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CHAPTER 11 CHAPTER 11
INTERNATIONAL HUMAN INTERNATIONAL HUMAN
RIGHTS LAW RIGHTS LAW
PROFESSOR PROFESSOR
DR. ABDUL GHAFUR HAMID DR. ABDUL GHAFUR HAMID
11.1 THE CONCEPT OF HUMAN 11.1 THE CONCEPT OF HUMAN
RIGHTS RIGHTS [Textbook, p. 339] [Textbook, p. 339]
The crux of international human rights law: to
afford legal protection of every human being on
the planet earth.
All individuals, solely by virtue of being human
beings, have rights which no society or State
should deny.
Unfortunately, however, there are radically
different definitions, and interpretations of
human rights, and different approaches.
11. 1.1 11. 1.1 Categorisation of human rights Categorisation of human rights
Human rights are generally divided into three main
categories:
(1)civil and political rights;
(2) economic, social and cultural rights; and
(3) group or peoples rights.
They are often confusingly expressed in terms of
generations of human rights: the first, the
second, and the third generation respectively.
Civil and political rights Civil and political rights
Civil and political rights (freedom of
expression, freedom of peaceful assembly,
freedom from torture, freedom from arbitrary
arrest and detention, right to a fair trial, etc.)
derive from the natural rights philosophy of John
Locke, Rousseau and others.
They protect against encroachments of
government.
These rights have traditionally been given
priority by Western States.
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Economic, social and cultural rights Economic, social and cultural rights
Economic, social and cultural rights (e.g.,
right to work, right to education, right to access
to health care) attained recognition in the
twentieth century with the advent of socialism.
They argued that achievement of economic and
social rights was a pre-condition for other rights.
That is, until the economic and social rights were
realized a State was not in a position to provide
civil and political rights.
Group or peoples Group or peoples rights rights
Group or peoples rights emerged as recently
as the 1970s and are supported by developing
countries.
The focus is on collective as opposed to
individual rights.
The right to development and the right to self-
determination are two main examples.
In the early 1970s, thanks to their numerical
superiority, the developing countries managed to
elaborate their own philosophy of human rights.
11.1.2 11.1.2 Universalism and Cultural Universalism and Cultural
relativism relativism
The question of the universal or relative
character of the human rights has been a source
of debate from the beginning of the human rights
movement.
The proponents of the universalism claim that
international human rights like rights to equal
protection by law, physical security, freedom of
speech, freedom of religion and freedom of
association are and must be the same
everywhere.
Advocates of cultural relativism claim that most
(or some) rights depend on cultural context, the
term culture being used in a broad way to
include political and religious ideologies and
institutional structures.
Hence notions of right (and wrong) necessarily
differ throughout the world because the cultures
in which they take root differ.

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On their face, human rights instruments
are on the universal side of this debate.
The landmark instrument is the Universal
Declaration of Human Rights (UDHR).
The two Covenants (ICCPR, ICESCR)
also speak in universal terms: everyone
has the right to liberty, all persons are
entitled to equal protection, etc.
To the relativists, these instruments are the
indicators of the so-called cultural imperialism
of the West. The West view their own beliefs as
universal, and attempt to universalise them.
Moreover, the push to universalization is said by
some relativists as an attempt to destroy
diversity of culture and hence amounts to
cultural homogenisation in the modern world.
During the Cold War, such debates were mainly
between the Communist and the Western.
The West charged the Communist world with
violating many basic rights of a civil and political
character. The Communist world charged the
West with violations of the more important
economic and social rights.
Today the universal-relative debate takes place
primarily in a North-South (or West-East)
framework between developed and developing
countries.
11.1.3 11.1.3 The Islamic perspective of human The Islamic perspective of human
rights rights
Islam has its own values and standards of
human rights, founded on Shariah, the
Divine Law, the essence of which is
absolute submission to the Will of God
Almighty.
However, it appears that Islamic jurists are
divided on how to interpret the original
sources of Shariah.
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Reformists and traditionalists Reformists and traditionalists
Ijtihad: Whether the door for ijtihad has
been closed or not.
Traditionalists: must strictly follow the
classical interpretations.
Reformists: should not interpret the
original sources literally but consider the
rationale behind the revelation in question.
Islamic values versus Human rights instruments Islamic values versus Human rights instruments
Human rights instruments are mainly based on
universalism.
There are arguments that Islamic values conflict
with some norms of the human rights
instruments (esp. in respect of family law, the
notion of Qawama (guardianship and authority),
the notion of al-hijab, and the law of apostasy).
To counter these, many Islamic jurists rely
on the concept of cultural-relativism.
For us, we believe that it is not appropriate
to test whether an injunction of the Divine
Law is just, fair or reasonable with a
system of justice made by man.
The practice of Islamic countries The practice of Islamic countries
Although most of the Islamic countries apply the
Western legal systems in the field of public law
(with the exception of a few, like Saudi Arabia;
countries like Pakistan is practising hudud law),
their family laws are based on Shariah.
When these countries adopt human rights
instruments, they find that some of the
provisions are in conflict with Islamic law.
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In view of this, they made reservations when
ratifying the Convention on the Elimination of All
Forms of Discrimination Against Women, 1979
(CEDAW), and the Convention on the Rights of
the Child, 1989.
See: Abdul Ghafur Hamid, Reservations to
CEDAW and the Implementation of Islamic
Family Law: Issues and Challenges, (2006)
Asian JIL, vol. 1 No. 2, 121-155. Conference
Paper, International Conference on Islamic
Family Law (2006).
11.3 The evolution of international human 11.3 The evolution of international human
rights law rights law
The concept of the international protection of
human rights is revolutionary in nature given the
fact that the traditional doctrine of international
law had no place for it at all.
The turning point for this change of the paradigm
is the Charter of the United Nations, which is
usually referred to as the starting point for any
study of the protection of human rights.
11.3.1 Human rights clauses of the Charter 11.3.1 Human rights clauses of the Charter
Preamble: reaffirmed their faith in fundamental
human rights, in the dignity and worth of human
person, in the equal rights of men and women.
Article 1: the achievement of 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.
Also Arts. 55 and 56 (All members pledge
themselves to take joint and separate action).
Some argue that the human rights clauses of the
Charter do not impose any legal obligation on
member States with regard to their own
nationals.
The better view, however, is that the use of the
word pledge in Article 56 implies a legal
obligation, although the obligation is weak in
view of the fact that there is no enumeration in
the Charter of the fundamental human rights
which are to be observed by States.
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11.3.2 The Universal Declaration of Human 11.3.2 The Universal Declaration of Human
Rights Rights
The adoption by the General Assembly of the
Universal Declaration of Human Rights on 10
December 1948, by 48 votes to nil, with 8
abstentions.
The abstaining states were Saudi Arabia, South
Africa and the communist countries
(Byelorussia, Czechoslovakia, Poland, Ukraine,
USSR and Yugoslavia).
Two main categories of human rights, namely:
civil and political rights [Articles 3 to 21] and
economic, social and cultural rights [Articles 22
to 27].
Many laymen imagine that States are under a
legal obligation to respect the rights listed in the
Declaration. It is not so. As it is not a treaty, the
Declaration as such is not legally binding.
It is simply a list of human rights which member
states pledge themselves to promote under
Articles 55 and 56 of the Charter.
In spite of its limitations, the Declaration is of
great importance in stimulating and promoting
the international protection of human rights.
It has impact in shaping subsequent treaties on
human rights, and upon the content of the
constitutions of new States.
It is possible that at least some part of the
Declaration, like the prohibition of torture, may
subsequently have become binding as a new
rule of customary international law.
11.3.4 The International Covenant on Civil and 11.3.4 The International Covenant on Civil and
Political Rights 1966 (ICCPR) Political Rights 1966 (ICCPR)
The idea to draft a single convention failed.
The International Covenant on Civil and Political
Right (ICCPR) and the International Covenant
on Economic, Social and Cultural Rights
(ICESCR) were finally adopted by the General
Assembly on 16 December 1966. Both came
into force in 1976.
As of now, there are 160 State parties to the
ICCPR and 156 States parties to the ICESCR.
Both Covenants contain a common article
(Article 1) reaffirming the right of self-
determination.

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The ICCPR provides, among others, for the right
of self-determination, the right to life, the
prohibition of torture, the prohibition of slavery
and forced labour, the right to liberty, the
prohibition of arbitrary arrest and detention, the
right equality before the courts, the right to
freedom of thought, conscience, religion and
expression, the right of peaceful assembly and
the right to freedom of association including the
right to form and join trade unions, and the right
to take part in the conduct of public affairs, to
vote and to be elected at elections.
The ICCPR imposes the obligation on States
Parties to respect and to ensure to all
individualsthe rights recognized in the present
Covenant [Art. 2(1)].
It also contains provisions obliging the Parties to
undertake the necessary steps to adopt such
legislation or other measures as may be
necessary to give effect to the rights recognised
in the Covenant. [Art. 2(2)]
Each State Party to the Covenant also
undertakes to ensure that any person
whose rights are violated has an effective
remedy, notwithstanding that the violation
has been committed by persons acting in
an official capacity. [Art. 2(3)]
Art. 4: emergency threatening the
existence of the state.
Human Rights Committee Human Rights Committee
The Human Rights Committee, established
under Article 28 of the Covenant, has 18
members.
It has three main monitoring mechanisms:
(1) Compulsory reporting procedure whereby all
State parties are obliged to present reports
(initial and period) indicating compliance with the
ICCPR;
(2) Optional inter-State complaints procedure;
and
(3) Individual complaints procedure.
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Optional Optional inter inter- -State complaints procedure State complaints procedure
[Art. 41] [Art. 41]
A contracting party may, on condition of
reciprocity, accept the right of the other
contracting parties to bring a claim to the HRC
alleging a violation of the Covenant by it.
Negotiations between the two parties must have
been completed without success.
If satisfied that local remedies have been
exhausted, the Committee shall make available
its good offices.
The Committee must, within twelve months,
submit a report, which is not legally binding.
Complaints by victims of human rights violations Complaints by victims of human rights violations
The most significant monitoring mechanism is
the individual complaints procedure under the
First Optional Protocol to the ICCPR, 1966.
There were 107 Parties to it.
The victims of human rights violations, if they
have exhausted all available domestic remedies,
may submit a written communication to the
Committee for consideration.
There is a Second Optional Protocol which
deals with abolition of death penalty.
11.3.5 International Covenant on Economic, Social 11.3.5 International Covenant on Economic, Social
and Cultural Rights 1966 (ICESCR) and Cultural Rights 1966 (ICESCR)
The ICESCR provides for the right of self-
determination for all peoples, the right to
work, the right to form trade unions and to
strike, the right to social security, the right
to an adequate standard of living, the right
to health, the right to education and the
enjoyment of certain cultural rights.
The nature of the obligation of State Parties The nature of the obligation of State Parties
Article 2 (1) provides that each State
Party to the present Covenant undertakes
to take steps to the maximum of its
available resources, with a view to
achieving progressively the full realization
of the rights recognized in the present
Covenant by all appropriate means,
including particularly the adoption of
legislative measures.
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ICCPR and ICESCR: compare and ICCPR and ICESCR: compare and constrast constrast
(1) Obligation of state parties:
(a) The obligation under ICESCR is very
general and limited to taking steps with a view
to achieving progressively the full realization
of the rights whereas ICCPR imposes a more
stringent obligation on States to respect and to
ensure.
(b) The obligation under ICESCR is also
limited To the maximum of its available
resources.
(2) Favourable condition for developing countries:
A significant feature of the ICESCR is that
developing countries, with due regard to human
rights and their national economy, may
determine to what extent they would guarantee
the economic rights recognized in the Covenant
to non-nationals. [Art. 2(3)]
(3) Individual complaints procedure: There is an
Optional Protocol to the ICCPR establishing
individual complaint procedure while there is no
such procedure in ICESCR.
11.3.6 The Convention on the Elimination of All 11.3.6 The Convention on the Elimination of All
Forms of Discrimination Against Women 1979 Forms of Discrimination Against Women 1979
(CEDAW) (CEDAW)
The CEDAW was adopted by the General
Assembly on 18 December 1979 and entered
into force on 3 September 1981.
There are 185 States Parties to the Convention.
Malaysia acceded to CEDAW on 5 July 1995.
CEDAW Art. 2: To embody the principle of
equality of men and women in their national
constitutions or other appropriate legislation.
Art. 8 (2) of the Federal Constitution was
amended (in 2001) to guarantee gender
equality.
The Convention establishes a Committee
on the Elimination of Discrimination
against Women (CEDAW), which consists
of 23 independent experts as members, to
monitor its implementation.
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Reservations to CEDAW Reservations to CEDAW
Even though 185 States have become
parties to the Convention, 57 States have
currently reservations to it.
Most reservation are made on the
following provisions: Arts. 2, 5, 7, and 16.
Art. 28: A reservation incompatible with
the object and purpose of the Convention
shall not be permitted.
Especially the rights granted to women in
Article 16 (regarding marriage and family
relations) raised widespread opposition,
particularly from many Islamic States.

11.4 ENFORCEMENT OF 11.4 ENFORCEMENT OF

INTERNATIONAL HUMAN RIGHTS LAW: INTERNATIONAL HUMAN RIGHTS LAW:
UNIVERSAL LEVEL UNIVERSAL LEVEL
The best means of ensuring respect for a right is
to back it up with legal guarantees to be
administered by a court of law.
In the case of human rights, however, opposition
to international adjudication is much stronger.
A compromise is the establishment of a number
of monitoring mechanisms, which of course are
much weaker than international adjudication.
Two principal monitoring mechanisms: those set
up by the United Nations, and those established
by international treaties.
11. 4. 1 Monitoring mechanisms established by 11. 4. 1 Monitoring mechanisms established by
the United Nations the United Nations
Under Article 13 of the Charter, the UN General
Assembly can initiate studies and make
recommendations on human rights issues.
A principal organ of the United Nations which is
primarily responsible for human rights matters is
the Economic and Social Council (ECOSOC).
Article 62. The ECOSOC can make
recommendations on human rights, draft
conventions, convene international conferences,
and hear reports from various bodies.
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Commission on Human Rights (already Commission on Human Rights (already
replaced by the Human Rights Council) replaced by the Human Rights Council)
A Commission on Human Rights was
established by the ECOSOC in 1946 under
Article 68.
Its primary function was to carry out research
and to draft treaties implementing Articles 55
and 56 of the Charter.
It had no authority to deal with complaints on
violations of human rights. However,
subsequently, it has been entrusted by means of
resolutions of the ECOSOC and the GA with
some monitoring and enforcement functions.
(a) (a) Resolution 1235 (XLII) of the ECOSOC Resolution 1235 (XLII) of the ECOSOC
The Commission was empowered by resolution
1235 to examine information relevant to gross
violations of human rights and to study
situations which reveal a consistent pattern of
violations of human rights.
The Commission may eventually adopt
resolutions deploring or condemning a particular
State for its breaches of human rights.
(b) (b) Resolution 1503(XXVIII) of the ECOSOC Resolution 1503(XXVIII) of the ECOSOC
Since 1970, the public procedure under
Resolution 1235 has been complemented by a
confidential procedure, established under
ECOSOC Resolution 1503.
It is private and confidential in the sense that the
communications from individuals and groups
alleging human rights violations are not made
public. The final outcome of the procedure is
made public only when the Commission decides
to submit a situation to the ECOSOC.
(c) (c) The procedure of appointing country or The procedure of appointing country or
thematic special thematic special rapporteurs rapporteurs
This procedure has gradually evolved in the
1990s to take account of special needs.
Under this procedure, the Commission entrusts
either working groups of expert, or individual
experts, with the task of examining, monitoring
and publicly reporting on the human rights
situation in a certain country
(e.g. Afghanistan, Cambodia, East Timor, the
former Yugoslavia, Iraq, Burma / Myanmar,
Rwanda, Somalia, Sudan).
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Although the Commissions monitoring and
enforcement work mentioned above was to be
commended, its value was limited.
First, politics played a role in choice and
treatment of particular cases.
Where infringements of human rights were
found, the Commissions powers were restricted
to persuasion, public criticism and, in the most
serious cases, attempts at isolation of the
offending state; there were no legally binding
sanctions available.
Human Rights Council Human Rights Council
On 15 March 2006, the General Assembly
adopted Resolution A60/251 to establish the
Human Rights Council to replace the highly
politicized Commission on Human Rights (as a
subsidiary organ of the General Assembly).
The Council consists of 47 Member States,
which are elected directly secret ballot by the
General Assembly; the membership is based on
equitable geographical distribution.
Malaysia is one of the founding members.
11. 4. 2 Monitoring mechanisms established by 11. 4. 2 Monitoring mechanisms established by
treaties treaties
International human rights treaties have their
own monitoring mechanisms for compliance.
E.g., for the ICCPR, the monitoring body is the
Human Rights Committee (HRC); for CEDAW
the CEDAW Committee.
Three general monitoring procedures:
(1) Period reports
(2) Inter-State complaints
(3) Complaints (communications) by individuals.
Effectiveness of the human rights monitoring Effectiveness of the human rights monitoring
mechanism at the universal level mechanism at the universal level
Human rights monitoring bodies are not courts
of law and as such their views or findings are not
binding on States parties.
There are neither sanctions nor legally binding
enforcement methods entrusted to these bodies.
This is because they operate in an area where
States are not prepared to submit to
international adjudication.
Further, the area of the international protection
of human rights covers matters that are
politically, socio-economically and culturally
sensitive.
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International protection of human rights on
the universal level is effective only to the
extent to exert pressure upon States with
a view to inducing them gradually to
improve their human rights record.
Compare with successful protection of
human rights at the regional level: The
European Court of Human Rights.