[Fundamentals AND Basic Rights

Fundamental such right as right to life and inviolability of the person

a. Participation rights rught to participate in elections , political right , right to take part in
cultural life

Basic - all rights primary material and non-material rights, if not provided not human being can live a
decent . encompasses the inviolability of a person

Freedoms-

Freedom of speech and expression;

Freedom of belief (the right of every person to worship God in his own way);
Freedom from want (economic understandings which will secure to every nation a healthy
peace-time life for its inhabitants); and
Freedom from fear (world-wide reduction of armaments to such a point and in such a thorough
fashion that no nation would be able to commit an act of physical aggression against any
neighbour). Roosevelt implied that a dignified human existence requires not only protection from
oppression and arbitrariness, but also access to the primary necessities of life.

Individual and collective rights

Although the fundamental purpose of human rights is the protection and development of the
individual (individual rights), some of these rights are exercised by people in groups (collective
rights). Freedom of association and assembly, freedom of religion and, more especially, the freedom
to form or join a trade union, fall into this category

First, second and third generation rights

First generation rights are related to liberty and refer fundamentally to civil and political rights.

The second generation rights are related to equality, including economic, social and cultural rights.
Third generation or solidarity rights cover group and collective rights, which include, inter alia, the
right to development, the right to peace and the right to a clean environment.

The only third generation right which so far has been given an official human rights status - apart
from the right to self-determination, which is of longer standing - is the right to development

Sources of Human Rights Law

a) International conventions, whether general or particular;

International treaties are contracts signed between states. They are legally binding and
impose mutual obligations on the states that are party to any particular treaty (states
parties).
 The International Bill of Human Rights consists of the Universal Declaration of Human
Rights, the ICESCR, and the ICCPR and its two Optional Protocols. The International Bill
of Rights is the basis for numerous conventions and national constitutions.

a) Conventions elaborating on certain rights,

The Convention on the Prevention and Punishment of the Crime of Genocide (1948)
ILO 98 concerning the Right to Organise and to Bargain Collectively (1949)
The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment

b) International custom, as evidence of general practice accepted as law;

Customary international law plays a crucial role in international human rights law. The
Statute of the International Court of Justice refers to general practice accepted as
law. In order to become international customary law, the general practice needs to
represent a broad consensus in terms of content and applicability, deriving from a
sense that the practice is obligatory. Customary law is binding on all states (except
those that may have objected to it during its formation), whether or not they have
ratified any relevant treaty.

c) The general principles of law recognised by civilised nations;

as logical propositions resulting from judicial reasoning on the basis of existing
pieces of international law.
General principles of law play two important roles: on the one hand, they provide
guidelines for judges, in particular, in deciding in individual cases; on the other hand,
they limit the discretionary power of judges and of members of the executive in
their decisions in individual cases
d) Subsidiary means for the determination of rules of law such as judicial
decisions and teachings of the most highly qualified publicists.
According to Article 38 of the Statute of the International Court of Justice, judicial decisions
and the teachings of the most qualified publicists are subsidiary means for the
determination of rules of law. Therefore, they are not, strictly speaking, formal sources, but
they are regarded as evidence of the state of the law.

Chapter Two: Human Rights Systems :( Substantive Rights, Institutions and

Procedures)
2.1 The Universal System: The UN System
on 26 June 1945, the United Nations Charter was designed to establish the foundations of a new
peaceful world order. Drawing lessons from the appalling atrocities of the Second World War, the
Charters primary aim was thus to save succeeding generation from the scourge of war

Research the UN Chapter : Understand the Preamble

More specific rules of conduct aimed at the accomplishment of these tasks are contained in three sets of
provisions of the Charter: on international economic and social cooperation (Articles 55 and 56), on the
international trusteeship system (Article 76(c) and on the functions and powers of the UN organs in this
sphere (Article 13(1)(b), Article 62(2) and (3), and Article 68).

Its Article 55 sets forth that with a view to the creation of conditions of stability and well-being which
are necessary for peaceful and friendly relations among nations. Article 56 provides that all. Members
pledge themselves to take joint and separate action in cooperation with the Organization for the
achievement of the proposes set fourth in Article 55.

As far as the second set of provisions is concerned, it was provided that one of the basic objectives of
the international trusteeship system (Chapter of the Charter) will also be to encourage respect for
human rights and for fundamental freedoms for all without distinction as to race, sex, language, or
religion, and to encourage recognition of the interdependence of the people of the world (Article 76 (c))

With in the third set of provisions, the Charter translated its objectives and role in the field of human
rights into the functions and powers of number of UN organs. Thus, the General Assembly was assigned
the tasks of initiating studies and making recommendations for the purpose, inter alia, of promoting
international cooperation in the economic, social, cultural, educational, and health fields, and assisting
in the realization of human rights and fundamental freedoms for all without distinction as to race, sex,
language, or religion (Article 13(b).

Article 62 with a function to make recommendations for the purposes of promoting respect for, and
observance of, human rights and fundamental freedoms for all (paragraph 2) and to prepare draft
conventions for submission to the General Assembly,

The Preamble to the Declaration is significant for several reasons. Its fundamental message lies in the
statement that 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 (Paragraph 1).

The International Covenant on Civil and Political Rights

The International Covenant on Civil and Political Rights contains 53 articles, of which 27 are of a
normative character.

Reservations and Declarations

When becoming party to a treaty, a state may, by formulating reservations, declarations and
interpretative statements, seek to limit its domestic application beyond what is permissible under the
limitations referred to above. Although it is desirable that states become party to a convention
unconditionally, this is often not the case.
a reservation is a statement made by a state by which it purports to exclude or alter the legal effect
of certain provisions of a treaty in their application to that state.

in Article 19 of Vienna Convention on the Law of Treaties which sets out the general rule on
reservations:
A state may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a
reservation unless:
(a) The reservation is prohibited by the treaty;
(b) The treaty provides that only specified reservations, which do not include the reservation in
question, may be made; or
(c) In cases not falling under subparagraphs (a) and (b), the reservation is incompatible
with the object and purpose of the treaty.

Unless expressly permitted by a treaty, the effectiveness of a reservation is dependent on its

acceptance by other states parties, and any other state party may object to it. As a rule, a
reservation is considered accepted by another state party if that state party has raised no objection
within twelve months after it has been notified of the reservation

Restrictions and Derogations 2.2.3.1 Restrictions

Conventions and other instruments may contain a number of restrictions or limitations to the rights
they stipulate. It is generally accepted that only few rights and freedoms are absolute. At the same
time, such restrictions must be used only to establish the proper limits of the protected right and not
as an excuse for undermining the right itself or destroying it altogether. In general, there must be a
proportionate relationship between the restriction of the right as such and the reason for the
restriction.
Various international instruments contain provisions allowing restrictions (used interchangeably with
the term limitations) on human rights.

When a right is subject to a limitation, no other limitations are permitted and any limitation must
comply with the following minimum requirements:
The limitation must not be interpreted so as to jeopardise the essence of the right concerned;
The limitation must be interpreted strictly in the light and context of the particular right;
The limitation must be prescribed by law and be compatible with the object and purpose of the
instrument;
The restriction must be based on a law;
The restriction must be necessary; there must be a pressing social need, assessed on a case-by-case
basis. That the law would be useful is in itself not sufficient; it must be consistent with other
protected rights. In some treaties, the condition that it be necessary (in a democratic society) is
added; and
 The restriction must be justified by the protection of a strictly limited set of well-defined public
interests, which usually includes one or more of the following grounds: national security, public
safety, public order (ordre public), the protection of health or morals, and the protection of the rights
and freedoms of others.

Most of these requirements have been developed by academia and the jurisprudence of major human
rights bodies.

Derogations
Some human rights instruments allow states to take measures derogating temporarily from some of
their obligations. Derogating measures must be of an exceptional and temporary nature.

Rationale - is to strike a balance between the sovereign right of a government to maintain peace
and order during public emergencies, and the protection of the rights of the individual from abuse
by the state. Thus, the state is allowed to suspend the exercise of some rights when necessary to
deal with an emergency situation (e.g., derogation of the right to peaceful assembly), provided it
complies with safeguards against any abuse of these derogation provisions.

When derogation measures are allowed, such derogations have to meet several criteria:
There must be a war or general state of emergency threatening the life of the nation;
The state of emergency must be officially proclaimed;

Measures may not go beyond the extent strictly required by the situation;
Measures may not be inconsistent with other obligations under international law; and
Measures may not be discriminatory solely on grounds of race, colour, sex, language, religion or
social origin.

ASEAN COMMUNITY

ASEAN SUMMIT
ASEAN SECTORAL BODIES
COMMITTEE OF PERMANENT REPRESENTATIVE support work of asean community
counsels and asean sectoral ministerial bodies
- Coordinante with ASEAN secretatial
- asean community counsels and asean secretarial ministerial bodies
- perform such functions as determine by asean coordinating counsel

International hR matrix
- right to seek asylum- Art. 14 of UDHR
- right to have access to courts of
- freedom from discrimination
- right to cultural expression art. 27

N0n- derogable Rights

1. Rights to not be arbitralily deprive of right individual right - Art. 6 of ICCPR

2. Right to not be subjected to torture.
3. Right not to be held in servitude or slavery
4. Right not be in prison due process Art. 11 of ICCPR
5. Right not be convicted of an offense of an act or omission that does not constitute an
offense
6. Right to the recognition as a person before the law equality right- Art 6 ICCPR
7. Right to freedom of thought conscience and religion - Art. 18

Art 9 of ICCPR- Rights related to arrest and or Detention cannot be arbitrary must be in
accordance to law
Miranda DOCTRINE Writ of Habeas Corpus
Rights related to Custody Art of 10 ICCPR a person deprived of liberty
An accused individual must be segrated from convicted

Art 14-