IHR Outline

8/10/2019 IHR Outline

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1. PERSPECTIVES AND FOUNDATIONS

a. What are Human Rights?i. This is unlike simple rights as a citizen or member of an

organization.there are certain rights, like these human rights which

transcend national boundaries and give rise to certain obligations.

ii.

Thus there is an internationalcomponent to this as well: universalentitlement ---> does not depend on nationality, culture, traditions, orreligion.

iii. Rights that humans are entitled to solely by virtue of their humanity.

iv. Rights that are intimately connected to human beingsv. Rights are an entitlementnot a matter of kindness.

1. If A kills B, normally just a crime. But if A is the government or

the crime is committed because of discrimination, it begins to be

regarded in terms of human rights.

b. History and Antecedents

i. History:

1.

17-18

th

Century: negative rights characterized by freedom.Autonomy over authority. Individualistic.

a. Shift from Natural law into Positive Law

2. 19th

Century: welfare rights; society and the state that represent

society must provide certain things. Affirmative rights.3. 20

thCentury: synthesis of both trends. Two branches of rights

civil/ethical rights + economic/social/cultural rights.

a. Absolution of the slave trade and InternationalHumanitarian Law.

b. Protection of minorities + League of Nations.

c. Following WWIICrimes Against Humanity + UN

Charteri.

Universal Declaration of Human Rights

1. General Assembly resolution, and not

binding. Aspirational statement.2. International Covenant of Civil and Political

Rights (ICCPR)

3. International Covenant of Social andCultural Rights (ICESCR)

a. All 3 are referred to collectively as

the International Bill of Rights

4. Human Rights On The International Plane: Key Datesa. Roosevelts Four Freedoms Speech 1941

b.

Declaration of the UN1942

c. UN Charter1945

d. UDHR and Convention on Prevention and Punishment ofthe Crime of Genocide1948

e. Four Geneva Conventions1949

f. ICCPR and ICESCR opened for signature1966g. ICCPR and ICESCR enter into force - 1976


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ii. Antecedents:1. Code of Hammurabi

2. Magna Carta3. Habeas Corpus Act

4. Bill of Rights

5.

French Declaration of the Right of Man and Citizen6. US Constitution7. Declaration of Independence

8. Nuremberg Charter

iii. Enlightenment thinkers had a lot to do with this too:1. Hobbe

2. Locke

3. Montesqiue

4. Rosseau5. Thomas Jefferson

2. Other Important Documents:

a.

Genocide Convention of 1948b.

4 Geneva Conventions relating to International Law

c. Covenants on Human Rights

d. CERD

e. CEDAW

f. Justifications and Critiques

i. Critiques:1. Richard Rotyno such thing as human rightsbeing Human does

not imply righs.

2. Peter SingerHR is like racism or sexism; this is specieism.

Calling them human rights is a moral flaw by excluding animals.

a. Realistb.

Utilitarian

c. Marxist

d. Particularist (cultural relativist)e. Feminist

f. Post-Colonial Theoretical Perspectives

g. TWAILThird World Approaches to International Law(originated in Harvard but now all over the world)

h. Post-Modernism Critiquehow its not neutralits all

politics, and pretends to be universal and neutral. Basically

saying all law is politics.

ii. Justifications:1.

Religious v. Non-Religious

2. Prudential v. Objective

3. Sequentialist v. Non-Consequentialista. Instrumental v Inherent

b. Consequentialism egalitarianism

4. Equality5. Dignity


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6. Legal PositivistsLawyers --> focus on what law is rather than

what it ought to be.

7. Deontological Theory8. Modernismobjective, neutral, and universal

3. HUMAN RIGHTS ASLEGALRIGHTS IN INTERNATIONAL LAW

a.

Sources and Nature of Obligationsi. Sources

1. Principal Treaties:a. UN Charterfirst guarantee of human rights and

fundamental freedoms within a global treaty, albeit ingeneral and indeterminate language.

b. UDHRnon-binding

c. ICCPR

d. ICESCRi. ^^ These three collectively referred to as

International Bill of Rights. Also most important.

After those came:e.

International Convention on the Elimination of All Forms

of Racial Discrimination (ICERD)

f. CEDAW

g. Convention Against Torture and Other Cruel, Inhuman orDegrading Treatment (UNCAT)

h. International Convention on the Right of the Child (CRC) +

3 optional protocolsi. Children in Armed Conflict

ii. Sale of Children, Child Prostitution and Child

Pornography

iii. Communications Procedurei.

International Convention on the Protection of Rights of

Migrant Workers and Members of their families

j. Convention on Rights of Persons with Disabilities (CRPD)k. International Convention for the Protection of All Persons

from Enforced Disappearance

2. Many other multilateral treaties that include HR obligations butdont have such monitoring mechanisms.

a. Prevent Punishment of Crime of Genocide

b. Suppression and Punishment of Crime of Apartheid

c. International Labor Organizationd. UN Educational, Scientific and Cultural Organization

3.

Regional institutions have developed their own HR systems

through adoption of treaties that are limited to states within their

region:a. ECHR

b. ACHR

c. African Charter on Human and Peoples Rights


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4. Widespread treaty adherence provides for a degree of uniformity

between states in their understanding of the requirements of

international human rights law (may undermine arguments ofcultural or other specificity)

a. Treaty ratification and accession allow for certainty in

identifying states parties and written texts set outobligations accepted.5. Additional Protocolslike a new treaty

6. General Commentsrecommendations on the part of treaty

bodies.7. Customary International Law

a. ICJInternational Court of Justice

b. While treaties are only binding on states that have chosen

to become parties, custom is binding upon ALL states withlimited exceptions.

i. A treaty may codify customary international law or

come to be accepted as customary international lawthough.

8. Jus Cogensnormis a peremptory norm of general international

lawaccepted and recognized by the international community of

states as a whole as a norm from which no derogation is permittedand which can be modified only by a subsequent norm of general

international law having the same character.

a. Essentially means compelling law in Latin. This higherlaw may not be violated by any country. For example,

genocide or slave trade may be considered to go against jus

cogens.

i. Typically includes genocide, slavery, murder,disappearances, prolonged/arbitrary detention, and

systematic discrimination.

9. Interaction at the International and Regional Levelsa. ICJ is the only international Court with jurisdiction over all

questions of international law, which includes issues

relating to human rights.10.Interaction Between National Courts

a. Most states have adopted IHR standards into their

constitutions and legislations, requiring national courts to

interpret and apply the relevant provisions.b. Jurisprudence of regional and national courts is

authoritative only within their own legal system, but careful

judicial analysis can be influential in the decision-making

by courts in other regions and stats that are faced withcomparable problems and must apply similar language.

i. Judicial decisions can carry persuasive weight

across national/regional boundaries and it isbecoming commonplace for judges in one


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jurisdiction to refer extensively to decision of courts

of foreign jurisdictions when interpreting human

rights guarantees.11.Human Rights Litigation

a. Now a body of judges (relatively new) and experts in

global and regional institutions who regularly hear casesinvolving claims of violations of HR. Complemented byjudges in national courts responsible for the judicial

enforcement of HR.

b. Networks such as International Bar Association.12.Writings of Juriststhese also weigh on opinions as experts and

teachings of the most highly qualified publicists/experts on various

HR issues can help decide a case.

13.Another way in which a non-binding resolution may be understoodas a source of HR law is where it provides an authoritative

interpretation of a treaty. (This approach taken by Inter-American

Court of Human Rights regarding the American Declaration of theRights and Duties of Man).

14.Soft Lawincludes things like HR Council guidelines, codes of

conduct, standards of behavior, etc

ii. Nature of Obligations1. The special character of human rights obligations. Objective, and

designed to protect the third parties (usually people within the

state) from actions of others (higher other parties), rather thancreating subjective and reciprocal rights for these higher others.

a. Objective and subjective here means whether or not there is

a dependence on other states (respectively).

b. Becoming a party to a HR treaty is declaratoryof statesobligations rather than constitutiveof them.

2. Implementation of HR Obligations

a. International HR law has thus come up with a complexconcept of how obligations are to be discharged and a new

vocabulary of obligations has emerged. Typically, states

are supposed to respect and ensure rights to allindividuals. However, this is very broad and in practice,

the UN HR treaty bodies have adopted a 3-part typology of

how HR obligations should be secured. States must ___

HR:

i. Respect1.

Dont infringe

2. This duty requires the state to treat persons

equally, to respect their individual dignityand worth, and hence not interfere with or

impair their declared rights, etc

a. Hands-off Duty ---> negative duty

ii. Protect


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1. Protect people against violations by others

2. Responsibility to protect --> international

community has an affirmative obligation tointervene if a particular government is

unable or unwilling to prevent terrible things

happening.iii. Fulfill1. Create institutions and structures, which are

conducive to the health of HR.

2. Refers to bringing about changes in publicconsciousness, perception, or understanding

about a given problem or issuewith the

purpose of alleviating the problem.

a. *This plays a vital role in CEDAW*3. Positive obligationunlike respect (which

is negative in that it is a duty to not actively

violate HR), where you must takepositive/affirmative steps that have as a

consequence the greater enjoyment of rights.

3. Margin of Appreciation

a. Developed by ECHR when considering whether a memberstate of the ECHR has breached the convention.

i. MoA doctrine allows the court to take into account

the fact that the Convention will be interpreteddifferently in different member states.

ii. Judges are obliged to take into account the cultural,

historic, and philosophical differences between

Strasbourg and the nation in question.b.

Involves an assessment of the degree of consensus (a

minimum common denominator) about a certain practice

across member states.i. In the absence of such a consensus, and in the

presence of significant divisions, the EC will

hesitate to impose on a minority (let alone amajority) of states, a particular understanding of

rights.

ii. Important to note that whether there is a MoA for a

particular issue is something that can evolve overtime.

c.

According to ECHR MoA doctrine, there is room for

differences between European states.

d. On many rights, ECHR gives States a MoA in limitingthose rights (prescribed by law and are necessary in

democratic society for prevention of certain interests).

i. ECHR always has final say though ---> question ishow wide of a margin.


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1. The doctrine has never been theorized in a

sophisticated way ---> introduced usually

when youre in a tight spot.2. Reflects the role we think ECHR should

play:

a.

Constitutional Court: you can appealany major issue to the courtb. Something Softer: stricter on core

issues, but otherwise applies MoA

to the state.e. Unclear how wide the margin is, but it is wider when it

comes to certain issues (like national security as seen in

Norris).

i. In determining the scope, courts something look atboth 1) nature of the aim of the restriction; and 2)

nature of the activities involved.

f.

Disputes should be left to resolved as close as to where thefacts arose as possible. International bodies should step in

only as a last resort. If the domestic system has any way of

resolving it internally, HRC should not intervene.

g. Exhaustion of Local Remediessimilarly, before you go tointernational bodies, should seek to exhaust local remedies

(unless the local remedies are illusory as seen in

Singarasa).h. One rationale for MoA is that states and domestic courts

are better suited to assess local peculiarities and that there

is simply too much uncertainty about how HR are to be

implemented in practice for international supervision toexercise more than relatively minimal control.

i. Issues of legitimacy also arise, as international

bodies might provoke political backlash if theydelve too deeply in matters that are seen as

culturally specific.

i. MoA reasoning has featured prominently in cases involvingsexual minorities, and place of religion in society.

j. Consequence/Critique:MoA militates in favor of

conservative international assessment of rights.

i. ECHR has often been less of a pioneer than a safeendorser of existing trends and development.

ii.

Criticized as possibly leading to an excessively

relativistic application of human rights that may

even contain the seeds of the projects dissolution.1. The HRC, in particular, has expressed

skepticism about the notion.

k. Justification:In addition to the fact that it allows thosebetter suited to deal with a problem (the more local, the


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better suited in some cases), MoA reinforces the sense of

HR being rooted in a community of reference (which is

also a community of interpretation), dynamic in time, and aproduct of a constant interaction between rights and ideas

about society and justice.

l.

*The idea of the MoA is not universally accepted beyondthe European context.4. Reservationsdefined in Article 2 VCLT as 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 the State.

(**Look at Vienna Convention)

a. Aim of reservation is to limit a states obligations under aparticular treaty.

b. International law is not formalistic about what constitutes a

reservation: it doesnt matter whether a state presents it as ageneral political statement or a declaration of

interpretation.

i. If the result is exclusion or modification of the legal

effect of certain provisions, it will be considered areservation.

c. A typical reservation is one whereby a state purports to

interpret an internationally protected right only inaccordance with its domestic, often constitutional or

religious law.

d. Essentially, its a way in which States may modify their

obligations under IHR treaties (by entering reservations)e.

States may want to enter reservations to HR treaties for a

number of reasons...

i. A state may generally be committed to HR but haveproblems with one particular provision, and

therefore want to exclude or limit the application of

that provision in order to be able to become a partyto the treaty.

ii. May also want to inject a certain cultural

understanding of a particular obligation, or guard

against an expansive interpretation by IHR bodiesby preempting the meaning of a particular

provision.

iii. States may know in advance that part of their

domestic law is incompatible with a provision of atreaty and seek some temporary accommodation.

1. May be encouraged by HR lawyers, if only

to encourage states to ratify treaties.


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f. Critique:Problematic for IHR law and maybe even more

so for general international law. (HR supervisory bodies

have frequently deplored the abundance and scope ofreservations, and urged states to repeal themdifferent

from ordinary international treaties where few bodies are

authorized or would see fit to criticize a practice that islargely seen as within a states prerogativein fact, IHRlaw has evolved specific notions of what reservations are

permissible who may decide on their permissibility, and

what consequences flow from reservations).i. Human rights are clearly more of a package than

most international normative instruments. Tension

between idea of HR and notion that a state may,

through reservations, pick and choose obligations towhich it wishes to be bound or interpret them as it

so wishes, at the risk of emptying some of their

context.1.

It is the very universality of HR and the

whole point of IHR treaties, which is

threatened if states dont agree to honor the

same rights.2. Also a sense that some states may free

ride HR treaties, by obtaining the benefits

broadly associated with being a party tothem, whilst subscribing only to an

eviscerated set of obligations.

ii. Also create problems of legal certainty, making it

difficult for individuals to ascertain the exact scopeof the rights they have been guaranteed.

iii. **** CUT THIS PART DOWNTAKE FROM

NOT AS GOOD AS OTHER.DOC OUTLINEg. Permissibility: General regime under Article 19 VCLT is

that states may formulate

i. General Comment 24: very existence of thiscomment indicates how seriously the UN treaty

monitoring bodies takes the issue (in regards to

reservations to ICCPR).

ii. HRC specifically excludes a number of reservationswhich it considers would be incompatible per se

with object and purpose of HR treaties (such as

violating preemptory norms, customary

international law, or non-derogable norms).1. States may not make reservations relating to

certain basic guarantees associated with

rights protected, such as right to effectiveremedy (defined as supportive guarantees,


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these provisions are seen to provide the

necessary framework for securing the rights

in the Covenant (ICCPR) and are thusessential to its object or purpose.)

2. States cannot make reservations to

institutional arrangements designed tosupervise the implementation of treaties.(Example: a state cannot become a party to

one of the universal HR treaties and make a

reservation to the effect that it does notconsider itself bound by the obligation to

submit periodic reports to its corresponding

supervisory body).

3. Cant have reservations that are too vague orbroad for it to be possible to determine their

exact meaning and scope.

iii.

This leaves VERY FEW areas where reservationsmight be valid.

h. Responsibility for Assessment: The particular interest that

the international community has in the integrity of HR

treaties necessitates that reservations fall under a strongsystem of international supervision.

i. *Reservations do not have to be accepted by all states for a

HR treaty to enter into force.j. *Under general international law, position is that the

reserving state becomes bound by treaty if at least one other

state accepts the reservationin context of treaties of a

humanitarian or HR character though, ICJ has held thatstates can in fact become party to a treaty even if other state

parties object to its reservations.

5. Limitations and Derogationsa. Limitations ---> some treaty provisions explicitly provide

circumstances in which the enjoyment of a right may be

limitedi. Have to be justified by the fact that they are:

1. Prescribed by law

2. Pursue a legitimate aim

3. Necessary in democratic societyb. Derogations ---> states have possibility of derogating from

obligations in a time of emergency justifying exceptional

measures. (**Temporal and Spacial)

i. Permits states to suspend obligations under thecovenant in situation of emergency threatening the

very life of the state.

ii. Discussed in Article 4 ICCPR (refer to other outlineon the Treaties/Articles)


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1. *GET THIS FROMALSTONFALL06.DOC OUTLINE

6. WithdrawalAllowed under certain conditions and known asdenunciation

a. Some IHR instruments contain denunciation clauses.

b.

Straightforward withdrawal is very rare though.c. Withdrawal from a HR treaty is likely to be seen as anadmission that a state is up to no good.

i. Only 2 states have availed themselves successfully

of possibility of denouncement of a HR treaty;Greece (denounced ECHR following a military

coup); and Trinidad and Tobago (denounced both

Optional Protocol to ICCPR and ACHR as a result

of wanting to proceed in execution of death penaltywithout oversight of the Inter-American

Commission).

1.

In both cases, the denunciation would nothave had retroactive effect and, therefore,

these states could not escape liability for

violations committed prior to withdrawal.

d. For HR treaties that dont explicitly allow for denunciation,there is a view that denunciation is simply NOT an option.

e. In contrast to normal international law treaties, rights once

recognized (rather than granted) cannot subsequently bewithdrawn. Suggests a stickiness to IHR commitments,

which cannot be undone even when states desire to do so

formally.

4. SCOPE OF OBLIGATIONS AND THE HOHFELDIAN MODEL

a.

Scope of Obligationsi. Who Has Human Rights?Generally those within a states JD are

generally recognized as a person with HR under IHR law.1. Non-Nationals

a. Dont have to be a national of a state in order to be able to

claim HR against that state.i. Rights of political participation though may

legitimately be restricted to citizens (like voting).

ii. Similarly, non-citizens dont have the same rights to

enter or remain in a state as nationals (though thatdoesnt mean that states have absolute right under

IHR to expel them).

1. Due to special vulnerability to deportation,

non-nationals have unique procedural rightswith regard to deportation.

2. The Unborn

a. ACHR says life beginning at conception while ECHR havefound that a fetus is not a person protected by the right to


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life, and in any case, its right would not automatically

override the rights and interests of its mother.

i. European HR bodies have found complaintsbrought on behalf of a fetus to be inadmissible.

ii. Declined to decide whether the right to respect for

private and family life extends to unborn children.3. Artificial Entities (Corporations & Associations)a. Have standing to make claims on their own behalf before

European Court of HR.

b. UN HR treaties generally protect only individual rights.Though some rights can clearly be enjoyed in conjunction

with other people such as the freedom of association or

minority rightsonly collective right recognized in global

treaty system is that of self-determination.c. Corporations and other artificial entities dont have rights

under the UN treaties, though can organization can submit

a complaint under the Convention on Elimination of AllForms of Racial Discrimination as the representative of a

group of individuals.

i. Inter-American system concerned with rights of

individuals, though complains may be submitted inrespect of those rights by others, such as

corporations or other artificial entities.

d. *Keep in mind that restrictions on rights of corporationsmay inevitably impact severely on the rights of a person

such as a director or shareholder such that the person can

bring a claim of abuse of his or her own rights.

ii. For Which Entities is a State Responsible?1.

Private ActorsState responsible for private actors if that actor is

acting in a governmental capacity, or under its direction and

control, or where it adopts a persons actions as its own.a. Such situations might arise when private contractors carry

out governmental functions, for example.

b. Application of HR within private sphere is now wellrecognized in IHR law.

i. *General Comment 31

2. International OrganizationsA state, which is a member of an

international organization, is not per se responsible for the actionsof that organization under IHR law.

3.

Other Statesa state is responsible for its acts which expose a

person to a real risk of violation of their rights by another state

where that breach was reasonably foreseeable at the time of therelevant act (e.g. deportation when reasonable to believe that

deportation would cause a risk of killing or torture to the person).

iii. Where Do Human Rights Apply?


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1. ECHRNo territorial limit expressed in Article 1 of ECHR +

extraterritorial application of ECHR in certain circumstances

confirmed in a number of cases.2. ACHRArticle 1(1) ACHR requires states to respect and ensure

the rights to all persons subject to their jurisdiction, so as with

ECHR, no territorial limit expressed.3. African Charter on Human and Peoples Rightseffective controlexercised in an extraterritorial context.

4. ICCPRUN treaties logically unaffected by any legal space

argument, given their global reach.a. Article 2(1) requires to respect and ensure ICCPR rights to

all individuals within its territories and subject to its

jurisdiction (thus arguably limits responsibility to a states

territoriy).5. ICESCRExtraterritorial scope of ICESCR is more open to debate

due to current lack of case law under the treaty.

a.

Doesnt contain a provision relating to jurisdiction orterritorial scope.

b. Article 2(1) does mention that states must progressively

realize ICESCR rights through steps taken individually and

through international assistance and cooperation ---> seemsto imply that states should at least refrain from actions

which harm those rights abroad, as such measures are

decidedly non-cooperative.

b. A Hohfeldian Perspectivei. Famous for exposing ambiguity in concept of a right and resolving that

ambiguity with a typology of rights that distinguishes between claims,

liberties, authorities, and immunities.ii.

Hohfeld distinguished different types of rights.

1. Claim rights for example create corresponding obligations.

a. Thus my right to exclusive use of my land entails acorresponding duty of noninterference..you have duty not

to enter upon my land.

2. But property right also entails liberty to use land in a wide varietyof ways (building a house, plant a garden, etc)

a. Correlated to that liberty is a correlative absence of

inconsistent claim rights.

i. You have no right to prevent me from building ahouse or planting a garden.

3.

Some legal rights involve powers over others (employer has right

to control and direct employee actions at work and parents have

authority over their children)4. Immunities from authority - when children reach age of majority or

are legal emancipated, they acquire immunities that disable the

authority rights of their parents for example.iii. Implicit in this discussion is Hohfelds second big idea - which is that each


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kind of right (claim liberty authority and immunity) has a correlative legal

consequence for others.

1. Claim rights have correlative legal duties.2. Liberty rights correlate with an absence of claims.

3. Authority rights correlate with liabilities.

4.

Immunities correlate with absence of authority.c. Four Types of Rightsi. Lists the schema rights and legal consequences. P is party with right, Q is

person or group on whom the right has a legal effect, X is the object of the

right.

1. Claim Rightsa. Rights Relation: P has claim against Q to X.

b. Correlative Relation: Q has a duty to P to X.

2. Liberty Rightsa. Rights Relation: P has a liberty against Q to X.

b. Correlative Relation: Q has no claim against P to not-X.

3.

Authority Rightsa.

Rights Relation: P has authority over Q to X.

b. Correlative Relation: Q has a liability to P to X.

4. Immunity Rightsa. Rights Relation: P has an immunity against Q to X.b. Correlative Relation: Q has a disability (no authority)

against P to not-X.

d. Moral and Legal Rightsi. Hohfeld was interested in legalrights, but we can extend his scheme to

moral rights.

ii. If I have a moral claim right to performance of a promise, you have

corresponding moral duty to perform.iii.

Of course many legal rights are identical to (or substantially the same as)

similar moral rights.

1. Contract, for example, create both moral and legal obligation.2. Some moral rights, however, may not be reflected in the law.

a. Example: I may have moral obligation not to discriminate

on the basis of race when letting someone in my home, butat the same time have a legal liberty right to engage in such

discrimination.

5. PRINCIPAL SUBSTANTIVE RIGHTSa.

Categories of Rights and the Principle of Equality, and Non-Discrimination

i. Categories of Rights1.

Economic, Social, Cultural Rights/Civil, Political Rights

a. Economic/Social/Cultural include rights to adequate

standard of living, education, and work.b. Civil/Political include freedoms of thought, expression,

association, and assembly, and the rights to liberty and a

fair trial.


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c. Differences seen between ICCPR and ICESCR reflect the

differences in rights.

i. ICESCR Article 2 provides for theprogressive

realizationof these rights and acknowledges the

constraints due to limits of available resources

ii.

ICCPR Article 2 prescribes the obligation to respectand ensure these rights as an immediateobligation.iii. Distinguish by contrasting concept of freedom

rights with that of welfare rights or by referring to

duties of the state NOT to intervene as opposed toduties to take POSITIVE measures. (doesnt apply

across the board though, and no strict dividing line

between these two types of rights)

1. The economic/social/cultural rights aresometimes seen as aspirations and are

considered much less part of the HR

package.a.

This is changing over time to

become more accepting and pursuant

regarding ensuring these

economic/social/political rights toindividuals in a IHR law context.

2. Rights of Individuals/Rights of Collectives

a. Focus normally is on individuals. Although they may worktogether and become a group, it is the individual who is the

beneficiary of the rights.

3. One-Dimensional/Composite Rights

a. More complex in nature (like right to self-determinationand development, and right to peace) than other rights

like to a fair trial, or expression.

i. These arent rights inherent in the human person.Their realization depends on

political/economic/social, and cultural policies

deployed by national and international organs andinstitutions.

1. These rights dont lend themselves to

enforcement by legal authorities.

a. Gross violations of these rightsthough may incur state responsibility

as well as civil responsibility of other

major actors, if they amount to

aggression, genocide, or crimesagainst humanity, even criminal

responsibility of natural persons.


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i. May be tested in political or

judicial settings in case of

their breach or gross denial.ii. These rights are interrelated and intersected.

iii. Indirect Protection of Economic, Social, and Cultural Rights Through

Civil and Political Rights1. Invoked civil and political rights ----> protected ECSR2. Right to life ---> rights to health/food/water/education

3. Freedom from torture/degrading trtment --> right to health/housing

4. Right to property ---> right to social sec/housing/land of indig.ppl5. Protection of child ---> rights to health/food/education

6. Freedom of mvmnt/residence ---> rght to housing/land of indig.ppl

7. Freedom of assoc. ---> right to form/join trade unions + collec barg

8. Freedom from forced labor ---> right to work/fair conditions

iv. Core Rights1. Certain HR more important than others.

2.

Reflected in ICCPR, ECHR, and ACHR, which suggests certainset of core rights exist from which no derogation is permitted, not

even during times of emergency. (ICCPR ones listed below)

a. Right to life

b. Prohibition of torture or cruel, inhuman, or degradingtreatment or punishment

c. Prohibition of slavery

d. Prohibition of imprisonment because of inability to fulfill acontractual obligation

e. Principle of legality in criminal law

f. Recognition of everyone as a person before the law

g. Freedom of though, conscience, and religion3.

With development of international criminal law, there is duty upon

states to carry out effective and prompt investigation and to

prosecute and punish perpetrators, as well as providing effectiveremedies to victims, including reparation for harm suffered.

a. Case law makes it clear that when core rights are violated

or at stake, urgent preventive action by way of provisionalor interim measures is called for in order to avoid

irreparable harm to persons.

v. Equality and Non-Discrimination1. Difference Between Formal and Substantive Equality

a. In many contexts, formal equality hasnt helped people in

disadvantaged situations.

b. Push towards an adoption of substantive equality which

takes into consideration plurality, difference, disadvantage,and discrimination.

c. Genuine equality between women and men can only be

achieved if both formal and substantive equality are fullyrealized.


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d. The focus on equality as consistency (formal) has many

problems:

i. Since it is not concerned with outcome, it doesntmatter whether two parties are treated equally well

or equally badly. (e.g. OK for a city closing all its

swimming pools rather than open its whites onlypools to black people).ii. Inconsistent treatment can only be demonstrated if

the complainant can find a comparably situated

person who has been treated more favorably.1. For a woman in a low paying position

though it may be hard to find a man doing

the same job.

iii. Treating people apparently consistently regardlessof their differing backgrounds may have a disparate

impact on particular groups.

e.

Focus should be on equal outcomes or equal benefits.f.

2 main variants of substantive equality: 1) equality of

opportunity; and 2) equality of results

i. According to 1 ---> true equality can only be

achieved if people are not only treated equally butalso given the same opportunities.

ii. According to 2 ---> equality of results goes further

than this and aims to achieve an equal distributionof social goods such as education, employment,

healthcare, and political representation. Recognizes

that removing barriers does not guarantee that

disadvantaged groups will in fact be able to takeadvantage of available opportunities.

g. These differing conceptions of equality find their reflection

in different forms of regulation.i. Formal = conceptual basis of the requirement of

equality before the law and prohibition of direct

discriminationii. Substantive = prohibition of indirect discrimination.

2. Equality and Non-Discrimination in International Law

a. Foundational significance of equality is reflected in the fact

that it is proclaimed in the very first article of the UDHR ---> all human beings are born free and equal in dignity and

rights.

b. Sources:

i. ICCPRii. ICESCR

iii. ICERD

iv. CEDAWv. CRPD


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vi. CRC

vii. ICRMW

c. The only international HR treaties without explicit non-discrimination clauses are:

i. UNCAT

ii.

CPED3. Subordinate v Autonomous Normsa. Subordinate norms are non-discrimination provisions only

in the enjoyment of rights and freedoms otherwise set forth

in the respective instrument.b. Autonomous norms guarantee non-discrimination not only

in the context of other rights but in general.

4. Prohibited Grounds of Distinction

a. Obvious ones like gender, race, etcbut grounds such asmembership of a particular group, holding certain beliefs,

and national or social origin are outlawed by most human

rights treaties.i.

What is seen as unacceptable though can change

over time.

1. Discrimination may be

intersectionalbased on a combination ofcharacteristics that form an individuals

identity rather than a single ground.

b. Equality and non-discrimination norms vary widely in theirapproach to defining the prohibited grounds of distinction.

i. A first type of norm provides for ageneral

guarantee of equality, without specifying any

particular prohibited grounds.ii.

A second category of norms uses a diametrically

opposed approach; these norms contain an

exhaustive listof prohibited grounds.iii. A third category (middle ground) which contain a

list of prohibited grounds but one that is open-

ended. (e.g. prohibited on anygroundsuch as____)1. As a consequence, even distinctions made

on grounds that are not explicitly listed may

engage these provisions.

2. ECHR sometimes does not even find itnecessary to state the particular ground of

distinction involved when considering a case

under Article 14 ECHR.

5. Direct and Indirect Discriminationa. Direct Discriminationmeans that a person is treated less

favorably than another in a comparable situation.

i. In other words, when a person on account of one ormore of the prohibited ground, is treated less


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favorably than someone else in a comparable

circumstance.

ii. The complaint must show, first, that others havebeen treated better because they do not share the

relevant characteristic or status, and second, that

these others are in a comparable, or analogous, orrelevantly similar, situation.1. In practice, IHR bodies often ten to merge

the comparability test with the test for

whether there is an objective justification forthe difference in treatment.

a. Example of DD: members of a

certain ethnic group are denied

access to a public facility, such as aswimming pool, which is open to

everyone else. (most of the time

though, it happens covertly in thatthe discriminating party will not

admit that the difference in treatment

was based on a prohibited ground,

thus making it difficult for thecomplainant to provide sufficient

evidencealso hard to identify a

person in a comparable situationsometimes).

b. Indirect Discriminationmeans that an apparently neutral

provision or practice de facto disadvantages one

person/group compared to others.i.

Includes practices or policies that appear to be

neutral or fair but adversely affect a higher

proportion of people of one specific group. It canoccur even when there is no intention to

discriminate.

ii. In other words, occurs when a practice, rule, orrequirement that is outwardly neutral(not based

on one of the prohibited grounds of distinction) has

a disproportionate impact on particular groups

defined by reference to one of these grounds.1. Thus, although there is no difference in

treatment, due to structural biases, treating

unequals equally lends to unequal results.

6. Discriminatory Intentiona. In some legal systems, such as USA, complainants need to

show a discrimination intention or purpose to establish

discrimination. There is no such requirement under IHR


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law; the reason why someone has been treated less

favorably is irrelevant.

b. That both intended and unintended discrimination areprohibited under IHR law is apparent from the explicit

definitions of discrimination contained in some of the HR

treaties.i. Indirect discrimination is often equated withunintended discrimination.

ii. Conversely, normally assumed that where there is

direct discrimination, there is a discriminatoryintention.

1. Although true that these concepts often

correlate, not always the case. (like when

you discriminate to protectwhile neutralcriteria may amount to intended indirect

discrimination).

7.

Justified and Unjustified Distinctions (The Justification Test)a.

Once a discriminatory effect is proven, the burden switches

to the State to justify its policy by proving that it is

necessary to achieve a legitimate aim.

i. In cases of racial discrimination, justification mustbe interpreted as strictly as possible.

b. Two part test, requiring that any difference in treatment

must:i. Pursue a legitimate aim

ii. Be proportionate

c. The test is very similar to the test used in the context of

other rights to assess the permissibility of limitations.d.

Has been adopted by most other HR bodies (created by

European Court).

e. First part of the test is not very hard for states to meet --->most distinctions can be argued to pursue some aim that

qualifies as legitimate (e.g. the protection of public order or

tailoring education system to childrens differing learningcapabilities).

f. Second part is more difficult to satisfy ---> wide range of

factors need to be considered including suitability of

distinction to achieve aim pursued, availability ofalternative means, question of whether disadvantage

suffered by the affected individuals or groups is excessive

in relation to the aim.

i. While this assessment inevitably turns on specificfacts of a case, IHR bodies have been consistent in

their characterization of certain reasons as not

sufficient to justify differential treatment including,among others:


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1. Mere administrative inconvenience

2. Existence of a longstanding tradition

3. Prevailing views in society4. Stereotypes

5. Convictions of the local population

8.

Standard of Reviewa. The stringency with which HR courts or bodies reviewexistence of a justification varies according to a number of

factors.

i. Certain grounds of distinction generally regarded asinherently suspect and therefore require particularly

strict scrutiny.

ii. Grounds attracting highest degree of attention and

most likely to be declared unjustified are: race,ethnicity, sex, and religion (all suspect

classifications).

1.

Any distinction based on one of the groundsexplicitly listed in Article 26 of the ICCPR

(above) places a heavy burden on State to

explain the reason for the differentiation, but

that does NOT seem to mean thatdifferential treatment on grounds other than

race, sex, and religion are subject to the

same intense scrutiny.2. Any distinctions based on nationality,

illegitimacy, and more generally,

membership of any particularly vulnerable

group in society that has sufferedconsiderable discrimination in the past (like

those with HIV or disabilities) should be

treated as inherently suspect.iii. These lists are not fixed and can changeas

international law on these matters develops

(disability, sexual orientation and age seem to beheading in the direction of being classified as

suspect).

iv. Apart from ground of distinction, intensity of

review may also depend on other factors (mostcourts tend to apply a lenient standard as far as

matters of social or economic policy are concerned

whereas classifications affecting fundamental

individual interests entail particularly strictscrutiny).

1. Furthermore, generally more difficult for

states to justify direct rather than indirectdiscrimination.


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a. *Declaration of Principles on

Equality (an important but non-

binding document signed bynumerous HR and equality experts)

states that direct discrimination may

be permitted only veryexceptionally.9. Evidence and Proof

a. According to established HR jurisprudence, it is up to the

individual complaining of discrimination to establish adifference in treatment or outcome, the ground of

distinction, and the existence of comparably situated

groups. Having done so, the burden of proof shifts to the

state to show that there is a justification for the distinction.b. Complainants may find it very difficult to prove that a

neutral measure has a disproportionate impact on particular

groups ---> therefore, ECHR has held that less strictevidentiary rules should apply in these cases: statistics

which appear on critical examination to be reliable and

significant may be sufficient prima facie evidence of

indirect discrimination.10.Positive Action

a. As with any other HR, right to equality and non-

discrimination entails state obligations of different types.i. Obligation to respectrequires states to refrain from

any discriminatory action and to ensure that all their

laws and practices comply with the right to non-

discrimination (according to jurisprudence of theUN treaty bodies, this means that states must

introduce comprehensive legislation prohibiting

discrimination in fields such as employment,education, healthcare, housing, and the provision of

goods and services.

1. Conclusion supported by various provisionsin the respective HR treaties themselves.

b. An exclusively prohibitory approach is severely limited in

that it focuses on discrimination understood as individual,

isolated events that can be remedied through penalizing theperpetrators and compensating the victims (even though

discrimination is often the consequence of deeply

embedded patterns of disadvantage and exclusion that can

only be addressed through changes to social andinstitutional structures).

i. Accordingly, it is now well established in IHR law

that it is not sufficient for states to have anti-discrimination legislation in placeinstead they


23/42

also have an obligation to promote, guarantee, and

secure quality by taking proactive steps to eliminate

structural patterns of disadvantage and to furthersocial inclusion ---> this obligation is often referred

to as the duty to take positive action, covers a

huge variety of legislative, administrative, andpolicy measures, ranging from restructuring ofinstitutions to the provision of reasonable

accommodation for individuals in particular

circumstances, from educational campaigns to theuse of public procurement to promote equality, and

from the mainstreaming of equality issues in

public policy to encouraging participating of

affected groups in relevant decision-makingprocesses.

c. Important aspect of positive action = affirmative action

programs (in international law called special measures ofprotection) ---> aimed at specifically correcting position of

members of a target group in one or more aspects of their

social life, in order to obtain effective equality.

i. Usually includes preferential treatment of membersof a previously disadvantaged group over others in

the allocation of jobs, university places, and other

benefits (often referred to as positive or reversediscrimination).

b. Civil and Political Rights: Principal Legal Instrument: ICCPR

c. Integrity of the Person

i. Respect for Human Dignity

1.

Respect for human dignity is the one explicit underlying principle

of the International Bill of Human Rights. Invoked in UDHR,

ICESCR, and ICCPR.

2. The prohibition of torture and ill-treatment and the right to life

both have an immediate link to the principle of human dignity.

ii. The Right to Integrity of the Person

1. The prohibition of torture and ill-treatment and the right to life are

at the core of the motion of integrity of the person.a. Article 5 ACHR, for example, guarantees the right to

human treatment, providing in its first paragraph everyperson has the right to have his physical, mental, and moral

integrity respected.b. The link between the right to humane treatment and

personal integrity is established.

i. Same is true for the link between the right to life

and integrity of the person.

1. Thus, Article 4 ACHPR says the right ofevery human being to respect for his life


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and the integrity of his person. (Herethis

link is essential)

iii. Freedom from Torture and Ill-Treatment

1. UDHR Article 5 discusses this.

2. Verbally inspired by the prohibition of cruel and unusual

punishments in the English and American Bill of Rights3. The reason for this being introduced was the Nazis use of torture.

a. Related concerns included the use of harmful and painful

medical experiments, such as those conducted by the Dr.

Mengele.

b. Expansive, non-technical language of the prohibition

displays the breadth of concern.4. After being included in UDHR, found its way uncontroversially, in

almost identical language, to the ICCPR and the principal regionaltreaties.

5. That the use of torture may not have been such an aberration

became clear in the 1970s when Amnesty International published areport documenting the practice of torture in many countries from

all regions around the world and led a campaign on the issue.a. UN responded first in standard setting, then in area of

developing an institutional response.

i. Also activity at the regional level to the same effect.6. Institutional Output includes: UN Special Rapporteur on the

question of torture, the establishment of the Committee againstTorture under the UN Convention against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment (UNCAT), and a

Sub-Committee on the Prevention of Torture created by the

Optional Protocol to UNCAT (UNCAT-OP)

7.

Sourcesa. ECHR, ICCPR, ACHR, ACHPR, UNCAT, Key UN soft

law (page 176).

b. Also treaty provisions in field of international humanitarian

law that prohibit torture, cruel treatment, inhuman

treatment, and humiliating and degrading treatment.

i. As with HR treaties, terms are undefined.

c. International Criminal Law also covers, among other

aspects, crimes against humanity and war crimes.

i. Torture and other forms of ill-treatment mayamount to war crimes.

d.

Case law of International Criminal Tribunal for the former

Yugoslavia and Rwanda, also provide helpful guidance in

determining the normative content of the right to be freefrom torture and ill-treatment.

e. Rome Statute of the International Criminal Court (ICC

Statute) has both codified crimes against humanity and war


25/42

crimes and provided definitions for some components,

including torture.8. Legal Status

a. This is a norm of contemporary international law.

i. Rule is stated in absolute terms.

ii.

No exceptions to this prohibition and non-derogable(not even the ticking time bomb situation) even intime of war or public emergency.

iii. States do not claim a right to torture.

b. It is a rule ofjus cogensand cannot be modified or limitedby treaty.

c. All that remains unsettled is whether the prohibition of

other forms of ill-treatment have the same status.

i. American Restatement doesnt distinguish and mostof the other sources cited focus on torture, without

necessarily excluding other forms of ill-treatment.

9.

Componentsa.

Drafted broadly so as to avoid narrow or technical

interpretations.b. Cases dealing with prisoners began breaking down the

prohibition into its components.

c. Definition of torture and cruel, inhuman, and degrading

treatment or punishment

i. 3 Core Elements:

1. Pain or suffering that must be severe; it may

be physical or mentala. No requirement for aggravation of

pain or suffering.

i.

*Court continues to

distinguish between inhuman

treatment and torture. Littleguidance as to criteria for

inhuman treatment.2. It must be inflicted for a certain kind of

purpose, that is, the sort of public purpose

traditionally associated with torture; anda. The purpose is the only

distinguishing element betweentorture and inhuman (or cruel)

treatment.b. *Article 7 ICC does not have the

purposive element and definestorture as a crime against humanity

(probably explained because crimes

against humanity can be committedby unofficial groups and thus the


26/42

attribution of motivation becomes

more difficult than in respect of

states or other official constitutedbodies).

i. Also limited to persons in

custody or under control ofaccused thus implicitlyassigning some public

purposive context.

3. It must be inflicted by or under the aegis ofpublic officialdom.

a. Not found in ICC related definitions

(as crimes against humanity arent

necessarily committed by publicofficials in the sense of state

officialsa party to an armed

conflict may well not be the state).i.

However, it must have

sufficient elements of

organization such as to

endow it the status of a partyto an armed conflict within

the meaning of international

humanitarian law.

ii. Similarly, a crime against

humanity must also be

committed in the context of

an attack against a civilianpopulation.

iii. *This institutional element

should be seen as substitutingfor the public official

requirement, as is the case in

respect to war crimes.

d. Specific Practices

i. Like explicit and implicit threats of torture and

death in circumstances where threats were credible.

ii. Any treatment that would amount to torture but wasnot inflicted for a public purpose.

1.

Unnecessary use of handcuffs and restraints

may amount to prohibited ill-treatment, as

can unnecessary or oppressive stripsearching, and displaying an alleged terrorist

in prison garb


27/42

iii. Those in detention at high riskbecause of things

like possibly having pertinent information that they

want to use torture to get out of you.

iv. Also not having access to lawyer or being able to

see outsiders like family. (investigative and remand

and post-conviction (condition of detention andnature of punishment) phases of detention all poserisks). (page 181) ---> each phase raises issues.

1. UN standard Minimum Rules for the

Treatment of Prisoners.

a. Extensive treaty body authority

finding various forms of corporal

punishment to violate the

prohibition.

10.Types of Obligations

a. Primarily a negative obligation. State required to

REFRAIN from engaging in practices concerned, eitherdirectly through its agents acts or indirectly by its agents

omissions when there is a duty to act. (latter dimension can

be understood as positive in that it arises to avoid the

circumvention of the rule by simply blaming acts on others,in circumstances in which the acts may well have been

committed with a nod and a wink from state authorities.

(because such collusion is hard to prove, other positiveobligations have been developed).

b. Where State has grounds to believe torture has taken place,

must initiate an effective investigation into the situation

i. Istanbul Principles

ii.

Also obligation to prosecute people (not just

prosecute when these facts of torture are brought

up).

iii. Cant grant amnesties to people responsible for

committing torture.c. Regardless of jurisdiction where torture took place, stats

required to submit for prosecution anyone in their jd

against whom there is sufficient evidence of having

committed torture.

i. This applies unless person is extradited to anotherstate wishing to exercise jurisdiction.

d.

Another positive obligation is to refrain from exposing

people to torture or ill-treatment by sending that person to a

country where he or she faces a real risk of treatment inviolation with the prohibition.

e. One factor that may be relevant in making any assessment

is the extent to which the state may be said to have an


28/42

interest in the perpetration or continuation of the harm

suffered by the victims.

i. The less the interest, the higher may be thethreshold to attribute responsibility to the state.

11.Relationship With Other Human Rights

a.

Fair trial...cant get evidence by coercion from ill-treatmentor torture.

b. Libertyprovides essential guarantee against prohibited

ill-treatment.

c. Arbitrary detention may amount to a violation of of ill-treatment (if prolonged and under certain circumstances).

i. Can also bring up right to life in this case.d. Death and right to life.

iv. The Right to Life

1. Dealt with very early and summarily in UDHR (Article 3).

a. It is the first substantive right, after the Article 2

affirmation of the principle of non-discrimination.b.

It was not further developed partly because a lack of

consensus as to what issues it covers (notably the death

penalty).

2. Considered the supreme human right and the fountain fromwhich all human rights spring.

3. Treating giving effect to this arent couched in the same absolute

language as those prohibiting torture.

4. Typically states no one shall be arbitrarily deprived of life.

a. Warfare is most obvious example and killings committed

lawfully under IH law will not in principle be considered as

violating the right to life.

b.

Sometimes required to take life too, mainly to protect life

of others.

c. Death penalty creates problems for this.

5. Work to campaigns focus on specific situations, mainly death

penalty. Some soft law enacted mainly in law enforcement life

deprivation situations. UN Commission on HR in 1982 alsomandate of Special Rapporteur on extrajudicial, summary, and

arbitrary executions.6. Sources:

a. Article 6 ICCPR

b. Article 4 ACHR and ACHPR

c.

Article 2 ECHRi. All ^^ make provision for death penalty. Although

many of them have contemplated getting rid of thedeath penalty.

d. Soft Law Sources (including UN Basic Principles on Use

of Force and Firearms by Law Enforcement Officials, UNPrinciples on the Effective Prevention and Investigation of


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Extra-legal, Arbitrary, and Summary Executions, and UN

Social Councils Safeguards guaranteeing protection of the

rights of those facing the death penalty). (EOSOCSafeguards)

7. Legal Status:

a.

Customary International Law.b. Non-derogable in treaties that contemplate derogation.

c. Prohibitions against murder arejus cogensrule.

d. **Prohibition of unnecessary and disproportionate killings

deserves to fall into the same category.

8. Scope: Beginning and End of Life

a. Question is ---> when does life begin?i. Article 4 ACHRsince conception.

b. Euthanasia, and assisted suicide an issue too.

i. Article 2 ECHR --> no right to die explicit.

1. Yet there is issue of dignity and possible

degrading treatment if one is denied theoption.

a. European Court refused to accept

that denial of this right infringes

upon Article 3.

9. Componentsa. Protection against killings by security forces

i. Diff bodies use diff terms to describe unlawfulkillings by agents of authority (extra-legal or

extrajudicial)whenever there is intentional resort

to outright killings of those considered undesirable,

considered murder by any definition and is at thecore of the prohibition of arbitrary deprivation of

life.

ii. It is generally accepted that LE measures mustconform to the principles of necessity and

proportionality.

1. Article 2 ECHR creates some problems withthis.

2. Lethal force may be used to protect life

(seen in UN Basic Principles on Use of

Force and FirearmsPrinciple 9)

a. Practice of treaty bodies is consistent

with this ^^.b. Protection against death penalty

i. Although prohibition of torture and ill treatment, noconsensus on Death Penalty.

1. This reflects that IL is not a system that

operates by majority rule. State practice is akey element and as long as a substantial


30/42

minority of states maintain the death

penalty, especially states as influential as

China, India, and USA --- international lawwill have to reflect that reality.

2. All the human rights treaty norms

guaranteeing the right to life, except Article4 ACHPR, contemplate the possibility of thedeath penalty.

a. Since any treaty provision has to be

interpreted in the context of thetreaty as a whole, means it is not

possible to interpret the provisions

on treatment of prisoners without

reference to those on the right to life.

b. The HRC has indeed made that point

that, but for the death penalty

provisions of Article 6 ICCPR, itwould find the death penalty to

violate Article 7.3. The fact that so many want to abolish,

makes it hard for the other parties to suggestits not a HR issue.

4. UN GA more recently adopted a view that

calls on states that retain the death penalty toadopt moratoria on its use.

5. As for abolitionist protocols themselves, all

but one envisage commitments that permit

states to carve out an exception for wartimesituations (few have done so).

a. The exception is Protocol 13 of the

ECHR, adopted to fill gap ofProtocol 6.

b. Adherence to Protocol 6 is a

condition of membership of theCouncil of Europe47 country area

of Europe is now essentially a death-

penalty-free-zone.

6. States who permit cantjust do it wheneverthey want and however they wantthere are

limitations.ii. Substantive Limitations

1. Article 6(2) ICCPR and Article 4(2) ACHR,requiring that imposition of the death

penalty be limited to the most serious

crimes.


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a. First paragraph of ECOSOC

Safeguards endorses the notion of

the most serious crimes.

2. There is no definitions of what elements

would place a crime among the most

serious.a. ECOSOC Safeguards are helpfulhere. Must be only for serious crimes

with lethal or other extremely grave

consequences.

3. Further substantive limitations come from

Article 6(2) and 15 ICCPR, which state that

both the crime and prescribed punishment

must not be retroactive (must be provided bylaw at the time of the commission of the acts

in question).

4.

Also Article 4(2) ACHRDP may not beextended to crimes to which it does not

presently apply. While Article 4(3) ACHR

prohibits reintroduction in states that have

abolished it.

a. Possible to interpret Article 6(2)

ICCPR in the same way.

b. Article 4(4) ACHR also prohibits useof DP for political offenses or

related common crimes.iii. Procedural Limitations

1. Main one is that DP may only be imposedafter a fair trial, including a right of appeal.

a. Article 6, 14, 15.

2. General assembly called on states to respectas a minimum thesearticles.

3. HRC has made clear its view that this means

that not only is Article 6 non-derogable, butalso 14 when it comes to application of the

death penalty.4. Right to appeal explicitly guaranteed in

Article 14(5) ICCPR, so this is a violation ofnot only that provision, but also Article 6.

5.

ECOSOC Safeguards contain the same

guarantee.

a. Article 6(4) ICCPR and Article 4(6)ACHR require the possibility of

submitting a clemency petition.


32/42

6. Also, must be carried out with the minimum

possible suffering to the person so as not to

violate the prohibition of ill-treatment.

iv. Personal Limitations

1. Under various articles in various treaties,

may not be imposed upon persons under theage of 18 (190).

a. Counts at the time of the offense.

b. May not be carried out on pregnant

women or recent mothers either(according to ECOSOC Safeguards).

c. Also immunizes those who are

insane or mentally ill.

d. Also not anyone over 70 at the timeof the offense.

10.Types of Obligation

a.

This is primarily a negative obligationto the extent thatthere is no treaty obligation prohibiting the use of the DP,

states are simply obliged to refrain from having recourse to

it when not respecting the legal limitations that apply to it.

b. Other deprivations of life involving the intentional killingof people by public authorities are to be avoided, if they do

not meet the criteria of necessity or proportionality already

considered here.

i. Three provisions guaranteeing right to life stipulate

that the right shall be protected by law, which has

connotation of positive obligation.no, just says

that they need to investigate apparent unlawfulkillings.

c. Thus there have been numerous findings of state violations

of the right to life because of absence of an effectiveinvestigation, even when killing could not be found on the

evidence to be firmly attributable to the state.

d. As with prohibition of ill-treatment, exposing someone tothe threat of a violation of the right to life is itself a

violation of the prohibition or ill-treatment, as well as

presumably of the right to life.

e. Also evident obligation to protect people from death fromthird parties. (obligation of means not of result).

i.

Question is always whether state did their due

diligence when apprised of circumstances that may

suggest that a persons life required protection.

f. Also, if it is difficult to justify the rules permitting

euthanasia and assisted suicide, it is because of the positive

obligation on states to protect life and the need to avoid


33/42

people being improperly influenced to seek or accept aid in

terminating their lives.11.Relationship with Other Human Rights

a. Prohibition of torture and ill-treatment.

b. Avoid unnecessary suffering (even for DP)

c.

Connection with right to fair trial.d. Notion of security of person.

d. Though, Expression and Assembly

i. The Four Freedoms and Their Relationship

1. Thought

a. Includes freedom of conscience, religion, or belief.

2. Expressiona. Includes freedom of opinion and information.

i. Media freedom is also protected by IHR law asessentially for the enjoyment of freedom of

expression.

3.

Associationa.

Concerns the right to establish autonomous organizations

through which individuals pursue common interests

together.

4. Assembly

a. Protects non-violent, organized, temporary gatherings in

public and private, both indoors and outdoors.

5. All of these are interrelated and fundamental freedoms ofindividuals.

6. Essential for the exercise of all other rights.7. None are absolute in the sense that their exercise may never be

restricted.

8.

IL provides grounds on which each freedom may be required to be

balanced against the rights of others or broader community

interests.

9. Also offers principles to safeguard against abuse of restrictions by

the state.10.Thus, freedom of expression is necessary if freedom of thought is

to be exercise.

a. In turn, freedom of expression has little meaning without

individual having freedom to think and have an opinion.

11.Right to practice or teach a religion includes the freedom topublish religious literature or broadcast religious programs.

a.

Thus in order for religion communities to exist, freedom of

association is essential as is their right to assemble for

religious purposes.12.Freedom of expression essential when people come together to

pursue their interests through other associations, such as trade

unions, political parties, or community groups.13.European Court of HR has defined one of the objections of the


34/42

freedom of association as the protection of opinions and the

freedom to express them.

14.Freedom of expression is essential to the freedom to assemble andthe right to demonstrate over grievances.

a. Thus while each freedom is distinct in theory, in practice

they are all interrelated and interdependent.15.Denials of freedom often occur in context of discriminatorypolicies directed at particular groups or minorities (e.g. religious or

ethnic minorities).

16.Each freedom as defined in International Law, is expressed as afreedom of the individual but also a collective dimension.

17.Freedom of expression includes not only the right of a speaker to

communicate with others but the right of others to hear what the

speaker has to say.18.Be definition, freedom of association or assembly concerns the

collective activities of individuals.

ii.

Limitations1.

In summary, a society which enjoys the freedom under discussions

is not one in which there are NO restrictions on their exercise; it is

rather one in which the boundaries of freedom are openly debated

and democratically resolved under the rule of law.a. Limitations are discussed further as regards to each

freedom by some general principles applicable to all can be

set out here:i. Legality: any limitations on a freedom must be set

down or prescribed in law. A restriction cannot be

legitimate where it is the arbitrary whim of an

official. National law must set out the ground ofrestriction in clear and precise terms.

ii. Legitimate Aim: the interference or restriction

must follow and legitimate purpose, that is, bebased on one of the exhaustive ground of limitation

listed in the international standards which define the

freedom.iii. Proportionality: the restriction must be necessary

in the sense that there is a 'pressing social need for

it and that any measure taken is the minimum

required to achieve the purpose of the limitation in ademocratic society.

iv.

Presumption of Freedom:freedom is the rule, its

limitation the exception. In theSunday Times

Casewhich involved a claim of justified judicialrestriction on the publication of information by a

newspaper, the European Court of HR noted that

freedom of expression is not a right that is to bebalanced equally with the permissible restrictions. It


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is rather a right that is subject to a limited number

of restrictions that must be narrowly construed and

convincingly justified, ultimately to a court. Thusone should start with a strong presumption in favor

of the freedom in question. The onus is on the

authorities in the particular case to show that it islegitimate to restrict it.

iii. Freedom of Thought, Conscience, and Religion1. Found in all the treaty bodies.

2. The predominant focus is on freedom of religion, however, scopeof the right is wideralso protects freedom of thought (right of

individual to have independent thoughts, ideas, and beliefs).

3. Freedom of conscience also explicitly recognized and protected.

4. Duty on state to respect liberty of parents or guardians to child todetermine religious and moral education of their children in

conformity with their own convictions.

a.

This childs right to freedom of thought, conscience, andreligion is provided for in the Convention on the Rights of

the Child (CRC).

5. Freedom of Religion or Belief

a. Freedom to choose religion/belief

b. Freedom to change/beliefc. Freedom to choose these things free of coercion.

i. Freedom to spread it and seek to persuade others toconvert is protected though.

d. No requirement by IL that there should be separation

between religion and state.

i. EC of HR said though that in order for democracyto function probably, these need to be separate.

e.Limitationsinclude:

i. Freedom of thought/conscience/religion/or beliefmay never be compelled to be revealed (like the

requirement to swear a religious oath applies here)

ii. Manifestation of religious belief may be limited onthe grounds set out in ICCPR 18(3)public safety,

order, health, or morals or the fundamental rights

and freedoms of others.

1. Sometimes includes religious clothing andsymbols.

a.

Not limited to Islamic dress although

this is most pertinent issue.

6. Freedom of Opinion and Expression

a. Sources

i. This freedom is contained in Article 19 UDHR,

Article 19 and 20 ICCPR.


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1. Detailed and authoritative guidance on

states obligations under these provisions

can be found in the Human RightsCommittees General Comments 34.

2. Similar but not identical formulations of the

freedom can be found in regional HRinstruments.3. Also important provisions in the UN

Convention on the Elimination of Racial

Discrimination (ICERDArticle 4) whichconcerns the prohibition of racist speech and

organizations.

4. CRC recognizes a childs right to freedom

of expression.

a. Since 1993 there exists position of

Special Rapporteur on the promotion

and protection of the right tofreedom of opinion and expression,

who is now appointed by the HR

Council.

b. Scopei. Described as touchstone of all rights.

ii. Considered inseparable from freedom of thought,

association, and assembly, essential for enjoymentof all rights, including economic/social/cultural

rights.

1. Vital freedom for development, the

functioning of democracy, and moderneconomies.

iii. Article 19 UDHR provides foundation for fuller

definition of this freedom.

iv. Although this text was drafted over 60 years ago, it

powerfully expresses the idea of freedom of speech

in todays era of the internet and other digitalcommunications technologies.

v. Freedom of expression is an individual right.

1. Means freedom without interference or

penalty, to speak ones mind.

2. ^^It also has its collective components.a.

Humans communicate with others,

not with themselves.

i. Freedom includes right tohear other views and to

exchange ideas and

information with others.


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ii. Also includes right to inform

oneself and to be informed.

Hence the crucial importanceof all media as means of

communications.

3.

Freedom of OpinionArticle 19 ICCPRguarantees freedom of opinion as well asexpression. Humans have differing and vast

amounts of opinions on all kinds of subjects.

Article 19(1) provides that everyone isentitled to hold such views without

interference. No one can be forced to think a

particular way, nor should anyone suffer

prejudice, discrimination, or expressionbecause of their views or opinions. Freedom

to hold opinions may not be restricted. HR

Committee says it is a right to which theCovenant admits no exception or

restrictions. In other words, people may

think what they like.

4.Freedom of ExpressionArticle 19(2)ICCPR sets out positive meaning of freedom

of expression under international law. Scope

is extensive. Right defined as includingfreedom to seek, receive, and impart

information and ideas of all kinds. Freedom

to seek includes active and investigative

journalism in public interest. Freedom toreceive has been interpreted by the EC of

HR as including right of public to be

informed and duty of mass media to impartinformation to public. Freedom to impart

extends to every kind of information and

idea expressed through any media of choice,either orally, in writing or in print, or in

form of art. Freedom is applicable to all

information (those that are and arent

offensive). All forms of expression areprotected (includes spoken and written

language as well as art and images). Manner

in which they are transmitted is also

protected. In 2011 a Joint Declaration onFreedom of Expression and Internet was

adopted by UN Special Rapporteur on

freedom of expression and SpecialRapporteurs on freedom of expression from


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Organization of American States, the

Organization for Security and Cooperation

in Europe, and African Commission onHuman and Peoples Rights. Declaration

sets out that freedom of expression must

apply to the Internet same way it applies toother media. NO human to access theInternet (some argue though with its

increasing popularity States have positive

obligation to promote and facilitate right tofreedom of expression by way of access to

Internet). Freedom of expression doesnt

stop at borders of the state (this was

intended to outlaw forms of censorship suchas Cold War practice of radio jamming of

foreign broadcast signalsso completely

blocking access to Internet during times ofsocial unrest, constitutes interference with

the right).

5. Media FreedomNo explicit recognition or

protection offered to the press and othermedia in international HR standards,

although such is often to be found in

national laws and constitutions. Atinternational level, freedoms and

responsibilities of press have been

developed from guarantee of freedom of

expression of individual. Protection affordedunder HR standards to all media is justified

because of role in making peoples freedom

of expression meaningful and theircontribution to democratic life (all such

means of communication provide access to

news and opportunities to exchangeinformation and ideas). International and

national standards on freedom of expression

have largely been shaped by struggle for

journalistic and artistic independence againstgovernment licensing and censorship of

media (this struggle continues in different

parts of the world). Media freedom is

inseparable in practice from enjoyment offreedom of expression in society (media has

watchdog role on exercise of power in

society, and free media facilitates politicaldebate). States therefore must protect


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journalists from threats, violence, or other

acts of harassment that stop them from

fulfilling this essential role. HR bodiesadopted expansive definition of term

journalists (including bloggers,

professional full-time reporters, etc).Media is also source of power, includingeconomic power. International standards

speak of medias duties and responsibitilies

(regulation is necessary to ensuredemocratic accountability and to guard

against excessive concentration of

ownershipregulatory regimes, whether

self regulated or established by legislation,will differ according to different media.

Thus, public, private, or community

broadcasting systems and the print mediawill often be subject to different regulatory

codes (but all such regulatory systems

should protect editorial freedom, promote

plurality of the media, and operateindependent of government).

6. Freedom of Information LawsMost

striking advance in norms on freedom overrecent years have been growth of laws

implementing right to access official

information held by governments.

Democracies have come to understand thattransparency affords governments and

public administration legitimacy in eyes of

public. In all regions of the world,governments have established the right to

know through legislation. An access to

information law works on principle ofmaximum disclosure, all official information

should be made public as a matter of

principle, unless there are legitimate reasons

justifying non-disclosure. In 2009, Councilof Europe adopted first international treaty

on access to official documents. *CASE

mentioned page 228.

c. Limitationsif people may think what they like, they maynot always say or write what they like. As opposed to

freedom of opinion, freedom of expression is not an

absolute right. Under Article 19(3) ICCPR its exercisecarries with it special duties and responsibilities (such


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language acknowledges power of media, but also

justification of restriction where it is necessary to respect

rights or reputation of others, and where it is necessary ongrounds of national security, public order, public health, or

morals). If restrictions are applied wrongly or excessively

invoked, they can chill freedom or even eliminate it (thusground such as national security, in the context of counter-terrorism is often misapplied or abused to the detriment of

freedom of expression).

i. Privacymay clash with freedom of expression.While public figures such as politicians and popular

celebrities do have right to private life, it is les

extensive given that they are willingly in the public

arena. Therefore, when considering whether correctbalance has been struck between freedom of

expression and privacy, regard should be had to the

following issues: 1) whether the expressioncontributes to debate of general interest; 2) how

well-known person concerned is; 3) nature of the

activities that are subject of report and how they

link to role of person concerned; 4) prior conduct ofperson concerned; 5) how information was obtained

and its veracity; 6) content, form, and consequences

of publication; 6) severity of sanctions imposed.ii. DefamationPublishing false statement about

another which damages their reputation is a civil

and often criminal wrong. These laws though which

impose liability for it, can and often do underminefreedom of media to fulfill their function of

informing public and to comment critically on

public affairs. Given importance of free media indemocracy, IHR standards have been directed at

ensuring that national laws on defamation are

applied as narrowly as possible as regards politicalspeech. Robust criticism of government or political

should be tolerated in interests of open debate on

political issues. Increasing trend towards abolition

of criminal penalties for defamatory statementsbased on argument that civil remedies such as

payment of damages is a sufficient sanction and

threat of criminal prosecution has chilling effect on

freedom of expression (this approach garneredsupport of Human Rights Committee).

d. Hate Speechthis presents challenge to all states. Internet

added global dimension to availability of propagandaadvocating violence or hatred of others. Article 20 ICCPR


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and Article 4 ICERD oblige states to criminalize speech

that amounts to war propaganda or that advocates racial

hatred. However, these limitations on expression must becompliant with Article 19*3) and thus be provided by law

and be least restrictive means of achieving the relevant aim.

Use of speech to incite violence is a criminal offense invirtually all states. But to strike acceptable balance betweenright to freedom of expression and restraint on other forms

of objectionable speech is in practice often very difficult.

i. Islamophobia and anti-SemitismIncitement toethic, racial, or religious hostility, hatred, and

discrimination is not protected speech. This and

holocaust denial (anti-Semitism and Islamic attacks)

is a criminal offense in several European states.Reporter said it, was charged, and HRC said this

was a justifiable interference with his freedom of

expression rights under Article 19 ICCPR becauseholocaust denial was a primary vehicle of anti-

Semitism in his State.

ii. BlasphemyCriticism of religion is highly

contested freedom of expression issue at theinternational level. GA and HR Council passed

resolutions (aided by Muslim majority states) to

restrict freedom of expression in order to suppressdefamation of religions. Others though, mostly

Western states, have rejected the need to protect

religious

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