CHAPTER 16

HUMAN RIGHTS

16.1 Introduction

As was stated in Chapter 1, the present system of international law has developed from the law of nations that governed the relations between sovereign states. Prior to World War One it was a clear principle of international law that a state’s treatment of its own nationals was a matter exclusively within its domestic jurisdiction. The only exception to this was the concept of humanitarian intervention to prevent large scale atrocities but as was shown in Chapter 13, the concept is one of dubious legality. As has already been noted in Chapter 9, the mistreatment of aliens can give rise to state responsibility.

Following World War One, and with the establishment of the League of Nations, widespread concern was expressed about the protection of ‘minorities’. However, the emphasis was very much on protection rather than enforceable rights.

Covenant of the League of Nations

Article 22

1To those colonies and territories which as a consequence of the late war have ceased to be under the sovereignty of the states which formerly governed them and which are inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world, there should be applied the principle that the well-being and development of such peoples form a sacred trust of civilisation and that securities for the performance of this trust should be embodied in the Covenant.

2The best method of giving practical effect to this principle is that the tutelege of such peoples should be entrusted to advanced nations who by reason of their resources, their experience or their geographical position can best undertake this responsibility, and who are willing to accept it, and that this tutelage should be exercised by them as Mandatories on behalf of the League.

3The character of the mandate must differ according to the stage of development of the people, the geographical situation of the territory, its economic conditions and other similar circumstances.

4Certain communities formerly belonging to the Turkish Empire have reached a stage of development where their existence as independent nations can be provisionally recognised subject to the rendering of administrative advice and assistance by a Mandatory until such time as they are able to stand alone. The wishes of these communities must be a principal consideration in the selection of the Mandatory.

5Other peoples, especially those of Central Africa, are at such a stage that the Mandatory must be responsible for the administration of the territory under conditions which will guarantee freedom of conscience and religion, subject only to the maintenance of public order and morals, the prohibition of abuses such as the slave trade, the arms traffic and the liquor traffic, and the prevention of fortifications or military and naval bases and of military training of the natives

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for other than police purposes and the defence of territory, and will also secure equal opportunities for the trade and commerce of other Members of the League.

6There are territories, such as South-West Africa and certain of the South Pacific Islands which, owing to the sparseness of their population, or their small size, or their remoteness from the centres of civilisation, or their geographical contiguity to the territory of the Mandatory, and other circumstances, can be best administered under the laws of the Mandatory as integral portions of its territory, subject to the safeguard above mentioned in the interests of the indigenous population.

7In every case of mandate, the Mandatory shall render to the Council an annual report in reference to the territory committed to its charge.

8The degree of authority, control, or administration to be exercised by the Mandatory shall, if not previously agreed upon by the Members of the League, be explicitly defined in each case by the Council.

9A permanent Commission shall be constituted to receive and examine the annual reports of the Mandatories and to advise the Council on all matters relating to the observance of the mandates.

Article 23

Subject to and in accordance with the provisions of international conventions existing or hereafter to be agreed upon, the Members of the League:

(a)will endeavour to secure and maintain fair and humane conditions of labour for men, women, and children, both in their own countries and in all countries to which their commercial and industrial relations extend, and for that purpose will establish and maintain the necessary international organisations;

(b)undertake to secure just treatment of the native populations of territories under their control;

(c)will entrust the League with the general supervision over the execution of agreements with regard to the traffic in women and children, and the traffic in opium and other dangerous drugs;

(d)will entrust the League with the general supervision of the trade in arms and ammunition with the countries in which the control of this traffic is necessary in the common interest;

(e)will make provision to secure and maintain freedom of communications and of transit and equitable treatment for the commerce of all Members of the League. In this connection the special necessities of the regions devastated during the war of 1914–18 shall be borne in mind;

(f)will endeavour to take steps in matters of international concern for the prevention and control of disease.

In addition to the provisions of the Covenant the League of Nations also established a system protecting specific minorities in the new Eastern European and Baltic states which emerged following the break-up of the AustroHungarian Empire.1 The League of Nations Council was given the task of monitoring the rights of minorities and there was also a right of petition procedure by minorities to the League of Nations. However such protections

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1 Among the specific treaties was one dealing with the Serbo-Croat-Slovene State.

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only applied to the minorities expressly mentioned and there was no attempt at the creation of any binding obligations of general application.

The atrocities committed before and during World War Two exposed the need for some comprehensive system of protection of fundamental human rights and this was recognised in the Preamble to the Charter of the United Nations which states:

We the Peoples of the United Nations determined to save succeeding generations from the scourge of war ... and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small ... have resolved to combine out efforts to accomplish these aims.

Article 1(3) of the Charter pledged member states to achieve international cooperation in promoting and encouraging respect for ‘human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion’. The obligation to promote respect for and observance of human rights and fundamental freedoms is made express in Articles 55 and 56 of the Charter:

Article 55

With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote:

(a)higher standards of living, full employment, and conditions of economic and social progress and development;

(b)solutions of international economic, social, health, and related problems; and international cultural and educational co-operation; and

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

Article 56

All members pledge themselves to take joint and separate action in co-operation with the Organisation for the achievement of the purposes set forth in Article 55.

Since 1945 a considerable number of rules of international law, both customary and treaty, have been developed with the aim of protecting human rights and fundamental freedoms. Of course the effectiveness of such rules is open to doubt. The mere existence of rules does not ensure observance of them and over the years it has proved far easier to identify particular rights than to provide effective enforcement mechanisms. More has been achieved on a regional basis rather than at a global level and many human rights experts look to developments regionally as the way forward rather than hoping for great things on the global plane. It is worth noting, however, that the mere existence of human rights agreements can have a beneficial role by giving publicity to abuses and by raising expectations and standards of behaviour and treatment. The role of publicity in the sphere of human rights enforcement should not be underestimated

One final introductory point can be made. Human rights are extremely difficult to define. Generally speaking, they are regarded as those fundamental and inalienable rights which are essential for life as a human being. Put another

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way, they are those rights which inherent in that they exist by virtue of the human condition. However, the view of what specific rights exist and more importantly the interpretation of the extent of such rights may well differ according to the particular economic, social and cultural society in which they are being defined. Thus, while it may be comparatively easy to obtain global agreement that human rights are ‘a good thing’ the task of reaching consensus on the articulation of particular rights has proved, and is still proving, far more difficult.

16.2 The sources of the law

International human rights law is a combination of customary international law and treaty law. The treaties may be global or regional and general or specialised.

16.2.1 General international agreements

At the inaugural conference of the United Nations held in San Francisco in April 1946 the representatives of Cuba, Mexico and Panama had proposed that the conference should adopt a Declaration on the Essential Rights of Man. However, there was insufficient time available to discuss the proposal, and so, at the first session of the UN General Assembly, Panama submitted a Draft Declaration on Fundamental Human Rights and Freedoms. On 11 December 1946 the General Assembly decided to refer the draft to the Economic and Social Council (ECOSOC) for detailed consideration by its Commission on Human Rights. The Commission had been established by ECOSOC under Article 68 of the UN Charter and it spent two years working on a draft International Bill of Rights with the instructions that the bill should be acceptable to all, short, simple and easy to understand. The draft bill was presented to the Third session of the UN General Assembly, and on 10 December 1948 Resolution 217A was adopted: the Universal Declaration of Human Rights (UDHR). There was no opposition to the resolution although eight States did abstain, primarily because of the effect that such obligations could have on State sovereignty. The Declaration contains a list of economic, social, cultural and political rights. Since it was only a resolution of the General Assembly, it could not create binding legal obligations, nor was it intended to do so. Rather the UDHR serves to provide a standard for States to aim at. The precise effect of the resolution was to urge States to establish procedures for the future protection of human rights. The Declaration has, however, provided the impetus for the development of customary law (which is discussed at 16.2.4, below). Commitment to the provisions of UDHR and other instruments relating to human rights was recently reaffirmed in Vienna Declaration and Programme of Action 1993, made by States at the UN World Conference on Human Rights held in Vienna in June 1993.

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UNIVERSAL DECLARATION OF HUMAN RIGHTS2

PREAMBLE

Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,

Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law,

Whereas it is essential to promote the development of friendly relations between nations,

Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom,

Whereas Member States have pledged themselves to achieve, in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms,

Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realisation of this pledge.

Now, Therefore,

THE GENERAL ASSEMBLY

Proclaims

The universal declaration of human rights as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of member states themselves and among the peoples of territories under their jurisdiction.

Article 1

All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

Article 2

Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

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2Adopted by the UN General Assembly on 10 December 1948 (UN Doc A/811. Voting was 48 for and nil against – Byelorussian SSR, Czechoslovakia, Poland, Saudi Arabia, Ukrainian SSR, USSR, Union of South Africa, and Yugoslavia abstained.

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Article 3

Everyone has a right to life, liberty and security of person.

Article 4

No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.

Article 5

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Article 6

Everyone has the right to recognition everywhere as a person before the law.

Article 7

All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

Article 8

Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted by the constitution or by law.

Article 9

No one shall be subjected to arbitrary arrest, detention or exile.

Article 10

Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

Article 11

(1)Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.

(2)No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.

Article 12

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

Article 13

(1)Everyone has the right to freedom of movement and residence within the borders of each state.

(2)Everyone has the right to leave any country, including his own, and to return to his country.

Article 14

(1) Everyone has the right to seek and to enjoy in other countries asylum from persecution.

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(2) This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.

Article 15

(1 Everyone has the right to a nationality.

(2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.

Article 16

(1)Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.

(2)Marriage shall be entered into only with the free and full consent of the intending spouses.

(3)The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

Article 17

(1)Everyone has the right to own property alone as well as in association with others.

(2)No one shall be arbitrarily deprived of his property.

Article 18

Everyone has the right to freedom of thought, conscience and religion; this includes freedom to change his religion or belief, either alone or in community with others and in public or private to manifest his religion or belief in teaching, practice, worship and observance.

Article 19

Everyone has the right to freedom of opinion and expression; this right includes the freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Article 20

(1)Everyone has the right to freedom of peaceful assembly and association.

(2)No one may be compelled to belong to an association.

Article 21

(1)Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.

(2)Everyone has the right of equal access to public service in his country.

(3)The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.

Article 22

Everyone, as a member of society, has the right to social security and is entitled to realisation, through national effort and international co-operation and in accordance with the organisation and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.

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Article 23

(1)Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.

(2)Everyone, without any discrimination, has the right to equal pay for equal work.

(3)Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.

(4)Everyone has the right to form and to join trade unions for the protection of his interests.

Article 24

Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.

Article 25

(1)Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.

(2)Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.

Article 26

(1)Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.

(2)Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial and religious groups, and shall further the activities of the United Nations for the maintenance of peace.

(3)Parents have a prior right to choose the kind of education that shall be given to their children.

Article 27

(1)Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in the scientific advancement and its benefits.

(2)Everyone has the right to protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

Article 28

Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realised.

Article 29

(1) Everyone has duties to the community in which alone the free and full development of his personality is possible.

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(2)In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.

(3)These rights and freedoms may in no case be exercised contrary to the Purposes and Principles of the United Nations.

Article 30

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

INTERNATIONAL COVENANT ON ECONOMIC,

SOCIAL AND CULTURAL RIGHTS3

PREAMBLE

The States Parties to the present Covenant,

Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

Recognising that these rights derive from the inherent dignity of the human person,

Recognising that, in accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his economic, social and cultural rights, as well as his civil and political rights,

Considering the obligation of States under the Charter of the United Nations to promote universal respect for, and observance of, human rights and freedoms,

Realising that the individual, having duties to other individuals and to the community to which he belongs is, under a responsibility to strive for the promotion and observance of the rights recognised in the present Covenant,

Agree on the following articles:

PART I

Article 1

1All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

2All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.

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3Adopted by the UN General Assembly on 16 December 1966 – entered into force on 3 January 1976.

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3 The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realisation of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.

PART II

Article 2

1Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realisation of the rights recognised in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.

2The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

3Developing countries, with due regard to human rights and their national economy, may determine to what extent they would guarantee the economic rights recognised in the present Covenant to non-nationals.

Article 3

The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights set forth in the present Covenant.

Article 4

The States Parties to the present Covenant recognise that, in the enjoyment of those rights provided by the state in conformity with the present Covenant, the State may subject such rights only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society.

Article 5

1Nothing in the present Covenant may be interpreted as implying for any state, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights or freedoms recognised herein, or at their limitation to a greater extent than is provided for in the present Covenant.

2No restriction upon or derogation from any of the fundamental human rights recognised or existing in any country in virtue of law, conventions, regulations or custom shall be admitted on the pretext that the present Covenant does not recognise such rights or that it recognises them to a lesser extent.

PART III

Article 6

1 The States Parties to the present Covenant recognise the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.

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2 The steps to be taken by a State Party to the present Covenant to achieve the full realisation of this right shall include technical and vocational guidance and training programmes, policies and techniques to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedoms to the individual.

Article 7

The States Parties to the present Covenant recognise the right of everyone to the enjoyment of just and favourable conditions of work, which ensure, in particular:

(a)Remuneration which provides all workers, as a minimum with:

(i)Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work;

(ii)A decent living by themselves and their families in accordance with the provisions of the present Covenant;

(b)Safe and healthy working conditions;

(c)Equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence;

(d)Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays.

Article 8

1 The States Parties to the present Covenant undertake to ensure:

(a)The right of everyone to form trade unions and join the trade union of his choice, subject only to the rules of the organisation concerned, for the promotion and protection of his economic and social interests. No restrictions may be placed on the exercise of this right other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others;

(b)The right of trade unions to establish national federations or confederations and the right of the latter to form or join international trade union organisations;

(c)The right of trade unions to function freely subject to no limitations other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others;

(d)The right to strike, provided that it is exercised in conformity with the laws of the particular country.

2This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces or of the police or of the administration of the state.

3Nothing in this article shall authorise States Parties to the International Labour Organisation of 1948 concerning Freedom of Association and Protection of the Right to Organise to take legislative measures which would prejudice, or apply the law in such a manner as would prejudice, the guarantees provided for in that Convention.

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Article 9

The States Parties to the present Covenant recognise the right of everyone to social security, including social insurance.

Article 10

The States Parties to the present Covenant recognise that:

1The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children. Marriage must be entered into with the free consent of the intending spouses.

2Special protection should be accorded to mothers during a reasonable period before and after childbirth. During such period working mothers should be accorded pair leave or leave with adequate social security benefits.

3Special measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination for reasons of parentage or other conditions. Children and young persons should be protected from economic and social exploitation. Their employment in work harmful to their morals or health or dangerous to life or likely to hamper their normal development should be punishable by law. States should also set their limits below which the paid employment of child labour should be prohibited and punishable by law.

Article 11

1The States Parties to the present Covenant recognise the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realisation of this right, recognising to this effect the essential importance of international co-operation based on free consent.

2The States Parties to the present Covenant, recognising the fundamental right of everyone to be free from hunger, shall take, individually and through international co-operation, the measures, including specific programmes, which are needed:

(a)To improve methods of production, conservation and distribution of food by making full use of technical and scientific knowledge by disseminating knowledge of the principles of nutrition and by developing or reforming agrarian systems in such a way as to achieve the most efficient development and utilisation of natural resources;

(b)Taking into account the problems of both food-importing and food-exporting countries, to ensure an equitable distribution of world food supplies in relation to need.

Article 12

1The States Parties to the present Covenant recognise the right of everyone to the enjoyment of the highest standard of physical and mental health.

2The steps to be taken by the States Parties to the present Covenant to achieve the fuller realisation of this right shall include those necessary for:

(a)The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child;

(b)The improvement of all aspects of environmental and industrial hygiene;

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(c)The prevention, treatment and control of epidemic, endemic, occupational and other diseases;

(d)The creation of conditions which would assure to all medical service and medical attention in the event of sickness.

Article 13

1The States Parties to the present Covenant recognise the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace.

2The States Parties to the present Covenant recognise that, with a view to achieving the full realisation of this right:

(a)Primary education shall be compulsory and available free to all:

(b)Secondary education in its different forms, including technical and vocational secondary education, shall be made generally available and accessible to all by every appropriate means, and in particular by the progressive introduction of free education;

(c)Higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education;

(d)Fundamental education shall be encouraged or intensified as afar as possible for those persons who have not received or completed the whole period of their primary education;

(e)The development of a system of schools at all levels shall be actively pursued, an adequate fellowship system shall be established, and the material conditions of teaching staff shall be continuously improved.

3The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians, to choose for their children schools, other than those established by the public authorities, which conform to such minimum educational standards as may be laid down or approved by the state and to ensure the religious and moral education of their children in conformity with their own convictions.

4No part of this article shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions, subject always to the observance of the principles set forth in para 1 of this article and to the requirement that the education given in such institutions shall conform to such minimum standards as may be laid down by the state.

Article 14

Each State Party to the present Covenant which, at the time of becoming a party, has not been able to secure in its metropolitan territory or other territories under its jurisdiction compulsory primary education, free of charge, undertakes, within two years, to work out and adopt a detailed plan of action for the progressive implementation, within a reasonable number of years, to be fixed in the plan, of the principle of compulsory education free of charge for all.

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Article 15

1 The States Parties to the present Covenant recognise the right of everyone:

(a)To take part in cultural life;

(b)To enjoy the benefits of scientific progress and its applications;

(c)To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

2The steps to be taken by the States Parties to the present Covenant to achieve the full realisation of this right shall include those necessary for the conservation, the development and the diffusion of science and culture.

3The States Parties to the present Covenant undertake to respect the freedom indispensable for scientific research and creative activity.

4The States Parties to the present Covenant recognise the benefits to be derived from the encouragement and development of international contacts and co-operation in the scientific and cultural fields.

PART IV

Article 16

1 The States Parties to the present Covenant undertake to submit in conformity with this part of the Covenant reports on the measures which they have adopted and the progress made in achieving the observance of the rights recognised herein.

2

(a)All reports shall be submitted to the Secretary General of the United Nations, who shall transmit copies to the Economic and Social Council for consideration in accordance with the provisions of the present Covenant.

(b)The Secretary General of the United Nations shall also transmit to the specialised agencies copies of the reports, or any relevant parts therefrom, from States Parties to the present Covenant which are also members of these specialised agencies in so far as these reports, or parts therefrom, relate to any matters which fall within the responsibilities of the said agencies in accordance with their constitutional instruments.

Article 17

1The States Parties to the present Covenant shall furnish their reports in stages, in accordance with a programme to be established by the Economic and Social Council within one year of the entry into force of the present Covenant after consultation with the States Parties and the specialised agencies involved.

2Reports may indicate factors and difficulties affecting the degree of fulfilment of obligations under the present Covenant.

3Where relevant information has previously been furnished to the United Nations or to any specialised agency by any State Party to the present Covenant, it will not be necessary to reproduce that information, but a precise reference to the information so furnished will suffice.

Article 18

Pursuant to its responsibilities under the Charter of the United Nations in the field of human rights and fundamental freedoms, the Economic and Social Council may make arrangements with the specialised agencies in respect of their reporting to it on the progress made in achieving the observance of the provisions of the present Covenant falling within the scope of their activities.

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These reports may include particulars of decisions and recommendations on such implementation adopted by their competent organs.

Article 19

The Economic and Social Council may transmit to the Commission on Human Rights for study and general recommendation or as appropriate for information the reports concerning human rights as submitted by States in accordance with Articles 16 and 17, and those concerning human rights submitted by the specialised agencies in accordance with Article 18.

Article 20

The States Parties to the present Covenant and the specialised agencies concerned may submit comments to the Economic and Social Council on any general recommendation under Article 19 or reference to such general recommendation in any report of the Commission on Human Rights or any documentation referred to therein.

Article 21

The Economic and Social Council may submit from time to time to the General Assembly reports with recommendations of a general nature and a summary of the information received form the States Parties to the present Covenant and the specialised agencies on the measures taken and the progress made in achieving general observance of the rights recognised in the present Covenant.

Article 22

The Economic and Social Council may bring to the attention of other organs of the United Nations, their subsidiary organs and specialised agencies concerned with furnishing technical assistance any matters arising out of the reports referred to in this part of the present Covenant which may assist such bodies in deciding, each within its field of competence, on the advisability of international measures likely to contribute to the effective progressive implementation of the present Covenant.

Article 23

The States Parties to the present Covenant agree that international action for the achievement of the rights recognised in the present Covenant includes such methods as the conclusion of conventions, the adoption of recommendations, the furnishing of technical assistance and the holding of regional meetings and technical meetings for the purpose of consultation and study organised in conjunction with the governments concerned.

Article 24

Nothing in the present Covenant shall be interpreted as impairing the provisions of the Charter of the United Nations and of the constitutions of the specialised agencies which define the respective responsibilities of the various organs of the United Nations and of the specialised agencies in regard to the matters dealt with in the present Covenant.

Article 25

Nothing in the present Covenant shall be interpreted as impairing the inherent right of all peoples to enjoy and utilise fully and freely their natural wealth and resources.

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PART V

Article 26

1The present Covenant is open for signature by any State Member of the United Nations or members of any of its specialised agencies, by any State Party to the Statute of the International Court of Justice, and by any other State which has been invited to the General Assembly of the United Nations to become a party to the present Covenant.

2The present Covenant is subject to ratification. Instruments of ratification shall be deposited with the Secretary General of the United Nations.

3The present Covenant shall be open to accession by any state referred to in para 1 of this article.

4Accession shall be effected by the deposit of an instrument of accession with the Secretary General of the United Nations.

5The Secretary General of the United Nations shall inform all states which have signed the present Covenant or acceded to it of the deposit of each instrument of ratification or accession.

Article 27

1The present Covenant shall enter into force three months after the date of the deposit with the Secretary General of the United Nations of the thirty-fifth instrument of ratification or instrument of accession.

2For each state ratifying the present Covenant or acceding to it after the deposit of the thirty-fifth instrument of ratification or instrument of accession, the present Covenant shall enter into force three months after the date of the deposit of its own instrument of ratification or instrument of accession.

Article 28

The provisions of the present Covenant shall extend to all parts of federal states without any limitations or exceptions.

Article 29

1Any State Party to the present Covenant may propose an amendment and file it with the Secretary General of the United Nations. The Secretary General shall thereupon communicate any proposed amendments to the State Parties to the present Covenant with a request that they notify him whether they favour a conference of States Parties for the purpose of considering and voting upon the proposals. In the event that at least one third of the States Parties favours such a conference, the Secretary General shall convene the conference under the auspices of the United Nations. Any amendments adopted by a majority of the States Parties present and voting at the conference shall be submitted to the General Assembly of the United Nations for approval.

2Amendments shall come into force when they have been approved by the General Assembly of the United Nations and accepted by a two-thirds majority of the States Parties to the present Covenant in accordance with their respective constitutional processes.

3When amendments come into force they shall be binding on those States Parties which have accepted them, other States Parties still being bound by the provisions of the present Covenant and any earlier amendment which they have accepted.

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Article 30

Irrespective of the notifications made under Article 26, para 5, the Secretary General of the United Nations shall inform all States referred to in para 1 of the same article of the following particulars:

(a)Signatures, ratifications and accessions under Article 26;

(b)The date of the entry into force of the present Covenant under Article 27 and the date of the entry into force of any amendments under Article 29.

Article 31

1The present Covenant, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited in the archives of the United Nations.

2The Secretary General of the United Nations shall transmit certified copies of the present Covenant to all states referred to in Article 26.

Following the adoption of the UDHR the UN Commission on Human Rights began work on drafting two international covenants on human rights: one on economic, social and cultural rights and one on civil and political rights. Initially a single treaty had been envisaged, but in consequence of continued revision and debate, the Commission requested that two separate instruments should be prepared. The two conventions, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, were completed by the mid 1950s and they were adopted by the UN General Assembly and opened for signature in 1966. The two conventions recognise different sets of rights but they do contain some common provisions. However, the machinery for enforcement differs as between the two documents and is discussed at 16.4.1 (below).

The International Covenant on Civil and Political Rights 1966 entered into force in January 1976 and at present there are over 100 states party to it, including the UK. ICPR is a treaty binding on the parties, and each state is obliged to give effect to the provisions. In particular, each state should adopt legislative measures to give effect to the Covenant and provide effective remedies for violations. The Covenant establishes a code of civil and political rights similar to those found in the UDHR. Derogation in times of emergency is allowed with respect to some rights, but not with respect to those rights expressed to be fundamental, such as the right to life (Article 6) and the right to freedom from torture (Article 7).

The International Covenant on Economic, Social and Cultural Rights 1966 entered into force in 1976 and there are now over 100 states that are party to it, including the UK. Obligations under the ICESCR are less specific than those under the ICPR, and the tone of the whole covenant is more promotional than mandatory.

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INTERNATIONAL COVENANT ON CIVIL AND

POLITICAL RIGHTS

PREAMBLE

The States Parties to the present Covenant,

Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

Recognising that these rights derive from the inherent dignity of the human person,

Recognising that, in accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights, as well as his economic, social and cultural rights,

Considering the obligation of States under the Charter of the United Nations to promote universal respect for, and observance of, human rights and freedoms,

Realising that the individual, having duties to other individuals and to the community to which he belongs is, under a responsibility to strive for the promotion and observance of the rights recognised in the present Covenant,

Agree on the following articles:

PART I

Article 1

1All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

2All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.

3The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realisation of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.

PART II

Article 2

1Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

2Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps,

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in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such legislative or other measures as may be necessary to give effect to the rights recognised in the present Covenant.

3 Each State Party to the present Covenant undertakes:

(a)To ensure that any person whose rights or freedoms as herein recognised are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;

(b)To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;

(c)To ensure that the competent authorities shall enforce such remedies when granted.

Article 3

The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant.

Article 4

1In times of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.

2No derogation from Articles 6, 7, 8 (paras 1 and 2), 11, 15, 16 and 18 may be made under this provision.

3Any State party to the present Covenant availing itself of the right of derogation shall immediately inform the other State Parties to the present Covenant, through the intermediary of the Secretary General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communications shall be made, through the same intermediary, on the date on which it terminates such derogation.

Article 5

1Nothing in the present Covenant may be interpreted as implying for any state, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights or freedoms recognised herein, or at their limitation to a greater extent than is provided for in the present Covenant.

2There shall be no restriction upon or derogation from any of the fundamental human rights recognised or existing in any State Party to the present Covenant pursuant to law, conventions, regulations or custom on the pretext that the present Covenant does not recognise such rights or that it recognises them to a lesser extent.

PART III

Article 6

1 Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

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2In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgment rendered by a competent court.

3When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorise any State Party to the present Covenant to derogate in any way from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide.

4Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases.

5Sentence of death shall not be imposed for crimes committed by persons below 18 years of age and shall not be carried out on pregnant women.

6Nothing in this article shall be invoked to prevent the abolition of capital punishment by any State Party to the present Covenant.

Article 7

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.

Article 8

1No one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited.

2No one shall be held in servitude.

3

(a)No on shall be required to perform forced or compulsory labour;

(b)Paragraph 3(a) shall not be held to preclude, in countries where imprisonment with hard labour may be imposed as a punishment for a crime, the performance of hard labour in pursuance of a sentence to such punishment by a competent court;

(c)For the purpose of this paragraph the termed ‘forced or compulsory labour’ shall not include:

(i)Any work or service, not referred to in sub-para (b), normally required of a person who is under detention in consequence of a lawful order of a court, or of a person during conditional release from such detention;

(ii)Any service of a military character and, in countries where conscientious objection is recognised, any national service required by law of conscientious objectors;

(iii)Any service exacted in cases of emergency or calamity threatening the life or well-being of the community;

(iv)Any work or service which forms part of normal civil obligations.

Article 9

1 Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law.

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2Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.

3Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment.

4Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

5Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.

Article 10

1 All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

2

(a)Accused persons shall, save in exceptional circumstances, be segregated form convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons;

(b)Accused juvenile persons shall be separated from adults and brought as speedily as possible for adjudication.

3 The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation. Juvenile offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status.

Article 11

No one shall be imprisoned merely on the ground of the inability to fulfil a contractual obligation.

Article 12

1Everyone lawfully within the territory of a state shall, within that territory, have the right to liberty of movement and freedom to choose his residence.

2Everyone shall be free to leave any country, including his own.

3The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognised in the present Covenant.

4No one shall be arbitrarily deprived of the right to enter his own country.

Article 13

An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.

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Article 14

1All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against hum, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The Press and the public may be excluded from all or part of a trial for reasons of moral, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.

2Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

3In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:

(a)To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him:

(b)To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;

(c)To be tried without undue delay;

(d)To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;

(e)To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(f)To have the free assistance of an interpreter if he cannot understand or speak the language used in court;

(g)Not to be compelled to testify against himself or to confess guilt.

4In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation.

5Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.

6When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.

7No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.

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Article 15

1No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby.

2Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by the community of nations.

Article 16

Everyone shall have the right to recognition everywhere as a person before the law.

Article 17

1No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

2Everyone has the right to the protection of the law against such interference or attacks.

Article 18

1Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

2No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.

3Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

4The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.

Article 19

1Everyone shall have the right to hold opinions without interference.

2Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3The exercise of the rights provided for in para 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a)For respect of the rights or reputations of others;

(b)For the protection of national security or of public order (ordre public), or of public health or morals.

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Article 20

1Any propaganda for war shall be prohibited by law.

2Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

Article 21

The right of peaceful assembly shall be recognised. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.

Article 22

1Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.

2No restriction may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right.

3Nothing in this article shall authorise States Parties to the International Labour Organisation Convention of 1948 concerning Freedom of Association and Protection of the Right to Organise to take legislative measures which would prejudice, or to apply the law in such a manner as to prejudice, the guarantees provided for in that Convention.

Article 23

1The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

2The right of men and women of marriageable age to marry and to found a family shall be recognised.

3No marriage shall be entered into without the free and full consent of the intending spouses.

4States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.

Article 24

1Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the state.

2Every child shall be registered immediately after birth and shall have a name.

3Every child has the right to acquire a nationality.

Article 25

Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in Article 2 and without unreasonable restrictions:

(a)To take part in the conduct of public affairs, directly or through freely chosen representative;

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(b)To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;

(c)To have access, on general terms of equality, to public service in his country.

Article 26

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Article 27

In those states in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.

PART IV

Article 28

1There shall be established a Human Rights Committee (hereafter referred to in the present Covenant as the Committee). It shall consist of eighteen members and shall carry out the functions hereinafter provided.

2The Committee shall be composed of nationals of the States Parties to the present Covenant who shall be persons of high moral character and recognised competence in the field of human rights, consideration having been given to the usefulness of the participation of some persons having legal experience.

3The members of the Committee shall be elected and shall serve in their personal capacity.

Article 29

1The members of the Committee shall be elected by secret ballot from a list of persons possessing the qualifications prescribed in Article 28 and nominated for the purpose by the States Parties to the present Covenant.

2Each State Party to the present Covenant may nominate not more than two persons. These persons shall be nationals of the nominating State.

3A person shall be eligible for renomination.

Article 30

1The initial election shall be held no later than six months after the date of the entry into force of the present Covenant.

2At least four months before the date of each election to the Committee, other than an election to fill a vacancy declared in accordance with Article 34, the Secretary General of the United Nations shall address a written invitation to the States Parties to the present Covenant to submit their nominations for membership of the Committee within three months.

3The Secretary General of the United Nations shall prepare a list in alphabetical order of all the persons thus nominated, with an indication of the States Parties which have nominated them, and shall submit it to the States Parties to the present Covenant no later than one month before the date of each election.

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4 Elections of the members of the Committee shall be held at a meeting of the States Parties to the present Covenant convened by the Secretary General of the United Nations at the Headquarters of the United Nations. At that meeting, for which two thirds of the States Parties to the present Covenant shall constitute a quorum, the persons elected to the Committee shall be those nominees who obtain the largest number of votes and an absolute majority of the votes of the representatives of States Parties present and voting.

Article 31

1The Committee may not include more than one national of the same state.

2In the election of the Committee, consideration shall be given to equitable geographical distribution of membership and to the representation of the different forms of civilisation and of the principal legal systems.

Article 32

1The members of the Committee shall be elected for a term of four years. They shall be eligible for re-election if renominated. However, the terms of nine of the members elected at the first election shall expire at the end of two years; immediately after the first election, the names of these nine members shall be chosen by lot by the Chairman of the meeting referred to in Article 30, para 4.

2Elections at the expiry of office shall be held in accordance with the preceding articles of this part of the present Covenant.

Article 33

1If, in the unanimous opinion of the other members, a member of the Committee has ceased to carry out his functions for any cause other than absence of a temporary character, the Chairman of the Committee shall notify the Secretary General of the United Nations, who shall then declare the seat of that member to be vacant.

2In the event of the death or the resignation of a member of the Committee, the Chairman shall immediately notify the Secretary General of the United Nations, who shall declare the seat vacant from the date of death or the date on which the resignation takes effect.

Article 34

1When a vacancy is declared in accordance with Article 33 and if the term of office of the member to be replaced does not expire within six months of the declaration of the vacancy, the Secretary General of the United Nations shall notify each of the States Parties to the present Covenant, which may within two months submit nominations in accordance with Article 29 for the purpose of filling the vacancy.

2The Secretary General of the United Nations shall prepare a list in alphabetical order of the persons thus nominated and shall submit it to the States Parties to the present Covenant. The election to fill the vacancy shall then take place in accordance with the relevant provisions of this part of the present Covenant.

3A member of the Committee elected to fill a vacancy declared in accordance with Article 33 shall hold office for the remainder of the term of the member who vacated the seat on the Committee under the provisions of that article.

Article 35

The members of the Committee shall, with the approval of the General Assembly of the United Nations, receive emoluments from United Nations resources on such terms and conditions as the General Assembly may decide, having regard to the importance of the Committee’s responsibilities.

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Article 36

The Secretary General of the United Nations shall provide the necessary staff and facilities for the effective performance of the functions of the Committee under the present Covenant.

Article 37

1The Secretary General of the United Nations shall convene the initial meeting of the Committee at the Headquarters of the United Nations.

2After its initial meeting, the Committee shall meet at such times as shall be provided in its rules of procedure.

3The Committee shall normally meet at the Headquarters of the United Nations or at the United Nations Office at Geneva.

Article 38

Every member of the Committee shall, before taking up his duties, make a solemn declaration in open committee that he will perform his functions impartially and conscientiously.

Article 39

1The Committee shall elect its officers for a term of two years. They may be re-elected.

2The Committee shall establish its own rules of procedure but these rules shall provide, inter alia, that:

(a)Twelve members shall constitute a quorum;

(b)Decisions of the Committee shall be made by a majority vote of the members present.

Article 40

1 The States Parties to the present Covenant undertake to submit reports on the measures they have adopted which give effect to the rights recognised herein and on the progress made in the enjoyment of those rights:

(a)Within one year of the entry into force of the present Covenant for the States Parties concerned;

(b)Thereafter whenever the Committee so requests.

2All reports shall be submitted to the Secretary General of the United Nations who shall transmit them to the Committee for consideration. Reports shall indicate the factors and difficulties, if any affecting the implementation of the present Covenant.

3The Secretary General of the United Nations may, after consultation with the Committee, transmit to the specialised agencies concerned copies of such parts of the reports as may fall within their fields of competence.

4The Committee shall study the reports submitted by the States Parties to the present Covenant. It shall transmit its reports, and such general comments as it may consider appropriate, to the States Parties. The Committee may also transmit to the Economic and Social Council their comments along with the copies of the reports it has received from States Parties to the present Covenant.

5The States Parties to the present Covenant may submit to the Committee observations on any comments that may be made in accordance with para 4 of this article.

Article 41

1 A State Party to the present Covenant may at any time declare under this article that it recognises the competence of the Committee to receive and consider

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communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under the present Covenant. Communications under this article may be received and considered only if submitted by a State Party which has made a declaration recognising in regard to itself the competence of the Committee. No communication shall be received by the Committee if it concerned a State Party which has not made such a declaration. Communications received under this article shall be dealt with in accordance with the following procedure:

(a)If a State Party to the present Covenant considers that another State Party is not giving effect to the provisions of the present Covenant, it may, by written communication, bring the matter to the attention of that State Party. Within three months after the receipt of communication, the receiving state shall afford the state which sent the communication an explanation or any other statement in writing clarifying the matter, which should include, to the extent possible and pertinent, reference to domestic procedures and remedies taken, pending, or available in the matter.

(b)If the matter is not adjusted to the satisfaction of other States Parties concerned within six months after the receipt by the receiving state of the initial communication, either state shall have the right to refer the matter to the Committee, by notice given to the Committee and to the other state.

(c)The Committee shall deal with a matter referred to it only after it has ascertained that all available domestic remedies have been invoked and exhausted in the matter, in conformity with the generally recognised principles of international law. This shall not be the rule where the application of the remedies is unreasonably prolonged.

(d)The Committee shall hold closed meetings when examining communications under this article.

(e)Subject to the provisions of sub-para (c), the Committee shall make available its good offices to the State Parties concerned with a view to a friendly solution of the matter on the basis of respect for human rights and fundamental freedoms as recognised in the present Covenant.

(f)In any matter referred to it, the Committee may call upon the States Parties concerned, referred to in sub-para (b), to supply any relevant information.

(g)The States Parties concerned, referred to in sub-para (b), shall have the right to be represented when the matter is being considered in the Committee and to make submissions orally and/or in writing.

(h)The Committee shall, within 12 months after the date of receipt of notice under sub-para (b), submit a report:

(i)If a solution within the terms of sub-para (e) is reached, the Committee shall confine its report to a brief statement of the facts and of the solution reached;

(ii)If a solution within the terms of sub-para (e) is not reached the Committee shall confine its report to a brief statement of the facts; the written submissions and record of the oral submissions made by the State Parties concerned shall be attached to the report.

In every matter, the report shall be communicated to the States Parties concerned.

2 The provisions of this article shall come into force when ten States Parties to the present Covenant have made declarations under para 1 of this article. Such declarations shall be deposited by the States Parties with the Secretary General of

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the United Nations, who shall transmit copies thereof to the other States Parties. A declaration may be withdrawn at any time by notification to the Secretary General. Such a withdrawal shall not prejudice the consideration of any matter which is the subject of a communication already transmitted under this article; no further communication by any State Party shall be received after the notification of withdrawal of the declaration has been received by the Secretary General, unless the State Party concerned has made a new declaration.

Article 42

1

(a)If a matter referred to the Committee in accordance with Article 41 is not resolved to the satisfaction of the States Parties concerned, the Committee may, with the prior consent of the States Parties concerned, appoint an ad hoc Conciliation Commission (hereinafter referred to as the Commission). The good offices of the Commission shall be made available to the States Parties concerned with a view to an amicable solution of the matter on the basis of respect for the present Covenant;

(b)The Commission shall consist of five persons acceptable to the States Parties concerned. If the States Parties concerned fail to reach agreement within three months on all or part of the composition of the Commission the members of the Commission concerning whom no agreement has been reached shall be elected by secret ballot by a two-thirds majority vote of the Committee from among its members.

2The members of the Commission shall serve in their personal capacity. They shall not be nationals of the States Parties concerned, or of a State not party to the present Covenant, or of a State Party which has not made a declaration under Article 41.

3The Commission shall elect its own Chairman and adopt its own rules of procedure.

4The meetings of the Commission shall normally be held at the Headquarters of the United Nations or at the United Nations Office in Geneva. However, they may be held at such other convenient places as the Commission may determine in consultation with the Secretary General of the United Nations and the States Parties concerned.

5The Secretariat provided in accordance with Article 36 shall also service the commissions appointed under this article.

6The information received and collated by the Committee shall be made available to the Commission and the Commission may call upon the States Parties concerned to supply any other relevant information.

7When the Commission has fully considered the matter, but in any event not later than 12 months after having been seized of the matter, it shall submit to the Chairman of the Committee a report for communication to the States Parties concerned.

(a)If the Commission is unable to complete its consideration of the matter within twelve months, it shall confine its report to a brief statement of the status of its consideration of the matter.

(b)If an amicable solution to the matter on the basis of respect for human rights as recognised in the present Covenant is reached, the Commission shall confine its report to a brief statement of the facts and of the solution reached.

(c)If a solution within the terms of sub-para (b) is not reached, the Commission’s report shall embody its findings on all questions of fact

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relevant to the issues between the States Parties concerned, and its views on the possibilities of an amicable solution of the matter. This report shall also contain the written submissions and a record of the oral submissions made by the States Parties concerned.

(d)If the Commission’s report is submitted under sub-para (c), the States Parties concerned shall, within three months of the receipt of the report, notify the Chairman of the Committee whether or not they accept the contents of the report of the Commission.

8The provisions of this article are without prejudice to the responsibilities of the Committee under Article 41.

9The States Parties concerned shall share equally all the expenses of the members of the Commission in accordance with estimates to be provided by the Secretary General of the United Nations.

10The Secretary General of the United Nations shall be empowered to pay the expenses of the members of the Commission, if necessary, before reimbursement by the States Parties concerned, in accordance with para 9 of this article.

Article 43

The members of the Committee, and of the ad hoc conciliation commissions which may be appointed under Article 42, shall be entitled to the facilities, privileges and immunities of experts on mission for the United Nations as laid down in the relevant sections of the Convention on the Privileges and Immunities of the United Nations.

Article 44

The provisions for the implementation of the present Covenant shall apply without prejudice to the procedures prescribed in the field of human rights by or under the constituent instruments and the conventions of the United Nations and of the specialised agencies and shall not prevent the States Parties to the present Covenant from having recourse to other procedures for settling a dispute in accordance with general or special international agreements in force between them.

Article 45

The Committee shall submit to the General Assembly of the United Nations through the Economic and Social Council, an annual report on its activities.

PART V

Article 46

Nothing in the present Covenant shall be interpreted as impairing the provisions of the Charter of the United Nations and of the constitutions of the specialised agencies which define the respective responsibilities of the various organs of the United Nations and of the specialised agencies in regard to the matters dealt with in the present Covenant.

Article 47

Nothing in the present Covenant shall be interpreted as impairing the inherent right of all peoples to enjoy and utilise fully and freely their natural wealth and resources.

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PART VI

Article 48

1The present Covenant is open for signature by any State Member of the United Nations or members of any of its specialised agencies, by any State Party to the Statute of the International Court of Justice, and by any other state which has been invited to the General Assembly of the United Nations to become a party to the present Covenant.

2The present Covenant is subject to ratification. Instruments of ratification shall be deposited with the Secretary General of the United Nations.

3The present Covenant shall be open to accession by any state referred to in para 1 of this article.

4Accession shall be effected by the deposit of an instrument of accession with the Secretary General of the United Nations.

5The Secretary General of the United nations shall inform all states which have signed the present Covenant or acceded to it of the deposit of each instrument of ratification or accession.

Article 49

1The present Covenant shall enter into force three months after the date of the deposit with the Secretary General of the United Nations of the thirty-fifth instrument of ratification or instrument of accession.

2For each state ratifying the present Covenant or acceding to it after the deposit of the thirty-fifth instrument of ratification or instrument of accession, the present Covenant shall enter into force three months after the date of the deposit of its own instrument of ratification or instrument of accession.

Article 50

The provisions of the present Covenant shall extend to all parts of federal states without any limitations or exceptions.

Article 51

1Any State Party to the present Covenant may propose an amendment and file it with the Secretary General of the United Nations. The Secretary General shall thereupon communicate any proposed amendments to the State Parties to the present Covenant with a request that they notify him whether they favour a conference of States Parties for the purpose of considering and voting upon the proposals. In the event that at least one third of the States Parties favours such a conference, the Secretary General shall convene the conference under the auspices of the United Nations. Any amendments adopted by a majority of the States Parties present and voting at the conference shall be submitted to the General Assembly of the United Nations for approval.

2Amendments shall come into force when they have been approved by the General Assembly of the United Nations and accepted by a two-thirds majority of the States Parties to the present Covenant in accordance with their respective constitutional processes.

3When amendments come into force they shall be binding on those States Parties which have accepted them, other States Parties still being bound by the provisions of the present Covenant and any earlier amendment which they have accepted.

Article 52

Irrespective of the notifications made under Article 48, para 5, the Secretary General of the United Nations shall inform all states referred to in para 1 of the same article of the following particulars:

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(a)Signatures, ratifications and accessions under Article 48;

(b)The date of the entry into force of the present Covenant under Article 49 and the date of the entry into force of any amendments under Article 51.

Article 53

1The present Covenant, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited in the archives of the United Nations.

2The Secretary General of the United Nations shall transmit certified copies of the present Covenant to all States referred to in Article 48.

Report of the United Nations High Commissioner for Human Rights 1996

1As evidenced by all too many examples of constant threats to and violations of the basic rights of individuals around the world, the human rights situation continues to be a daunting challenge for the international community. Considerable progress must yet be made in order to secure the realisation of human rights standards and a firmly established human rights culture. The ideals that inspired the Universal Declaration of Human Rights are as relevant today as they were nearly half a century ago when the community of nations pledged to promote universal respect for and observance of human rights and fundamental freedoms. Bearing this in mind, collective efforts must be made on the part of all human rights actors to uphold these aspirations and to implement fully the mechanisms that ensure their effective realisation.

2The United Nations human rights programme, under the direction of the United Nations High Commissioner for Human Rights, is making notable advances in promoting the objectives of the Vienna Declaration and Programme of Action (A/CONF.157/24 (Part I), Chapter III), which serves as a blueprint for action in the international efforts to promote and protect human rights. During the last year, important progress has been made in expanding the ratification of international human rights instruments, supporting the establishment or strengthening of human rights national institutions and broadening technical cooperation projects. These efforts have yielded positive and concrete results.

3An important feature of the High Commissioner’s agenda has been the strengthening of human rights work in the field. As governments increasingly seek human rights assistance in situ, the United Nations human rights programme is able to reach out to more people and bring tangible results to the numerous and urgent needs in this regard. This serves as further proof of the spirit of co-operation that more and more symbolises how human rights are being addressed today.

4Similarly, the High Commissioner has assertively sought to secure that economic, social and cultural rights, and particularly the right to development, acquire a higher profile within the framework of United Nations human rights efforts, in the spirit of the Vienna Declaration and Programme of Action, which proclaimed that all human rights are universal, indivisible and interdependent and interrelated.

5During his tenure, the High Commissioner has encouraged governments and other human rights actors to attach to the consideration of human rights greater prominence and stature. Through dialogue with member states, through co-ordination with the United Nations agencies that support human rights efforts, through permanent contact with regional forums, academic institutions

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and the leadership of the main international financial institutions, the High Commissioner has sought to ensure that the issue of human rights become a constant in the thinking and actions of the political and economic forces that govern or influence events globally.

6The United Nations human rights programme is indeed ambitious and must be implemented through partnership. Member states and others are aware of the various obstacles that have been surmounted to accomplish what thus far has been achieved. However, more needs to be done to achieve further progress. The High Commissioner is firmly determined to work closely with all partners in order to ensure these objectives.

7It should be recalled that human rights, together with peace and security, and development, constitute the triad upon which the United Nations was founded. Member states should entrust the High Commissioner with invigorating the human rights programme in order to maintain the strength of this triad and to preserve the fundamental role envisioned for human rights by the founders of the United Nations. This should be carefully reflected upon as both the fiftieth anniversary of the Universal Declaration of Human Rights and the five-year review on the implementation of the Vienna Declaration and Programme of Action draw near.

8The Vienna Declaration and Programme of Action provides the guidelines for the United Nations human rights programme. The methods and means being implemented are reflected throughout the present report. However, detailed information concerning the ways in which the recommendations adopted by the World Conference on Human Rights are being put into effect is also contained in other reports dealing with human rights submitted to the General Assembly at its fifty-first session.

9The following fundamental principles continue to be the basis of the High Commissioner’s activities aimed at enhancing international co-operation in the field of human rights: (a) the primary responsibility for the promotion and protection of human rights rests with governments; (b) the promotion and protection of all human rights is a legitimate concern of the international community; (c) the international community should foster processes leading towards a better implementation of human rights and the strengthening of democracy and the rule of law, and should take all necessary measures to prevent human rights abuses and to eradicate the gravest human rights violations; (d) the international protection and promotion of human rights is effective only if based on the principle of the indivisibility and equal value of all human rights – civil, cultural, economic, political and social, including the right to development; (e) the interdependence between democracy, development and respect for human rights, underlined by the World Conference on Human Rights, offers a prospect of harmonious national and international activity; (f) the international and regional systems of human rights protection are complementary and should support each other; and (g) national institutions, non-governmental organisations, academic institutions and grass-roots initiatives should be fully accepted as natural human rights advocates and partners in international co-operation for human rights.

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33 The importance placed on strengthening the implementation of human rights world-wide by the General Assembly, the Commission on Human Rights, country and thematic special rapporteurs, working groups and treaty bodies has never been more clear. The globalisation of human rights as seen by their growing relevance for overall development trends world-wide, prompts the

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international community to perceive making human rights a reality as one of its primary concerns. This attitude is strengthened by developments in countries that have recently chosen the challenging way to sustainable development through democracy and human rights. Already these countries are beginning to enjoy the benefits of this policy in the form of economic progress, political consolidation, and social stability. Although the adoption of legislation consistent with international standards is of utmost importance, it is the application of law which matters most.

34The debate during the fifty-second session of the Commission on Human Rights has confirmed the overwhelming trend to human rights, democracy and development in the contemporary world. Adopted resolutions and decisions refer to positive developments in the current world human rights record. International exchange, promoted and facilitated by human rights organs and bodies, contributes to efforts made by governments and civil society. The value of the expertise of others, be it international organisations, governments, nongovernmental organisations or local communities, cannot be overestimated.

35However, as in previous years, the Commission continued to express its concern about (a) obstacles to the enjoyment of all human rights by all; (b) serious human rights violations, and (c) difficult human rights situations in a relatively large number of countries. Again, the Commission in its resolutions drew the attention of governments, the United Nations system and the general public to these issues. The Commission called for action with regard to impunity; racism and xenophobia; discrimination against women; ethnic and religious intolerance; mass exoduses and refugee flows; armed conflicts and terrorism and the lack of the rule of law as major obstacles to human rights. The Commission continued to alert the international community to extrajudicial, summary or arbitrary executions; torture and enforced disappearance; arbitrary detention; violence against women, children and vulnerable groups; the problem of internally displaced persons, extreme poverty and problems related to sustainable development, international debt, etc. Under the agenda item related to the question of violations of human rights and fundamental freedoms in any part of the world, with particular reference to colonial and other dependent countries and territories, the Commission expressed its concern about the human rights situation in Afghanistan, Burundi, Cyprus, Cuba, Equatorial Guinea, Haiti, the Islamic Republic of Iran, Iraq, Myanmar, Nigeria, the Papua New Guinea island of Bougainville, the Republic of Bosnia and Herzegovina, the Republic of Croatia and the Federal Republic of Yugoslavia (Serbia and Montenegro), Rwanda, southern Lebanon and the Western Bekaa, the Sudan and Zaire. Furthermore, the Commission adopted the Chairman’s statements on the situation of human rights in Colombia, Liberia, East Timor and the Republic of Chechnya of the Russian Federation. Under agenda item 4, the Commission considered violations of human rights in the occupied Arab territories, including Palestine, human rights in the occupied Syrian Golan, and Israeli settlements in the occupied Arab territories, and under agenda item 9 the situation in occupied Palestine and the question of Western Sahara. In addition, various thematic procedures, in their reports to the Commission, pointed out serious human rights problems in a number of countries and made recommendations in that regard.

36Concern continues to be expressed by the Commission on Human Rights when governments either deny or fail to lend their full co-operation to the Commission or its mechanisms. Similarly, the Commission expressed concern in its Resolution 1996/70 of 23 April 1996 with regard to continued reports of intimidation and reprisals against private individuals and groups who seek such co-operation. The High Commissioner shares those concerns.

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37Many human rights activists raise the problem of infringements upon their personal security and freedom of action. In this context, the High Commissioner supports endeavours aimed at the finalisation of the draft declaration on the right and responsibility of individuals, groups and organs of society to promote and protect universally recognised human rights and fundamental freedoms. The Commission on Human Rights, in its Resolution 1996/81 of 23 April 1996, urged an open-ended working group to make every effort to complete work on this draft declaration.

38The High Commissioner raises issues related to the implementation of human rights in his dialogue with governments, stressing the need for consideration of the recommendations adopted by the Commission and made by its mechanisms. It is to be pointed out that in many cases the response of governments indicates their willingness to react constructively to the voice of the international community. The High Commissioner regrets that his appeals do not always bring expected results. In keeping with his mandate and guided by his responsibility to promote and protect human rights for everyone, the High Commissioner will continue to take up particular cases and, if appropriate, use direct contact with governments, and other relevant parties, in order to obtain concrete results.

...

V CHALLENGES TO HUMAN RIGHTS

A Equality and non-discrimination

1 Elimination of racial discrimination

71In accordance with General Assembly Resolution 48/91 of 20 December 1993, in which the Assembly proclaimed the Third Decade to Combat Racism and Racial Discrimination, the High Commissioner/Centre for Human Rights organised a seminar to assess the implementation of the International Convention on the Elimination of All Forms of Racial Discrimination, with particular reference to Articles 4 and 6. The seminar was held at Geneva from 9 to 13 September 1996.

72In his introductory statement, the High Commissioner focused on the discrimination of immigrants, refugees and ethnic minorities and the propaganda of racism and anti-semitism through the modern media, including the Internet. The participants expressed their concern about the use of media for the dissemination of racist ideas and incitement to acts of violence and stressed the necessity of a vigorous action, at the international and national levels, against such phenomena. In relation to the Internet, the seminar suggested that the High Commissioner/Centre for Human Rights hold a further seminar in co-operation with Internet service providers to discuss how to prevent racist information on the Internet. The seminar strongly underlined the importance of education as a significant means of preventing and eradicating racism and racial discrimination and of creating awareness of human rights principles, particularly among young people, and recommended to States parties that they take measures in that regard.

2 Women

73 In its Resolution 1996/22 of 19 April 1996, the Commission on Human Rights welcomed that the persons chairing the human rights treaty bodies had emphasised that the enjoyment of human rights by women should be closely monitored by each treaty body within the competence of its mandate, and recommended that the reporting guidelines adopted by each treaty body should be amended to identify gender-specific information that should be provided by

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State parties in their reports. Subsequently, the treaty-based bodies are in the process of revising or preparing new sets of guidelines taking this recommendation into account. On the basis of analysis of gender-related data in State reports, the Division for the Advancement of Women is continuing to formulate methodologies by which the treaty-based bodies might systematically and routinely incorporate a gender perspective in their monitoring activities.

74The Special Rapporteur on violence against women, Ms Radhika Coomaraswamy, visited Poland in May 1996, to study in depth the causes and consequences of the issue of trafficking and forced prostitution of women in the eastern European region. This visit was in accordance with para 7 of General Assembly Resolution 50/167 of 22 December 1995 on traffic in women and girls.

75In July 1996 the Special Rapporteur on violence against women visited Brazil on the issue of domestic violence against women. The Special Rapporteur submitted to the Commission on Human Rights at its fifty-second session a framework for model legislation on domestic violence to be considered by governments (E/CN4/1996/53/Add 2).

76The United Nations Population Fund (UNFPA), the High Commissioner/ Centre for Human Rights and the Division for the Advancement of Women will jointly organise in December 1996 a round table on ways in which the recommendations of recent world conferences concerning women’s reproductive and health rights might be integrated into the human rights monitoring and reporting procedures.

All six treaty bodies will be invited to be represented at the round table.

3 Children

77The implementation of the Convention on the Rights of the Child represents the greatest hope for the future of children, particularly for the world’s one billion poor children. The Convention, the most widely ratified human rights treaty, deserves great support as the clear expression of what the international community has adopted as standards for the treatment of children. Only a handful of countries have yet to ratify the Convention.

78In 1995, the High Commissioner outlined a precise strategy to support the work of the Committee on the Rights of the Child. This strategy could serve as an example of how similar support to other treaty bodies could be provided, making it possible for them to carry out their own responsibilities more effectively. Through this plan of action, the High Commissioner is seeking to provide the Committee with the resources necessary to strengthen its monitoring activities and for the implementation of its recommendations: staff, database and information sharing, and co-operation with the relevant United Nations programmes and agencies, in particular UNICEF.

79In his address to the World Congress against the Commercial Sexual Exploitation of Children, held at Stockholm from 26 to 30 August 1996, the High Commissioner expressed the hope that global awareness of crimes committed against children would strengthen action taken towards ending them. He proposed four concrete ways to achieve change: the participation of children themselves in campaigns to end their exploitation, thereby increasing the children’s own awareness of their rights; making adults familiar with children’s rights; legal reforms to protect children and to punish violators of children’s rights; and co-operation at all levels to combat the problem of commercial sexual exploitation. The Special Rapporteur on the sale of children, child prostitution and child pornography, Ms Ofelia Calcetas-Santos, visited the Czech Republic on the issue of the sale of children and child prostitution and pornography.

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80 In a follow-up to specific recommendations of the Committee on the Rights of the Child, a mission to formulate a project on the administration of juvenile justice was undertaken by the High Commissioner/Centre for Human Rights in Vietnam in March 1996, with the participation of a member of the Committee. A needs assessment mission on the same subject took place in July 1996 in the Philippines, also following a recommendation of the Committee on the Rights of the Child.

4 Minorities

81At its meeting from 30 April to 3 May 1996, the Working Group on Minorities considered and adopted recommendations on the following issues: the promotion and practical realisation of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities; the examination of possible solutions to problems involving minorities, including the promotion of mutual understanding between and among minorities and governments; and the recommendation of further measures for the promotion and protection of the rights of persons belonging to national or ethnic, religious and linguistic minorities (see E/CN4/Sub 2/1996/28).

82In his introductory statement, the High Commissioner welcomed the growing commitment of the international community to the protection of minorities. A programme of international activities should focus on the translation of international standards into domestic law and practice and embrace, inter alia, a world-wide campaign for the promotion of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities; education on rights of persons belonging to minorities and the creation of a climate of tolerance and understanding between different communities; setting up commissions for community relations to reinforce existing inter-group understanding.

83The High Commissioner organised an inter-agency consultation on minorities on 21 August 1996 in Geneva. The rationale for the consultation was to exchange information on minority-related activities, to share ideas and to discuss future collaboration in the field of minority protection. Welcoming this initiative, the participants decided to continue their consultations on a regular basis.

5 Indigenous people

84 The international community renewed its commitment to the economic, social and cultural well-being of indigenous people and the full enjoyment of their rights by proclaiming the period 1995–2004 as the International Decade of the World’s Indigenous People. Within the framework of the Programme of Activities as adopted by the General Assembly in the annex to its resolution 50/157 of 21 December 1995, the Advisory Group of the Co-ordinator of the Decade developed guidelines and a questionnaire for the submission of requests for financial assistance from the Voluntary Fund for the International Decade of the World’s Indigenous People. It recommended that the High Commissioner/ Centre for Human Rights give priority to the following proposals: to organise a second international workshop on the establishment of a permanent forum for indigenous people within the United Nations; to develop a fellowship programme to provide indigenous people with training and practical experience in the field of human rights and the United Nations system; to sponsor, in conjunction with UNESCO, a human rights training programme for official delegates of the Governments of Peru and Ecuador and indigenous representatives from those countries; and to provide technical support for an information workshop on the draft declaration of the rights of indigenous peoples, as proposed by the Government of Fiji. Finally, it recommended that the necessary assistance should be provided to the implementation of an indigenous

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project aimed at establishing a Central and East Africa regional office for indigenous peoples. The information workshop in Fiji has already taken place while the other projects are currently being developed.

85From 24 to 28 March 1996, the government of Canada hosted a land rights seminar held at Whitehorse, Yukon, where a discussion on the negotiation process and legal arrangements for the demarcation, titling and protection of lands took place. It was recommended that the United Nations and its specialised agencies should consider providing technical assistance to states and indigenous people to contribute to the resolution of land claims.

86The fourteenth session of the Working Group on Indigenous Populations was held from 29 July to 2 August 1996 and attracted 721 participants. It focused part of its deliberations on the issue of health and, in this regard, co-operated closely with WHO. The ideas and suggestions brought forward will, where possible, be incorporated in the WHO programme.

87In its Resolution 50/157, the General Assembly recommended that, with regard to the issue of the establishment of a permanent forum for indigenous people within the United Nations, the Secretary General undertake a review of the existing mechanisms, procedures and programmes within the United Nations relating to indigenous people, and report to the Assembly at its fifty-first session. Although the findings of the review are encouraging (see A/51/493), it is clear that there is a lack of adequate procedures and mechanisms. The High Commissioner considers the question concerning the establishment of a permanent forum for indigenous people within the United Nations system to be one of the core issues in relation to the International Decade of the World’s Indigenous People. The dialogue on this issue will continue during the second workshop that will be hosted by the government of Chile.

88The High Commissioner calls upon the international community to recognise, protect and promote the rights of indigenous people in order to achieve full participation of this sector of the population in political, economic and social life at all levels of society. It is essential that this participation be based on full respect for languages, cultures, traditions and forms of social organisation of indigenous people.

6 People infected by the human immunodeficiency virus

89The High Commissioner organised in conjunction with the Joint United Nations Programme on HIV/AIDS (UNAIDS) a Second International Consultation on HIV/AIDS and Human Rights at Geneva from 23 to 25 September 1996. The Consultation was attended by some 35 participants representing governments, human rights non-governmental organisations, AIDS service organisations, academia, networks of people living with HIV/AIDS, and United Nations system agencies and programmes.

90The final document contains concrete, action-oriented strategy guidelines, intended primarily for governments, regarding the promotion of and the respect for human rights in the context of HIV/AIDS. The guidelines, set out in the framework of applicable international human rights standards, address areas of, inter alia, labour, education, immigration, law review and reform, and the empowerment of vulnerable groups. The Consultation also called for the creation of a Special Rapporteur of the Commission on Human Rights to monitor and receive communications regarding violations of human rights relating to AIDS.

B Extrajudicial, summary or arbitrary executions

91 The eradication of extrajudicial, summary or arbitrary executions remains a matter of the highest priority in the protection of human rights. In its Resolution

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1996/74 of 23 April 1996, the Commission on Human Rights reiterated its strong condemnation for the practice of such executions and demanded that all governments ensure that it be brought to an end. The High Commissioner pays particular attention to situations of serious concern in this context, and to situations where early action may have a preventive effect.

92 In his interim report to the General Assembly on extrajudicial, summary or arbitrary executions (A/51/457, annex), the Special Rapporteur, Mr Bacre Waly Ndiaye, offers an overview of the action undertaken during his years in office. The Special Rapporteur concludes that the number of violations of the right to life has not decreased in the last four years, and that women, children and the elderly have not been spared. Such violations have ranged from death threats, death in custody and due to attacks by security forces, death resulting from armed conflicts to executions imposed after unfair trials. In his report, the Special Rapporteur issues recommendations to strengthen respect for the right to life, calling upon all states to conduct exhaustive and impartial investigations into all allegations of violations of this right, and to bring to justice those responsible. Moreover, he considers that effective measures should be taken to avoid the recurrence of such violations.

C Torture

93In April 1996, only one month before the annual meeting of its Board of Trustees, the United Nations Voluntary Fund for Victims of Torture was facing an alarming financial situation. The total amount of contributions received by the fund was $333,000, whereas the amount requested for assistance was more than $5 million. The High Commissioner therefore made an appeal at the fifty-second session of the Commission on Human Rights urging all governments to contribute to the fund. Subsequently, over $2 million was received for the fund’s activities.

94The Board recommended that $2,535,500 be granted to 96 requests, corresponding to the total amount available. The projects scrutinised provide medical, psychological, social and legal assistance to victims of torture and their relatives. They are implemented by non-governmental organisations and specialised centres located in 60 countries world-wide.

D Enforced disappearances

95 The systematic practice of acts of enforced disappearance became known in the early 1970s as a phenomenon prevalent in a relatively small number of countries. Since then, it has, unfortunately, spread to many regions of the world, occurring primarily in the context of internal armed conflict and ethnic strife. The Commission on Human Rights, in its Resolution 1996/30 of 19 April 1996, reiterated its deep concern about that phenomenon and called upon governments to establish appropriate structures and mechanisms aimed at preventing the occurrence of involuntary disappearances in their countries and at clarifying already existing cases. States should take effective measures to implement the principles of the Declaration on the Protection of All Persons from Enforced Disappearance, and to that end take action at the national and regional levels and in co-operation with the United Nations. The technical co-operation programme is available with regard to reform of legislation and training in this respect (see paras 43–47 above).

E Internally displaced persons

96 A compilation and analysis of legal norms pertaining to the protection and assistance needs of internally displaced persons was presented to the Commission on Human Rights by the representative of the Secretary General on

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internally displaced persons, Mr Francis Deng (E/CN4/1996/52/Add 2). This compilation examines the extent to which existing provisions of international human rights law and humanitarian law provide adequate coverage for the protection and assistance needs of the internally displaced, and also examines refugee law for purposes of analogy. In accordance with the recommendations by the General Assembly and the Commission, the representative is in the process of developing a body of guiding principles, based on the aforementioned compilation, with a view to addressing displacement in all its stages.

97 Ever since it started in January 1995, the High Commissioner and the Centre for Human Rights have participated in the overall process of the Conference on Refugees, Returnees, Displaced Persons and Related Migratory Movements in the Commonwealth of Independent States and Relevant Neighbouring States, which was organised by UNHCR, the International Organisation on Migration (IOM) and OSCE and held at Geneva on 30 and 31 May 1996. The High Commissioner/Centre maintained a close working relation with the Conference secretariat by sharing its expertise and providing background materials as well as contributions in the area of human rights and on the specific issues of forced displacement, with a view to ensuring that commitments undertaken under international human rights and humanitarian law standards were accurately reflected in the final document of the Conference. The United Nations human rights programme is contributing to the implementation of the programme of action adopted by the Conference.

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122 The year 1998 will be important for human rights. Two years before the dawn of the next millennium, the international community will celebrate the fiftieth anniversary of its first-ever proclamation of rights and freedoms of the individual. In 1948, the international community agreed upon the Universal Declaration of Human Rights – a common standard of achievement for all peoples and all nations, which gave rise to a vigorous development of international promotion and protection of these rights. In order to respond to the hopes of the drafters of the Declaration and to generations of its advocates all over the world, the celebration of its fiftieth anniversary should be used for advancement of human rights.

123The World Conference on Human Rights provided a means for reaching this objective by linking the fiftieth anniversary of the Universal Declaration with the five-year review of the implementation of the Vienna Declaration and Programme of Action. It requested the Secretary General: ‘... to invite on the occasion of the fiftieth anniversary of the Universal Declaration of Human Rights all States, all organs and agencies of the United Nations system related to human rights, to report to him on the progress made in the implementation of the present Declaration and to submit a report to the General Assembly at its fiftythird session, through the Commission on Human Rights and the Economic and Social Council. Likewise, regional, and as appropriate, national human rights institutions, as well as non-governmental organisations, may present their views to the Secretary General on the progress made in the implementation of the present Declaration.’ The Commission on Human Rights, in its resolution 1996/42 of 19 April 1996 on the preparation for the 50th anniversary of the Universal Declaration of Human Rights, requested the High Commissioner to coordinate the preparations for the 50th anniversary of the Universal Declaration, bearing in mind provisions of the Vienna Declaration and Programme of Action for evaluation and follow-up.

124The celebration of the 50th anniversary of the Universal Declaration and review of the implementation of the Vienna Declaration and Programme of

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Action should provide the opportunity: (a) to strengthen the promotion and protection of human rights world-wide; (b) to review and assess the progress that has been made in the field of human rights since the adoption of the Universal Declaration; (c) to review the progress made in the implementation of the Vienna Declaration and Programme of Action; and (d) to outline or update human rights programmes to meet current and future challenges. This should be achieved through joint efforts of the international community. Let us call 1998 ‘Human Rights Year’.

125All sectors of the human rights constituency, governments, United Nations agencies and programmes, international and regional organisations, academic institutions, non-governmental organisations and other parts of civil society, media and private enterprises, are called upon to take initiatives aimed at the commemoration of the fiftieth anniversary of the Universal Declaration of Human Rights. This should be a global movement giving evidence that human rights reflect not only hopes and aspirations but also essential interests and legitimate demands of all people on all continents. The international community should use 1998 to give new impetus to human rights, reflecting the vision of the next century.

126The High Commissioner will facilitate co-operation between various initiatives aimed at the commemoration of the fiftieth anniversary of the Universal Declaration. To that end, the High Commissioner/Centre has initiated the United Nations inter-agency consultations that will provide a continuing forum throughout 1997 and 1998. In 1997, the High Commissioner intends to undertake sectoral consultations with regional organisations, non-governmental organisations, academic institutions, and others to discuss the preparations for the anniversary. In 1998, the Commission on Human Rights and the Economic and Social Council will be the United Nations focal points for the commemoration which should culminate on 10 December 1998. The General Assembly at its fifty-first session may wish to adopt a decision convening a ceremonial meeting for that day.

127The review of the progress in the implementation of the Vienna Declaration and Programme of Action during the first five years since its adoption should include a profound analysis of achievements in and obstacles to the full realisation of the recommendations adopted at Vienna. A frank and open debate will be of paramount importance for future efforts aimed at the promotion and protection of human rights. It is useful to identify well in advance which role the Commission on Human Rights, the Economic and Social Council and the General Assembly should play in reviewing the implementation of the Vienna Declaration and Programme of Action. Governments, United Nations agencies and programmes, international organisations and non-governmental organisations are encouraged to launch preparations for the presentation of their reports and views on the progress made in the implementation of the Vienna Declaration and Programme of Action, in accordance with para 100 of that document (see para 123 above).

128The Commission on Human Rights may wish to undertake in 1998 an initial evaluation of the implementation of the Vienna Declaration and Programme of Action. The results of that debate would provide input to the work of the Economic and Social Council and the General Assembly. This exchange would be enhanced considerably if held during a high-level segment of the Commission.

129The Economic and Social Council, in its Decision 1996/283 of 24 July 1996, endorsed the recommendation of the Commission on Human Rights Resolution

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1996/78 of 23 April 1996 to devote the co-ordination segment of its session in 1998 to the co-ordinated follow-up to, and implementation of the Vienna Declaration and Programme of Action as part of the overall co-ordinated followup to major United Nations conferences. This would be an excellent occasion to analyse the implementation of the Vienna Declaration and Programme of Action by the United Nations system.

130The General Assembly may also wish to carry out in 1998 a comprehensive analysis of the progress achieved in the implementation of the Vienna Declaration and Programme of Action and to consider recommendations made by the Commission on Human Rights and the Economic and Social Council. Thus, the report of the Secretary General to the General Assembly concerning the implementation of the Vienna Declaration and Programme of Action will highlight the activities of all actors involved, including international and regional organisations, that are not parts of the United Nations system, and civil society.

131A multifaceted and timely preparation of the celebration of the fiftieth anniversary of the Universal Declaration and of the review of the implementation of the Vienna Declaration and Programme of Action will produce an important contribution to the promotion and protection of human

rights. A spirit of solidarity and co-operation should guide the international community in this endeavour.4

16.2.2 Specialised international agreements

The two Covenants adopted in 1966 set down a number of general rights which apply equally to all human beings. In addition to these two general agreements there exists an increasing number of specialised agreements either directed to the protection of particular rights or particular categories of individual. The specialised conventions have often been the work of the specialised agencies of the UN. For example, the International Labour Organisation has played an important role in addressing the issue of workers’ rights and employment conditions and has been responsible for the adoption of a number of conventions dealing with such things as freedom of association.

One of the earliest specialised agreements actually pre-dates UDHR. The Slavery Convention 1926 outlaws slavery and the slave trade and makes such activities subject to the universal jurisdiction of states. The Slavery Convention was followed by the Forced Labour Convention 1930. Since 1948 there have been a considerable number of specialised agreements among the most significant of which are:

•Genocide Convention 1949, which was the first human rights treaty to be adopted under the auspices of the UN;

•Convention on the Status of Refugees 1951;

•Convention on the Suppression and Punishment of the Crime of Apartheid 1973;

•Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment 1984;

•Convention on the Rights of the Child 1989.

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4 Report of the United Nations High Commissioner for Human Rights (A/51/36) 18 October 1996.

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With regard to discrimination on grounds of sex, ECOSOC established a Commission on the Status of Women in 1946, which was largely responsible for the adoption of the Convention on the Political Rights of Women 1952 and the Convention on Elimination of all forms of Discrimination against Women 1979. The convention establishes a UN Committee on the Elimination of Discrimination against Women which is charged with monitoring the observance and implementation of the conventions provisions.

As far as racial discrimination is concerned, the Convention on the Elimination of all Forms of Racial Discrimination 1966, which entered into force in 1969, prohibits States from engaging in acts or practices which involve the ‘distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin’ and which have the purpose or effect ‘of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life’. The convention does not refer to discrimination on grounds of religion or nationality, which have been the subject of UN resolutions but regarding which there is no specific treaty. Article 1(4) of the convention expressly permits action taken to advance the interests of particular groups in order to secure their equal rights, and would cover instances of so-called ‘affirmative action’ or ‘positive discrimination’. There exists a UN Committee on the Elimination of Racial Discrimination which monitors observance of the convention.

16.2.3 Regional agreements

16.2.3.1European Convention for the Protection of Human Rights and Fundamental Freedoms 1950

The first regional agreement pertaining to the protection of human rights was the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (ECHR), which was signed by the member states of the Council of Europe at Rome on 4 November 1950 and which entered into force in 1953.

ECHR went far beyond UDHR in that it imposed binding obligations on the parties to provide effective domestic remedies in regard to a number of rights, and it refined the definition of such rights. It also established the European Commission of Human Rights to investigate and report on violations of human rights at the instigation of State Parties, or, with the express prior consent of individual states, upon petition of any person, NGO, or groups of individuals within that state’s jurisdiction. The Convention also provides for a European Court of Human Rights with compulsory jurisdiction. This was set up in 1959 after eight states had accepted its compulsory jurisdiction.

ECHR was followed later by the European Social Charter 1961, which entered into force in 1965. The Social Charter deals with the social, economic and cultural rights, including the right to work, the right to fair remuneration, the right to bargain collectively and the right to social security. The Social Charter puts claims rather than restrictions on States, and the enforcement machinery is very different from that created under ECHR. The European Social Charter 1961 must be distinguished from the Social Chapter of the Treaty on European Union (the Maastricht Treaty).

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More recently the member states of the Council of Europe adopted the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment 1987, which entered into force in 1989. The convention establishes a European Committee for the Prevention of Torture which is charged with monitoring the treatment of those deprived of their liberty and envisages a system of inspections of prisons and other places of detention. The convention aims to encourage observance of its provisions rather than to provide formal enforcement mechanisms. Torture and other forms of degrading or inhuman treatment are already prohibited under Article 3 of the ECHR.

16.2.3.2 Other regional agreements

A number of other regional organisations have adopted conventions relating to human rights: The American Declaration of the Rights and Duties of Man of 1948, which was closely modelled on UDHR, was followed by the Protocol to the Charter of the Organisation of American States 1967, which established the Inter-American Commission on Human Rights as a principal organ of the OAS with the function of promoting respect for human rights. Two years later the Inter-American Convention on Human Rights 1969 was adopted, which details the rights to be observed and provides for an Inter-American Court of Human Rights.

The Organisation of African Unity has adopted the African Charter on Human and Peoples’ Rights 1981. State parties are placed under an obligation to adopt measures to give effect to the rights contained in the charter rather than a strict obligation to observe the rights contained. The substantive provisions of this charter differ from other general human rights treaties in that far greater emphasis is placed on peoples’ rights. The charter establishes an African Commission on Human and Peoples’ Rights which is given responsibility for the promotion of such rights.

Discussions have also taken place with a view to establishing other regional agreements – for example, among the members of the Arab League and within the region of south Asia.

It is also worth noting here certain provisions of the Helsinki Declaration 1975, adopted by the Conference on Security and Co-operation in Europe. Although, as has previously been stated, this declaration was expressed not to be legally binding, Part VII of the declaration pledged respect for fundamental freedoms and human rights. Certain human rights are also dealt with in other more general treaties, for example, the Treaty of Rome 1957.

16.2.4 Customary rules

A significant number of the provisions contained in the various human rights treaties are now considered to be rules of customary international law. In particular, many of the provisions of UDHR, which as a UN resolution is not binding per se, have come to be regarded as expressing customary rules. An important case in this respect is Filartiga v Pena-Irala (1980), which was heard by a US court. The defendant in the case was a former chief of police in Asuncion, Paraguay, and the case was brought by two Paraguayan nationals who alleged that Pena-Irala had tortured to death a member of their family. In the course of

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giving judgment, the court had cause to consider whether the torture violated customary international law, and it cited with approval the view that UDHR had become, in toto, a part of binding, international customary law. The Third Restatement of US Foreign Relations Law (1987), which commands considerable respect as a statement of general international law, indicates in para 702 that the following practices, where carried out by or on behalf of states, constitute a violation of customary international law:

•genocide;

•slavery;

•murder or causing the disappearance of individuals (this would not include executions imposed following a fair trial);

•torture and other cruel, inhuman or degrading treatment;

•prolonged arbitrary detention;

•systematic racial discrimination.

It is suggested that such violations should be considered to be breaches of jus cogens and that the customary rules protecting human rights are binding erga omnes. Some support for this view is found in the judgment of the ICJ in the Barcelona Traction case (1970) in which the court indicated that certain obligations deriving from the outlawing of acts of aggression and genocide and ‘from the principles and rules concerning basic rights of the human person including protection from slavery and racial discrimination’ were owed to the international community as a whole and could be considered obligations erga omnes. In addition, the Restatement suggests that consistent gross violations of other generally recognised human rights would be contrary to customary international law even if isolated violations of such rights was not prohibited except by treaty. The Restatement suggests that a gross violation is one which is particularly shocking given its particular context.

16.3 Third generation human rights

It has already been indicated that international law distinguishes between civil and political rights and economic, social and cultural rights. The former are often referred to as ‘first generation’ rights and the latter as ‘second generation’ rights. According to the classical justification of human rights, which argued that such rights as existed were inherent in the existence of a human being, any rights belonging to entities other than human beings could not be considered as ‘human rights’ and their justification would have to be found elsewhere. However, with the development of rights such as those of assembly and association, which are possessed by individuals but which can only be asserted by collections of individuals, it has become clear that collective rights are recognised by the international community. From this, the idea of peoples’ rights has followed. Such rights are seen as belonging to peoples rather than individuals, and the principal two such rights are the right to self-determination and the right to development. These rights are often referred to in the literature as ‘third generation’ rights. The right to development is discussed in Chapter 17 in the context of the international law governing economic relations. In this chapter, discussion is limited to the right of self-determination. In addition to

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these peoples’ rights, there is a growing argument about the existence and nature of a right to a decent, viable, healthy and sustainable environment, and such argument will be discussed in Chapter 17.

16.3.1 The right to self-determination

Although the principle of self-determination has long been recognised as a political concept, it has only assumed the status of a legal right since 1945. It remains controversial because it is not always easy clearly to identify who possesses the right or what implementation of the right entails. The UN Charter refers to the principle of ‘equal rights and self-determination of peoples’ in Article 1(2), but UDHR make no specific mention of self-determination, although Article 21 provides that:

(1)everyone has the right to take part in the government of his country, directly or through freely chosen representatives; ...

(3) the will of the people shall be the basis of the authority of government ...

Events during the 1950s in colonial territories brought the issue of selfdetermination to the forefront of discussion, and in 1960 a UN General Assembly including a number of newly independent states adopted the Declaration on the Granting of Independence to Colonial Territories and Peoples which states that:

1the subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the promotion of world peace and co-operation;

2all peoples have the right to self determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development;’

The provisions of para 2 were contained in the common Article 1 of both ICPR and ICESCR and, since 1966, recognition of the right of peoples to selfdetermination has been repeated in a number of resolutions and treaties. In the Western Sahara case (1975) the ICJ confirmed that the right was one recognised by international law.

The principle of self-determination certainly now seems to be a part of international law, but the problem remains as to who or what constitutes a people capable of possessing and asserting the right. The legal concept was developed during the period of de-colonisation, when it was easier to identify peoples who did not enjoy full rights to determine their own economic, social and cultural development because of the presence of the colonial government. From the 1970s onwards, the right has been asserted by groups wishing to establish a state in part of the territory of an existing state or states, and this has created problems which have yet to be resolved. Article 27 of the ICPR provides that:

In those states in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.

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This article certainly appears to recognise a peoples’ right and echoes some of the minority protection measures that were adopted after World War One, but it does not provide a full-blown right of self-determination.

The question of the existence of such a right in a non-colonial situation was considered by the Badinter Arbitration Committee, which was established by the European Union in August 1991 to consider various questions of law arising from events in former Yugoslavia. One of the questions presented was whether the Serbs living in Bosnia and Croatia had the right to self-determination. The Arbitration Committee, after making a study of the international law regarding the issue, came to four main conclusions:

1The right to self-determination must not involve changes to existing frontiers at the time of independence except where the states concerned agree otherwise;

2Where there are two or more groups within a state constituting one or more ethnic, religious or language communities, they have the right to recognition of their identity under international law;

3Article 1 of the two 1966 Covenants establishes that the principle of the right of self-determination serves to safeguard human rights. By virtue of that right every individual may choose to belong to whatever ethnic, religious or language community he or she wishes;

4The Serbian population in Croatia and Bosnia is entitled to the rights accorded minorities and such rights must be protected by the governments of Croatia and Bosnia.

The decision is important, as it is one of the few, if not the only, occasions in which an international tribunal has been called upon to consider whether a particular group has a right of self-determination and the consequence of that right. It would appear that, although all peoples have the right to selfdetermination, this should not be understood as a right to independent statehood. Where an identifiable group lives in an existing independent state, it is clear that they are entitled to minority rights; but it could be argued that ‘the right to recognition of their identity’ goes beyond this and suggests that such a group is entitled to some measure of autonomy as well. Certainly many of the peace proposals that have been made with regard to Bosnia have included recommendations that the Serbian population in Bosnia would possess powers in respect of their own government. However, such an interpretation of a limited right of self-determination in a non-colonial situation is not supported by the provisions of the Vienna Declaration 1993, adopted at the UN World Conference on Human Rights. Paragraph 2 re-affirms the right of all peoples to self-determination, but continues by stating that:

This shall not be construed as authorising or encouraging any action which would dismember of impair, totally or in part, the territorial integrity or political unity of sovereign and independent states conducting themselves in compliance with the principle of equal rights and self-determination of peoples and thus possessed of a government representing the whole people belonging to the territory without distinction of any kind.

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THE RIGHTS OF PEOPLES

From the perspective of international law, the key feature of the phrase ‘rights of peoples’ is not the term ‘rights’, but the term ‘peoples’. From a philosophical point of view, no doubt, the term ‘rights’ is itself problematic. But lawyers, including international lawyers, are used to talking about rights, and so long as one accepts Hohfeld’s point that one person’s right must mean another person’s duty, the term seems unremarkable even in the context of peoples’ rights. Moreover, international law is familiar with the notion of ‘collective’ rights. References to the state, the basic unit of international law, involve a reference to the social fact of a territorial community of persons with a certain political organisation, in other words, a reference to a collectivity. In this sense, international law rules that confer rights on states confer collective rights. However, when international law attributes rights to states as social and political collectivities, it does so sub modo – that is to say, it does so subject to the rule that the actor on behalf of the state, and the agency to which other states are to look for the observation of the obligations of the state and which is entitled to activate its rights, is the government of the state. This basic rule drastically affects the point that the state qua community of persons has rights in international law, especially where the view or position taken by the government of a state diverges from the interests or wishes of the people of the state that the government represents. And it is, so far at least, axiomatic that international law does not guarantee representative, still less democratic, governments.

The proposition that the international law rights of states as communities of persons are moderated through a government (not necessarily representative, but legally the representative, of the people of the state) still represents the general rule. And it is that proposition which makes the term ‘peoples’ in the phrase ‘rights of people’ remarkable. Has international law taken up the task of conferring rights on groups or communities of people against the state which those people constitute, and against the government of the state? If so, it would be no great step for it to confer rights on those groups or communities as against other states and their governments. But the people of a state are – to put it mildly

– at least as likely to have their rights violated by their own government as by the governments of other states. If the phrase ‘rights of peoples’ has any independent meaning, it must confer rights on peoples against their own governments. In other words, if the only rights of peoples are rights against other states, and if there is no change to the established position that the government of the state represents ‘the state’ (ie the people of the state) for all international purposes irrespective of its representativeness, then what is the point of referring to the rights in question as rights of peoples? Why not refer to them as the rights of states, in the familiar, well understood, though somewhat elliptical way?

I think it is more profitable to try to answer this question in the context of specific formulations of the ‘rights of peoples’. Which of these rights are really rights of states in disguise? Which of them are really individual human rights – or aspirations to them? Which can properly be treated as rights of peoples, as distinct from individuals or states?5

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5James Crawford, ‘The Rights of Peoples: “Peoples” or “Governments”?’ in Crawford (ed), The Rights of Peoples, 1988, Oxford: Oxford University Press at pp 55–56.

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THIRD-GENERATION RIGHTS

The emergence of third-generation or solidarity rights is closely identified with the rise of Third World nationalism and the perception of developing states that the existing international order is loaded against them. It may also be seen as a claim by developing states for fairer treatment and for the construction of a world system that will facilitate distributive justice in the broadest Rawlsian sense. The basis for these claims is not, however, simply moral, but can be identified as having a legal basis in a number of existing international instruments.

The UN Charter itself places human rights in a pivotal position to assist in the creation of a peaceful international order and economic development. Article 1(2) of the Charter provides that one of the purposes of the UN is ‘to develop friendly relations among nations based on the principle of equal rights and selfdetermination of people’. Article 1(3) further provides that another purpose of the organisation is ‘to achieve international co-operation in solving international problems of an economic, social, cultural or humanitarian character, and in promoting and encouraging respect for human rights and fundamental freedoms ...’ These purposes are further reinforced by the substantive provisions of the Charter, particularly Articles 55 and 56, which clearly demonstrate that the creation of suitable international conditions is a prerequisite to the full social development of all individuals.

A number of other international instruments also support the view that the international community is obliged to establish a favourable global system for securing the better participation of developing states. The common Article 1 of the two International Covenants, for example, provide for both the political and economic right to self-determination. Article 1(2) provides:

All peoples, may, for their own ends, freely dispose of their natural wealth and resources without any prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.

Article 2(1) of the ICESCR also provides that State Parties are ‘to take steps individually and through international assistance and co-operation, especially economic and technical, to the maximum of available resources, with a view to achieving progressively the rights recognised in the present Covenant by all available means’. These provisions, it is argued by some jurists, provide a clear basis for a number of claims solidarity rights.

What, then, are these third-generation of solidarity rights? Burns Weston identifies at least six categories of solidarity rights:

1the right to economic, political, social and cultural self-determination;

2the right to economic and social development;

3the right to participate in and benefit from the Common Heritage of Mankind and other information and progress;

4the right to peace;

5the right to a healthy environment;

6the right to humanitarian relief.

It is immediately apparent that these rights have two dominant characteristics: first they are collective in nature and, second, they depend upon international cooperation for their achievement. It is also apparent that these rights build upon

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and develop existing categories of rights and in that sense they are, as Weston suggests, historically cumulative.

The fact that third-generation rights are collective in nature does not automatically mean that they should be thought of as less than ‘real’ rights for that reason alone. While traditional liberal conceptions of rights emphasise their individualistic quality, it is none the less apparent that even within the category of rights which might be described as civil and political, certain rights are collective in nature. These include the right to exercise one’s religion in community with others, the right of peaceful assembly and the right to freedom of association. The rights categorised as economic, social and cultural, which are contained in a variety of international instruments, are also largely collectivist in nature, but are nevertheless recognised by the parties to those instruments as positive rights. The fact, however, that the new generation of rights depends for its implementation on international co-operation leads some authors to assert that they are little more than aspirational claims which do not possess the binding quality which is the hallmark of rights proper. Others, such as Alston, however, argue that there is no need to resort to claiming new rights which may be categorised as third generation, since by and large the problems which they seek to address are dealt with by existing instruments. Alston has also argued that claims for novel rights, such as the ‘right to tourism,’ obscure the need to properly develop existing rights, and more particularly, implementation programmes. He has also argued that there should be a system of procedures for granting a kind of approved origin mark to any ‘new’ rights proclaimed by the General Assembly.6

16.4 Enforcement

A survey of the implementation of international human rights law throughout the world could easily give the impression that the law is honoured more in its breach than its observance and that international agreements on human rights law are of little practical use. Such a view, it is submitted, would be wrong, since the very existence of international human rights law can serve to acknowledge that abuses are occurring and to set standards for future behaviour. A number of the conventions contain specific provision for their enforcement and, of course, as treaties, they are subject to the usual rules of observance discussed in Chapter 4. But any discussion of the enforcement of human rights law cannot ignore the prominent role played by publicity, both of abuses which occur and of the existence of the rights themselves. A number of organisations exist to monitor human rights violations, either in specific regions or States or throughout the world. A number of states also have introduced a formal system of monitoring, relying on information provided by their embassies abroad; for example, the US Congress prepares a fairly comprehensive annual report on the state of human rights throughout the world, which can have an important role to play in foreign policy decisions which are taken by the Executive.

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6 Scott Davidson, Human Rights, 1933, Buckingham: Open University Press at pp 43–45.

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16.4.1 UN mechanisms

Both ICPR and ICESCR establish enforcement machinery, although neither has proved to be extremely effective. Under Article 40 of the ICPR, every State Party is bound to submit periodic reports to a Human Rights Committee, which is established under Part VI of the Covenant. The Committee is made up of 18 members elected by the parties. Reports should indicate measures that have been taken to implement the Covenant, and the Committee can ask further questions about the report. The Committee itself produces a report on the state of human rights, but it has proved reluctant or unable to criticise States, and the reports submitted by individual states are unlikely to admit serious human rights violations.

Article 41 of the ICPR establishes a procedure for inter-State complaints, whereby a party may declare, at its option, and on the basis of reciprocity, that it recognises the competence of the Human Rights Committee to receive complaints from other states, subject to the requirement of exhaustion of local remedies. If an inter-state complaint is referred to the Committee, it will attempt to mediate and, if necessary, will refer the matter to an ad hoc Conciliation Commission: but the final report of such a commission is not binding on states. A limited number of states have made optional declarations under Article 41.

In addition, the Optional Protocol to the ICPR provides for the possibility of individual complaints to the Human Rights Committee, which can then carry out an investigation. The report of the Committee is not binding, although its publication may shame a state into action.

Enforcement mechanisms are much less strong under ICESCR. Under its provisions, parties must submit periodic reports are to a Group of Experts established by ECOSOC. The Group of Experts tends to be more open to political influence than the Human Rights Committee. There is also an 18member Committee on Economic, Social and Cultural Rights set up by ECOSOC to assist in implementation of rights.

Aside from the provisions of the two covenants, the Human Rights Commission established by ECOSOC has an important role to play. The Commission is composed of 43 members representing their states, and it has jurisdiction to investigate allegations of widespread human rights violations and can establish independent working groups if necessary; for example, such a group investigated the state of Iranian prisons in 1990.

Since 1971, the UN Human Rights Commission has debated complaints submitted to it by the Sub-Commission on the Prevention of Discrimination and Protection of Minorities, which was authorised in 1970 to examine individual petitions relating to violations of human rights received by the Secretary General and reported to the Sub-Commission where they have revealed a consistent pattern of gross violation of human rights. It should be noted that the Sub-Commission has been subjected to immense political pressures and so has lacked effectiveness.

Recognising the problems of enforcement and realisation of human rights, the UN Conference on Human Rights at Vienna recommended a number of new measures, in particular the creation of the office of UN High Commissioner

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for Human Rights. The recommendation was acted upon by the UN General Assembly in December 1993 when it voted in favour of creating such a post. In February 1994, Jose Ayala Lasso from Ecuador was appointed the first UN High Commissioner for Human Rights, and he is to serve for an initial term of four years. The High Commissioner has responsibility for co-ordinating UN human rights activities and for promoting and protecting human rights. It remains to be seen what effect the appointment will have on international human rights.

16.4.2 European mechanisms

As has already been stated, ECHR was the first human rights treaty to provide mechanisms for enforcement, and to some extent it has served as a model for other regional agreements. In recent years, the system established under ECHR has been subject to considerable criticism, much of it related to the cost and time involved in bringing cases to conclusion. The Council of Europe has been debating changes, and in May 1994 the 32 members of the Council of Europe signed Draft Protocol 11. The Protocol replaces the present Articles 19–56 of the ECHR and establishes a new permanent European Court of Human Rights to replace the present Court and Commission. Under the Protocol, the court will have jurisdiction, and the right of individual petition will be mandatory. The Protocol requires ratification by all parties to ECHR before it will enter into force, although at the Vienna summit of the Council of Europe, the heads of government of the Member States pledged themselves to secure early ratification.

The present system contained in Articles 19-56 of the ECHR involves a twostage process. Any State Party may refer a complaint involving allegations of breach of the convention to the European Commission of Human Rights. The Commission checks that the complaint is admissible. Claims will only be admissible if local remedies have been exhausted, if the claim is brought within six months of the date on which the final local decision was made, and providing the subject matter of the claim has not been settled by previous proceedings under the convention. If the claim is admissible, then the Commission will first attempt to bring about a friendly settlement. If this fails, a report is submitted to the Committee of Ministers of the Council of Europe, which can decide on the measures to be taken if there has been a breach, or refer the matter to the European Court of Human Rights for a full hearing. In addition to states being able to initiate proceedings under ECHR, Article 25 allows the Commission to receive petitions from any individual, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the State Parties of a right contained in the convention. This right only exists if the state against which the complaint has been made has lodged a prior declaration recognising the right to bring such petitions. The lodging of such declarations is optional, and such declarations may be made for a limited period. In spite of the recent criticisms that have been made of the enforcement machinery of ECHR, it has undoubtedly had an effect on the conduct of states. For example, the UK acted to end the use of corporal punishment in schools following the decision of the European Court of Human Rights in Campbell and Cosans v UK.7 The Court has

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7 (1982) 4 EHRR 293.

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Human Rights

built up a considerable jurisprudence which is of use in defining and interpreting the nature and scope of a number of significant human rights. Among the landmark decisions are Lawless v Ireland (1961),8 which raised the question of the situations in which a state would be able to depart from observance of human rights; Ireland v UK (1978),9 which considered the definition of torture and inhuman and degrading treatment; and Lingens v Austria (1986),10 which examined the extent of the right of freedom of expression.

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8(1961) 1 EHRR 1.

9(1978) 58 ILR 190.

10(1986) ECHR 407.

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