Universal Declaration of Human Rights As Part of Customary International Law
Universal Declaration of Human Rights As Part of Customary International Law
Universal Declaration of Human Rights As Part of Customary International Law
Jus cogens and customary international law are not interchangeable. All
jus cogens are customary international law through their adoption by
states, but not all customary international laws rise to the level of
peremptory norms. States can deviate from customary international law
by enacting treaties and conflicting laws, but jus cogens are non-
derogable.
At the same time, a number of rights are arguably not even part of
customary law and categorising those as part of the jus cogens would be
inaccurate. There is significant debate on the customary position not
only on economic, social and cultural rights such as the right to sociał
security (Article 22), right to rest and leisure (Article 24), right to a
decent standard of living (Article 25), and right to participate in cul-
tural life (Article 27) but also on civil and political rights which include
the right to seek asylum (Article 14) and upon the various facets of the
right to freedom of thought, conscience and religion (Article 18).
ICCPR ICESCR
1. ICCPR represents and protects 1. ICESCR represents and protects
the human rights of the first the human rights of ‘second
generation. generation’.
10. The Covenant follows the 10. The Covenant follows the
structure of the UDHR and structure of the UDHR and the
ICESCR, with a preamble and ICCPR, with a preamble and
fifty-three articles, divided into thirty-one articles, divided into
six parts five parts
11. CP rights 11. ESC rights were deemed expensive and
were cost free required government expenditure
It is, therefore, not surprising that this right was already the subject of
debate quite early in history. To John Locke, the right to property
belonged to the so-called natural rights such as life and liberty, which
human beings could not be deprived of. To the socialist Proudhon, on
the other hand, property was equal to theft. The question was likewise
fundamental in the treatises of Friedrich Engels, but also in the papal
encyclical letterRerum Novarum (1891). Land reform, incentives to
provide people with access to land, housing and wealth, can have
significant benefits. Successful pension schemes in Europe in the 1960s
to 1980s have had a significant impact on the distribution of wealth and
increased long-term security of the population.
Property has been defined in the case-law of both the European and the
Inter-American human rights courts. As such, the concept of property
has an autonomous meaning, often substantially different from national
legislation. It may also include rights which result from rent or lease
agreements and - under certain conditions - benefits from public
relationships, such as public pension schemes.
1. STANDARDS
2. SUPERVISION
Cultural relativism is the assertion that human values, far from being
universal, vary a great deal according to different cultural perspectives.
[6] From my point of view one of the major drawbacks of the theory of
Cultural relativism is the perception of “culture” as something
unchanging and stable. In fact, all types of Cultural relativism, be it
Strong or Weak [7] Cultural relativism, are based on stable conception
of culture, which fails to recognize the flexibility of culture for social
changes and ideological innovations. Whereas, I strongly support the
idea that culture is an ongoing process of historical development,
adaptation and evolution. Opponents of this theory argue that Cultural
relativism can be dangerous for the effectiveness of international
protection of human rights, since the nature of the theory fundamentally
justifies human rights abuses linking to the customs and traditions of the
society. The Indian tradition of sati [8] is a bright example of human
rights violation with cultural bases. An eighteen-year-old Rajput girl
committed sati in 1987 during her husband’s funeral pyre. She was a
university student and her marriage was insisted upon by her parents.
There is no evidence whether she committed sati voluntarily or under
pressure, however this case found a large response among Rajput
society. As a sign of protest many human rights activists, both men and
women, organized marches against the tradition of sati, meanwhile many
others came out for the tradition, claiming that sati is a significant part of
their ethnic culture. They not only made the young girl as a symbol of a
devoted wife, but also erected a shrine in honor of her. The human rights
defenders and activists were branded as Western imperialists who were
superseding old Indian traditions with Western ones. Obviously, the
theory of Cultural relativism leads to the idea that the main social unit is
community, not individual. A question arises, does the community have
rights to impose its will on an individual, or does it have rights to limit
any eliminable right of an individual?
As one of the ancient nations, Armenians have their own unique cultural
traditions and scope of ethics, though our traditions are more flexible to
meet the challenges of time. I do not hesitate to underline that Armenian
traditions are quite humanistic, since they are largely inspired by the
ideology of the Armenian Apostolic Church. One of the greatest
miracles of the Armenian Apostolic Church is that there is no separate
church and separate people, our church and people together are one
whole unity, like a huge “cathedral”. And this “cathedral” carries inside
it all the human values, like conscience, kindness etc.
In our country the trend of extra-judicial killing by the law enforcers has
received a mixed appreciation. On one side, the apparent failure of the
criminal administration of justice to ensure punishment of the habitual
offenders stimulating popular support for the raft measure like extra-
judicial killing by the law enforcers. On the other side, the believers of
rule of law realising the far reaching risk of lawlessness opposing the
idea of deprivation of life in absence of due process. In the backdrop of
huge outcry against the arbitrary deprivation of life by the law enforcers,
this articulation has ventured to come across the legal basis for the
actions and reasoning led by their spokesman soon after each and every
incident.
In Guerrero the HRC gave prior magnitude on the right to life and
strictly prohibited arbitrary deprivation of life except in three
exceptional cases, namely, i) self-defence, ii) to give effect to lawful
arrest, and iii) to prevent escape from lawful custody.
Independent investigation
In the backdrop of the image crisis of the law enforcement agencies, the
home ministry has made departmental investigations in many incidents
of encounter killing with the findings of no irregularity. As a man cannot
be a judge of his own cause, an investigation committee composed of the
members of the home ministry and police will never be trustworthy. An
independent investigation committee free from police and home
ministry, if constituted as per the recent direction of the High Court
Division will be an acceptable solution to sweep the stigma of extra-
judicial killing.
Introduction
2. Human rights are also universal rights. These are those universal
rights which are essential to all human beings entirely because of being
human and it is immaterial where they live. These rights are
fundamental to our existence as human beings and cut across all national
and political frontiers which derive in the equal rights and dignity of all
human beings and simultaneously aim at protecting it. Human rights do
not differ with geography, or history, culture or ideology, political or
economic system, or stage of societal development (Henkin, 1999, p.
122). The normative presumption on universality enshrined in the
UDHR that “All human beings are born free and equal in dignity and
rights” (UDHR, 1948, Article 1) is treated as a binding law in the
international human rights treaties of the UN.
3. Human rights are inalienable as they cannot be transferred, forfeited,
or waived. Human rights are usually realized as the basic inalienable
legal guarantees to which a person is inherently entitled simply as s/he is
a human being (Sepulveda and et. al., 2004, p. 55). Inalienable nature of
human rights refers to human dignity as founding values upon which
human rights are based (Lee, 2008, p. 3).
4. The human rights are indivisible, i.e., all human rights should be
enjoyed by all people at all times and that no one set of rights can be
enjoyed at the expense of others. It also refers to the fact that all human
rights have equal status, and cannot be categorized in a hierarchical
order.
A state can also implement the human rights within its territory by
applying the international human rights law in its domestic courts
though state practice in domestic application of this law varies greatly.
Under international law there are two distinct theories regarding the
status or application of international law in the domestic arena: monism
and dualism. „Monism‟ reveals the notion that global law need not be
included into the domestic legal system. When a monist state becomes
the party of a particular treaty, it automatically becomes a part of the
domestic laws. According to the monist theory, international and
national law are concomitant aspects of the one general system-law in
general (Shearer, 1994, p. 69). In case of conflict between these two,
„international law is said to prevail‟(Dixon, 2007, p. 34). On the other
hand, dualism indicated that international and national legal rule is
separate entities, i.e., strict distinction is maintained between these two
laws with regard to their enforcement. Bangladesh maintains the
dualistic view following the UK, meaning that the provisions of global
instruments are not directly enforceable in domestic courts unless
ratified and incorporated into the domestic law by recognized means
(Alam, 2007, p. 14). The general practice of Bangladesh is that
international treaties do not automatically become part of the domestic
law of this country unless it is incorporated into the domestic
legislations. Consequently, the international treaties are required to be
inserted into the domestic legislation passed by the due procedure and
then it will be part of domestic law (Hosain, 2013, p. 78). The approach
of the Court was reflected in the case of BNWLA vs. Government of
Bangladesh and Others (14 BLC (2009) 703) where the Court
vehemently declared:“Our courts will not enforce those covenants as
treaties and conventions even if ratified by the State, as they are not part
of the corpus juris of the State unless those are incorporated in the
municipal legislation”.The Apex Court of Bangladesh has affirmed a
liberal principle that if the domestic laws are not plain enough or there is
nothing therein, the domestic courts should take into account the
principles of relevant international instruments. The situation of
Bangladesh concerning domestic application of international law is
characterized by lack of case laws, vagueness of constitutional and
statutory provisions, and unwillingness of our judges and lawyers to
refer to the global instruments. Most of the global instruments ratified by
Bangladesh have not yet been included into the domestic law to be
enforced directly in domestic courts and thus, the status of international
law in Bangladesh remains in many ways unclear(Hasanat, 2013, p. 71).
The 1235 procedure which is also called the public procedure was
established by the ECOSOC in 1967 that empowers the Commission and
its Sub-Commission to appoint special rapporteurs, envoys,
representatives or working groups to observe the areas of human rights
violations within states and examine in detail whether there is any
consistent pattern of such violation. For instance, South Africa, Cuba,
Namibia and Rhodesia were the initial states subject to the 1235
procedure. The main aim of this procedure is to conduct public debate
on human rights situations in a state.
The UN has also devised special procedures to deal with specific human
rights issues. The UN Human Rights Council has obligations for the
special procedures, including those originally established by the UN
Human Rights Commission. These procedures include appointments of
special rapporteurs, representatives, independent experts and working
groups that investigate, discuss and report on specific human rights
issues under a country mandate or thematic mandate. Apart from the
above procedures the UN has also devised so many procedures,
undertaken actions, policies and strategies to deal with gross violation of
human rights of individuals through communications, fact-finding
bodies, special rapporteurs etc. It also undertakes programs, study, and
advice in the field of human rights in terms of educating the people
throughout the world exchanging information and dealing with structural
issues.
Concluding Remarks
The notion of human rights and violation thereof is as older as the
creation of human rights. Despite the speedy growth of human rights law
over the years, gross violation of human rights continues to take place
throughout the world where there has been little progress in achieving
universal respect for and observance of human dignity and freedom. In
order to stop this violation, the UN was established that has been striving
to protect and promote human rights since its inception. The struggle for
securing human rights is an ongoing process. While ratification and
accession of global human rights instruments continue to increase,
closing the implementation gap remains a major challenge for the
realization of human rights. The future prospect of enforcement of
human rights depends upon the consolidation and sustainability of the
good governance; the sustainability of the good governance is dependent
on the institutionalization of it and the institutionalization of good
governance is dependent on the rule of a democratic law.
All States parties are obliged to submit regular reports to the Committee
on how the rights are being implemented. States must report initially
within two years of accepting the Covenant and thereafter every five
years. The Committee examines each report and addresses its concerns
and recommendations to the State party in the form of “concluding
observations”.
Contents
COMPOSITION
WORKING METHODS
State Reporting
Individual Complaints
Inter-State Complaints
Urgent Interventions
Complaints of Systematic Violations (Inquiry Procedures)
General Comments
Open Letters and Statements
Thematic Discussions and Conferences
CIVIL SOCIETY PARTICIPATION
Attending Sessions
Accreditation
RESEARCH AND ADDITIONAL SOURCES
COMPOSITION
The CESCR consists of 18 independent experts who are persons of high
moral character and recognized competence in the field of human rights.
Members of the CESCR serve four-year terms and can be re-elected if
re-nominated by State parties to the ICESCR. See ESOCOC Resolution
1985/17, Review of the Composition, Organization and Administrative
Arrangements of the Sessional Working Group of Governmental Experts
on the Implementation of the International Covenant on Economic,
Social and Cultural Rights, 28 May 1985. Further information about the
election process can be found on the Office of the High Commissioner
for Human Rights’ website on Elections of Treaty Body Members.
WORKING METHODS
The CESCR holds two sessions per year: a three-week plenary session
and a one-week pre-sessional working group in Geneva, Switzerland.
The schedule of past and upcoming CESCR sessions is available online,
and the OHCHR maintains a Master Calendar of all UN Member States’
upcoming treaty body reviews.
State Reporting
Initially, a State must make a report on its implementation two years
after acceding to the ICESCR. Following the initial report, periodic
reports are then requested every five years thereafter. In July 2019, the
Chairs of the human rights treaty bodies agreed that the Committee will
adopt a standard eight-year reporting cycle. [IJRC]
The reporting system requires each State party to submit (1) a common
core document, which lists general information about the reporting State,
a framework for protecting human rights, and information on non-
discrimination and equality, and (2) a treaty-specific document, which
accounts for specific information relating to the implementation of
articles 1 to 15 of the ICESCR and any national law or policies taken to
implement the ICESCR. See Committee on Economic, Social and
Cultural Rights, Guidelines on Treaty-Specific Documents to be
Submitted by States Parties under Articles 16 and 17 of the International
Covenant on Economic, Social and Cultural Rights, E/C.12/2008/2, 24
March 2009.
Recently, the Committee made a simplified reporting procedure, also
referred to as “list of issues prior to reporting,” available on a pilot basis
to States parties who are scheduled to submit their third or later periodic
report in 2017. See Committee on Economic, Social and Cultural Rights,
Report on the fifty-second and fifty-third sessions, E/2015/22, 2015. The
Committee may now prepare the list of issues before the State submits
its periodic report, and the State will respond only to the questions raised
in the Committee’s list of issues, constituting its periodic report to the
Committee. See Committee on Economic, Social and Cultural Rights,
Information note for civil society and national human rights institutions.
For more specific guidance regarding the form and content of reports,
the UN Secretary General has published a Compilation of Guidelines on
the Form and Content of Reports to be Submitted by State Parties to the
International Human Rights Treaties. The Office of the High
Commissioner of Human Rights also maintains a list of all the State
party reports.
After States submit their reports, the CESCR initially reviews the report
through a five-person pre-sessional working group that meets six months
prior to the report being considered by the full Committee. The pre-
sessional working group will then issue a list of written questions to the
State party, and the State party will be required to answer prior to
making their scheduled appearance before the Committee.
Individual Complaints
The CESCR may consider individual complaints that allege a violation
of one or more rights protected under the ICESCR if the State
responsible is a party to the First Optional Protocol to the ICESCR. See
Optional Protocol to the International Covenant on Social, Economic
and Cultural Rights (adopted 10 December 2008; entered into force 5
May 2013).
Inter-State Complaints
Article 10 of the Optional Protocol to the ICESCR provides a
mechanism for States to complain about violations of the ICCPR made
by another State. See Optional Protocol to the ICESCR, art. 10. This
procedure for inter-State complaints, however, has never been used.
Urgent Interventions
The CESCR does not have a mechanism in place for urgent
interventions.
Complaints of Systematic Violations (Inquiry Procedures)
The CESCR can also consider inquiries on grave or systematic
violations of any of the rights set forth in the ICESCR. See Optional
Protocol to the ICESCR, art. 11. State parties may opt out of the inquiry
procedure at any time by declaring that the State does not recognize the
competence of the Committee to undertake inquiries. See Optional
Protocol to the ICESCR, art. 11(8).
Additionally, the CESCR has adopted General Comment No. 10, which
comments upon the role of national human rights institutions in the
protection of economic, social, and cultural rights. See CESCR, General
Comment No. 10: The role of national human rights institutions in the
protection of economic, social, and cultural rights, UN Doc.
E/C.12/1998/25, 14 December 1998. More information can be found on
the CESCR’s webpage for Information for Civil Society Organisations.
Attending Sessions
The CESCR also makes available a short period of time at the beginning
of each pre-sessional working group and general sessions to receive oral
information provided by NGOs. Such information should be: (1) focused
specifically on provisions of the ICESCR, (2) directly relevant to issues
under consideration by the Committee, (3) reliable, and (4) not abusive.
See CESCR, Fact Sheet No. 16 (rev.1).
Accreditation
If a NGO or other civil society stakeholder wishes to attend a session of
the CESCR, the organization is required to be duly registered.
Representatives of organizations must thus submit the full name of the
organization, names of the representatives, and proposed dates of
attendance to the CESCR’s Secretariat by creating an account and
registering through the United Nations Indico system.
All States parties are obliged to submit regular reports to the Committee
on how the rights are being implemented. States must report initially one
year after acceding to the Covenant and then whenever the Committee
requests (usually every four years). The Committee examines each
report and addresses its concerns and recommendations to the State
party in the form of "concluding observations”.
The Committee meets in Geneva and normally holds three sessions per
year.
For more information about the work of the Human Rights Committee,
read the Civil and Political Rights: The Human Rights Committee fact
sheet. (PDF)
Contents
COMPOSITION
WORKING METHODS
State Reporting
Individual Complaints
Inter-State Complaints
Urgent Interventions
Complaints of Systematic Violations (Inquiry Procedures)
General Comments
Open Letters and Statements
Thematic Discussions and Conferences
CIVIL SOCIETY PARTICIPATION
Attending Sessions
Accreditation
RESEARCH AND ADDITIONAL SOURCES
COMPOSITION
The Human Rights Committee consists of 18 independent experts who
are elected for a term of four years by States Parties to the ICCPR. See
ICCPR, arts. 28, 32. Each member must be a national of a State Party to
the ICCPR, of high moral character, and have recognized competence in
the field of international human rights. See ICCPR, art. 28. No more
than one national of a State can be included in the Committee. See
ICCPR, art. 31. Further information about the election process can be
found on the Office of the High Commissioner for Human Rights’ web
page on Elections of Treaty Body Members.
WORKING METHODS
The Human Rights Committee works on a part-time basis and makes
decisions during its sessions, generally held three times per year in either
Geneva, Switzerland or New York, United States of America. The
current meeting schedule can be found on the Meetings and Deadlines
section of the Human Rights Committee’s main web page.
State Reporting
One year after the ICCPR’s entry into force, each State Party must
submit a report to the Human Rights Committee detailing the status of
its implementation of the ICCPR’s provisions. In 2020, the Committee
will introduce a simplified reporting procedure (see below) for initial
reports. After the initial report, a State will submit periodic reports
whenever the Bureau of the Human Rights Committee requests them.
Historically, the first step in the Human Rights Committee’s review of
periodic State reports has been the State’s submission of its report
addressing the advances made since the previous reporting cycle, after
which the Committee would adopt a list of issues to identify the topics it
most wanted to discuss during a constructive dialogue with the State. On
the basis of the reports and replies to the list of issues submitted by the
State and civil society, the Committee would then prepare its concluding
observations.
The Committee may still decide to request a full report, “[i]n particular,
where a fundamental change has occurred in the State party’s political or
legal approach to ensuring the enjoyment of Covenant rights…” See
Guidelines for the Treaty-Specific Document to be Submitted by States
Parties under Article 40 of the ICCPR, 20 November 2010, at para. 15.
The State under review may also decide to use the traditional reporting
method. See id. For those States submitting full reports, the UN
Secretary General has prepared a Compilation of Guidelines on the
Form and Content of Reports to be Submitted by State Parties to the
International Human Rights Treaties, HRI/GEN/2/Rev. 6, 3 June 2009,
containing more specific information on the form and content of State
reports.
Whether the list of issues is adopted before or after the State submits its
report, a Country Report Task Force of between four and six members
takes primary responsibility for creating the list. A designed individual
member of the Task Force, the “country rapporteur,” is responsible for
overseeing the drafting of the list of issues and the Task Force members
are then charged with taking the lead on specific questions.
The last phase of the process is for the Committee to draft and adopt
concluding observations, a document which includes: an introduction,
positive aspects, factors and difficulties impeding the ICCPR’s
implementation, principal subjects of concern, and suggestions and
recommendations. A provisional due date for the State party’s next
periodic report is also given. The Committee will implement a follow-up
procedure for two to four recommendations in its concluding
observations for immediate implementation within one year. See Other
Activities of the Human Rights Treaty Bodies and Participation of
Stakeholders in the Human Rights Treaty Body Process, UN Doc.
HRI/MC/2013/3/Corr.1, 22 April 2013, para. 2. A Special Rapporteur is
also appointed for follow-up to concluding observations, and will
produce a follow-up progress report for each session. The Committee
keeps a current list of concluding observations.
Individual Complaints
The Human Rights Committee may consider individual complaints that
allege a violation of an individual’s rights under the ICCPR if the State
is a party to the First Optional Protocol to the ICCPR, which establishes
the complaints mechanism. See First Optional Protocol to the
International Covenant on Civil and Political Rights (adopted 16
December 1966; entered into force 23 March 1976). Articles 1 through 5
of the Optional Protocol identify the requirements for the Committee’s
consideration of an individual complaint. As of January 2020, 116 States
are party to the Optional Protocol.
Inter-State Complaints
Article 41 of the ICCPR provides a mechanism for States to complain
about violations of the ICCPR made by another State. See ICCPR, art.
41. Both States concerned must have made declarations accepting this
procedure, or the complaint will not be considered. This procedure for
inter-State complaints, however, has never been used.
Urgent Interventions
Early warning measures were used in the 1990s when the Human Rights
Committee asked several States (Bosnia and Herzegovina, Croatia,
Federal Republic of Yugoslavia, Burundi, Angola, Haiti, Rwanda, and
Nigeria) either to present their overdue reports without delay or to
prepare ad hoc reports on specific issues. The Bureau of the Human
Rights Committee discussed the possibility of reviving the urgent
procedure mechanism in March of 2004, but has not yet done so as of
2013.
General Comments
The Human Rights Committee issues general comments to clarify the
scope and meaning of the ICCPR’s articles. Such general comments help
elucidate to States Parties what the Committee’s views are on the
obligations each State has assumed by acceding to the ICCPR. Each
general comment specifically targets a particular article of the ICCPR
and is included on the Human Rights Committee’s list of general
comments that have been drafted or adopted.
Attending Sessions
The Human Rights Committee welcomes oral presentations by NGOs
and other civil society organizations during the presentation of States
parties’ reports. Since its 103rd Session, the Human Rights Committee
has allowed NGOs to engage with Committee members during a formal
closed meeting preceding the examination of a State party’s report. See
Human Rights Committee, The Relationship of the Human Rights
Committee with Non-Governmental Organizations, CCPR/C/104/3, 4
June 2012, para. 3. Informal briefings are also allowed.
All NGOs and civil society stakeholders are also welcome to attend
Human Right Committee sessions as observers, in which case they will
not be given the opportunity to address the Committee.
Accreditation
If an NGO or other civil society stakeholder wishes to attend a Human
Rights Committee session, the organization and individual must create
an account and register through the United Nations Indico system.
It has the ability to discuss all thematic human rights issues and
situations that require its attention throughout the year. It meets at the
UN Office at Geneva. + WIKIPEDIA
It is a good idea to get further advice if you think the right to a fair and
public hearing might apply to your case.
immigration law
extradition
tax, and
voting rights.
There is also no automatic right to an appeal (an application to a higher
court for the reversal of the decision of a lower court).
The right of access to the courts can be restricted, for example, if you:
morals
public order or national security
children and young people, or
privacy.
The courts might also decide to exclude the public or press if they think
that their presence is not in the interests of justice.
When DG appealed this decision, the Upper Tribunal found that DG did
not have a fair hearing of his appeal as required by Article 6. This
decision took into account the bad advice from Jobcentre Plus, the
claimant’s mental health problems and the failure of both the
Department for Work and Pensions and the tribunal to communicate
with his GP.
(Case summary taken from ‘Human rights, human lives: a guide to the
Human Rights Act for public authorities’. Download the publication for
more examples and legal case studies that show how human rights work
in practice.)