 2 of the ICCPR that gives victims
of violations the right to a remedy. In the case of the ICCPR, that command is
expressed through the states duty in Article 2 to ensure to all individuals the
recognized rights. States must then do the necessary to ensure.
4

Provide Goods and Service to Satisfy Rights

The state's duty here is primarily to provide material resources to the rights-bearer,
like housing or food or health care, matters associated with the International
Covenant on Economic, Social and Cultural Rights.
5

Promote Rights

The State duty refers to bringing about changes in public consciousness or

perception or understanding about a given problem or issue, with the purpose of
alleviating the problem.

The Pubblic/ Private divide: private violence against

women

In classical term human rights obligations are assumed by, or imposed upon the
state. The resulting duties are public or governmental. Ad example some treaties
such as Torture Convention are exclusively state-centric and other (as CEDAW) is
explicit addressing conduct attributable not the state but to non-state/non
governmental(private).
In Peru, almost 50% of woman are victims of severe physical violence during their
lifetime, and in Etiopia, 54% percent of woman reported being subject to physical
or sexual abuse by intimate partner in the past 12 months.
The issue of violence against woman remained largely invisible prior to eh 1979
adoption of the CEDAW Convention, which contains not a single reference to it.
World Conferences on Woman in 1980 and 1985 alluded to the problem, but the
first serious steps in the UN context came with the resolution by the ECOSOC in
1984 and the General Assembly in 1985. These led to a parthbreaking UN study on
Violence against Woman in the Family, and more detailed General Assembly
resolution in 1990.

Velazquez Rodriguez Case Inter-American Court of Human Rights, 1988,

Ser.C, No. 4,9 Hum. Rts. L.J.212
It documents a record of numerous disappearances in Honduras from 1981 to
1984. Certain citations to authority and the names of the people testifying have
been omitted from a number of paragraphs. You might start by reading paragraph
45 to appreciate both the courage and the difficulty associated with attempts by an
international court to enforce the rule of law during the infamous era of the
"desaparecidos" [people who were disappeared without a trace]. This case also
illustrates how a major human rights case evolves in the followin
A petition against Honduras was received by the Inter-American Commission of
Human Rights, alleging that Velasquez Rodriguez was arrested without warrant by
Honduras national security units. Knowledge of his whereabouts was consistently
denied by police and security force. Velasquez had disappeared. Honduras in this
way had violated several articles of the American Convention on Human Rights.
The Court concluded that Honduras had violated the Convention.

MS. A.T. v. Hungary

Communication No. 2/2003, CEDAW Committee Views,

Jan.26, 2005, UN Doc. CEDAW/C/32/D/2/2003 (2005)
The author stated that she had been subjects for four years to regular severe
domestic violence and serious threats by her common law husband, L. F., father
ofher two children, one of whom was brain-damaged. L.F. Threatened to kill the
author and rape the children, but the author did not go to shelter because no
shelter in the country is equipped to take on a fully disabled child together with his
mother and sister. Ten medical certificates had been issued in connection with
separate incidents of severe physical violence, even after L.F. left the family
residence to live with another woman. At one stage, L. F. broke into the apartment
when he no longer had a key. The author alleges that she is victim of violations by
Hungary of article 2(a), (b) and (e), 5(a) and 16 of the (CEDAW) for its failure to
provide effective protection from her former common law husband. Protection and
prevention of the violations against woman are important in these cases. Must
have an absolute priority the violations against woman in the country.
I. Concerning the author of the communication

a. Take immediate and effective measures to guarantee the physical and mental
integrity of A.T. and her family
b. Ensure that A.T. is given a safe home in which to live with her children, receive
appropriate child support, etc.
II. The general recommendations to the state included: respecting and promoting
women's right to be free from all forms of domestic violence; taking measures for
prevention and effective treatment of violence; etc.

D. Norm regression: the torture prohibition

The UDHR had a priority in importance; torture would surely rank high on the list.
Article 5 of the UDHR states that no one shall be subject to torture or to cruel,
inhuman or degrading treatment or punishment, Article 7 of the ICCPR restates this
language. As of 2012, that the treaty had 150 states parties. The regional conventions
reveal the same emphasis on the prohibition, in both general and torture specific
treaties. Its is more problematic in the authoritarian regimes or developing countries
than the democratic and developed countries. it is appears that period of mass
violence of horrific proportions, such as the Cambodia and Rwanda genocides, weaken
inherent or acquired inhibitions against vile behaviour so as to make commonplace the
torture of helpless civilian populations and prisoners.
Torture by state officials is them rarely gratuitous or attributable simply to aberrational
conduct stemming from the dark side of our human nature.
Torture in many cultures has as a part of punishment itself after the criminal process
that it has ended in a conviction. Historically in the West, torture served for hundreds
of years another related function that was largely abolished by the eighteenth century.
The question is centred in the West where such important progress seemed to have
been achieved, in the United States and other Western democratic as they confront
the perils of a post 9/11 world: weapons of mass destruction, non-state acrtors,
terrorism, threats of massive killing.
INTERNATIONAL INSTRUMENTS PROHIBITING TORTURE
The following illustrations of prohibitions and definitions of torture are drawn from
major declarations and treaties on human rights and on humanitarian law. They are
listed on chronological order
Universal Declaration of Human Rights, 1948 (Article 5)
Geneva Conventions, 1949 (Article 3, 129 and 130)
European Convention for the Protection of Human Rights and Fundamental Freedoms,
1950 (Article 3)
International Covenant on Civil and Political Rights, 1966 (Article 4 and 7)
UN Declaration on the Protection of All Persons form Being Subject to Torture and
Other Cruel, Inhuman or Degrading Treatment or punishment, 1975 (Article 1)
Africa (Banjul) Charter on Human and Peoples Rights, 1981 (Article 5)
Convetion against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, 1984 (Article 1, 2, 4 and 16)
Inter- America Convention to Prevent and Punish Torture, 1985 (Article 2 and 5)
Rome Statute for the International Criminal Court, 1998 (Article 7)

Bentham on Torture

W.L. Twing & P.E. Twings (eds. And commentary), 24 N.

Irelanda Leg. Q. 305

These previously unpublished manuscripts of Jeremy Bentham, a principal and
influential expounder of utilitarianism for modern Western thought, were written mid1770s to 1780, almost two centuries before the birth of the International humans
rights movement.
When there are a public interest and suffering of the innocent people the author think
that the torture is possible to apply. Then lists the rules of when and how should it be
torture.

Pubblic committee against torture in Israel v. Government

of Israel Supreme Court of Israel, 1999, H.C. 5100/94
The applications for belief for belief brought before the Court concerned interrogation
methods used by the General Security Service (GSS) to investigate individuals
suspected of committing crimes against Israel's security. In particular the combat
against terrorist organizationscommitted to Israel's annihilation. Terrorist attack that
includedn suicide bombings against civilian and military targets led to 121 detahs and
707 injured people from 1996 to May 1998. Its investigation and interrogation of
suspects seek information for the purpose of thwarting and preventing terrorists from
carrying out these attacks. It used physical means in the interrogations.
SHAKING
A number of applicants claimed that the shaking method was used against them.
According to an expert opinion submitted in one of the applications, the shaking
method is likely to cause serious damage, harm the spinal cord, cause suspect to lose
consciousness, vomit and urinate uncontrollably and suffer serious headaches. The
State argues in its response that the shaking method is only resorted to in very
particular cases, and only as a last resort. According to the respondent, shaking is
indispensable to fighting the winning the war on the terrorism. Its use in the past has
led to the thwarting of murderous attacks.
WAITING IN THE SHABACH POSITION
A suspect investigated under the Shabach position has his hands tied behind his back.
He is seated on a small and low chair, whose seat is tilted forward, towards the
ground. One hand is tied behind the suspect, and placed inside the gap between the
chair' s seat and back support. Powerfully loud music is played in the room.
The opinion three additional physical means included in the application: 1. the frog
crouch periodical crouches on tiptoes each crouch lasting five minutes; 2. excessive
tightening of hand or leg cuffs; 3. sleep deprivation
APPLICANTS ARGUMENTS
These methods, argue the applicants, are in violation of International Law as they
constitute TORTURE, which expressly prohibited under International Law. Thus, the
GSS investigators are not authorized to conduct the interrogations
THE STATES ARGUMENTS
The state argues that do not violate International Law. The practice of the GSS do not
cause pain and suffering, according the States position. The States argues that these
means are equally legal under Israels international (domestic) law.

THE COMMISSION OF INQUIRY'S REPORT

The commission concluded that in case where the saving human lives requires certain
information, the investigator is entitled to apply both psychological pressure and a
moderate degree of physical pressure.
The commission was convinced that its conclusions to this effect were not in conflict
with International Law, but instead reflect an approach consistent with both the Rule
Law and the need to effectively safeguard the security of Israel and its citizens.
An investigator who insists on employing these methods is exceeding his authority...
his potential criminal liability shall be examined in the context of the "necessity"
defence... Individuals liberty constitutes an important component in its understanding
of security.
So the CONCLUSION declare that GSS does not have the authority to shake a
man, hold him in the Shabach position force him into a frog crouch position and
deprive him of sleep in a manner than that which is inherently requires by the
interrogation

Sanford Laevinson (ED.), Torture: a Collection (2004) Sanford

Levinson, contemplanting Torture: An introduction, at 23
Torture ought to remain illegal. Few governments, including the US, Great Britain and
Israel among others that could no doubt be cited, appear eager, or even particularly
willing, to prosecute as criminals agents of the state who engaged in violations of the
relevant prohibitions. As Jhon Conroy writes, through the world tortures are rarely
punished, and when they are, the punishment rarely corresponds to the severity of the
crime.
JEAN BETHKE ELSHTAIN, REFLECTION ON THE PROBLM OF DIRTY HANDS, AT 77
There is no absolute prohibition to what some call torture... torture is not sufficiently
disaggregated. Recall the possibility: pulling out fingernails; grinding the teeth down or
pulling teeth; rapine men or woman; burning breasts, genitalia; hanging for hours from
the arms; torturing the spouse or children, etc... There should be prohibitions against
such practices as sleep deprivation, use drugs to cause confusion, etc... The Geneva
Convention makes not distinctions of any king between these tactics and the horrific
possibilities I noted earlier.
The ban or torture must remain. But moderate physical pressure to save innocent
lives, coercion by contrast torture, is not only demanded in certain extreme
circumstances, it is arguably the least thing to do.
JOHN PARRY, ESCALATION AND NECESSITY, AT 145
Torture also includes the combination of being made to stand all day for days at time,
beatings, and withholding food; eating and being buried alive; electric shocks,
beatings, being hung it on's arms behind back, having on's head forced under after
until nearly asphyxiated, and being made to stand for hours.
Another series of cases has found that certain combinations of conduct are torture and
cruel inhuman treatment... The European Commission of Human Rights found that
beatings and one or more instances of electric shock, more execution, or refusal of
food and water were either torture or inhuman treatment...
The Israel situation presents the potential importance under the Convention for
determining the difference between torture and the lesser category of cruel, inhuman,

or degrading treatment... The Convention bars torture absolutely.. by contrast, states

ratify Convention must undertake to prevent cruel, inhuman, or degrading treatment,
but the no exceptional circumstances provision does not apply. Thus, if conduct similar
to Israel's former practices would not be torture under the Convention, an exceptional
circumstances justification could be available.
OPEN GROSS, THE PROHIBITION ON YORTURE AND THE LIMITS OF LAW, AT 229
There are: the absolutist that think the torture is inherently wrong with not exceptions.
other support an absolutist view of the ban on torture by arguing that social costs of
permitting the use of torture, even in narrowly defined exceptional circumstances.
Others think that the prohibition on torture cannot be defensible as a moral absolute
( as in the fight of the terrorism for save a innocent person. ).. etc.
Others think that the torture was necessary in order to save lives apply to a judge,
when possible (with a "torture warrant")

Comment on US law and policy of torture after 11

September
The events of 11 September 2001 led the Administration at the time to develop and
institutionalize a broad policy of counter-terrorism. The question of torture, once
thought settled and closed as a normative matter, became newly relevant in a
domestic and international context.
As a background matter, it is important that the US had entered the following
reservation to its ratification (1994) of the Convention against Torture. A similarly
worded reservation to US ratification (1992) of the International Covenant on Civil and
Political Rights was entered with respect to Article 7 of the Covenant.
It recalled that CAT distinguishes between torture and cruel, inhuman or degrading
treatment or punishment which does not amount to torture as defined in Article 1.
US DEPARTARMENT OF JUSTICE, MEMORANDUM FROM DANIEL LEVIN, ACTING
ASSISTANT ATTORNEY GENERAL, TO JAMES B. COMEY, DEPUTY ATTORNEY GENERAL,
DECEMBERM 30, 2004
The Bybee memorandum above provoked extensive debate and much criticism, much
of which was directed to its very restrictive definition of torture.
In a few words.... 1 august 2002 Memorandum by Bybee had discussed and approved
a wide range of specific techniques including waterboarding, sleep deprivation,
throwing and individual against a flexible false wall, and confining the individual
inside a box and introducing an insect the box. In 2005, the Office of Legal Counsel
issued an opinion stating explicitly that these techniques were consistent with the
2004 Memoranudm by Levin and thus did not constitute torture.
During 2005 and 2006, intense debate continued the treatment of prisoners with
respect to a range of issues, including interrogation methods.
Prior to the MCA, the War Crimes Act criminalized violations of common article 3.
Common article 3 prohibits violence to life and person, in particular murder of all kids,
mutilation, cruel treatment and torture as well as outrages upon personal dignity
humiliation and degrading treatment. Included the definition of torture and the cruel or
inhuman treatment as a criminal offence. Also the meaning of serious serious physical
pain or suffering is further defined as bodily injury that involves.

Conclusion and recommendation of committee against

torture relating to report submitted by the United States
CAT/C/USA/CO/2, 25 July 2006

The Committee against torture created by the CAT serves several functions
comparable to those of the CEDAW Committee In 2006, the Committe issued its
conclusions and reccomendations concerning a report submitted b the United States
that year...
i. the Committee also regrets, despite the occurrences of cases of extraterritorial
torture detainees, no prosecutions have been initiated under the extraterritorial
criminal statute (arts. 1,2,4 and 5)..
ii. The Committee regrets the State party's opinion that the Convention is not
applicable in times and in the context of armed conflict...
iii. The states party should recognize and ensure that the provisions of the Convention
expressed as applicabil to territory under the State party's jurisdiction apply to by all
persons under the effective control of its authorities, of whichever type, wherever
located in the world..
iv. The State party should rescind any interrogation technique, including methods
involving sexual humilation, waterboarding, etc....
etc, etc....

Committee on economic, social and cultural rights, general

comment No 9 Domestic Application of the Covenant, UN Doc. E/1992/22,
Annex IV, 1998
A. The duty effect to the Covenant in the domestic legal order
The Covenant requires each State Party to use all means at its disposal to give effect
to the rights recognized in the Covenant.
B. The Status of the Covenant in the domestic legal order
In generally, legally binding international human rights standards should operate
directly and immediately within the domestic legal system of each State Party
C. The role of legal remedies
The Covenant itself does not negate the possibility that the rights may be considered
self-executing in systems where that option is provided for.
D. The Treatment of the Covenant in domestic courts
Some courts have applied the provisions of the Covenant either directly or as
interpretive standards. Other courts are willing to acknowledge the relevance of the
Covenant for interpreting domestic law, the impact of the Covenant on the reasoning
or outcome of cases is very limited.

Christof Heyns & Frans Viljoen, the impact of the United

Nations Human Rights Treaties on the domestic level (2002)
The following presents the findings of a study initiated in collaboration with the Office
of the High Commissioner for Human Rights. The study examines the effectiveness of
the UN human rights treaty system across a variety of states.
IMPACT OF THE TREATIES
i. Level of awareness of the treaties
ii. Constitutional recognition of treaty norms
The impact of the treaties on the constitutional human rights provisions in respect of
which the have played a role may be categorised as follow:
- The treaties played an identifiable and significant role in the drafting process of
constitutional human rights provisions
- Many of the treaty norms are mirrored in bills of rights, and there is some causal link
between the treaties and the constitutional human rights provisions
- Only some norms are reflected in constitutional human rights provisions, and there is
no clear link between them
iii. Legislative reform
Numerous instances of legislative reform that prompted by the treaties have been
identified. Some of this reform took place as a result of compatibility studies, other in
response to concluding observations, and some in the course of ordinary legislative
review...(examples of the countries). There is ample evidence of the impact of the
treaties on legislation in Finland and Russia. They have played a very limited role in
Colombia
iv. Judicial decisions
Frequently courts have used the treaties as interpretative guides to clarify legislative
provisions, such as those of the national bills of rights.
Based purely on the number of references to the treaties as a tool of interpretation in
decided cases traced in the course of this study, the following categories
May be identified:
-Frequent use of treaties as an interpretative tool
- Infrequent use of treaties as an important tool
- Very limited references to treaties
- No references whatsoever to treaties found (Iran, Mexico and Senegal)
v. Development for policy, etc
vi. Use by NGOs
NGOs use specific treaties as focal points for lobbying activities. In Iran and Zambia
this has happened in respect of childrens and womans rights.
vii. Academic publications
References to the treaties in academic publications are found in most of the countries
reviewed

LIMITING AND ENHANCING FACTORS

-

Factors limiting the impact of the treaties

a. Governments guard their sovereingty jealously
b. In many instances conscious resistance is not necessary. The
widespread ignorance of the treaty system in governments, among
lawyers etc
c. The absence of a domestic human rights culture is another obvious
factor that limits the impact of the UN treaties in many societies.
d. In some countries there is a shortage of journalists with human rights
training
e. Socio- economic factors often have a negative influence on the
potential impact of the treaties
f. In some countries instances treaties are associated with unpopula
political causes (example abolition of the death penalty)
g. In some instances the progressive and effective protection of human
rights on the domestic level could render the International system
redundant
h. There is a lack co-ordination within governments, between NGOs and
between governments and NGOs
i. The treaties cover six separate areas of human rights, but governments
departments are not organised in that way
l. Federal states find it more difficult to report and at times also to take
decisions to ratify treaties
m. Correspondents report a widespread preference for regional systems
above the UN systems

- Best practices and Proposals => the practices are improving the procedures and
National human rights institutions are found in an increasing of countries around the
world today

Virginia Leary, International labour conventions and

national law (1982), at 1
The efficacy of human rights treaties depends essentially on the incorporations of their
provisions in national law. It is in the national legal system which determines the
status or force of law which will be given to a treaty within that legal system. While the
International legal system does not reach directly into the national systems to enforce
its norms it attempts to do indirectly.
The status of treaties in national law is determined by two different constitution
techniques referred to in this study as legislative incorporation (in these states the
provisions of ratified treaties do not become national law unless they have been
enacted as legislation by the normal method ) and automatic incorporation (in these
states ratified treaties become domestic law by virtue of ratification)

Topic 3

A. Evolution of human rights: sexual orientation

discrimination
In this section was turn to the evolution of new norms, and consider the particular
case of lesbian, gay and bisexual (LGB) rights
NATIONAL AND TRASNATIONAL SOCIAL AND LEGAL CHANGE
Formal recognition of LGB rights by international authorities came about in the
closing decades of the twentieth century (1980-1999). Efforts to forge a new legal
system for LGB rights were galvanized, in particular, by two key developments in
the United Kingdom and the United States. In England issued a report in 1957. The
ensuring public debate culminated in legal reforms and substantial
decriminalization of same-sex conduct in 1967. In the USA, a new social movement
was launched around the same time. A flashpoint occurred at a gay bar in 1969 in
New York. The following year on the anniversary of the Stonewall Riots, the first
Gay Pride. In 1973 the American Civil Liberties Union created the Sexual Privacy
Project. These social and legal changes soon acquired a transnational dimension.
LGB organizations formed in multiple countries (Before 1980, there are no LGBT
INGO membership. By 2005 , the total is more than 250, representing more than
100 different countries).
THE ROAD TO FORMAL RECOGNITION AT THE INTERNATIONAL LEVEL
The European Court of Human Rights was the first international institution to
recognize LGB rights. In a land mark decision in 1981 (Dudgeon v. United Kingdom,
the Court held that sodomy laws violated the right to privacy under European
Convention). Beginning in 1994, the United Nations High Commissioner for
refugees recognized that sexual orientation qualifies as a particular social group
eligible for the protection under international refugee law..... By 2001, four of the
other five universal human rights treaties were interpreted by the respective
supervisory organs to cover sexual orientation discrimination (CEDAW in 1999,
CESCR in 2000, CRC in 2000 and CAT in 2001).
During that period, European institutions succeeded in establishing the most
protective laws and policies concerning LGB rights. For example, in 1997, The
Amsterdam treaty became the first international agreement with an explicit aim to
prohibit discrimination based on sexual orientation. A key turning point in the
struggle for equality at the Fourth Conference on Women held in Bejiing in 1995.
The conference adopted an important Declaration and platform for Action, In the
drafting process, a highly mobilized coalition of NGOs pressed for the inclusion of
explicit references to sexual orientation.
So by the early 200s, like minded states worked together to have the United
Nations officially recognize LGB rights
DEATH PENALTY RESOLUTIONS
The first successful effort along these lines involved a UN resolution on the death
penalty. Since the mi-1990s, the principal human rights organ of the UN General
Assembly passed an annual calling for strictly circumscribing if not eventually
abolishing, the death penalty. In 2002, negotiators achieved another incremental
step. A section of the resolution calling on states to limit the death penalty to the
most serious crimes included a phrase also urging states to ensure the death
penalty is not imposed for no-violent acts such as sexual relations between
consenting adults
EXTRAJUDICIAL AND ARBITRARY EXECUTIONS RESOLUTIONS

In 2002, the extrajudicial killing resolution became the first official text of the
United Nations to acknowledge the obligation of member states to protect
individuals on the basis of their sexual orientation. In 2010 an amendment passed
in the UN that said all states that spoke in support of the amendment began by
confirming their belief that human rights should be equally enjoyed by all,
particularly the right to live free from discrimination and violence... all states
understood that they needed to take targeted steps to protect LGB individuals...
etc.
For proponents of LGB rights, the setback in the Third Committee mobilized
important actors to restore the original text before a vote by the General Assembly
the following month. UN Secretary General Ban KI Mon, who had acquired a
reputation for soft-peddling human rights, adopted a strong and unequivocal
stance. In the address on Human Rights Day 2010, he stated: today is human
Rights Day, a day dedicated to defending freedoms and protection for all people...
and yet, homosexuality is considered a crime in more than 70 countries. This is not
right... People were not put on this planet to live in fear of their fellow human
beings...etc.
The US also took a leadership position in the effort to restore the text on sexual
orientation. The US sponsored a proposal to restore the reference to sexual
orientation in the text. The General Assembly voted 93 in favour, with 55 countries
voting against and 27 abstaining.
SEXUAL ORIENTATION-SPECIFIC RESOLUTIONS
States have also attempted to adopt a UN resolution specific to human rights and
sexual orientation , an effort that finally succeeded in 2011. The first significant
attempt occurred in 2003. . Between 2005 and 2010, three important
developments shaped the trajectory of state support for LGB rights. The first
involved an effort by NGOs. The second development occurred within the InterAmerica system. The third development between 2005 and 2010 involved
diplomatic efforts within the United Nations.
At the Human Rights Council's June 2011 session, South Africa took the lead in
sponsoring the UN's first ever resolution on human rights, sexual orientation and
gender identity. In February 2012, Pakistan, on behalf of 57 member OIC, submitted
letter to the Council that reiterated many of the points raised in the Syria
Statement in 2008. The letter concluded that the Member States of the OIC would
like to place on record their opposition to the holding of this panel and will not
accept its considerations and recommendations. In 2012, the Human Rights Council
held the unprecedented panel discussion.

Explanations of vote on 2011 Human Rights council

resolution on human rights, sexual orientation, and
gender identity 17 June 2011
South Africa: introducing the draft resolution.
Nigeria, speaking in an explanation of the vote before the vote, said that Africa
countries, and more than 90 per cent of the Africa people did not support the
resolution.
Saudia Arabia said that draft resolution was not in line with international agreed
human rights principles
Bahrain... condemned the attempt to make the Council deal with controversial
issues such as gender identity.

Bangladesh supported all human rights, including the right to development and
condemned violence against individual groups
Mexico Mexico did not share the views of colleagues that the Council would be
imposing non-recognized rules. Mexico supported with complete conviction the
draft.
United States... said the United States was thrilled to join South Africa an other
members States on this resolution
Jordan regretted it could not join the consensus on this draft resolution
Mauritania the resolution did not promote advancement of human rights but
rather the dehumanisation of human beings

Statement by the by the Holy see delegation (the Vatican) 9

march 2012
The Holy see has condemned repeatedly against people because of their perceived
sexual differences. It is deplorable that homosexual persons have been and are the
object of violent malice in speech or in action action. The Holy See Delegation
wishes to raise serious concern with the insertion of terms such as sexual
orientation and gender identity which do not enjoy mention in binding documents
of the United Nations and which are ambiguous in nature since they lack specific
definition in international Human Rights Instruments. Marriage contributes to
society because it models the way in which woman and men live interpedently and
commit, for the whole of life, to seek the god of each other. So The Holy see think
that this Council may be running the risk of demeaning the sacred and timehonoured legal institution of marriage between woman and men. Mother and father
is the foundation of the nature family.

Topic Seven

The United Nations System

The United Nations Human Rights System

The Human Right Council and its different functions: responding to violations,
setting human rights standards, dealing with complaints against states and
monitoring states compliance with their obligations

Comment on sovereignty and domestic jurisdiction

The complex and unresolved relationship between the sovereignty of states and
their obligations to respect human rights is nowhere better exemplified than in the
UN charter. Article 1(3) lists one of the purpose of the UN as being to achieve
international cooperation in promoting and encouraging respect for human
rights. And Article 55 (c) tasks the UN with promoting universal respect for, and
observance of, human rights. Article 2(7), on the other hand, reassures
governments that nothing in the Charter shall authorize the United Nations to
intervene in matters which are essentially within the domestic jurisdiction of any
State, with the sole exception of binding measures prescribed by the Security
Council.
Malanczuck used to describe the commands of a sovereign within a state (internal
sovereignty), sovereignty later came to be used to describe as well the relationship
of the ruler towards other rulers or states (external sovereignty, a continuing deep
concern of international law).
Koskenniemi connected with the ideas of independence (external sovereignty) and
self-determination (internal sovereignty).
Keck and Sikkink, in activists Beyond Borders: advocacy Networks in International
Policts 215 (1988), on the other hand , see sovereignty much more in political
terms and as having a strong North-South dimension.
Article 2(7) of the Charter which safeguards the domestic jurisdiction of states.
Each state, when addressed by UN organ, would then decide for itself whether or
not the matter raised was part of its domaine reserve (domestic jurisdiction) and
thus off limits to the UN under Article 2(7).
The end of the Cold War brought the adoption of the following statement in 1991
by the Conference on Security and Co-operation in Europe. The participating States
emphasize that issues relating to human rights, fundamental freedoms, democracy
and the rule of law are of international concern

Comment on conceptions of enforcement

It is therefore not surprising that the UN's efforts to establish institutions and
procedures capable of security enforcement have been more controversial than its
work in setting human rights standards, upon which all states often agree. It is also

that the use of force for human rights purposes has won increasing support in
recent years, starting with Kosovo and East Timor in the Early 1990s through to
Guinea and Libya in 2011, but is surely no what is meant by calls for the UN to
enforce, routinely, universal human rights norms.

A. Overview of the Human rights machinery

The UNs human rights regime reflects a two track approach:
i. UN Charter-based bodies including those (a) whose creation is
directly mandated by the UN charter, such as the General
Assembly and the Human Rights Council, (b) subsidiary bodies
created by one of the principal organs, such as the Commission on
the Status of Woman or the Human Rights Council Advisory
Committee, and (c) groups or individuals accorder specific
mandates by those organs to monitor, draft standards or for other
purposes.
ii. Treaty-based bodies such as the Human Rights Committee
established under the ICCPR, to monitor compliance compliance
states with their obligations under those treaties. Such treaty
bodies include the CEDAW Committee the ESCR Committee and
the ICCPR Committee.
-

Security Council was extremely reluctant to become involved in human rights

matters. Similarly, the International Court of Justice (ICJ) have an important role
after the 1990. Infact after that, the ICJ adopted a series of judgments of major
importance in terms of their contribution to an understanding of aspects of the
international human rights regime.

The Secretariat is led by the Secretary-General, who is appointed for five years
by the General Assembly on the recommendation of the Security Council. A
nominee may thus be vetoed by any of the five permanent members of the
Council. For decades successive Secretaries- General were very reluctant to
embrace human rights. In contrast, Kofi Annan (Ghana), secretary-General from
1997 to 2006, took a much more active human rights stance than any of his
predecessors and appointed a series of strong High Commissioners. Ban KiMoon (South Korea) took office in 2007 and has been elected to a second term
until 2016. His approach has very quiet diplomacy, but he has taken a strong
stand on issues such as sexual orientation and the Responsibility to Protect.
Under the Secretary-General, the High Commissioner for Human rights (HCHR)
is the UN official with principal responsibility for human rights.

The General Assembly is empowered by the UN charter to discuss any questions

or any matters within the scope of the... Charter(Art. 10) and to initiate studies
and make recommendations for the purpose of assisting in the realization of
human rights (Art. 13). While most issues are decided by simple majority vote,
decisions on important questions, such as those on peace and security.
Admission of new members and budgetary matters, require a two-thirds
majority. Its resolutions are not per se legally binding but there are an important
reflection of the will of the world community. Much of the debate and drafting
occurs in six Main Committees, three of which are of particular relevance to
human rights: the third (social, Humanitarian and Cultural issues); the Fifht
(Admistrative and Budgetary issues); and the Sixth (legal issues).
One of the other body that warrants mentions here is the Commission on
Human Rights of Woman. It was established in 1946 and reports to ECOSOC in
relation to policies to promote womens rights in the political, economic, civil,

social and educational fields. It drafted many of the key treaties as in 1952,
1979, 1955 and the creation in 2010 of the UN Entity for Gender Equality and
the Empowerment of Women, known as UN women, one of whose roles is to
assist the commission in formulating relevant polices, global standards and
norms.

A. The Human Rights Council

Rather than including an international bill of rights in the UN Charter in 1945, it was
agreed instead to create a Commission on Human Rights whose primary function
would be to be draft such a bill. It envisaged a Commission directed towards:
a. formulation of an international bill of rights
b. Formulation of recommendations for an international declaration or convention
on such maters as civil liberties, satus of women , feedom of information
c. Portection of minorities
d. Prevention of discrimination on grounds of race, sex, language, or religion
e. Any matters within the field of human rights considered likely to impart the
general welfare of friendly relations among nations
It was, however, set up as a subsidiary body of ECOSOC.
Meanwhile, the Cold War and the and the decolonization movement dominated
much of the action in the General Assembly and the Security Council, and most of
the real action on human rights took place in the Assembly. The commission's
response to violation went through three distinct phases. The first (1956-1966)
began with a statement that the Commission had no power to take any action in
regard to any complaints concerning human rights. During a second phase (19671978) the commission's composition was changed dramatically as a result of
decolonization and the new members demanded responses tot he problems
associated with racism and colonialism. New procedures were adopted and strong
measures were taken against apartheid in particular . At the same time it failed to
act in response to horrendous violations in Pol's Pot Democratic Kampuchea
(Cambodia), Amin's Uganda, Bokassa's Central Africa Empire, Macias' s Equatorial
Guinea, the military' s Argentina and Uruguay. The Commission entered a third
phase (1979-2005) in which it evolved more effective procedures and tackled a
growing range of state violators. All of these procedures were effectively passed on
to the new Council in 2006.
The US was mostly frustrated in its efforts to condemn Chins violations in the wake
of the Tiananmen Square uprising of 1898, and irked by the active role of Cuba,
Libya, Sudan and others. China, on the other hand, led a large number of
developing countries in criticizing the Commission as a forum in which the North
put countries of the South in the dock
GENERALLY ASSembly resolution 60/251 (2006)
The General assembly,
1. Decides to establish the Human Rights Council.. as a
subsidiary organ of the General Assembly.
2. promoting universal respect for the protectionof all human
rights and fundamental freedoms for all, etc

3. Decides also that the Council should address situations of

ciolations of human rights
4. Decides that the Council shall, inter alia:
a. Promote Human rights..
b. ...dialogue on the thematic issues on all human rights
c.

Promote the full implementation of human rights

obligations undertaken by states

d. Work in close cooperation... with Governments,

regional organizations, etc.
e. Submitted annual report to the General Assembly
f.

Etc.

NOTE
Membership: The commission on Human rights (CHR) had 54 members, the Council
has 47
Term: States are elected for three year terms and are not eligible for immediate reelection after two consecutive terms. The Big powers, such as the United States and
Russia had served almost continuously on the CHR. Libya was suspended in 2011
Elections: one of the major issues that led to the disbanding of the Commission was
the criticism that its members included governments which were major violators of
human rights.
Sessions: the CHR met for a single six-week annual session, with very occasional
special. The Council meets for at least ten weeks.
Presidency: the Councils presidency rotates annually among the regional groups, but
the office is considerably more powerful than was the case under the CHR.
In 2011 a full review by the General Assembly of the Councils first five years resulted
in only minor adjustments. In particular, proposals to enhance the Councils
responsiveness to violations were rejected by China, Russia and many states from the
South. Apart from states the main the main actors in the Council are the High
Commissioner and the OHCHR, independent experts, NGOs and national human rights
institutions (NHRIs)
OHCHR: We consider the role of the High Commissioner (HC) below. One of the HCs
principal roles is to direct the OHCHR which provides the secretariat to the Council and
is charged with implementing the great majority of the Council s decisions
Experts: The Commission and the Council have both accorder important and diverse
roles to independent experts, although their efforts remain almost entirely advisory
rather than determinative.
. In addition, the following expert bodies report to the Council:
a. The Human Rights Council Advisory Committee (research and studies). It replaced
the Sub-commission on the Promotion and protection of Human Rights that advised
the Commission of Human Rights from 1947 to 2006.
b. The Expert Mechanism on the Rights of Indigenous Peoples was established in 2007
c. The Forum on Minority Issues

d. The Social Forum meets for three days annually

NGOs and NHRIs: NGOs and the representative of those NHRI that are accredited by
the International Coordinating Committee of National Institutions for the Promotion
and Protection of Human Rights (ICC) are entitled to attend Council meetings, to
submit written statements and to speak in debates
COMMENT ON THE SPECIAL PROCEDURES SYSTEM
In 2006 former UN Secretary-General Kofi Annan described the special procedures as
the crown jewel of the UN human rights system. Those procedures consist of
mandates focused solely on a specific country and a range of thematic procedures
devoted to a theme rather than a state or region and thus with a potentially global
scope. The first such mechanism was the Working Group on Disappearances,
established by the Commission in 1980. Its origin lay in efforts to respond to the
massive disappearances that took place during the 1970s in Argentinas dirty war
against leftist and other forces opposed to the military government. The governments
strategy was effective in avoiding condemnation by International Human rights for a
until 1978 when the Inter-America Commission on Human Rights issued a damning
indictment

1.

Number and Scope: in 1985 there were three, there were six in 1990, 14 in
1995, 21 in 2000, 28 in 2007 and May 2012 there were 36. Of these, six were
working groups: on disappearances, arbitrary detention, mercenaries, people of
Africa descent, discrimination against women, and business

Functions:
1.take action on alleged violations... 2.undertake fact-finding
missions to specific countries to examine the situations and make
recommendations to the government and the Council...3. Undertake studies of a
particular right or issue with view to enhancing understanding and perhaps
contributing to the process of developing jurisprudence.. 4. Report annually to
the Council and, some cases, also the General Assembly.

STANDARD SETTING

When Human Rights Council was created, there were again suggestions that new
standards were not a high priority. Other commentators have drawn attention to what
they perceive as a marked imbalanced between North and South in this area. Makau
Mutua, for example, warns of a participation deficit in the context of standardssettings. Yet, since 2006, the Council has adopted the International Convention for the
Protection of All Persons from Enforced Disappearances, the Declaration on the Rights
of Indigenous Peoples, optional complaints protocols for the ICESCR and the CRC and
has established an Ad Hoc Committee to explore the need for complementary
standards or racism, racial discrimination, xenophobia and related intolerance

2. COUTNRY REPORTS
1. Country rapporteurs
As of May 2012 the following ten country situations were being examined under
separate country mandates by the Human Rights Council: Cambodia, Cote Ivoire,
etc.the influence of the Arabic Spring led to a change of approach and the addition
of three new mandates in 2011. Ad example
a. North Korea: a 2012 NGO report by the Committee for Human Rights in North Korea
notes the governments claim in the Universal Periodic Review process that it holds no
political prisoners. However, based on extensive interviews with some of the 23.000
North Korea refugee recently arrived in South Korea, the report estimates that

between 150000 and 200000 persons are incarcerated in prison labour camps, only
some of whom are common criminals. It concludes that system, which has been In
operation for some 50 years, constitutes a clear and massive crime against humanity
that violates of the eleven actions proscribed in Article 7 of the Rome Statute of the
International Criminal Court.
The Un Commission on Human Rights adopted a resolution in 2003 in which it: 1.
Express its deep concern about reports of systemic, widespread and grave violations
of human rights in the (DPRK), including; 2. Notes with regret that the authorities of
the (DPRK) have no created the necessary conditions to permit the international
community to verify these reports in a independent manner and calls upon rhe
government to respond to these reports and these concerns urgently
in response, the Council expressed it is very serious concern at the ongoing grave,
widespread and systematic human rights violations, commended the rapporteur for
his efforts, extended his mandate and urgued the DPRK to cooperate with him in the
future and to ensure full, rapid and unimpeded access of humanitarian assistance
b. Cambodia remain problems today in Cambodia from a human rights perspective
, there has been a great deal of human rights talk in Cambodia but very little actual
progress

Michael Kirby, United nations procedures: a response to

professor Hilary Charlesworth 29 Australia Years Book International Law
United nations with a deceptive veneer of vigilance in guarding human rights
vulnerable issues and in vulnerable countries?... The Author speak about:
- INHERENT WEAKNESS OF THE SYSTEM
- PARTICULAR DIFFULTIES (if procedures are ignored with impunity theri proponents
insulted and left unsupported by the UN).... The Utility and improvement of Special
Procedures (my experiences suggets that the existence of the office of SR was useful
in the support, and defence of human rights in Cambodia in a number of respects).....
-AN EVOLVING INSTITUTION: it is natural to be impatient with the emerging
institutional weaknesses, inefficiencies and more than occasional instances of
institutional and individual and individual hypocrisy, duplicity and incompetence.
When seen from the perspective of the urgent needs that exist in the world and the
terrible sufferings of millions in war and genocide in the last century, the imperfections
of the Organisation are all too obvious.

2. Country Reports by Thematic Special Rapporteurs

Thematic mandate-holders generally undertake two or three country missions
annually. The purpose of these missions is explained below in the Manual prepared by
the mandate-hoders to guide their own activities.

Manual of operations of the special procedures of the

Human Rights Council.
52. Country visits are an essential means to obtain direct and first-hand information on
human rights violations. They also allow for contact with and information gathering
from victims, relatives of victims, witnesses national human rights institutions,
international and local NGOs and other members of civil society, etc.
53. Country visits generally last between one and two weeks but can be shorter or
longer if the circumstances so require. The visit occurs at the invitation of a State.

54. Country visits... enhance awareness of the specific problemsinter alia, through
meetings, briefings, press coverage of the visit and dissemination of the report...
56. When a State does not respond to requests for an invitation to visit, it is
appropriate for a mandate-holder to remind the Government concerned, to draw the
attention of the Council to the outstanding request, and take other appropriate
measures...

Report of the special rapporteur on the extrajudicial,

summary or arbitrary executions, Philip Aslton, mission to
Kenya UN Doc. A/HRC/11/2/Add.6 (26 May 2009)
.
II. EXTRAJUDICIAL EXECUTIONS BY POLICE
Killings by the police are widespread. In just a five months period in 2007, the Kenya
National Commission on Human Rights (KNCHR) documented approximately 500
people killed disappeared.
a. Context: there are many such criminal groups, but the Mungiki have become
particularly prominent In early 1990s, the Mungiki, initially a cultural-religious
movement, began providing security and basic service in slums. Today the Mungiki are
responsible for a large number of crimes, including murder
b. Evidence of widespread killings by police: Detailed evidence was provided by civil
society investigations, witnesses to the squads activities, survivors of attempted
killings, family members or deceased or disappeared victims, and victim autopsy
reports indicating shots at close range and back entry wounds etc.
c. Official response to allegation
d. removal of the Police Commissioner: There is abundant evidence linking (the police
Commissioner) to a central role in devising and overseeing the policy of extrajudicially
executing large numbers of suspected criminals he blocks investigations, and
prevents all transparency.
e. Accountability and the criminal justice system
failures in the criminal justice system, and in internal and external police
accountability mechanisms Investigation, prosecutions, and judicial process are slow
and corrupt.
1. Police investigations: Investigations are especially poor when the police themselves
are implicated in a death
2. Prosecutions: The attorney-General's unrelenting failure to prosecute any senior
officials implicated in extrajudicial executions renders him not just complicit in, but
absolutely indispensable to, a system which has institutionalized impunity in Kenya
X. RECOMMENDATIONS
a. Killings by police: The president should publicly acknowledge his commitment to
ending unlawful killings by the police. To tho end: 1. The Police Commissioner should
be replaced immediately; 2. etc..
All police stations should be required to report to head quearters within 24 hours

b. Killings by the Mungiki: The Mungiki cease their harassment, abuse, etc and the
Mungiki political leadership should publicly condemn killings and other abuses by their
members, and take action to prevent all such crimes
c. Accountability for police killings: Internal and external accountability for police
should be improved through institutional reforms
d. Criminal justice system: This is necessary to restore public trust in the office, and its
role in promoting impunity.. tod reduce corruption and incompetence in the judiciary.
e. Judicial appointment procedures should be made more transparent
3. Special Sessions of the Council
The commission decided in 1992 to hold special sessions when needed, but only five
were called in the following 13 years (two in Yugoslavia in 1992, Rwanda in 1994, Est
Timor 1999 and the Palestinian territories in 2000). The Council has made much more
extensive use of the technique, having held 18 session between 2006 to 2012. The
Goal of these session is to address human rights violations and emergencies.
COMMENT ON ISRAEL
The Gaza authorities facilitated a visit by the Commission, but Israel refused all
cooperation

The public Committee Against Torture in Israel (PCATI), No

Second Thoughts: The Changes in the Israeli Defense
Forces Combat Doctrine in Light of Operation Cast Lead
(2009), at 4
Since March 2009, various organizations, including Amnesty International, Human
Rights Watch and the have produces on the entire operation or specific aspects of ot
Much of tge destruction was wanton and resulted from direct attacks on civilian
objects as well as indiscriminate attacks that failed to distinguish between legitimate
military targets and civilian objects.. etc.

Richard Goldstone, Reconsidering the Golstone Report on

Israel and War Crimes Washington Post, 1 Apr.2011
400 allegation of operational misconduct in Gaza while the de facto authorities have
not conducted any investigations into the launching of rocket and mortar attacks
against Israel. Our report found evidence of potential war crimes and possibly crimes
against humanity by both Israel and Hamas. That the crimes allegedly committed by
Hamas were intentional goes without saying, its rockets were purposefully and
indiscriminately aimed at civilian targets

John Dugard, Where Now for the Goldstone Report? The new
Statesman, 6 Apr. 2011
but in fact this report paints a very different picture of Isarels investigation of 400
incidents, which have resulted in two convictions, one for theft of a credit card,
resulting in a sentence of seven months imprisonment, and another for using a
Palestinian child as a human shield, which resulted in a suspended sentence of three
months.

HRC Res. 19/17: Isarel settlements in the Occupied

Palestinian Territory. Including East Jerusalem, and in the
Occupied Syrian Golan 22 mar. 2012
Expressing its concern at the failure of the Government of Israel to cooperate fully with
the relevant United Nations mechanisms, in particular the Special Rapporteur on the
situation of human rights in the Palestinian Territories occupied since 1967.

4. Handling complaints
1. The council Confidential Procedure
The Council replaced the Commission is effectively inherited the 1503 procedure. HCR
in 2007 established two bodies to manage the procedure: the working Group on
Communications (WGC) and the Council s Working Group on Situation (WGS)
The procedure is confidential, almost nothing is known about its impact.

2. Special Procedures and Complaints

The great majority of special procedures mandates envisage a process of
communicating with governments about alleged human rights violations either
through allegation letters seeking an official response to alleged violations or through
urgent action letters which allege imminent harm unless a government acts
immediately.

Working group on arbitrary detention, opinion No.31/2006

(Iraq and United States of America), 1 Septermber 2006 UN
Doc. A/HRC/4/40/Add.1 (2007), p. 103
COMMUNICATION ADDRESSED TO THE GOVERNMENTS ON 3 MAY 2005 CONCERNING:
MR. SADDAM HUSSEIN AL-TIKRITI
The working Group is responding to a communication submitted on behalf of Saddam
Hussein Al-Tikriti, the former of Iraq. The allegations were transmitted to the United
States and Iraq for comments and the United States replied on 30 August 2006...
- The Working Groups finds that Saddam Hussein did not enjoy the right to be tried by
an independent and impartial tribunal as required by Article 14 (1) ICCPR...
- Saddam Hussein did not have adequate time and facilities for the preparation of his
defence, as required by Article 14(3) (b) ICCPR...
- Finally, Sadam Hussein did not enjoy the possibility to obtain the attendance and
examination of witnesses on his behalf under the same conditions as witnesses him,
as required by Article 14(3) ICCPR..
- It is because the Working Goup is deeply committed to the principle that serious
violations of human rights...
- The working Group requests the Governments of Iraq and the United States.. to
remedy the situation of Mr. Saddam Hussein. The Working Group invites the
Governments of Iraq to give a serious consideration to the question whether a trial of
the former Head of State in conformity with international law is at all possible before
an Iraqi tribunal in the current situation in the country, or whether the case should not
be referred to an international tribunal.

5. Evaluating the special procedures

Efforts to evaluate the impact of specific human rights mechanism remain all too rare,
despite the recent scholarly interest in overall evaluations of the human rights regime,
as discussed in Chapter 14. A major Brookings Institution study is notable exception.

Ted Piccone, catalysts for rights: the unique contribution of

the U.N. S. Independent experts on human rights, final
report of the brookings research project on strengthening
U.N. special procedures (Oct. 2010)
Summary of Findings
- ... the UN's independent experts have played a valuable, in some cases, decisive role
drawing attention to chronic and emerging human rights issues...
- .. state cooperation with the Special Procedures is highly uneven and generally
disappointing..
- The Special Procedures are also hobbled by host of the other challenges, including
inadequate training and resources, insufficient understanding of the local context for
their work... Despite this obstacles, the Special Procedures mechanism represents one
of the most effective tools of the international human rights system and deserves
further strengthening and support.
Effects on State Behavior
.. States have made modest but important progress toward implementing the
recommendations a Special Procedures makes after a country visit..
Key Factors to Explain Impact of Country Visits
22...
a. The credibility of the United nations in the country concerned.. the moral power of
the U.N....etc.
b. The timing of the visit as its relates to a country's political and human rights
c. The quality and specificity of the SPs research, analysis and reccomendations and
the level of preparation before a visit...
d. The willingness of the relevant government to cooperate with the SP's visit..
e. The ability of local and international NGOs and victims' groups to communicate their
grievances in a timely and effective manner and to engage in follow-up advocacy
f. The level of freedom of the media to report on a SP's activities..
g. The capacity of and attention piad by the U.N. country team and other relevant U.N.
agencies like the U.N. High commissioner for the Refugees and te U.N. Development
Program.

6. The Universal periodic review

The Universal Period Review (UPR), established in 2006, requires all UN member states
to report to the Council once every 4-5 year on their human rights record. The primary
significance of the innovation was to ensure that every state, and not only those
accused.

The two other reports are considered: 1. compilation by the OHCHR of information
from treaty bodies, special procedures and other UN sources; and 2. a summary of
information submitted by NGOs, researchers, national human rights institutions and
others..
The final outcome of the review is adopted by consensus. The first round of the UPR
was completed in 2012 and the second round will run from 2012 to 2016. Some
examples of the outcomes follow.
Thailand
in 2011, in the wake of a series of prosecutions and long prison sentences... etc
Swaziland
...Years of extravagant expenditure by the royal family, fiscal indiscipline, and
governments corruption have left the country on the brink of economic disaster...
States suggested that it should: consider allowing the registration of political parties,
etc...
Syria
Rather than indicating which specific recommendations it accepted and which ones it
did not, Syria provided a general response in which it affirmed its commitment to
human rights and the UPR process. It objected, however, to the comments made by
certain states

Oliver de Frouville, building a universal system for the

protection of human rights: the way forward
Is the UPR of real Added Value to the system?
The author notes that some see the UPR as the Councils most visible innovation, but
he argues that it has failed to live up to expectations.
a).... There is no real complementarity because there is no real interaction between
the UPR and the other mechanism for the protection of human rights..
b) The global efficiency of the mechanism is wholly dependent upon the good will of
the state under review. In that sense the UPR is not as egalitarian as it pretends to
be....
c)... It is political process driven by states... their is nothing bad in this. However,
human rights are legal norms and it is obviously very difficult for a political entity to
address legal norms

c. The role of the high commissioner for human rights

Proposals to create for UN High Commissioner for Human Rights emerged as early as
1947. A combination of factors were at play: the demise of the Socialist bloc and
associated post-Cold War optimism, the election of the Clinton Admistration in the
United States which was keen to find new ideas in the human rights area, and, the
determination of the UN Secretary-general to keep the appointee under a tight rein.

General Assembly resolution 48/141: High Commissioner

for the promotion and protection of all human rights
(1993).
The General Assembly,

1. Decides to create the post of the High Commissioner for Human Rights;
2. Decides that the High Commissioner for Human Rights shall.
3. Decides that the High Commissioner for Human Rights shall be the United Nations
official with principal responsibility for the United Nations human rights activities under
the direction and authority of the Secretary-General.
a. Promote and protect the effective enjoyment by all of all civil, cultural, economic,
political and social rights
b..
The power and influence of the HC has been steadily expanded under the direction of
his forceful successors. By 2011, OHCHR employed 1.108 staff there were an
additional 884 human rights officers serving in 15 UN peace missions and 18 human
rights advisers working with UN Country Teams at the national level. But these
statistic do not reveal the extent to which the HC today speaks out on virtually any
significant human rights issues around the world In addition, the various field offices
and representatives play a key role in pressuring governments in relation to a wide
range of practices.

d. The Security Council and the responsibility to protect

COMMENT ON EARLIER WORK OF SECURITY COUNCIL
For more than four decades, the Security Council exercised a remarkably limited role
in human rights. With the end of the Cold War the Councils role expanded significantly
and many of the issues coming before it have since involved human rights dimensions.
The Council has played an important role in ensuring the inclusion of human rights
provisions in peace agreements, in efforts to eliminate the use of child soldiers, and in
considering the role of human rights protection in the work of its own CounterTerrorism Committee established in the wake of the 9/11 attacks on the US.
The Security Council consists of 15 members, five of which are permanent (China,
United Kingdom, Russia, France and the United States). Substantive decisions require
nine votes out of the 15, and must include the concurring votes of all five permanent
members (veto power).
The Council is given primary responsibility for the maintenance of international peace
and security under the collective security system provided for in the UN Charter (Art.
24), and member states are obligated to carry out its decision (Art. 25)
Precedents Set in the Struggle Against Apartheid
The issue was first brought to Assembly in 1946 by India which complained of the
discriminatory treatment of person of India origin. South Africa replied that most of
those concerned were its nationals and that, in any event, the issue was exclusively a
domestic affair.
While South Africa was the main focus of these debates, the situations in Southern
Rhodesia (Zimbawe) and Portuguese colonies in southern Africa (Angola and
Mozambique) also figured.
In 1962 the Assembly tested the limits of its division of labour with the Security
Council by itself calling upon member states to break off diplomatic relations with
South Africa.. 1963 embargo an arms.. With the end of apartheid and the transition

to democracy the Council terminated the arms embargo and all other restrictions in
May 1994.
From Humanitarian Intervention to the Responsibility to protect
It has long been claimed that, despite the prohibition on the use of force contained in
Article 2(4) of the UN charterjustify the use of force by a state to protect individuals
in another state from egregious violations of human rights. With the end of the Cold
War, the 1990s brought a distinctly greater willingness on the part of som estates,
including the United States, to intervene for such reasons.
Somalia, haiti and the former Yugoslavia were key examples. But the failure to
intervene in the face of genocide in Rwanda and to stop a genocidal massacre in
Bosnia traumatized the UN and other actors..... A UN-commissioned report on Rwanda
characterized the 1994 genocide in which800.000 people were killed about 100 days
as one of the most abhorrent events of the twentieth century.
The UN also published a critical report of its failure to stop massacres in Bosnia.
In the same year as the UN published the strongly self-critical reviews a crisis erupted
in Kosovo, then a province of Serbia. Since 1993 reports to the UN Commission on
Human rights had documented serious human rights abuses by Serbia and Kosovo
Albanians who made up 90 per cent province's population. In 1998 the Security
Council, acting under Chapter VII, imposed an arms embargo.... Russia anc China
made clear that they would veto any Council resolution authorizing the use of force...
Nato launched military action against Serbia for non-compliance with the Council
resolutions and in the name of humanitarian intervention. It was estimated 90 per cent
of the Kosovo Albania population had been displaced by conflict by the time it ended.

Views on the responsibility to protect

Kofi Annan, implications of International response to Events
in Rwanda, Kosovo Examined by Secretary-General UN Press
Release GA/9595 (20 Sept. 1999)
the more recent conflict in Kosovo had prompted important questions about the
consequences of action in the absence of unity on the part of the international
community....
...those for whom the greatest threat to the future of international order was the use of
force in the absence of a Council mandate... if a coalition of States had been prepared
to act in defence of the Tutsi population, but had not received prompt Council
authorized.

A more Secure World: Our Shared Responsibility, Report of

the High-level Panel on Threats, challenges and change.
2004
.. Somalia, Bosnia and Herzegovina, Rwanda, Kosovo and now Darfur, Sudan have
concentrated attention not on the immunities of sovereign Governments but their
responsabilities, both to their own people and to the wider international community.
There is a growing recognition that the issues is not the right to intervene of any State,
but the responsability to protect of every State when it comes to people suffering from
avoidable catastrophe.... The security Council so far has been neither very consistent
nor very effective in dealing with these cases, very often acting too late, too hesitantly
or not at all.. by step by step... a collective international responsability to protect, it
can always authorize military action to redress catastrophic internal wrong if it is

prepared to declare that the situation is threat to international peace and security....
security Council authorizing military intervention as a last resort.
..whether to authorize or endorse the use of military force, the Security Council should
always address at least the following five basic criteria of legitimacy:
a. Seriousness of threat
b. Proper purpose
c. last resort
d. proportional means
e. Balance of consequences

2005 World Summit Outcome, General Assembky Res. 60/1

Each individual States has the responsibility to protect its population from genocide,
war crimes, etc...The international community, through the UN, also has the
responsibility to use appropriate diplomatic, humanitarian and other peaceful means,
to held to protect populations from genocide, war crimes, ethnic cleansing and crimes
against humanity...

Comment on Security Council action and inaction on Libya

and Syria
In 2010 a large numbers of people in Libya and Syria took to the street.. including
summary killings of peaceful protestors by the Qaeddafi and Assad regimes...
responded differently to the two situations.
In March 2011 Security Council adopted Resolutiom 1973... no fly zone over Libya and
authorizing military action... China and Russia did not use the veto.... autareas under
threat attackhorized military force only forthe purpose to protect the civilians and
civilian populated...
In contrast with Lybia, the Security Council on Syria was stymed by Russia and China.
In February 2012, an important draft resolution on Syria failed by a vote of 13-2 with
Russia and China both exercising their veto. the draft resolution had been supported
by the Arabac League.... The US ambassor to the UN stated that her governments was
disgusted by the Russia and Chinese opposition...

Scott Horton, Up in Smoke: Did the Idea of a Legal War Died

Along with Muammar al-Qaedaffi Foreign Policy, 25 Oct. 2011
instead of protecting civilians from attack by Qaddafi and his forces, they were
attacking a fleeing and clearly finished Qaedaffi NATOs operations in Libya began
as a valid demonstration of the use of military force to protect civilians. But they
evolved quickly into an exercise in regime change
For these reason China and Russia used the veto they do not want that the Syria will
end up in the same way of Libya

More articles with written more or less the same things

... but the key points is that the Arab League and the West have moved closer
together. Both are interested in advancing democratic freedoms, albeit some faster
than others, both are prepared to act across state borders to protect the people in

their close neighbourhood, both are prepared to advocate regime change explicitly in
extreme cases (Libya, Syria and Yemen)....
Although China sees its acquiescence as directly contributing to the fall of Muammar
Qaddafi, it was rather disappointed with the payoff... China's veto saved Moscow from
the international isolation

E. A world Court for Human Rights?

As early 1947, Australia called for the creation of an international human rights court,
and the United Kingdom responded by suggesting that the International Court of
Justice could be authorized to give advisory opinion on hman rights.. the idea has
continued to surface periodically. In recent years, several NGO-led, but governmentsupported, initiatives....