International Human Rights Law

Chapter 1 - International Human Rights Law: Development and current challenges

1. Development

A) Foundations: The Foundation of International Human Rights Law

The Universal Declaration of Human Rights is generally agreed to be the foundation of international
human rights law. Adopted in 1948, the UDHR has inspired a rich body of legally binding international
human rights treaties. It continues to be an inspiration to us all whether in addressing injustices, in times
of conflicts, in societies suffering repression, and in our efforts towards achieving universal enjoyment of
human rights.

It represents the universal recognition that basic rights and fundamental freedoms are inherent to all
human beings, inalienable and equally applicable to everyone, and that every one of us is born free and
equal in dignity and rights. Whatever our nationality, place of residence, gender, national or ethnic
origin, colour, religion, language, or any other status, the international community on December 10
1948 made a commitment to upholding dignity and justice for all of us.

Foundation for Our Common Future

Over the years, the commitment has been translated into law, whether in the forms of treaties,
customary international law, general principles, regional agreements and domestic law, through which
human rights are expressed and guaranteed. Indeed, the UDHR has inspired more than 80 international
human rights treaties and declarations, a great number of regional human rights conventions, domestic
human rights bills, and constitutional provisions, which together constitute a comprehensive legally
binding system for the promotion and protection of human rights.

Building on the achievements of the UDHR, the International Covenant on Civil and Political Rights, and
the International Covenant on Economic, Social and Cultural Rights entered into force in 1976. The two
Covenants have developed most of the rights already enshrined in the UDHR, making them effectively
binding on States that have ratified them. They set forth everyday rights such as the right to life, equality
before the law, freedom of expression, the rights to work, social security and education. Together with
the UDHR, the Covenants comprise the International Bill of Human Rights.

Over time, international human rights treaties have become more focused and specialized regarding
both the issue addressed and the social groups identified as requiring protection. The body of
international human rights law continues to grow, evolve, and further elaborate the fundamental rights
and freedoms contained in the International Bill of Human Rights, addressing concerns such as racial
discrimination, torture, enforced disappearances, disabilities, and the rights of women, children,
migrants, minorities, and indigenous peoples.

Universal Values

The core principles of human rights first set out in the UDHR, such as universality, interdependence and
indivisibility, equality and non-discrimination, and that human rights simultaneously entail both rights
and obligations from duty bearers and rights owners, have been reiterated in numerous international
human rights conventions, declarations, and resolutions. Today, all United Nations member States have
ratified at least one of the nine core international human rights treaties, and 80 percent have ratified
four or more, giving concrete expression to the universality of the UDHR and international human rights.

How Does International Law Protect Human Rights?

International human rights law lays down obligations which States are bound to respect. By becoming
parties to international treaties, States assume obligations and duties under international law to
respect, to protect and to fulfill human rights. The obligation to respect means that States must refrain
from interfering with or curtailing the enjoyment of human rights. The obligation to protect requires
States to protect individuals and groups against human rights abuses. The obligation to fulfil means that
States must take positive action to facilitate the enjoyment of basic human rights.
Through ratification of international human rights treaties, Governments undertake to put into place
domestic measures and legislation compatible with their treaty obligations and duties. The domestic
legal system, therefore, provides the principal legal protection of human rights guaranteed under
international law. Where domestic legal proceedings fail to address human rights abuses, mechanisms
and procedures for individual and group complaints are available at the regional and international levels
to help ensure that international human rights standards are indeed respected, implemented, and
enforced at the local level.
B) The American and French Declarations of rights

The people of the British colonies in North America took the human rights theories to heart. The
American Declaration of Independence of 4 July 1776 was based on the assumption that all human
beings are equal. It also referred to certain inalienable rights, such as the right to life, liberty and the
pursuit of happiness. These ideas were also reflected in the Bill of Rights which was promulgated by the
state of Virginia in the same year. The provisions of the Declaration of Independence were adopted by
other American states, but they also found their way into the Bill of Rights of the American Constitution.
The French Déclaration des Droits de l’Homme et du Citoyen of 1789, as well as the French Constitution
of 1793, reflected the emerging international theory of universal rights. Both the American and French
Declarations were intended as systematic enumerations of these rights.

The classic rights of the 18th and 19th centuries related to the freedom of the individual. Even at that
time, however, some people believed that citizens had a right to demand that the government endeavor
to improve their living conditions. Taking into account the principle of equality as contained in the
French Declaration of 1789, several constitutions drafted in Europe around 1800 contained classic rights,
but also included articles which assigned responsibilities to the government in the fields of employment,
welfare, public health, and education. Social rights of this kind were also expressly included in the
Mexican Constitution of 1917, the Constitution of the Soviet Union of 1918 and the German Constitution
of 1919.

C) The struggle for rights in the nineteenth century

In the 19th century, there were frequent inter-state disputes relating to the protection of the rights of
minorities in Europe. These conflicts led to several humanitarian interventions and calls for international
protection arrangements. One of the first such arrangements was the Treaty of Berlin of 1878, which
accorded special legal status to some religious groups. It also served as a model for the Minorities
System that was subsequently established within the League of Nations.

The need for international standards on human rights was first felt at the end of the 19th century, when
the industrial countries began to introduce labour legislation. This legislation - which raised the cost of
labour - had the effect of worsening their competitive position in relation to countries that had no
labour laws. Economic necessity forced the states to consult each other. It was as a result of this that the
first conventions were formulated in which states committed themselves vis-à-vis other states in regard
to their own citizens. The Bern Convention of 1906 prohibiting night-shift work by women can be seen
as the first multilateral convention meant to safeguard social rights. Many more labour conventions
were later to be drawn up by the International Labour Organisation (ILO), founded in 1919 (see II§1.D).
Remarkable as it may seem, therefore, while the classic human rights had been acknowledged long
before social rights, the latter were first embodied in international regulations.

D) World War I, the League of Nations and human rights

After the First World War, tentative attempts were made to establish a human rights system under the
League of Nations. For example, a Minority Committee was established to hear complaints from
minorities, and a Mandates Commission was put in place to deal with individual petitions of persons
living in mandate territories. However, these attempts had not been very successful and came to an
abrupt end when the Second World War erupted.

E) World War II, the Holocaust and the foundations of the International Human Rights system

It took the trauma of that war, and in particular Hitler's crude racially-motivated atrocities in the name
of National Socialism, to cement international consensus in the form of the United Nations as a bulwark
against war and for the preservation of peace.
The core system of human rights promotion and protection under the United Nations has a dual basis:
the UN Charter adopted in 1945, and a network of treaties subsequently adopted by UN members. The
Charter-based system applies to all 192 UN Member States, while only those States that have ratified or
acceded to particular treaties are bound to observe that part of the treaty-based (or conventional)
system to which they have explicitly agreed.
The atrocities of World War II put an end to the traditional view that states have full liberty to decide
the treatment of their own citizens. The signing of the Charter of the United Nations (UN) on 26 June
1945 brought human rights within the sphere of international law. In particular, all UN members agreed
to take measures to protect human rights. The Charter contains a number of articles specifically
referring to human rights
F) The UDHR: origins, content and significance

The Universal Declaration of Human Rights, which was adopted by the UN General Assembly on 10
December 1948, was the result of the experience of the Second World War. With the end of that war,
and the creation of the United Nations, the international community vowed never again to allow
atrocities like those of that conflict happen again. World leaders decided to complement the UN Charter
with a road map to guarantee the rights of every individual everywhere. The document they considered,
and which would later become the Universal Declaration of Human Rights, was taken up at the first
session of the General Assembly in 1946.
The Assembly reviewed this draft Declaration on Fundamental Human Rights and Freedoms and
transmitted it to the Economic and Social Council "for reference to the Commission on Human Rights for
consideration . . . in its preparation of an international bill of rights." The Commission, at its first session
early in 1947, authorized its members to formulate what it termed "a preliminary draft International Bill
of Human Rights". Later the work was taken over by a formal drafting committee, consisting of members
of the Commission from eight States, selected with due regard for geographical distribution.
The Commission on Human Rights was made up of 18 members from various political, cultural and
religious backgrounds. Eleanor Roosevelt, widow of American President Franklin D. Roosevelt, chaired
the UDHR drafting committee. With her were René Cassin of France, who composed the first draft of the
Declaration, the Committee Rapporteur Charles Malik of Lebanon, Vice-Chairman Peng Chung Chang of
China, and John Humphrey of Canada, Director of the UN’s Human Rights Division, who prepared the
Declaration’s blueprint. But Mrs. Roosevelt was recognized as the driving force for the Declaration’s
adoption.
The Commission met for the first time in 1947. In her memoirs, Eleanor Roosevelt recalled:
“Dr. Chang was a pluralist and held forth in charming fashion on the proposition that there is more than
one kind of ultimate reality. The Declaration, he said, should reflect more than simply Western ideas and
Dr. Humphrey would have to be eclectic in his approach. His remark, though addressed to Dr. Humphrey,
was really directed at Dr. Malik, from whom it drew a prompt retort as he expounded at some length the
philosophy of Thomas Aquinas. Dr. Humphrey joined enthusiastically in the discussion, and I remember
that at one point Dr. Chang suggested that the Secretariat might well spend a few months studying the
fundamentals of Confucianism!”
The final draft by Cassin was handed to the Commission on Human Rights, which was being held in
Geneva. The draft declaration sent out to all UN member States for comments became known as the
Geneva draft.
The first draft of the Declaration was proposed in September 1948 with over 50 Member States
participating in the final drafting. By its resolution 217 A (III) of 10 December 1948, the General
Assembly, meeting in Paris, adopted the Universal Declaration of Human Rights with eight nations
abstaining from the vote but none dissenting. Hernán Santa Cruz of Chile, member of the drafting sub-
Committee, wrote:
“I perceived clearly that I was participating in a truly significant historic event in which a consensus had
been reached as to the supreme value of the human person, a value that did not originate in the decision
of a worldly power, but rather in the fact of existing—which gave rise to the inalienable right to live free
from want and oppression and to fully develop one’s personality. In the Great Hall…there was an
atmosphere of genuine solidarity and brotherhood among men and women from all latitudes, the like of
which I have not seen again in any international setting.”
The entire text of the UDHR was composed in less than two years. At a time when the world was divided
into Eastern and Western blocks, finding a common ground on what should make the essence of the
document proved to be a colossal task.
G) Cold war and decolonization

Cold War, Civil Rights: Decolonization and the Global Human Rights Movement

Decolonization From the mid-19 century to WWI : more than 450 million people were subjected to
colonial rule. Decolonization began after WWI, but was greatly accelerated by WW2, led by the
examples of India and Vietnam, 25 new nations were created between 1957 and 1962 alone, mostly in
Africa.

The Cold War was, in part, a battle between United States’ “empire of liberty” (US) and Soviets’ “empire
of justice”. In this battle, both superpowers attempted to convince new nations to join their camp; the
leaders of new nations had to choose which (if either one) to cast their lot with. The Early Cold War 1947
- W.E.B. DuBois’ Appeal to the World used Truman’s language of Free v. Slave world, calling on the
nations of the world to pressure the U.S. to end segregation 1957.

Decolonization is a complex field of international social policy. After difficult beginnings, a new state
order with new nations and new ideas, hopes, and claims for freedom and human rights emerged in the
decades after World War II. The process of decolonization helped to establish a discourse of global
responsibility. The phase of decolonization goes from 1940 to 1970, it accompanied the dissolution of
the European colonial empires and the processes of post-colonial nation-building that followed, mainly
the enduringly relevant international human rights and development discourses that these processes
spawned.

A debate about the role of human rights in the age of decolonization exists, there are an approach of the
issue from two different angles: a paradoxical situation that anti-colonial movements as well as colonial
powers instrumentalized international human rights documents such as the Genocide Convention, the
Universal Declaration of Human Rights, the Geneva Conventions, and the European Conventions on
Human Rights for achieving their political goals. In combining legal and public discourses in a significant
way both sides accused each other of gross human rights violations while at the same time presenting
themselves as respecting and even guaranteeing fundamental human rights. Especially during the
course of the wars of decolonization after 1945 this phenomena became obvious in various diplomatic
debates at the United Nations and made universal rights a diplomatic pawn in international debates.

2. Challenges
A) International/ cross-border dimension of violations
B) Responsibility of multiple actors
 Tuesday 12 September 2017

Chapter 2 - The sources of IHRL

IHRL is part of PIL [public international law] and shares a number of its features including
sources, obligations [the primary obligations, rules] and State responsibility [secondary rules].
Traditional international law was an order based on the sovereign interest of states [ the sole subjects of
international law]. In contrast, HRL is characterized by its emphasis in common interests [ le droit
international – souverainété des États , HR - les intérêts communs]. This common interests reflect
fundamental values on international order such as jus cujens [concept called to protect fundamental
values], erga omnes.

-The making of Treaties and Declarations involves frequently a large number of actors including
the international civil societies [engage plusieurs acteurs]. HR Treaties create regimes that are meant to
benefit individual and collective right holders [detenteurs de droit].

- Typicly include monitoring body: military treating body. EX: HR Committee in charge of
monitoring the Treaty. The supervisory features of HR Treaties have raised the question of whether they
are autonomous or special regimes. Undoubtfuly, HRL can form an important component of a new
international legal order [international constitutionalism - HR by definition is a component of
Constitution, principle values to be respected by the international préambule]. However, Unilateralism [
HR un prétexte pour intervenir], Selectivity [certaines situations] and Fragmentation in addition to
challenges of effective implementation [enforcement = imposer le respect] are restraining factors that
may slow down constitutional developments at the international level.

I – Treaties

Art. 38 of the ICJ Statute [1945 - main sources at the time], one of the principle sources of
International law : Treaties are bilateral or multilateral agreements between states organized by the
Vienna Convention on the Law of Treaties [VCLT] of 1969 [ all the dispositions are considered as
customs].

* Le droit international n'est pas formaliste [ it will not impose a specific name: act - Covenant -
treaty - protocol - convention ] The name of treaty gives the importance to the treaty.

* Agreement between states - signature [ responsibility of the state compatible with its
Constitution, if not the case the state engages its responsibility], ratification, bilateral treaty [
acceptance is enough]

* How to know if the Treaty is in force? - in the UN Charter Art. 102 [pour plus de transparence]
parties to the treaty, reservation, come in force, ...
A) Treaty making

- Multilateral HR Treaties are frequently the outcome [result] of long and complex deliberative process.
Nevertheless, once agreed upon, their existence and content are often taken for granted as positive law
[droit positif] EX: treaties negotiated but it will take years to enforce it.

However, there are several reasons why understanding the treaty making process is important:
[travaux préparatoires] [opinion of the states, points where there were debate, disposition was voted].
It can light on the various interpretations and it can help in interpreting the treaty. In addition, it can
reveal the historical context and political motives, and it may also explain why certain states have not
become parties and why a treaty has been a success or a failure. [high level of consent = a new norm].
The position of States in evaluating if a certain norm starts a customary law.

Multilateral treaties go through a series of stages, there is no fixed process for the making of
treaties, the idea of the initiative can emerge from different sources : individuals [Convention on the
Prevention and Punishment of the Crime of Genocide is the culmination of years of campaigning by
lawyer Raphael Lemkin], NGOs [make pression on states] : Human Rights Watch, Amnesty International,
States - creation of ICC [Criminal court]. The process of negotiation may involve the General Assembly
[ECOSOC, the human rights council = organisent les conferences] organize the conferences to adopt a
treaty [Treaty prohibiting the nuclear arming - June 2017]. Draft text often experience a series of
changes with articles added or amended as a result of deliberations [ plusieurs versions de draft until to
reach an agreement on all the terms] A major factor is the acceptability of the final draft: to what
degree should the text be a document of compromise ? What is a better way to adopt the text?
Consensus [pas de vote advantage - the text is stronger, consensus may improve acceptability, to reach
the consensus you have to come to compromises - a compromised text less binding] or majority
[obligation that are strong, the state can refuse to ratify] ?

Following adoption the treaty will be open to signature : multilateral treaties need to have
sufficient number of states parties to command legitimacy, most instruments sets the bar at 20
ratifications [ otherwise no weight on the International order, The Rome Statute of ICC required a larger
number of 60 states parties, the goal was to create an universal court].The number of states parties is an
important factor of promotion and it depends on several factors like the degree of consensus [Ex:
Convention on the right of the child - la plus concensuelle all the states in the world ratified it except US
because the death penalty to child exist in certain states due to Federalism ; a convention on a sensitive
subject, less ratified : The Convention on the protection of all migrant workers : 48 qualifications,
ratified by migrant sending states, not states receiving migrants ]

B) Reservations

Unless the treaty provides otherwise, States can make reservations as (art. 2 of Vienna Convention
paragraph 1, d) "Reservation" means a unilateral statement, however phrased or named, made by a State,
when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to
modify the legal effect of certain provisions of the treaty in their application to that State ".
 Reservations exist to limit the scope of their obligation and State practice often. The reservations to HR
Treaties constitute a compromise that seeks to address the dilemma between Sovereignty and
Collective goals. A categorical position [prohibiting States from making reservations] risks having fewer
States as parties. Reservations are a practical device that allows States to overcome potential obstacles
to becoming a party. However, this pragmatism comes at the price of Fragmentation because the fact
that not all States have the same obligations and this may undermine the integrity of a Treaty and
frustrate its objectives. Reservations raise a series of questions: What are the acceptable limits to
making reservations? What shall be the consequences of impermissible reservations? Who shall decide
of the validity of the reservation?
The general rule is that reservations must not contradict the object and purposes of the
Treaties. This rule was developed by ICJ and incorporated in the Vienna Convention of the Law of
Treaties (Art. 19). There is no general rule that says when a reservation contradicts a treaty object and
purpose. However the practice of States and Treaty bodies provide guidance.

1st - States Parties cannot derogate from jus cojens [none derogable rights], from
general principles such as equality, and if the reservation undermine the justification of the Treaty [ ex:
reservation made by Kuwait in the Convention on non-discrimination of women : reserve its right not to
implement any rule not conform with its national legislation, a child's nationality is determined only by
that of the father]. HR treaty bodies have frequently raised concerns about general statements. This
applies in particular to declarations that a Treaty is to be interpreted in conformity with national
legislation [Saudi Arabia reservation to the Convention non-discrimination against women: gives priority
to Islamic law in case of contradiction]. HR treaty bodies regularly recommend that States parties
withdraw reservations. Although States parties can object to what they consider impermissible
reservations, that permits other states to appreciate reservation. In principle, the relevant treaty
provisions apply between the States parties concerned [those who emit the reservations and those
applied to] unless the objecting State expressly declares its intention that they do not do so. The EU
court of HR and HR Committee have simply excluded invalid reservation with the effect that the State
Party is bound by the Treaty provision in question. As a result, the State that makes the reservation
faces the risk of being fully bound by the provision.

* ILC - [art. 13 Charte des NU] guide on reservation provides for a compromised solution: an
impermissible reservation is null and void [reserve impermise est nulle et non avenue]. A State making
an invalid reservation is bound by the Treaty unless it has expressed a contrary intention within 12
months [express declaration (written form) not to be bound it will and should be respected]. It is a
solution to respect the State sovereignty.

2. Customary International law

Art. 38 ICJ Statute - all the sources of International law. Customary laws - The subject matter of
several areas of IHRL may not yet be fully governed by a Treaty. Alternatively, a Treaty may govern a
particular area of the law but a State may not be a party. In addition, alleged violation may date back a
long time, for example torture during colonial times.

Problem of Customary law is rather undetermined. Beyond some well established categories
such as prohibition of torture, there is uncertainty about which rights have customary status, and this
relative flexibility can become an important tool for advocates to make claims that a rule has attained
such status in international rules - date de naissance de la norm. For example, the world standing
campaign to prohibit death penalty and this campaign has contributed to its regional abolition in Europe
[en temps de paix et de guerre][ practice - opinio juris]

Wednesday 13 September 2017

The process of establishing custom

Universal declaration and customary law is still pragmatic in the role of custom in the field of
IHRL. As a UN general assembly declaration, it constitutes neither a treaty nor a formal source of IL
[international law]. However, it is assumed that the UDHR has the status of customary IL. Such
declaration meets consideration:

1- Does the UDHR constitute State practice? Yes, doctrine considers that voting of GA [ General
Assembly] is a practice.

2- Was this practice accompanied by opinio juris? UDHR primarily seen as an agreement only on
principles, after we will agree on bill of rights. At the moment of adoption it is not sure that the states
have opinio juris, after yes but not at the moment of adoption, doubt about the opinio juris.

3- Has the UDHR been recognized as binding in state practice since its adoption? Evaluation: the
weight given to the declaration and its individual provisions. We can take into consideration several
elements: all the rights in the declaration are recognized, also references of the UDHR and its articles in
the declaration. A lot of declarations where States agree on the binding references to the UDHR in the
practice of regional and national bodies, more again the incorporation of the UDHR in the national
Constitutions and it is easy to see that a lot of countries recognized the declaration in the preamble of
the Constitutions and its application by courts [ references dans les constitutions et applications dans les
cours - judges motivate their decisions] We have to analyze article by article to know if it is a custom ex :
principe of non-discrimination - prohibition of slavery is recognized as custom, all the rights on the
contrary we can have a doubt the right to rest - repos et loisir - it is not sure that it is a custom, not
possible to answer with a global answer, national/ international courts, jurisprudence.

3. Judicial Decisions

Art. 38 ICJ Statute - other sources - judicial decisions as subsidiary means of the determination -
the only subject able to create law are the States and not judges, jurisprudence can provide valuable
evidence of the status and content of norms through the interpretation in a given case, judicial bodies
are not considered to have a law making function. In reality, such bodies play an important role in the
creating IL. In addition, domestic courts are frequently seized ... these developments have led to
intensification of the adjudication of IHRL largely initiated by victims but also HR lawyers, NGOs and the
States and ICJ.

Problem: a lot of courts interpreting the provisions: divergent interpretation about the same
right, regional courts, risk of fragmentation and risk of divergent interpretation depending on which
body is seized with particular aggression, a problem because there is no formal hierarchy between
courts, not obliged to follow the opinion of another court. In reality, judges take into consideration
opinion of other judges, in practice, it is not unusual to see in a decision references to other courts
[national courts] interactions between international and national level.

4. The soft law

What is the status of declarations, resolutions, conference statements and other such documents?

These instruments which are not binding as such are often referred to as soft law. Soft law is not
a formal source of law and the term is used to describe non-binding instruments that set standards soft
law instruments can be part of the law-making process. [a code of conduct adopted during years and
years, it can be turned into a custom, States and international organizations frequently adopt
resolutions with a view of developing norms trying. These instrument constitute IL in embryonary state
ex : UDHR - was soft law, today considered as custom. Very used in HR, it’s not unusual that states don’t
agree on certain rights, they use soft law. In the field of HR, there is a range of documents used for a
standard setting; the goal is to develop best practices and to interpret binding obligations of States. For
example, we have practically no conditions about detention of prisoner : UN level - UN standards on
detention, standard minimum rules for the treatment of prisoner, it is better to have this then nothing,
it’s a step to have a treaty one day. Such documents demonstrate the role that various actors can play
in developing and advancing universal standards. [it is useful in areas where there is no treaties] Soft law
instruments are also increasingly used by IO and States when addressing non-States parties [multilateral
corporation]. Respected? Good respect on a political level - keeping the image, often respected even
more then binding documents.

5. The notion of Jus Cogens [JC] and Erga omnes [EO]

The concepts of Jus Cogens and Erga Omnes are the heart of claims that IL is being transformed
from state consent [volontarisme] to a constitutional order [ objectivisme ]. JC was initially conceived
as a ppe governing the invalidity of treaties [art. 53 - VCLT] limits what States can agree in the matter of
treaty law : ex - agreement between two States to torture a person - obviously this treaty will be invalid,
prohibition of torture is a JC value; example not as common, had this agreement in case of suspect,
beyond this scope, there are fundamental values that cannot be derogated. There are doubts about the
precise content and precise consequences. Sources of JC - the scope is necessarily universal, custom the
only source that can be universal, a judge should pronounce on the rating a right as a JC.

Additional value - 1st in a symbolic level, you are creating a hierarchy of norms, constitutional
order - principle of HR, more importantly are the consequences are the same ICJ recognized that JC
norms have some specific consequences of violation of JC norms in its advisory opinion in the war cases
- ICJ recognized the violation of the right of self determination of Palestinian people, it has been
recognized as an international crime, international crimes may not be subject to amnesties - null and
void if the amnesty was voted, States have a duty not to recognize situations resulting from violations of
norms of JC [State use force to incorporate a territory ex: Crimea - Ukraine and Russia and Kuwait and
Iraq - duty not to recognize such a measure] - States have a duty to take measures to bring such
situation to an end. Art on responsibility of States for internationally wrongful acts (art. 48 ILC)

Erga Omnes obligations is something closely related to JC - EO is conceptually different from JC,
all HR are EO, impose on state to every human being, it denotes obligations that a state has towards
international community. All JC norms apply EO. In practical terms, States can invoke the responsibility
of another State that it is in breach of its EO obligations to demand that it ceases of wrongful act [not
considered as an interference in internal affairs], demand guarantee of non-repetition and provide
reparation to the injure country. In reality, it’s rare that a State says: you are not treating well your
people, it depends on the existence of jurisdiction - make pressure on another State to cease the
violation.
 Chapter 3 - Rights and Derogation, with the particular case of counter-terrorism

1. Rights

[ A right require a right-holder. Traditionally, States were considered the only subjects of
international law. This included the exercise of diplomatic protection.

It was only after 1945 that the individual became recognized as a subject of international law:
they can hold rights and bring claims and are liable for certain breach of international law (international
crimes).

Rights can be divided into several categories with respect to their : (1) origin and source; (2)
subject or right holder; (3) subject matter (CP, ESC); (4) type (negative, positive); (5) nature ( absolute,
qualified).

2. Derogations

States may derogate from certain rights, but such derogation is subject to limitations and
safeguards: ICCPR (art. 4), ACHR (art. 27) and the ECHR (art. 15) . Several rights are non-derogable and
must, therefore, be respected fully in times of emergency.

European Convention for the Protection of Human Rights and Fundamental Freedoms (1950): ARTICLE
15. Derogation in time of emergency
1. In time of war or other public emergency threatening the life of the nation any High Contracting Party
may take measures derogating from its obligations under this Convention to the extent strictly required
by the exigencies of the situation, provided that such measures are not inconsistent with its other
obligations under international law.

2. No derogation from Article 2 [right to life], except in respect of deaths resulting from lawful acts of
war, or from Articles 3 [prohibition of torture], 4 (paragraph 1) [Prohibition of slavery and forced labour]
and 7 [no punishment without law] shall be made under this provision.

3. Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General
of the Council of Europe fully informed of the measures which it has taken and the reasons therefor. It
shall also inform the Secretary General of the Council of Europe when such measures have ceased to
operate and the provisions of the Convention are again being fully executed.

International Covenant on Civil and Political Rights (1966): ARTICLE 4

1. In time 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.
2. No derogation from articles 6 [inherent right to life], 7 [torture or to cruel, inhuman or degrading
treatment or punishment], 8 [slavery], 11 [be imprisoned on the ground of inability to fulfil a contractual
obligation], 15 [nulla poena sine lege], 16 [right to recognition everywhere as a person before the law]
and 18 [freedom of thought, conscience and religion] may be made under this provision.

3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately
inform the other States 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 communication shall be made, through the same intermediary, on the
date on which it terminates such derogation.

American Convention On Human Rights (1969): ARTICLE 27. Suspension of guarantees

1. In time of war, public danger, or other emergency that threatens the independence or security of a
State Party, it may take measures derogating from its obligations under the present Convention to the
extent and for the period of time strictly required by the exigencies of the situation, provided that such
measures are not inconsistent with its other obligations under international law and do not involve
discrimination on the ground of race, color, sex, language, religion, or social origin.

. The foregoing provision does not authorize any suspension of the following articles: article 3 (right to
juridical personality), article 4 (right to life), article 5 (right to humane treatment), article 6 (freedom
from slavery), article 9 (freedom from ex post facto laws), article 12 (freedom of conscience and
religion), article 17 (rights of the family), article 18 (right to a name), article 19 (rights of the child),
article 20 (right to nationality), and article 23 (right to participate in Government), or of the judicial
guarantees essential for the protection of such rights.

A right requires a right-holder. Traditionally, States were considered the only subjects of IL. They
have rights because they have the status of subject of IL and being able to bring claims about each
other. This included the exercise of diplomatic protection, when States could raise a claim on behalf of
their nationals concerning the violation of minimum standards by a third State. [claim is in its name,
traditional vision that only States are subjects of IL].

However, it was seen as the right of a State to insure in the persons of its subjects respect for
the rule of IL. It was only after 1945 that the individual became recognized as a subject of IL : they can
hold rights and bring claims [when the channel is available: courts and body] and are liable [responsible]
for certain breaches [violations] of IL (international crimes). [big and important change].

Individuals should be a subject of Treaties and customs, recognized individuals as rights holders
[détenteurs de droits] [ passage État unique sujet de droit et individu comme sujet de droit
International, réclamer leur défense]. Significantly, the recognition of rights is independent of the
existence of available remedies. [The facts that the individual not be able to claim the right in front of a
body, no influence on the status of subject of IL, States are full subject : rights and remedies].

Rights can be divided into several categories with respect to their: (1) origin and source; (2)
subject or right-holder; (3) subject matter (CP, ESC); (4) type (negative, positive); and (5) nature
(absolute, qualified) [some rights can be limited]. Most of the rights recognized in IHR treaties are
conceptualized as individual rights [This is based on the notion that human beings have rights by virtue
of humanity while some of the most imp HR have a collective dimension [vs minority right : right to
speak their language] these rights were understood to each individual . Several objections have been
raised against the recognition of collective rights. These rights include some questions: How to identify
groups that should qualify as a right-holder? What is the the nature of these rights granted such as the
right of development? A potential conflict between individual rights and group rights exist. Principally,
western States were suspicious of collective rights because they were seen as vehicle for political
demands by socialist or third world States: 1st CP, 2nd ESC, 3rd - collective rights. CP, ESC and collective
rights [right to peace] have been referred to as three generations of rights reflecting a history according
to which these rights have been recognized in this order. Today, it is not so au jour to refer to it this way:
a move to more holistic general approach, it is reflected is a formula that HR are indivisible,
interdependent and interrelated. However, rights have now been recognized in treaties.

Rights can be negative, i.e. freedom from something, such as the right not to be tortured, not to
be enslaved, or positive, i.e. the right to something, such as the right to education.

By their nature rights can either be absolute or subject to limitations or qualifications.

Absolute rights allow for no exceptions and cannot be suspended. Examples include the right to
protection from slavery or torture. States are not prohibited to interfere in such cases.
[la liberté des uns s'arrête quand la liberté des autres commence] Qualified rights may be restricted on
specific grounds relating to the right of others, national security, public order or public morals. Examples
are the right to privacy, freedom of expression, the right to assembly and association. When the State
wants to restrict a right must be based on law and only on law, [loi authorise l'État à limiter les droits]
must be proportionate, the States are not allowed to deprive the rights of its essence [freedom of
expression; restrict the publication of an article in a journal but not the existence of journal].The State
must balance the rights of individuals and the rights of others.

2. Derogation in times of emergency

EU urges Turkey to respect rule of law after declaring state of emergency (21 July 2016)

Extraordinary situations, such as natural disasters, insurrections, acts of terrorism or wars

confront States with a challenge, if not a crisis. Such situations raise the question as to what measures
States may take in response. States have to preserve the public order, should it be given an absolute
power? This option is problematic as it may result in authoritarianism [abuse of power - States can be
abusing power turning what was a temporary response into a durable norms]. IHRL has chosen a
compromise solution providing States with special measures. States may derogate [suspension - better
term] from certain rights, but such derogation is subject to limitations and safeguards followed by
regional treaties except African continent: ICCPR (art. 4), the ACHR (art. 27) and the ECHR (art. 15). Any
derogation presupposes the existence of a ‘public emergency’ [State appreciate this situation], i.e. a
situation that “threatens the life of the nation” (art. 4 ICCPR). The jurisprudence has been characterized
by a wide merge of suspension in some cases. A state of emergency does not confer absolute powers to
the States and several rights are non-derogable and must, therefore, be respected fully in times of
emergency: right to life [heart of the right one cannot be arbitrary deprived of its life - a law exist :
euthanasia, death penalty, abortion can be accepted if a law exists] (with the exception of lawful acts of
war), the prohibition of torture and other ill-treatment, the prohibition of slavery and non-retroactivity
of the law, essential judicial guarantees, right to an effective remedy, principle of non-discrimination…

Even when a right is derogable, any measures taken are subject to a proportionality test. They
must be strictly necessary to counter the threat (not blanket in scope), have a link to the threat, be
limited in time and non-discriminatory. Adherence to these requirements is subject to judicial scrutiny.

States of emergency are also subject to important formal requirements. States need to proclaim
a state of emergency, specify the rights derogated from, and notify the HR treaty bodies concerned. In
the absence of such notification, treaty bodies may treat the States as if it has not derogated from the
rights concerned [form de sanction]. Furthermore, a state of emergency must be lifted as soon as there
is no longer a threat to the life of the nation [a temporary regime of exception].

3. Counter-terrorism

Question: Does the real and imminent threat posed by terrorism justify exceptional measures
the effect of which is to deny fundamental rights to suspected terrorists? [ autoriser la torture contre le
terroriste]

Although the terrorist phenomenon is a real challenge to our established perceptions of justice
and rights, one has to think of the adverse consequences to organized society from an exceptional
deviation of the treatment that should be afforded to terrorist suspects.

The legal nature of terrorism

A myth supports the international legal framework on terrorism: as an international crime, it

lacks a globally agreed definition.

It is true that international efforts to suppress terrorism from the early 1960s to the present day
have focused on the elaboration of discrete anti-terrorist treaties, each dealing with a particular
manifestation of this phenomenon.

The IC realized the existence of entrenched legal disagreements which precluded the conclusion
of a comprehensive treaty definition of terrorism. Nonetheless, there is no dispute as to the constituent
elements of this offence:

1) The perpetration of serious criminal acts;

2) The intention to inflict terror on civilian populations [target], with the further aim of compelling
Governments to do or abstain from doing any act.
 The essential elements of the offence were pertinently described in the UNGA 1994 Declaration
on Measures to Eliminate International Terrorism, as follows:

1. The States Members of the United Nations solemnly reaffirm their unequivocal
condemnation of all acts, methods and practices of terrorism, as criminal and unjustifiable, wherever
and by whomever committed, including those which jeopardize the friendly relations among States and
peoples and threaten the territorial integrity and security of States;

2. Acts, methods and practices of terrorism constitute a grave violation of the purposes and
principles of the United Nations, which may pose a threat to international peace and security, jeopardize
friendly relations among States, hinder international cooperation and aim at the destruction of human
rights, fundamental freedoms and the democratic bases of society;

3. Criminal acts intended or calculated to provoke a state of terror in the general public, a group
of persons or particular persons for political purposes are in any circumstance unjustifiable, whatever
the considerations of a political, philosophical, ideological, racial, ethnic, religious or any other nature
that may be invoked to justify them.

=> Terrorism is an aggravated form of the principal offence (i.e. murder and grave bodily harm)
coupled with a further specific intent (i.e. to compel governments and to terrorize civilian populations).
 Thursday 14 September 2017

Chapter 4 - Regional HR treaty systems: Europe [the protection of HR in Europe]

CHAPTER 4. THE EUROPEAN HUMAN RIGHTS SYSTEM

1. The Council of Europe

A) ECHR
The European Convention on Human Rights (ECHR) and the European Court of Human
Rights (ECtHR) are the cornerstones of the larger European HR architecture that has been
developed largely under the aegis of the Council of Europe (CoE) established in 1949.

B) Key institutions

The Council of Europe is the oldest intergovernmental organization in Europe and brings together
the largest number of European countries: 47 Member States representing some 800 million
Europeans. While it is totally independent from the European Union, the two entities do collaborate
in certain domains. The 28 Member States of the European Union are all members of the Council of
Europe. The Council of Europe principally aims to defend human rights and parliamentary
democracy. The organization is composed of two bodies : the Committee of Ministers and the
Parliamentary Assembly, as well as three institutions: the European Court of Human Rights, the
Commissioner for Human Rights and the Congress of Local and Regional Authorities. The Secretary
General of the Council of Europe has the overall responsibility for the activities of the organization.

C) The ECtHR: structure and functions

Application by individuals, inter-State cases, advisory opinions

At the beginning, initial concerns that regional HR systems may undermine the universality of
rights have largely given way to a more positive appreciation of their role. Regional HR Systems provide
a crucial level of protection. They are closely connected with regional political developments and
integration which potentially gives them more protection than the UN system. An examination of
regional systems suggests the following typical process. [in every continent Africa America Europe]
States agree on the need for closer regional cooperation if not integration. HR are accepted as one
element of the regional political order. [States respect HR = States are at peace.] A foundational HR
instrument is adopted. Furthermore, a HR body with a mandate to promote/ protect HR and monitor
states - parties compliance. You can also have the establishment of judicial body [advantage: judicial
bodies have decisions that are binding for the states]. EU, Inter-American [IA] and African systems share
a number of these idealized features. In practice, normative and institutional developments testify to
the continuing relevance of regional HR sys as is a evident in the growing recourse to them. One of the
major challenges for regional bodies is that they are at risk of becoming a victim of their own success. It
is in particular the capacity problems encountered that raise serious questions about their effectiveness.
 1. The European HR system

A. European Convention on HR [ ECHR] What is the European Convention on Human Rights?

How did the Convention come about?
The Council of Europe was founded after the Second World War to protect human rights and the rule of
law, and to promote democracy. The Member States’ first task was to draw up a treaty to secure basic
rights for anyone within their borders, including their own citizens and people of other nationalities.
Originally proposed by Winston Churchill and drafted mainly by British lawyers, the Convention was
based on the United Nations’ Universal Declaration of Human Rights. It was signed in Rome in 1950 and
came into force in 1953.
What rights and freedoms does the Convention protect?

The Convention guarantees specific rights and freedoms and prohibits unfair and harmful practices.

The Convention secures:

 the right to life (Article 2)

 freedom from torture (Article 3)
 freedom from slavery (Article 4)
 the right to liberty (Article 5)
 the right to a fair trial (Article 6)
 the right not to be punished for something that wasn’t against the law at the time (Article 7)
 the right to respect for family and private life (Article 8)
 freedom of thought, conscience and religion (Article 9)
 freedom of expression (Article 10)
 freedom of assembly (Article 11)
 the right to marry and start a family (Article 12)
 the right not to be discriminated against in respect of these rights (Article 14)
 the right to protection of property (Protocol 1, Article 1)
 the right to education (Protocol 1, Article 2)
 the right to participate in free elections (Protocol 1, Article 3)
 the abolition of the death penalty (Protocol 13)

European Convention on HR and the EU Court on HR are the cornerstones of the larger HR
architectures that have been developed under the auspices of the Council of Europe [CoE] .Forming part
of regional responses to WWII the CoE was established in 1949 [France, Italy, UK, Scandinavian
countries] It constitutes an important European political body with principally 2 bodies: Committee
[executive] on one hand and the Parliamentary Assembly [legislative body] [Idea is to have more unity].
Crucially, CoE membership is made conditional upon acceptance of the rule of law and HR. [don’t
respect HR = U cannot candidate to CoE]. It was part of political project of Western Europe to create a
stable political order. Today, the CoE is the primary body in the field of HR, both in terms of standard-
setting [creation of law] and monitoring. It is bigger than the EU; it has developed into an impressive sys
with 47 member states covering approximately 820 million people. The biggest sys that exist to protect
and monitor HR, it includes not only western states but also eastern states: Turkey, Ukraine, Russia [part
of Asia]. A number of HR treaties were developed with the CoE and adopted by the Committee of
Europe and adopted by CoM [ministers] ECHR which was adopted in 1950 and entered in force 1953,
largely focused on CP rights and was influenced by the UDHR referred to in its preamble. All Council of
Europe member states are party to the Convention and new members are expected to ratify the Conv.
[it is an obligation] This Convention is not perfect: the almost exclusive focus on CP rights reflects its
political outlook. Partly responding to this lacuna, the CoE adopted the European Social Charter [1961],
with the European Committee of Social Rights (ESCR) becoming its main supervisory body. [Insure the
enjoyment of social rights without discrimination: right to work, employment, education, housing, social
security, welfare ...] The idea [goal] is to protect vulnerable people such as elderly people, children,
people with the disability; emigrants ... However the Charter adopted a selective approach which allows
states to opt for a certain number of articles that they agree to be bound by. [a state can say I will ratify
the charter but I don’t want to protect migrant people: refuse to be bound by article 10 - strange for a
HR Treaty] Problems of the Treaty: The adoption of the Charter came on the expense of a unified
normative framework [lack of unity]. The other problem of the Charter is its limited visibility; this is the
reason why ESC rights play a secondary role in the European sys. Other treaties followed: particularly
the European Convention for the prevention of torture, the Charter for regional and minorities’
languages, Convention for the protection of national minorities...
The ECHR recognizes key CP rights,: rights of absolute nature [forced labor, slavery, prohibition
of torture, arbitrary deprived from life, not possible to derogate from these rights] and rights that may
be limited [ ex: right for private life, freedom of expression, freedom of association...] The Convention
obliges all States parties to secure these rights within their jurisdiction ( art.1)[ it is not necessary to have
the nationality, have to be on the territory] . This entails both negative [prohibition of torture] and
positive [organize courts to provide a fair trial] obligations. Significantly, the ECHR requires States to
provide an effective remedy. However, there were several notable omissions in the scope of rights
initially recognized in the ECHR, which necessitates the adoption of protocols [at the moment: 16
protocols expending the rights that can be protected: 1st one strange mixed things: rights to free
election, education, property] of two main groups : those amending the framework of the Convention
sys and those expending the rights that can be protected. Significantly, the CoE took steps to abolish the
death penalty [protocol 6 abolished the death penalty save in time of war (allowed in time of war, war
crimes), protocol 13: complete abolition of death penalty in time of war and in time of peace] , which
was implicitly recognized in art 2 (1) ECHR: Protocol n6 (1983) + Protocol n 13 (2002) [the only]

While the adoption of these protocols has largely addressed the normative gap evident, it has
contributed to the fragmentation of the sys [because as treaties, protocols are subject to separate
ratification which has been unequal in practice and has resulted on different levels of protection]

B. Key institutions

The original system consisted of :

1 - European Commission of HR created in 1954 which was competent to receive individual

complaints and to bring them before the court when the states had recognized its competence.

2 - The ECtHR became operational in 1959 which could hear inter-state cases and individual
complaints brought before it by the Commission provided the state concerned has accepted its
jurisdiction
 3 - The CoM responsible for the enforcement of judgments. In this model the Commission
effectively acted as a quasi-judicial filter

However, a growing caseload that has resulted from a greater awareness prompted a
fundamental reform of the sys in the 1990. Protocol 11 (1998) was designed to deal with the
accumulation of pending cases [ sometimes it took 6 years to issue a judgment which isn’t an
acceptable/ reasonable length of time] by abolishing the Commission, establishing the Court and its
judges as a fulltime institution, simplifying the procedure, and reducing the length of proceedings.

C. The ECtHR : Structure and functions

European Court of Human Rights

The European Court of Human Rights is the court of law of the Council of Europe. It is based in
Strasbourg, France.

Set up in 1959, the Court ensures that Member States of the Council of Europe respect the rights and
guarantees set out in the European Convention on Human Rights.

The Court is made up of 47 elected judges, one from each Member State. It examines complaints
(known as 'applications') alleging violations of human rights. These applications can be made by
individuals, or sometimes by Member States.

When the Court finds that a Member State has violated one or more of the Convention’s rights and
guarantees, it explains why in a written judgment. Judgments are binding; the countries concerned must
comply with them.

ECtHR has 47 judges (one member/ State), which are elected by majority vote in the
Parliamentary Assembly of the Council of Europe. The judges sit on their personal capacity [not the
country, themselves] the Convention requires that the judges are of high moral character, and they have
high qualifications suitable for high judicial office. Due to the increasing workload of the Court, the
contracting States agreed that further reforms were necessary and Protocol 14 (2004) entered into force
in 2010: [Russia refused to ratify, blocked the ratification, negotiation for a Russian judge to rule over its
cases]

-judges would be elected for a non-renewable term of 9 years.

-the Court sits in single-judge formations [single judge accept or reject the case - filter] ,
committees of 3 judges [application admissible and the merits [fond] of the case] , and a Chamber of 7
judges deciding in admissibility and merits, as well as a Grand Chamber of 17 judges

Application by individuals - against contracting States, can be made by any person, NGO or
group of individuals.[ official languages: French and English but application may be written in States
parties languages] Once registered with the Court, the case is assigned to a judge repporteur, who can
make a final decision that the case is inadmissible (non-exhaustion of domestic remedies [ all the ways
existing on a national level : court, administrative body [minister], jurisprudence is stable - if u go to the
national judge who will rule in a particular way = no need to exhaust all the remedies , lapse of the 6
months from the last internal decision complained of, anonymity, substantial identity with a matter
already submitted to the Court). If the rapporteur judge decides that the case can proceed, the case is
referred to a Chamber of the Court which communicates the case to the Government of the State
[principe de contradictoire - present States observations] against which the application is made. The
Chamber of the Court then judges the case on its admissibility and its merits.

Inter-state Cases - Any contracting state to the ECHR can sue another contracting State in the
Court for alleged breaches of the Convention, although in practice this is very rare [ 5 cases since the
beginning - Russia and Turkey].

Advisory opinion - The Court can issue advisory opinions. The Committee of Ministers may, by
majority vote, ask the Court to deliver an advisory opinion on the interpretation of the ECHR. [Protocol
16 decides that the highest national courts can also ask the Court advisory opinions - when enter in
force its will be revolutionary, offer the possibility for the Constitutional courts to ask for opinion].

Development of the ECHR 'S jurisprudence

In the 1st decade it judges only five cases and now it is over thousand cases annually. The Court
interprets the Convention authoritatively [autoritaire] but always respecting the principle of subsidiary.
It is also a living instrument whose provisions must be interpreted in light of present day conditions:

Ex. 1 - Discrimination against kids born outside marriage,

Ex. 2 - Criminalization of homosexuality The ECHR has made a major influence and influential
contribution to the development of IHRL.

Impact of the jurisprudence - we can say that the Convention and Court impact on the
development of IL. The sys is at the heart of the regional HR culture in Europe and has also become
increasingly influential of the EU.

2 . The European Union [EU]

Organization of 28 members. At the beginning, this org aimed at the EU integration, an economic
organization. But over the time the EU has also a special role in the promotion and protection of HR.
CJEU - developed a notable jurisprudence on HR through its interpretation of Community law.

At the beginning, the jurisdiction has to be accepted; now the jurisdiction of CJEU is
compulsory. Today two dispositions are protecting HR art. 6 (3) of the Treaty on EU as revised by the
Lisbon Treaty (2007)

- Charter of Fundamental Rights of the EU ( 2000) which became binding as an internal part of
the 2007 Lisbon Treaty, constitutes the EU'S major HR instrument (6 chapters) : dignity, freedoms,
equality solidarity, citizens' rights and justice.[ adhesion de la CJEU - Peur des deux interprétations
différentes des droits de l'Homme] [respect of decisions against sovereign States is a big challenge]

What is the Charter of Fundamental Rights of the European Union?

The Charter

The Charter of Fundamental Rights of the European Union (the Charter) brings together the
fundamental rights of everyone living in the European Union (EU). It was introduced to bring consistency
and clarity to the rights established at different times and in different ways in individual EU Member
States.

The Charter sets out the full range of civil, political, economic and social rights based on:

 the fundamental rights and freedoms recognized by the European Convention on Human Rights
 the constitutional traditions of the EU Member States, for example, longstanding protections of
rights which exist in the common law and constitutional law of the UK and other EU Member
States
 the Council of Europe's Social Charter
 the Community Charter of Fundamental Social Rights of Workers, and
 other international conventions to which the EU or its Member States are parties.

The Charter became legally binding on EU Member States when the Treaty of Lisbon entered into force
in December 2009.

How is the Charter different from the European Convention on Human Rights?

The Charter is sometimes confused with the European Convention on Human Rights. Although
containing overlapping human rights provisions, the two operate within separate legal frameworks:

 The Charter of Fundamental Rights of the European Union was drafted by the EU and is
interpreted by the Court of Justice of the European Union (CJEU).

 The European Convention on Human Rights, on the other hand, was drafted by the Council of
Europe in Strasbourg and is interpreted by the European Court of Human Rights.

The Charter can be seen as the overarching framework for human rights in the EU, of which the
European Convention on Human Rights forms only one part, albeit an important one.
Unlike the European Convention, which has been incorporated into UK law by the Human Rights Act, the
Charter of Fundamental Rights only applies to matters concerning EU Law but it can be raised in courts
in the United Kingdom on such matters.
What does the European Union Agency for Fundamental Rights do?

The European Union Agency for Fundamental Rights (FRA) provides independent advice to EU
institutions and Member States on the rights set out in the Charter. FRA also engages in legal and social
science research to identify areas in the EU where further work needs to be done to meet international
standards.

Friday 15 September 2017

Chapter 5 - Regional HR systems: America and Africa

Organization of American states (OAS)

1. Inter-American HR System

A. Overview

The origins of the IA sys date back to regional efforts in the 19th century to strengthen
cooperation based on mutual respect and non-intervention, which resulted in the establishment of the
Pan - American Union in 1889 - 1990.

Following WWII, in a process aimed at establishing a peaceful, democratic and liberal regional
order, the OAS was created in 1948 (21 members - today 35 member states) by virtue of the OAS
Charter. One of its first steps was the adoption of the American Declaration on the Rights and duties of
man, April 1948. There is Strong emphasis on CP rights. It also recognized a number of ESC rights and a
list of duties.

The OAS Charter and the American Declaration constituted the initial normative framework for
HR protection, in the 1st decade it was not complemented by any mechanism and it took until 1959 to
set up the IA Commission on HR (IACmHR). The main problem is that a difficulty exists in reaching
agreement and developing effective measures. It was in 1965 that the Commission was given the power
to examine the individual complaints based on the violation of the OAS Charter and the American
Declaration.

In a parallel process the ACHR was adopted in 1969 after a 10-year drafting period. The
Convention focuses mainly on CP rights and recognizes the right to juridical personality, the right to a
name and the right to a nationality. These rights reflected regional concerns over deprivation of these
rights. The Convention also stipulates rights of the child, democratic rights and progressing development
of ESC rights

The resulting gap was in part rectified through the adoption of 2 additional protocols: one on
ESC rights in 1988 and another to Abolish the Death Penalty in 1990 + further treaties [IAC to prevent
and punish torture; forced disappearance of persons; prevention and punishment of violence against
women] as part of responses to certain types of serious violations experienced in the region.

The adoption of the ACHR and the establishment of the IACtHR in 1979 resulted in a 2-track
system [sys double] of the HR protection.

1. The majority of States in the region (23), have become parties to ACHR (20 of which have
accepted the jurisdiction of the IACtHR). Individual petitions are 1st brought before the IACmHR [1st
goal is to try and reach a friendly settlement with the State] is empowered to consider cases brought by
any person, group of persons or any NGOs recognized by the member states, which may submit a case
to the IACtHR where it finds a violation and a friendly settlement cannot be reached.

2. Cases against other States (that have either not become a party to the ACHR or which do not
recognize the jurisdiction of the IACtHR) can only be considered by the IACmHR when the state
concerned is not a party to the Convention, the Commission applies OAS Charter and US Declaration.
[Latin-American system]

B. IACmHR

It is an instrument used for every state, is composed of 7 independent members elected

by the OAS GA and based in Washington DC, has not broad promotional and protective mandate:

- Awareness-raising, including by means of thematic reports, [publication of the reports, some

high influence]

- Observation on the HR situation in member States, [including country visits, on- site visits]
Commission publishes its reports, interesting to see violation and country situations

- Making recommendations to OAS member States, [can issue resolutions an focus some
violations: migrants]

- Considering petitions by individuals and NGOs,

- Submitting cases to the IACtHR. [ Court receives around 12 - 19 cases per year, nothing in
comparison with thousand case that arrives to the EUCJ - different in the jurisprudence]

The IACmHR has also created a system of rapporteurships, which monitor and promote
respect for specific thematic rights.

The IACmHR has been recognized for its role in responding to serious HR violations
military dictatorship [and not withstanding despite the adoption of ACHR - Argentina] steps taken the
Commission in response have been viewed as an important factor in reducing violations and
undermining the legitimacy of their regimes in the 1970s and 1980s : [on-site visits; responding to
conflict, repression and impunity; assistance in transnational process; promotion and protection of
rights in respect of groups [ like rights of women and indigenous people [peuple autochtone]The
Commission played a critical part to fight impunity and developed a strong focus on assistance in
transnational process. Over the years the Commission has contributed to the development of USHRL [
Commission agit dans les pays d'Amérique latine à cause des dictatures] Considering the extensiveness
of its mandate it comes as no surprise that the Commission suffers from limited resources and a lack of
capacity that undermines the effectiveness of its words. [récemment commission a lancé un SOS aux
États : budget réduits, difficultés à fonctionner]

Problems: limited resources and a lack of capacity.

 C. IACtHR

Advisory and contentious jurisdiction. The exercise of its contentious jurisdiction is

circumscribed by 2 important factors: (1) the State(s) concerned has/have to recognize the IACtHR’s
competence to hear contentious cases; (2) only the IACmHR or States parties can submit cases =>
individuals cannot bring cases directly before the IACtHR.

It was established in 1979. It is composed of 7 judges elected by States parties to the ACHR at
the OAS GA and is based in Costa Rica. The IACtHR has contentious jurisdiction over cases in relation to
alleged violations of the ACHR and any other protocols to which a State is a party. It can also issue
advisory opinions regarding the interpretation of the ACHR or other OAS treaties.

The exercise of its contentious jurisdiction is circumscribed by 2 important factors:

1 - The States concerned has/have to recognize the IACtHR's competence to hear contentious
cases;

2 - Only the IACmHR or States parties can submit cases => individuals cannot bring cases directly
before the IACtHR.

Until now, the IACtHR contentious cases had reached 336, many of which have been
initiated by national and regional NGOs. The inter-State procedure, in contrast, has effectively remained
dormant, without a single judgment on the merits.

In the 1980s and 1990s the IACtHR was seized with a limited number of cases of serious
violations.[massacres, forced disappearance, torture]

In the 2000s the IACtHR adjudication a series of cases characterized by large-scale and
systematic violations. Court called to rule on inadequate responses to violations. Court focused on
collective rights : interesting jurisprudence in respect of rights of indigenous people; IACtHR
jurisprudence on children's rights has also been notable for its focus on strengthening the children's
rights; jurisprudence on migrant rights including the right to nationality, non-discrimination and
expulsion, councilor assistance, in its recent jurisprudence the Court focus on structural violence by
police on marginal communities and also forced disappearance [continuous violation]. [torture -
punctual violation]

Overall, the IACtHR's recent jurisprudence has been viewed as signaling a change in
focus to structural violence.

Faced with patterns of systematic violations, the IACtHR has been aware of their
political context and dimension.
 D. IMPACT

The IACmHR and IACtHR have played an important role responding to systematic and
widespread violations in the region. At the domestic level, States have taken a number of legislative and
institutional measures to bring their sys into conformity with the Convention

However, several problems remain:

- At the regional level, the non-ratification of the ACHR by the USA and Canada + the lack of
recognition of the IACtHR's jurisdiction by several Central American States, has given the sys a Latin
American orientation.

- At the national level, marginalization and impunity remain deeply deep-rooted.

- The IA system also faces institutional challenges: inadequate resources + provide victims with
direct access to the IACtHR.

--> Main problem is dictatorship

USA and Canada are members of the OAS which makes US Convention applicable to them since
they didn’t ratify the ACHR, the main reasons why these two countries didn’t ratify this Convention lies
in the article 4 [ the right to life] : USA is reticent in ratifying the Convention because of the Federalism
which allows certain States to pronounce the death penalty which is incompatible with the Right to life.
Canada has the most developed system of respect of women’s rights, this system gives women the right
to abortion which seems incompatible with the Right to life.

Inter-American Human Rights System

The Inter-American System for the protection of human rights is one of the world’s three regional
human rights systems, and is responsible for monitoring and ensuring implementation of human rights
guarantees in the 35 independent countries of the Americas that are members of the Organization of
American States (OAS).

The Inter-American System is composed of two entities: a Commission and a Court. Both bodies can
decide individual complaints concerning alleged human rights violations and may issue emergency
protective measures when an individual or the subject of a complaint is in immediate risk of irreparable
harm. The Commission also engages in a range of human rights monitoring and promotion activities,
while the Court may issue advisory opinions on issues pertaining to the interpretation of the Inter-
American instruments at the request of an OAS organ or Member State.

Inter-American Commission on Human Rights

The Inter-American Commission on Human Rights (IACHR) addresses human rights conditions and
violations in the 35 Member States of the OAS. It began operating in 1960, observing human rights
conditions via on-site visits, and in 1965 was authorized to begin processing specific complaints of
human rights violations.
The Commission also holds thematic hearings on specific topical areas of concern, publishes studies and
reports, requests the adoption of precautionary measures to protect individuals at risk, and has
established several thematic rapporteurships to more closely monitor certain human rights themes or
the rights of specific communities in the hemisphere.

Individuals, groups of individuals, and non-governmental organizations recognized in any OAS Member
State may submit complaints (“petitions“) concerning alleged violations of the American Declaration of
the Rights and Duties of Man, American Convention on Human Rights, and other regional human rights
treaties (listed below). The Commission receives approximately 1,500 petitions every year.

The Commission’s Statute and Rules of Procedure outline its structure, objectives, and procedures,
although some aspects of the day-to-day processing of cases are determined by the legal staff of the
Executive Secretariat.

Inter-American Institute of Human Rights

The Court and Commission’s human rights promotion work is complemented by the Inter-American
Institute of Human Rights, an autonomous research and educational institution based in San José, Costa
Rica. The Institute (best known by its Spanish acronym “IIDH”) provides free online courses on various
human rights topics, publishes numerous books, operates a Digital Library (navigation in Spanish),
moderates a discussion list serve, and organizes seminars and workshops for civil society throughout the
Americas. In addition to its online resources, the Institute is open to visitors seeking research assistance,
use of the physical library, or to purchase publications.

Inter-American Instruments

The Commission and Court are charged with interpreting and applying a number of regional human
rights instruments, which include the:

 American Declaration of the Rights and Duties of Man

 American Convention on Human Rights
 Additional Protocol to the American Convention on Human Rights in the Area of Economic,
Social and Cultural Rights “Protocol of San Salvador”
 Protocol to the American Convention on Human Rights to Abolish the Death Penalty
 Inter-American Convention to Prevent and Punish Torture
 Inter-American Convention on Forced Disappearance of Persons
 Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against
Women “Convention of Belem do Para”
  Inter-American Convention on the Elimination of All Forms of Discrimination Against Persons
with Disabilities

Additionally, the following documents guide the Court and Commission’s interpretation of the above
instruments:

 Declaration of Principles on Freedom of Expression

 Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas
 Inter-American Democratic Charter

The Special Mechanisms of the Inter-American Commission on Human Rights

The Inter-American Commission on Human Rights began establishing rapporteurships in 1990.

Rapporteurships are special mechanisms dedicated toward protecting and promoting the rights of
vulnerable groups of people who have historically faced marginalization. The establishment of
rapporteurships allowed the Commission to oversee human rights conditions on topics of particular
concern.

As of October 2014, there were eight thematic rapporteurships, one special rapporteurship, and one
unit. All of these special mechanisms gather and disseminate information on how different groups of
people or different rights are being protected throughout the Organization of American States (OAS)
Member States. The special mechanisms use this information to develop reports or recommendations to
Member States to help them better protect and promote the human rights of their people, and to guide
the Inter-American Commission on Human Rights in its decisions.

Thematic rapporteurships are usually overseen by one of the Commission’s seven Commissioners, who
undertake his or her duties on a part-time basis. The Unit on Economic, Social and Cultural Rights
operates similarly to thematic rapporteurships, and will become a Special Rapporteurship when funding
is available to fill the position. The Special Rapporteurship for Freedom of Expression focuses on the
freedom of expression, but the Rapporteur is elected to the position, and serves on a full-time basis.

The Commission also designates country rapporteurs from among the seven Commissioners. Each
Member State is assigned a country rapporteur, who is responsible for carrying out activities assigned by
the Commission within that State. Thematic rapporteurs often collaborate with the country rapporteurs
in conducting country visits within the Member States.
The rapporteurships and units are responsible for reporting their activities to the Commission. In turn,
the Commission is tasked with presenting Annual Reports to the OAS General Assembly. In these
reports, the Commission provides an account of the rapporteurships’ activities, including any reports
produced and promotional activities undertaken.

Principal Functions

As described in greater detail at the links below, each special mechanism’s capabilities are set forth in its
mandate. Generally, rapporteurships and units may:

 advise the Commission in its processing of individual petitions, cases, and requests for
precautionary and provisional measures related to their mandate;
 undertake country visits to investigate human rights conditions;
 conduct thematic reports and studies;
 develop recommendations to Member States;
 organize seminars, workshops, and specialized meetings;
 raise awareness of human rights issues;
 receive information from individuals and civil society;
 provide the Commission with annual reports on their work; and,
 contribute to the development of international human rights law.

Creation of Special Mechanisms

The Commission is empowered to create rapporteurships that are dedicated to areas of special interest,
in order to promote and protect the human rights of vulnerable groups throughout the Americas. See
Rules of Procedure of the Inter-American Commission on Human Rights, art. 15. To create a
rapporteurship, the majority of the Commission’s members must adopt a resolution. The resolution
must delineate the functions and scope of the mandate, provide a description of the activities to be
carried out, and an accounting of how these activities will be financed.

Thematic rapporteurships are allocated among the seven Commissioners. The rapporteurships usually
are designated during the first session of the Commission, but appointments may be made whenever
necessary. Thematic rapporteurs undertake their duties on a part-time basis for a three-year term,
which may be renewed once.
To elect a special rapporteur, the Commission must publicize the position, which allows individuals who
are not members of the Commission to apply. The Commission then accepts comments from OAS
Member States and civil society regarding the final candidates, and ultimately reaches a majority vote to
elect the rapporteur. The Commission is required to publish the grounds for its decision. Special
rapporteurs have a duty to disclose any potential conflicts of interest they have with the position, and
the Commission has the ability to replace a rapporteur for reasonable cause. Special rapporteurs serve
for three-year terms in a full-time capacity unless the mandate terminates earlier, and may renew their
term once.

Rapporteurships and Units

The following ten rapporteurships and units have been established:

 Rapporteurship on Human Rights Defenders

 Rapporteurship on the Rights of Afro-Descendants and against Racial Discrimination
 Rapporteurship on the Rights of the Child
 Rapporteurship on the Rights of Indigenous Peoples
 Rapporteurship on the Rights of Lesbian, Gay, Trans, Bisexual, and Intersex Persons
 Rapporteurship on the Rights of Migrants
 Rapporteurship on the Rights of Persons Deprived of Liberty
 Rapporteurship on the Rights of Women
 Special Rapporteurship for Freedom of Expression
 Unit on Economic, Social and Cultural Rights

2. The African HR system

Overview

At the beginning, the Organization of African Unity [OAU] which was established in 1963, largely
omitted any mention of HR: decolonization, sovereignty, and development [priorities and not the
respect of HR] . It was only in the late 1960s that proposals for African HR instrument began that
resulted in the adoption of the African Charter of Human and People Rights in 1981, Charter is
remarkable as it covers a large spectrum of CP rights as ESC rights, this is the only measure HR Treaty
that recognizes a set of collective rights including the right to development, to peace and security and
the right to satisfactory environment.[ interesting The Charter establishes a list of individual duties ; if u
are a human being u have right but also duties] After a hesitant beginning the AHR SYS gained a
considerable force since 1990 political changes and democratization process have contributed to a
stronger focus on HR and several instruments were adopted the establishment of the African
Commission on Human and people's [ACmHPR]

In 1990s, several instruments: adopted after the Charter that addressed various apparent legal
loophole : a specific charter on the right of the child , a convention on the rights of women and
internally displaced persons [restent dans leur pays vulnerable because no government to take care of
them , refugee - leave their countries]. Important institutional developments include in particular the
establishment of the African Union that was created in 2002 [ 50 pays de Continent africain] one of the
AU objectives is to protect and promote human and people's rights to respect democratic principle and
an exception to the principle on no interference : the act recognized the right of the AU to intervene in
the member state in grave circumstances: war crimes, genocide, crimes against humanity
unconstitutional, coup d'État militaire + Protocol establishing an African Court on HPR [ACtHPR] was
adopted in 1998 and is enforced since 2004.

--> Societies constantly in war.

A. The ACmHPR

The ACmHPR is a quasi-judicial body based in Banjul (Gambia) and the commission came into
existence with the coming to force of the African Charter composed of 11 members who are elected by
the AU Assembly of heads of States and government and serve in their personal capacity. [highest
reputation, professional in legal HR]

It has a broad mandate:

- To promote HR: States-parties reports, the study of the HR issues and country-specific
situations;

- To protect HR: individual and inter-state complaints

- To interpret the ACHPR [through the advisory opinions]

In its 1st decades, the ACmHPR adopted a number of important decisions [about masse
violations: torture, the right to a fair trial, in the 1990s. However, the Commission's decisions lacked
visibility and were frequently not complied with.

Over time, the developed its jurisprudence [obligations of States, commission tried to be
progressive and talked about positive obligations of the States, the problem with a very low budget] :
the violations and countries concerned have become more varied.

Impact

The ACmHPR's sessions have become an important forum for the deliberation of HR in Africa
and for the development of a regional HR culture.
 However, the Commission's impact has been limited/ hampered by a chronic lack of resources
[visibility, efficiency, quality of its work resulted in increasingly high delays] , which led to restrictive
rulings on admissibility + insufficient State compliance [respect - no enforcement mechanism to impose
the respect of the decision] , even if the situation varies considerably between countries.

B. The ACtHPR

Advisory and contentious jurisdiction. On one hand, the Court may receive complaints
and/or applications submitted to it either by the ACmHPR or State parties to the Protocol (30) or
African Intergovernmental Organizations. On the other hand, NGOs with observer status before the
ACmHPR and individuals from States which have made a declaration accepting the jurisdiction of
the Court can also institute cases directly before the Court (7).

This court came into force in 2004 The protocol 1998 created the ACtHPR, began its work only in
2006 with its seat in Arusha ( Tranzania)

The court is composed of the 11 judges, nationals of State members of the AU. A controversial
decision to merge the African court of justice and the African Court of HPR complicated matters. They
are elected in their individual capacities for 6- YEAR term renewable once.

In 2008, the AU adopted a protocol to merge the two courts : African Court of Justice
and HR ( with a HR selection) The present ACtHPR, and future.

The 2008 Protocol establish a two-tier sys

On one hand, the Court may receive complaints and/or applications submitted to it
either by the ACmHPR or State parties to the protocol (30) pr African intergovernmental Organizations.

On the other hand, NGOs with observe status before the ACmHPR and individuals from
States which have made a declaration accepting the jurisdiction of the Court can also institute cases
directly before the Court (7).
[En Amérique the individual direct - complètement exclu, en Afrique : il faut une déclaration afin que
l'individu puisse saisir la Cour] Afrique le meilleur sur les papiers mais en pratique... / Europe - le system
est le plus intégré]

The African Court on Human and Peoples' Rights (the Court) is a continental court established by African
countries to ensure the protection of human and peoples’ rights in Africa. It complements and
reinforces the functions of the African Commission on Human and Peoples' Rights.

The Court was established by virtue of Article 1 of the Protocol to the African Charter on Human and
Peoples' Rights on the Establishment of an African Court on Human and Peoples’ Rights, (the Protocol)
which was adopted by Member States of the then Organization of African Unity (OAU) in Ouagadougou,
Burkina Faso, in June 1998. The Protocol came into force on 25 January 2004.
As at July 2017, only eight (8) of the thirty (30) States Parties to the Protocol had made the declaration
recognizing the competence of the Court to receive cases from NGOs and individuals. The eight (8)
States are; Benin, Burkina Faso, Côte d’Ivoire, Ghana, Mali, Malawi , Tanzania and Rep. of Tunisia. The 30
States which have ratified the Protocol are: Algeria, Benin, Burkina Faso, Burundi, Cameroon, Chad, Côte
d’Ivoire, Comoros, Congo, Gabon, Gambia, Ghana, Kenya, Libya, Lesotho, Mali, Malawi, Mozambique,
Mauritania, Mauritius, Nigeria, Niger, Rwanda, Sahrawi Arab Democratic Republic, South Africa, Senegal,
Tanzania, Togo, Tunisia and Uganda.

The Court has jurisdiction over all cases and disputes submitted to it concerning the interpretation and
application of the African Charter on Human and Peoples' Rights, (the Charter), the Protocol and any
other relevant human rights instrument ratified by the States concerned. Specifically, the Court has two
types of jurisdiction: contentious and advisory.

The Court is composed of eleven Judges, nationals of Member States of the African Union. The first
Judges of the Court were elected in January 2006 in Khartoum, Sudan. They were sworn in before the
7th Assembly of Heads of State and Government of the African Union on 2 July 2006, in Banjul, the
Gambia. The Judges of the Court are elected, after nomination by their respective States, in their
individual capacities, from among African jurists of proven integrity and of recognized practical, judicial
or academic competence and experience in the field of human rights. The Judges are elected for a six
year term, renewable once. The Judges of the Court elect from among themselves, a President and Vice-
President of the Court who serve a two year term. They can be re-elected only once. The President of
the Court resides and works on a full time basis at the seat of the Court, while the other ten (10) Judges
work on a part-time basis. In the accomplishment of his/her duties, the President is assisted by a
Registrar who performs registry, managerial and administrative functions of the Court.

The Court officially started its operations in Addis Ababa, Ethiopia in November 2006, and in August
2007 it moved to its seat in Arusha, the United Republic of Tanzania. Between 2006 and 2008, the Court
dealt principally with operational and administrative issues, including the development of the structure
of the Court's Registry, preparation of its budget and drafting of its Interim Rules of Procedure. In 2008,
during the Court's Ninth Ordinary Session, the Court adopted the Interim Rules of Court, pending
consultation with the African Commission on Human and Peoples' Rights, in order to harmonize their
rules. This harmonization process was completed in April 2010, and in June 2010, the Court adopted its
Final Rules of Court.

The Court may receive cases filed by the African Commission of Human and Peoples’ Rights, State
parties to the Protocol or African Intergovernmental Organizations. Non-Governmental Organizations
with observer status before the African Commission and individuals can also institute cases directly
before the Court as long as the state against which they are complaining has deposited the Article 34(6)
declaration recognizing the jurisdiction of the Court to accept cases from individuals and NGOs.
The Court delivered its first judgment in 2009. As at 30th August 2017, the Court had received 147
applications and finalized 32 cases.

AFRICAN HUMAN RIGHTS SYSTEM

The African System is the youngest of the three judicial or quasi-judicial regional human rights
systems, and was created under the auspices of the African Union. Like the Inter-American System (and
the European System, as originally designed), it is composed of two entities: a Commission and a Court.

African Court on Human and Peoples’ Rights

The African Court on Human and Peoples Rights (AfCHPR) is a regional human rights tribunal with
advisory and contentious jurisdiction concerning the interpretation and application of the African
Charter on Human and Peoples’ Rights, which is also referred to as the Banjul Charter. Its jurisdiction
extends to those States that have ratified the Protocol to the African Charter on Human and Peoples’
Rights on the Establishment of an African Court on Human and Peoples’ Rights. The AfCHPR decided its
first case in December of 2009 and has taken up over two dozen other cases since then.

Complaints against any State that has accepted the Court’s jurisdiction may be referred to the Court by:
the African Commission on Human and Peoples’ Rights, States Parties (as respondent or petitioner in a
case before the Commission, or on behalf of a individual citizen), and African intergovernmental
organizations. As of March 2016, 30 States had accepted the Court’s jurisdiction.

The Court also has jurisdiction to hear cases instituted by individuals and non-governmental
organizations with observer status before the African Commission, provided that the relevant State has
made the necessary declaration under Article 34 of the Protocol to allow these complaints, described in
Article 5(3). Rwanda previously accepted the Court’s jurisdiction over individual and group complaints
but in February 2016 announced it would withdraw that acceptance. [IJRC] It formally withdrew March
2016.

The 11 judges of the court are elected for renewable, six-year terms. The Protocol to the African Charter
on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights,
along with the AfCHPR’s Rules of Court, set out the Court’s functions and operating procedures.

Additionally, the States of the African Union have agreed to establish an African Court of Justice and
Human Rights, intended to hear disputes arising under all African Union instruments, including the
human rights agreements, and to prosecute individuals for serious international crimes. This new
tribunal would replace the African Court on Human and Peoples’ Rights. However, the protocol must be
ratified by 15 States before the African Court of Justice and Human Rights comes into being.

African Commission on Human and Peoples’ Rights

The African Commission on Human and Peoples’ Rights (ACHPR) promotes and protects human rights
in 54 Member States of the African Union that have ratified the African Charter on Human and Peoples’
Rights. Morocco, rejoined the African Union in 2017, becoming its 55th Member State, but had not yet
ratified the African Charter as of June 2017. [IJRC]

The Commission accepts complaints (“communications”) from individuals, groups of individuals, non-
governmental organizations, and States concerning alleged violations of the African Charter on Human
and Peoples’ Rights.

The ACHPR holds two ordinary sessions a year and may also hold extraordinary sessions upon the
request of the Chairperson of the Commission or a majority of Commissioners. During the biannual
ordinary sessions, the ACHPR considers periodic reports submitted by States parties, as well as reports
from members of the Commission and its Special Mechanisms (rapporteurs, committees and working
groups). The Commission also considers reports concerning country visits (“Special Missions”), which are
typically dispatched to countries experiencing political or social unrest.

The African Charter and the Commission’s Rules of Procedure establish its composition and procedures.

The African Instruments

The Commission and Court are charged with interpreting and applying a number of regional human
rights instruments, which include:

 African Charter on Human and Peoples’ Rights (“Banjul Charter”)

 African Charter on the Rights and Welfare of the Child
 Protocol to the African Charter on the Rights of Women
 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa
 Convention for the Elimination of Mercenarism in Africa
 African Union Convention on the Conservation of Nature and Natural Resources
  Bamako Convention on the Ban of the Import of Hazardous Wastes into Africa
 African Union Convention on Preventing and Combating Corruption
 OAU Convention on the Prevention and Combating of Terrorism
 African Union Non-Aggression and Common Defence Pact
 African Charter on Democracy, Elections and Governance

They also interpret the principles contained in the following non-treaty documents:

 Guidelines for African Union Electoral Observations and Monitoring Missions

 Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa
 Pretoria Declaration on Economic, Social and Cultural Rights in Africa
 Declaration on Gender Equality in Africa
 Kigali Declaration, 2003
 Resolution on Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel,
Inhuman or Degrading Treatment or Punishment in Africa (Robben Island Guidelines), 2008
 Ouagadougou Declaration and Plan of Action on Accelerating Prisons and Penal Reforms in
Africa
 Grand Bay (Mauritius) Declaration and Plan of Action, 1999

African Rapporteurs and Working Groups

The African Commission on Human and Peoples’ Rights has established multiple special mechanisms to
assist the Commission with the promotion and protection of human rights. The special mechanisms’
mandates extend to all African Union (AU) Member States who are States Parties to the African Charter
on Human and Peoples’ Rights. All of the 54 AU Member States are States Parties to the Charter. The
special mechanisms are dedicated to protecting and promoting specific rights or the rights of specific
vulnerable groups.

As of October 2014, there are seven Working Groups, five Special Rapporteurships, two Committees,
and one Advisory Committee. All of these special mechanisms gather and disseminate information on
how different groups of people or specific human rights are being treated throughout the Member
States. The special mechanisms use this information to provide States or the Commission with guidance
toward effectively securing human rights in Africa.

Each special mechanism has been overseen by one of the Commission’s eleven Commissioners, who
undertakes his or her duties on a part-time basis. As of October 2014, each individual appointed as
Special Rapporteur or as Chairperson to a Working Group or Committee has been a Commissioner,
simultaneously serving on the Commission. Commissioners also serve as members of the Working
Groups and Committees, alongside non-Commissioner expert members.

The special mechanisms have a duty to provide the Commission with reports on their activities during
each Ordinary Session. In turn, the Commission presents annual Activity Reports to the African Union
Assembly that contain information gathered from the special mechanisms, summarizing positive
developments and areas of concern regarding human rights in Africa.

Principal Functions

As described in greater detail at the links below, each special mechanism has a specific mandate.
Generally, special mechanisms may:

 conduct country visits to Member States to investigate the enforcement of human rights;
 make recommendations to Member States to guide them toward the fulfillment of their
international obligations;
 lend expertise to the Commission when it is considering communications that concern the
special mechanism’s mandate;
 submit annual reports to the Commission detailing its activities;
 propose that the Commission send urgent appeals to Member States regarding imminent
human rights violations;
 send letters to State officials requesting information regarding human rights violations;
 analyze States’ domestic laws and their compliance with international standards;
 engage in promotional activities, including seminars, workshops, and expert meetings; and,
 collaborate with civil society organizations and international human rights bodies.

Creation of Special Mechanisms

The African Commission appoints Special Rapporteurs, Chairpersons, and members of the special
mechanisms either by consensus or by a vote. See ACommHPR, Rules of Procedure of the African
Commission on Human and Peoples’ Rights (2010), Rule 23(2). Typically, the mandate of the special
mechanism is originally authorized for two years, and is renewed by the Commission thereafter. The
renewals are effectuated through the passing of a resolution. Each special mechanism’s website
contains a list of the resolutions that have authorized the continuing mandate for that mechanism.
Committees, Special Rapporteurs, and Working Groups

The following fifteen special mechanisms have been established:

 Advisory Committee on Budgetary and Staff Matters

 Committee on the Protection of the Rights of People Living with HIV (PLHIV) and Those at Risk,
Vulnerable to and Affected by HIV
 Committee for the Prevention of Torture in Africa
 Special Rapporteur on Freedom of Expression and Access to Information
 Special Rapporteur on Human Rights Defenders
 Special Rapporteur on Prisons and Conditions of Detention
 Special Rapporteur on Refugees, Asylum Seekers, Migrants and Internally Displaced Persons
 Special Rapporteur on Rights of Women
 Working Group on Communications
 Working Group on Death Penalty and Extra-Judicial, Summary or Arbitrary Killings in Africa
 Working Group on Economic, Social and Cultural Rights
 Working Group on Extractive Industries, Environment and Human Rights Violations
 Working Group on Indigenous Populations/Communities in Africa
 Working Group on Rights of Older Persons and People with Disabilities
 Working Group on Specific Issues Related to the Work of the African Commission
 Monday, September 18th, 2017

Chapter 6 - Civil and Political Rights

CP rights emerged out of fundamental rights conceptions protecting life, liberty, integrity and
opinion of a person against an authoritarian State. The 20th century demonstrated that these rights
were at risk in multiple contexts ranging from genocide, dictatorships and arbitrary law enforcement to
conflict and break down of law and order. While IHR standards have been developed to provide
adequate protection in these circumstances, their implementation requires certain structures without
which it is unlikely that core CP rights can be effectively protected such as the rule of law, the
administration of justice, for example, which are key composants in this regard. Equally, however, a
democratic system as such is not a panacea for rights protection. Indeed, there are deep-seated
structural factors that can, and have, undermined the effective protection of rights in all systems. For
example, social exclusion, inequality, and discrimination can be causes for an undermined protection for
these rights. Furthermore, lack of access to justice, the absence of remedies and accountability can be
causes and manifestations of a malfunctioning system that fails to protect.

1. The Right to Life

A. Practice

Life is at risk both through a State's use of force and through its failure to provide adequate
protection from threats to life. The use of lethal force comprises the deliberate killing of individuals or
groups, including targeted extrajudicial executions ( police killing someone out of judicial power),
torturing to death in custody, enforced disappearances ( when it results in murder, massacres or even
genocide ...).

Members of marginalized groups and opposition movement, as well as journalists, have

been particularly vulnerable to extrajudicial killings. In addition, while there is a growing trend towards
the abolition of judicially sanctioned killing, e.i capital punishment, 55 countries impose death penalty.

Lethal force may also be used without the direct intention to kill, but in the knowledge
that it can be the outcome: the use of life ammunition to suppress a protest. The State may also
accidentally cause death of persons through its agents. Individuals and groups face also numerous
threats to their life from sources other than the State during a conflict where rebel groups (non-State
groups) may be responsible for more killings that governmental forces or during peace time.

B. Sources

The right to life is recognized in all major international and regional HR instruments. Its mention
as the 1st substantive right in most of these treaties reflects its fundamental importance. The
recognition in treaty law is complimented by UN international standards.

The right not to be arbitrarily deprived of life is considered to have attained the status of
customary IL and to be non-deragational. (ex: Impossible for a State to make a reservation about this
right). The taking of life may also constitute an international crime, mainly genocide, war crime, crimes
against humanity (systematic attack on a large scale.)

C. The Prohibition of Arbitrary Deprivation of Life :

Even though the right to life has repeatedly been referred to as a " fundamental right", it is not
absolute: it is permeated a use of lethal force that is not "arbitrary". ECHR art. 2 (2) : "use of force may
be justified in defense of any person from unlawful violence, in order to effect a lawful arrest, or an
action lawfully take for the purpose of suppress an insurrection."

As a general rule, the use of force must be regulated by law and must be exceptional. When its
use may be justifiable, it may be absolutely necessary and strictly proportionate to the legitimate aim
sought.

McCann and others vs. UK (1995) is a legal case tried before the ECtHR regarding a breach of art.
2 of the ECHR by the UK. In this leading case, the applicants alleged that the killing of their relatives by
UK soldiers "shot-to-kill". The Court agreed that soldiers believed for good reasons that IRA was about
to launch an attack. However, the Court extended its consideration of proportionality to include the
planning and conduct of the operation. The Court found in this case that the planning did not take the
required precautionary measures. The use of force for the Court had been absolutely necessary.

Recently, we have the particular killing of Bin Laden : May 2, 2011, the Head of Al - Qaida, was
killed in a raid conducted by the US in Pakistan, apparently without the contest and the knowledge of
Pakistan authorities, it is difficult to know the exact circumstances of the killing: reports of these
circumstances were not provided by the US, so we do not know if Bin laden had tried to defend himself
against US forces.

[We have more targeted killings: US Officials asserted that IHR were applied and that the killing
of Bin laden was lawful because Bin laden was a legitimate target even though there was no conflict
between the US and Pakistan : State vs. non-State actor.]

D. The Death Penalty Under IL:

The ICCPR, ECHR and ACHR explicitly recognized death penalty as an exception to the right to
life, and the death penalty has been interpreted as not constituting an "arbitrary" deprivation of life
under the ACmHPR.

However, the language of the art. 6 ICCPR already admits the desirability of abolition of death
penalty. This objective has found expression at the International level in the Second Optional Protocol to
ICPPR, aiming at the abolition of the death penalty ( 81 parties).

At the regional level, developments are most advanced in the Americas ( Protocol to abolish
death penalty 1990) and Europe ( more complete- protocol n6 - abolition during war time/ protocol n13
- abolition during peace time). In Africa, the African Commission called for a moratorium on the death
penalty; the majority of States have either abolished death penalty or signed the moratorium.
 Despite this trend, the death penalty as such is regularly not yet unlawful under present IHRL,
where it is still imposed and applied. However, the death penalty is subject to a series of conditions:

- It may only be imposed for the most serious crimes.

- It must not be mandatory ( the Court must have the possibility to consider special mitigating
circumstances)

- Certain categories of persons must be exempt [ children under 18 at the time of the crime was
committed, and mentally ill persons.)

- a fair trial ( person may only be sentenced to death penalty following a fair trial, including the right to
appeal).

- Consular assistance for foreign nationals ( diplomatic protection).

These conditions reflect the irreversible nature of the death penalty (cases where the State
asked to suspend the death penalty). Death penalty has a close relationship with the prohibition of
torture and other cruel, inhuman treatment or punishment. Its imposition following an unfair trial has
been considered as an inhuman treatment; the conditions of waiting for one's execution itself may
amount to inhuman treatment ( the death row). Furthermore, the method of execution itself may
constitute cruel punishment (ex: gas toxification considered as an inhuman treatment). The failure to
inform relatives to the execution and the burial place has also found the violation of prohibition of
inhuman treatment.

The trend is to reach a universal abolition in the future ( This is not the case at the moment).

2. The right to be free from torture and other ill-treatment:

A. Practice:

The practice of torture persists in many countries despite its absolute prohibition under IL.
Authoritarian and dictatorial States have a history of deliberately using torture as a means to control
and repress the population and destroy their "enemies". Torture is also a weapon of war used to install
terror, gather information, ... Democratic and other countries alike use torture for counter-insurgency
purposes. The response to the 9/11 attacks was characterized by recourse to torture, ill-treatment, the
practice of extraordinary rendition, part of routine-law enforcement.

The practice is often tolerated, if not encouraged, in order to "control crime", but is
simultaneously self-serving as a tool of power for corrupt and brutal law-enforcement official. Non-
State actors have also used torture methods ( difficult to establish the extent of this practice). Gender
bases violence, particularly sexual violence, is wide-spread and has been recognized as a form of torture.

There is a large arsenal of torture methods, i.e. any treatment capable of inflicting severe
physical or mental pain or suffering. Where there is a risk of accountability, methods of torture tend to
be of nature that does not leave physical traces, whereas torture is often cruel and extremely brutal in
countries where the law enforcement and armed forced act with lethal or legal restraint. The multiple
consequences of torture, particularly post-traumatic stress disorder, have been well documented over
the years. The impact of torture is not limited to the individual subject to it. It is also often a traumatic
effect on families.

Finally, torture can paralyze communities and instill fear in entire societies.

B. Sources:

The prohibition of torture is consecrated in a series of international and regional instruments.

The most detailed treaties are, at the international level, the Convention Against Torture (CAT) and
other Cruel, Inhuman or Degrading Treatment or punishment (1984), and at the regional level, the IA
Convention to prevent and punish torture (1985) and other treaties focusing on the prevention of
torture.

Torture and other ill-treatment are prohibited under international humanitarian law. Moreover,
torture is considered an international crime subject to universal jurisdiction and constitutes an element
of genocide, war crime and crimes against humanity.

C. The Absolute Prohibition of Torture

The prohibition of torture is an absolute and non-derogable right having the status of JC : it
cannot be justified under any circumstances. Nevertheless, there are recurring demands to permit
exceptions, which have become particularly permanent in the "torture debate" ("ticking bomb
scenario").

While the State has a duty to protect the life and security of anyone within its jurisdiction, there
are good reasons why torture should not be an acceptable way of doing so : incompatible with the
presumption of innocence ( information extracted in torture cannot be used in a judicial proceeding, as
an interrogation method: it is apparent that the information is not reliable); risks turning the exception
into the rule; question of human dignity if there is a utilitarian ground ( the person should not be turned
into a mere object...

Ultimately, the torture debate concerns the limits of the exercise of State – party and the care
of human dignity: a person should not be turned into a mere object, and the State should not be
allowed to negate someone's personality.

D. The definition of Torture and other forms of ill-treatment and punishment:

The two are different:

- Certain obligations, such as the duty to establish universal jurisdiction and to extradite or persecute a
person alleged to have committed torture, are not explicitly recognized for other forms of ill-treatment.

- Torture still carries a special stigma.

- The nature of the remedies may be influenced by a finding of torture (Art. 1 - CAT) : defines torture.

Constitutive elements of the definition:

- Inflicting severe mental or physical pain or suffering: an act of torture can be objectively or
subjectively severe.

- Intent: the intention inflictation is one of the factors distinguishing torture from other forms of ill-
treatment ( intentional inflicting).

- Purpose: torture is a means to an end in the context of abuse of power ( to extract infos or a
confession).

- Official involvement : formula used in the CAT: the act inflicted by or with the consent of a public
official, this convention excludes non-State actors, such as rebel groups, but are included private
individual/s if the official concerned acquiesce (lack of due diligence). An act such as domestic violence
and pogrom ( organized massive massacre) committed by private individuals, is considered as torture if
the officials concerned acquiesce such as encouraging the commission of relevant acts including
inaction.

ECHR art.3 - Prohibition of torture is structured differently simply prohibiting torture and cruel,
inhuman, degrading treatment.

The ECHR has developed a rich jurisprudence on the definition of torture in which it is
distinguished from other forms of ill-treatment (which must reach the required threshold of a "minimum
level of severity") and torture (deliberate inhuman treatment causing very serious and cruel suffering).
The Court has therefore applied high threshold for an act to be considered torture. (Selmouni v. France
1999).

The difference between art 1 CAT and the definition developed by ECtHR has given rise to a
debate between those who consider "purpose” as the central element and those who consider
"severity" as a more suitable device.

Beyond the flexible formula developed by the ECtHR, “other forms of inhuman, cruel or
degrading treatment” not amounting to torture are not defined in IL and are broader category, applied
in particular to corporal punishments and certain detention regimes. Ill- treatment is a broad category
with a large field of application: locked in a small room 23/24, cages of detention, excessive use of force.

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984)
Article 1
1. For the purposes of this Convention, the term "torture" means any act by which severe pain or
suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining
from him or a third person information or a confession, punishing him for an act he or a third person has
committed or is suspected of having committed, or intimidating or coercing him or a third person, or for
any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the
instigation of or with the consent or acquiescence of a public official or other person acting in an official
capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful
sanctions.
2. This article is without prejudice to any international instrument or national legislation which does or
may contain provisions of wider application.
European Convention on Human Rights (1950)
ARTICLE 3 - Prohibition of torture: “No one shall be subjected to torture or to inhuman or
degrading treatment or punishment”.

E. Obligations

States have a negative obligation to refrain from engaging in ant torture or other ill-treatment,
and a positive obligation to prevent, investigate, prosecute, punish and redress such acts. The effective
implementation of the prohibition requires State actors to take a series of measures in law and practice
that are designed to significantly reduce the risk of torture in national law. It is important to recognize a
visiting mechanism in particular for prisoners, and such mechanisms are emplaced in national, regional
and international levels (UN, EU, IA). This mechanism should be imposed by professionals, and they
should have an unrestricted access to all detention facilities, in addition to the opportunity of
interviewing dittanies in private.

Prohibition of non-refoulement - a refugee that risks torture in case of extraditions.

Impunity in a major factor perpetuating torture. Accordingly, States must make torture a crime
in their national laws and must extradite or prosecute anyone present on their territory suspected of
having committed an act of torture (universal jurisdiction.)

OVERVIEW

The right to life covers issues such as extrajudicial killings by State agents, imposition of the death
penalty, and enforced disappearance. The right to life is protected in the core regional and universal
human rights instruments, including the following:

 African Charter on Human and Peoples’ Rights (art. 4)

 American Convention on Human Rights (art. 4)
 American Declaration of the Rights and Duties of Man (art. 1)
 Arab Charter on Human Rights (arts. 5-8)
 Convention on the Protection of the Rights of Migrant Workers and Members of their Families
(art. 9)
 Convention on the Rights of the Child (art. 6)
 European Convention for the Protection of Human Rights and Fundamental Freedoms (art. 2)
 Inter-American Convention on the Forced Disappearance of Persons
 International Covenant on Civil and Political Rights (art. 6)
  Protocol No. 13 to the European Convention for the Protection of Human Rights and
Fundamental Freedoms concerning the abolition of the death penalty in all circumstances
 Protocol to the American Convention on Human Rights to Abolish the Death Penalty
 Second Optional Protocol to the ICCPR aiming at the abolition of the death penalty
 Universal Declaration on Human Rights (art. 3)

Relatedly, violations of international humanitarian law (e.g. use of prohibited weapons resulting in
death, or disregard for civilian loss of life) and of international criminal law (e.g. genocide) may also
involve violations of the right to life. For example, see the Genocide Convention and Geneva
Conventions.

Significant exceptions absolve States from international responsibility for an individual’s death in
specific circumstances. These are most clearly enunciated in Article 2(2) of the European Convention on
Human Rights, which reads:

2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results
from the use of force which is no more than absolutely necessary:

a. in defence of any person from unlawful violence;

b. in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

c. in action lawfully taken for the purpose of quelling a riot or insurrection.

These exceptions have been quite strictly interpreted. As set out in other instruments, Article 15 of the
European Convention—pertaining to derogations from international obligations in times of
emergency—further provides that derogations from Article 2 are only permissible “in respect of deaths
resulting from lawful acts of war”.

Further, the imposition of the death penalty—while prohibited in some areas of the world—is not yet
universally considered a violation of the right to life, provided that the crime is sufficiently serious, due
process rights are respected, and the method of execution is not particularly cruel.

However, inherent in the right to life are both negative and positive obligations on the State. That is,
not only must States refrain from taking a life outside the circumstances described above, but they must
also affirmatively act to protect against the loss of life. Such positive obligations include: training State
forces to use deadly force only when necessary, taking preventive measures in the face of known risk to
life (for example, to prevent an anticipated massacre by guerrilla forces or to resolve a land dispute
where an indigenous community’s survival depends on the land), implementing national legislation
which helps curb loss of life (such as in the regulation of hospitals and medical professionals),
investigating and punishing wrongful acts resulting in death, and taking responsibility for the wellbeing
of persons in State custody.

OVERVIEW

The right to freedom from torture is enshrined in many human rights instruments and protects all
individuals from being intentionally subjected to severe physical or psychological distress by, or with the
approval or acquiescence of, government agents acting for a specific purpose, including to inflict
punishment or to obtain information. Under international humanitarian law, which applies in the
context of armed conflict, the consent, action or acquiescence of a State agent is not necessary in order
for the abuse to constitute torture.

One of the most universally recognized human rights, the prohibition on torture has attained status as a
jus cogens or peremptory norm of general international law, also giving rise to the obligation erga
omnes (owed to and by all States) to take action against those who torture. As such, the prohibition
may be enforced against a State even if it has not ratified any of the relevant treaties, and the
prohibition is not subject to derogation, even in times of war or emergency.

Cruel, inhuman or degrading treatment or punishment is usually also prohibited in international

instruments that forbid torture. Cruel, inhuman or degrading (CID) treatment, as compared to torture,
involves a lower level of suffering and need not be inflicted for a specific purpose.

What is Torture?

Defining what treatment rises to the level of ‘torture’ can be a challenge, and will depend on which legal
instrument applies, based on which treaties, if any, have been ratified by the State and whether the
victim or advocate is engaging with the United Nations system or a regional human rights system.

The prohibition of torture and inhuman treatment is enshrined in the following regional and universal
human rights instruments:
  African Charter on Human and Peoples’ Rights (art. 5)
 American Convention on Human Rights (art. 5)
 American Declaration of the Rights and Duties of Man (art. 27)
 Arab Charter on Human Rights (arts 8)
 Cairo Declaration on Human Rights in Islam (arts. 19-20)
 Charter of Paris for a New Europe
 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(CAT)
 Convention on the Protection of the Rights of Migrant Workers and Members of their Families
(art. 10)
 Convention on the Rights of the Child (art. 37)
 European Convention for the Prevention of Torture and Inhuman or Degrading Treatment
 European Convention for the Protection of Human Rights and Fundamental Freedoms (art. 3)
 Inter-American Convention To Prevent and Punish Torture
 International Covenant on Civil and Political Rights (arts. 4, 7 and 10)
 United Nations Standard Minimum Rules for the Treatment of Prisoners (art. 31)
 Universal Declaration of Human Rights (art. 5)

Taking the various treaties together, the right to freedom from torture includes the following rights and
obligations:

1) the right of individuals to be protected by the State from torture by its agents;

2) the State’s duty to prosecute torturers; and,

3) the right of individuals not to be returned or extradited to another State where they may face the
danger of torture.

Universal Definition of Torture and Cruel Treatment

The United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (CAT) provides the most precise and widely-cited definition of torture under international
law. It defines torture as: “any act by which severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person for such purposes as obtaining from him or a third person information
or a confession, punishing him for an act he or a third person has committed or is suspected of having
committed, or intimidating or coercing him or a third person, or for any reason based on discrimination
of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an official capacity. It does not include pain or
suffering arising only from, inherent in or incidental to lawful sanctions.”

Thus, CAT identifies the following three elements that, if combined, constitute torture: 1) intentional
infliction of severe pain or suffering, 2) for a specific purpose, such as to obtain information, as
punishment or to intimidate, or for any reason based on discrimination, 3) by or at the instigation of or
with the consent or acquiescence of State authorities. What rises to the level of ‘torture’ or other
prohibited behavior is further defined through an extensive body of case law, as described in greater
detail below.

Torture is distinguished from other forms of mistreatment based on a context-and fact-specific analysis
of the intent with which the suffering is inflicted and the severity of the treatment. If the suffering does
not satisfy the definition of torture, the victim may still be able to show cruel, inhuman or degrading
treatment or punishment was inflicted. Proving cruel, inhuman or degrading treatment or punishment
does not require a showing of the actor’s specific intent, but must still reach a minimum level of
severity.

According the International Rehabilitation Council for Torture Victims (IRCT):

Some of the most common methods of physical torture include beating, electric shocks, stretching,
submersion, suffocation, burns, rape and sexual assault.

Psychological forms of torture and ill-treatment, which very often have the most long-lasting
consequences for victims, commonly include: isolation, threats, humiliation, mock executions, mock
amputations, and witnessing the torture of others.

Documenting Torture and Cruel Treatment

Torture under Other Areas of International Law

INTERNATIONAL HUMANITARIAN LAW

The infliction of torture is also a “grave breach” of core international humanitarian law under the
Geneva Conventions (in particular, Common Article 3), which are designed to limit the effects of armed
conflict. As a result, infliction of torture may constitute a war crime. Under the Geneva Conventions,
States are obliged “to enact any legislation necessary to provide effective penal sanctions for persons
committing, or ordering to be committed” such acts and are obligated to “search for persons alleged to
have committed, or to have ordered to be committed, such grave breaches, and [to] bring such persons,
regardless of their nationality, before its own courts” if these persons are not extradited to another
State Party. The conventions protect both civilians and military personnel from torture. The
International Committee of the Red Cross (ICRC) has produced an information kit on National
Enforcement of International Humanitarian Law.

INTERNATIONAL CRIMINAL LAW

Torture may also constitute a “crime against humanity” or “war crime” under international criminal law,
such as is specified in the Rome Statute of the International Criminal Court (arts. 7 and 8). Thus,
infliction of torture can be investigated and prosecuted by the International Criminal Court, subject to its
jurisdictional limits.

REFUGEE LAW

The principle of non-refoulement prohibits rendering a victim of persecution to their persecutor, and
applies to States in the context of their extradition and immigration policies. This obligation was first
enshrined in article 33 of the United Nations Convention Relating to the Status of Refugees, which
provides that “No Contracting State shall expel or return (‘refouler’) a refugee in any manner
whatsoever to the frontiers of territories where his life or freedom would be threatened on account of
his race, religion, nationality, membership of a particular social group or political opinion”. This duty is
reiterated in article 3 of CAT.

For example, in the United States, asylum eligibility is established by a showing that the applicant has
suffered or has a “well founded fear” that he or she will suffer “persecution.” Persecution includes
activities that do not fall within the relatively narrow definition of torture.

Even if an individual is not eligible for asylum, the State may not remove him or her to a country where
he or she would face a real risk of torture.
ENFORCEMENT

The prohibition on torture, cruel, inhuman or degrading treatment or punishment is implemented in the
U.N. system through the human rights treaty bodies, including the Human Rights Committee, the
Committee Against Torture and the Subcommittee on the Prevention of Torture and other Cruel,
Inhuman or Degrading Treatment or Punishment. In addition, the UN Human Rights Council’s special
procedures may investigate and report on allegations of torture. For example, the Special Rapporteur on
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, is authorized to examine
questions related to torture in all United Nations Member States, including through urgent appeals,
country visits, and reporting.

Enforcement is also available through the individual complaints mechanisms of regional human rights
tribunals, including the European Court of Human Rights, the Inter-American Court of Human Rights,
Inter-American Commission on Human Rights, African Commission on Human and Peoples’ Rights, and
the African Court of Human and Peoples’ Rights.

As outlined above, the prohibition on torture also requires governments to take measures to prevent
and punish torture, and many States criminalize torture in their national law. The Geneva Conventions
and Convention against Torture obligate States to extradite or prosecute those responsible for torture.
Governments may also exercise universal jurisdiction to prosecute those responsible for torture, and
Member States of the International Criminal Court have an obligation to cooperate with the court in the
investigation and prosecution of crimes falling under its jurisdiction, including torture. In times of armed
conflict, the International Committee of the Red Cross monitors compliance with international
humanitarian law.

SELECTED CASE LAW

A significant body of case law addresses what activities are prohibited by the regional and universal
treaties’ provisions on torture and inhuman treatment.

Defining Cruel Treatment and Torture

 The European Court has emphasized that an applicant must meet a certain standard to establish
an article 3 claim under the Convention: “Ill-treatment must attain a minimum level of
severity if it is to fall within the scope of Art.3 of the Convention. The assessment of this
 minimum level of severity is relative; it depends on all the circumstances of the case, such as the
duration of the treatment, its physical and mental effects and, in some cases, the sex, age and
health of the victim. In considering whether a treatment is ‘degrading’ within the meaning of
Art. 3, the Court will have regard to whether its object is to humiliate and debase the person
concerned and whether, as far as the consequences are concerned, it adversely affected his or
her personality in a manner incompatible with Art.3. Though it may be noted that the absence
of such a purpose does not conclusively rule out a finding of a violation. Furthermore, the
suffering and humiliation must in any event go beyond the inevitable element of suffering or
humiliation connected with a given form of legitimate treatment or punishment, as in, for
example, measures depriving a person of their liberty.” Wainwright v. United Kingdom,
Application no. 12350/04 (2007) 44 E.H.R.R. 40 (internal citations omitted).

 In Ireland v. The United Kingdom, the European Court of Human Rights listed factors to be taken
into account in determining the severity of treatment, including the age, sex, and state of
health of the victim. The Court also examined certain methods of interrogation, none of which
were found to cause acute physical injury, finding that forcing detainees to remain in stress
positions for periods of time, subjecting them to noise and depriving them of food, drink and
sleep amounted to ill-treatment, but refusing to find that the treatment amounted to torture.
The case stresses the applicability of the prohibition, even in cases involving terrorism and
public danger. Ireland v. The United Kingdom, Application No. 5320/71 (1978). (for further
caselaw applying the prohibition against torture and inhuman treatment to interrogation and
detention of terrorists and organized crime, see Labita v. Italy, Application No. 26772/95,
Judgment of 6 April 2000, Selmouni v. France, Application No. 25803/94, Judgment of 28 July
1999 and Chahal v. The United Kingdom, Application No. 22414/93, Judgment of 15 November
1996).

 The reluctance demonstrated in Ireland v. The United Kingdom, to find that ill-treatment
amounts to torture based on the level of severity has been eroded by subsequent case law that
can be read to lower the threshold under the European Convention for finding that torture has
occurred. See Askoy v. Turkey, 1996-VI Eur. Ct. H.R. 2260, Aydin v. Turkey, 1997-V Eur. Ct. H.R.
1866, 1873-74, 1891, and Selmouni v. France, Application No. 25803/94, Judgment of 28 July
1999 (each finding that the treatment endured by the applicants amounted to torture).
  In determining whether an applicant has suffered from torture (rather than less severe forms of
ill-treatment), the degree to which the force is unnecessary will help the court determine the
intent with which the treatment was exercised. Subjecting detainees to unnecessary physical
force diminishes human dignity and is a violation of the European Convention of Human Rights.
Selmouni v. France, Application No. 25803/94, Judgment of 28 July 1999.

Psychological Suffering

 Various human rights bodies have acknowledged that no physical element is necessary to
establish torture or inhuman treatment. The European Court of Human Rights found that a
suspected criminal could not be extradited to the United States because of the psychological
harm he would suffer if he were sentenced to death and held on death row. Soering v. The
United Kingdom, Application No. 25803/94, Judgment of 28 July 1999. For other cases involving
the inflicting of mental, but not physical violence, see V.v. The United Kingdom, Application No.
24888/94, Judgment of 16 December 1999 and X and Y v. The Netherlands, Application No.
8978/80, Judgment of 26 March 1985.

 Actions aimed at humiliating individuals or causing psychological suffering may constitute

torture or inhuman treatment, and also violate the right to human dignity. See Malawi African
Association and Others v. Mauritania, African Commission on Human and Peoples’ Rights,
Comm. Nos. 54/91, 61/91, 98/93, 164/97 à 196/97 and 210/98 (2000).

 In Cantoral-Benavides v. Peru, the Inter-American Commission found that ‘according to

international standards for protection, torture can be inflicted not only via physical violence, but
also through acts that produce severe physical, psychological or moral suffering in the victim.’
In that case, the Court found that the aggressive acts suffered by the victim could be classified
as physical and psychological torture, and that the acts were planned specifically for the purpose
of wearing the victim down and to obtain incriminating evidence from him. Cantoral-Benavides
v. Peru, Judgment (IACtHR, 3 Sep. 1998). See also Maritza Urrutia v. Guatemala, Judgment of
November 27, 2003, Inter-Am. Ct. H.R., (Ser. C) No. 103 (2003), finding that the victim suffered
physical violence amounting to torture, and mental violence constituting cruel and inhuman
treatment.

 Several cases have also found violations in relation to relatives of victims of disappearance
based upon the anguish caused to family member of the disappearance victims and the State’s
 failure to properly investigate and punish the wrongdoers for the disappearances or murders at
issue. See, for example: Quinteros v. Uruguay, Human Rights Committee Communication No.
107/1981, Views of 21 July 1983; Case of the ‘Street Children’ (Villagran-Morales) et al. v.
Guatemala, Inter-Am. Ct H.R., 19 November 1999; Laureano v. Peru, Communication No.
540/1993, Views of 25 March 1996; Kurt v. Turkey, Appl. No. 15/1997/799/1002, Judgment of
25 May 1998. In Çakici v. Turkey, Application No. 23657/94, Judgment of 8 July 1999, paragraphs
98-99), the Court limited the application of the Kurt case, finding that it did not establish a
general principle that a family member of a disappeared person is always a victim of treatment
contrary to Article 3 and specifying that whether the relative is such a victim will depend on the
existence of ‘special factors which gives the suffering of the applicant a dimension and character
distinct from the emotional distress which may be regarded as inevitably caused to relatives of a
victim of a serious human rights violation’.

Corporal Punishment

 Corporal punishment violates the prohibition of torture, cruel, inhumane and degrading
treatment or punishment. The Human Rights Committee has determined that corporal
punishment is prohibited by article 7 of the Covenant. Osbourne v. Jamaica, Communication No.
759/1997, U.N. Doc. CCPR/C/68/D/759/1997 (2000). The African Commission has ruled the
corporal punishment violates the human right to dignity. Curtis Francis Doebbler v. Sudan,
African Commission on Human and Peoples’ Rights, Comm. No. 236/2000 (2003).

Treatment of Prisoners and Detainees

 In Antti Vuolanne v. Finland, the Human Rights Committee examined a case involving the
solitary confinement of a Finnish infantryman who was sanctioned for abandoning his military
service. The Committee determined that for punishment to be degrading, the humiliation or
debasement involved must exceed a particular level and must, in any event, entail other
elements beyond the mere fact of deprivation of liberty. In determining the severity of the
alleged maltreatment, the court should consider all the circumstances of the case at hand,
including the duration and manner of treatment, its physical and mental effects and the sex, age
and state of health of the victim. Antti Vuolanne v. Finland, Communication No. 265/1987, U.N.
Doc. Supp. No. 40 (A/44/40) at 311 (1989).
  In contrast, the Human Rights Committee found, in Polay Campos v. Peru, that displaying the
victim publicly in a case and isolating him for 23 hours a day in a small cell with only 10 minutes
of sunlight a day violated arts. 7 (inhuman treatment) and 10 (treatment of persons deprived of
liberty) of the ICCPR. Polay Campos v. Peru, Communication No. 577/1994 (1997). See
also Loayza Tamayo Case, Reparations, Judgment of November 27, 1998, Inter-Am. Ct. H.R. (Ser.
C) No. 42 (1998) (finding similar treatment violated the applicants’ rights under the American
Convention).

 In International Pen and Others v. Nigeria, Comm. Nos. 137/94, 139/94, 154/96 and 161/97
(1998), the African Commission on Human and Peoples’ Rights found that where the State had
detained individuals sentenced to death in leg irons and handcuffs and had denied access to
attorneys and necessary medicines, that it had violated Article 5 (dignity) of the African Charter.

 The European Court of Human Rights has also developed case-law presumptions regarding ill-
treatment inflicted by State actors. For example, it has stated that “[W]here an individual is
taken into custody in good health but is found to be injured by the time of release, it is
incumbent on the State to provide a plausible explanation of how those injuries were caused
and to produce evidence casting doubt on the victim’s allegations, particularly if those
allegations were corroborated by medical reports, failing which a clear issue arises under Art.3
of the Convention.” Yavuz v. Turkey Application no. 32577/02, Judgment of 29 September 2008.

Death Penalty

 The Human Rights Committee has found that the means by which the death penalty is imposed
may violate the right to freedom from torture, cruel, inhuman or degrading punishment under
certain circumstances. Human Rights Commission Res. 2003/67, para. 4(i); Res. 2004/67, para.
4(i); and Res. 2005/59 para. 7(i) (stating that stoning is cruel and inhuman); Ng v. Canada,
Communication No. 469/1991, U.N. Doc. CCPR/C/49/D/469/1991 (1994) (noting that use of a
gas chamber to execute criminals is cruel and inhuman). The Committee subsequently found
that imposing death by lethal injection is not cruel and inhuman, despite evidence showing that
the injections can cause terrible suffering. Cox v. Canada, Communication No. 539/1993, U.N.
Doc. CCPR/C/52/D/539/19930. (1994).

 The European Court of Human Rights has identified hanging as an “ineffectual and extremely
painful method of killing, such as to amount to inhuman and degrading treatment.” The Court
 further states that “whatever the method of execution, the extinction of life involves some
physical pain, as well as intense psychological suffering deriving from the foreknowledge of
death.” Al-Saadoon and Mufdhi v. United Kingdom, Application no. 61498/08, Judgment of 30
June 2009.

 In the Inter-American system, while there are no merits decisions determining that particular
methods of execution violate the Inter-American treaties, the Commission has found admissible
at least one case involving a claim that lethal injection creates an unacceptable risk of causing
excruciating pain and suffering to the inmate. IACHR, Report No. 63/12, Petition 1762-
11, Virgilio Maldonando Rodriguez (United States), March 29, 2012.

 The mental anguish cases also include several cases involving the so-called “death row
phenomenon,” which refers to the inhuman and degrading treatment suffered by detainees on
death row, independent of the detainees’ right to life. Soering v. The United Kingdom,
Application No. 25803/94, Judgment of 28 July 1999 (Applying the principle of non-refoulement
to prohibit extradition where the party whose extradition is sought might be subjected to the
conditions of death row). Ilascu et. al. v. Moldova and Russia, Application No. 48787/99,
Judgment of 8 July 2004. Unlike the European Court of Human Rights, the Human Rights
Committee has not found detention on death row per se in violation of the right to freedom
from torture and ill-treatment. The Committee will find violations where there are further
compelling circumstances, such as documented deterioration of the victim’s mental health or
the victim’s age or status makes them particularly vulnerable. Errol Johnson v. Jamaica,
Communication No. 588/1994, U.N. Doc. CCPR/C/56/D/588/1994 (1996); Clive Johnson v.
Jamaica, Communication No. 592/1994: Jamaica. 25/11/98. CCPR/C/64/D/592/1994 (25
November 1998). For similar cases in the Inter-American system, see Hilaire, Constantine and
Benjamin, et al. v. Trinidad and Tobago, Judgment of June 21, 2002, Inter-Am. Ct. H.R., (Ser. C)
No. 94 (2002) and Raxcaco-Reyes v. Guatemala, Merits, Reparations and Costs, Inter-Am. Ct.
H.R. (ser. C) No. 133 (2005).

Non-Refoulement

 The European Court of Human Rights has determined that article 2 of the European Convention
prohibits the death penalty and that the principal of non-refoulement applies where a criminal
 suspect might be subject to the death penalty in the State seeking extradition. Al-Saadoon and
Mufdhi v. United Kingdom, Application no. 61498/08, Judgment of 30 June 2009.

Tuesday, 19th September 2017

Chapter 7 - Economic, Social and Cultural Rights

ESC rights include a number of entitlements, such as the right to work, the right social security, the
protection of the family and the enjoyment of just and favorable conditions of work; the right to form
and join trade unions, the right to an adequate standard of living which include adequate food, clothing,
housing, the right to health, the right to education and the right to participate in cultural progress, all
these rights are protected by the Covenant on ESC Right...

Several differences are traditionally cited to distinguish the different legal nature of ESC rights
and CP rights:

- Whereas States are obliged to implement CPR immediately, most ESCR are subject to progressive
realization.

- CPR are considered negative obligations and thus they are justifiable and enforceable before the
courts, whereas several States suggest that ESCR rights are not justiciable, not only because they are not
immediately realizable but also because their implementation requires resources. Thus the resources
insufficiency is a significant impediment to the fulfillment of ESCR and also a justification.

In reality, ESCR are by no means the poor relative of CPR as many of the latter are meaningless
without ESCR. The right to life, for example, is to some degree dependant on adequate food and water,
decent housing and health care. A decent education is a good platform for the exercise of freedom of
expression. ESCR are not vague obligations but they are now susceptible to qualitative and quantitative
measurement.

1. Brief historical context of ESC Rights

ESC rights are clearly recognised in the UDHR, as well as in the UN Charter, and
were later elaborated in more detail in the ICESCR.

ESCR are clearly recognized in the UDHR [ art. 22-27], as well as in the UN Charter [art 55], and
were later elaborated in more detail in the ICESCR.

Scholars argue about the intention of the drafters of the ICESPR which were at the time divided
into 2 political camps:

- Socialist or Soviet-bloc nations, on the one hand, natural extension of its ideology (ESCR should be
immediately enforceable and justiciable), and
 - Western liberal States on the other hand (they conditioned ESCR on the forces of free-market
economics, rest in the private initiative - States don’t interfere in the market) Good economy - good
jobs.

As a result, most liberal States objected to the assimilation of ESCR with CPR, at least in terms of
their implementation. That explains why USA pressed the Commission on HR to remove ESCR from the
draft of the Covenant.

The animated debates between the two political camps intensified, leading to a compromise
solution whereby ESCR were to be incorporated in a Covenant that was distinct form CPR.

The conception of fulfillment was fundamentally different between Liberal States and Socialist
States, the USA proclaimed that ESC are not rights, they are only goals that States seek to achieve. Such
a position expressed certainly hampers efforts to give prominence to ESCR worldwide, but has not
halted the flow of laws, constitutional ommitments,

The apparent legal differences between CP and ESC rights were reflected in their respective
monitoring in the two Covenants of 1966. Whereas the implementation of CPR is monitored by the HR
Committee, whose mandate is derived from ICCPR, the drafters of the ICESCR decided initially against a
monitoring mechanism, decided only to create working groups in order to review State reports and
then in 1985, we had the Committee of independent experts on ESCR (mandate of this Committee
include review the parties' periodic reports, offer non-binding recommendations, and issue general
comments = guiding pronouncements on the way to interpret the dispositions of the Covenant).

2. Progressive realization and the nature of State obligations

Article 2(1) of the ICESCR:

“Each State party to the present Covenant undertakes to take steps, individually and
through international assistance and cooperation, especially economic and technical, 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”.

The nature of obligations addressed to States in their implementation of ESCR on predicted on art 2 (1)
of the ICESCR. The language contrast with the obligations contained in the art 2 (1) on the ICCPR says "
respect and insure immediately the rights"

The rights in the ICESCR are framed as goals that are to be achieved progressively. They are only
goals that have to be achieved progressively depending on the maximum use of a nation’s available
resources.

It is beyond doubt that ESCR are binding on States, and it is true not only on obligations but on
respect of rights: ICESCR involves obligations to respect, protect and fulfill.
- 1 - The obligation to respect requires States to refrain from interfering directly or indirectly with the
enjoyment of the right: not to deny the access to education, healthcare...

-2- The obligation to protect requires States to take measures that prevent third parties from interfering
with the right: the right to health - even in case of privatization of healthcare, State has to make sure
that everyone has access to healthcare

-3- The obligation to fulfill requires the adoption of appropriate legislative, administrative, budgetary,
judicial, promotional and other measures ( obligation to facilitate and a duty to provide). Facilitation
requires the creation of appropriate conditions that lead to the enjoyment of the right in question;
concerning the right to health establishing a healthcare policy; the duty to provide requires States to
provide the commodity that is the essence of a particular right. In respect to those ESCR that require
the State to provide a resource (water - cooking, sanitation, drinking ... ) or a service ( health care), the
CESCR has formulated a set of criteria in order to evaluate the obligation to fulfill against which the
obligation to fulfill should be assessed: availability, quality, accessibility.

The concept of progressive realization of rights derives from the reality that States sometimes
are unable to provide the entire range of ESCR, at least with immediate effect. Unlike CPR which are
generally viewed as requiring negative obligations of non-interference, ESCR are positive in nature and
are not susceptible to implementation without dispensing significant resources

=> Their realization would be progressive. A decision of the Colombian constitutional court that held
that the right of movement is a progressive right bcz it involves a positive action on behalf of the State
but the protection of some rights may be in some circumstances urgent : someone in wheelchair that
says that Colombia doesn’t respect the right to movement, the State must make advances to the
fulfillment of the right, the fact that the right is progressive doesn’t mean it shouldn’t be applied.

In this sense, art 2 (1) of the ICESCR envisages a progressive realization of ESCR through the "taking of
steps" "by all appropriate means".

Committee of ESCR, General Comment 3 (1990): the progressivity "is, on one hand, a necessary
flexibility device. Reflecting the realities of the real world and the difficulties involved for any country in
ensuring full realization of ESCR. On the other hand, the phrase must be read in light of the overall
objective, indeed the raison d'être, of the Covenant which is to establish clear obligations for States
parties in respect of the full realization of the rights in question". It is right that it is a goal but States
have to prove that they are taking measures towards that goal.

That States are under the obligation to implement ESCR follows from their indivisibility from
CPR. People are living organisms, composed of myriad functions that are inseparable from whole. The
right to life is not only refrain the State from committing murder but also a right to a decent life.

It is for this reason that most, if not all, ESCR have been rendered justifiable by domestic and
international judicial bodies as necessary correlations of CP freedoms and entitlements.
 In the Street Children case (1999), States agents of Guatemala were found by the IACtHR to
have practiced systematic violence against abandoned street children => the Court constructed the right
to a dignified existence.

In its advisory opinion on Judicial Condition and HR of the Child (2002) IACtHR held that a
dignified life for children separated from their family included the right to education and the right to
health.

-> vivre ce n'est pas uniquement ne pas tuer mais aussi avoir des projets pour l'avenir

3. Resource implications: the obligation to utilize "maximum available resources"

Art. 2(1) of the ICESCR, stresses that States are obliged to realize ESCR by making the maximum
use of their available resources.

The assessment of a nation's available resources and its maximum utilization of these
resources towards implementing a particular right may be measured by reference to objective criteria.

First of all, it is crucial to ascertain State’s available resources. For economists generally
affirm that a country's available resources should not measured only through (PIB ‫الناتجصافي المحلي‬
produit intérieur brute ): gross domestic product (GDP) [valeur créé par l'État chaque année] + other
resources [development assistance, the deficit of the state, the borrowing ...

Hence, a budget that respects HR must demonstrate a high degree of :

1 - Adequacy, essentially that a State has made the maximum use its available resource;

2- Priority, whereby allocation has been made on the basis of a rights assessment;

3- Equity, in the sense that allocating policies are not discriminatory.

The maximum utilization of the State's resources, it is really important for the
implementation of ESCR.

ECtHR and the European Committee on Social rights have both held that States cannot
under any circumstances justify violations of consecrated rights on account of subsequent loan or fiscal
obligations assumed by the treaty or contract. As a result, lenders have to pay attention to fundamental
ESCR.

In many cases, however, States simply fail in their task to use maximum available
resources due to limited administrative capacity, excessive bureaucracy or through their inability to
collect taxes. [Paraguay]

There is some debate about whether the assessment of resource availability and its
appropriate utilization should be a justiciable matter.
 The CESCR declared that courts are already involved in a considerable range of matters
encompassing resource implications and possess the authority to do so. In this sense, there exists a
significant jurisprudence in constitutional democracies whereby domestic courts have questioned the
authority of the State to divert resources for the implementation of particular ESCR, subsequently
ordering their redirection [dépenses énormes aux domaines qui sont beaucoup moins vital] or
suggesting the need for reforms. The South African Constitutional Court decided that the non-public
availability of a drug that permits to prevent the transmission of HIV from mothers to babies, was
unreasonable and breached the right of poor mothers and their babies to health care. As a result, for
the Committee it is wrong to suggest that Coûts are ill placed and do not possess the authority to
question budgetary decisions that affect the implementation of ESCR.[can question and annule the
decision affecting the implementation of ESCR].

4. Minimum core obligations

In the general Comment 3 (1990), the CESCR has pointed out the minimum requirements for the
implementation of ESCR, irrespective of a country's financial situation: minimum core obligations consist
of the minimum essential level pertinent to each right. The CESCR made it clear that, at the very least,
States are under an obligation to ensure the satisfaction of the minimum essential levels of each ESCR
[severe full shortage, epidemy - States has to provide essential health care]. Minimum core obligations
are non-derogable. What remains unanswered is whether there are differentiated standards between
developed and developing countries. Committee adapt its answer on the yalt of each country, one must
asses the pertinent

The UN'S Human development Index (HDI) has consistently emphasized that human
development and well-being should be measured on the basis of longetivity, knowledge and decent
living standards. Several scholars have rejected the needs-based approach arguing in favor of value-
based core minimum obligations [trend] by putting emphasis on what it means to be human,
incorporating within their methodology the notions of dignity, equality and freedom. This line of
thinking seems to conform more closely to the CESCR's approach of core minimum obligations. The
Committee is not alone in its value-based conception of the minimum core. The implementation of
minimum core obligations does not always require the infusion of tangible resources, but may simply
demand a change of policies [food - protection of small scale, access to subsidies, micro financing,
favoriser la consommation locale pas besoin de plus de resources mais mieux orienter les resources]. In
emergency situations, it is not expected that the State should implement the higher threshold of ESCR.

OVERVIEW

Economic, social, and cultural rights are the freedoms, privileges and entitlements that individuals and
communities require to live a life of dignity. These human rights include the rights to food, housing,
health, education, cultural identity, and more. Although some economic, social, and cultural rights
cannot be immediately implemented, States that have ratified the relevant treaties nonetheless have
the obligation to guarantee these rights.
Specifically, States have an obligation to respect, protect, and fulfill economic, social and cultural rights.
The obligation to respect means States cannot interfere with enjoyment of the right. The obligation to
protect requires the State to reasonably prevent other actors from interfering with enjoyment of the
right. The obligation to fulfill mandates that the State actively take steps to create the conditions
necessary for individuals’ full enjoyment of the right.

Legal Protections

The extent to which individuals can claim legal protection of their economic, social, and cultural rights
(ESCR) depends on which treaties have been ratified by their governments, given that the protections
for ESCR vary significantly among the universal and regional human rights instruments. However, the
International Covenant on Economic, Social and Cultural Rights (ICESCR) is the most comprehensive
international treaty addressing this area of human rights law, and is also the most widely-applicable. As
of August 2014, 162 of the 193 United Nations (UN) Member States have ratified the ICESCR,
implementation of which is monitored by the UN Committee on Economic, Social and Cultural Rights
(CESCR).

The following instruments specifically address economic, social and cultural rights:

 African Charter on Human and Peoples’ Rights and Duties (Banjul Charter) (arts. 2, 14–18, 20–
22, 24) (see also the Protocol to the African Charter on Human and Peoples’ Rights on the Rights
of Women in Africa (arts. 12–19))
 African Charter on the Rights and Welfare of the Child (arts. 11, 14, 18)
 American Convention on Human Rights (arts. 1, 6, 11, 14, 17, 21, 26) (see also the Additional
Protocol to the American Convention on Human Rights in the Area of Economic, Social and
Cultural Rights “Protocol of San Salvador”)
 American Declaration on the Rights and Duties of Man (arts. V, VI, XI – XVI, XXII, XXIII)
 Arab Charter on Human Rights (art. 2)
 Association of Southeast Asian Nations (ASEAN) Human Rights Declaration(arts. 13, 17, 19, 26–
37)
 Commonwealth of Independent States Convention on Human Rights and Fundamental
Freedoms(arts. 4, 13–18, 21, 26–28)
  Convention on the Elimination of All Forms of Discrimination Against Women (arts. 10–16) (see
also the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination
Against Women)
 Convention on the Elimination of All Forms of Racial Discrimination (arts. 1–2, 5)
 Convention on the Protection of the Rights of All Migrant Workers and Members of Their
Families(arts. 11, 14–15, 25–28, 30–32, 40, 43–45, 54–55, 64, 70)
 Convention on the Rights of the Child (arts. 9, 16, 19, 24–36) (see also the Optional Protocol to
the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict (arts.
1–3) and the Optional Protocol to the Convention on the Rights of the Child on the Sale of
Children, Child Prostitution and Child Pornography)
 Convention Relating to the Status of Refugees(arts.17–24, 30)
 European Convention for the Protection of Human Rights and Fundamental Freedoms (arts. 4, 8,
11–12, 14)
 European Social Charter and the Revised European Social Charter
 First Protocol to the European Convention for the Protection of Human Rights and Fundamental
Freedoms
 International Covenant on Civil and Political Rights (arts. 1, 8, 22, 23, 27)
 International Covenant on Economic, Social and Cultural Rights (see also the Optional Protocol
to the International Covenant on Economic, Social and Cultural Rights)
 International Labor Organization Conventions
 Pretoria Declaration on Economic, Social and Cultural Rights
 Universal Declaration of Human Rights (arts. 22–27)

This guide primarily refers to the International Covenant on Economic, Social and Cultural Rights
(ICESCR) to identify and explain each of the freedoms and privileges considered to be economic, social
or cultural human rights. It should be noted, however, that other international and regional human
rights instruments’ provisions regarding economic, social and cultural rights may be slightly – or very –
different from the ICESCR’s protections.

Progressive Realization

International human rights law recognizes that the “full realization of all economic, social and cultural
rights will generally not be able to be achieved in a short period of time.” CESCR, General Comment No.
3, The Nature of States Parties Obligations, UN Doc. E/1991/23(SUPP), 1 January 1991, para. 9.
Therefore, States are responsible for “progressive realization” of these rights and must “move as
expeditiously and effectively as possible towards that goal.” Id.

States parties to the ICESCR have the obligation “to take steps, individually and through international
assistance and co-operation,” to the “maximum of available resources, with a view to achieving
progressively the full realization of the rights recognized.” ICESCR, art. 2. Other treaties addressing
economic, social and cultural rights contain similar phrasing. See, e.g., Additional Protocol to the
American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (“Protocol of
San Salvador”), art. 1.

States must initiate such steps within a reasonably short time. See General Comment No. 3, The Nature
of States Parties Obligations, para. 2. In the understanding of the CESCR, these steps should be
“deliberate, concrete, and targeted as clearly as possible” toward meeting the obligations. See id. States
should use legislative measures to progressively realize the rights; however, doing so will not
automatically fulfill the obligations under the ICESCR if other “appropriate” measures are still available.
See id. at paras. 3, 4. Some appropriate measures may include judicial, administrative, financial,
educational, and social. See id. at paras. 5, 7.

Immediate Implementation

While many ESC rights are subject to progressive realization, the UN Committee on Economic, Social and
Cultural Rights (CESCR) has identified certain rights and obligations that the State should immediately
implement, including:

 undertaking to ensure the equal right of men and women in their enjoyment of economic, social
and cultural rights (art. 3);
 providing all workers with fair wages and equal remuneration for work of equal value without
any distinction, particularly guaranteeing that women’s conditions of work are not inferior to
men’s work conditions (art. 7(a)(1));
 ensuring the right to form and join trade unions, and to go on strike (art. 8);
 protecting children from economic and social exploitation, including enacting legislation that
provides a minimum age for employment and punishes dangerous working conditions for
children (art. 10(3));
 providing free and compulsory primary education (art. 13(2)(a));
  allowing parents and legal guardians to choose their children’s schools, and respecting the
liberty of individuals and bodies to establish educational institutions (arts. 13(3), 13(4)); and,
 respecting the freedom indispensable for scientific research and creative activity (art. 15(3)).

See CESCR, General Comment No. 3, The Nature of States Parties Obligations, para. 5.

Justiciability

In order for a right to be “justiciable,” meaning capable of being evaluated or enforced under the law,
States must incorporate the content of the right into domestic law and the law must provide individuals
with an effective remedy for addressing alleged violations. See generally, Walter Kälin & Jörg Künzli, The
Law of International Human Rights Protection 117–18 (2009). The effective remedy does not have to be
judicial, and in certain circumstances an administrative remedy may be appropriate. See CESCR, General
Comment No. 9, The Domestic Application of the Covenant, UN Doc. E/C.12/1998/24, 3 December 1998,
para. 9.

Economic, social and cultural rights are often mistakenly considered non-justiciable. See id. at para. 10.
Some argue that courts should not determine how resources are allocated, and that political authorities
are better equipped to address such matters. See id. The CESCR has rejected this argument, stating that
courts are already involved with decision-making that involves resource allocation. See id. Domestic and
international case law demonstrates that economic, social and cultural rights are justiciable. See
generally, Shivani Verma, Justiciability of Economic Social and Cultural Rights Relevant Case Law, The
International Council on Human Rights Policy Review Meeting: Rights and Responsibilities of Human
Rights Organisations (15 March 2005).

The CESCR has identified two aspects of the implementation of ESCR that are always justiciable:

 Minimum Core Obligations: States must meet the minimum core obligation of the right. For
example, States must ensure the general availability of essential food, primary health care, basic
shelter, and basic education. Otherwise, the State will be considered to be failing to meet its
obligations under the ICESCR unless it demonstrates it has taken every effort to use all its
resources to satisfy the minimum obligations. See CESCR, General Comment No. 3, The Nature of
States Parties Obligations, para. 10.
The State’s total available resources are taken into account when evaluating its minimum core
obligation. See id. For example, if one State operates 100 primary schools but has very few resources,
that State might be meeting its minimum core obligation. Conversely, if another State has ample
resources and 100 schools, it might not be meeting its minimum core obligation if it is not using its
“maximum available resources” to secure basic education. The “minimum core” is considered the
baseline of the obligation to progressively realize rights. See, e.g., Sisay Alemahu Yeshanew, The
Justiciability of Economic, Social and Cultural Rights in the African Regional Human Rights System:
Theory, Practice and Prospect 280 (2013).

 Retrogressive Measures: States may not take deliberately retrogressive measures, which are
actions that hinder the realization of an economic, social or cultural right. Since States are
obligated to progressively realize ESCR, they must fully justify any government action that
impedes or reduces enjoyment of these rights. See CESCR, General Comment No. 3, The Nature
of States Parties Obligations, para. 9.

For example, if a State implements a policy or practice that further limits access to water, the burden is
on the State to prove that the measures were only justified based on “the most careful consideration of
all alternatives” and taking into account all economic, social and cultural rights in deciding how to use its
maximum available resources. See, e.g., CESCR, General Comment No. 15, The Right to Water, UN Doc.
E/C.12/2002/11, 20 January 2003, para. 19.

The reasonableness standard is another way to measure State compliance with ESCR obligations. This
standard is sometimes used instead of or in conjunction with the core minimum obligation standard.
See Yeshanew, supra at 291. When using the reasonableness model, adjudicatory bodies determine if
States are taking steps toward fulfilling their obligations, and if so, whether these measures are
reasonable. Id. If the measures are found to be unreasonable, the State is required to revise them. Id.

The Inter-American system has established standards that guide States in strengthening the judicial
protection of economic, social and cultural rights, focusing on: the State’s obligation to remove
economic obstacles to ensure access to the courts, due process of law in administrative and judicial
proceedings, and effective judicial protection of individual and collective rights. See IACHR, Report No.
OEA/Ser.L/V/II.129, Access to Justice as a Guarantee of Economic, Social and Cultural Rights: A Review of
the Standards Adopted by the Inter-American System of Human Rights, 7 September 2007, paras. 3–4.
Adequate access to information is essential for individuals to effectively participate in the development
and implementation of public policies concerning ESCR. In this regard, the Inter-American Commission
on Human Rights has stated that governments must make such information available, especially when
citizens have no other way of accessing it. See IACHR, Report No. OEA/Ser.L/V/II/132, Guidelines for
Preparation of Progress Indicators in the Area of Economic, Social and Cultural Rights, 19 July 2008,
paras. 79–80.

Equality and Non-Discrimination

States Parties to the ICESCR must guarantee non-discrimination in the enjoyment of economic, social
and cultural rights. See ICESCR, art. 2; CESCR, General Comment No. 20, Non-discrimination in Economic,
Social and Cultural Rights, UN Doc. E/C.12/GC/20, 2 July 2009, para. 7. The American Convention on
Human Rights, Protocol of San Salvador, African Charter on Human and Peoples’ Rights, and the
European Convention on Human Rights, among others, contain similar provisions. See American
Convention on Human Rights, art. 1; Additional Protocol to the American Convention on Human Rights
in the Area of Economic, Social and Cultural Rights “Protocol of San Salvador”, art. 3; African Charter on
Human and Peoples’ Rights, art. 2; European Convention for the Protection of Human Rights and
Fundamental Freedoms, art. 14.

Discrimination is prohibited on the basis of “race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status.” ICESCR, art. 2(2). The non-
discrimination clause is not exhaustive, and has also been interpreted to forbid discrimination on the
basis of sexual orientation. See, e.g., CESCR, General Comment No. 20, para. 32. States are further
required to “ensure the equal right of men and women to the enjoyment of all economic, social and
cultural rights” identified in the ICESCR. ICESCR, art. 3. This obligates States to ensure that their laws do
not discriminate on prohibited grounds, and also to “immediately take the measures necessary to
prevent, reduce and eliminate the conditions and attitudes that either engender or perpetuate”
discrimination against vulnerable groups. See, e.g., IACHR, The Work, Education and Resources of
Women: The Road to Equality in Guaranteeing Economic, Social and Cultural Rights (2011), p. 23.
Necessary actions may include special temporary measures to “suppress conditions that perpetuate
discrimination.”
REALIZING ECONOMIC, SOCIAL, AND CULTURAL RIGHTS

The summary below reviews each of the rights enumerated in the ICESCR. Case examples from regional
international human rights bodies are included to help illustrate the scope of economic, social and
cultural rights, in which case the protection of the right derives from a regional human rights instrument
instead of the ICESCR.

The ICESCR’s general limitation clause provides that States may place limitations on the rights to the
extent allowed 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.” ICESCR, art. 4. For example,
the CESCR explains, if a State were to forbid a doctor from treating a person believed to be opposed to
the government on the basis of national security, the State would then have the burden of justifying
that its action was: performed in the interest of a legitimate aim; in accordance with domestic law and
international human rights standards; compatible with the nature of ESCR; and that it was strictly
necessary to promote the general welfare in a democratic society. See id.

This limitation clause is intended to protect individuals’ rights rather than to allow States to place
limitations upon those rights. See CESCR, General Comment No. 14, The Right to the Highest Attainable
Standard of Health, UN Doc. E/C.12/2000/4, 11 August 2000, para. 28. For example, States may place
limitations on a right so that when one person enjoys the right it does not intrude upon others’
enjoyment of their rights.

The Right to Self-Determination and the Right to Development (Article 1)

Article 1 of the ICESCR states that “[a]ll 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.” This provision is identical to Article 1 of the International Covenant on Civil and Political
Rights. The African Charter on Human and Peoples’ Rights also contains similar provisions. See African
Charter on Human and Peoples’ Rights, arts. 20, 22.

The right of self-determination has two components: external and internal. “External self-
determination” can be thought of as international self-determination, because it refers to peoples’ right
to determine their political status and their “place in the international community” based upon the
principle of equal rights and freedom from colonialism, “alien subjugation, domination, and
exploitation.” See, e.g., CERD, General Recommendation No. 21: Right to Self-Determination, UN Doc.
A/51/18, 23 August 1996, para. 4. “Internal self-determination” can be thought of as self-determination
within the domestic sphere, because it refers to the right to freely pursue economic, social and cultural
development free from outside interference. See id. Consequently, the right to development is integral
to the right of internal self-determination.

The United Nations has discussed the interconnectedness of self-determination and development,
stating that the “human right to development also implies the full realization of the right of peoples to
self-determination,” which includes “the exercise of their inalienable right to full sovereignty over all
their natural wealth and resources.” UN General Assembly, Resolution 41/128, Declaration on the Right
to Development, A/RES/41/128, 4 December 1986, para. 1. The ICESCR protects peoples’ right to “freely
dispose of their natural wealth and resources without prejudice to any obligations arising out of
international economic cooperation,” and provides that in “no case may a people be deprived of its own
means of subsistence.” ICESCR, art. 1(2); HRC, General Comment No. 12, Article 1 (The Right to Self-
Determination of Peoples), UN Doc. HRI/GEN/1/Rev.9 (Vol. I), 27 May 2008, para. 4. The ICCPR and the
African Charter on Human and Peoples’ Rights also contain similar provisions, which relate to both self-
determination and development. See International Covenant on Civil and Political Rights, art. 1; African
Charter on Human and Peoples’ Rights, art. 21.

On this issue, the African Commission found that the State violated an indigenous group’s right to
development and right to freely dispose of natural resources when the government evicted the Endorois
peoples from their land to create a tourist game reserve, failing to include and compensate the Endorois
throughout the development process. See ACommHPR, Centre for Minority Rights Development (Kenya)
and Minority Rights Group (on behalf of Endorois Welfare Council) v. Kenya, Communications No. 26/03,
46th Ordinary Session, November 2009, paras. 268–269, 298. The State violated the right to
development because it did not meet its obligations to create favorable conditions for development, to
ensure that indigenous communities are consulted when their rights are affected, and to “provide
adequate compensation” for their land and resources. See id. at paras. 281, 298. The Commission held
that States have a duty to obtain “free, prior, and informed consent” from communities when
undertaking development projects that will have impacts on indigenous territories, and the right to
development is violated if the project results in decreasing the community’s well-being. See id. at paras.
291, 295. Implicating the right to self-determination, the Commission found a violation of the Endorois’
right to freely dispose of their wealth and natural resources, because the State never adequately
compensated the Endorois for the dispossession of their land.
In this vein, the United Nations has identified eight Millennium Development Goals (MDGs) for States to
work toward in realizing the right to development, including: eradicating extreme poverty and hunger;
achieving universal primary education; promoting gender equality and empowering women; reducing
child mortality; improving maternal health; combating HIV/AIDS, malaria, and other diseases; ensuring
environmental sustainability; and creating a global partnership for development.

Economic Rights

Economic rights protected by the ICESCR include the rights to work, to receive a fair wage, safe working
conditions, and to form and join trade unions.

The Right to Work (Article 6)

Article 6 of the ICESCR protects the right to work, which is the opportunity to gain a living by work that
one freely chooses or accepts. ICESCR, art. 6. The African Charter on Human and Peoples’ Rights,
Protocol of San Salvador, American Declaration, and the European Social Charter, among others, contain
similar provisions. See African Charter on Human and Peoples’ Rights, art. 15; Additional Protocol to the
American Convention on Human Rights in the Area of Economic, Social and Cultural Rights “Protocol of
San Salvador”, art. 6; American Declaration on the Rights and Duties of Man, art. XIV; European Social
Charter, art. 1.

To fully realize the right to work, States are encouraged to develop technical and vocational guidance
and training programs, along with policies that facilitate access to employment. See id.; CESCR, General
Comment No. 18, Article 6 of the International Covenant on Economic, Social and Cultural Rights, UN
Doc. E/C.12/GC/18, 6 February 2006, paras. 27–28. The European Social Charter also provides for the
right to vocational guidance and training. See European Social Charter, arts. 9, 10.The right to work does
not require the State to employ individuals, but rather protects individuals’ right to choose their work,
and guarantees that they will not be unfairly deprived of employment. See CESCR, General Comment No.
18, para. 6.

Along those lines, States have the core obligation to ensure the right of access to employment, by
avoiding measures that discriminate against marginalized groups and by implementing national plans of
action to effectuate the right to work for the disadvantaged. See id. at para. 31. On the issue of ensuring
the right of access to employment, the African Commission found a violation of the right to work when
State officials arrested foreigners on the ground that foreigners were not permitted to engage in mining,
even though the foreigners had official documents allowing them to work and live in Angola. See
ACommHPR, Institute for Human Rights and Development in Africa v. Angola, Communication No.
292/04, 43rd Ordinary Session, 22 May 2008, para. 75. The Commission held that the individuals’ right to
work was violated when they lost their jobs due to the State’s arbitrary arrest and deportation. Id. at
para. 76.

The right to work implicitly forbids forced labor. See CESCR, General Comment No. 18, para. 6. Forced
labor is involuntary “work or service which is extracted from any person under the menace of any
penalty.” ILO Convention No. 29 Concerning Forced or Compulsory Labor, art. 2(1). States are required
to “abolish, forbid and counter” all forms of forced labor. See CESCR, General Comment No. 18, para. 9.
The ICCPR, European Convention on Human Rights, and the American Convention on Human Rights,
among others, also contain provisions prohibiting forced labor. See the International Covenant on Civil
and Political Rights, art. 8; European Convention for the Protection of Human Rights and Fundamental
Freedoms, art. 4; American Convention on Human Rights, art. 6.

The Right to a Fair Wage and Safe Working Conditions (Article 7)

The ICESCR protects the right to just and favorable work conditions, including the right of all workers to
receive “fair wages and equal remuneration for work of equal value.” ICESCR, art. 7. The African Charter
on Human and Peoples’ Rights, Protocol of San Salvador, American Declaration, and the European Social
Charter, among others, contain similar provisions. See African Charter on Human and Peoples’ Rights,
art. 15; Additional Protocol to the American Convention on Human Rights in the Area of Economic,
Social and Cultural Rights “Protocol of San Salvador”, art. 7; American Declaration on the Rights and
Duties of Man, arts. XIV, XV; European Social Charter, arts. 2–4.

The ICESCR’s emphasis on equality prohibits States from discriminating against women, and requires
States to “ensure equal opportunities and treatment between men and women in relation to their right
to work.” See CESCR, General Comment No. 18, para. 13. The ICESCR guarantees the right to safe and
healthy working conditions, equal opportunity for promotion, and provides for “rest, leisure and
reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for
public holidays.” ICESCR, art. 7.

The work itself must be “decent,” meaning that it respects workers’ physical and mental integrity, and
respects their human rights in terms of work safety and remuneration. See CESCR, General Comment No.
18, para. 7. The remuneration should be enough so that individuals are able to earn “a decent living for
themselves and their families.” ICESCR, art. 7.

In an advisory opinion interpreting the rights of undocumented migrants under inter alia the American
Declaration on the Rights and Duties of Man and the American Convention on Human Rights, the Inter-
American Court of Human Rights has advised that States are “obliged to respect and ensure the labor
human rights of all workers, irrespective of their status as nationals or aliens,” and “should not allow
private employers to violate the rights of workers, or the contractual relationship to violate minimum
international standards.” I/A Court H.R., Juridical Condition and Rights of Undocumented Migrants,
Advisory Opinion OC-18/03, 17 September 2003, para. 148. The Court added that “work should be a
means of realization and an opportunity for the worker to develop his aptitudes, capacities and
potential, and to realize his ambitions, in order to develop fully as a human being.” Id. at para. 158.

The Right to Form and Join Trade Unions (Article 8)

International human rights law protects the right to form and join trade unions, and protects the unions’
right to function freely without restrictions other than organization rules, regulations “prescribed by law
and which are necessary in a democratic society in the interests of national security or public order,”
and limitations necessary to protect others’ rights. See ICESCR, art. 8(1). The European Convention on
Human Rights, Protocol of San Salvador, American Declaration, Revised European Social Charter, and the
ICCPR, among others, contain provisions protecting trade union rights. See European Convention for the
Protection of Human Rights and Fundamental Freedoms, art. 11; Additional Protocol to the American
Convention on Human Rights in the Area of Economic, Social and Cultural Rights “Protocol of San
Salvador”, art. 8; American Declaration on the Rights and Duties of Man,art. XXII; Revised European
Social Charter, art. 6; International Covenant on Civil and Political Rights, art. 22.

The decision to join a trade union should be the workers’ independent choice, exercised free from
influences that constrain their freedom to make a decision. See, e.g., ESCR, Confederation of Swedish
Enterprise v. Sweden, Complaint No. 12.2002, Merits, 15 May 2003, § 29.

The ICESCR protects workers’ right to go on strike, as long as the strike conforms to the legitimate
requirements of the relevant State’s laws. ICESCR, art. 8(1)(d). As with other economic, social and
cultural rights, any limitation a State places on the right to strike must comply with the general
limitations clause of Article 4. Additionally, States have a duty to immediately implement the right to go
on strike. See CESCR, General Comment No. 3, The Nature of States Parties Obligations, UN Doc.
E/1991/23(SUPP), 1 January 1991, para. 5.

On this issue, for example, the European Court of Human Rights has held that the State’s ban preventing
public employees from participating in a national strike to support collective bargaining was a violation
of the freedom of assembly and association. See ECtHR, Enerji Yapi-Yol Sen v. Turkey, no. 68959/01,
Judgment of 21 April 2009 (French and Turkish only). The Court discussed how a complete ban on public
employees’ right to strike was too broad, but noted that the right to strike was not absolute and may be
subject to certain restrictions. See id.

Similarly, the Revised European Social Charter provides that States may regulate the right to strike,
provided that any restrictions are “necessary in a democratic society for the protection of the rights and
freedoms of others or for the protection of public interest, national security, public health, or morals.”
See Revised European Social Charter, arts. 6, G. Where the government placed limitations on strike
pickets, the European Committee of Social Rights found a violation of Article 6 (right to bargain
collectively) of the European Social Charter. ECSR, European Trade Union Confederation, et al. v.
Belgium, Complaint No. 59/2009, Merits, 13 September 2011.

Social Rights

Social rights protected by the ICESCR include the rights to social security, protection of the family, an
adequate standard of living (including freedom from hunger, access to clean water, adequate housing,
and protection of property), and mental and physical health.

The Right to Social Security (Article 9)

Article 9 of the ICESCR protects “the right of everyone to social security, including social insurance.”
ICESCR, art. 9. The European Social Charter, American Declaration, and the San Salvador Protocol also
contain similar provisions. See European Social Charter, art. 12; American Declaration on the Rights and
Duties of Man, art. XVI; Additional Protocol to the American Convention on Human Rights in the Area of
Economic, Social and Cultural Rights “Protocol of San Salvador”, art. 9.

According to the CESCR, the right to social security includes the right to access and maintain benefits
without discrimination to help secure protection from lack of work-related income, unaffordable access
to healthcare, and insufficient family support (in the case of children and adult dependents). See CESCR,
General Comment No. 19, The Right to Social Security (art. 9), UN Doc. E/C.12/GC/19, 4 February 2008,
para. 2.

States have an obligation to develop a national strategy for the full implementation of the right to social
security. Id. at para. 41. There is a strong presumption that retrogressive measures taken in relation to
the right to social security are prohibited. Id. at para. 42. For example, the Inter-American Court of
Human Rights found that Peru violated the right to property and to judicial protection under the
American Convention when the State’s bank regulator arbitrarily reduced individuals’ social security
pensions. See I/A Court H.R., Case of the “Five Pensioners” v. Perú. Merits, Reparations and Costs.
Judgment of February 28, 2003. Series C No. 98, para. 187.

The Rights of the Family (Article 10)

International human rights law requires States to accord “the widest possible protection and assistance”
to the family, especially when the family is “responsible for the care and education of dependent
children.” ICESCR, art. 10. For example, mothers should receive special protection for a reasonable time
before and after childbirth, including maternity leave with pay or with adequate social security benefits.
See ICESCR, art. 8(2).

The ICCPR, European Convention on Human Rights, European Social Charter, American Declaration,
American Convention on Human Rights, Protocol of San Salvador, and the African Charter on Human
and Peoples’ Rights, among others, include similar provisions protecting the rights of the family. See
International Covenant on Civil and Political Rights, arts. 17, 23; European Convention for the Protection
of Human Rights and Fundamental Freedoms, arts. 8, 12; European Social Charter, art. 16; American
Declaration on the Rights and Duties of Man, arts. V, VI; American Convention on Human Rights, arts.
11, 17; Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social
and Cultural Rights “Protocol of San Salvador”, art. 15; African Charter on Human and Peoples’ Rights,
art. 18.

In Amnesty International v. Zambia, the African Commission found that the State violated its duty to
protect and assist the family when the State deported political activists, because their deportation
resulted in forcibly breaking up their family units. ACommHPR, Amnesty International v. Zambia,
Communication No. 212/98, 25th Ordinary Session, 5 May 1999, para. 59.
States should take “special measures of protection and assistance” to prevent the economic and social
exploitation of children. ICESCR, art. 10. To prevent the employment of children in dangerous or harmful
work conditions, States should set age limits on employment, in addition to prohibiting and punishing
child labor. See ICESCR, art. 8(3). On the issue of special measures taken to protect children, in Rochac et
al., the Inter-American Commission found a violation of the right to family when the State’s Armed
Forces separated five children from their families by forcibly disappearing them. See IACHR, Report No.
75/12, Case 12.577, Rochac et al. (El Salvador), 7 November 2012, paras. 205–208. The Commission
stated that if a child is separated from his or her family, “the State should seek to preserve that link by
intervening temporarily and directing its efforts toward the return of the child to their family” as long as
that is in the best interests of the child. Id. at para. 204.

One example of social exploitation is forced marriage. The ICESCR prohibits forced marriages, stating
that marriage “must be entered into with the free consent of the intending spouses.” ICESCR, art. 8(1).
The UN Human Rights Council has adopted a Resolution on Child, Early, and Forced Marriage, discussing
how this practice adversely affects the right to education, right to health, and the right to development.
See UN Human Rights Council, Resolution 24/L.34, Strengthening Efforts to Prevent and Eliminate Child,
Early and Forced Marriage: Challenges, Achievements, Best Practices and Implementation Gaps,
A/HRC/24/L.34, 23 September 2013.

The Right to an Adequate Standard of Living (Article 11)

The right to an adequate standard of living entails the rights to adequate food, clothing, housing, and to
the continuous improvement of living conditions. States are required to “take appropriate steps to
ensure the realization of this right.” ICESCR, art. 11. To realize an “adequate” standard of living, States
are required to take actions that guarantee individuals’ access to the minimum conditions necessary for
a life of dignity, rather than conditions that merely ensure survival. See, e.g., Walter Kälin & Jörg Künzli,
The Law of International Human Rights Protection 303 (2009).

The following rights must be guaranteed for an individual or community to have an adequate standard
of living:

 The Right to Food (Article 11(2))

International human rights law recognizes the fundamental right to be free from hunger. ICESCR, art.
11(2). The American Declaration and the Protocol of San Salvador, among others, include provisions
recognizing the right to food. See American Declaration on the Rights and Duties of Man, art. XI;
Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and
Cultural Rights “Protocol of San Salvador”, art. 12.

The right to food will be realized when “every man, woman and child, alone or in community with
others, have physical and economic access at all times to adequate food or means for its procurement.”
CESCR, General Comment No. 12, The Right to Adequate Food, UN Doc. E/C.12/1999/5, 12 May 1999,
para. 6. The core content of the right requires food to be available in a quantity and quality that is
sufficient to satisfy dietary needs, safe and culturally appropriate, and accessible without interfering
with other human rights. See id. at para. 8.

Violations of the right to food occurs when States directly interfere with enjoyment of the right and
when States insufficiently regulate other actors that interfere with enjoyment of the right. See, e.g., id.
at para. 19. For example, the African Commission held that the Nigerian government violated its three
minimum core obligations of the right to food, which are that States should not destroy or contaminate
food sources, should not allow private parties to do so, and should not prevent people from feeding
themselves. See ACommHPR, Social and Economic Rights Action Center (SERAC) and Center for Economic
and Social Rights (CESR) v. Nigeria, Communication No. 155/96, 30th Ordinary Session, 27 October 2001,
para. 65.

States should develop a “national strategy to ensure food and nutrition security for all,” including
objectives, policies, and benchmarks for progress. See CESCR, General Comment No. 12, The Right to
Adequate Food, para. 21. States are obligated to “improve the methods of production, conservation and
distribution of food by making full use of technical and scientific knowledge,” in order to produce food
sustainably and disseminate the knowledge of nutrition principles. ICESCR, art. 11(2)(a).

 The Right to Water (Articles 11 & 12)

Although the right to water is not explicitly provided for in the ICESCR, it has been interpreted to arise
through the rights to an adequate standard of living and to health. See, e.g.,CESCR, General Comment
No. 15, The Right to Water, para. 3. The right to water entitles individuals to safe, affordable, clean, and
physically accessible water for personal and domestic uses. See id. at para. 2. States should prioritize the
allocation of water for personal and domestic uses, for the prevention of starvation and disease, and to
ensuring that water is available to meet the core obligations of other ESCR, including the right to food or
the right to health. See id. at para. 6. States have a related duty to ensure that everyone has access to
adequate sanitation, which is crucial to protecting the quality of the water supply. See id. at para. 29.

The CESCR notes that during armed conflicts and emergency situations, States have the duty to protect
drinking water sources and to ensure that civilians, internees, and prisoners have access to adequate
water. See id. at para. 22. For example, in the context of the armed conflict in Darfur, the African
Commission found that the State violated the right to health under the African Charter when its armed
forces, inter alia, poisoned water wells and denied access to water sources. See ACommHPR, Sudan
Human Rights Organisation & Centre on Housing Rights and Evictions (COHRE) v. Sudan,
Communications Nos. 179/03-296/2005, 45th Ordinary Session, 27 May 2009, para. 212.

The nexus between business and human rights often impacts the right to water. States have a duty to
refrain from interfering with individuals’ use of water, and a duty to reasonably prevent other actors,
including corporations, from “denying equal access to adequate water; and polluting and inequitably
extracting from water resources.” See CESCR, General Comment No. 15, The Right to Water, para. 23.
States have an obligation to prevent private companies from “compromising equal, affordable, and
physical access to sufficient, safe, and acceptable water” by establishing an effective regulatory system.
Id. at para. 24.

 The Right to Housing (Article 11)

Individuals have the right to housing, which goes beyond the right to have a roof over one’s head, and
includes the right to live in peace and dignity, with security from outside threats. See ICESCR, art. 11;
CESCR, General Comment No. 4, The Right to Adequate Housing, UN Doc. E/1992/23, 1 January 1992,
para. 7. The American Declaration and the Revised European Social Charter also recognize the right to
housing. See American Declaration on the Rights and Duties of Man, art. XI; Revised European Social
Charter, art. 31.

The following factors are taken into account when determining if housing is considered “adequate”:
protection from forced eviction and harassment; access to facilities essential for health, security,
comfort, and nutrition; affordability to the extent that other basic needs are not compromised;
habitability; accessibility; in a location allowing access to social services; and individuals’ ability to
express their cultural identity. See id. at para. 8.
For example, the European Committee on Social Rights found a violation of the right to housing in
European Roma Rights Centre v. Portugal, when the Roma were living in a settlement that frequently
had no access to water, electricity or sanitation. See Complaint No. 61.2010, Merits, 30 June 2011, § 38–
40. The Committee noted that the Roma’s housing was discriminatorily segregated from the rest of
society and that the State failed to respect their cultural diversity when resettling them, because it did
not consider their family size, and the resettlement structure prevented family gatherings. See id. at §
48–49.

Forced evictions are prohibited under the right to housing. See CESCR, General Comment No. 7, The
Right to Adequate Housing: Forced Evictions, UN. Doc E/1998/22 , Annex IV, 1 January 1998, para. 5.
Forced evictions are the permanent or temporary removal of individuals or communities against their
will from their homes or land without access to appropriate protection. See, e.g., id. at para. 4. States
should establish legal guidelines for evictions that specify when they may be carried out and that
provide evicted parties with remedies if needed. See, e.g., ECSR, European Roma Rights Centre v. Italy,
Complaint No. 27.2005, Merits, 7 December 2005, § 41. Evictions that are in accordance with law are
permitted, but States must ensure that evictions are “justified and are carried out in conditions that
respect the dignity of the persons concerned, and that alternative accommodation is available.” E.g., id.

 The Right to Property (Article 11)

International human rights law protects the right to property. Although the right is not enumerated in
the ICESCR, it is implicitly protected as part of the right to housing, the right to food, and the right to an
adequate standard of living. See, e.g.,CESCR, General Comment No. 4, The Right to Adequate Housing,
para. 8.For example, to effectuate the right to food, States are encouraged to guarantee “the right to
inheritance and the ownership of land and other property.” See CESCR, General Comment No. 12: The
Right to Adequate Food, UN Doc. E/C.12/1999/5, 12 May 1999, para. 26.

Regional human rights treaties have explicitly guaranteed the right to property. See, e.g., African Charter
on Human and Peoples’ Rights and Duties, art. 14; Protocol No. 1 to the European Convention for the
Protection of Human Rights and Fundamental Freedoms, art. 1; American Convention on Human Rights,
art. 21. On this issue, the Inter-American Court found that the State had violated the right to property
when it forced indigenous communities to leave their ancestral land. See I/A Court H.R., Case of the
Sawhoyamaxa Indigenous Community v. Paraguay. Merits, Reparations and Costs. Judgment of March
29, 2006. Series C No. 146, para. 144. The Inter-American Court stated that indigenous communities
may have a communal “notion of ownership and possession of land [that] does not necessarily conform
to the classic concept of property, but deserves equal protection.” See id. at para. 120.

The Right to Health (Article 12)

Article 12 of the ICESCR protects “the enjoyment of the highest attainable standard of physical and
mental health.” ICESCR, art. 12(1). The European Social Charter, Protocol of San Salvador, American
Declaration, and the African Charter on Human and Peoples’ Rights, among others, contain similar
provisions. See European Social Charter, art. 11; Additional Protocol to the American Convention on
Human Rights in the Area of Economic, Social and Cultural Rights “Protocol of San Salvador”, art. 10;
American Declaration on the Rights and Duties of Man, art. XI; African Charter on Human and Peoples’
Rights, art. 16.

The ICESCR identifies the following four steps States should take to fully realize this right: provide for the
reduction of the stillbirth-rate and infant mortality and for the healthy development of children;
improve all aspects of environmental and industrial hygiene; prevent, treat, and control disease; and
create conditions that would provide all with medical attention in the event of sickness. ICESCR, art.
12(2).

The right to health implicitly involves the Right to a Healthy Environment. States are obligated to
eliminate or reduce the harmful effects of environmental pollution by taking appropriate regulatory or
monitoring measures so that its citizens may fully enjoy their right to health. See, e.g., ECtHR, Lopez
Ostra v. Spain, no. 16798/90, Judgment of 9 December 1994, para. 51. The right to a healthy
environment is not enumerated in the ICESCR, although regional treaties provide for it. See, e.g., African
Charter on Human and Peoples’ Rights, arts. 16, 24; Additional Protocol to the American Convention on
Human Rights in the Area of Economic, Social and Cultural Rights “Protocol of San Salvador”, art. 11.

Cultural Rights

Cultural rights protected by the ICESCR include the rights to education, to take part in cultural life, to
enjoy the benefits of scientific progress, and copyright and trademark protections.
The Right to Education (Articles 13 & 14)

The right to education is protected in the ICESCR as well as in multiple regional agreements. See, e.g.,
African Charter on Human and Peoples’ Rights, art. 17; Additional Protocol to the American Convention
on Human Rights in the Area of Economic, Social and Cultural Rights “Protocol of San Salvador”, art. 13;
American Declaration on the Rights and Duties of Man, art. XII; Revised European Social Charter, art. 17.

The ICESCR requires States to make primary education compulsory, free, and available to all. ICESCR, art.
13(2)(a). This is the core content of the right, it must be immediately implemented, and it is justiciable.
See CESCR, General Comment No. 3, The Nature of States Parties Obligations,para. 5. If a significant
number of individuals within a State are deprived of primary education, that State is failing to discharge
its obligation under the Covenant. See id. at para. 10. To refute this failure, the State must demonstrate
it is unable to immediately implement free primary education despite using all available resources. See
id.

States that have not implemented free primary education have two years to adopt a detailed action plan
that provides for its progressive implementation within a reasonable period. See ICESCR, art. 14. All
sections of civil society should participate in formulating the plan, which should include a periodic
review process to ensure accountability. See CESCR, General Comment No. 11, Plans of Action for
Primary Education, UN Doc. E/C.12/1999/4, 10 May 1999, para. 8. If states do not have the resources to
adopt a detailed plan, “the international community has a clear obligation to assist.” Id. at para. 9. To
request assistance, States should reach out to international agencies including the International Labor
Organization, UN Development Program, UN Educational, Scientific and Cultural Organization, UN
Children’s Fund, the International Monetary Fund, and the World Bank. See id. at para. 11.

The obligation of non-discrimination must be applied immediately and fully. See id. at para. 10. For
example, the Inter-American Court held that the State violated the American Convention when the
Dominican Republic refused to issue a birth certificate to a child of Haitian descent who was born in the
Dominican Republic, which prevented the child from attending day school because she did not have an
identity document. See I/A Court H.R., The Case of the Girls Yean and Bosico v. Dominican Republic.
Preliminary Objections, Merits, Reparations and Costs. Judgment of September 8, 2005. Series C No.
130, para. 3. The Inter-American Court held that the State violated the rights of the child and the right to
equal protection, adding that the State should comply with its “obligation to guarantee access to free
primary education for all children, irrespective of their origin or parentage, which arises from the special
protection that must be provided to children.” Id. at para. 244. With regard to discrimination, the Court
noted that “the State must pay special attention to the needs and the rights of the alleged victims owing
to their condition as girl children, who belong to a vulnerable group.” Id. at para. 134.

The ICESCR requires States to develop and continuously improve a school system containing all
academic levels, including fundamental education for those who have not completed primary education.
See ICESCR, art. 13(2). States must respect the ability of parents and legal guardians to choose their
children’s schools, provided that the schools conform to the State’s minimum educational standards. Id.
at art. 13(3). Secondary education must be made “generally available and accessible to all,” and higher
education shall be accessible to all on the basis of capacity. Id. at art. 13(2). States should progressively
introduce free secondary education and higher education. Id. The African Commission held that the
State violated the right to education when it failed to provide basic services that resulted in universities
and secondary schools closing for two years. ACommHPR, Free Legal Assistance Group and Others v.
Zaire, Communication Nos. 25/89-47/90-56/91-100/93, 18th Ordinary Session, 4 April 1996, paras. 4, 48.
In that case, the complainants alleged that the State’s failure was due, in part, to its mismanagement of
public funds. See id. at para. 4.

The Right to Take Part in Cultural Life (Article 15(1)(a))

Individuals have a right to freely determine their cultural identity. See ICESCR, art. 15. States are
prohibited from interfering with the “exercise of cultural practices and with access to cultural goods,”
and must ensure “preconditions for participation, facilitation and promotion of cultural life” and access
to cultural goods. See CESCR, General Comment No. 21, Right of Everyone to Take Part in Cultural Life,
UN Doc. E/C.12/GC/21, 21 December 2009, para. 6. The African Charter on Human and Peoples’ Rights,
Protocol of San Salvador, American Declaration, Revised European Social Charter, and the International
Covenant on Civil and Political Rights, among others, contain similar protections. See African Charter on
Human and Peoples’ Rights, art. 17; Additional Protocol to the American Convention on Human Rights in
the Area of Economic, Social and Cultural Rights “Protocol of San Salvador”, art. 14; American
Declaration on the Rights and Duties of Man, art. XIII; Revised European Social Charter, art.30;
International Covenant on Civil and Political Rights, art. 27.

The State may limit the right to take part in cultural life to prevent individuals from infringing upon other
human rights. See id. at para. 19. However, the limitations must pursue a legitimate aim, be compatible
with the nature of the right to take part in cultural life, and be strictly necessary to promote the general
welfare. Id.

States have the duty to immediately implement the following core obligations: take necessary steps to
guarantee non-discrimination and gender equality in the enjoyment of the right to take part in cultural
life; respect individuals’ ability to identify with different communities and to engage in their own cultural
practices; eliminate obstacles that restrict access to culture; and allow minority and indigenous groups
to participate in the implementation of laws that affect them. Id. at para. 55.

The right to take part in cultural life protects cultural diversity. States are required to take steps to avoid
the adverse consequences that globalization has on the right to take part in cultural life. Id. at para. 42.
On this issue, the Inter-American Court found that the State violated the American Convention when the
State granted a permit to a private oil company to engage in oil exploration on the territory of the
Kichwa Indigenous People of Sarayaku, without consulting the indigenous community. See I/A Court
H.R., Case of the Kichwa Indigenous People of Sarayaku v. Ecuador. Merits and Reparations. Judgment of
June 27, 2012. Series C No. 245, para. 2. The oil exploration prevented the Sarayaku from accessing
resources on their land and limited their right to cultural expression. See id. The Court found violations
of the right to communal property and the right to consultation, considering “the serious impacts
suffered by the [indigenous] People owing to their profound social and spiritual relationship with their
territory” and the “suffering caused to the People and to their cultural identity.” Id. at paras. 322–323.

States should “adopt measures to protect and promote the diversity of cultural expressions, and enable
all cultures to express themselves and make themselves known.” CESCR, General Comment No. 21, Right
of Everyone to Take Part in Cultural Life, para. 43. The African Commission found that the State denied
“the very essence of the Endorois right to culture” when it relocated the indigenous community and
restricted its access to vital resources for its livestock, which threatened the community’s “pastoral way
of life.” See ACommHPR, Centre for Minority Rights Development (Kenya) and Minority Rights Group (on
behalf of Endorois Welfare Council) v. Kenya, Communications No. 276/03, 46th Ordinary Session,
November 2009, para. 251.

The Right to Enjoy the Benefits of Scientific Progress (Article 15(1)(b))

The ICESCR protects the right to enjoy the benefits of scientific progress, which also protects individuals
from the negative effects of scientific progress. See ICESCR, art. 15(1)(b); UNESCO, The Right to Enjoy the
Benefits of Scientific Progress and its Applications (2009), p. 5. The American Declaration and American
Convention on Human Rights also contain similar provisions. See American Declaration on the Rights and
Duties of Man, art. XIII; American Convention on Human Rights, art. 14. The right to access the benefits
of scientific progress must be non-discriminatory, and protects access to: scientific knowledge,
opportunities to contribute to scientific endeavors, participation in decision-making regarding the right
to information, and the conservation, development and diffusion of science and technology. See UN
Human Rights Council, Report of the Special Rapporteur in the Field of Cultural Rights, Farida Shaheed on
the Right to Enjoy the Benefits of Scientific Progress and its Applications, A/HRC/20/26, 14 May 2012,
para. 25.

The Inter-American Court discussed how the right to enjoy the benefits of scientific progress is related
to reproductive freedom, because individuals seeking to create a family through in vitro fertilization
would need access to medical technology. See I/A Court H.R., Case of Artavia Murillo et al. (“In Vitro
Fertilization”) v. Costa Rica. Preliminary Objections, Merits, Reparations and Costs. Judgment of 28
November 2012. Series C No. 257, para. 150. The Court prohibited disproportionate and unnecessary
restrictions on the right of access to the medical technology, stating that the right to have access to
scientific progress “gives rise to the right to have access to the best health care services in assisted
reproductive technologies.” See id.

The Right to Benefit from the Protection of Moral and Material Interests Resulting from Scientific,
Literary and Artistic Productions (Article 15(1)(c))

Individuals have the right to “benefit from the protection of the moral and material interests resulting
from any scientific, literary or artistic production of which he [or she] is the author.” ICESCR, art.
15(1)(c). The Protocol of San Salvador and the American Declaration also contain similar provisions. See
Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and
Cultural Rights “Protocol of San Salvador”, art. 14; American Declaration on the Rights and Duties of
Man, art. XIII. The State is required to reasonably prevent other actors from infringing upon authors’
ownership rights to their work and the material interests associated with their work. This cultural right
involves economic and social rights as well, because it implicates the right to engage in work which one
freely chooses and the right to an adequate standard of living. See, e.g., CESCR, General Comment No.
17, The Right of Everyone to Benefit from the Protection of the Moral and Material Interests Resulting
from any Scientific, Literary or Artistic Production of which He or She is the Author, UN Doc.
E/C.12/GC/17, 12 January 2006, para. 4. It is intended to encourage creators to contribute to the arts,
sciences, and to society’s progress. See id.
The CESCR cautions against equating the right to benefit from the protection of moral and material
interests resulting from scientific, literary and artistic productions with intellectual property rights,
although they do share some similarities. Human rights are inalienable, universal and fundamental,
whereas intellectual property rights are generally temporary and may be transferred or sold. See id. at
paras. 1–4.

This right to benefit from the protection of moral and material interests is interdependent upon the
Right to Freedom Indispensable for Scientific Research and Creative Activity, which ensures “that the
scientific enterprise remains free of political and other interference, while guaranteeing the highest
standards of ethical safeguards by scientific professions.” See ICESCR, art. 15(3); see, e.g., UN Human
Rights Council, Report of the Special Rapporteur in the Field of Cultural Rights, Farida Shaheed on the
Right to Enjoy the Benefits of Scientific Progress and its Applications, para. 39. The Protocol of San
Salvador contains a similar provision. See Additional Protocol to the American Convention on Human
Rights in the Area of Economic, Social and Cultural Rights “Protocol of San Salvador”, art. 14.

On the issue of intellectual freedom, in Sorguç v. Turkey the European Court of Human Rights found a
violation of the freedom of expression under the European Convention on Human Rights when the State
court ordered a university lecturer to pay damages for distributing a document, at a scientific
conference, that criticized the procedures for promoting assistant lecturers. See ECtHR, Sorguç v. Turkey,
no. 17089/03, ECHR 2009, Judgment of 23 June 2009, para. 40. The Court noted that the right to
academic freedom protects “academics’ freedom to express freely their opinion about the institution or
system in which they work and freedom to distribute knowledge and truth without restriction.” Id. at
para. 35.

MONITORING & ENFORCEMENT

On the international level, several mechanisms specifically monitor and protect economic, social and
cultural rights. These include various United Nations and regional bodies. In addition, other human
rights bodies with more general mandates often consider issues and complaints related to economic,
social, or cultural rights.

The Committee on Economic, Social and Cultural Rights (CESCR) oversees States parties’ implementation
of the ICESCR. The CESCR issues General Comments, which are authoritative interpretations of the
ICESCR. Additionally, every five years State Parties to the Covenant are required to submit to the CESCR
a report explaining how they have been implementing the Covenant’s provisions. The CESCR evaluates
these reports, and considers any NGO input regarding the State’s implementation (these NGO
submissions are called “shadow reports”). The CESCR issues non-binding Concluding Observations,
which are assessments of how effectively States are complying with their obligations under the ICESCR
and recommendations for improving compliance.

On May 5, 2013, the Optional Protocol to the ICESCR entered into force, which created an individual
complaint mechanism and an inter-State complaint mechanism, and enabled the CESCR to conduct
inquiries into grave or systematic violations. The relevant State must have ratified the Optional Protocol
in order for these measures to be available. Individuals must meet specific requirements in order to
submit a complaint, including exhausting domestic remedies. Exhausting domestic remedies means
using all available national procedures to seek a remedy before bringing the claim to an international
body. If domestic remedies are unavailable, ineffective, or unreasonably delayed, then the individual is
not required to exhaust domestic remedies. Once the CESCR receives a communication, it is also able to
issue “interim measures” to request that the State take action to avoid irreparable harm to the victim.
The CESCR examines individual and inter-State complaints (“communications”) and then issues its
decision (“views”) regarding the alleged violation. For additional information on the CESCR and its
complaints procedure, see the Online Resource Hub page on the Committee on Economic, Social and
Cultural Rights.

Various United Nations “special procedures” monitor and promote ESCR. The Special Procedures of the
UN Human Rights Council are independent experts that report and advise on human rights, either as an
Independent Expert, Special Rapporteur, or as part of a Working Group. Their mandates are either
thematic, authorizing them to investigate a category of human rights, or country-specific, authorizing
investigation into a country’s treatment of human rights. The mandates outline their responsibilities,
which frequently include: conducting thematic studies, country visits, sending communications to States
regarding alleged human rights abuses; organizing expert consultations; raising public awareness;
engaging in advocacy; and providing advice for technical cooperation. Special procedures annually
report their findings to the UN Human Rights Council, and many mandates also require reporting to the
UN General Assembly. While the Human Rights Council appoints special procedures, they are not UN
members and are expected to conduct their investigations independently and impartially. For additional
information, see the Online Resource Hub page on the Special Procedures of the Human Rights Council.

The following Special Procedures monitor and promote economic, social and cultural rights:
  Independent Expert on the Effects of Foreign Debt and other Related International Financial
Obligations of States on the Full Enjoyment of all Human Rights, Particularly Economic, Social
and Cultural Rights
 Independent Expert on Human Rights and the Environment
 Intergovernmental Working Group on the Right to Development
 Special Rapporteur on Adequate Housing as a Component of the Right to an Adequate Standard
of Living, and on the Right to Non-discrimination in this Context
 Special Rapporteur on Extreme Poverty and Human Rights
 Special Rapporteur in the Field of Cultural Rights
 Special Rapporteur on the Human Right to Safe Drinking Water and Sanitation
 Special Rapporteur on the Right to Education
 Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable
Standard of Physical and Mental Health
 Special Rapporteur on the Right to Food
 Special Rapporteur on the Rights of Indigenous People

The International Labour Organization (ILO), a specialized United Nations agency, has a supervisory
system to ensure that Member States are complying with its standards related to labor and employment
rights. It also manages a complaint procedure that allows parties to file complaints against States for
failure to comply with ratified ILO standards. These complaints may be filed by another Member State to
the same ILO Convention under which the violation is alleged, a delegate to the International Labor
Conference (of Member States), or the ILO Governing Body. Once the complaint is received, a
Commission of Inquiry may be formed, which consists of three independent members who investigate
the complaint and recommend measures for the Member State to take to address the problem. If that
Member State refuses to implement the Commission’s recommendations, then the Governing Body may
ask the International Labor Conference to take measures to secure the Member State’s compliance with
the recommendations. See ILO Constitution, art. 33. For additional information, see the Online Resource
Hub page on the International Labor Organization.

The regional human rights commissions and courts also play a role in protecting economic, social, and
cultural rights. One such body is specifically focused on ESCR; this body is the European Committee of
Social Rights, which reviews States’ implementation of the European Social Charter and decides
collective complaints made against States that have accepted the complaints procedure. This procedure
allows employers, trade unions, and international NGOs that have participatory status with the Council
of Europe to submit complaints to the Committee. See Additional Protocol to the European Social
Charter Providing for a System of Collective Complaints, art. 1. For additional information on the
Committee, see the Online Resource Hub page on the European Committee of Social Rights.

Other regional human rights bodies that may address ESCR violations include the African Commission on
Human and Peoples’ Rights, the African Court on Human and Peoples’ Rights, the European Court of
Human Rights, the Inter-American Commission on Human Rights, and the Inter-American Court of
Human Rights. Each evaluates individual complaints alleging violations of the regional human rights
treaties, which include provisions protecting ESCR. Frequently, the regional treaties’ provisions
protecting ESCR are not identical to the rights enumerated in the ICESCR, and States’ obligations may
differ depending on the regional instrument(s) they have ratified.

Two regional human rights systems have also established special mechanisms that focus on ESCR. The
Inter-American Commission on Human Rights has a Unit on Economic, Social and Cultural Rights, which
undertakes country visits to OAS Member States, prepares studies and publications, and provides the
Commission with advice during its processing of individual petitions, cases, and requests for
precautionary measures. This Unit is expected to become a Special Rapporteurship once the necessary
funding is in place.

The African Commission on Human and Peoples’ Rights also has special mechanisms that address ESCR,
including the Working Group on Economic, Social and Cultural Rights, the Working Group on Extractive
Industries, Environment and Human Rights Violations, and the Working Group on Indigenous
Populations/Communities in Africa.